Anyone who knows about my Indian law practice (now over 35 years) knows that I have always worked to improve the lives of tribal members and have never helped tribal governments to be oppressors. With disenrollment-related events now happening at Elem Indian Colony, a Lake County tribe that has been my client for many years, and the public accusations that I am a supporter or collaborator in those disenrollments, I have determined I need to do two things: 1) Clarify what my role has been at Elem; and 2) step away from all further work for Elem unless/until the Tribe heals itself.
My past role at Elem: My work at Elem has had two primary focusses, trying to assist the Tribe with economic development, and working with a team to force the United States to take appropriate action to: a) stop the contamination of Elem by mercury and other poisons coming from the abandoned mercury mine (EPA Superfund site) adjacent to the Rancheria; b) to restore the health of the land and its people, plants and animals; and c) to provide to the Tribe at no cost new land that is without contamination and suitable for economic development.
Although those things have been my focus, I was asked over a year ago to review a draft disenrollment ordinance that was, ironically, proposed by one of the people now on the disenrollment list. I refused, and strongly advised against disenrollment as a punishment, no matter what the alleged offenses were. The draft ordinance lacked due process provisions and was inconsistent with the Indian Civil Rights Act, the only federal law that protects tribal members from their tribal governments. When the people from whom I was taking direction agreed to remove the disenrollment provisions, leaving only other sanctions, like disenfranchisement, in place, I revised the ordinance to specifically require tribal officials to comply in all respects with the ICRA. My thinking on that was that a tribal official who violates the ICRA in enforcing the ordinance is acting outside the scope of his/her authority and therefore is NOT protected by sovereign immunity. I have long publicized my view on that subject and I added that provision to protect all tribal members. This is an example of one of the many postings I have made on the subject while attempting to help a person disenrolled by another northern California tribe:
“When a tribe adopts the Indian Civil Rights Act into its own constitution (as, for example Dry Creek has), I believe that actions of its elected officials that violate the ICRA are outside the scope of their tribal authority and they are therefore not protected by the tribe’s sovereign immunity. They can therefore be sued in state court under PL-280. The suit would ask the court to rule that they are speaking only as individuals, not for the tribe, to enjoin them from claiming to be speaking for the tribe, and to find them liable for defamation for claiming members have been disenrolled. This could be the way to get around Santa Clara Pueblo v Martinez, which said the ICRA is a nice principle but otherwise worthless. [And here’s the legal support for my suggested approach:] “In general, the agent of a sovereign may be held liable when he acts “in excess of his authority or under an authority not validly conferred.” Boisclair v. Superior Court 51 Cal3d 1140, 1157 (1990)
To the credit of Elem’s Executive Committee, they adopted the ordinance with those ICRA provisions. When I was recently informed of the intended disenrollments and asked to amend the ordinance to include disenrollment, though, I strongly expressed my opinion that disenrollment is wrong as a punishment. But I did add the disenrollment paragraph to the existing ordinance for one reason, and one reason only: There was nothing I could do to stop the disenrollments, but by carefully adding that sanction to the ICRA-protected disenfranchisement ordinance, I could at least ensure that people accused of crimes and threatened with disenrollment were entitled to the protections of ICRA and would have access to the state and/or federal court system to remedy any violations. THAT HAS BEEN MY ONLY ROLE in this current disenrollment disaster, and I have from day one made it clear I will have no other role in it.
The future: Effective immediately, I will not be representing Elem in any context. Although I believe my work to restore the environment of the Rancheria would benefit all members of the Tribe, I am not willing to suffer personal consequences for the misguided behavior of others, either the disenrollers, or the disenrollees. If both sides of this dispute would like me to help to create a solution, I would be happy to do that. Without an affirmative request from both sides that I do so, I will have no further role in connection with the Tribe unless and until the people of the Tribe figure out a way to work together.