Cultural Justice in Contemporary Tribal Legal Systems Discussion
Discuss why tribal nations, under their powers as sovereign governments, reserve in their treaties and constitutions, the right to exclude non-members from citizenship in the tribe. Also, discuss how and why tribes use disenrollment and banishment as tools to exclude tribal citizens. What is your analysis of the matter of dismemberment in Indian Country including how the issue affects both tribal members and non-members.
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Tribal nations have always-since their respective beginnings-had the right to enroll, disenroll, or banish citizens as they see fit without the traditional interjection of federal courts. Traditionally, disenrollement can happen for a multitude of seemingly just reasons, such as blood quantum errors, paperwork errors, crime involvement, and other tribal-related conflicts. The same goes for tribal banishment, though traditionally, tribes would reserve that punishment for the harshest of offenses, such as murder, theft, or treason. While disenrollment and banishment are reasonable routes taken by tribal councils to ensure order in their tribe, it is worth mentioning that historically, tribal councils did not partake in such punishments; rather, they were in favor of diplomatic resolutions in order to keep tribal families and communities together and united regardless of trials and tribulations. With that said, in today’s current age where tribes are often riddled with inter and intra tribal conflicts and complexities, there has been an abundance of controversy regarding the disenrollment and even banishment rates of certain tribes on both a local and state level. With California being the leading state of tribal disenrollment rates, there is a growing argument to be made that the current uprising in disenrollment rates is due to reasons unjust to many tribal citizens. Tribal councils may prioritize the disenrollment processes for many citizens due to things that do not adhere to traditional native sovereignty; such as monetary gain and the riddance of activists speaking against the wishes and belief of a particular tribal council or official. This in turn may make tribal members feel less connected to their traditional roots and communities as their identities are being watered down at the expense of their families, fellow tribal members, and their own sense of self.
In 1978, the US Supreme Court declared that tribal governments had the power to determine their tribal membership. This means that the tribal government is completely able to decide if a person is a member of that tribe, meaning that the government has the right to expel and strip a member. Tribal states had independent governments and their own constitutions or treaties, so the right to increase or expel a tribal member was justified but immoral in some cases. In “DISMEMBERED: Native Disenrollment and the Battle for Human Rights” by WILKINS it is written that deportations come in two categories including non-political deportations for criminal offenses and politically motivated deportations. But historically, tribal states rarely expelled their members. Crimes such as murder or incest, after undergoing public punishment and ridicule, are also often directed towards restoring social inclusion. But after 1978, too many countries engaged in deportation because of economic benefits and political motives, which went against their own historical values and principles. Wilkins pointed out that since indigenous states have sovereignty immunities, expelled tribal members often have very little right to seek justice. The tribal council or government should use their power to carry out demands or protect the tribal people, not to deprive them of their identities. In “Disenrollment is an Existential Threat” by Kristin Gray, lawyer Gabe Galanda pointed out, “The disenrolled is an existential threat to Indians across the country”. Disenrolled individuals often suffer the loss of health insurance, benefits, pensions, and scholarships. In addition, they were separated from the community, stripped of their cultural identity, and not even buried with their ancestors and relatives. According to Kristin Gray, there are 574 Federally recognized tribes in the US as of March 2020, of which the unsubscribe process has divided more than 80 tribes into more than 17 states and affected more than eleven thousand relatives.