Wednesday, August 1, 2018

Department of Interior's Decision HARMS 300 Nooksack; Federal Judge Tosses RICO SUIT

A Washington federal judge on Tuesday tossed a suit by Nooksack Indian Tribe members alleging tribal officials conspired to disenroll them, saying that the federal government’s recognition of tribal leadership deprived the court of jurisdiction over those claims.

In an order Tuesday, U.S. District Judge John C. Coughenour said that the U.S. Department of the Interior’s decision to reinstate recognition of the tribe’s leadership following a December election meant that he could no longer consider the tribe members’ claims under the Racketeer Influenced and Corrupt Organizations Act.

“While plaintiffs are correct that federal courts have jurisdiction over RICO claims, they refuse to acknowledge that resolution of their claims — whether on summary judgment or at a jury trial — would ultimately require the court to render a decision about plaintiffs’ enrollment status,” the judge said. “Plaintiffs cannot eliminate this inherent issue just by bringing their challenge as a civil RICO action.”

And ruling on the members’ disenrollment claims would force the court to interpret and issue rulings on Nooksack law “that go beyond the scope of a district court’s jurisdiction,” the judge said in his order.

The judge added that he “does not at all think, as defendants suggest, that ‘the cloud over the tribe’ has been removed,” and that the tribe members’ claims are “highly concerning.”

“Nevertheless, it is for the Nooksack tribe, not this court, to resolve plaintiffs’ claims,” the judge said.

The RICO suit filed by Margretty Rabang and other tribe members accused former Nooksack Tribal Council Chairman Robert Kelly Jr., Nooksack Tribal Court Chief Judge Raymond G. Dodge Jr. and other tribal officials of conspiring to disenroll them despite repeated warnings from the federal government that the tribe’s governing council had lacked enough members to act on the tribe’s behalf since March 2015, when four seats on the council lapsed.

In August, the Interior Department and the Nooksack inked a memorandum of agreement in which the tribe said it would hold a special election to replace one it canceled in March 2016, a vote that would serve to officially fill the four empty spots on the eight-person council.

Under the deal, the tribe also agreed to recognize that the group of members it has sought to disenroll were still enrolled and entitled to vote and run for office in the election.

The election took place in December as planned, and the tribe announced March 9 that the DOI had again recognized the tribe’s leadership based on that election.

Meanwhile, Judge Coughenour had paused the RICO suit in October, saying that if the DOI recognized the tribal council’s validity following the December election, it could strip the court of jurisdiction over the dispute.

The tribal officials contended in their March 15 motion that the DOI’s recognition of tribal leadership did in fact take away the court’s jurisdiction.

In a March 26 response, the tribe members said the government’s interim recognition of the tribe’s government doesn’t have anything to do with the alleged scheme to defraud its members in the past.

The tribe members said that RICO violations have to do with defendants' past conduct, and that the DOI’s March decision to recognize tribal leadership was “immaterial to plaintiffs’ RICO claims for past fraud.”

In April, tribal officials dismissed their appeal at the Ninth Circuit just after the district court ruled that it was up to a circuit panel to decide whether federal courts have jurisdiction in the case. In a hearing at the appellate court, a circuit court judge, discussing the allegations leveled at the officials, said, “That’s a record a tin-pot dictator of a banana republic might be proud of.”

After the dismissal of the appeal, the district court asked the tribe members to show cause as to why their case should not be dismissed for lack of jurisdiction, given that the DOI had given approval to the tribal council.

In Tuesday’s order, Judge Coughenour noted that he had indicated earlier in the litigation that recognition of tribal leadership by the DOI and Bureau of Indian Affairs following elections would end the court’s jurisdiction and require the tribe to solve its issues itself, and “these circumstances have come to pass.”

The judge said he couldn’t avoid having to interpret Nooksack law based on earlier decisions by the DOI or Nooksack courts, especially since the tribe’s council has adopted all actions by its chairman and the council from the period when the DOI didn’t recognize the council as the governing body of the tribe.

Michelle Roberts, who represents the "Nooksack 306," a group of members fighting disenrollment from the tribe, said in a statement Tuesday that “despite Judge Coughenour's suggestion that the Nooksack tribe might afford redress to plaintiffs or other ‘Nooksack 306’ members or their allies, that is not the case,” as “the doors to the tribal court continue to be held shut by the tribe's former in-house lawyer, Ray Dodge, who continues to masquerade as chief judge.”

"The fact remains that the Nooksack Tribal Council and tribal court are illegitimate — and everyone knows it," Roberts said. "We will not stop fighting. We are not going anywhere. We will stay right where we belong."

According to a statement from the Nooksack tribe on Tuesday, the tribe members were “disenrolled in accordance with tribal law” after the December election, and "despite the dispute dragging on for years, none of the disenrollees ever produced any evidence that they were entitled to enrollment.”

Nooksack Chairman Ross Cline said in the statement that the tribe’s council “has consistently followed Nooksack law in handling all of our governing responsibilities.”

“I know that there are many outsiders who object to disenrollments generally, but Nooksack self-government is a sovereign right, and I and the tribal council have confidence that the Nooksack people will do what is best for our tribe going forward,” Cline said.

Meanwhile, four Nooksack tribal council candidates who lost in the December special election filed suit in June in Washington federal court, alleging that the DOI didn’t properly oversee the election that they said was fraudulent and likely included ballot stuffing.

Candidates Robert Doucette, Bernadine Roberts and others said that the federal government under the Trump administration abandoned its oversight responsibilities when it accepted the special election results despite allegations that rules were improperly changed and the result cannot be trusted, according to the complaint.

The tribe members are represented by Gabriel S. Galanda, Anthony S. Broadman, Ryan D. Dreveskracht and Bree R. Black Horse of Galanda Broadman PLLC.

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