Embattled members of Nooksack tribe win small victory in expulsion fight

THE BELLINGHAM HERALDOctober 18, 2013 

DEMING - Nooksack Tribal Court Chief Judge Raquel Montoya-Lewis has ruled that 306 people facing expulsion from tribal membership rolls are entitled to legal representation when they go before the tribal council, but she has rejected other legal efforts to block the expulsion process.

Seattle attorney Gabriel Galanda, representing the embattled faction of the 2,000-member Nooksack Indian Tribe, has raised a variety of arguments challenging the legality of the expulsion drive spearheaded by Tribal Chairman Bob Kelly and his supporters on the tribal council. But the tribe's attorneys have argued that the tribe, as a sovereign government, is legally immune from lawsuits in the case, and Montoya-Lewis has mostly agreed.

In her Oct. 17, 2013, ruling dismissing nearly all of Galanda's arguments, Montoya-Lewis cited a 1978 U.S. Supreme Court ruling: Santa Clara Pueblo v. Martinez. In that case, a majority of justices agreed that tribal councils have broad powers to make and enforce rules governing tribal membership.

"Tribal membership rules vary widely from tribe to tribe, but it's undisputed that the authority to make those rules lies at the heart of tribal governance and sovereignty," Montoya-Lewis wrote.

Galanda had argued that his clients were not getting their constitutional right to due process before they face loss of tribal membership that includes valuable fishing rights and tribal services, as well as emotional significance.

While Montoya-Lewis noted the lack of clear legal precedent determining how much "due process" tribal members must get before losing their membership, she ruled that the tribal council's proposal to give each challenged member a 10-minute telephone hearing was sufficient - as long as the members are allowed to have someone to represent them in that hearing. The tribal council had earlier told the 306 they would not be allowed to have an attorney assist them.

Otherwise, Montoya-Lewis wrote, a 10-minute telephone conference should be sufficient to determine the issue at hand. Tribal officials have presented evidence that the 306 do not descend from anyone listed on a 1942 tribal census that is the key factor for valid tribal ancestry under Nooksack membership rules.

All 306 trace their ancestry to the late Annie George. They argue that she was a Nooksack left off the census by mistake, and they have presented other legal documents and anthropologists' opinions attempting to prove that.

In perhaps the most alarming development for the 306, Montoya-Lewis wrote that the accuracy of the census doesn't matter: The tribal council has the legal right to use that census, however flawed, as the condition for membership today.

"Some tribes no longer rely on census data for enrollment and rely instead on DNA evidence," the judge wrote. "Some tribes rely entirely on census data and family trees, even when that census data was never intended for such purposes. Any way a tribe determines membership will result in what some will determine to be unfair and what others will determine to be protective of a tribe's interests."

In a final blow to the Nooksacks fighting to stay in the tribe, Montoya-Lewis rejected a legal challenge to a tribal council decision denying payment of annual back-to-school stipends of $275 to children who face eventual expulsion from the tribe.

Montoya called that decision "distasteful," but she said the tribal council had the legal authority to make it.

Similar legal dramas are becoming common in tribal communities across the country, said David Wilkins, professor of American Indian Studies at the University of Minnesota. Wilkins said the expulsions got their legal impetus from the Santa Clara Pueblo case. Many tribal councils realized the case gave them almost unlimited power to restrict membership, and they could use their power to oust people for a variety of political, personal and financial reasons.

Tribal expulsions, and the process leading up to them, may seem unfair, Wilkins said, but those affected are barred from getting help from the legal system outside the reservation.

In the 1978 Santa Clara Pueblo case, two women challenged a tribal rule that accepted the membership of children of male tribe members who married outside the tribe. Children of female members who did the same were not eligible. Despite the obvious sex discrimination of such a rule, Justice Thurgood Marshall's majority opinion held that the tribe had the authority to make that rule, and the Indian Civil Rights Act did not give the courts authority to wade in.

"As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority," Marshall wrote.

The lone dissenting justice, Byron White, objected that the effect of the court's ruling was to deny tribal members equal protection under the laws: They were effectively blocked from making civil rights claims against their own governments in federal courts.

That is where things stand today for the 306 Nooksacks and members of dozens of other tribes facing expulsions, Wilkins said.

"They are in a legal wonderland, and I find that incredibly discouraging as a Native American political scientist," Wilkins said.

He fears that if tribal leaders get too reckless in their use of sovereign powers against their own people, the principle of tribal sovereignty itself could someday be weakened by new court rulings or acts of Congress.

Robert Anderson, director of the Native American Law Center at the University of Washington, thinks that is unlikely. He doesn't see any political momentum to prompt Congressional action, and courts seem content to point to the 1978 Supreme Court ruling and stay out of tribal membership disputes. He doesn't think it likely that any of that will change in the Nooksack case.

"There have been other attempts to try to circumvent Santa Clara Pueblo," Anderson said. "The courts have been pretty firmly rejecting the notion that the Indian Civil Rights Act has implied federal court review in it."

That likely leaves the fate of the 306 Nooksacks to be decided by tribal courts. As of now, the expulsion process is on hold pending review by the tribal court of appeals.

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

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