United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANTS' MOTION TO
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.)
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.)
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.
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.)
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).
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
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.)
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, ...