When the Nooksack Tribal Court of Appeals ruled a court clerk was in contempt of court and should be sent to jail until she filed paperwork in a case involving attorneys fighting against disenrollment from the tribe, Nooksack Chairman Bob Kelly said the order was invalid.
Kelly said the tribe’s constitution does not provide for a separation of powers.
“There is only one branch of government and control of the legislative, executive, and judicial functions of the Tribal government fall under the control of the Nooksack Tribal Council,” Kelly wrote in an email July 2. “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. The three recent orders issued by the Nooksack Court of Appeals are invalid because the court is refusing to follow existing case law, and the rules procedures (sic) of the Nooksack court system that were legislated by the Tribal council.”
Now, the three-judge appeals court panel, contracted through a pool of lawyers from the Northwest Intertribal Court System, has said it will fine the tribe’s police chief $1,000 per day if he does not hold the clerk in jail until she purges her contempt.
If Nooksack Court of Appeals orders are simply ignored by the Tribe’s government officials the Nooksack government ceases to operate under the rule of law and as a result it forfeits (1) its claim to equal status with other sovereign tribes (2) any right to demand other jurisdictions respect Nooksack Tribal Court orders or that other sovereign governments deal with it government to government, and (3) its legal authority to govern the Tribe.
Nooksack Tribal Court of Appeals panel in a Monday, July 25, 2016 order
When asked for comment on this story Friday, July 29, Kelly said his previously emailed statement still applies.
In his July 2 email, Kelly 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, nor does it authorize them to unilaterally create a second independent branch of government within the Nooksack Tribe.”
The tribe’s court clerk was supposed to return paperwork from attorneys Gabriel Galanda, Anthony Broadman, and Ryan Dreveskracht, to a file created in March. The filing 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.
Until that February move by tribal council, the three and others in the Galanda Broadman firm had been representing roughly 300 people who face disenrollment from the tribe, who call themselves the Nooksack 306. 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 306.
Though the appeals court panel apparently saw a copy of The Bellingham Herald’s July 5 story that included Kelly’s statement that their ruling was invalid, in the recent ruling affecting the police chief issued Monday, July 25, the panel wrote it did not know if Kelly made those statements, and if he did make them, in what context they were made.
“However, we take this opportunity to remind the Tribe’s officials that the mechanism for challenging tribal court orders is through the Tribe’s legal processes as mandated by its constitution,” the panel wrote. “If Nooksack Court of Appeals orders are simply ignored by the Tribe’s government officials the Nooksack government ceases to operate under the rule of law and as a result it forfeits (1) its claim to equal status with other sovereign tribes (2) any right to demand other jurisdictions respect Nooksack Tribal Court orders or that other sovereign governments deal with it government to government, and (3) its legal authority to govern the Tribe.”
The panel goes on to hold that “The Court Clerk and Nooksack Chief of Police do not have a legal option of refusing to comply with lawful orders issued by a Nooksack court. They have a legal duty to comply with the law and no tribal official is above the law, particularly the Tribe’s chief law enforcement officer who has taken an oath to uphold the law.”
Despite what other tribal officials do, the panel wrote, they will not “abandon our sworn duty and responsibility to enforce the laws and constitution of the Nooksack Tribe. Thus, we cannot ignore the allegation there has been willful noncompliance with our orders.”
We are not wanting anybody to be held in contempt or arrested or fined. We simply want our ability to represent 331 tribal members at Nooksack restored, or barring that, to have our own rights redressed in Tribal Court.
Gabe Galanda, attorney who has represented members facing disenrollment from Nooksack Indian Tribe
The panel has given the chief until Wednesday, Aug. 3, to explain why he shouldn’t be held in contempt of court.
Galanda said he and the other attorneys did not want to see anyone jailed or fined, but want to have their issues addressed in court.
“The Appeals Court said what we and our clients have been saying for months: There is no longer a functioning Nooksack government. All institutions of Nooksack constitutional government have been overthrown,” Galanda wrote in an email. “We are not wanting anybody to be held in contempt or arrested or fined. We simply want our ability to represent 331 tribal members at Nooksack restored, or barring that, to have our own rights redressed in Tribal Court.”