Nooksack Tribe Archives

Slain Wash. girl’s parents seek custody trial

By: Associated Press

PORT ORCHARD, Wash. (AP) – The parents of a slain 6-year-old Washington girl have asked for a full trial as they attempt to regain custody of three other children.

James and Denise Wright of the Bremerton area appeared Monday in Kitsap County Family Court. Also participating in the hearing was a lawyer from the Nooksack Tribe. Denise Wright is a member of the tribe and has asked Nooksack officials to help represent her family.

Court Commissioner Thurman Lowans set an Oct. 14 trial date on the custody question regarding the Wrights’ two boys, ages 8 and 16, and a 12-year-old girl. The children are currently with their maternal grandparents.

The body of the couple’s daughter Jenise was found Aug. 7 in woods near her home. A 17-year-old neighbor of the little girl has been arrested for investigation of first-degree murder and rape.

The other children were taken into protective custody Aug. 4, a day after the Wrights reported Jenise missing. Officials have not said why. James Wright says he can’t talk about the reasons yet.

Nooksack tribe re-starts disenrollment process for 306 members

By John Stark The Bellingham Herald

June 3, 2014

DEMING – The 306 people facing loss of Nooksack Indian Tribe membership are back in tribal court attempting to block the tribal council’s latest effort to oust them.

As recently as March 2014, it seemed as though the members of three threatened families -Rabang, Rapada and Narte-Gladstone – would get a reprieve from a tribal procedure known as disenrollment that began in early 2013. After a long and convoluted legal battle in Nooksack tribal courts, the Nooksack Court of Appeals ordered a halt to the disenrollment process until the tribal council could draw up an ordinance spelling out disenrollment procedures. Such an ordinance also would require approval from the U.S. Bureau of Indian Affairs, the appeals court ruled.

But in mid- May 2014, 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. Ironically, the 2005 ordinance bears the signature of former chairman Narz Cunanan, a member of the Rabang family who is among those who could lose tribal membership.

In a new lawsuit filed May 30, 2014, in tribal court, Seattle attorney Gabe Galanda argues that the tribal council’s new disenrollment strategy does not comply with language in the March appeals court ruling, since the BIA has not approved any procedures since that ruling was handed down.

The lawsuit states that a tribal attorney confirmed the tribal council’s plan to conduct the disenrollment process under the terms of the older ordinance.

Now, Tribal Court Chief Judge Raquel Montoya-Lewis is being asked to decide whether that approach is a legally valid way around the Appeals Court’s ruling. In past legal opinions, Montoya-Lewis has tended to accept tribal attorneys’ arguments in favor of the tribal council’s sweeping authority to determine who is entitled to tribal membership and its many benefits. That authority has a firm legal foundation thanks to a 1978 U.S. Supreme Court ruling involving a New Mexico tribe.

If Montoya-Lewis does decide to uphold the tribal council’s position, the threatened families could go back to the tribal Court of Appeals to give those judges the opportunity to weigh in on whether a disenrollment process under the 2005 ordinance is in violation of their March 2014 appeals ruling.

The disenrollment controversy began in early 2013 after Nooksack Tribal Council Chairman Bob Kelly and a majority of other council members agreed that members of those three 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.

Even before the disenrollment process began, Kelly and his council allies pushed two other members off the council on grounds that they had missed council meetings, but the two contended they were targeted because they were members of the challenged families. Cash Christmas and school supplies payments also have been denied to the family members, and many of them have lost their jobs in tribal government or in the tribe’s two casinos.

While Kelly has refused comment on the situation, some of his backers in the tribe’s rank-and-file have spoken out in the past to praise Kelly for his actions. As they see it, the three affected families were outsiders with tenuous membership claims who should never have been admitted to the tribe to get a share of scarce tribal resources.

In tribal elections in March 2014, Kelly was reelected, despite a vigorous campaign against him by members of the three families and their supporters. The full results sent a mixed message: Two candidates who opposed the disenrollment also were elected. But the result left Kelly and his supporters with a 5-2 majority on the council.

