In an “exceedingly rare” situation, the federal Bureau of Indian Affairs will not recognize any actions taken by the Nooksack Indian Tribe after late March 2016 because the tribal council hasn’t had a quorum since then.
Elections to fill four Nooksack Tribal Council positions were supposed to be held in February and March, as required by the Nooksack constitution and bylaws, but weren’t.
That fact was noted by Lawrence Roberts, principal deputy assistant secretary for Indian Affairs, in a letter to Nooksack Chairman Bob Kelly Jr. stamped Oct. 17, 2016.
“In rare situations where a tribal council does not maintain a quorum to take action pursuant to the Tribe’s Constitution, the Department of the Interior (Department) does not recognize actions taken by the Tribe,” the letter states. “This is one of those exceedingly rare situations. Accordingly, I am writing to inform you and the remaining Council members that the Department will only recognize those actions taken by the Council prior to March 24, 2016, when a quorum existed, and will not recognize any actions taken since that time because of the lack of a quorum.”
There are more than 560 federally-recognized tribes, according to the BIA.
“Generally this type of action is taken with less than 1% of the tribes annually,” Nedra Darling, spokeswoman for the office of the assistant secretary for Indian Affairs, said in an email. “These situations rarely occur. Recently, we had a situation in the Rocky Mountain region that was similar in that there was not an elected quorum to conduct business.”
Roberts also stated that the BIA will examine its contracts with the tribe to ensure compliance with contract provisions.
“Under Federal law, the United States has a duty to ensure that tribal trust funds, Federal funds for the benefit of the Tribe, and our day-to-day government-to-government relationship is with a full quorum of the Council as plainly stated in the Tribe’s Constitution and Bylaws,” the letter states.
If contract provisions are not being complied with, the “BIA will take action to reassume the particular Federal services, in whole or in part, and provide direct services to currently enrolled tribal members.”
If that happens, “BIA would provide the services to all enrolled tribal citizens,” Darling wrote in an email.
In December 2015, lawyers for Kelly and the tribe filed a counterclaim in Nooksack Tribal Court in an attempt to prevent some of the roughly 300 people who are facing disenrollment from the tribe from voting in the upcoming elections.
The claim argued that allowing members of the affected families, who refer to themselves as the “Nooksack 306,” who are 18 or older to vote in the upcoming elections would cause irreparable injury to the tribe.
Eligible members from those families were allowed to vote in the tribe’s 2014 elections, even though they had been facing disenrollment since 2012. The tribe has about 2,000 members.
In January, then-Nooksack Tribal Court Judge Susan Alexander said the tribe could not prevent the 306 from voting in the elections.
“It appears to the Court that the real harm Defendants fear is the outcome of the 2016 elections,” Alexander wrote in her order. “It appears Defendants were not worried about the outcome of the 2014 elections. Now, based upon the particular open seats and the incumbents who occupy those seats, Defendants are worried, and they push the envelope of irreparable harm.”
On March 22, the tribe’s three-judge court of appeals upheld Alexander’s decision that the tribe could not prevent the 306 from voting.
Alexander was fired on March 28. She had been drafting her final decision on a request to compel the council elections that had not yet been held.
In the Oct. 17 letter, Roberts wrote that the BIA will not recognize any more actions by the tribe until elections are held and the seats are filled.
“This includes recent actions by you and two Council members to enjoin the authority of the Northwest Intertribal Court System,” Roberts wrote to Kelly.
On Sept. 30 the tribe asked for a preliminary injunction against the appeals court, arguing a series of the panel’s decisions this year should be voided because the judges had only been appointed to two-year terms, which would have expired in mid-2015. A temporary restraining order against the appeals court was granted on Oct. 7 by Nooksack Tribal Court Judge Pro Tempore Milton G. Rowland.
But because the NICS was given approval to adjudicate hearings before the four council terms expired in March, the BIA “will continue to recognize judicial decisions issued by the NICS.”
The letter states the BIA is ready to provide technical assistance to the tribe to help carry out the elections open to all members 18 and older, regardless of whether they live in Whatcom County. It is up to the tribe to hold the election.
“Please be advised that elections inconsistent with Nooksack law will not be recognized by the Department,” Roberts wrote.
The Bellingham Herald emailed a digital copy of the letter to Kelly, along with questions, on Monday afternoon, Oct. 17, asking for comment by 4 p.m. Tuesday, Oct. 18.
Kelly wrote back Monday evening to say the tribe had not yet received a copy of the letter from the BIA.
“We will have no extended comment until the letter has been officially received and discussed by (sic) internally by the elected officials of the Nooksack Tribe,” Kelly wrote.
Attorney Gabe Galanda, whose firm Galanda Broadman has been representing members fighting disenrollment, said the Department of the Interior had basically “hit the reset button.”
“The Kelly Faction can no longer run and hide from Tribal Council elections,” Galanda wrote, referring to Kelly and his supporters. “Nor can they rig or gerrymander the voting.”