Embattled Nooksacks await ruling after latest arguments against disenrollment

THE BELLINGHAM HERALDJune 7, 2013 

DEMING - Behind a small cordon of tribal police, an orange mesh plastic fence and yellow "restricted area" tape, Nooksack Tribal Chief Judge Raquel Montoya-Lewis heard more arguments Thursday, June 6, on whether she should intervene in tribal leaders' effort to strip 306 people of their tribal membership.

The same security measures were in place for the first hearing on the matter May 16. Attorney Gabriel Galanda, representing some of the 306 facing loss of membership, spoke out against the measures at the start of Thursday's hearing. He said they were insulting to his clients.

"It paints a picture that my clients are somehow criminal and cannot be trusted to behave civilly or respectfully or peacefully," Galanda told Montoya-Lewis.

Montoya-Lewis told Galanda that she herself had asked for the police presence and the perimeter fencing.

"The court has concerns about safety for all of the parties ... including your clients," Montoya-Lewis said.

She also said she felt a need to provide for her own safety and that of court staff.

"We are here every day and without going any further, I think we have good reason to have concern for our own safety, and I asked for the security for that reason," Montoya-Lewis said.

The tribal membership at issue means a personal identity that the affected people say they cherish, but it also comes with valuable housing and medical benefits and treaty fishing rights.

The families now facing that loss apparently enrolled in the tribe in the mid-1980s, and their presence has been resented for years by other families. Some tribal leaders took steps to remove them from the tribe in 1996, but that effort was dropped.

Most of Thursday's hearing revolved around legal issues. Among other things, Galanda argued that Nooksack Chairman Bob Kelly and his five supporters on the tribal council had violated the tribe's constitution and bylaws by failing to hold monthly public meetings, and by ignoring a legally submitted recall election petition against Kelly that had been signed by about 170 tribe members.

Kelly and his five supporters on the council have kept two other council members out of deliberations, Galanda said. Those two, Michelle Roberts and Rudy St. Germain, are among the 306 facing loss of membership.

Galanda also asked the judge to intervene in an ongoing mail-in election to amend the tribal constitution. That election, supervised by the U.S. Bureau of Indian Affairs, is already underway. Kelly and his council supporters asked for the election to approve a constitutional change that would make it more difficult to qualify for tribal membership.

Galanda repeated his contention that his clients and the rest of the 306 facing removal from the rolls of the 2,000-member tribe are targets of "racial animus" because they are partly Filipino. Galanda has been trying to convince Montoya-Lewis that his clients are victims of racial discrimination, and that gives her legal grounds to intervene to stop tribal leaders from kicking them out.

But so far, Montoya-Lewis has accepted arguments from tribal attorney Tom Schlosser that the doctrine of tribal sovereign immunity protects the tribal council from the restraining order that Galanda is trying to get on behalf of his clients. As Schlosser portrays it, the law gives the tribal council wide powers to determine who qualifies for membership in the tribe.

On Thursday, Schlosser also attempted to rebut the contention that the move to strip the 306 of their membership is racially motivated. Schlosser said three of the council members who support Kelly and the membership purge are themselves part Filipino.

Montoya-Lewis told the attorneys it will probably take her a week or so to study their legal arguments and issue a ruling.

While the hearing was in progress, about 50 people gathered outside the police line for drumming and singing, most of them among the 306 whose tribal membership hangs in the balance.

One of them, Gilda Corpuz, held up a 1985 Bainbridge Island newspaper with a big picture of her mother, Mary Louise Rapada, who was being honored as mother of the year. Corpuz is one of Mary Louise Rapada's 13 children.

Corpuz said her mother, who died in 2007, was full-blooded Native American: half Nooksack and half Skway, a British Columbia tribe. Her mother married Honorato Rapada, a Filipino, after meeting him in the berry fields they both helped to pick.

Mary Louise Rapada, in turn, was the daughter of Annie George - the ancestor whose Nooksack identity is now being challenged because her name does not appear on a 1942 tribal census at the heart of the current membership dispute. But her descendants have documents that identify Annie's father, Matsqui George, as Nooksack.

George Adams is a tribal member whose own status is not at risk, but he is a supporter of the challenged families.

He said it doesn't seem fair to expel people who have been in the tribe for decades based on these kinds of documentation issues. As he sees it, the families in question would have to go back to the 19th century to demonstrate that despite Annie George's absence from a 1942 census, they have a valid claim to Nooksack lineage. Adams said that documentation is simply not available in many cases.

If the process of removing people from tribal membership is allowed to go forward, each of the 306 has a right to a hearing before the tribal council.

Galanda hopes to block that process with court filings in both the Deming court and the Nooksack Court of Appeals.

Reporters were kept out of Thursday's hearing, partly because the courtroom inside a small modular building off Deming Road has almost no space for spectators. Attorneys representing the tribal council also asked the judge to keep the press out.

In any event, the court made a digital video recording of the hearing available shortly after it was over.

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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