Enrollment Board dismisses Chief Tumulth disenrollment cases

The Tribe’s Enrollment Board voted on Monday, Oct. 3, to dismiss its decision to disenroll 67 descendants of treaty signer Chief Tumulth, concluding a more than three-year process that created sharp differences of opinion about what constitutes being a Grand Ronde member.

On Tuesday, Oct. 4, the Tribe’s General Manager’s Office announced that the descendants were “once again eligible for services.”

The Chief Tumulth descendants, who were first enrolled in the Tribe in 1986, were identified for disenrollment after an enrollment audit was approved by Tribal Council in June 2011 and started in early 2013.

Although Cascades Indian Chief Tumulth is a treaty signer of the Willamette Valley Treaty of 1855, he never made it to the Grand Ronde Reservation to validly appear on an official roll or record of Grand Ronde Tribal members created by the Department of the Interior. Tumulth was executed in April 1856 by the U.S. Army before the Grand Ronde Reservation was established.

The Tribe argued in its legal briefs that previous Tribal Councils and Enrollment Boards had erroneously enrolled the first members of the family and then compounded the mistake by enrolling additional family members, sometimes based on lateral and not lineal ties.

The Enrollment Board, which determined that the Willamette Valley Treaty is not a roll or record of Grand Ronde Tribal members, forwarded recommendations of disenrollment to Tribal Council in March 2014 after holding approximately 80 hearings in December 2013 and January 2014.

During a two-day Tribal Council hearing held on April 30 and May 1, 2014, Chief Tumulth descendants presented evidence that they did have a descendant – one of Chief Tumulth’s five wives -- on an 1872 census roll of Grand Ronde Indians that was prepared by the Department of the Interior.

Shortly after that hearing on July 2, Tribal Council voted to relinquish its decision-making authority in involuntary loss-of-membership cases and invest the final say in the Enrollment Board, stating that the disenrollment process had become too “political.”

Although Enrollment Board hearings are confidential, a court brief written by attorneys for the Chief Tumulth descendants said that a majority of Enrollment Board members did not agree that the woman cited by them on the 1872 census roll was related to Chief Tumulth, so therefore the family members did not meet the requirements for membership when they were enrolled.

The Enrollment Board voted in July 2014 to disenroll all those who became members based on lineal descent from Chief Tumulth.

Chief Tumulth descendants were then classified as “provisionally disenrolled” awaiting the outcome of lawsuits filed in Tribal Court. Those provisionally disenrolled saw their Tribal benefits, except for health care and some housing benefits, suspended until the appeal process was completed.

The descendants lost their first legal battle when Tribal Court Chief Judge David Shaw ruled on Sept. 1, 2015, that the Tribe acted legally and within the requirements of the Tribal Constitution and Enrollment Ordinance in correcting the mistake and disenrolling them.

However, the Tribe’s three-judge Court of Appeals – the Tribe’s highest court – ruled on Friday, Aug. 5, that the “alleged enrollment error” regarding the Chief Tumulth descendants had occurred so long ago that the Tribe had failed to act within a reasonable amount of time to correct it.

The judges also advised that in future involuntary loss-of-membership cases that the Tribal government has the burden of producing “clear and convincing” evidence to resolve whatever issue is raised.

“Enrollment cases are so important to crucial Tribal interests, and to the individual and familial interests of family, culture and personal identity, that this heightened standard of proof, and placing the burden on the Tribe, is well justified. Disenrollment is such an extreme sanction for Tribal citizens that it justifies using the heightened civil standard of proof of clear and convincing evidence,” the judges wrote.

The Appeals Court remanded the cases back to Tribal Court and the Enrollment Board.

The deep differences of opinion within the Tribe on the proper course of action to take were evident in letters to the editor in Smoke Signals as well as in intense debates on various Tribally oriented Facebook pages.

Even as late as the most recent General Council meeting held on Sunday, Oct. 2, Tribal members passionately spoke in favor of disenrolling Chief Tumulth’s descendants while others supported obeying the Court of Appeals ruling, and both said that their approach was supporting the Tribal Constitution and Tribal sovereignty.

At the Tuesday, Oct. 4, Legislative Action Committee meeting, six of nine Tribal Council members spoke about the Enrollment Board’s decision to obey the Court of Appeals decision.

“The decision that was rendered yesterday, whether you agree or disagree, it took a lot of weight off of all of us,” said Tribal Council Chairman Reyn Leno. “It was a difficult decision for everybody and as Kathleen (George) said, I hope a lot of time doesn’t get wasted on ‘I’m going to convince you of my opinion’ … The decision has been made. We need to work through the issues in the financial part of it and all of that. As far as council, I’m glad it’s a board decision and not a council decision because it will give us the freedom to be able to express if you were disappointed in the outcome of it, we can certainly do that.”

Leno said he doesn’t think the issue will go away, however. “Enrollment has been an issue before we were ever restored,” he added.

Tribal Council Vice Chair Cheryle A. Kennedy thanked Enrollment Board members for their work and struggling with the difficult decision. She cited the Tribal government’s separate branches that created a balance of power and a resolution to the case.

“I am really hoping we can move on and put this behind us,” said Tribal Council member Chris Mercier. “I think we’ve got some larger issues that are looming and coming up in the next year, and I am expressing relief that a final decision has been made and we can all get on with the business of the Tribe.”

Tribal Council Secretary Jon A. George said he hopes the Tribe can move forward in a positive way and that healing can begin. “We have so many other important matters for this Tribe that focus on all of our membership and the future of our membership,” he said.

Tribal Council member Tonya Gleason-Shepek said that Tribal Council should meet on how to remedy the legal decision through a constitutional amendment. She also is looking forward to an Election Board public statement regarding the decision.

Tribal Council member Jack Giffen Jr. said the decision felt like the Tribe getting terminated again.

“There’s only three of us sitting on this council that were alive when we were terminated,” Giffen said. “This decision feels a lot like that Termination era. You take the voice of the membership and you just throw it into the wind. I feel sorry for the family, but I don’t think this is ever going to be the end of this issue. … I hope that this council comes to the realization that the membership’s voice is more important than three judges’ decision. The membership’s voice is the voice of our people.”