Steve Russell: Fighting the fake Indians in tribal court
Friday, June 5, 2009
Filed Under:
Opinion
"I will leave the question with a gentle suggestion for non-Indians who wish to employ Indians. Few Indians are offended by being asked if they are enrolled in connection with a non-tribal employment application. If they are in fact enrolled, that should shift the burden to anybody who claims they are not Indian. If they are not enrolled, the burden should be on them to prove they are Indian by reference to some existing Indian community. Is this rocket science?
But what is to be done about the fakes, particularly fakes who have tenure in academia? I have participated in many conversations about this, particularly with Cherokees, who seem to be the most common victims. It’s odd to say this, but in my experience Cherokees are most likely to get their identity purloined, but Lakotas are most likely to get their culture stolen – often by the same people.
Tribes in modern times are in charge of their own rolls, and they can certainly in some cases make it easier to check out somebody who claims tribal citizenship. But until recently, I was at a loss to suggest how tribes could do anything proactive to discourage fakes.
I wish this idea were mine, but it belongs to Stacy Leeds, a Cherokee law professor at the University of Kansas. I mention it with her permission.
A tribe could bring a lawsuit in tribal court for an injunction against a fake who claims to be a tribal citizen. This kind of fraud harms the tribe’s reputation.
Whoa, the lawyers will say – the tribal court has no jurisdiction. That is true only if the faker is a fake. If the faker challenges tribal jurisdiction on the grounds the faker is not part of the tribal community and not bound by tribal law, there’s the self-admission of fakery. If the individual is a tribal citizen, jurisdiction can be founded both on tribal citizenship and on the fact that misrepresenting the tribe is a tort that has an impact where the tribal court is located. But if the individual is a tribal citizen, chances are we are not having this conversation.
Or, if the faker ignores the tribal court proceedings, the same result follows. The tribe gets a default judgment declaring the faker to be a fake."
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