Nooksack Tribe clears path for new election in hopes of resolving leadership crisis

Thursday, September 7, 2017

The Nooksack Tribe has reached an agreement with the Trump administration that could resolve a long-running governance crisis on the reservation.

An August 25 memorandum of agreement calls on the tribe to hold a new election to fill four seats on the council. Robert Kelly, Jr., the disputed chairman of the tribe, already complied with the requirement and ordered one on Wednesday evening.

And in order to address a controversy that has attracted national attention, the agreement turns back the clock on one of the tribe's most controversial decisions. It ensures that the 300-plus citizens who were disenrolled during a period of turmoil on the reservation can participate in the upcoming vote.

But even though the primary and general election won't take place until later this year, Kelly's actions have an immediate impact. The agreement requires the Bureau of Indian Affairs to restore federal funding to the tribe "immediately," according to the document.

The tribe had gone to court to protest the loss of an estimated $14 million in federal funds. A federal judge dismissed the case because Kelly and his faction are not considered to be "legitimate" by the BIA.

The Nooksack Tribe will hold a general election on November 4 and a primary election on December 2 to fill four seats on the council, according to a notice posted on the tribe's website.

But the agreement, which was signed by Mike Black, the "acting" Assistant Secretary for Indian Affairs, ensures Kelly remains in power despite his role in kicking out the group known as The Nooksack 306. He is now recognized as a "person of authority" for the tribe as it heads into election season.

As long as he goes through with the vote and addresses any challenges, the BIA is poised to restore its government-to-government relationship with the tribe. Notably, Kelly would get to keep his spot as chairman, based on a letter that the tribe expects the agency to sign once the council seats are filled.

Although members of The Nooksack 306 have repeatedly criticized Kelly -- who referred to the disenrollees as "non-Indians" after his faction kicked them out in November -- they are taking the agreement as a sign of progress.

"The MOA for the election just signed between Bob Kelly and Mike Black makes pretty clear that EVERYONE belongs for purposes of this election. No ifs, ands or buts about it," the group stated in a post on Facebook on Thursday.

The crisis within the Washington-based tribe came to a head during the final year of the Obama administration. The BIA told Kelly that it would not recognize any actions that his council made after March 2016 because the tribe failed to hold an election to fill the four seats at issue.

Other agencies followed suit, resulting in the loss of funds from the Indian Health Service, the Department of Housing and Urban Development and even the Environmental Protection Agency. They all said Kelly's faction was not valid.

The Trump team quickly ratcheted up the rhetoric. A harshly-worded court filing in April described Kelly's council as an "unelected, unrecognized, and illegitimate group" of individuals who have committed numerous "abuses of power" in their attempt to maintain control on the reservation.

"These are very rare circumstances," Judge John C. Coughenor wrote in May as he dismissed Kelly's federal funding lawsuit, known as Nooksack Indian Tribe v. Zinke.

Holdover Council pictured. Their days are numbered. We Belong.
Posted by The Nooksack 306 on Wednesday, August 23, 2017

The Nooksack 306 on Facebook: 'Their days are numbered'

Coughenor is also presiding over Rabang v. Kelly, a lawsuit filed by some members of The Nooksack 306. They have invoked the Racketeer Influenced and Corrupt Organizations Act -- a federal law that is commonly used to break up criminal entities -- in an attempt to hold Kelly's faction accountable for their actions, which included the dismantling of the judicial system on the reservation after a tribal court judge ruled in favor of the disenrollees.

The defendants in the RICO suit include Kelly and three others who have held onto their council seats during the crisis. Those three seats, plus a fourth seat that was held by an ally of The Nooksack 306 who was removed from office in an action the BIA considers to be invalid, are the focus of the upcoming election.

"Their days are numbered," The Nooksack 306 wrote in a post on Facebook, before Kelly and the BIA signed their memorandum of agreement.

The agreement, though, does not address another crisis facing the tribe. The National Indian Gaming Commission ordered the closure of the Nooksack Northwood Casino in June as a result of the governance dispute. The tribe has to resolve "numerous violations" of the Indian Gaming Regulatory Act. in order to reopen the facility.