Ka Wai Ola - Office of Hawaiian Affairs, Volume 34, Number 4, 1 April 2017 — May Our Choices Reflect Our Hopes, Not Our Fears [ARTICLE+ILLUSTRATION]

May Our Choices Reflect Our Hopes, Not Our Fears

By Derek Kauanoe

This month's Govemance eolumn explores tribal disenrollment and is inspired by an OHA beneficiary's Facebook comment suggesting it is an issue the Office of Hawaiian Affairs should be "educating the community about, fostering lively and informed debate[.]" This is a mere introduction to the disenrollment issue and intended to encourage discussion. We invite you, OHA beneficiaries, to share what other governance-related issues interest you. In this introduction to disenrollment, we discuss what it is and reasons for it. We briefly share the views of different experts, lawyers, and scholars. This eolumn also considers whether tribal disenrollment should be a reason Native Hawaiians fear a govemment-to-government relationship with the U.S. DISENROLLMENT GENERALLY Gabriel Galanda, who is fighting against disenrollment in tribal court, describes disenrollment as when a tribe takes tribal citizenship away from a recognized tribal citizen. When a tribe takes away a person's tribal citizenship it subsequently denies "access to tribal facilities," adds Mary Swift. American Indian Studies Professor David Wilkins explained that distribution of casino profits is one reason for disenrollment; but other reasons include family feuds, blood quantum dilution and criminal activity. He adds that two or more of these stated reasons may be combined to disenroll citizens. As an example, a tribal leader of a casino-operat-ing tribe could misuse his political power to revoke a family's citizenship and eliminate that family's share of casino profits. Within the context of Indian gaming, law professor Angela Riley onee explained, "casino weahh has attracted masses of people who wouldn't have bothered to elaim tribal membership before. Thus, tribes are faced with the unenviable task of verifying the membership of new and existing members." Galanda and an associate identify gaming revenue payments as "the largest part in the current disenrollment crisis." Professor Wilkins recently indicated that roughly 13.9% of the 567 federally recognized tribes "have initiated proceedings for disenrollment or banishment[.]" VIEWS ON DISENROLLMENT Some view tribal enrollment or citizenship decisions as within the exclusive

powers of the tribe and not the federal government. In 1978, the U.S. Supreme Court noted in the Santa Clara Puehlo v. Martinez case that "a tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." However, this case was not a "disenrollment case" because citizens did not get their citizenship revoked. Instead, the case dealt with a tribal ordinance that denied tribal membership to "children of female members who marr[ied] outside the" tribe. According to Galanda, a tribe that follows established membership criteria and denies membership accordingly is different from the tribe that disenrolls or severs "its relationship with its members." Shouīd thefederal govemment intervene in disenrolhnent issues? Mary Swift indicated that federal courts should not interfere with these processes "given tribal sovereignty and tribal authority to make membership decisions." However, "legal scholars concur: the federal government has a duty to curb [abuses of] power," wrote Galanda. Galanda distinguishes between the branches of the federal government. He points out that "[t]ribal interests have lost in [the U.S. Supreme Court] 75% of the time[.]" While cautioning against federal court review of disenrollment, he also says "a return to [Bureau of Indian Affairs] oversight is also an option." This statement signals a preference for review by the Executive Branch of the federal government rather than the judiciary. What might an Executive Branch response be to disenrollment? Kevin Washburn, former Assistant Secretary for Indian Affairs during the Ohama administration, recently identified potential federal responses concerning unfair disen-

rollment practices. "[P]erhaps the United States should recognize the tribal right to [disenroll], but perhaps the federal government should reserve the right to assert diplomatic consequences, whieh could be fiscal in nature equivalent to international eeonomie sanctions, or political in nature, such as loss of federal recognition." Fixing the problem There seems to be agreement that unjust disenrollment is bad, and ultimately, Native nations must address the issue. Some Native nations now have laws preventing disenrollment; many still allow it. Law professor Suzianne Painter-Thome recommends allowing tribal courts to review a tribal council's disenrollment decisions independently. Galanda forecasts that failing to fix the disenrollment problem may lead to Native nations no longer existing. He says disenrollment works against self-determination. NATIVE HAWAIIAN8 AND DISENROLLMENT Another OHA beneficiary asserted that disenrollment was a reason she is "opposed to federal recognition" of a Native Hawaiian government. This framing suggests that contemporary federal recognition results in disenrollment. But, experts and eommentators such as Galanda and Washburn seemingly take an opposite stance; unjust disenrollments threaten the benefits, rights, and status of federally recognized Native nations. Native Hawaiians ean take affirmative steps to prevent a future Native Hawaiian government from unjustly disenrolling its Native Hawaiian citizens. This ean happen by Native Hawaiians participating in the ongoing nation-building process. An active Native Hawaiian citizenry ean have its government pass laws explicitly preventing disenrollment. Fear (of disenrollment) should not stop Native Hawaiians from considering all their options. Perhaps we ean allow our hopes and dreams for a better future for Native Hawaiians to guide our decisions. ■ OHA's Governance Program examines different governance modeīs, issues, etc., and shares information with our beneficiaries through monthly KWO columns. The ti.tle i.s an adaptati.on ofNelson Mandela 's quote, "May your choi.ces reflect your hopes, not your fears."

J EA S % GOVERNANCE /

www.oha.org/kwo | kwo@OHA.org NATIVE HAWAIIAN » NEWS | FEATURES | EVENTS