The Nooksack Tribe of Washington is under fire in federal court after disenrolling more than 300 of its citizens. Photo: The Nooksack 306

Law | National

Disputed leaders of Nooksack Tribe hit by new Supreme Court decision

Thursday, April 27, 2017

The jury is still out on the new sovereignty decision from the nation's highest court but it's already having an impact in Indian Country.

Barely a day after the U.S. Supreme Court issued the decision in Lewis v. Clarke, it was cited by a judge thousands of miles away in Washington. That's where disputed leaders of the Nooksack Tribe are being accused of violating various federal laws as part of an ongoing clash on the reservation.

Normally, federal judges do their best to stay out of internal tribal matters, whether it's about enrollment or elections. Tribes, after all, are "sovereign nations" -- as the newest member of the Supreme Court said last month -- and should be able to handle their own affairs.

But the landscape appears to be shifting in the wake of Lewis v. Clarke. According to Judge John C. Coughenor, the new decision allows Nooksack officials to be be sued in their "individual" capacities because the tribe's sovereign immunity is not implicated.

"Tribal sovereign immunity extends to individual tribal officers who are acting in their representative capacity and within the scope of their authority," Coughenor wrote on Wednesday. "However, the Supreme Court’s recent decision on this issue is dispositive."

"Plaintiffs bring these allegations against defendants in their personal capacities," he added. "Therefore, sovereign immunity is not a jurisdictional bar in this case."

Indianz.Com on SoundCloud: U.S. Supreme Court oral argument in Lewis v. Clarke

The plaintiffs in Rabang v. Kelly are former citizens of the Nooksack Tribe who were removed from the membership rolls late last year. The lawsuit targets several individuals who have maintained control of the government on the reservation despite questions about their legitimacy.

The Trump administration has echoed those concerns. In a strongly-worded brief filed in Coughenour's court as part of a second case, government attorneys referred to the council led by Bob Kelly, the disputed chairman of the tribe, as a "unelected, unrecognized, and illegitimate" group that is no longer recognized by the Department of the Interior.

"The Secretary has concluded that it is past time for these abuses of power to stop, at least insofar as a government-to-government relationship with the United States serves in any way to enable the Kelly faction to retain its grip over the tribe," the 28-page brief states in reference to Secretary Ryan Zinke, the new leader of the department.

Coughenor has not determined if any of the allegations against the Kelly group are true. In fact, he cautioned that he might eventually be forced to stay out of the matter.

For example, if he concludes that Interior should recognize Kelly and his council as legitimate, that could mean they can't be sued in their "individual" capacities because the tribe's sovereignty is indeed affected.

The two lawsuits are still in the early stages of litigation. Rabang was filed in January while Nooksack Indian Tribe v. Zinke, the case involving Interior, was filed in February. Both are assigned to Coughenor .

The Zinke case centers on an estimated $14 million in federal funds that are being withheld from the tribe due to questions about the Kelly faction's legitimacy. Rabang, on the other hand, alleges that Kelly and other disputed leaders on the reservation have violated the Racketeer Influenced and Corrupt Organizations Act, a federal law that has been used to break up groups accused of wrongdoing.

"They've acted like they're above the law for so long, but no more," a post on The Nooksack 306, a group that has clashed with tribe over enrollment and election matters, read on Thursday.

Turtle Talk has posted documents from both cases, Rabang v. Kelly and Nooksack Indian Tribe v. Zinke.

The Supreme Court's Lewis v. Clarke decision was issued on Tuesday. The outcome among the eight justices who heard the case was unanimous -- tribal sovereign immunity does not extend to employees in instances where the tribe itself is not the target of a lawsuit.

U.S. Supreme Court Decision:
Syllabus [Summary of Outcome] | Opinion [Sotomayor] | Concurrence [Thomas] | Concurrence [Ginsburg]

U.S. Supreme Court Documents:
Docket Sheet No. 15-1500 | Questions Presented | Oral Argument Transcript