Gabriel S. Galanda

Thanks to the federal government and the Indian Reorganization Act, the dangerous concept of ‘membership’ has been codified by tribal governments.

I recently read Dr. David E. Wilkins and Shelly Hulse Wilkins’ amazing new book, Dismembered: Native Disenrollment and the Battle for Human Rights. The book chronicles the root causes of the disenrollment epidemic that has plagued at least 80 tribes—15 percent of federally recognized tribes—and resulted in several thousand Indian casualties, predominately over the last decade.

In my estimation, one of those causes to that pan-tribal existential crisis is the Indian Reorganization Act (IRA) of 1934, which, as the Wilkinses explain, was engineered by then Commissioner of Indian Affairs John Collier. More specifically, that crisis has been catalyzed by the adoption and use—and misuse—of IRA tribal constitutions and bylaws and resultant ordinances that adopt federal “membership” tenets.

What has followed is the infusion into tribal self-governance of a destructive combination of “membership” criteria, replete with federal, racialized blood quantum and reservation residential criteria; disenrollment procedure, a wholly non-indigenous regime introduced to Indian country by the United States via the IRA and its progeny; and various other Anglo-American governance constructs.

Over time, Indian kinship—which prevailed long before treaties or the Dawes Act, Burke Act or Indian Reorganization Act —has been displaced as the underpinning of tribal self-governance.

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Nearly 80 years after the IRA’s passage, the Wilkinses observe that the two most common concepts used by Indian individuals to describe their connection to their own tribe is “member” or “citizen,” and that federal law and policy almost exclusively use “membership” terminology to describe that connection. They explain that “[i]f one understands Native peoples as geologically or organically related communities who share a common language, values, and territory, then the term member is certainly apropos” because “humans frequently use the expression ‘I am a family member’ or ‘useful member of society,’” to distinguish themselves from others.

John Collier did understand tribes to be kinship societies. As Stephen J. Kunitz explains in The Social Philosophy of John Collier, before Collier’s appointment as United States Commissioner of Indian Affairs, he spent many years living with and studying Pueblo communities in the Southwest. There he gained “deep understanding of Native community structures, religious traditions, and value systems of Native peoples.” By the time he architected the Indian Reorganization Act, Collier likely used “member” and “membership” in an attempt to match the traditional kinship structure of tribes. But as time has passed, his attempt has failed. The organic tribal understanding of membership as kinship has eroded in favor of the federal Indian membership concept—rooted in blood quantum most notably. The Wilkinses state that nearly two-thirds of the 567 federally recognized tribes now use blood degree as a metric for tribal belonging.

To his credit, it appears Collier believed that the wellbeing of tribes required the reinvigoration of traditional communal lifestyles. To him, though, that required tribal organizational framework. He explained that the “fundamental conception of the IRA was that organization—the psychological need to organize, the practical efficacy of being organized—is universal and permanent, that no true liberty can be achieved without organization.” Elmer R. Rusco, A Fateful Time: The Background and Legislative History of the Indian Reorganization Act 146 (2000). But Collier’s constitutional and corporate models of tribal organization, or reorganization, never found sufficient organic footing in Indian country.

That is due in part to Collier’s belief that the tribal organization was, and needed to be, subordinate to the federal government. He in fact saw tribes as “organized under the [IRA] as agencies of the federal government, rather than completely sovereign nations.” Curtis Berkey, John Collier and the Indian Reorganization Act, 2 Am. Indian J. 2, 5 (1976). He believed that the United States enjoyed superior needs to recognize a proper tribal government, and persons affiliated with that tribal community. A Fateful Time at 226. Ultimately, the IRA caused a subjugation of tribes, a displacement of traditional Indian protocols and prerogatives—especially as to belonging—and overall an erosion of tribal kinship.

(As Hank Adams explains in his 1986 essay, Indian Self-Rule: First-Hand Accounts of Indian-White Relations from Roosevelt to Reagan, the National Congress of American Indians (NCAI) “was organized to make the IRA applicable to all tribes, even those who rejected it” and to otherwise advance reforms “Collier had been pushing” in the 1930s. Today NCAI struggles to even deliberate about the self-governance challenges surrounding tribal belonging that the IRA has brought about.)

Professor Carole Goldberg believes the term “membership” is used in tribal constitutions instead of “citizenship” because the Bureau of Indian Affairs (BIA) never treated IRA constitutions as charters for governments. Members Only? Designing Citizenship Requirements for Indian Nations, 50 U. Kan. L. Rev. 437 n.3 (2001). Others point to governmental accounts of Indians as “members” throughout the 1800s to suggest that the BIA does not deserve that much credit. See Jackson ex dem. Smith v. Goodell, 20 Johns. 188 (N.Y. 1822). In other words, we have always been members in the familial sense of that word, as the Wilkinses explain. That is certainly consistent with the universal indigenous “right to belong,” guaranteed Article 9 of the United Nations Declaration on the Rights of Indigenous Peoples.

Goldberg further maintains that the BIA has taken a dim view of IRA constitutions “as some variation on private associations or student councils, designed to instruct Indian people in self-government rather than to facilitate genuine self-determination.” Indeed, the IRA “constitutions promoted by the Bureau typically have ‘bylaws’ attached to them, something one finds in nonprofit or business associations, not governments” or kinship organizations. In any event, “membership” does seem incongruent with constitutional governance; it has certainly devolved from a kinship-based standard since 1934. See Kenneth R. Philp, John Collier’s Crusade for Indian Reform 1920-1954, 160 (1997).

In 1976, Hank Adams assailed the Indian Reorganization Act in testimony to the U.S. Congress: “You have a number of things that were essentially imposed by the federal government. [IRA] constitutions were rarely motivated by the judgments of an Indian tribe and what was best for themselves. They pretty much sold us on this,” including “a number of provisions in constitutions that can disallow memberships for Indian tribes.” As Adams continued in a letter he wrote Congress in 1988, the “membership provisions of tribal constitutions have produced notorious abuses by both federal and tribal agencies . . . after the [IRA] created some of the problems of arbitrariness and senseless requirements” for tribal membership. The abuse, arbitrariness and senseless that Adams discussed as modern self-determination policy was very young, has since morphed into disenrollment. His words then describe disenrollment today to a tee.

Over 40 years ago Adams also foretold to Congress the need for “some period of realignment for membership before anything gets set solidly on who constitutes membership of tribes.” With the federal Indian membership regime acutely ailing us in this era, the time for that realignment is now.

Gabriel “Gabe” Galanda is the managing partner of Galanda Broadman, PLLC, www.galandabroadman.com. He belongs to the Round Valley Indian Tribes. Gabe thanks Elisabeth Guard for her research assistance, and Professors David Wilkins and Matthew Fletcher for their thoughtful feedback.