Court Has Say in American Indian Case 
By JULIANA BARBASSA, Associated Press Writer 

August  05, 2004

FRESNO, Calif. - A federal judge has agreed to hear the case of two American Indian women who were banished from their tribe, taking on an issue that courts have largely avoided because of tribal sovereignty. 

By deciding the tribe has to abide by the Indian Civil Rights Act, and follow its due process guarantees, U.S. District Judge Robert E. Coyle's decision could potentially be a step in the direction of limiting tribal sovereignty, experts said. 

Each of California's more than 100 federally recognized tribes have councils and committees with nearly absolute power to determine tribal affairs, including who belongs and who doesn't. But California tribes don't have their own courts, which leaves little legal recourse for people like Charlotte Berna and Roselind Quair, lifelong Tachi-Yokut members, to appeal when the tribal leaders decide to cut them off from the tribe's resources and keep them off tribal lands. 

There are at least 1,160 people fighting to belong to 14 tribes in the state, according to an investigation by The Associated Press. 

"There are people on Indian reservations that are afraid of their leaders, because their power is unchecked," said Patrick Romero Guillory, the American Indian attorney representing the women who were expelled in June 2000. 

Quair said she was targeted after she was sexually assaulted by a tribal member, and talked to a lawyer about the possibility of bringing suit. Berna, a formal tribal treasurer, said she was expelled when she called for an independent review of income from the tribal casino. 

Since tribes are independent governments, the U.S. Constitution doesn't apply to decisions made by tribal leaders. But the Indian Civil Rights Act, passed in 1968, does grant some of the same rights, though often with different interpretations. 

For example, it gives plaintiffs a right to due process, but only in very narrow circumstances. Plaintiff must show they were was unjustly imprisoned before a federal court will agree to hear the case. 

In this case, the court found that banishment — which forbids the women from visiting tribal lands — restricts movement, and is akin to imprisonment. So the Act applies, and the court agreed to look into whether the women got a fair hearing. 

The court won't take away the tribe's ultimate right to make the decision, but will only examine whether the women's right to due process was observed. 

Because her brother was sick, Quair said she kept visiting the Santa Rosa Rancheria near Fresno even after she was told to leave. "They would stop me, and say, you know, you're not supposed to be here," she said. "It hurts me. I have family there. This is my heritage." 

Berna, who was elected treasurer in 1999, said some casino profits were unaccounted for so she asked for an independent audit. She was recalled in an election by people opposed to the audit. 

Tribe chairman Clarence Atwell said in a statement the women's membership was taken away because of "actions they were threatening to take against the tribe." 

"Our tribe, as part of our sovereignty, has always exercised our right to determine our membership," Atwell said. "The lawsuit filed in this case is frivolous and a further waste of out tribal resources and judicial resources." 

State needs more power in Indian gaming agreements