The February 2013 edition of the official tribal newsletter, Snee-Nee-Chum, reported that the tribe’s 2013 revenue would add up to about $39.5 million, with about 24 percent of it coming from the casinos and smaller tribal enterprises.

Appeals panel says Nooksack ouster must get federal approval

By JOHN STARK

THE BELLINGHAM HERALD March 18, 2014

BELLINGHAM – Three days after suffering a setback in tribal elections, the 306 people facing loss of membership in the Nooksack Indian Tribe won a legal victory that promises to slow down the tribal council’s effort to remove them.

But the appeals court’s action may not stop that removal.

In a ruling delivered to the tribal court office on Tuesday, March 18, a three-judge Nooksack Tribal Appeals Court panel ruled that the procedures for removing the 306 from tribal membership rolls must be approved by the U.S. Department of Interior, which oversees the Bureau of Indian Affairs. The tribal council, headed by Chairman Bob Kelly, had approved a resolution in August 2013 declaring that each individual facing loss of tribal membership would get a telephone hearing before the tribal council of no more than 10 minutes.

Attorneys representing the council had argued that the resolution did not need federal approval. Seattle attorney Gabe Galanda and his firm, representing the 306, convinced the court that the resolution was, in fact, an ordinance, and the tribal constitution requires Interior Department approval of ordinances.

Otherwise, the appeals court ruled that the short telephonic hearing was adequate protection of the affected tribal members’ legal right to due process before they are deprived of tribal membership, which members say has emotional as well as financial benefits. The judges’ ruling states that a more lengthy, in-person hearing would serve no purpose, because a member’s right to tribal status would hinge on documentary evidence of ancestry, not personal pleas.

The court ruled that the affected tribal members must have 21 days’ notice before their hearing, and they have a right to be represented by someone of their choice.

In an email, Galanda said it was significant that the appeals court ruling forces the Department of Interior to get involved. Until now, the threatened Nooksacks have been rebuffed in efforts to get the agency to weigh in on the membership controversy.

Galanda said he wasn’t sure whether the approval process would be handled in regional BIA offices, or whether it might be referred to Washington, D.C. He declined to guess how long the approval process might take, and whether there was any chance that the federal agency would deny the approval that the tribal council needs to get the membership ouster started.

In a Saturday, March 15, tribal council election, the 306 members and their allies managed to claim two of the four council seats on the ballot, but Kelly and another incumbent were re-elected, leaving the council with an apparent 5-2 majority in favor of the ouster of the 306. Kelly, the eighth member of the council, votes only when there is a tie, but he still plays a significant leadership role.

Kelly and council members who support the ouster have avoided making public statements outside tribal gatherings since the controversy began more than a year ago. Kelly did not respond to a request for comment Tuesday.

Nooksack member Marie Witt, a strong Kelly supporter, said she understands why Kelly and the other council members are keeping quiet in public.

“We were raised to believe silence is a virtue,” Witt said.

As Witt sees it, Kelly’s reelection demonstrates that most Nooksacks support the effort to remove the members of the Rabang, Rapada and Narte-Gladstone families, who were admitted to membership in the 1980s. 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 and or on a 1942 tribal census, and those two criteria determine legal eligibility for membership.

Many other tribal members opposed the three families’ membership claims from the beginning, Witt said, because they believe the three families have much stronger ties to Canadian tribes.

“It (the ouster) is something we all wanted,’ Witt said. “People in the tribe have been pushing for this for many years.”

Witt, 23, said she has friends and relatives who are faced with loss of tribal membership, and she regrets that. But she is convinced that the original enrollment of the members of those three families was a mistake that strains tribal resources. Among other things, she said members of the families are getting a significant share of the money available for tribal members’ health care, and there isn’t enough money to provide for those she believes have a better claim to membership.

Witt said she admires Kelly’s willingness to take on such a hotly contested issue, and she said it is a mistake to think that Kelly is solely responsible for a membership purge that has the support of a majority of the council. She added that Kelly has done a lot to improve tribal government.

“He’s trying so hard to make our tribe better,” Witt said. “We’re putting more of our trust in him because he’s not trying to hide anything from us.”

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.

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.

