Nooksack 306 Archives - Tulalip News

Embattled Nooksacks win delay in loss of membership

DEMING – The 306 people facing loss of Nooksack Indian Tribe membership have won a round in tribal court, getting a judge to order the tribal council to stop its latest effort to oust them.

The Thursday, June 12, ruling from Tribal Court Chief Judge Raquel Montoya-Lewis stems from a March 2014 Nooksack Court of Appeals ruling. The appeals judge panel had ordered a halt to the process of removing people from tribal enrollment rosters until the tribal council could draw up an ordinance spelling out the procedures for stripping people of tribal membership. Such an ordinance also would require approval from the U.S. Bureau of Indian Affairs, the appeals court ruled.

But in mid-May the tribal council began sending out new notices to some members of the affected families, scheduling July disenrollment hearings before the tribal council under the terms of a 2005 tribal membership ordinance that received BIA approval in 2006. Gabe Galanda, the Seattle attorney representing the threatened families, went back to court to challenge the legality of that maneuver.

After an earlier hearing, Montoya-Lewis agreed that the tribal council was out of bounds.

“This approach appears to be an attempt to circumvent the very clear holdings of the Court of Appeals,” Montoya-Lewis wrote.

While the judge’s ruling delays the move to strip the 306 of tribal membership, it likely will not stop it. There appears to be no legal obstacle to the process, once the tribal council passes the necessary ordinance and gets federal approval. Nooksack Tribal Council Chairman Bob Kelly, who has pushed for the disenrollment, was recently reelected and has the support of a majority of council members.

The disenrollment controversy began in early 2013 after Kelly and a majority of other council members agreed that members of the Rabang, Rapada and Narte-Gladstone families had been incorrectly enrolled in the 2,000-member tribe in the 1980s, and their enrollments should be revoked.

Since then, members of the affected families have mounted a vigorous legal and public relations effort to retain their Nooksack membership. That membership entitles them to a wide range of benefits, among them fishing rights, health care, access to tribal housing and small cash payments for Christmas and back-to-school expenses.

Those facing the loss of tribal membership have based their membership claim on their descent from Annie George, who died in 1949. Members of those three families have introduced evidence that Annie George was Nooksack, but those who want the three families out have noted that George’s name does not appear on a list of those who got original allotments of tribal land or on a 1942 tribal census, and those two criteria determine legal eligibility for membership.

‘Nooksack 306’ Wards Off Disenrollment With Multiple Legal Actions

Gale Courey Toensing, Indian Country Today Media Network, 3/3/14

Two members of the “Nooksack 306” – Nooksack Indian Tribe citizens who are fighting disenrollment – are awaiting an appeals court ruling on a case involving their alleged unconstitutional removal from the tribal council.

Council members Michelle Roberts and Rudy St. Germaine, along with more than 270 of the members targeted for disenrollment, filed a motion in Nooksack Tribal Court of Appeals February 18 seeking an emergency review of a February 7 order by Nooksack Tribal Court Chief Judge Raquel Montoya-Lewis, denying an injunction to stop Council Chairman Robert Kelly and other defendants from removing Roberts and St. Germaine from the council and reinstate them to their elected positions. Montoya-Lewis said the council had the power to remove them and that the court did not have the power to deal with the political aspects of the events.

According to the court documents, Kelly called three emergency meetings over the Martin Luther King Jr. weekend, effectively blocked Roberts and St. Germaine from attending the meeting via teleconference and, at the last meeting, led the council in removing them from office for missing three meetings.

The motion to the Nooksack Tribal Court of Appeals asking for a review of Montoya-Lewis’s order is the latest action in a long series of legal moves that have taken place since February 2013, when the tribal council under Kelly’s direction passed Resolution 13-02: Initiating Involuntary Disenrollment for Certain Descendants of Annie James (George). The common thread among the 306 members facing disenrollment is their mixed Filipino and American Indian heritage. Moreno Peralta, spokesman for the families, told Indian Country Today Media Network that the families believe they are being dispossessed of their Nooksack identity because of their mixed Nooksack and Filipino ancestry.

Attorney Gabriel Galanda of the Seattle firm of Galanda Broadman is representing the Nooksack 306 and has challenged a number of Montoya-Lewis’s rulings in support of the tribal council before the Nooksack Tribal Court of Appeals. The appeals court ordered a halt to the disenrollment process while the legal issues are under review, ruling tribal membership is not tied to a 1942 federal census, as the Kelly Faction has maintained since starting to disenroll the Nooksack 306 last February. More than a dozen members of the Nooksack 306, including Roberts, say that since the disenrollment effort began they have been fired from jobs with the tribe and others have been denied tribal housing assistance, even though they have not yet been removed from tribal membership rolls.

