7 NICS App. 78, COOKE v. YUROK TRIBE (September 2005)




Bernard Cooke, Plaintiff/Appellant,


Yurok Tribe, Defendant/Appellee.

No. YTCV 04-12 (September 29, 2005)


Tribal court entered summary judgment in favor of Tribe, which had denied Plaintiff’s application for enrollment in the Tribe. Court of Appeals holds that there is no distinction between a “deceased” member of a tribe and a “former” member of a tribe for purposes of interpreting Constitutional provision denying membership to a person who is a lineal descendant of a former member of another tribe and is without a parent enrolled in the Yurok Tribe. Trial court grant of summary judgment affirmed.

Before:            David L. Harding, Chief Justice; Randal E. Steckel, Justice; Jerrie M. Simmons, Justice.

Appearances:  Bernard Cooke, pro se; John Corbett, Yurok Tribe Office of the Tribal Attorney, for Appellee.


This matter comes before the Yurok Tribal Court of Appeals pursuant to the Notice of Appeal filed by Appellant Bernard Cooke with the Yurok Tribal Court on February 7, 2005. Having fully considered the briefs and other written pleadings filed by the parties and having heard oral argument on September 8, 2005, this Court hereby affirms the Ruling on Motion for Summary Judgment and Order entered by the Tribal Court on January 31, 2005.

7 NICS App. 78, COOKE v. YUROK TRIBE (September 2005) p. 79


This matter comes before the Court of Appeals on an appeal of a grant of summary judgment for Appellee, the Yurok Tribe. The essential facts, as stipulated by the parties and set forth in the Tribal Court Order, are that the Appellant, Bernard Cooke, is the biological child of Joseph Cooke, deceased, who was non-Indian, and Ivora Nelson Cooke, deceased, who was an enrolled member of the Hoopa Valley Tribe at the time of her death on February 27, 1990.

Mr. Cooke applied for membership in the Yurok Tribe. On June 9, 2004, the Tribe’s Enrollment Committee determined Mr. Cooke was not eligible for enrollment in the Yurok Tribe. Following a notice of intent to appeal from Mr. Cooke and an evidentiary hearing, on August 26, 2004, the Enrollment Committee reversed itself and voted to recommend that the Yurok Tribal Council approve Mr. Cooke’s Application for enrollment. On September 9, 2004, contrary to the recommendation of the Enrollment Committee, the Tribal Council denied Mr. Cooke’s application for enrollment.

Mr. Cooke appealed the decision of the Tribal Council to the Yurok Tribal Court. On January 31, 1995, holding that the Yurok Tribal Council properly interpreted the relevant provisions of the Yurok Constitution, the Tribal Court granted the Tribe’s Motion for Summary Judgment. Mr. Cooke then brought this appeal.


Although jurisdiction was not addressed in the Ruling of the Tribal Court, the Tribal Court has jurisdiction “to hear all appeals of enrollment.” Enrollment Ordinance of the Yurok Tribe, §10.4. The Yurok Tribal Court of Appeals, impaneled by the Northwest Intertribal Court System, has jurisdiction to hear this appeal under Rule 1(A) of the Yurok Tribal Court Rules of Appellate Procedure (1997) and the supplemental Rules of Court Procedure approved by the Yurok Tribal Council on October 22, 1999.

The scope of review of the Court of Appeals is expressly limited to determining whether “mistakes of law were made by the lower court.” Yurok Tribal Court Rules of Appellate Procedure (1997), Rule 1(A). “The appellate court shall have no jurisdiction to hear appeals based upon any other ground.” Id., Rule 1(B).


The Yurok Tribal Code and Yurok Rules of Court do not specify the standard of review for an appeal of an enrollment decision. The Tribal Code does, however, establish that the Tribal

7 NICS App. 78, COOKE v. YUROK TRIBE (September 2005) p. 80

Court is to apply federal law where an issue is not addressed by Tribal law, custom or usage. Yurok Tribal Court Interim Ordinance, Yurok Tribal Code 1-05, August 9, 1996. As the United States Supreme has stated, “decisions by judges are traditionally divided into three categories, denominated questions of law (reviewed de novo), questions of fact (reviewed for clear error) and matters of discretion (reviewed for ‘abuse of discretion’).” Pierce v. Underwood, 487 U. S. 552, 558, 108 S. Ct. 2541, 2546 (1988). Because our review of a Yurok Tribal enrollment decision is limited to mistakes (i.e., questions) of law, our review is de novo. De novo review of questions of law means that this Court shows no deference to the legal conclusions of the lower court or Tribal Council. Sklar v. Commissioner, 282 F.3d 610, 612 (9th Cir. 2002).


This case requires interpretation of the Yurok Tribal Constitution. Because he meets the blood quantum requirement (1/8 Yurok) and because his grandfather was a Yurok allottee, Mr. Cooke appears to qualify for enrollment under the “Extraordinary Circumstances” provision of the Yurok Constitution. Article II, § 3.1 The Tribal Enrollment ordinance tracks the Constitution word for word concerning eligibility. However, the Yurok Constitution also includes a provision that “No person who is a lineal descendant of a present or former member of another Tribe and who is without a parent enrolled with the Yurok Tribe shall qualify for membership in the Yurok Tribe.” Article II, § 4(c) (emphasis added).

