Per Capita Payments and Tribal Membership

The San Pasqual Band of Mission Indians withheld per capita gaming payments from about 50 members and also fired several members from casino and other leadership positions. The issue centers on the validity of their status as tribal members. The Band requires "blood quantum" for tribal membership. Each member must, at the least, have a great-grandparent who was a "full-blooded" member of the tribe. The dispute over the 50 members arose from questions about whether the relative from whom they were descended was adopted, rather than being a "blood" member of the tribe.

The San Pasqual Band is a relatively small tribe of about 300 members, and it issues monthly checks of about $4,000 to each of its members under its per capita payment plan. IGRA permits a tribe to make per capita distributions of net gaming revenue to its members if the uses mandated in section 2710(b)(2)(B) (these include funding tribal government operations, providing for the welfare of tribal members, promoting tribal economic development, making charitable donations, and assisting in funding local government operations) are adequately met and the tribe's distribution plan is approved by the Interior Secretary. Because per capita payments are limited to tribal members, the membership determinations of some tribes come under scrutiny. Generally speaking, of course, tribal sovereignty encompasses a tribe's exclusive right to make membership determinations. Accordingly, federal courts have been reluctant to review a tribe's distribution of such payments. At least one court, however, has made a distinction between reviewing a tribe's membership determinations and reviewing a tribe's compliance with its per capita payment plan. (See Smith v. Babbitt, 875 F. Supp. 1353 (D. Minn. 1995), aff'd, 100 F. 3d 556 (8th Cir. 1996).)

Interestingly, though, the local BIA superintendent said that the San Pasqual Band's membership determinations must be approved by the BIA. The BIA superintendent reported the withheld checks to the NIGC as a potential violation of the Band's per capita payment plan, explaining that the disputed members are "members until such time as the BIA changes its mind."

Read more here in Onell Soto’s article in the San Diego Union Tribune.