S moke S ignals
AUGUST 15, 2016
9
Tribal Appeals Court reverses disenrollments
Judges unanimously
rule that Tribe waited
too long to take action
By Dean Rhodes
Smoke Signals editor
The Tribe’s three-judge Appeals
Court unanimously remanded 66
disenrollment cases back to Tribal
Court Chief Judge David Shaw and
the Tribe’s Enrollment Board, ruling
that the Tribe waited too long to cor-
rect the members’ enrollment status.
Appeals Court Judges Robert
Miller, Douglas Nash and Patricia
Paul, who are all Native American,
issued the ruling on Friday, Aug. 5.
“The decisive issue in this case is
whether equitable principles of law
prevent the Tribe from revisiting
the question, in 2013, of whether
the petitioners/appellants’ lateral
and lineal ancestors were enrolled
in error in 1986,” Miller wrote. “We
ultimately decide that the Grand
Ronde court system is a court of
equity and that both laches and
estoppel prevent the Tribe from
even raising the issue of the en-
rollment status of petitioners/ap-
pellants based on an alleged error
in enrolling their lineal and lateral
ancestors in 1986.”
In September 2015, Shaw ruled
that the Tribe’s actions were rea-
sonable in correcting an error of
the petitioners’ common ancestors
being ineligible at the time of
enrollment in the Grand Ronde
Tribe, “and as such the actions
of the relevant Tribal parties are
authorized by the Constitution and
Tribal ordinance.”
The Tribal members claimed
lineal descent from Chief Tumulth,
who signed the Willamette Valley
Treaty of 1855 but never moved to
the Grand Ronde Reservation be-
cause he was executed by the U.S.
Army in April 1856. They appealed
Shaw’s decision to the Tribal Ap-
peals Court.
The Tribe’s 1984 Constitution, in
part, defined descent from a Tribal
member to include a person named
on any roll or record of Grand Ronde
members prepared by the U.S. De-
partment of the Interior before the
effective date of the Constitution.
Although members claiming de-
scent from Chief Tumulth first be-
came Grand Ronde Tribal members
in 1986, a subsequent 2013 audit
of enrollment files found that they
did not have the relevant consti-
tutional membership requirement
of descent from a lineal ancestor
listed on any roll or record of Grand
Ronde membership.
Family members claimed to de-
scend from a woman listed on the
1872 census of Grand Ronde mem-
bers, but the Enrollment Board
found the evidence unconvincing and
voted in July 2014 to disenroll all
those who became members based on
lineal descent from Chief Tumulth.
In addition, there was significant
debate about whether signing a
treaty qualified as a roll or record
of Grand Ronde Tribal members
prepared by the Department of the
Interior, but a definitive answer
was never reached.
However, the Appeals Court ruled
that the doctrine of laches, which
prevents people or governments
from waiting too long to institute
legal action, unfairly harmed those
being disenrolled.
“There is no question that the
Tribe, Enrollment Committee and
staff were not diligent and unjus-
tifiably delayed instituting this
enrollment investigation and the
subsequent action to disenroll peti-
tioners,” Miller wrote. “For up to 27
years, from 1986 to 2013, the Tribe
was on actual notice of the facts
and circumstances under which
petitioners and their ancestors were
enrolled. The Tribe allowed 27 years
to pass before taking any action on
this alleged enrollment error.”
Miller wrote that the only “rea-
sonable conclusion” that could
be drawn from the 27-year delay
is that the petitioners have been
prejudiced.
“The faded memories and deaths
of relevant witnesses, and a pas-
sage of such an amount of time that
makes discovering evidence diffi-
cult or impossible,” Miller wrote.
“We do not decide today whether
the Tribe has to engage in affirma-
tive misconduct before equitable
estoppel can be applied against
it. But it seems clear that enroll-
ing petitioners’ lateral and lineal
ancestors, allegedly in error, and
then repeatedly enrolling petition-
ers, allegedly in error, and then
repeatedly telling them, allegedly
in error, for 27 years that they were
properly enrolled in the Tribe could
be affirmative misconduct. … We
hold that the Tribe and Enrollment
Committee/Board are estopped
from attempting to disenroll the
petitioners based on the alleged
1986 error in enrolling their lineal
and lateral ancestors.”
Estoppel is the legal principle that
prevents a party from asserting a
fact or a claim inconsistent with a
position taken previously, especially
where a representation has been
relied or acted upon by others.
Tribal Council Chairman Reyn
Leno said at the Tuesday, Aug. 9,
Legislative Action Committee hear-
ing that enrollment decisions are
out of the hands of Tribal Council,
which transferred final authority
on loss of membership cases to the
Enrollment Board in July 2014.
He said his understanding of the
process is that the cases will be re-
manded back to Shaw and then to the
Enrollment Board, which will have to
overturn its previous decisions.
In addition, Leno said he was
going to create a staff directive
for Tribal Council members to
sign that would ask the Court of
Appeals judges to appear before
Tribal Council and the membership
to explain their decision.
In another decision regarding
disenrollment proceedings against
lineal descendants of Chief Tu-
multh who have already walked
on, the Appeals Court unanimous-
ly ruled the petitioners were not
appointed as personal representa-
tives, executors or administrators
of their deceased ancestors’ estates
and their status does not “confer
representative capacity on them to
bring this action on behalf of their
deceased ancestors.”
The rulings can be read in their
entirety at the Tribal website,
www.grandronde.org, under the
Tribal Court tab.
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