The Nooksack Tribal Council created a Nooksack Tribal Supreme Court on Thursday, Oct. 6, according to court filings, and it appears Chairman Bob Kelly is the chief justice of the court.
When asked twice whether he was the chief justice, Kelly said he could not comment. Messages to the Nooksack Court office seeking the names of the justices were not immediately returned Wednesday, Oct. 12.
The justices’ signatures, including what appears to be Kelly’s, appear on an order dated Oct. 7.
The creation of the tribe’s Supreme Court comes after a series of apparent disagreements this year between the tribe’s leadership and court system in connection with cases involving roughly 300 people who have been facing disenrollment from the tribe since 2012. Those facing disenrollment call themselves the Nooksack 306.
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Tribe gets restraining order against appeals court
On Sept. 30, the tribe asked for a preliminary injunction against the Northwest Intertribal Court System in Nooksack Tribal Court. The NICS has provided a three-judge panel to make up the Nooksack Tribal Court of Appeals in recent years.
The tribe argues more than a dozen of the appeals panel’s decisions this year should be voided because the three judges had only been appointed to two-year terms, which expired in mid-2015, and that the appeals court system breached its contract with the tribe.
Nooksack Tribal Court Judge Pro Tempore Milton G. Rowland granted the tribe a temporary restraining order against the appeals court on Oct. 7.
While court orders “are not to be collaterally attacked lightly” nor “to be ignored lightly,” Rowland wrote in the order, “A person may disregard a ‘transparently invalid’ order of a United States District Court without fear of jail time, or heavy fines. We may have such a transparently invalid series of orders here.”
The appeals court defendants may be able to argue against that on Nov. 1, Rowland wrote in the order.
The new Supreme Court also accepted a motion from the tribe to review the appeals court decisions via expedited review and could make a decision on Monday, Oct. 17, after reviewing briefs without any oral argument.
Kelly did not answer emailed questions seeking comment on the cases or the tribe’s courts.
Reaction from 306
The 306’s attorneys, who were disbarred by the tribe earlier this year and have tried to get a hearing on their status since, said none of the decisions made by the council this year are official because tribal elections for four council positions were supposed to have taken place in February and March but were never held.
“Until they have an election, no decision by the so-called Tribal Council has any merit or will be given any credence,” attorney Gabe Galanda said in an email. “They can continue to play pretend tribal government but at this point, it will not have the desired effect of disenrolling my clients. They are not going anywhere, ever.”
Michelle Roberts, who is facing disenrollment and has served as a spokeswoman for the others involved, said she was shocked the council would name themselves judges.
“I guess you create a Supreme Court when you don’t like what the Court of Appeals does to you,” Roberts said. “Every time they do something it’s like ‘Oh, my God.’ It’s shocking. Now it’s like, I don’t think they can shock us anymore.”
Below are some of the things that have happened this year.
▪ In February, the Nooksack Tribal Council gave itself the ability to disbar attorneys from practicing in Nooksack Tribal Court, then disbarred Galanda, Anthony Broadman and Ryan Dreveskracht, who had been representing the 306 in cases where council members were named defendants.
▪ In March, the tribe fired Nooksack Tribal Court Judge Susan Alexander, after she issued a ruling against the tribal council, and as she was drafting a decision on a request to compel tribal council elections that were supposed to have taken place in February and March.
▪ In June, the Nooksack Tribal Court of Appeals ordered a court clerk for Nooksack Tribal Court to return paperwork filed by Galanda, Broadman and Dreveskracht to a file created in March, or face jail.
▪ In July, the appeals court held the tribe’s chief of police would be in contempt of court and could face up to $1,000 per day fines if he refused to jail the court clerk until she purged her contempt.
▪ In September, the appeals court ordered Galanda, Broadman and Dreveskracht reinstated and allowed to practice in Nooksack Tribal Court until they get a full and fair review of the tribe’s actions to disbar them and prevent them from practicing there.
▪ In September, the appeals court also ordered the tribe’s police chief to pay $2,790.15 for attorney fees, basically compensating Galanda and Dreveskracht for their time spent researching for one of the motions they made in the case.
▪ In September, the appeals court also held that members facing disenrollment who applied for protection could be protected from disenrollment action until a judge is appointed to preside over the case in the lower court.
Galanda and the other attorneys filed paperwork in Whatcom County Superior Court Wednesday to collect the attorney fees awarded to them in September.
Roberts said her gut response was that the tribe’s membership would need to step in, because the new court would be able to hear other people’s cases, too.
“They can’t like this,” Roberts said. “I think the membership needs to do something to step in and stop it.”
The 306 have asked the Bureau of Indian Affairs to step in many times, sending the agency emails, phone messages, and asking for help in person, Roberts said.
“We have pleaded with them,” she said. “They keep saying their hands are tied.”
Federally recognized tribes such as Nooksack have a government-to-government relationship with the U.S., are eligible for funding from the BIA, and retain their tribal sovereignty.
Tribes have the right “to form their own governments; to make and enforce laws, both civil and criminal; to tax; to establish and determine membership (i.e., tribal citizenship); to license and regulate activities within their jurisdiction; to zone; and to exclude persons from tribal lands,” according to the BIA.