Nooksack tribal members facing disenrollment win records fight

The U.S. Department of the Interior must pay $22,000 in attorney fees to members of the Nooksack Indian Tribe following their fight to get public documents about a tribal election.

U.S. District Court Judge Richard Jones awarded the fees to Rudy St. Germain and Michelle Roberts as part of the final decision in their two-year case to get information under the Freedom of Information Act. The case was then dismissed Friday, Oct. 30.

In July 2013, St. Germain and Roberts requested a month’s worth of public documents from the Bureau of Indian Affairs pertaining to a June 2013 Nooksack election that changed a portion of the tribe’s constitution regarding enrollment.

St. Germain and Roberts are two members of the “Nooksack 306,” a group of three families that tribal leadership has been attempting to disenroll for nearly three years due to alleged inadequacies in their Nooksack ancestry. The records request was submitted by Gabe Galanda, the Seattle attorney representing the three families.

A day after receiving the request, the BIA replied and claimed that St. Germain and Roberts would need to pay $10,116 to get the 1,000 pages of information in their request, classifying the two as “commercial use” requesters who can be charged not only for copies but also for search and review time.

St. Germain and Roberts appealed the fees through the BIA’s administrative appeals process, then sued in U.S. District Court in Seattle.

In July 2015, two years after they first made their request, the BIA waived the fees and agreed to hand over the files.

Federal law allows someone who requested records under FOIA to get attorneys’ fees when they file a lawsuit and the government releases those records before the court orders them to do so, which is what allowed for the recent decision.

“We are thrilled that our Trustee has been held accountable for its failure to provide information that impacts our existence as enrolled tribal members,” Roberts said in a news release. “We are still baffled that the BIA would attempt to charge us $10,000 to receive those trust records — they should not have cost us a penny.”

Background

The records request was made as part of the three families’ fight to ensure they are treated legally as they face possible disenrollment from the Nooksack tribe.

In June 2013 the Secretary of the Interior and BIA supervised an election involving an amendment to the tribe’s constitution that made it more difficult for people to enroll or re-enroll in the 2,000-member tribe.

Before the election, which was conducted by mail, the tribe’s constitution provided that tribal membership was available to anyone who has at least one-fourth Indian blood, plus Nooksack ancestry “to any degree.”

The vote, with 377 in favor and 239 against, struck that provision, restricting tribal membership to those who got original allotments of tribal land and those whose names appear on a 1942 tribal census.

The change essentially gave tribal Chairman Bob Kelly and supporters on the tribal council the go-ahead to craft a process to disenroll members of the 306.

In July 2015, a proposed process to disenroll people by phone was put on hold while the BIA regional director reviews the ordinance spelling out the process, as required by Nooksack’s constitution.

St. Germain and Roberts requested the information about the June 2013 election because the Nooksack constitution requires the Interior secretary to review amendments to the constitution.

The secretary is required to call the election if it’s determined the amendment doesn’t contradict other parts of the Nooksack Constitution or violate federal law.

That means the secretary’s actions must follow protections under the U.S. Constitution, such as the guarantee for equal protection under the law, Galanda explained.

“Generally speaking, the U.S. Constitution’s Bill of Rights doesn’t apply to tribal governments, but it does apply to tribes and Indians when the federal government takes action,” Galanda said.

In this case, the federal action was administering the tribal member voting on the enrollment amendment.

The 306 believe the change to their constitution illegally targeted them, and requested the public documents under FOIA to check whether the secretary had determined the amendment did not violate federal law.

Once they finally received the request this summer, the documents confirmed what they suspected — the U.S. government didn’t do the required federal legal review of the constitutional amendment, Galanda said.

“The BIA never conducted a review,” Galanda said. “The whole thing was and is illegal.”

This story was originally published November 7, 2015 at 7:10 AM with the headline "Nooksack tribal members facing disenrollment win records fight."