Federal attorneys: ‘Kelly Faction’ not legitimate government for Nooksack Indian Tribe

In a sharply worded rebuke, the federal government said the Nooksack Indian Tribe’s lawsuit for nearly $13.7 million in state and federal funds should be dismissed because the council that filed it was an “illegitimate group” and not a tribal government that should be recognized by the U.S.

The brief filed this week in U.S. District Court in Seattle is the latest salvo in an ongoing legal fight over the effort, under Chairman Bob Kelly, to remove 289 people from the membership rolls because, the council said, they didn’t have strong enough blood ties to the tribe and had been erroneously enrolled.

“This lawsuit was filed under false pretenses. Although the plaintiff is identified in the caption as ‘The Nooksack Indian Tribe,’ the Nooksack Indian Tribe is not truly before the Court,” attorneys for the federal government wrote in response to the lawsuit against the Department of the Interior and its Bureau of Indian Affairs.

As it has previously, the federal government said it won’t accept actions taken by the tribe after March 24, 2016, because no election was held to replace four expiring council seats, meaning decisions were made without a quorum and therefore weren’t legitimate.

“Instead, since March 24, 2016, the Tribe has been run by a group of individuals, comprised mostly of unelected ‘councilmembers,’ who have no legitimate claim to be the governing body of the Tribe ... This unelected, unrecognized, and illegitimate group, hereafter referred to as ‘the Kelly Faction,’ and not the Tribe, stands before this Court as plaintiff and invokes its equitable power,” the federal government stated in its brief.

It further characterized the conduct as “abusive,” saying the “Kelly Faction” pushed out the nearly 300 using a “sham hearing process while also systematically depriving them of the means to challenge the actions of the Kelly Faction in the tribal judicial system.”

The federal government was wrong, Kelly argued in a response filed Friday with the court in Seattle.

Nooksack law allows council members with expiring terms to remain in their positions and, regardless, the council gave him authority in 2012 to act on its behalf, including in the filing of lawsuits, he said.

The tribe announced on Nov. 22, 2016, that it had disenrolled nearly 300 members, which barred them from receiving federal benefits that included housing, health care and Temporary Assistance for Needy Families. They also are facing attempts to evict from their homes on tribal trust land.

Elections were held on Jan. 21, Kelly said, adding they were postponed because of the “extraordinary circumstances related to the disenrollment” and “threats of violence associated with disenrollment protests.”

The tribe has the right of self-government to hold its election without federal interference, the tribe countered Friday, so the court should reject the federal government’s “unsupported” allegation that the Jan. 21 election was invalid.

Therefore, the tribe should receive $13.7 million that’s being withheld and that the tribe needs for medical services, salmon restoration and affordable homes, among other needs, the tribe stated.

The matter is scheduled to go before the U.S. District Court in Seattle on April 28.

The BIA has said it will directly provide services to tribal members, including those that were pushed out, if the tribe didn’t hold legitimate elections by March 31. It has indicated it won’t accept the Jan. 21 election because the nearly 300 who were kicked out weren’t allowed to vote.

This story was originally published April 7, 2017 at 6:47 PM with the headline "Federal attorneys: ‘Kelly Faction’ not legitimate government for Nooksack Indian Tribe."