The Nooksack Indian Tribe has fired tribal court Judge Susan Alexander due to a ruling she made against the tribal council that is trying to disenroll members.
It is the latest in a series of what the judge referred to as “extreme tactics” as tribal leadership seeks to remove hundreds of tribal members from the tribe’s membership rolls.
The move came just more than a month after the tribe barred Galanda Broadman attorneys from being allowed to practice in its courts. The law firm has for three years represented more than 270 people facing disenrollment who refer to themselves as the Nooksack 306.
On March 21, Alexander ruled against Nooksack Chairman Bob Kelly, tribal council member Katherine Canete, who is also the tribe’s general manager, and other council members in a case involving the 306.
The order took the council to task, saying the tribe’s leadership had access to case law and tribal statutes, while the 306 and their attorneys needed permission from the same council members they were suing to see copies. They were not provided information about a recall process when it was requested.
In February, the Tribal Council also gave itself the ability to discipline attorneys and disbarred the attorneys representing their adversaries without providing them notice or the chance to defend themselves.
One reason cited for disbarring Galanda Broadman was that the firm didn’t have a business license from the tribe.
The court noted that multiple people tried to get a business license after learning of the requirement in late February, but were told there was no form, the form was in draft mode, or they received no reply. The order ruled that on or before April 1 the tribe’s attorneys should provide a copy of the business license procedures to the court.
Alexander was fired on March 28.
When asked why Alexander had been fired, Chairman Kelly said the tribe’s court is only a few years old, and the council has constantly been tweaking it to make it better.
“There are advocates within the judge community and there are movements within that community for changing how courts work in Indian Country,” Kelly said. “We felt like she was part of some movement towards changing tribal courts in a certain direction. I don’t claim to understand what it was, but that’s what I was told.”
When asked what specific change was advocated for, Kelly said, “The actual reason that we fired her was that she had waived the tribe’s sovereign immunity on an issue that wasn’t even before the court and without a hearing.”
Alexander responded to questions from The Bellingham Herald with a memo, noting she normally refrains from speaking to the media but needed to respond to Kelly’s accusations to “set the record straight.”
In response to Kelly’s reference to advocacy, Alexander wrote, “I have no idea what he is talking about.”
“I am not part of, nor have I ever been part of, in his words, ‘some movement towards changing tribal courts in a certain direction,’” Alexander wrote. “Mr. Kelly says, ‘I don’t claim to understand what it was but that’s what I was told.’ I would surely like to know: Told by whom? And where did that person get the information? The allegation is complete nonsense.”
As for the March 21 order she was fired over, it speaks for itself, Alexander wrote.
“I carefully set forth my reasoning for the decision,” Alexander wrote. “If I exceeded my authority, then that was a proper subject for reconsideration or for appeal.”
Alexander said that on March 22, she got a call from someone in the tribe’s human resources office saying she needed to do a “random” drug test in Bellingham immediately.
Alexander submitted to the urinalysis that day, and said shortly after she took the test, General Manager Canete, a defendant in the case, sent Alexander an email referencing the March 21 order.
“She said, ‘Your recent court order clearly undermines the authority of my position as the General Manager of the Nooksack Indian Tribe and seems to be out of character. I have decided to have you drug tested. You are not to return to work pending the test results,’” Alexander wrote to The Bellingham Herald. “In other words, the drug test was not ‘random,’ as represented earlier.”
The day after the drug test, Alexander said, Canete called her at home to talk about how Alexander had undermined her authority.
“Because the Nooksack Chief Judge answers to the General Manager from an administrative standpoint, I spoke with her on the subject generally, but I had to remind her several times of my ethical limitations as a judge,” Alexander said.
The test came as Alexander was drafting her final decision on a request to compel council elections that were supposed to have taken place in February and March.
The tribe was trying to prevent the 306 from voting in the 2016 elections, but on March 22, the tribe’s three-judge court of appeals upheld Alexander’s January decision that the tribe could not prevent the 306 from voting in the elections while they are still members of the tribe.
On March 28, Alexander was told to come to work, where she was fired “without cause,” which was reiterated in a letter from Canete, a copy of which Alexander provided to The Herald.
“The Tribe has elected to take a different direction with regards to your position and this termination is deemed ‘without cause,’” the letter from Canete reads.
Alexander wrote that, “Chairman Kelly’s remarks indicate he is searching for ‘cause’ after the fact.”
Status of the court
Kelly said Tribal Council has approved a contract with a temporary judge, and will advertise for Alexander’s position.
“This big long case over the disenrollment in many ways has been a blessing in terms of helping us identify ways to make the court better,” Kelly said. “We’re establishing a bunch of good case law. It’s positive in that respect.”
He said that it would be a process of elimination until the tribe finds “the right fit with a judge.”
“I hate that, but that appears to be how this is going to work,” Kelly said.