Kelly did not respond to a request for comment.

In an open letter to Interior Secretary Sally Jewell and Assistant Secretary – Indian Affairs Kevin Washburn, posted on Indian Country Today Media Network February 25, Roberts implored the federal officials to intervene in the Nooksack disenrollment conflict. She cited the violence that erupted at the Cedarville Rancheria when former tribal council chair Cherie Lash Rhoades gunned down five people, killing four of them, and stabbed a sixth.

Roberts cited a media report that described the Cedarville killings as “the latest, and most chilling, example of tribal violence over power struggles and disenrollments.”

“So we have worried about the dispute turning violent on our reservation. History teaches us that when democracy falters, when there is no due process, when free speech is stifled, people take matters into their own hands,” Roberts wrote.

However, according to the Associated Press, Rhoades was being evicted from her home, but not disenrolled from the tribe.

Roberts called disenrollment “a creature of the federal government.” It was foreign to Indian people until the 1930s, when the United States began ‘reorganizing’ tribes and the Interior Department began “foisting boilerplate constitutions on tribes” that include disenrollment provisions. “Our traditions do not… Disenrollment is therefore your business,” she told the federal officials.

Interior Department spokeswoman Nedra Darling said the department cannot comment on pending litigation.

Moreno Peralta, the Nooksack spokesman, said the Nooksack 306 group is prepared to take the disenrollment conflict into the international arena, but must first exhaust all available legal venues here.

“As clichéd as it sounds, we have not yet begun to fight. We still have two lawsuits pending before the Nooksack tribal court judge and three appeals before the Nooksack appeals court. We are hopeful that the Nooksack appellate judges will strike down the entire disenrollment,” Peralta said.

If that does not happen, the Nooksack 306 will move ahead with a pending federal court lawsuit against Interior officials regarding an allegedly unlawful federal disenrollment election that took place last summer. “That case could take us to the highest courts in the land,” Peralta said. The group is also considering another federal court lawsuit against the Kelly faction, alleging a violation of the Indian Gaming Regulatory Act for depriving the Nooksack 306 of Christmas per capita payments. “The Nooksack judge refused to hold the Kelly faction in contempt of her own order but a federal court judge might not be so kind to them given how egregiously they have violated federal gaming laws,” Peralta said. The Nooksack 306 is also waiting to see the results of a National Indian Gaming Commission investigation into the matter.

“If all of those domestic legal efforts fail, our lawyers are already poised to pursue our claims internationally for violation of various human rights laws,” Peralta said.

Ouster of Nooksack tribal council members triggers new lawsuit

By JOHN STARK

THE BELLINGHAM HERALD January 23, 2014

DEMING – Two members of the Nooksack Indian Tribe’s eight-member governing council have been replaced by Chairman Bob Kelly and the other council members who support the effort to strip 306 Nooksacks of tribal membership.

But Seattle attorney Gabriel Galanda filed a new lawsuit in tribal court on Tuesday, Jan. 21, to challenge the legality of the council’s action, taken Monday, Jan. 20.

In another legal development, the Nooksack Court of Appeals handed the challenged Nooksack tribe members a significant victory on Wednesday, Jan. 22. The court ordered the suspension of the tribal disenrollment process while the court continues its review of legal issues Galanda has raised on behalf of those facing loss of tribal membership.

Last week, after the same appeals court lifted an earlier stay of the disenrollment process, tribal police had begun serving disenrollment notices to affected tribe members, notifying them of the date and time for their telephonic hearing before tribal council.

In an email message, Chairman Kelly said Michelle Roberts and Rudy St. Germain were ousted from the council under a provision of the tribal constitution that allows removal of council members who miss more than three consecutive meetings without an excuse. The council then named Roy Bailey to replace St. Germain and David Williams to replace Roberts.

Roberts and St. Germain are among the 306 Nooksacks facing disenrollment.

In a sworn statement filed in connection with the latest lawsuit, Michelle Roberts accuses Kelly of calling three council meetings with little advance notice on Jan. 17, 18 and 20 – the Martin Luther King Day holiday. Roberts said she believed that Kelly had called the meetings so she and St. Germain could be served with disenrollment papers. Instead, she and St. Germain contacted Kelly via email to let him know that they would attend the meetings by teleconference, as council members had done on some past occasions. But when she called the chairman’s office to participate in the first two meetings, Roberts said there was no answer.

For the Martin Luther King Day meeting, Roberts said she phoned in again, and “the person who answered the phone said the council was already in session and that she was instructed to not patch me in to the meeting.”

