By Bree Black Horse
It could happen. In fact, the Federal Government is currently considering whether a band of disenrolled California Pomo Indians should be recognized as their own tribe. Other tribes should be worried about the threat that disenrolling tribes may cause the inter-tribal status quo.
In 2005, the Pinoleville Pomo Nation disenrolled a portion of its membership as a result of internal division following Pinoleville’s reestablishment as a federally recognized tribe. Some of the disenrolled Pinoleville Pomos now seek federal acknowledgement as the Ukiah Valley Pomo Indian Tribe. The Bureau of Indian Affairs is in the process of reviewing the Ukiah Pomos’ application for federal acknowledgement.
The federal acknowledgment regulations do not foreclose the possibility of disenrolled Indians, such as the Ukiah Pomos, being recognized as their own tribe. A federally recognized tribe must be comprised of a “unique membership,” including that “comprised principally of persons who are not members of any federally recognized Indian tribe.”
Section 83.11(f), however, provides an avenue to acknowledgment for a tribe whose members have been “otherwise associated with a federally recognized Indian tribe.” A tribe petitioning for recognition that falls within this definition must constitute a “separate political autonomous entity.”
Disenrolled Indians, who are typically blood-related and otherwise closely connected like the Nooksack 306, the Grand Ronde Chief Tumulth Descendants, and the Ukiah Pomos, can make that showing by satisfying both the “distinct community” and “political influence or authority” criteria.
Evidence of distinct community includes social relationships between those Indians; patterns of informal social interaction between them; and shared economic or other activity amongst them.
Evidence of disenrolled Indians’ “political influence or authority” includes the community’s use of a council or other centralized leadership process to control their members’ behavior, to make decisions affecting the group, and to represent the community in dealing with outsiders in matters of consequence.
Indeed, a disenrollment assault against a family or group of Indians only serves to further their communal distinction and political authority; those relatives are forced to strengthen their social relations and interaction patterns, if not form their own leadership council, in order to fend for their survival.
And resorting to legal processes to defend their original membership can force federal consideration of their petition to be recognized as a new tribe.
The Ukiah Pomos sued the Federal Government in Allen v. United States, 871 F. Supp. 2d 982 (N.D. Cal. 2012), over the BIA’s failure to call an IRA Secretarial election for the Ukiah Valley Pomo Indian Tribe.
Although the District Court found that the Ukiah Pomos did not fall within the IRA’s second definition of Indian—after a partial interpretation of Section 19 of the IRA and an inadequate interpretation of the Act's legislative history—the parties settled the litigation on terms that now require the BIA to consider the Ukiah Pomos’ recognition petition. It will be interesting to see of the Obama Administration takes action before the 2016 election.
In any event, disenrolling tribes should be careful what they wish for—as should all tribes.
Bree Black Horse is an Associate in the Seattle office and former Clerk for the U.S. District Court of Montana. She is an enrolled citizen of the Seminole Tribe of Oklahoma. Bree can be reached at (206) 735-0448 or firstname.lastname@example.org.