Disenrollment as Citizenship Revocation: Promoting Tribal Sovereignty by Embracing International Norms
abstract. This Note argues that Indian tribes can best address disenrollment by viewing the problem through the lens of international norms regarding citizenship revocation. Tribal officials and members, advocates and journalists, and scholars and practitioners of federal Indian law typically understand disenrollment, which is when a tribe severs its governmental relationship with certain members, as a practice unique to Indian Country. However, while tribes’ unique legal status facilitates disenrollment, this practice can nevertheless be understood as a form of citizenship revocation, which is when a state deprives certain persons of their previously held citizenship. By understanding disenrollment as citizenship revocation, tribes can draw from a wide body of existing literature about states’ citizenship-revocation regimes when considering limitations on their power to disenroll. If tribes choose to address disenrollment by embracing international norms regarding citizenship revocation, they will not simply invoke tribal sovereignty, as sometimes occurs under the current status quo, but instead promote it by advancing good governance and aligning their sovereignty with state sovereignty.
author. J.D. expected 2025, Yale Law School; B.A. 2022, Yale College; enrolled member, Forest County Potawatomi Community. I thank Professor Gerald Torres for his encouragement and guidance as I developed this Note. I also thank Lexie Holden and Ronak Gandhi for their suggestions at different stages of drafting, as well as Jeff and Mary Beth Crawford for their support as I developed and refined my ideas. Finally, I am deeply grateful to Chase Hinman, Lily Moore-Eissenberg, Beatrice L. Brown, Deja R. Morehead, Shreya Minama Reddy, and the rest of the Yale Law Journal for improving this Note through their excellent feedback and assistance during the publication process. All views, errors, and omissions in this Note are my own.
Introduction
In 2022, the Picayune Rancheria of the Chukchansi Indians, one of 574 federally recognized Indian tribes,1 terminated its governmental relationship with sixty to seventy of its members.2 This action was ostensibly the result of a constitutional dispute over whether the descendants of certain Chukchansi Indians were entitled to tribal membership.3 Shortly before resigning, however, the Tribe’s attorney wrote that these individuals should remain members under “the plain language of the Tribe’s Constitution.”4 Regardless, on the eve of a Tribal Council election, the Picayune Rancheria’s Tribal Council and Enrollment Committee disenrolled a substantial portion of the Tribe’s membership.5
The Picayune Rancheria’s 2022 expulsion of many of its members was not an isolated incident. The Tribe began removing members in 19926 and was still doing so as recently as November 2023.7 Furthermore, many other federally recognized tribes engage in similar practices, creating what critics have labeled a disenrollment epidemic.8 In Indian Country,9 the term “disenrollment” describes a tribe terminating its governmental relationship with one or more of its members.10 Over the past few decades, disenrollment has stripped the heritage of thousands of Native Americans across the country.11 Those disenrolled face negative health impacts, direct financial loss, and denial of access to social, educational, and economic opportunities.12
In recent years, various scholars and journalists have criticized tribes that engage in disenrollment.13 Opponents of disenrollment highlight the practice’s considerable normative weaknesses and practical problems. As a normative matter, disenrollment raises questions regarding political accountability, fundamental fairness, and human rights.14 In practice, disenrollment can undermine the legitimacy of tribal governments and institutions, weaken the rule of law in Indian Country, and endanger tribal business ventures.15
Tribes engaging in disenrollment often invoke tribal sovereignty and Indian self-determination to defend their actions.16 Many in Indian Country equate criticism of disenrollment to criticism of these two concepts.17 Because tribal sovereignty and Indian self-determination are vitally important to Indian Country, many key voices have hesitated to take a firm position regarding disenrollment.18 This Note, however, argues that tribes can confront the problem of disenrollment without returning to past federal paternalism by looking beyond Indian Country for solutions.
