Friday, June 05, 2009

Ferengi prevention

Steve Russell in Indian Country Today on how to weed out the fake Indians:
Ward Churchill’s case brings it up in our collective face, but most Indians in academia have had the problem of persons who “self-identify” as Indian without anything to back up the identity beyond alleged family oral history. . . .

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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