Oral arguments in a case which seeks to hold leaders of the Nooksack Tribe responsible for their actions took place at the federal appeals courthouse in Seattle, Washington, on March 9, 2018. Photo: The Nooksack 306

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Nooksack Tribe scores as Trump administration recognizes council

Monday, March 12, 2018

Correction:
The Nooksack council was considered invalid by the federal government in 2016, not in 2014, as the first version of this post stated.

Almost a year after being called out for "abuses of power," the Nooksack Tribe has won recognition of its leadership amid a long-running disenrollment dispute.

The Trump administration on Friday affirmed the results of a recent election in which voters filled four vacant seats on the council. The move marks the first time since 2016 that the tribe, based in Washington, has had a valid governing body.

"The Nooksack people have spoken and we look forward to continuing our responsibility to serve our people," Chairman Bob Kelly said in a news release after the tribe received word from the Bureau of Indian Affairs.

Despite the win, the drama is far from over. Voters were supposed to go to the polls later this week to fill four other seats -- including Kelly's -- but some citizens, many of whom have clashed with the chairman, aren't sure when the election is actually going to happen.

And on the same day of the BIA's action, a federal appeals court was taking a different view of Kelly's reign. At a hearing in Seattle, a judge recited a litany of alleged abuses, including the removal of hundreds of people from the rolls, the firing of a tribal judge who had ruled against the chairman and the eviction of elders from their homes.

"That's a record a tin-pot dictator of a banana republic might be proud of," said Richard R. Clifton of the 9th Circuit Court of Appeals as he described some of the allegations in the dispute as "really remarkable."

Indianz.Com on SoundCloud: 9th Circuit Court of Appeals: Margretty Rabang v. Robert Kelly, Jr.

Still, the BIA's letter represents a dramatic turnaround for Kelly. Just last April, the Trump administration had refused to recognize him as the legitimate leader of the tribe, with attorneys for the federal government calling him and his allies "unelected, unrecognized, and illegitimate."

Four months later, Kelly committed to holding a new election in order to secure the release of federal funds to the tribe. An estimated $14 million from the BIA, as well as from the Indian Health Service, the Department of Housing and Urban Development and even the Environmental Protection Agency, had been suspended prior to the August 25 agreement.

The tribe now appears to be back on track even if the upcoming election remains in doubt. Kelly acknowledged that it has been "suspended" and no new dates have been announced, either for the primary, which didn't take place last month as planned, or for the general, which was to take place this Saturday.

The BIA also acknowledged the delay but said it would continue to recognize Kelly and the remaining members of the council as legitimate "until the results for the general election originally scheduled for March 17, 2018, can be certified."

"I look forward to working with the Nooksack Tribe in the future," John Tahsuda, who serves as the Principal Deputy Assistant Secretary for Indian Affairs at the agency, wrote in the letter on Friday.

9th Circuit Court of Appeals on YouTube: Margretty Rabang v. Robert Kelly, Jr.

Historically, the BIA has stayed out of enrollment disputes out of deference for tribal sovereignty. So have the federal courts, leaving those who are being ousted with little recourse.

But Nooksack has been different as the #StopDisenrollment campaign has gained steam nationwide. For the third year in a row, prominent voices in Indian Country have called on tribes to stop kicking out their own people.

“While we are not out of the woods, it does seem that Indian Country is coming to its senses regarding disenrollment,” said Dr. David Wilkins, a citizen of the Lumbee Tribe and the co-author of 2017's Dismembered: Native Disenrollment and the Battle for Human Rights.

“Disenrollment re-education efforts have taken many forms in recent years, and they seem to be working," Wilkins said.

Kelly has defended his tribe's efforts against a group known as The Nooksack 306 and others. He contends they are "non-Indians" who don't belong on the rolls.

But the removal efforts were slowed by rulings in tribal court. Kelly and his faction responded by firing the chief judge, setting up their own court and naming the chairman as its "chief justice" and ignoring rulings from a higher-level, inter-tribal appellate body.

That's when Margretty Rabang, an elder who has been purged, and others went to federal court. In hopes of getting around sovereignty issues that have tripped up similar disputes in the past, they went after Kelly and his allies directly.

As a result, their lawsuit doesn't directly involve the tribe. Instead, it's based on the Racketeer Influenced and Corrupt Organizations Act, or RICO, a federal law more commonly used to break up criminal entities.

"It is clear that if you sue an individual -- even if they are employed by a tribe -- in their personal capacity, sovereign immunity does not attach if the remedy sought is against the individual," attorney Anthony Broadman, who represents the Ragang plaintiffs, told the 9th Circuit on Friday.

But attorney Averil Rothrock who is representing Kelly and other Nooksack defendants, said the case really is about the tribe. She argued that the lawsuit was merely "clothed" in the RICO statute.

"It does not belong in federal court," she said of the underlying clash within the tribe. "It's an intra-tribal dispute."

The judges on the 9th Circuit did not indicate when they would issue a decision. The sole issue, at this point in the litigation, is whether Kelly and the other defendants are entitled to sovereign immunity, especially in light of Lewis v. Clarke, which was decided by the U.S. Supreme Court last year, just as Rabang's case was starting to make waves.

Lewis v. Clarke opens up tribal employees to lawsuits. The Nooksack case appears to be the first major test of its impact and the outcome is being closely watched because the 9th Circuit covers hundreds of tribes in several Western states.