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Disme m b e r e d
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Native Disenrollment
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Human Rights
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U n i v e r si t y of Wa sh i ngt on Pr e s s
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HumanrightsUnited States.
Classification: LCC KIE2140 .W55 2017 | DDC 342.7308/72dc23
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The paper used in this publication is acid-free and meets the minimum
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Acknowledgments vii
I n t ro du ct io n 3
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Chap t er 1 Banishment12
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Appendix 167
List of Interviews 173
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Notes 175
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This book was initially inspired by the banishment experience that our dear
friend George Whitewolf endured twenty years ago. His traumatic but thank-
fully short-lived expulsion from the Monacan Nation prompted us to be more
vigilant in scrutinizing membership decisions in Indian Country. As always,
the scholarship and friendship of Vine Deloria Jr. compelled us to actively and
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honestly examine the citizenship choices that tribal leaders were making as
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Our greatest debt, however, is owed to the several thousand Native indi-
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viduals from more than seventy Native nations who have been unceremoni-
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ously terminated, banished, or denied admission, the vast majority on the most
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spurious of grounds. Cathy Corey was the first disenrollee to contact us after
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she and her family were violently disenfranchised from the Chukchansi Na-
tion. Her encouragement, knowledge, and abiding faith in the traditional val-
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ues that her own tribal leaders no longer embodied were consistent reminders
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and several others were banished from the Snoqualmie Nation for having al-
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legedly committed treason. She immediately set out to reverse that tainted
political decision and ultimately prevailed. She was eventually reinstated and
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during the course of our research. From Nooksack we thank Jeannie Campbell,
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From the Confederated Tribes of the Grand Ronde we thank Debi Anderson,
Erin Bernando, and Russell Wilkinson. From Redding Rancheria we thank
Carla Foreman Maslin and Mark Maslin. From the Cahto Tribe of Laytonville
Rancheria we appreciate the time and conversation with Alice Langton-Sloan
and Gene William Sloan. From Lumbee we thank Reena Oxendine Locklear
of the tribal enrollment office and Francine Chavis, a supreme court judge.
A hearty thanks also to Laura Wass (Mountain Maidu), who has been bat-
tling dismemberment practices for many years in California, and to the Galanda
Broadman law firm of Seattle, especially Gabe Galanda, Ryan Dreveskracht,
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v iii Ac k n ow l e d gm e n t s
helpful. And thanks to the two reviewers, including Tom Biolsi, who offered
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David Wilkins would like to thank John Coleman, dean of the College of
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the University of Minnesota law school, especially Vicente Garces. Thanks also
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to Michelle Aguilar Wells and Yvonne Peterson who allowed me to use their
offices while I was stationed at Evergreen State College in the summer and fall
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Thanks to Deron Marquez, of the San Manuel Band of Mission Indians, for
his friendship and artful ideas as the manuscript developed. Katherine Spilde
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also provided quality commentary and scholarship that helped with key sec-
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tions of the book. I appreciate the good leads that Matthew Fletcher provided
early on as the research on tribal and federal court cases was gearing up. Rick
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Cuevas, through his website Original Pechanga, has been a stalwart defender
of the rights of disenrollees for years and I extend a hearty handshake to him
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mother passed away in the fall of 2015, just about the time the first draft was
completed. I wish I could present her with a copy of our book now. Thanks also
to my siblings, especially my brother Craig, a hard-working member of the Cen-
ters for Disease Control, and my sister Deborah, a Methodist minister. Debs
biblical knowledge about banishment and exile proved most fascinating and
helped deepen and expand our understanding of these important concepts.
Finally, I am most appreciative of the love and brilliant writing of my wife,
Shelly. Our collaborations and life together have helped me become a better
writer and, more importantly, a better human being.
Ac k n ow l e d gm e n t s ix
Shelly Wilkins would like to thank Senator John McCoy and Jeannie McCoy,
Colleen and Frank Anderson, Amy Ruble, Sonja Silver, Jo Arlow, Sydney For-
rester, Cline Planchou, Marine Le Puloch, Rachel Smith, Maureen Gallegos,
Nicole Vukonich, Matt Bridges, Keith Buchholz, Gillian Maguire, Mike Delcamp,
Betty Schwieterman, Chris Stancich, Richard Tierry Kirk, Kim Rehagen, Susan
Vollmer and Virginia Cherry for their friendship and encouragement. Senator
McCoy, along with the late Sue Crystal and her husband, Billy Frank Jr., pro-
vided critical mentorship when I began my study of tribal-state relations.
I owe much to the dedicated public servants in the Washington State Leg-
islature, including Senators Jeannie Darneille, Bob Hasegawa, Maralyn Chase,
Karen Keiser, and Sharon Nelson and Representatives Sharon Tomiko Santos,
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Timm Ormsby, Frank Chopp, and Joe Fitzgibbon, as well as the fine staff. The
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Majken Ryherd, Gary Wilburn, and Kevin Black have been especially
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appreciated.