Understanding how disenrollment implicates tribal sovereignty
and Indian self-determination requires understanding what each of these
concepts represents. “Tribal sovereignty” describes tribes’ inherent “ability
to govern and to protect and enhance the health, safety, and welfare of [their]
tribal citizens within [their] tribal territory.”19 Tribes’ sovereignty is derived from
their historical status as independent political communities rather than from
the U.S. Constitution or a federal delegation of
power.20 As explained
by Felix S. Cohen, a central figure to twentieth-century Native American
history and the development of the field of federal Indian law,21 “[p]erhaps the most basic principle
of all Indian law” is that tribal powers are “not, in general, delegated powers
granted by express acts of Congress” but instead “inherent powers of a limited
sovereignty which has never been extinguished.”22
Today, however, tribal sovereignty is limited by the United States’s plenary power over Indian affairs.23 The Supreme Court has explained that “Congress’s power to legislate with respect to the Indian tribes [is] ‘plenary and exclusive’”24 and “supersed[es] both tribal and state authority.”25 Although “the federal government did not give tribal sovereignty to Indian tribes,” the federal government is the ultimate authority on how tribes can functionally exert their sovereignty.26
While much of tribal sovereignty and its limitations are presently defined by federal law,27 Indian self-determination is a matter of federal policy.28 Specifically, Indian self-determination is the federal policy that has defined the United States’s relationship with Indian tribes since the late 1960s.29 In 1970, President Richard Nixon proposed to create “a new era in which the Indian future is determined by Indian acts and Indian decisions.”30 In the present Self-Determination Era, the federal government strives for Indian tribes to “have autonomy and the opportunity to operate programs and services themselves.”31 In the words of the Biden Administration, over “the last 50 years . . . the Federal Government has worked with Tribal Nations to promote and support Tribal self-governance and the growth of Tribal institutions.”32 The policy of Indian self-determination has continued for more than half a century because it “is the only policy that produces positive results.”33
The advent of the Self-Determination Era did not create tribal sovereignty, but it has enabled tribes to better exercise tribal sovereignty as compared to earlier paternalistic eras of federal-tribal relations.34 An example of the relationship between tribal sovereignty and Indian self-determination is Santa Clara Pueblo v. Martinez—a case that is also key to understanding disenrollment.35 Julia Martinez was a female member of the Santa Clara Pueblo whose children were ineligible for tribal membership because of a tribal “ordinance denying membership to the children of certain female tribal members.”36 Martinez claimed that this ordinance violated the Indian Civil Rights Act (ICRA) of 1968,37 which provides that “[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person within its jurisdiction the equal protection of its laws.”38 But ICRA “does not expressly authorize the bringing of civil actions for declaratory or injunctive relief to enforce its substantive provisions” in federal court.39
The Supreme Court first determined that “[s]uits against [tribes] under the ICRA are barred by [tribal] sovereign immunity.”40 The Martinez Court then rejected the argument that ICRA created an implicit civil cause of action against tribal officials.41 In enacting ICRA, Congress had “[t]wo distinct and competing purposes . . . : In addition to its objective of strengthening the position of individual tribal members vis-à-vis the tribe, Congress also intended to promote the well-established federal ‘policy of furthering Indian self-government.’”42 A federal civil cause of action would harm the second purpose by “undermin[ing] the authority of tribal forums [and] impos[ing] serious financial burdens” on tribes.43 Moreover, the Court noted 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,” and the federal judiciary “should not rush to . . . intrude on these delicate matters.”44
Martinez acknowledged Indian tribes’ authority to make membership decisions without oversight from federal courts based on principles of tribal sovereignty and Indian self-determination.45 This decision is key to understanding disenrollment because tribes’ sovereign “right to define . . . membership”46 intuitively seems like it should include not just the power to enroll, but also the power to disenroll. Many opponents of disenrollment even concede this point.47 Others emphasize that the histories and traditions of North American Indigenous peoples do not support disenrollment and therefore argue that disenrollment is fundamentally a colonial power originating from the United States, not an Indigenous one.48 But even accepting that tribes have an inherent power to disenroll, they are not required to exercise this power: tribes are free to restrict disenrollment in their constitutions, ordinances, or courts. But what a government can do, it can also undo, and so there is a clear need for limiting principles on the power to disenroll.
