Embattled Nooksacks face tough fight in tribal court

THE BELLINGHAM HERALDMay 19, 2013 

DEMING - The sweeping legal authority of the Nooksack Indian Tribe's elected council could make it difficult for 306 tribal members to avoid the loss of membership and the health care, housing benefits and treaty fishing rights that go with it.

Seattle attorney Gabriel Galanda has filed a lawsuit in tribal court on behalf of five tribal members affected by the council's move to disenroll the members of several large families. Tribal officials contend the ancestry of those families does not qualify them for Nooksack membership, and their original enrollments were erroneous. The suit seeks a court order blocking further steps toward their removal from the tribe.

A recording of a Thursday, May 16, hearing on that suit before Tribal Court Chief Judge Raquel Montoya-Lewis was made available for public review on Friday, May 17.

Media were barred from attending the hearing.

At the hearing, tribal attorney Thomas Schlosser contended that the sovereign immunity of the tribe and its elected council members means the 306 people facing tribal disenrollment have no right to stop that process via a lawsuit, as they are now trying to do.

Schlosser also argued that the tribal council has full authority to determine who has a right to tribal membership, and the council's decisions on those matters are not subject to review by tribal court.

Judge Montoya-Lewis questioned Schlosser about the implications of his position. She asked why there are laws spelling out the procedures for enrollment and disenrollment in the tribe if the council's compliance with those laws cannot be enforced in court.

"When they (council members) make mistakes, they are asked to reconsider," Schlosser replied. "It's pretty clear that the tribal council has full authority over enrollment. ... Enrollment is quintessentially a political issue."

Galanda tried to convince the judge that the rule of law and her own authority was at stake, along with the rights of his clients and their extended families.

"The Nooksack constitution and code will be rendered useless" if the tribe's legal arguments prevail, Galanda said. "This is about constitutional democracy at Nooksack."

Galanda contended that the council failed to follow proper legal and constitutional procedures before sending letters to 306 of the tribe's approximately 2,000 members, notifying them they were facing loss of membership because their enrollment had been based on descent from the late Annie George. Tribal officials contend that George was not a true Nooksack, as defined by tribal laws.

Among other things, Galanda argued that the process to remove someone from tribal membership must begin with written evidence from a tribal member, not from a resolution of the tribal council.

As evidence, Galanda introduced a sworn statement from Jewell Jefferson, a former tribal enrollment officer. In the statement, Jefferson contends that she was fired from her tribal job in April 2013 partly because she questioned the validity of the tribal council's disenrollment proceedings against the 306.

But Galanda seemed to concede that if proper procedures are followed, the council does have broad authority to determine who should be admitted to or excluded from tribal membership rolls.

"That decision ultimately rests with the tribal council," Galanda told the judge. "We're not asking you to decide who is a Nooksack."

Schlosser said the tribe was prepared to provide proof that the 306 challenged Nooksacks had been enrolled in the 1980s on a "fraudulent basis."

That provoked a heated exchange between attorneys and the judge.

"That's incendiary language that doesn't belong here," Galanda said, raising an objection.

Schlosser tried to reply. Galanda went on venting his outrage about Schlosser's use of the word "fraudulent," until Montoya-Lewis cut off the exchange.

"Let's not bicker here," she said. "Mr. Galanda, you have used plenty of incendiary language yourself."

Montoya-Lewis said she hoped to issue a written ruling by May 23.

Members of the families facing loss of tribal membership have argued that the action against them is an undemocratic political power play by Tribal Chairman Bob Kelly and the five council members who support him. Two other tribal council members face loss of tribal membership, as does Narz Cunanan, the former chairman unseated by Kelly in the 2010 election.

The democratic process was not always pristine under the previous administration. A tribal election procedure, since changed, included just one round of voting for council positions, with no runoff between the top two finishers. That meant Cunanan and others routinely took office with less than 40 percent of the vote.

In 2004, while Cunanan was chairman, the council invalidated a tribal election, overturned the election of one candidate and ordered a new election to be held, with that candidate's name stricken from the ballot.

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