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The Nooksack Indian Tribe v. Zinke

United States District Court, W.D. Washington, Seattle

May 11, 2017

RYAN K. ZINKE, et al., Defendants.



         This matter comes before the Court on Plaintiff the Nooksack Indian Tribe's motion for preliminary injunction (Dkt. No. 19) and Defendants' cross-motion to dismiss (Dkt. No. 26). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS Defendants' motion to dismiss and DENIES Plaintiff's motion for preliminary injunction as moot for the reasons explained herein.

         I. BACKGROUND

         This section summarizes the facts as set forth in Plaintiff's complaint, as is appropriate on a motion to dismiss. It also summarizes and cites declarations, affidavits, and other material properly before this Court, as appropriate on a motion to dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(d); St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).

         Plaintiff the Nooksack Indian Tribe brought this action against Defendants, collectively the leadership of the Department of the Interior (DOI) and Bureau of Indian Affairs (BIA), on February 13, 2017. This case arises out of the same set of facts as a related case also before this Court, Rabang v. Kelly, C17-0088-JCC.

         Since 2007, Plaintiff has been a party to 638 contracts with the DOI and BIA, entered into pursuant to the Indian Self-Determination and Education Assistance Act. (Dkt. No. 1 at ¶ 28.) Plaintiff alleges “under the terms of these contracts, the defendants fund the Tribe to provide programs, functions, services, or activities of the [DOI] for the benefit of Indians because of their status as Indians.” (Id.) Plaintiff brings this action partially “to compel the defendants to fully fund contracts awarded to the Tribe under the Indian Self-Determination and Education Assistance Act.” (Id. at ¶ 1.)

         However, the purported disenrollment of hundreds of Nooksack tribe members in late 2016 and the recent tribal government changes, all completed when the Nooksack Indian Tribal Council lacked a quorum, are fundamental underlying facts in this action. By way of background, the Nooksack Indian Tribal Council is the governing body of the Tribe and is composed of eight members. (Dkt. No. 20 at 10.) Five members constitute a quorum on the Council. (Id. at 18.) In December 2012, the Chairman of the Nooksack Indian Tribal Council, Robert Kelly, “became aware of the possibility of erroneous enrollments” in the Tribe. (Dkt. No. 30 at ¶ 6.) On June 21, 2013, Nooksack Indian voters approved a membership requirement change to the Nooksack Constitution proposed by the Council. (Dkt. No. 1 at ¶ 31.). The change makes membership more stringent, requiring “at least one-fourth (1/4) degree Indian blood.” (Dkt. No. 20 at 8.) The change was challenged in the Nooksack tribal courts and upheld. (See Dkt. No. 1 at ¶¶ 32-35.) However, the membership criteria change is currently before the DOI's Interior Board of Indian Appeals for approval. (Id. at ¶ 41.)

         In March 2016, the Nooksack Indian Tribal Council scheduled a general election to fill three council seats whose terms were set to expire on March 24, 2016. (Id. at ¶ 42.) However, “the Tribe delayed the election, and the three Council members retained their seats as holdovers pending the election of their replacements.” (Id.) Mr. Kelly alleges the Council postponed the election “in the interest of providing stability to the Tribe's government and previous security concerns and threats of violence associated with disenrollment protests.” (Dkt. No. 30 at ¶ 8.) Defendants allege the Council postponed the election for the three seats “until after disenrollment proceedings against the 306 prospective disenrollees were complete.” (Dkt. No. 26 at 7.) Regardless of the reason for cancelling the 2016 election, as of March 24, 2016, only three of eight Council members occupy seats whose terms have not expired. (Dkt. No. 26 at 7 n.6.; Dkt. No. 20 at ¶ 9; Dkt. No. 38 at ¶ 14.) Therefore, Defendants allege the Council has been acting without a quorum since March 24, 2016. (Dkt. No. 26 at 3, 7.) The Court will refer to the Council group, as composed after March 24, 2016, as the holdover Council for clarity.

         On March 28, 2016, the holdover Council terminated Nooksack Tribal Court Chief Judge Susan Alexander. (Dkt. No. 15 at ¶ 7; Dkt. No. 26 at 7.) Raymond Dodge, Plaintiff's former in-house counsel, replaced Ms. Alexander. (Id.) Thereafter, the Nooksack Tribal Court allegedly began refusing to act on complaints challenging the legality of the holdover Council's actions. (Dkt. No. 15 at ¶¶ 7-10.)

         Conflict within the Nooksack tribal judiciary after March 24, 2016, is illustrated by the efforts of private law firms, including counsel for Intervenors 271 Nooksack Tribal Members, challenging their alleged disbarment from the Nooksack tribal courts. In an order dated September 21, 2016, the Nooksack Court of Appeals described as follows:

As is well-known to those familiar with this case, the Plaintiffs[, private law firms, ] have sought a review of this [disbarment] process before the Tribal Court, but the court clerk returned their pleadings and refuses to accept any filings from them. . . . This Court has already issued a mandatory injunction that the court clerk accept their pleadings and other filings. Moreover, when this order was ignored, we issued an order finding the court clerk in contempt. When this contempt was not corrected, we ordered the Police Chief to arrest the court clerk. When the Police Chief refused to enforce the Court's order to arrest the court clerk, we held the Police Chief in contempt. . . . Notwithstanding our efforts, the orders of this Court have been unlawfully ignored and the rule of law on the reservation, at least within the scope of this case, has completely broken down.

(Dkt. No. 15 at 51) (emphasis added).

         On August 8, 2016, Stanley Speaks, the Northwest Regional Director of the DOI, sent a letter to Nooksack tribal members who had asked him to “intervene and conduct a supervised, in-person, in-secret election.” (Dkt. No. 21 at 13.) Director Speaks declined, and responded that the “Nooksack Constitution does not require the Secretary to conduct or approve tribal council elections. . . . The Tribe has existing forums for conducting tribal business: an election board (during an election), tribal police, tribal court, and an appellate court system.” (Id. at 13-14.)

         On October 7, 2016, by Resolution 146a, the holdover Council purportedly created a new Nooksack Supreme Court. (Dkt. No. 15 at 69, ¶¶ 17-18.) Five members of the holdover Council filled the judicial positions. (Id.) On the petition of the “Nooksack Indian Tribe and its officers and Councilmembers, ” the Nooksack Supreme Court vacated 12 prior orders of the Nooksack Court of Appeals as “null and void.” (Id. at 72-80.)

         Between November 10, 2016, and November 22, 2016, Plaintiff and the holdover Council disenrolled “289 individuals who failed to demonstrate legally sufficient blood connections to the Tribe.” (Dkt. No. 1 at ¶ 43.) As such, “the Tribe carried out the disenrollment proceedings using the procedures that had been approved by both the Nooksack Tribal Court of Appeals and the Secretary” of the Interior. (Id.) Allegedly, ...

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