Although some scholars and practitioners of federal Indian law have made “calls for outside influence” to halt disenrollments, tribes’ internal responses are critical because disenrollment, regardless of its origins, is fundamentally a tribal issue.49 In particular, there is a need for effective tribal responses to disenrollment that go beyond invoking tribal sovereignty as a shield against criticism.50 Given the realities of the plenary-power doctrine, “[e]xpansions of tribal sovereignty . . . must be earned.”51 By addressing disenrollment directly, tribes can therefore demonstrate the merits of a broader conception of tribal sovereignty.
Tribes that decide to address disenrollment internally could benefit from looking beyond Indian Country for answers to many of the questions raised by this power. International norms and literature regarding citizenship revocation are particularly instructive regarding whether, when, and how disenrollment might be justified. By embracing restrictions on their power to disenroll in line with restrictions on states’ power to revoke citizenship, tribes can both exhibit that tribal sovereignty is akin to state sovereignty and demonstrate that tribal sovereignty deserves to be treated with the same degree of seriousness as state sovereignty.
As a practical matter, tribal sovereignty is clearly distinct from state sovereignty.52 Tribal advocates, however, frequently equate the two as both a rhetorical device and a vision of their ideal state of affairs.53 This comparison presumably appeals to many in Indian Country because states, in the international sense of the term, can take actions that tribes cannot, such as exerting jurisdiction over all noncitizens who are within their territory and engaging in independent foreign policy.54 But less discussed in Indian Country is that the rights inherent to statehood are also accompanied by certain duties that exist even in the absence of clear enforcement mechanisms.55
Since the Second World War, international law and norms surrounding citizenship have focused on protections for citizens even where such protections conflict with historical ideas of absolute state sovereignty.56 Under the modern conception of state sovereignty, the powers of national governments are limited in theory, if not always in practice, by certain “human rights and fundamental freedoms.”57 Today, therefore, states do not generally assert an unchecked power to remove citizens from their political communities.58
The global War on Terror has forced Western democracies to reckon with “whether certain citizens deserve the protection that citizenship status provides.”59 Scholars focused on citizenship generally use the term “citizenship revocation” to describe states’ efforts to rescind, annul, or otherwise deprive disfavored individuals of previous grants of citizenship.60 The related term “denaturalization” specifically describes the revocation of citizenship obtained through immigration and application rather than through birth.61
States with active citizenship-revocation regimes frequently justify their actions through national-security rationales, the idea that citizenship revocation is a just punishment for certain crimes, or a contractual understanding of citizenship.62 But international law and norms can constrain these states’ power to revoke citizenship.63 Furthermore, some citizenship-revocation literature has questioned whether states may wield such power at all.64 Constraints on states’ power to revoke citizenship and the discourse surrounding exertions of this power problematize the idea that tribes should fully exercise an unbounded power to disenroll.65
This Note examines how tribes can address the problem of disenrollment in a manner that does not simply invoke tribal sovereignty but promotes it. Part I summarizes existing literature on disenrollment. The focus of this review is current disenrollment efforts and their implications, leaving discussion of the historical development of the practice to existing works.66 Part II explains that tribal membership is a form of citizenship despite its distinctive aspects and claims that disenrollment can therefore be understood as a form of citizenship revocation. Part III explains why tribes should look to international norms regarding citizenship revocation when addressing disenrollment. Finally, Part IV describes how tribes might choose to apply these norms to limit disenrollment.
The international norms on citizenship revocation reviewed in this Note indicate that some rationales for disenrollment are more legitimate than others. These norms do not support disenrollment on the grounds of lack of blood quantum, one of the most common reasons that tribes give when engaging in disenrollment,67 suggesting that tribes should cease or severely restrict this practice. But disenrollment may be permissible in narrow circumstances on the grounds of fraud and perhaps dual enrollment. If such circumstances arise, however, tribes engaging in disenrollment must aim to meet a high burden of proof given that they are upsetting the status quo and damaging existing interests for often-unclear benefit.