Gabe Galanda: The legal consequences of tribal disenrollments

Amidst billions of dollars of new Indian gaming wealth, American indigenous modes of kinship, sharing and inclusion were converted to colonialist modes of racialized difference, commercialism and exclusion. Although disenrollment fundamentally converts Indians to non-Indians, at least legally, offending tribes fail to appreciate that disenrollment also erodes the very sovereignty and territorial jurisdiction that Indian Country has fought so hard to restore for the last four decades. Offending tribes also fail to appreciate that just because an Indian is disenrolled it does not mean that person can categorically be excluded from tribal territories – as history proves, it is just not that easy to eradicate Indians.

Disenrollment of an Indian does not necessarily equate to that person’s exclusion from their territories. The federal Indian Civil Rights Act (ICRA), which also protects non-Indians, authorizes a U.S. District Court to issue a writ of habeas corpus “to test the legality of [a] detention by order of an Indian tribe.” 25 U.S.C. § 1303; Dodge v. Nakai (D. Ariz. 1969). In Poodry v. Tonawanda Band of Seneca Indians (2d Cir. 1996), the Second Circuit Court of Appeals ruled that the “existence of the orders of permanent banishment” are criminal, not civil sanctions, and thus “sufficient to satisfy the jurisdictional prerequisites for habeas corpus” review by a federal court. Courts in the Ninth Circuit have held likewise. See e.g. Sweet v. Hinzman (W.D. Wash. 2008); Quair v. Sisco (E.D. Cal. 2004). More specifically, permanent “exclusion” of a disenrollee from tribal lands can constitute “a sufficiently severe restraint on liberty to constitute detention and invoke federal habeas jurisdiction under ICRA.” Tavares v. Whitehouse (E.D. Cal. Mar. 21, 2014). In other words, even though a federal court might not review a person’s disenrollment from their tribe, it can still review the exclusion de novo and, in the process, apply the protections afforded by the federal Bill of Rights.

Nor does disenrollment necessarily amount to the loss of an Indian’s land or home. Due to federal Indian allotment efforts in the late 1800s and early 1900s, individual Indians own allotment land. As a result of federal Indian housing programs, individual Indians also own homes affixed to tribal trust lands. The U.S. Constitution and ICRA, and many tribal constitutions, each prevent the taking of an Indian’s property for public use without just compensation. 25 U.S.C. § 1302(8); Irving v. Hodel (U.S. 1987). And, a tribal or federally-aided taking of Indian-owned property is generally redressible in tribal and federal court, respectively.