FluteMaker

indianz.com
Court dismisses California membership lawsuit
Thursday, June 21, 2007
Filed Under: Law | National | Politics

A California tribe that was terminated did not lose the right to define its membership after regaining recognition, a federal appeals court ruled on Wednesday.

In a unanimous decision, the 9th Circuit Court of Appeals said it would be wrong to treat restored tribes different from other tribes. Despite being terminated in 1958, the Mooretown Rancheria retained the right to set its membership criteria, a three-judge panel ruled.

"The termination and restoration of Mooretown Rancheria does not justify depriving it of its sovereign power to define its membership when it organized a tribal government in 1987," Judge Andrew J. Kleinfeld wrote.

The decision means the Bureau of Indian Affairs can't force the rancheria to enroll dozens of people who might otherwise qualify for membership. It was the plaintiffs, in fact, who were part of the landmark Tillie Hardwick litigation that resulted in several California tribes being restored to recognition.

But the plaintiffs were excluded from the Mooretown Rancheria because a different group established the tribe's membership criteria. As a result, their voting rights are restricted and they cannot share in profits from a successful casino.

"Thus, although the plaintiffs are Concow-Maidu Indians descended from people who have lived at Mooretown Rancheria for a very long time, they lack the rights of full members of the Mooretown Rancheria tribe," the court noted.

Despite the history, the court said it lacked the power to force the BIA to act. The judges noted that the agency -- which agreed to restore the tribes as part of the Hardwick litigation -- did not play a role in reorganizing the rancheria.

"Uncontradicted evidence establishes that Mooretown Rancheria itself squeezed them out, and that it did not act at the behest of the BIA," the court said. "It did not need the BIA’s permission and did not ask for it, and the BIA never purported to tell it how to define its membership."

At the same time, the 9th Circuit noted that tribal sovereignty can be affected by the federal government. "An Indian tribe has the power to define membership as it chooses, subject to the plenary power of Congress," Kleinfeld wrote for the panel.

Even then, the judges said sovereign immunity protects a tribe from suit without a voluntary waiver or a waiver from Congress. Citing U.S. Supreme Court precedent, the panel stated that "tribes remain quasi-sovereign nations which, by government structure, culture, and source of sovereignty are in many ways foreign to the constitutional institutions of the federal and state governments."

The Mooretown plaintiffs sued the BIA in hopes of overcoming the tribal sovereignty hurdles. Other disenrolled California Indians have adopted similar strategies but the state and federal courts have refused to intervene in membership disputes so far.

Recognizing Congress' plenary power and pointing to the ouster of at least 1,500 California Indians, the American Indian Rights and Resource Organization has been seeking changes in federal law to allow membership disputes to be heard in federal court. Some leaders in the California Democratic party have taken up the cause amid charges that wealthy tribes are ousting people in order to limit per capita gaming payments.

Nationally, the issue has gained media and Congressional attention due to the ouster of the Freedmen, the descendants of African slaves, from the Cherokee Nation of Oklahoma. Rep. Diane Watson (D-California) is introducing a bill to cut federal funding to the tribe until it restores citizenship to the Freedmen.

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