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I am also fortunate to have had mentors and friends like Nina Williams-
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Mary Cate Regan, Annette Durlam, Larry Morandi, Jim Reid, and Bill Pound
from my years with the National Conference of State Legislatures in Denver.
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It was there that I was inspired by the foundational work of Sam Deloria
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and Tassie Hannah and had the chance to work with leaders from across Indian
Country including Hank Adams, Fawn Sharp, W. Ron Allen, Kelly Croman-
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Neelands, Kate Spilde, Reggie Joule, Jack Jackson Jr., and Chris Deschene, as
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proud. In their stead I have had the loving support of other family members,
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Veda Cherneski, Ron and Naomi Shestack, Chuck and Martha Hulse, Fern and
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Erwin Botsch, Vernena Stowe, Rocky Jones, Lura Blankenship, Lynn Pacifico,
and Duff Pacifico-Prescott. My Wilkins family fills my world with love, good
humor, and banana pudding. New grandson Kai David is an unending source
of happiness and hilarity.
Finally, gratitude to my husband, David, a truly fine scholar, partner, and
person. There is so much joy in our lives and work together. I always look
forward to our next adventure.
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Introduction
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L i k e a l l h u m a n c om m u n i t i e s, N at i v e n at ion s a n d t h e i r g ov-
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erning bodies are in a constant state of flux. They generate from within and
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opportunities to either evolve and mature or to regress and decay. These issues
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what is arguably the most important question that Native nations have ever
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4 I n t r oduc t ion
The vital question, therefore, of who belongs to a Native nation and the
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grounds upon which that individuals relationship to his or her nation may be
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severed by the governing elites is at the heart of this book. While not as impor-
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tant as that most fundamental of human rightsthe right to life as a free hu-
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man beingthe right to belong to and rest assured of ones integral place in a
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citizens, particularly since the early 1990s, has become more of a political privi-
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(which affirmed a tribal nations right to be the ultimate arbiter of its own mem-
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bling revenue and civil violations or criminal activity that presumably threat-
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ens community stability.2 Interestingly, gambling revenue (or other large fi-
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nancial windfalls that come to some Native nations) and the way it is some-
times dispensed via per capita distribution programs, typically leads to
disenrollmentthat is, the legal and political termination of a tribal mem-
bers citizenship. In contrast, civil violations or criminal activity (e.g., mal
feasance, drug involvement, gang activity, etc.) tends in many cases to lead to
banishmentthat is, physical expulsion from tribal lands and not necessarily
the loss of tribal citizenship. These two concepts are often conflated, but they
are in fact distinctive terms. In some contemporary tribal cases, however, they
become functionally similar.
I n t ro duc t ion5
Disenrollment is a legal term of art that arose most prominently during the
Indian Reorganization Act period in the 1930s. Disenrollment can broadly be
divided into two categories: nonpolitically motivated disenrollments and po-
litically motivated disenrollments. The former are arguably justifiable when
due process is provided because of fraudulent enrollment, error in enrollment,
dual membership, or failure to maintain contact with the home community.
The latter, we argue, are never justified when driven by economic greed, politi-
cal power, or personal vendettas, among other reasons. Banishment, in con-
trast, is an ancient concept that has been utilized by societies and states
throughout the world, dating back to at least 2285 BCE.3
Furthermore, banishment can also be divided into two categories: nonpo-
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litically motivated banishment for the violation of a criminal law and politi-
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torically, Indigenous nations rarely banished tribal relatives, save for the com-
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mitting of grievous offenses, like premeditated murder or incest, and only then
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had been tried to restore community harmony. When it was employed, it was
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ize any tribal member. Moreover, they wield the power, unknown to any other
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sovereign in the United States, to formally exclude non-Natives from their ter-
ritorial homelands. But this study argues that far too many tribal nations are
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practices in clear violation of their own historic values and principles, which at
one time utilized peacemaking, mediation, restitution, and compensation to
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resolve the inevitable disputes that occasionally arose within the community.
Although the 1968 Indian Civil Rights Act (ICRA) extended to all persons
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in Indian Country a modified version of the U.S. Bill of Rights, the only remedy
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spelled out in that act is the writ of habeas corpus. Habeas corpus has thus far
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not offered dismembered Native individuals any substantial justice. And since
Native nations are also sovereign, they can and frequently do invoke the doc-
trine of sovereign immunity, leaving disenfranchised tribal members little
legal recourse.
