In the most recent move against nearly 300 people facing disenrollment from the Nooksack Indian Tribe, tribal leadership has asked its court to block them from voting in an upcoming election.
Om Dec. 18, lawyers for Chairman Bob Kelly and the tribe filed a counterclaim with Nooksack Tribal Court in a year-and-a-half-old lawsuit originally filed by members of the affected families, who call themselves the “Nooksack 306.”
The claim argues that allowing those members of the 306 who are 18 or older to vote in the upcoming elections would cause irreparable injury to the tribe.
Four tribal council positions will soon go up for election, with a top-two primary in February and a general election in March.
The tribe’s lawyers argue that because the tribe is trying to disenroll the 306 on the basis of their alleged inability to prove their lineage, they should not be allowed to vote. They state the tribe has not yet been able to disenroll those members because of continued legal filings the 306 have made to block the action.
Members of the 306 have been able to vote in at least three elections since the tribe started looking at booting them from the membership rolls in 2012.
“They remain enrolled Nooksack tribal members, and under the Nooksack constitution, they remain entitled to vote,” said Gabe Galanda, lawyer for the 306.
One of those elections took place in June 2013, when the 2,000-member tribe voted to amend the portion of the tribe’s constitution that spells out who is eligible to be a member.
Before the election, which was conducted by mail and supervised by the Secretary of the Interior and Bureau of Indian Affairs, the tribe’s constitution provided that 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.
That change essentially paved the way for Kelly and supporters on the tribal council to craft a process to disenroll members of the 306.
Enrollment by phone
They proposed giving each person a 10-minute phone call to argue their case to the council, which would then decide their status.
But that process was put on hold in July 2015 while the BIA regional director reviewed the ordinance that spells out the process. The BIA review is required by the Nooksack constitution; otherwise it would not take place.
The regional director approved the ordinance, but the 306 appealed that decision to an internal appeals board, which decided the regional director had not done the required review and sent it back for evaluation.
On Nov. 17 the regional director upheld the approval, and on Nov. 23, the 306 again appealed to the Interior Board of Indian Appeals.
While the review process is completed at the BIA, the tribe is not allowed to start the disenrollment process under a current order from Nooksack Tribal Court.
The tribe’s lawyers argue in their counterclaim that the 306’s “frivolous appeal to the IBIA should not allow them to vote as Nooksack tribal members and attempt to control this Tribe.”
But Galanda said the new appeal asks the IBIA to comprehensively review the actual substance of the ordinance and whether it is legal.
“There’s a reason under federal and tribal law for doing that, to afford checks and balances,” Galanda said. “We are seeking a federal balance against the rampant illegality at Nooksack.”
Kelly did not return a call seeking comment.
Adding to all that, the tribe has asked the BIA to hold another secretarial election so the tribe’s voters can decide whether to eliminate the section of the tribal constitution that requires the BIA to review membership ordinances in the first place.
If that change were to be made soon, the IBIA could be stopped in its tracks and disenrollment proceedings potentially could start.
More election changes
In addition to the recent claim against the 306, the tribal council changed the election code on Dec. 18 so all ballots will be sent by mail, replacing the current system of in-person voting, said Michelle Roberts, one of those facing possible disenrollment.
“They appear awfully worried about their odds in the upcoming tribal election,” Galanda said. “They have filed a frivolous lawsuit to keep the eligible 213 of 306 disenrollees from voting.”
The new rule does not say where ballots will be counted, Roberts said.
“Before it used to be they would count the ballots in public and the community can go and witness that,” Roberts said. “There’s no provisions in this ordinance for any witnessing.”
Roberts said she wouldn’t have a problem with a mail-in ballot if the elections superintendent for the tribe wasn’t appointed by the council.
“If you hired an outside third party election administrator, then it would be fine,” she said. “But when everything is run through their enrollment department and somebody that’s appointed by the council ... I’m not accusing anybody of anything, but it’s just the perception of it all doesn’t make it right.”
Roberts said she didn’t know what kind of harm could be done to the tribe by letting the 306 use their right to vote.
“It’s difficult to think that we can harm the tribe in any way by voting,” Roberts said. “They use our numbers and everything for grants. They hand out money to different tribal members and exclude us. Now they want to exclude us from voting. I just don’t know how we can harm anything by voting.”