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Judges threaten to jail Nooksack court clerk in disenrollment cases

George Adams, right, sings with a crowd as they await a decision on whether the disenrollment process of 306 members of the Nooksack tribe would be allowed to proceed May 16, 2013, in front of the Nooksack Tribal Court in Deming.
George Adams, right, sings with a crowd as they await a decision on whether the disenrollment process of 306 members of the Nooksack tribe would be allowed to proceed May 16, 2013, in front of the Nooksack Tribal Court in Deming. THE BELLINGHAM HERALD

Attorneys representing roughly 300 people who face disenrollment from the Nooksack Indian Tribe received a major victoryas the tribe’s court of appeals ordered jail time for a court clerk if she does not file their paperwork.

Nooksack Tribal Court Clerk Betty Leathers has until Wednesday, July 6, to return paperwork that was filed by attorneys Gabriel Galanda, Anthony Broadman, and Ryan Dreveskracht to a file that was created in March.

Otherwise, the three-judge panel on the Nooksack Tribal Court of Appeals has ordered the Nooksack police chief to arrest and hold her in jail in contempt of court until she does so.

The June 28, order came after the appeals court already had warned Leathers she could face jail time if she did not give them an explanation or file the paperwork from the three attorneys and others in the Galanda Broadman firm, which has been representing roughly 300 members who could be removed from the Nooksack tribe’s membership rolls.

The filing in question involves the Nooksack Tribal Council’s February decision to disbar or block the three attorneys from practicing in Nooksack Tribal Court without giving them the chance to defend themselves. The three were trying to set a hearing to argue their case and receive due process.

The family does not gloat in somebody else having that pressure put on them. ...We don’t want anybody to go to jail, we don’t want anybody to get hurt, we don’t want any of that stuff.

Michelle Roberts, one of those facing disenrollment, on the fact that the court clerk could face jail

Also on June 28, in a separate case, the panel ordered the tribe to either hire a judge to get the lower court functioning again, or halt disenrollment proceedings in the meantime.

The tribe fired tribal court judge Susan Alexander after she issued a ruling against the tribal council in March, and the 306 have not been able to move forward with their case since that time.

The appellate court panel for these two cases is made up of two people who serve as judges for other tribes in Washington state and a law professor.

Galanda said the rulings were gratifying.

“We and our clients have been in purgatory for over four months,” Galanda wrote in an email. “It is assuring to know that three judges from beyond Deming see the injustice we have all suffered for what it is. They plainly see the subversion of justice caused by Nooksack politicians, lawyers, and court staff. We will continue to expose that injustice in every way possible.”

That said, Michelle Roberts, one of those facing disenrollment, said she and her family thought it was unfortunate that the court clerks had been put in the middle of everything.

“They shouldn’t have to be put in that position,” Roberts said. “The family does not gloat in somebody else having that pressure put on them. ... We don’t want anybody to go to jail, we don’t want anybody to get hurt, we don’t want any of that stuff.”

Nooksack Chairman Bob Kelly said the recent orders were invalid.

“The Constitution of the Nooksack Tribe differs from the Constitution of the United States in that there is not a separation of powers within the Tribal government,” Kelly wrote in an email. “The Nooksack Court of Appeals was established through legislation by the Tribal council and is done so thorugh a contract with a pool of lawyers from the Northwest Intertribal Court System to provide court services. The rules and procedures for the court are promulgated by the Tribal Council and they have the force and effect of law.”

‘Appearance of interfering’

Most of the council members who voted to disbar the Galanda Broadman attorneys are named defendants in the cases that the firm had been working on with the group of potential disenrollees, who call themselves the Nooksack 306.

Although Leathers signed and dated their filings, and assigned them case numbers on March 24, the three attorneys got an unsigned letter April 1 telling them their filed documents had been rejected.

“Somewhat suspiciously, it is as if whoever is responsible for the letter is attempting to cloak their identity,” the appellate panel said of the unsigned letter.

The letter gave three reasons why the filings had been rejected, but the appeals court ruled that none of those “stand a moment’s scrutiny.”

The perversion of justice that this represents should be patently obvious even to those untrained in the law.

Nooksack Tribal Court of Appeals, in a June 28 decision

. “That a court clerk or any other administrative personnel of the Tribal court could so subvert the judicial process of the Court that they are charged with protecting and facilitating is mind-boggling,” the panel wrote.

For all they know, the judges wrote, the clerk could have consulted the attorney for defendants in a lawsuit to ask whether their adversaries should be allowed to file a complaint.

“The perversion of justice that this represents should be patently obvious even to those untrained in the law,” they wrote.

The court initially gave Leathers until June 3 to return the documents to their file or tell the court why she shouldn’t do so.

After that date came and went without a response, the June 28 ruling explains, the judges received an unsolicited letter from Chairman Kelly.

The court was troubled, the order states, by two passages in Kelly’s letter, referring to the court’s two previous orders requiring the court clerk to accept and file the paperwork or show why she shouldn’t have to.

Kelly stated the court would not do either thing, and that tribal court clerks would not be accepting the Galanda Broadman documents for filing.

“This Court fears that these two statements could be read to suggesst (sic) that the Chairman and the Tribal Council are attempting to improperly influence the course of a lawsuit in which they have an interest and that was properly filed and is currently pending before the Nooksack Tribal Court,” the decision states.

Leathers did not respond to requests for comment for this story.

The panel proceeded to give Kelly the benefit of the doubt, and point out that appearing to interfere with the independence of the court could have negative ramifications on the sovereignty of tribes around the country.

“While this Court is certain that the Chairman would not deliberately coerce or intimidate the Court Clerks into violating the lawful orders of this Court, it fears that others may not be so generous,” the panel continues. “To give the appearance of interfering with the proper operation of the Nooksack Tribe’s justice system undermines the sovereignty of all tribes across the nation because it suggests to those who would curtail and thwart the progress we have made as Indians over the last forty years that we are still not able to operate an independent judiciary.”

In an email, Kelly said, “The Northwest Intertribal Court System is attacking the sovereignty of the Nooksack Tribe with their paternalistic attempts at creating a second independent branch of government not provided for in the Nooksack Constitution.”

He said the absence of a separation of powers in the tribe’s constitution does not provide the Northwest Intertribal Court System “with the authorization to disregard legislation created by the governing body of a sovereign like the Nooksack Tribe.”

Roberts said she thought the court was being “a bit nice” in saying they didn’t think Kelly meant to interfere with the court system.

“We’re happy this happened, that they’ve seen what they’re doing and understand the process was corrupt,” Roberts said. “I thought that was kind of a nice comment on their part for him.”

This story was updated at 9:50 a.m. Tuesday, July 5, 2016, to add comments received from Chairman Bob Kelly.

Samantha Wohlfeil: 360-715-2274, @SAWohlfeil

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