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Rabang v. Kelly

United States District Court, W.D. Washington

April 26, 2017

MARGRETTY RABANG, et al., Plaintiffs,
v.
ROBERT KELLY, JR., et al., Defendants.

          ORDER

          John C. Coughenour UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendants' motion to dismiss (Dkt. No. 34) and Plaintiffs' motion to continue Defendants' motion to dismiss (Dkt. No. 43), which Plaintiffs contend has been converted to a motion for summary judgment. Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES Plaintiffs' motion to continue and GRANTS in part and DENIES in part Defendants' motion to dismiss for the reasons explained herein.

         I. BACKGROUND

         This section summarizes the facts as set forth in Plaintiffs' complaint, as is appropriate on a motion to dismiss.

         This case arises out of the disenrollment of hundreds of Nooksack tribal members, and the subsequent Department of the Interior (DOI) and Bureau of Indian Affairs (BIA) decisions, also at issue in a related case before this Court.[1] Plaintiffs in this matter are “purportedly disenrolled” members of the Nooksack Indian Tribe.[2] (Dkt. No. 7 at ¶ 9.) Defendants Kelly, George, Smith, Solomon, Johnson, and Canete are members of the Nooksack Indian Tribal Council that Plaintiffs classify as the “holdover council” as of March 24, 2016.[3] (Id. at ¶¶ 10- 16.) Defendants Dodge, King George, Romero, Edwards, and Armstrong are other actors within Nooksack tribal leadership and agencies. (Id. at ¶¶ 17-21.)

         Plaintiffs allege “Defendants' scheme to defraud Plaintiffs and the federal government began with fraudulently preventing elections for over half of the eight” Nooksack Indian Tribal Council seats. (Id. at ¶ 31.) The Nooksack Indian Tribal Council carries out tribal governance and consists of eight positions. (Id. at ¶ 26.) Five members constitute a quorum for the Council. (Id. at ¶ 27.)

         The four-year terms for four seats on the Council were due to expire on March 24, 2016. (Id. at ¶ 28.) Defendants George, Smith, Johnson, and Canete held the expiring seats. (Id.) The Nooksack Constitution required elections for the four expiring seats be called within 90 days prior to the expiration of those offices. (Id. at ¶ 33.) On January 20, 2016, the holdover council Defendants announced at a Nooksack Community Council meeting that they had “cancelled” the February 20, 2016 primary election and the March 19, 2016 general election for the four expiring seats. (Id. at ¶ 36.) The holdover council Defendants wished to postpone the elections “until after disenrollment proceedings against Plaintiffs and over 275 other tribal members were complete.” (Id.) On March 24, 2016, the four seats on the Nooksack Indian Tribal Council positions occupied by Defendants George, Smith, Johnson, and Canete lapsed. (Id.) Plaintiffs allege the holdover council Defendants took these actions to preserve their ability to “carry out their scheme to defraud Plaintiffs of money, property, and benefits by depriving Plaintiffs of their Tribal membership, and to personally enrich themselves with hundreds of thousands of dollars in salaries, stipends, and other benefits through federal contracts and grants.” (Id. at ¶ 31.)

         On March 28, 2016, the holdover council Defendants terminated Nooksack Tribal Court Chief Judge Susan Alexander “as she was in the final stage of preparing a ruling to compel [Defendants] to call the election for the four now expired and vacant [Nooksack Indian Tribal Council] seats.” (Id. at ¶ 39.) Plaintiffs allege she was “fraudulently replaced” by Defendant Dodge, previously the Nooksack Tribal Attorney. (Id.)

         On April 29, 2016, Plaintiff Rabang filed suit in the Nooksack Tribal Court challenging actions taken by the holdover council Defendants. (Id. at ¶ 40.) Plaintiffs allege at “the direction of the holdover council Defendants and Defendant Dodge, and in an effort to further their scheme to defraud Plaintiffs, the [Nooksack Indian Tribal Court] never convened Plaintiff Rabang's” lawsuit. (Id.)

         On June 3, 2016, Defendants passed resolutions to disenroll Plaintiffs Rabang and Oshiro from the Tribe. (Id. at ¶ 41.) On June 8, 2016, Defendants notified the Nooksack Indian Housing Authority “by mail or wire that it had disenrolled” Plaintiffs Rabang and Oshiro. (Id. at ¶ 43.)