The Tribe argues that Article II, §4(c) of the Yurok Constitution is an absolute limitation on membership and therefore the controlling law in this case. Because Mr. Cooke’s mother was a member of the Hoopa Tribe at the time of her death in 1990 and neither of Mr. Cooke’s parents is or was enrolled at Yurok, the Tribe argues that §4(c) establishes a non-discretionary bar to Mr. Cooke’s application for enrollment.

Mr. Cooke’s basic argument is that Article II, § 4(c) does not apply because his mother is a “deceased” member of the Hoopa Tribe, not a “former” member. Mr. Cooke argues that “former” and “deceased” are not legally equivalent terms. To support his argument, Mr. Cooke points out that in an unrelated section of the Yurok Enrollment Ordinance (which was adopted only a few months after adoption of the Constitution), the Ordinance itself makes an explicit distinction between “deceased” and “former” members of the Yurok Tribe. Mr. Cooke also complains that the letter he received announcing the Tribal Council’s decision and the Ruling of the Tribal Court both mis-cite the relevant Constitutional provision.

7 NICS App. 78, COOKE v. YUROK TRIBE (September 2005) p. 81

As a secondary argument, Mr. Cooke points out that Yurok Constitution Article II, §3(c) opens membership to “any adopted person whose biological parents would have qualified, or would have qualified if alive for the Yurok Membership Roll.” Mr. Cooke does not claim this section is directly applicable to him because he is not adopted. However, Mr. Cooke’s pleadings can be construed as arguing that, because his mother died before the Yurok Tribe was officially recognized, his biological mother “would have qualified if alive” and that he should not be afforded less rights under the Constitution than an adopted person in the same circumstances.

As an initial matter, we hold that the technical errors in citation that Mr. Cooke complains of constitute harmless error and do not form a basis for reversing the Tribal Court. The September 13, 2004 letter from Enrollment Director Earl Jackson and the Ruling of the Tribal Court, despite technical errors, both correctly state the substance of the controlling law. In any event, because our review is de novo, it is only this Court’s statement and interpretation of the law that matter.

While Mr. Cooke sets forth a cogent argument that there is a legal distinction between a “former” member and a “deceased” member of a tribe, we are not persuaded that the distinction applies to Article II of the Yurok Constitution. Mr. Cooke is correct that §8 of the Yurok Enrollment Ordinance make a distinction between “former” and “deceased” members of the Yurok Tribe. However, the provision for separate registers of “former” and “deceased” members is clearly intended to facilitate administration of the membership rolls, with “former” members being defined to include “individuals who selected the ‘buy-out’ option under the Hoopa-Yurok Settlement Act, and all individuals who have been disenrolled pursuant to this Ordinance and the Constitution of the Yurok Tribe.” Enrollment Ordinance, §8.2. While there is a separate register for “deceased” members, Enrollment Ordinance §8.3, there is nothing in the Enrollment Ordnance that suggests that “deceased” members would not also be considered “former” members as those terms are commonly used, despite the provision for separate registers.

The dictionary defines “former” as “preceding in time; earlier; past [in former times].” Webster’s New World Dictionary, Second College Edition, 1979. We hold that, for the purposes of Article II of the Yurok Constitution, a “deceased” member of another Tribe is a “former” member of that Tribe.2

Mr. Cooke also sets forth a cogent argument that Article II, §3(c) appears to establish more favorable treatment for an adoptee than a lineal descendant of a Yurok Reservation allottee.

7 NICS App. 78, COOKE v. YUROK TRIBE (September 2005) p. 82

However, as Mr. Cooke acknowledges, he is not an adoptee. We also agree with the Tribe that Article II, §4(c) is nondiscretionary and therefore would “trump” §3(c), which is clearly discretionary (a person “may” be determined to be eligible for membership under §3 whereas “no” person “shall” qualify for membership where §4(c) applies.)

As the Tribe argues, it is well settled that one of the most fundamental rights of a sovereign nation is the right to determine qualifications for the enrollment of its members. See, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670 (1978). Regardless of whatever sympathies the members of this Court may have for Mr. Cooke or any other person who meets the blood quantum requirement for membership in the Yurok Tribe but is deemed ineligible for membership because of the combined actions of their parents and the drafters of the Yurok Constitution, it is simply not within the power of this Court to rewrite or ignore that Constitution.


For the foregoing reasons, the Ruling and Order of the Tribal Court is affirmed.


The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.


The Tribe argues that Mr. Cooke is not eligible under Article II, §3 because §3(d) limits the extraordinary circumstances provision to the lineal descendants of allottees of the Yurok Reservation “when that applicant and lineal ancestors have not been enrolled members of another Tribe.” Since the “applicant” in this case, Mr. Cooke, has not been enrolled in another Tribe, it is not clear to this Court that the Tribe is correct on this point. However, since we find Article II, §4(C) controlling, we need not reach this question.


Even if we were to accept Mr. Cooke’s argument that a “deceased” member of another tribe is not a “former” member of that tribe, under Article II, § 4(c), Mr. Cooke would still be “without a parent enrolled with the Yurok Tribe.” Mr. Cooke’s suggestion that his mother “could have” disenrolled herself from the Hoopa Tribe and then enrolled in the Yurok Tribe requires a level of speculation that this Court is not authorized to engage in.