Documents Reveal Coal Exporter Disturbed Native Archaeological Site

Ashley AhearnLummi tribal council member Jay Julius points to an area of Cherry Point that was disturbed by Pacific International Terminals. — Ashley Ahearn
Lummi tribal council member Jay Julius points to an area of Cherry Point that was disturbed by Pacific International Terminals.

Ashley Ahearn, 1/2/14, Earth Fix

BELLINGHAM, Wash. – Three summers ago the company that wants to build the largest coal export terminal in North America failed to obtain the environmental permits it needed before bulldozing more than four miles of roads and clearing more than nine acres of land, including some wetlands.

Pacific International Terminals also failed to meet a requirement to consult first with local Native American tribes, the Lummi and Nooksack tribes, about the potential archaeological impacts of the work. Sidestepping tribal consultation meant avoiding potential delays and roadblocks for the project’s development.

It also led to the disturbance of a site from which 3,000-year-old human remains had previously been removed—and where archeologists and tribal members suspect more are buried.

Pacific International Terminals and its parent corporation, SSA Marine, subsequently settled for copy.6 million for violations under the Clean Water Act.

According to company documents obtained by EarthFix after the lawsuit made them public, Pacific International Terminals drilled 37 boreholes throughout the site, ranging from 15 feet to 130 feet in depth, without following procedures required by the Army Corps of Engineers under the National Historic Preservation Act.

Map showing locations of 37 boreholes that Pacific International Terminals drilled at the proposed site of the Gateway Pacific Terminal.

(The original document the image is from, is available here.)

The Gateway Pacific Terminal is one of three coal export facilities proposed in Oregon and Washington. Mining and transportation interests want to move Wyoming and Montana coal by train so it can be loaded onto vessels on the Columbia River or Puget Sound and shipped to Asia.

The projects have been met with strong opposition from various groups concerned about increases in train and vessel traffic, coal dust and climate change.

The conflict between Gateway Pacific developers and the Lummi tribe underscores just how deep opposition can run among Native Americans whose homelands are in close proximity to proposed coal-shipping facilities. For tribes, the stakes include the protection of their treaty fishing rights and the sanctity of their ancestral burial grounds.

One of the boreholes at the Gateway Pacific site was drilled within an area designated as “site 45WH1,” the first documented archaeological site in Whatcom County, about 20 miles south of the Canadian border.

Boreholes are drilled to test the soil composition and geology of a site. In this case, the test was to help determine if the ground at Cherry Point could stand up to 48 million tons of coal moving over it each year.

Government regulators and tribal officials say they were unaware of Pacific International Terminals’ non-permitted work at Cherry Point until a local resident was out walking in the area, saw the activity, and reported it.

Pacific International Terminals said it was an accident. The company had planned to drill 36 more boreholes at the site before their activity was reported.

According to a document the company submitted to the Army Corps of Engineers four months prior to the non-permitted activities at the site, Pacific International Terminals knew the exact location of site 45WH1 and had said that “no direct impacts to site 45WH1 are anticipated as the project has been designed to avoid impacts within the site boundaries.”

In the document the company said that to mitigate potential impacts it would have an archaeologist on hand for any work done within 200 feet of site 45WH1. The company also acknowledged that it needed an “inadvertent discovery plan” in case human remains or other artifacts were uncovered, and that it would be required to consult with the Lummi tribe under Section 106 of the National Historic Preservation Act before any work could begin at the site. Pacific International Terminals did none of those things.

“By going ahead and doing it illegally and then saying, ‘oh sorry,’ but actually having the data now, it allows them to start planning now,” said Knoll Lowney, one of the lawyers who represented the Bellingham-based environmental group RE Sources in its lawsuit against the terminal’s backers. “That way if they get their permits someday they’re ready to build right then.”

Pacific International Terminals and its parent company, SSA Marine, declined repeated requests for an interview; Bob Watters, senior vice president of SSA Marine, emailed this statement:

“We sincerely respect the Lummi way of life and … their cultural values. Claims that our project will disturb sacred burial sites are absolutely incorrect and fabricated by project opponents. We continue to believe we can come to an understanding with the Lummi Nation regarding the Gateway Pacific Terminal.”