         In July 2016, Defendant Romero mailed a “30-day Termination Notice” to Plaintiff Oshiro. (Id. at ¶ 44.) The notice said the Nooksack Indian Housing Authority planned “to unilaterally terminate Ms. Oshiro's [Housing and Urban Development Mutual Help Occupancy Program]” home. (Id.) On July 11, 2016, Defendants Dodge and Armstrong caused an “Amended Notice of Hearing” regarding an eviction hearing to be mailed to Plaintiff Oshiro in an alleged “effort to defraud her of her home.” (Id. at ¶ 45.) On July 20, 2016, Plaintiff Oshiro was evicted from her home as a result of Defendant Dodge's eviction order. (Id. at ¶ 46.)

         On August 19, 2016, Defendant Romero “caused a ‘Notice of Termination/Notice to Vacate' to be mailed to Plaintiff Rabang.” (Id. at ¶ 47.) The notice said that the Nooksack Indian Housing Authority planned “to unilaterally terminate Ms. Rabang's [Housing and Urban Development Mutual Help Occupancy Program]” home. (Id.)

         On September 21, 2016, the Nooksack Tribal Court of Appeals noted in a decision that “the orders of this Court have been unlawfully ignored and the rule of law on the reservation . . . has completely broken down.” (C17-0219-JCC, Dkt. No. 15 at 51.)[4]

         On October 7, 2016, by Resolution No. 146a, the holdover council Defendants purported to create a new “Nooksack Supreme Court.” (C17-0219-JCC, Dkt. No. 15 at 69.) The holdover council Defendants then proceeded to fill the new court with five of its council members, including Defendant Kelly as Chief Justice. (C17-0219-JCC, Dkt. No. 15 at ¶¶ 17-18.) The new Nooksack Supreme Court then proceeded to vacate 12 prior orders of the Nooksack Tribal Court of Appeals “as null and void.” (C17-0219-JCC, Dkt. No. 15 at 72-80.)

         On October 11, 2016, Plaintiff Rabang attempted to file a second lawsuit in the Nooksack Tribal Court against Defendant Romero. (Dkt. No. 7 at ¶ 49.) However, Defendant Dodge allegedly rejected Plaintiff Rabang's complaint and refused to convene her lawsuit. (Id.)

         On October 17, 2016, Lawrence S. Roberts, DOI's Principal Deputy Assistant Secretary of Indian Affairs, issued a decision to the holdover council Defendants stating,

In rare situations where tribal council does not maintain a quorum to take action pursuant to the Tribe's Constitution, the Department of the Interior does not recognize actions taken by the Tribe. This is one of those exceedingly rare situations. Accordingly, I am writing to inform you and the remaining Council members that the [DOI] will only recognize those actions taken by the [Nooksack Indian Tribal] Council prior to March 24, 2016, when a quorum existed, and will not recognize any other actions taken since that time.

(Id. at ¶ 50; C17-0219-JCC, Dkt. No. 15 at 8) (emphasis added).

         However, also on October 17, 2016, the holdover council Defendants mailed Plaintiffs and over 275 other Tribal members a “Notice of Involuntary Disenrollment.” (Dkt. No. 7 at ¶ 51.) On November 9, 2016, the holdover council Defendants mailed the disenrolled members a “Legal Notice of Disenrollment” and stated that a disenrollment “meeting date” had been set via teleconference for November 16, 17, or 18, 2016. (Id. at ¶ 55.)

         On November 14, 2016, Principal Deputy Assistant Secretary Roberts issued a second decision to the holdover council Defendants reiterating that pursuant to the

Nation-to Nation relationship, the [DOI] will not recognize actions taken by you and the current Tribal Council members without a quorum consistent with the Nooksack Tribe's Constitution. . . . Accordingly, until a Council is seated through an election consistent with tribal law . . ., we will not recognize any “referendum election” including the purported results posted on the Tribe's Facebook page on November 4, 2016, claiming to disenroll current tribal citizens. . . . This further includes any election results from the Tribal Council Primary Election scheduled for December 17, 2016, or the Tribal Council Regular Election scheduled for January 21, 2017.

(Id. at ¶ 56; C17-0219-JCC, Dkt. No. 15 at 11.) The letter continues that the BIA “stands ready to provide technical assistance and support to the Tribe to carry out elections open to ‘all enrolled members of the Nooksack Tribe, eighteen years of age or over.'” (Id.)

         On November 16, 17, and 18, 2016, the holdover council Defendants “conducted 10-minute ‘meetings' via teleconference to accomplish the purported disenrollment of Plaintiffs.” (Dkt. No. 7 at ¶ 57.) On November 22, 2016, the holdover council Defendants “purportedly passed over 275 Nooksack Indian Tribal Council Resolutions to disenroll Plaintiffs and over 275 other Tribal members.” (Id. at ΒΆ 58.) Based on their disenrollments, Plaintiffs lost many services provided to Nooksack Indian Tribe members, including health care services, Temporary Assistance for Needy ...


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