Judge grants reprieve against disputed leaders of Nooksack Tribe

Tuesday, January 30, 2018

A lawsuit targeting the disputed leaders of the Nooksack Tribe has been put on hold while the Trump administration reviews the results of a recent election.

The lawsuit was filed by Nooksack citizens who say the disputed leaders have engaged in corrupt behavior on their reservation in Washington. But with the results of the vote still uncertain as the tribe prepares for another election, a federal judge said a stay in the case was justified.

"The court is sensitive to the fact that this case implicates issues of tribal governance and membership—issues that federal courts are typically foreclosed from adjudicating," Judge John C. Coughenour wrote in a decision on Monday. "The court’s sensitivity is only heightened as additional tribal elections occur that could influence the shape of this case going forward.

The stay was requested by the Nooksack plaintiffs, who are paying close attention to the results of the December 2017 election. The delay will last until April 30, by which time the parties expect the Bureau of Indian Affairs to determine whether that election was valid.

The BIA has questioned more than 120 ballots, according to a letter sent to the tribe. The number is high enough that it could affect the results for the four council seats that were on the ballot.

"We have no doubt the election was a sham," said Michelle Roberts, a tribal citizen who serves as a spokesperson for fellow Nooksack who have repeatedly clashed with the disputed leaders.

Results from the Nooksack Tribe's December 2017 election were posted on Facebook but the Trump administration has not determined whether they are valid.

Those leaders include Robert Kelly, who has been recognized as a "person of authority" by the BIA in order for the tribe to continue receiving millions of dollars in federal funds and in order for the tribe to maintain its government-to-government relationship with the United States. He happens to be the lead defendant in the lawsuit.

Kelly has served as chairman throughout the saga, which has attracted national attention. His seat is supposed to be among those on an upcoming March 17 ballot , according to the tribe's elections office.

As the judge noted, the outcome of the upcoming election, along with the results of the December vote, could affect the lawsuit, known as Rabang v. Kelly.

The lawsuit is unique in that it doesn't directly involve the tribe. Instead, the Nooksack plaintiffs have invoked the Racketeer Influenced and Corrupt Organizations Act -- a federal law that is commonly used to break up criminal entities -- in an attempt to hold Kelly and his allies on the council accountable for their actions.

Kelly sought dismissal of the case, citing the tribe's sovereign immunity. But Judge Coughenor said a brand new U.S. Supreme Court decision, known as Lewis v. Clarke, allowed the suit to go forward.

"Tribal sovereign immunity extends to individual tribal officers who are acting in their representative capacity and within the scope of their authority," Coughenor wrote in a ruling last April. "However, the Supreme Court’s recent decision on this issue is dispositive."

"Plaintiffs bring these allegations against defendants in their personal capacities," he added. "Therefore, sovereign immunity is not a jurisdictional bar in this case."

Kelly has since asked the 9th Circuit Court of Appeals to review the matter, with a hearing scheduled for March 9 in Seattle. Turtle Talk has posted briefs from the proceeding.

The alleged corrupt actions cited in the RICO suit include repeated attempts to remove more than 300 people from the rolls. Members of a group called The Nooksack 306 have been fighting the disenrollment effort and secured favorable decisions in the tribe's court system.

The tribe's disputed leaders subsequently fired the judge who was handling the case and created a new court. They also named Kelly as the chief justice.

Kelly has long supported the disenrollment purge. He contends The Nooksack 306 and others are not entitled to tribal citizenship because he says they are "non-Indians."

The BIA has not disputed the tribe's authority to determine its citizenship standards. But the agency, during the final year of the Obama administration, said the mass purge took place without a valid council. The Trump administration has maintained that position.