Site 45WH1

Cherry Point and the waterways surrounding it are a culturally significant place for the Lummi Nation and other tribes. Ancestors of the Lummi peoples hunted, fished and buried their dead at Cherry Point for more than 3,000 years. And there is no shortage of archaeological evidence to prove it.

45WH1, a small section of Cherry Point, just 50 by 500 meters in size, is the most extensively studied archaeological site in Whatcom County. The location is not shared publicly because it is spiritually important to the tribe and they are afraid of people looting the site.

Western Washington University Faculty Herbert Taylor and Garland Grabert conducted seven separate field excavations at the site between 1954 and 1986.

Western Washington University Anthropology Professor Sarah Campbell. (Ashley Ahearn)

Both archaeologists have since died. Sarah Campbell, a professor of anthropology at Western Washington University, has studied the artifacts from 45WH1 since the late 1980s. It is a large collection, filling 150 boxes and includes harpoon points, shells, amulets, lip ornaments, reef net weights, beads, jewelry, blades and bone and rock tools, among other things.

Cherry Point is an area rich in potential for future research, Campbell says as she sorts through boxes filled with tiny plastic bags, each one labeled “45WH1.”

The area was used not only to hunt and fish, but also to manufacture reef net weights made of stone, which suggests permanent residence at the site. Campbell and others believe the site was used extensively over a long period of time, spanning from 3,500 years ago until relatively recently.

Arrow point found at site 45WH1. (Ashley Ahearn)

The Lummi signed a vast majority of their traditional land away in a treaty with the federal government in 1855. A portion of their traditional land known today as Cherry Point was taken at a later date; the tribe has disputed whether this was done lawfully. It is now owned by SSA Marine and Pacific International Terminals.

“That’s one of those things that makes Cherry Point important is it has a long time span,” she says. “And it provides the chance to see the changing use over time. The chance to do those comparisons through time is really important and useful.”

The Western Washington University collection also includes human remains, and Campbell believes that there are more Lummi ancestors buried at Cherry Point.

“It would be highly, highly, highly unlikely that there are not human remains in unexcavated areas of the site,” she cautions. “It’s absolutely prudent to assume that there are.”

‘My People’s Home’

From the deck of his fishing boat, the God’s Soldier, Lummi tribal council member Jay Julius looks to the shore of Cherry Point. He says that, for the Lummi, the spiritual and cultural value stretches far beyond the boundaries of site 45WH1.

“I see this as my people’s home. I can envision it,” Julius says quietly. “I know what’s there now.”

Reef net weights, carved from the rocks of Cherry Point. (Ashley Ahearn)

Julius cites Pacific International Terminals’ unpermitted activity at Cherry Point as a major source of tribal opposition to the Gateway Pacific Terminal.

“When I come out here, it’s all that’s on my mind—is what took place here at Cherry Point when these guys bulldozed over it and called it an accident,” he said. “It’s obvious. It doesn’t take a genius to figure it out.”

Despite the fact that the Lummi tribal council asserted its “unconditional and unequivocal” opposition to the Gateway Pacific Terminal in a letter it sent to the Army Corps of Engineers on July 30, the Lummi chose not to take part in the civil suit brought by RE Sources.

That, the group’s attorney Knoll Lowney said, would have strengthened the environmental group’s case against Pacific International Terminals and SSA Marine. The Lummi had standing in a civil court because they could have demonstrated that they were harmed, culturally and spiritually, by Pacific International Terminal’s unpermitted activity at Cherry Point.

“If they don’t take part in the legal process, they’re weakening themselves. They’re throwing away their weapons,” said Tom King, an expert on the National Historic Preservation Act who served on the staff of the federal Advisory Council For Historic Preservation in the 1980s.

The council oversees the permitting of projects that could affect places of historic and archaeological significance, like the Gateway Pacific Terminal.

It is unclear why the Lummi decided against participating in the environmental lawsuit. Diana Bob, attorney for the Lummi, declined to be interviewed for this story.

King said Pacific International Terminals’ non-permitted drilling and disturbance at Cherry Point could put approval of the Gateway Pacific Terminal at risk because the company skirted the requirements of the so-called “106 process” under the National Historic Preservation Act.

