Tribal judge refuses to block disenrollment of 306 Nooksacks

THE BELLINGHAM HERALDMay 22, 2013 

nooksack hearing

George Adams, right, sings with a crowd of dozens as they await a decision on whether the disenrollment process of 306 Nooksack Indian Tribe members will be allowed to proceed Thursday, May 16, 2013, in front of the Nooksack Tribal Court in Deming. The judge is reviewing the case and will issue a decision in coming days.

COLIN DILTZ — THE BELLINGHAM HERALD Buy Photo

DEMING - Nooksack Tribal Chief Judge Raquel Montoya-Lewis has cleared the way for tribal officials to go ahead with plans to strip 306 people of their membership in the tribe, refusing to grant an injunction that would have blocked such a move.

Attorney Gabriel Galanda, representing five of the 306, had filed a lawsuit in tribal court challenging a resolution to disenroll them. Chairman Bob Kelly and five other members of the eight-member tribal council approved that resolution in February 2013. The remaining two members of the council are among those facing disenrollment.

In a 13-page ruling, Montoya-Lewis did not close the door on the possibility that the 306 affected people in the 2,000-member tribe might prevail on other legal issues still to be decided. But she rejected Galanda's argument that she should stop the disenrollment process in its tracks because the disenrollment resolution violated their civil rights, as well as provisions of the Nooksack tribal constitution and laws. Among other things, Galanda contends that the 306 are being singled out because they are of partial Filipino descent.

Instead, Montoya-Lewis agreed with legal arguments from attorneys representing the tribe. She said her own authority in cases involving enrollment was severely limited, and the tribal council has broad discretion to decide tribal membership matters. She ruled that the doctrine of sovereign immunity protected tribal government and officials from a court injunction unless their actions "exceed ... official duties in a manner that verges on bad faith, not simply by making technical errors of law."

In a written statement, Chairman Kelly applauded the ruling.

"The court confirmed what we knew all along: the Nooksack people, through their Tribal Council, decide who is Nooksack and who is not," Kelly wrote. "The 306 people that will soon be facing disenrollment hearings ... could have stopped this slow process at any time by providing us with birth certificates that prove they are lineal descendants of a Nooksack Tribal member. Instead of providing proof, they hired an attorney, filed a lawsuit and are claiming that they are facing disenrollment because of race or politics. This is simply not true. We have been respectful and patient throughout this process, and it would be unfair to our community if we were to allow these people to remain members in the absence of any proof."

Moreno Peralta, 46, is one of the 306 facing the loss of his tribal identity. Peralta said he has been enrolled in the tribe for 30 years. He and the others facing disenrollment are descendants of the late Annie George, and they insist that she was a Nooksack.

But tribal officials say Annie George does not qualify as a Nooksack under definitions spelled out in tribal law, because her name does not appear on a 1942 tribal census or on the list of those who got an original allotment of tribal land.

As Peralta sees it, he is facing loss of tribal membership on a technicality that he termed "ridiculous."

"To me this is the most evil thing you can do," Peralta said.

The families facing disenrollment have not given up hope, and may turn to the federal courts, Peralta added.

The disenrollment process facing the 306 is not yet complete. Tribal law gives each one the right to a hearing before the tribal council that earlier passed the resolution proposing to disenroll them. They will have a chance to present the council with evidence that they qualify for membership.

Kelly said no such hearings have yet been scheduled.

Kelly and the tribal council are taking additional steps that could make it more difficult for disenrolled people to get back into the tribe. In June, tribal members are voting on a council-proposed amendment to the tribal constitution, striking a provision that gives enrollment eligibility to anyone with one-fourth Indian blood and any degree of Nooksack tribal ancestry. At least some of the 306 Nooksacks facing loss of membership have relied upon that provision to some degree.

In a letter to tribal voters, Chairman Kelly urged them to vote to remove the provision, calling it "a loophole that opens up enrollment to large groups or families that have much weaker ties to Nooksack than the rest of us."

Galanda also has asked the tribal court to block that election, and a hearing on that is still to come. He also has written to U.S. Attorney Jenny Durkan in Seattle, asking her to intervene to stop the U.S. Bureau of Indian Affairs from conducting the constitutional election.

Durkan's spokeswoman, Emily Langlie, said the matter is "under review" and declined further comment.

Tribal member Bernita Madera said she is one of many who support Kelly's efforts to remove people who never should have been granted tribal membership in the first place.

"It's about time," Madera said. "It's something that should have been done a long time ago."

Madera said she herself is part-Filipino, as are many Nooksacks, and she rejected the charge that the disenrollment move is based on anti-Filipino sentiment.

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.

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