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Friday, October 18, 2013
NOOKSACK 306 Win Small Victory Against Abuse by BOB KELLY, Chairman.
Nooksack Tribal Court Chief Judge Raquel Montoya-Lewis has ruled that 306 people facing expulsion from tribal membership rolls are entitled to legal representation when they go before the tribal council, but she has rejected other legal efforts to block the expulsion process.
OP: PECHANGA did not allow attorney's to represent disenrolled in their hearings. Pechanga ALSO did not hear each case on it's merits, but herded groups like cattle into a hearing with at least ONE incompetent EC member, Ruth Masiel.
Seattle attorney Gabriel Galanda, representing the embattled faction of the 2,000-member Nooksack Indian Tribe, has raised a variety of arguments challenging the legality of the expulsion drive spearheaded by Tribal Chairman Bob Kelly and his supporters on the tribal council. But the tribe's attorneys have argued that the tribe, as a sovereign government, is legally immune from lawsuits in the case, and Montoya-Lewis has mostly agreed.
In her Oct. 17, 2013, ruling dismissing nearly all of Galanda's arguments, Montoya-Lewis cited a 1978 U.S. Supreme Court ruling: Santa Clara Pueblo v. Martinez. In that case, a majority of justices agreed that tribal councils have broad powers to make and enforce rules governing tribal membership.
"Tribal membership rules vary widely from tribe to tribe, but it's undisputed that the authority to make those rules lies at the heart of tribal governance and sovereignty," Montoya-Lewis wrote.
Galanda had argued that his clients were not getting their constitutional right to due process before they face loss of tribal membership that includes valuable fishing rights and tribal services, as well as emotional significance.
While Montoya-Lewis noted the lack of clear legal precedent determining how much "due process" tribal members must get before losing their membership, she ruled that the tribal council's proposal to give each challenged member a 10-minute telephone hearing was sufficient - as long as the members are allowed to have someone to represent them in that hearing. The tribal council had earlier told the 306 they would not be allowed to have an attorney assist them.
Otherwise, Montoya-Lewis wrote, a 10-minute telephone conference should be sufficient to determine the issue at hand. Tribal officials have presented evidence that the 306 do not descend from anyone listed on a 1942 tribal census that is the key factor for valid tribal ancestry under Nooksack membership rules.
All 306 trace their ancestry to the late Annie George. They argue that she was a Nooksack left off the census by mistake, and they have presented other legal documents and anthropologists' opinions attempting to prove that.
In perhaps the most alarming development for the 306, Montoya-Lewis wrote that the accuracy of the census doesn't matter: The tribal council has the legal right to use that census, however flawed, as the condition for membership today.
"Some tribes no longer rely on census data for enrollment and rely instead on DNA evidence," the judge wrote. "Some tribes rely entirely on census data and family trees, even when that census data was never intended for such purposes. Any way a tribe determines membership will result in what some will determine to be unfair and what others will determine to be protective of a tribe's interests."
In a final blow to the Nooksacks fighting to stay in the tribe, Montoya-Lewis rejected a legal challenge to a tribal council decision denying payment of annual back-to-school stipends of $275 to children who face eventual expulsion from the tribe.
Montoya called that decision "distasteful," but she said the tribal council had the legal authority to make it.
Read more here: http://www.bellinghamherald.com/2013/10/18/3266417/embattled-members-of-nooksack.html#storylink=cpy