Later that day, Roberts said she discovered that her tribal cellphone and email account had been shut down.

Roberts said she believes Kelly and his supporters on the council want to get her and St. Germain out of office so that they cannot participate when other challenged Nooksacks get their opportunity to argue their case for tribal membership before the council.

The current legal battle is rooted in longstanding resentment against three families whose members were admitted to tribal membership in the 1980s. The members of those families are descendants of Annie George, who died in 1949. Members of those three families – the Rabangs, Rapadas and Narte-Gladstones – have introduced evidence that Annie George was Nooksack, but Kelly and his backers say George’s name does not appear on a list of those who got original allotments of tribal land and or on a 1942 tribal census.

In his most recent court filings on behalf of the challenged Nooksacks, Galanda has argued that regardless of George’s status, members of the three families can meet one of the other membership criteria spelled out in the tribal constitution: They are descended from other people who were enrolled tribal members, and they possess one-fourth Indian blood.

The tribal courts have yet to address that argument directly, and it remains to be seen if those courts will take action to stop the tribal council from disenrolling members of the three families.

Four positions on the tribal council – including Kelly’s – are up for election this year, with a primary scheduled for Feb. 15 and a general runoff election on March 15.

The 2,000-member tribe operates two Whatcom County casinos. The February 2013 edition of the official tribal newsletter, Snee-Nee-Chum, reported that the tribe’s 2013 expenditures would add up to about $39 million, with about 24 percent of the available revenue coming from the casinos and smaller tribal enterprises.

While the tribe’s annual budget might seem like a lot compared to what comparable-sized non-Indian cities spend per year, it includes significant amounts for tribally run health care and social services that are supported with federal money. Those are among the benefits the families facing ouster could lose.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com . Read the Politics Blog at bellinghamherald.com/politics-blog or get updates on Twitter at @bhampolitics.

Opnion: Fighting Disenrollment: The Nooksack 306

By Akilah Kinnison, Indian Country Today Media Network

Today, 306 members of the Nooksack Indian Tribe in northern Washington State are fighting mass disenrollment from their community. For the Nooksack 306, as they have come to be known, this struggle encompasses more than tribal citizenship – it is about their most fundamental human rights as indigenous peoples.

For some of the Nooksack 306, citizenship is literally a matter of life and death. As previously reported by Indian Country Today Media Network, Sonia Lomeli is a 74-year-old diabetic who lives on tribal land and depends on tribal medical care including transportation to kidney dialysis. Ms. Lomeli has stated, “I am afraid I will die if they disenroll me.” Mr. Terry St. Germain, a 48-year-old fisherman with eight children, worries he will not be able to feed his family if stripped of his tribal fishing and hunting rights.

The pending disenrollments have already had immediate effects. According to the Nooksack 306, some members have already been fired from their jobs or denied housing; their livelihoods are being destroyed. In a callous move a few weeks ago, just before the start of the new school year, the Tribal Council denied school supply stipends to all Nooksack children aged 3 to 19 who are proposed for disenrollment.

Pitted against their own tribe by a prevailing tribal council faction, the Nooksack 306 are battling to maintain their cultural identity as indigenous peoples – a right guaranteed under international human rights law. In their pursuit of disenrollment, the tribal government is violating the Nooksack 306’s rights to live in community, to due process, and to equal protection.

It is well-established that tribes have the right to determine their own citizenship. This was recognized by the U.S. Supreme Court in 1978 in Santa Clara Pueblo v. Martinez as well as in the United Nations Declaration on the Rights of Indigenous Peoples (“UN Declaration”), which the United States endorsed in 2010. Article 33 of the UN Declaration states, “[i]ndigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.”

The Nooksack Tribe’s undisputed right to determine its own citizenship is not, however, the only right at stake. The fundamental human rights of the Nooksack 306 also weigh heavily in the balance. Under Article 9 of the UN Declaration, “indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the tradition and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right” (emphasis added).

Similarly, Article 27 of the International Covenant on Civil and Political Rights (“ICCPR”), a binding treaty ratified by the United States in 1992, mandates that “[i]n those States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language” (emphasis added).

To illustrate, in Lovelace v. Canada, the UN Human Rights Committee, which monitors ICCPR implementation, found that Canada’s Indian Act violated Article 27 by terminating an indigenous woman’s tribal citizenship when she married a non-indigenous man. The Lovelace decision confirms that, under international law, indigenous individuals have a right to live in community with their fellow tribal people and that this right is critical to maintaining indigenous identity and culture.