“I think the Lummi have a very strong case,” he said. “The site, the area, the landscape—they can show that it’s a very important cultural area and permitting the terminal to go in will have a devastating effect on the cultural value of that landscape.”

The Army Corps of Engineers is now working on finalizing what’s called a “memorandum of agreement” between Pacific International Terminals and the Washington State Department of Archaeology and Historic Preservation. The Army Corps says the document, which was obtained by EarthFix and KUOW under the Freedom of Information Act, will serve as a retroactive permit.

The Lummi Nation refused to sign the memorandum or accept the $94,500 that was offered as mitigation.

For now, the coal terminal backers are being allowed to move ahead with the permitting process. But that doesn’t mean the larger questions have been resolved around how compatible a coal export terminal is at a location where local Native Americans have lived for millennia.

The tribe and historical preservation officials with the state and federal governments have written letters to the Army Corps objecting to its decision limiting the geographic area studied to determine the potential for damage to archeological resources at Cherry Point—another point of contention as the review continues.

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.

South Fork Nooksack Chinook Captive Broodstock Reach Spawning Age

Staff at NOAA’s Manchester Research Station ultrasound a chinook salmon to determine its sex and whether it is ready to be spawned.

Source: Northwest Indian Fisheries Commission

More than 500 mature chinook salmon raised in captivity could produce about 1 million eggs at the Lummi Nation’s Skookum Creek Hatchery this year.

Of those, more than 600,000 juveniles are expected to be released into the river next spring.

The fish are part of a captive broodstock program to preserve threatened South Fork Nooksack River chinook. The multi-agency effort involves Lummi, the Nooksack Tribe, the state Department of Fish and Wildlife (WDFW) and the National Oceanic and Atmospheric Administration (NOAA). Its goal is to help the recovery of the South Fork Nooksack chinook, a significant population that must be on a path to recovery before Endangered Species Act restrictions can be lifted.

In 2007, the partners began collecting juvenile chinook in the South Fork Nooksack River to raise to spawning age. The juveniles were genetically tested to sort out stray fish from hatchery programs and the South Fork Nooksack chinook were transferred to the WDFW Kendall Creek Hatchery for initial rearing. Later, half of the fish were retained to rear in fresh water at Kendall, while the other half were transferred to the NOAA Manchester Research Station for rearing in salt water.

The first offspring spawned from the captive broodstock were released in 2011. Project managers expect the program to peak in 2016 with the release of 1 million juveniles. Based on a conservative survival rate, more than 4,000 adult chinook could return to the South Fork Nooksack in 2019.

Historically, about 13,000 natural origin South Fork spring chinook spawned in the Nooksack River, but since 1999, surveys estimated that fewer than 100 native spring chinook returned as adults. Degraded and lost habitat are the main reasons for the population’s decline, as there are no directed harvest on the stock. Incidental catches, mostly in Canadian fisheries, are relatively insignificant.

“We needed to protect this population while we conduct extensive habitat work,” said Merle Jefferson, natural resources director for the Lummi Nation. “Our hope is that these fish, when they return, will jumpstart the population in restored habitat.”

Both the Nooksack Tribe and the Lummi Nation have done restoration work in the South Fork to re-establish suitable habitat for salmon to rear, feed and spawn.

Nooksack tribal dispute heads to federal court

John Stark, The Bellingham Herald

After getting another rebuff in tribal court, Nooksack Indians facing loss of their tribal membership have filed a new lawsuit in U.S. District Court in Seattle.

Seattle Attorney Gabriel Galanda filed the federal suit Monday, June 17, on behalf of Rudy St. Germain and Michelle Roberts, two tribal council members who are among the 306 who could be stripped of their tribal membership because the validity of their Nooksack lineage has been called into question.

The suit declares that the move to purge the 306 is based on “racial animus,” because all 306 are part-Filipino. That charge is hotly denied by Nooksack Tribal Chairman Bob Kelly and his supporters, who have noted that many other Nooksacks have Filipino ancestors but can demonstrate their Nooksack lineage in a way that meets the requirements of tribal law.

