Challenged Nooksack tribal members win small victory but get no cash

THE BELLINGHAM HERALDDecember 27, 2013 

BELLINGHAM - The 306 people fighting to stay on the Nooksack Indian Tribe's membership rolls won a rare legal victory recently when Tribal Court Chief Judge Raquel Montoya-Lewis ruled that tribal leaders had violated their rights by denying them $250-per-person Christmas checks that were mailed to everyone else in the 2,000-member tribe.

But the ruling didn't put any extra presents under anyone's tree. While Montoya-Lewis ruled that it was illegal to deny the 306 the same treatment as other tribe members before their legal status is determined, she also decided that she had no legal authority to order Chairman Bob Kelly and his supporters on the tribal council to issue checks to anyone.

The episode was one more example of the difficulties that the 306 have faced during the past year, as they try to get courts to block the move to strip them of tribal membership under a process known as disenrollment.

Seattle attorney Gabriel Galanda has filed a number of legal actions on their behalf in Nooksack Tribal Court, but in a series of rulings, Montoya-Lewis has affirmed that the tribal council has sweeping authority to determine who qualifies for tribal membership - and who does not.

Galanda is challenging those rulings before the Nooksack Tribal Court of Appeals, which has ordered a halt to the disenrollment process while the legal issues are under review. As 2013 drew to a close, there was no word on how quickly the appeals court might rule.

Since the tribal council began the move toward disenrollment in December 2012, the affected tribe members contend that 13 among them have been fired from jobs with the tribe, and others have been denied tribal housing assistance, even though they have not yet been removed from tribal membership rolls.

Also affected are two elected members of the tribal council, Michelle Roberts and Rudy St. Germain, who are themselves facing disenrollment. In court documents, the two say they have been systematically excluded from nearly all participation in tribal government since the move to disenroll began.

The legal dispute affects members of the Rapada, Rabang and Narte-Gladstone families descended from Annie George, who died in 1949.

Current Nooksack law limits tribal membership to descendants of those who got original allotments of tribal land and those whose names appear on a 1942 tribal census. Tribal officials say George does not meet those qualifications, and her descendants were erroneously enrolled in the tribe in the 1980s.

Tribal council minutes, introduced as evidence in tribal court, indicate that the alleged enrollment error was discovered in December 2012, although still other court exhibits indicate that the status of Annie George's descendants also had been questioned in the mid-1990s.

Years before the current disenrollment furor erupted, members of other families were complaining that the Rabangs and their allies had taken over the tribal government, using a winner-take-all single-round election system that enabled council members to be elected without a majority of votes. But that system was changed before the 2010 elections, enabling Kelly to defeat former chairman Narz Rabang Cunanan by a majority vote in a runoff election.

Tribal members who support the disenrollment of the three families contend that the Annie George descendants are actually members of a Canadian tribe who have been improperly sharing in Nooksack housing, medical and fishing rights benefits for years.

Galanda has produced legal documents and anthropologists' opinions attempting to demonstrate that Annie George was a Nooksack, but Judge Montoya-Lewis has ruled that such evidence is beside the point. As a sovereign power, Kelly and the majority of tribal council members who support him have the right to use the census as the litmus test for tribal membership, other evidence notwithstanding, the judge has ruled.

In making that ruling, Montoya-Lewis relied on a 1978 U.S. Supreme Court case that upheld the power of tribal governments to set tribal membership rules as they see fit, regardless of seeming conflicts with civil rights laws.

Montoya-Lewis also has made it clear that the issue has been a difficult one for her.

"The court sees no 'winners' in these matters," she wrote in a Dec. 11, 2013, order. "Rather, the Court views this Tribe and this community as going through a serious crisis. ... The Court sits in the position of having to shepherd the legal issues through this Court deliberatively yet efficiently while recognizing the very real impacts these proceedings have on the proposed disenrollees and their families, as well as the community of the Tribe as a whole."

Although his legal arguments on behalf of the 306 have gotten little traction in Montoya-Lewis' courtroom, Galanda said he remains hopeful that the Nooksack Court of Appeals will take a different view and block, or at least slow down, the disenrollment process. He noted that the appeals court did agree to consider his arguments, and to suspend disenrollment while those arguments are under review.

If his clients get no relief in tribal court, Galanda said it is likely he will pursue civil rights claims in federal court. He also noted that his clients have asked federal agencies to intervene on their behalf, although U.S. Interior Secretary Sally Jewell's office has yet to acknowledge receipt of a petition that the three affected families and their supporters sent to her in October 2013.

"There is no end to this controversy in sight," Galanda said in an email. "I would not be surprised if the dispute lasts until this time next year. The only real question is what will be left of the Nooksack Tribe when all is said and done."

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.

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