Yet, rather than respecting the Nooksack 306’s international human rights, the Tribal Council has gone so far as to amend the Nooksack Constitution in an attempt to eliminate the 306’s indigenous right to citizenship. The Tribal Council has also passed several new tribal laws and amended Nooksack judicial, appellate, and election codes in ways that appear designed to strip the Nooksack 306 of their ability to have a voice before the tribal courts or polity. For instance, the ever-shifting rules of the game were recently amended to allow proposed disenrollees only 10 minutes by teleconference to make their case that they are rightfully Nooksack, and without the assistance of lawyers or family members.

Most significantly, the disenrollments are not proceeding “in accordance with the traditions and customs of the community” as required by UN Declaration Articles 33 and 9. The disenrollment process appears, according to the Nooksack 306, to violate tribal customary and constitutional law. Since early 2013, Nooksack Chairman Bob Kelly has been operating outside the bounds of the Nooksack Constitution, refusing to hold constitutionally mandated meetings of the Tribal Council or the entire Nooksack People at which disenrollment could be discussed. Such measures violate due process, a right guaranteed by Articles 7 and 14 of the ICCPR as well as other international law.

Further, the Nooksack 306 seem to have been targeted, at least in part, because they are of mixed Filipino-Nooksack ancestry, even though each is at least one-quarter indigenous as previously required under the Nooksack Constitution. The tribe has not been pursuing the mass disenrollments of persons of non-Filipino mixed Nooksack ancestry. The controlling Nooksack Council faction disputes that the disenrollments are racially motivated. However, an October 2000 LA Times article, entitled “Nooksacks Allege Filipino Family Has Conquered Tribe From the Inside” and the Council’s lawyers’ public reliance on the piece, illustrates that this rivalry, a long-running and significant feature of Nooksack politics, is at least partially motivated by racial animus. This animus is also evidenced by the fact that prior to a vote to amend the tribal constitution’s membership criteria this past summer, Chairman Kelly sent certain election materials only to non-Filipino Nooksack members.

Discriminatory disenrollment contravenes UN Declaration Article 9’s prohibition of discrimination “of any kind” in the exercise of the right to live in community and Article 2’s affirmation that indigenous “individuals . . . have the right to be free from any kind of discrimination.” It also violates the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”), ratified by the United States in 1994. ICERD Article 5, for instance, protects individuals’ exercise of political, civil, economic, and social rights as well as rights to land and culture under conditions of equality. In the inter-American system, the American Declaration on the Rights and Duties of Man, applicable to the U.S. by virtue of membership in the Organization of American States, protects the right to equality in Article II and the right to “take part in the cultural life of the community” in Article XIII.

The right to live in community is, in many ways, indigenous peoples’ most fundamental human right because it is critical to maintaining their identity and ways of life. It is this right that permits the Nooksack 306 to live on their traditional lands and to participate in the cultural and political life of their nation. Without the threshold right to citizenship, other protections for indigenous peoples’ human rights are rendered ineffective.

The Nooksack 306 could pursue claims against the United States for failing to protect these human rights, but to date they have chosen to contest their disenrollment primarily in tribal court, insisting that their own government respect internationally recognized human rights even if it is not directly bound by international instruments.

The Nooksack 306 have insisted, from the beginning, that theirs is a struggle to have their tribal government and court system recognize that, in their words, “We Belong.” Thus, the issue in this case is the tribal government’s responsibility to protect its citizens’ human rights by acknowledging that the right to determine citizenship is neither the only right at stake nor an unqualified right. In the interest of good governance, non-discrimination, and cultural survival, the right to determine citizenship should be exercised with an eye toward honoring and protecting indigenous individuals’ human rights to live in community within their nations. Hopefully that honor and protection will be afforded the Nooksack 306 once all is said and done.

Akilah Kinnison holds an LL.M. in Indigenous Peoples Law and Policy from the University of Arizona’s Indigenous Peoples Law and Policy Program. She currently works as an independent contractor and consultant in the fields of federal Indian law, international human rights, and indigenous peoples’ law.

Disenrollment Is Bad for the Bottom Line

Jared Miller, Indian Country Today Media Network

If you are following efforts by the Nooksack tribal government to purge 306 members from its rolls, you probably hold one of two views on the matter.

You may believe tribal disenrollment is patently unjust and requires some kind of federal or international intervention on behalf of the “Nooksack 306.” Or you may feel that disenrollment is solely a matter for the Nooksack Tribe to sort out, and non-tribal authorities should stay out of it.

Allow me to propose a third possibility.