But as Galanda and his clients see it, Kelly and the other five members of the council are in the process of changing that law to keep them out.

The Bureau of Indian Affairs of the U.S. Department of the Interior is currently supervising a mail-in constitutional amendment election that could make it more difficult to qualify for Nooksack membership. Kelly and his five supporters on the council have asked voters to repeal a constitutional provision that makes tribal membership available to anyone who has at least one-fourth Indian blood, plus Nooksack ancestry “to any degree.”

That election is scheduled to conclude June 21.

Galanda’s lawsuit argues that repeal of that provision of the tribal constitution would make it more difficult for his clients and other challenged Nooksacks to re-enroll in the tribe if the current effort to strip them of membership succeeds.

That, the suit contends, denies the affected Nooksacks the right to equal protection under law and is therefore a violation of the Indian Civil Rights Act. Galanda wants the judge to order federal officials to halt the constitutional election.

All of the 306 facing loss of membership are descendants of the late Annie George. Tribal officials contend that George did not qualify as Nooksack under tribal law, because her name does not appear on a tribal census of 1942 or on the list of those who got an allotment of tribal lands. Galanda and his clients have submitted other records and letters from anthropologists indicating that Annie George was, in fact, a Nooksack.

Also on Monday, Nooksack Court Tribal Chief Judge Rachel Montoya repeated the legal arguments of her earlier rulings and refused to stop the constitutional election. She found that a majority of the tribal council was acting within its proper authority in launching the constitutional election to change the membership rules.

The 306 challenged Nooksacks face loss of housing and medical benefits, tribal hunting and fishing rights, tribal jobs and other benefits if they are pushed out of the 2,000-member tribe.

Read more here: http://www.bellinghamherald.com/2013/06/17/3056967/nooksack-tribal-dispute-heads.html#storylink=cpy

Water dispute clouds future for Whatcom County farms, factories

By JOHN STARK — THE BELLINGHAM HERALD

Everyone involved in Whatcom County’s water rights disputes seems to agree that a local settlement would be a good idea, but representatives of Lummi Nation have made it clear they will not sacrifice Nooksack River salmon to benefit farms, industries or cities.

Speaking at a May 30-31 water supply symposium at the Hampton Inn in Bellingham, Lummi Nation attorney Diana Bob said the facts were clear.

Dan Kruse, left, and Robert Teton of the Lummi Natural Resources Department, use a net to try to catch juvenile salmon to count on Feb. 15, 2012 at Marine Park in Bellingham. The department counts juvenile salmon around Bellingham Bay about once every two weeks. The Lummi and Nooksack tribes have asked federal agencies to file a lawsuit on their behalf to help determine the amount of water they should be guaranteed to bolster Nooksack River salmon stock.COLIN DILTZ — THE BELLINGHAM HERALD — Dan Kruse, left, and Robert Teton of the Lummi Natural Resources Department, use a net to try to catch juvenile salmon to count on Feb. 15, 2012 at Marine Park in Bellingham. The department counts juvenile salmon around Bellingham Bay about once every two weeks. The Lummi and Nooksack tribes have asked federal agencies to file a lawsuit on their behalf to help determine the amount of water they should be guaranteed to bolster Nooksack River salmon stock.
COLIN DILTZ — THE BELLINGHAM HERALD

“We have fish dying in the Nooksack River because we do not have sufficient flows,” Bob said. “That is an unacceptable proposition to Lummi.”

The flow of water in the Nooksack and its tributaries is reduced by withdrawals of water for the city of Bellingham and Cherry Point industries, but Whatcom County farms withdraw even more to irrigate raspberries and blueberries. River water is also used to irrigate cow pastures in dry months.

Both the Lummi and the Nooksack Indian Tribe have a federally recognized right to catch Nooksack River salmon. The tribes have asked federal agencies to file a lawsuit on their behalf to force the state to take steps to define the amount of water that they should be guaranteed, to bolster the flow of water in the river and its tributaries. That likely would mean curbing the amount of water that other users are allowed to withdraw.

The tribes asked the feds to file the lawsuit more than a year ago, and so far there has been no word of a response.

