A Nooksack Tribal Court judge largely sided with people facing disenrollment Tuesday by denying the tribe’s request to prevent those members from voting in this year’s council elections.
In a Tuesday, Jan. 26, order, Nooksack Tribal Court Judge Susan Alexander wrote that the tribe could not prevent members of three families facing disenrollment, who call themselves the “Nooksack 306,” from voting.
On Dec. 18, lawyers for tribal chairman Bob Kelly and the tribe filed a counterclaim with the court in a year-and-a-half-old lawsuit originally filed by members of the affected families.
The claim argued that allowing those members of the 306 who are 18 or older to vote in upcoming elections would cause irreparable injury to the tribe.
Gabe Galanda, lawyer for the 306, argued at the time that they are still enrolled members with the right to vote, and that the council members appeared “awfully worried about their odds in the upcoming tribal election.”
The two sides went before Alexander on Jan. 14 to discuss the tribe’s request.
“It appears to the Court that the real harm Defendants fear is the outcome of the 2016 elections. Defendants’ counsel made statements to that effect during oral argument,” Alexander wrote in her order. “Moreover, as Defendants freely acknowledge, Plaintiffs have been allowed to vote previously, during the pendency of disenrollment proceedings.”
Eligible members of the 306 were allowed to vote in the tribe’s 2014 council elections, even though they had been facing disenrollment since late 2012. The tribe has about 2,000 members.
“It appears Defendants were not worried about the outcome of the 2014 elections,” Alexander wrote. “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.”
Four tribal council positions are supposed to be up for election, with a primary in February and a general election in March, as spelled out in the tribe’s election code.
But the tribe did not hire an elections supervisor as required in early December, did not send notices of the scheduled elections by late December, and has not provided packets to people who wish to file as candidates.
Given the intricate chain of events in the Election Code, time requirements and deadlines, it is difficult to imagine how voting will take place on schedule.
Susan Alexander, chief judge, Nooksack Tribal Court
Vice-chairman Rick George, treasurer Agripina Smith, and council members Katherine Canete and Lona Johnson are in the four seats up for election.
Alexander’s ruling notes that delaying the elections could pose other problems: The four positions have four-year terms that “presumably, expire sometime in March 2016.”
The Nooksack constitution provides that “in the event any elective tribal office becomes vacant between elections, the tribal chairman, subject to the approval of the tribal council, shall appoint an eligible tribal member to fill the vacant position until the position term.”
“Questions abound as to the extent of the chairman’s authority, when that authority may be exercised, and whether the chairman will have an agreeable Council at that time,” Alexander wrote.
The incumbents will stay in their seats until the election can take place, unless the court says otherwise, Kelly said.
He said similar delays of tribal elections had taken place before, and had been upheld by Nooksack Tribal Court.
The tribe likely will appeal the Tuesday decision, Kelly said.
It’s not yet clear what will happen with the elections, as Alexander’s order raised questions about the process but did not appear to rule on the election itself.
Before the Jan. 14 hearing, the tribe’s lawyers suggested provisional ballots as an alternative, with votes cast by the 306 counted only if they remain enrolled after their disenrollment hearings.
As an alternative to that, the tribe asked the court to suspend the 2016 elections until disenrollment could take place.
Alexander wrote a delay while the 306’s appeal of a disenrollment process is heard by a federal appeals board could mean postponing the 2016 elections until as late as 2018.
The first public announcement of the election delay apparently came at a Jan. 5 tribal council meeting.
I listen to my people. This is what my people want. They want their tribal council and their chairman to delay this election until we can get them disenrolled.
Bob Kelly, chairman of the Nooksack Indian Tribe
“I was prepared to argue on a matter of how they went about preparing the election ordinance,” said George Adams, a tribal member and supporter of the 306 who was present at the Jan. 5 meeting. “Then they said, ‘Oh, by the way, we’re not going to have elections.’ Everybody’s mouth dropped, including mine.”
Kelly said in an interview Friday, Jan. 22, that the elections had not been canceled, but postponed, because the tribe was waiting for the court to weigh in on the voting issue.
“It’s just been delayed because of the litigation,” Kelly said. “If we were to conduct the elections as scheduled next month, and they had their hearings and were disenrolled shortly thereafter, we’d have an election that was tainted by folks that shouldn’t have voted in it.”
As of Jan. 14, more than half the time normally scheduled for the election process had elapsed, with the Election Superintendent to be appointed Dec. 3, and the primary to be held Feb. 20, Alexander’s order states.
“Given the intricate chain of events in the Election Code, time requirements and deadlines, it is difficult to imagine how voting will take place on schedule,” she wrote.
Others call for election
On Thursday, Jan. 21, 50 people who are not facing disenrollment joined with the 306 in a court filing to compel the council to hold the election as required under the tribe’s constitution.
“They don’t necessarily need to be 306 supporters to want an election,” said Michelle Roberts, one of those who could be disenrolled. “Some of these people wanted to actually run for council.”
The first listed names in the new filing are those of Kelly’s sons, Peter and Brian.
In a Jan. 22 interview, Kelly questioned whether all of the new plaintiffs had actually given consent to join the complaint.
Galanda said all 50 had signed their consent.
“There is significant support for delaying this election amongst those that are not up for disenrollment,” Kelly said. “I listen to my people. This is what my people want. They want their tribal council and their chairman to delay this election until we can get them disenrolled.”
Kelly and his supporters say the Rapada, Rabang, and Narte-Gladstone families, descended from Annie George, were erroneously enrolled in the 1980s.
Current Nooksack law limits tribal membership to descendants of those who got original allotments of tribal land and those whose names appear on a 1942 tribal census. Tribal officials say George does not meet those qualifications, and the 306 are members of a Canadian tribe.
A process to disenroll each person after a 10-minute phone call with the council was put on hold in July 2015 while the Bureau of Indian Affairs regional director reviewed the ordinance spelling out that disenrollment procedure.
The BIA review is required by the Nooksack constitution; otherwise it would not take place.
The director approved the ordinance, and the 306 appealed that decision to an internal appeals board, which decided the director had not done the required review and sent it back for re-evaluation.
The regional director upheld the approval on Nov. 17, and the 306 again appealed to the Interior Board of Indian appeals on Nov. 23.
The tribe’s lawyers argued in their December 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.”
Galanda said the new appeal asks the IBIA to comprehensively review the actual substance of the ordinance and whether it is legal.
Alexander said in her Jan. 26 order that “although lengthy, the current appeal to the IBIA does not strike the Court as frivolous.”
Kelly said he had not expected the IBIA to pick up and hear the second appeal, and that it only served to delay the hearings.
“It doesn’t really make any sense,” Kelly said. “Any way they slice this, they don’t have a chance of keeping their disenrollment hearings from taking place.”
The tribe has requested another election to let the tribe’s voters decide whether to strike the provision in their constitution that requires BIA review of enrollment ordinances.