Disenrollment is a business matter. That’s because tribal governments abandoning members en masse will harm their own bottom line by engendering negative media and investor perceptions. More critically, they threaten the bottom line of Indian businesses everywhere. As such, Indian people and tribal governments across the country have an interest in seeing that ugly disenrollment fights like the one on the Nooksack Reservation in Washington State do not happen. They should act to protect that interest.

Nooksack tribal officials endeavor to end forever the affiliation of 306 members. Disenrollment by the tribe could mean loss of benefits like housing, healthcare and education. Even more painful, according to some Nooksack members facing disenrollment, termination of tribal membership means a heart-rending loss of formal contact with their community and their culture.

As expected, the Nooksack 306 are fighting hard in courts and elsewhere to maintain tribal connections, and to secure rights to all the tangibles and intangibles that emanate from their identities as tribal people. Lawsuits are pending in tribal court and tribal appellate court, as well as federal court.

The battle is a public one. Local reporters have been on the story for some time. On August 25, the Seattle Times waded into the fray with a piece detailing the saga. Even more recently, Al-Jazeera introduced its growing audience to the story. Suddenly, what was essentially a family fight has become a very public airing of Nooksack dirty laundry.

Reporters have focused on a couple of angles. Some highlight accusations that greed, corruption, and racism aimed at tribal members with Filipino ancestry are driving disenrollment efforts. Others report that Nooksack officials may have ignored their own laws by failing to provide due process throughout the disenrollment process. All the coverage paints an unflattering picture.

Similar stories are trending across Indian country. According to Stephen L. Pevar’s book, The Rights of Indians and Tribes, “thousands of tribal members have been disenrolled from their tribes, usually from those with profitable casinos whose remaining members would then receive a larger share of the profits.” Another noted Native American professor has called the disenrollment era a “sort of tribal civil war.”

So what can be done?

Predictions about the disenrollment trend are bleak. For example, University of Minnesota Professor David E. Wilkins, in a June 4, 2013 column for Indian Country Today Media Network, predicted that “native disenrollments will continue unabated” until either Congress or the U.S. Supreme Court intervene. His column suggests potential avenues of short-term redress for individuals facing disenrollment, but Professor Wilkins seems to assert that only federal authorities can provide comprehensive relief.

Let’s hope he’s wrong. For one thing, enrollment (or disenrollment) is a matter for tribes to decide. It is rarely advisable for outsiders to intervene in tribal infighting, and federal law is clear that non-Indian courts generally have no jurisdiction in matters of tribal membership (save for habeas corpus or a collateral federal question). Inviting Congress or the Roberts Court to intervene should send shivers up your spine.

Moreover, there is reason for optimism. Tribal governments have shown a stunning talent for pragmatism and savvy in matters of tribal business and finance. Walk into most any Indian-owned casino and you’ll experience a level of professionalism and service that scoffers never predicted, to cite just one example.

And let’s be clear: Disenrollment is a business issue. Ugly battles like the one at Nooksack have potential to deeply affect tribes’ bottom lines. That’s partly because non-Indians may view such controversies as indicators of greed and corruption. Investors may also conclude that partnering with a tribal government engaged in abandoning its own citizens is not worth the risk to investment.

And non-Indians viewing disenrollment through the lens of old stereotypes may extrapolate those notions to tribes generally. It shouldn’t happen, but it does.

There is a price attached to everything. Tribes mulling disenrollment need to focus on the cost to business. They must consider that disenrollment can spook investors, and the negative financial impacts can be long term, widespread and devastating. (Just Google “Nooksack disenrollment” to see what potential business partners will read when they research the Nooksack Tribe.) Native American leaders should pause to understand that a tribe going to war with itself drives down the stock price of all of Indian country.

In addition to financial interests, there is a real risk that Congress or the U.S. Supreme Court might one day make new law in the area of tribal citizenship. We just saw the Court diminish Indian child welfare law and tribal cultural identity in the “Baby Veronica” case. Now imagine how the Roberts Court might undermine tribal citizenship if given the chance.

For these reasons, tribal governments and tribal officials should employ the forces of regional and national intertribal politics to pressure officials pursuing disenrollment. It is time to pick up the phone, or the pen, or write an email. Get creative. Too much is at stake to remain silent.

Pressure on the Nooksack government should begin now. Journalists and potential Indian-country investors are closely watching this fight, and they will take note as it unfolds. It would go a long way to shape media and investor perceptions of tribal governments if the Nooksack government could wake up to the big picture and resolve its problems without throwing hundreds of members off the rolls.

But no matter where you stand on the Nooksack fight, putting an end to disenrollment is critical for the bottom line in Indian country.

Jared Miller is a lawyer practicing tribal law and federal Indian law in Washington State.