Farmers admit that more than half the water they withdraw is not authorized by state law. Farm groups’ attempts to negotiate a deal with tribes have broken down, as have negotiations between the tribes and city of Bellingham. The city diverts water from the middle fork of the Nooksack River to replenish its direct water source, Lake Whatcom.

While the city has reduced its take of river water and could likely cut it even more, berry growers could be badly squeezed.

Marty Maberry, a prominent fourth-generation berry grower, said he too wanted to see salmon populations increase. He suggested that if farmers can get enough water to stay in business, they could help bolster the amount of water in streams by drilling new wells to spill into streams. He said underground water supplies are abundant in the county.

In many cases, pumping from wells also can reduce the flow of water in nearby streams, making solutions complex. But cutting off the water supply to Whatcom County farms is a poor response, Maberry said.

“The production of food and the care of the land that we farm runs as deep red in my blood … as it does in tribal members about fish,” Maberry said. “They were here first, but we were here second or third.”

He questioned the logic of taking Whatcom County fields out of production.”

We’re in the most natural place to grow food that you can find anywhere in the United States,” Maberry said, adding that putting farmers out of business because of tribal water and fishing rights would embitter the community.

Lummi representative Randy Kinley said the tribes don’t want to put farmers out of business, but they are not afraid of stirring up resentment if that’s what it takes to guarantee their rights.

“We’ve been there and I’m not afraid to go back there,” Kinley said, referring to the 1974 federal court ruling that recognized treaty fishing rights and forced dramatic reductions in salmon harvests by non-Indians.

“That’s not saying we won’t sit at the table,” Kinley said. “We want to be community members. … We hope we can keep the community together, but the community has to understand where we’re coming from. … We don’t want to put anybody out of business, but you have to understand the predicament you got yourselves into.”

Kinley and others noted that withdrawal of Nooksack water for agriculture has increased rapidly in recent years with little oversight by the state or Whatcom County.

Whatcom County’s Cherry Point is home to two oil refineries and an aluminum smelter that provide hundreds of high-wage jobs. They also use significant amounts of Nooksack River water, supplied by Whatcom County Public Utility District.

The proposed Gateway Pacific Terminal coal export pier also would use river water from the PUD. PUD spokeswoman Rebecca Schlotterback said Gateway Pacific has already lined up its water supply via a PUD contract that extends to 2042.

While the PUD has a legal right to Nooksack water to cover its industrial customers, that right (and every other Nooksack River water right) is considered “junior” to the tribes’ water rights, since they were here first. Attorney Jay Manning, former chief of staff to Gov. Chris Gregoire and former director of the Washington Department of Ecology, said the PUD’s right to its water supply is not ironclad in that situation. Other water users also may be ahead of the PUD in the water line, if the available supply of water is cut back by a court order that allocates a larger share of water to the tribes for salmon populations.

“It’s going to be a function of math,” Manning said. “Where is the PUD’s right in that chain of priority? … Will there be enough water for the PUD to honor that (Gateway Pacific) contract? We don’t know that.”

Manning urged the crowd not to despair. He said workable solutions can be developed at the local level.

Perry Eskridge, government affairs director for the Whatcom County Association of Realtors, said local solutions would be best.

“If we don’t figure this thing out on our own, it is going to be figured out for us,” Eskridge said. “Somebody with a little bit more authority is going to shove it down our throats and we are not going to like that.”

Several speakers urged people to continue to work for a local agreement. Two of those speakers suggested that the tribes still may be motivated to make a deal, because there is no guarantee that the federal government will agree to take the state to court, and no guarantee such a court action would give the tribes all the water they want for salmon.

Michael Mirande, adjunct professor at Seattle University School of Law, said legal uncertainty has spurred out-of-court settlements of thorny water rights cases elsewhere.

Jim Bucknell, northern regional manager for RH2 Engineering, agreed.”

If any one person was absolutely certain they would prevail in a lawsuit, they would have sued long ago,” Bucknell said.

Bucknell also observed that no settlement will be painless.

“If you think there’s a solution that everyone in this basin is going to love, you’re delusional,” Bucknell said.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com. Read his Politics blog at blogs.bellinghamherald.com/politics or follow him on Twitter at @bhamheraldpolitics.

