A 'banana republic' no more? Nooksack Tribe claims turnaround on disenrollment drama

Tuesday, August 7, 2018

The Nooksack Tribe is claiming victory in a long-running disenrollment dispute after a federal judge dismissed a novel lawsuit filed by a group of ousted citizens.

The tribe, based in Washington state, has spent more than five years trying to kick hundreds of people off its rolls. The efforts were slowed by litigation and by the refusal of the Bureau of Indian Affairs to recognize the Nooksack government as legitimate.

But the tribe has turned the situation around, according to its recently-elected leader. Chairman Ross Cline said the dismissal of the lawsuit last week puts an end to a controversy that has attracted widespread attention in Indian Country and in the national media.

“On behalf of the tribal council and the Nooksack people, I am glad to report the successful conclusion of this dispute over tribal enrollment," Cline said after the decision was handed down on July 31. "Our people will now move forward on our journey of self-government.”

The tribe is indeed moving forward, just without a group known as The Nooksack 306. That name comes from the large number of people who were subjected to "involuntary disenrollment" earlier this year, after being threatened with removals for the better part of a decade.

Though an appeal of the new court decision is likely, those already ousted from the tribe have little recourse at this point. Despite the Trump administration's recognition of Chairman Cline and the rest of the Nooksack leadership, they contend they have been denied justice by an "illegitimate" government.

"The fact remains that the Nooksack tribal council and tribal court are illegitimate -- and everyone knows it," said Michelle Roberts, a spokesperson for The Nooksack 306.

"We will not stop fighting. We are not going anywhere. We will stay right where we belong," Roberts said.

An image posted on Stop Disenrollment supports The Nooksack 306.

The Nooksack 306 initially contested the mass disenrollment by going through the judicial system on the reservation. But when the rulings started going their way, the tribe fired the judge handling the case, disbarred the law firm that has represented the group, ignored the orders of its own appeals court and created an entirely new "supreme court" by installing its then-chairman as "chief justice."

"That's a record a tin-pot dictator of a banana republic might be proud of," a federal appeals court judge said of the drama earlier this year.

As the dispute played out, the BIA decided to take action. During the last year of the Obama administration, the agency withheld federal funds from the tribe, and the Indian Health Service, the Department of Housing and Urban Development and even the Environmental Protection Agency followed suit, all contending that the council headed by then-chairman Robert Kelly was not deserving of a government-to-government relationship.

The change in power in Washington, D.C., did not alter affairs. After the tribe sued the BIA in hopes of regaining an estimated $14 million in funds, the new Trump administration described the disputed Nooksack council as "unelected, unrecognized, and illegitimate group" of people who have committed numerous "abuses of power," all in an attempt to remove The Nooksack 306 from the rolls.

And just a couple of months later, the Nooksack Northwood Casino, another money source for the tribe, had to be shut down. The National Indian Gaming Commission, the federal entity that regulates tribal casinos, said the facility was violating the law by operating without a legitimate government. It reopened three months later under an agreement with the agency.

Amid the drama, Margretty Rabang, an elder who has been kicked out of the tribe, filed a lawsuit against Kelly and other disputed leaders. In order to get around sovereignty issues that have tripped up similar disenrollment cases, she invoked the Racketeer Influenced and Corrupt Organizations Act, a federal law more commonly used to break up criminal entities.

The case, known as Rabang v. Kelly, appeared to break new ground. When Kelly lost a ruling which said he was not entitled to sovereign immunity, he asked the 9th Circuit Court of Appeals to intervene.

The court was not sympathetic. After a judge made the "banana republic" comment at a March 9 hearing, Kelly and his faction voluntarily dismissed their appeal. The Rabang plaintiffs were subsequently awarded fees and other costs for prevailing.

But by that time, Kelly was following through on an agreement with the BIA that paved the way for new elections. And though he did not make it past a primary earlier this year, the Trump administration recognized the results of votes that took place last December and in May.

"Congratulations on your recent election as Chairman of the Nooksack Indian Tribe," John Tahsuda, the highest-ranking official at the BIA, told Chairman Cline in a June 11 letter that spoke of "disharmony" in the relationship between the tribe and the federal government.

"This transition offers an opportunity to forge a new relationship between the Department of the Interior and tribe, one that is centered on open dialogue, transparency, and respect for the law," added Tahsuda, who serves as the Principal Deputy Assistant Secretary for Indian Affairs, a political position within the Trump administration.

A June 11, 2018, letter from the Bureau of Indian Affairs acknowledges the government-to-government relationship between the United States and the Nooksack Tribe.

Shortly after receiving the letter, Cline went to D.C. to talk to Tahsuda. "Had a very positive meeting," the chairman wrote on social media as the two officials posed with the Nooksack flag in the Hall of Tribal Nations at BIA's headquarters.

That new relationship, though, spelled trouble for Rabang's lawsuit. Since the BIA now recognizes the tribe's leadership as legitimate, Judge John C. Coughenor said he had no choice but to dismiss the case due to lack of jurisdiction over the racketeering claims.

Still, he wasn't as convinced that the tribe has turned affairs around.

"Although the court concludes that it no longer has subject matter jurisdiction over this case, it does not at all think, as defendants suggest, that 'the cloud over the tribe' has been removed," Coughenor wrote in the July 31 decision.

"Plaintiffs’ allegations against defendants, which have been well documented in this lawsuit and elsewhere, are highly concerning," he continued, alluding to the claims that prompted the "banana republic" comment.

But where will The Nooksack 306 seek justice? The ruling offered an answer the group isn't willing to accept.

"Nevertheless, it is for the Nooksack Tribe, not this court, to resolve plaintiffs’ claims," Coughenor concluded.

Historically, the BIA has avoided enrollment disputes out of deference for tribal sovereignty. So have the federal courts, leaving those like The Nooksack 306 with little recourse once they lose citizenship.

The #StopDisenrollment campaign has sought to turn public opinion and tribal policy around. Since the effort began three years ago, a growing number of tribal leaders have joined prominent Native voices in calling 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,” 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, said as the campaign continued earlier this year.