Dismembered Native citizens are also citizens of the states they reside in
and have federal citizenship as well. Theoretically, these individuals should
be the most protected class of individuals in the land, armed as they are with
three distinctive layers of citizenship. Such, of course, has not proven to be the
case. In regards to Native citizenship, tribal political and judicial elites can
6 I n t r oduc t ion
comprehensively than Native nations, which are much smaller, more homo-
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geneous, and ostensibly more kin-based polities? For if Native nations are in-
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and territorially related, then it would appear that the grounds on which to
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would have to be unequivocally clear and would, in fact, rarely be carried out
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given the grave threat that such actions, the literal depopulation of the com-
munitys inhabitants, would pose to the continued existence of the nation. A
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son to Native citizenship is the following: what does it mean that the only class
of citizens in the United States who cannot avail themselves of such sacrosanct
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The very concept of tribal sovereignty means that the peoplethe tribal
community members themselvesare the sovereign, not the governing, bod-
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ies of those nations. Tribal councils and other governing institutions have
merely been delegated limited authority to fulfill the needs and to protect, not
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destroy, the rights of the people. They do not have or should not have the power
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to sever their relationship to their people by taking away the most important
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pledged with protecting the lands, rights, and resources of Indigenous nations
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by the Constitutions treaty, property, and commerce clauses; the several hun-
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dred ratified treaties forged between the federal government and Indigenous
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peoples; and numerous federal statutes and policy directives. When tribal
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governments are violating the rights of their own citizens, including their
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vested property interests, the federal government as the principal trust agent
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Ge n e si s of t h i s B o ok
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Two events in 1996 first brought this issue to our attention; both involved the
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banishment of enrolled tribal citizens. The first episode centered on the ban-
ishment of one individual, George Whitewolf, a Monacan Indian from Virginia.
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When new leadership was elected Whitewolf found himself on the wrong side
of their political and spiritual ideology, and he was unceremoniously banished.
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An outcry from tribal members forced the governing body to reconsider, and
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within a few months his membership rights were restored. Nevertheless, that
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a sufficient restraint on their liberty and because the banished members had
been evicted without a trial, prior notice, or any other form of due process.
This case is discussed in greater detail in chapter 5.
As important as Poodry is, it has been largely ineffectual in providing those
facing disenrollment or banishment any protection because in virtually all the
litigation since 1996 federal, tribal, or statecourts have generally adhered
to the U.S. Supreme Courts 1978 Santa Clara decision that Native governments
are the final arbiters of membership decisions.
Ov e rv i e w of t h e B o ok
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In this title, we will first provide a broad overview of banishment from a world
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historical perspective and then bring it into focus and discuss the way it was
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1800s to the early 1900s. Crime, race, and allotment factored heavily in how
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dian Reorganization Act (IRA), which formally stymied allotment and laid out
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a policy of tribal self-rule, including, for some nations, the formal adoption of
written constitutions, bylaws, and charters of incorporation. This chapter will
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also critically review the language in over three hundred tribal constitutions
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In the next chapter we introduce the rise of Native nationalism and tribal
sovereignty in the wake of federal policies of termination, relocation, and
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Public Law 280. A discussion of Santa Clara v. Martinez (1978) sets the stage
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federal courts have addressed this vital topic. These cases reveal the difficult
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positions judicial bodies are placed in. On the one hand, they are the active
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arms of the governance structures they represent; on the other hand, they are
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also the one venue where those facing dismemberment feel they have the best
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for Native individuals facing dismemberment, not every Native nation has a
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court system, and of those that do tribal membership decisions are sometimes
immune from challenge in those courts unless the tribal legislative body has
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individuals in their own land and in the United States. It appears, at first
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Native Claims Settlement Act (ANCSA), the Indian Gaming Regulatory Act
(IGRA), and the Harvard Project on Economic Development. But this alone
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Finally, we assess some of the reform ideas that have been put forward by
various commentators, disenrollees, and others to address dismemberment.
Ideas include the formation of an intertribal human rights treaty, an intertribal
appellate body, modifications to tribal constitutions or other governing docu-
ments, amendments to the ICRA (e.g., to give disenrollees an opportunity to
contest their exclusion more easily in federal court), encouraging dismem-
bered individuals to organize separately and seek acknowledgment from the
federal government as separate political entities, and utilizing the United Na-
tions Declaration on the Rights of Indigenous People and other international
10 I n t r oduc t ion
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Sovereigntree, the attack from within. Originally run March 4, 2016, on Indian Country
Today Media Network. 2016 Marty Two Bulls.
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decisions. What most every nation would discover by engaging in such self-
examination is that historically and until very recent times no Native leaders
lightly set about to permanently banish or formally disenroll individuals or
families they were organically related to. Native communities once possessed
clear and well understood traditions, norms, and customs of how a civilized
tribal citizen should behave in relation to his or her family, clan, community,
and the larger natural order. They relied largely upon social pressures, par-
ticularly the individuals fear of embarrassing his or her relatives and clan
I n t ro duc t ion 1 1
it appears that some Native nations have reluctantly determined that banish-
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ment is one social mechanism they may sometimes have to employ in order to
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lines and procedures to carry out this difficult process. But in a majority of
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disenrollment cases, tribal officials exhibit no concern for human rights, tribal
traditions, or due process, arbitrarily and capriciously dismembering tribal
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members as a means to solidify their own economic and political bases and to
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winnow out opposition families who disapprove of the direction the tribal
leadership is headed.
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own people on the most spurious of grounds, they not only may eventually
provoke the federal government to step in and interfere in this most private of
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tribal decisions, but more importantly, they will continue to act in a manner
that profoundly violates the true spirit of what it means to be an Indigenous
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nation: a nation in which all are related by genealogy (culturally derived, not
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values.