Enrollment dispute has Nooksack tribe in turmoil

April 11, 2013

By JOHN STARK — THE BELLINGHAM HERALD

DEMING – Questions of tribal identity are pitting friends and relatives against one another as the 2,000-strong Nooksack Indian Tribe waits for the tribal court to rule on a move to disenroll 306 members.

Tribal Chief Judge Raquel Montoya-Lewis has scheduled a May 1 hearing on legal challenges to the disenrollment filed on behalf of the affected people.

Meanwhile, Nooksacks who support the disenrollment are circulating recall petitions against two tribal council members, Michelle Roberts and Rudy St. Germain, who are among those facing disenrollment.

One of those affected, Norma Aldredge, said she faces loss of her home in a tribal housing project, where the $150 monthly rent enables her to survive on a $500 monthly Social Security check.

Not the least of her distress comes from the new animosity that divides her and her family from the rest of the community.

“I’m afraid to even talk to anybody because I don’t know who my friends are and who my enemies are,” Aldredge said. “Why do they hate us so much? Why don’t they just leave us alone?”

Nooksacks who support the disenrollment say it is not a matter of hate. They say it’s simply a matter of fixing an old mistake that allowed unqualified people to reap the benefits of tribal membership, including a share in the tribe’s limited resources.

Nooksack tribe member Abby Yates has a marketing business that is doing well right now, but a few years ago she was not doing as well and hoped to get into subsidized tribal housing. There was no room. As she sees it, some of the 306 improperly enrolled people are getting help with housing while real Nooksacks go without.

Yates and another tribal member, Leandra Smith, said elders in their families have never considered members of the Rabang, Rapada and Narte-Gladstone families to have authentic Nooksack ancestry. As they see it, these families are descended from members of the Skway tribe in British Columbia, but not from anyone they consider a true Nooksack.

Tribal council members moved to challenge the families’ membership in 1996. But the families packed the council chambers in a show of strength that some council members found intimidating, aqccording to Yates and Smith. The matter was dropped.

Yates commends Kelly and his allies on the council for taking up the disenrollment issue again.

“Sometimes, doing what’s right is very difficult,” she said. “We have a strong leadership on our council who are willing to do the difficult tasks. … The money that is there should go to the descendants who are truly Nooksacks. Our ancestors fought for that.

“Smith said there is nothing personal in the dispute, and said she has three nephews and several friends among those who may be disenrolled.

The disputed right to Nooksack membership hinges on a woman named Annie George, who died in 1949. The Nooksacks facing disenrollment are descended from her. They insist that Annie George was Nooksack and that her descendants qualify for membership under a provision of the tribal constitution opening enrollment to anyone with one-fourth Native American blood “who can prove Nooksack ancestry to any degree.”

But on Feb. 12, 2013, Chairman Kelly and five of the other seven members of the tribal council approved a resolution that approved disenrollment of Annie George’s descendants, based on a tribal ordinance that limits membership to descendants of those whose names appear on a 1942 tribal census, or those who can prove they are descendants of someone who got an allotment of tribal land in the early days. Annie George does not meet those tests, according to the disenrollment resolution.

On March 1, the council followed up with a vote to start the process of amending the constitution to delete the provision that opens membership to those with “any degree” of Nooksack ancestry. The March 1 council resolution describes that provision as “so ambiguous that it cannot be fairly applied and has potential for abuse.”

Those threatened with disenrollment see the constitutional amendment as evidence that Kelly and his allies will stop at nothing to get them out of the tribe.

In a sworn statement submitted to tribal court, council member Rudy St. Germain also complains that Kelly ordered him and the other council member facing disenrollment, Michelle Roberts, out of the closed council sessions where the issue was discussed. St. Germain contends that was improper because he and Roberts were, and remain, members of both the tribe and the council until the matter gets legal review.

In an email, Chairman Kelly said he could not comment while the matter faces legal review.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com. Read his Politics blog at blogs.bellinghamherald.com/politics or get updates on Twitter at @bhampolitics. Reach JOHN STARK at john.stark@bellinghamherald.com or call 715-2274.