The United Auburn Indian Community owns and operates the Thunder Valley Casino Resort in Lincoln, California. Photo: FolsomNatural

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Internal tribal disputes continue to trip up federal court system

Thursday, March 23, 2017

Tribal citizens who have been punished by their governments are finding few allies in the federal court system but that isn't stopping them from seeking justice.

Federal judges have repeatedly expressed reluctance to get involved in internal tribal disputes, whether it's about elections or enrollment. Tribes, after all, are "sovereign nations" -- as U.S. Supreme Court nominee Neil Gorsuch said this week -- and should be able to handle their own affairs.

But while activists and advocates have made inroads in getting the public, the media and even the executive branch to pay more attention to civil rights abuses in Indian Country, a recent decision from the 9th Circuit Court of Appeals confirms that tribes have little to fear when it comes to their sovereignty.

The case arose out of a dispute within the United Auburn Indian Community. In 2011, the California-based tribe punished four women -- including a former chair and a former council member -- for criticizing the way their leaders were handling matters on the reservation.

"When the tribe’s credibility with other governments and businesses, as well as its lenders, employees and partners, is damaged so publicly, it requires swift action," the tribal council said in a statement at the time.

Indianz.Com SoundCloud: Jessica Tavares v. Gene Whitehouse

As punishment for speaking out, Jessica Tavares, Dolly Suehead, Donna Caesar, and Barbara Suehead were ordered to stay off tribal property and had their lucrative per capita payments suspended for a period of time. Tavares, the former chairwoman, was hit the hardest -- her exclusion order lasts for 10 years and her per cap was suspended longer than any of the others.

But while a three-judge panel of the 9th Circuit acknowledged that the punishment imposed on Tavares was "severe," the majority on the court said it lacked jurisdiction to review the tribe's banishment order. The tribe never detained her so she can't invoke a provision in the Indian Civil Rights Act that would bring the dispute into the federal system, they concluded.

"A temporary exclusion is not tantamount to a detention," Judge M. Margaret McKeown, who was nominated to the bench by Bill Clinton, wrote for the majority. Congress, she said, was mindful of tribal sovereignty when it limited the circumstances in which a tribe could be held accountable for civil rights abuses under ICRA, which first became law in 1968.

As for the per caps, all three judges on the panel agreed that the suspension of the payments didn't meet the definition of "detention" either. Tavares lost her share of the tribe's gaming revenues for 3.5 years, costing her an estimated $2 million, while her colleagues went without their payments for five months.

The "loss of quarterly distributions paid to all tribal members is 'insufficient to bring plaintiffs within ICRA’s habeas provision,'" McKeown wrote, quoting from another case in which a tribe punished its critics by suspending their monetary payments.

Gene Whitehouse currently serves as the chairman of the United Auburn Indian Community. Photo: Chapa-De Indian Health Auburn

But a third member of the panel departed when it came to the 10-year exclusion of Tavares. Judge Kim McLane Wardlaw, another Clinton nominee, noted that ICRA is supposed to protect the rights of tribal citizens who engage in "free expression" on their lands.

"Tavares presents us with precisely the kind of case over which Congress intended to establish federal jurisdiction: having exercised her right to free expression which Congress, through the ICRA, had explicitly guaranteed her, Tavares suffered retaliation from the UAIC in the form of 'severe restraints on individual liberty' not shared by other members of her tribe," Wardlaw wrote in her dissent.

Despite the disagreement, there's no indication that the 9th Circuit is shifting its thinking when it comes to tribal sovereignty or, more specifically, disenrollment matters. In case after case, the judges on the court have stood by precedents that require them to stay out of those kinds of disputes. Twice so far this year, the Supreme Court has refused to hear disenrollment cases from California, which is home to more than 100 tribes.

"In many cases, a tribe’s decision to temporarily exclude a member will be another expression of its sovereign authority to determine the makeup of the community," Judge McKeown observed in the decision.

The tide, though, may be turning in response to a new case from Washington, which also falls in the 9th Circuit. There, the Nooksack Tribe is suing the federal government for withholding an estimated $14 million in federal funds amid an internal dispute.

"Federal interference over matters of internal tribal concern is generally prohibited," the tribe's attorneys wrote in a March 16 request for a preliminary injunction against the new Trump administration.

Government attorneys have yet to respond to the motion or to the tribe's complaint, which was filed in February. But they aren't hiding from the fact that the dispute is tied to the ouster of more than 300 people from the Nooksack rolls.

In a notice submitted on Tuesday, they pointed out that the tribe is already being sued for allegedly punishing five people on the reservation by denying them "money and property." And 271 people who were disenrolled the tribe are trying to join the new lawsuit. A judge has scheduled two upcoming hearings, including one on Friday, to start sorting out the mess.

9th Circuit Court of Appeals Decision:
Tavares v. Whitehouse (March 14, 2017)