United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' response to
the Court's order to show cause (Dkt. No. 159) and
Defendants' responses (Dkt. Nos. 161, 164). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary and hereby
DISMISSES Plaintiffs' complaint without prejudice and
without leave to amend for the reasons explained herein.
case arises out of the disenrollment of hundreds of members
of the Nooksack Indian Tribe and subsequent Department of the
Interior (“DOI”) and Bureau of Indian Affairs
(“BIA”) decisions regarding the federal
government's recognition of the Nooksack Tribal Council.
The Court has provided a detailed factual background of this
case in prior orders. (See Dkt. Nos. 62 at 1-6, 63
at 1-2, 130 at 1-4.) What follows is the relevant factual and
procedural background leading to the Court's present
in this matter are “purportedly disenrolled”
members of the Nooksack Indian Tribe. (Dkt. No. 64 at 4.)
Defendants are current and former members of the Nooksack
Indian Tribal Council and other figures within the tribal
government. (Id. at 4-6.) Plaintiffs bring suit
against Defendants for alleged violations of the federal
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§ 1964 (“RICO”). (Id. at 1.)
Plaintiffs allege that Defendants abused their positions
within the tribal government to carry out a scheme to defraud
them of money, property, and benefits “by depriving
[them] of their tribal membership.” (Id. at
7.) To carry out this scheme, Plaintiffs allege that
Defendants, among other things, illegally postponed
elections, took legislative action through the Tribal Council
without a required quorum, and actively prevented Plaintiffs
and their attorneys from challenging Defendants' actions
in the Nooksack Tribal Court. (See generally Dkt.
No. 64.) In response to these actions, the DOI issued a
series of decisions declaring that it would not recognize the
legislative or judicial actions taken by the Tribe until a
special election was held in accordance with tribal law.
(Id. at 17-22.)
Court previously denied the Kelly Defendants' motion to
dismiss Plaintiffs' complaint for lack of subject matter
jurisdiction and on sovereign immunity grounds. (Dkt. No.
63.) Notwithstanding the Kelly Defendants'
characterization of Plaintiffs' claims as a
non-reviewable intra-tribal dispute, the Court ruled that it
had subject matter jurisdiction over the case during the
period that DOI refused to recognize the actions taken by the
Nooksack Tribal Council. (Id. at 11.) The Kelly
Defendants timely filed an interlocutory appeal challenging
the Court's decision. (Dkt. No. 69); Rabang v.
Kelly, No. 17-35427 (9th Cir. 2018).
August 28, 2017, Defendant Kelly, in his capacity as Chairman
of the Nooksack Tribal Council, entered into a Memorandum of
Agreement (“MOA”) with the Acting Assistant
Secretary - Indian Affairs, on behalf of the DOI. (Dkt. No.
117-1 at 8-12.) Under the MOA, the DOI agreed to recognize
the Nooksack Tribal Council as the governing body of the
Nooksack Tribe, if the Tribe conducted a special election
within a specified period. (Id. at 8.) In light of
the MOA, the Court ordered a stay of proceedings, as the
DOI's recognition of the Tribal Council could represent
an event of “jurisdictional significance.” (Dkt.
No. 130 at 8.)
the Court entered its stay, the Nooksack Tribe has conducted
two elections. On December 2, 2017, the Tribe held a special
election to fill four seats on the Tribal Council. (Dkt. No.
145-1.) On March 9, 2018, the DOI concluded that the election
results were valid and, pursuant to the MOA, once again
recognized the Tribal Council. (Id.; Dkt. No. 162-2
at 2-6.) On May 5, 2018, the Tribe held a general election to
select a Chairman and fill three seats on the Tribal Council.
(Dkt. No. 162-4 at 2.) On June 11, 2018, the DOI's
Principal Deputy Assistant Secretary - Indian Affairs, wrote
a letter to the Tribe's new Chairman acknowledging his
election and the election of the new Tribal Council members.
(Dkt. No. 160-1 at 2.)
the DOI's recognition decision, the Kelly Defendants
asked the Court to issue an indicative ruling to the Ninth
Circuit stating that if the Court of Appeals remanded the
Defendants' interlocutory appeal, this Court would
dismiss the case for lack of subject matter jurisdiction.
(Dkt. No. 144 at 2.) The Court denied Defendants' motion,
reasoning that the Court of Appeals was poised to render a
decision on that very issue. (Dkt. No. 153 at 5.) In
response, the Kelly Defendants filed a voluntarily dismissal
of their interlocutory appeal, which the Ninth Circuit
granted. (Dkt. No. 157); See also Rabang v. Kelly,
No. 17-35427, Dkt. No. 36 (9th Cir. 2018).
Court lifted its stay and ordered Plaintiffs to show cause
why their complaint should not be dismissed for lack of
subject matter jurisdiction pursuant to the DOI's
recognition decision and the Court's prior rulings. (Dkt.
No. 156.) Plaintiffs filed a response (Dkt. No. 161) and both
the Kelly Defendants and Defendant Dodge submitted an answer
(Dkt. Nos. 161, 164).
the outset, the Court has made clear that its jurisdiction
over this case “is not permanent or inflexible.”
(Dkt. No. 63 at 11.) In exercising jurisdiction, the Court
drew an analogy to the tribal exhaustion rule, which holds
that matters of internal tribal governance should not be
adjudicated by federal courts unless and until tribal
remedies have been exhausted. (Id. at 7-8); see
Grand Canyon Skywalk Dev., LLC v. ‘Sa' Nyu Wa
Inc., 715 F.3d 1196, 1200 (9th Cir. 2013). The Court
relied on a narrow exception to the exhaustion rule, which
provides for jurisdiction where “exhaustion would be
futile because of the lack of adequate opportunity to
challenge the [tribal] court's jurisdiction.”
Grand Canyon Skywalk, 715 F.3d at 1200.
Court gave deference to the DOI decisions that refused to
recognize actions taken by the Nooksack Tribal Council and
Court, and concluded that Plaintiffs lacked an adequate
opportunity to challenge the Tribal Court's jurisdiction.
(Dkt. No. 63 at 11.) At the same time, the Court acknowledged
that its exercise of jurisdiction was for “the interim
period where the tribal leadership is considered inadequate
by the DOI.” (Id. at 10-11); See
Attorney's Process & Investigation Servs., Inc. v.
Sac & Fox Tribe of Mississippi in Iowa, 609 F.3d
927, 943 (8th Cir. 2010) (BIA's recognition decision
between two competing tribal factions is made on an
“interim basis” and once “the dispute is
resolved through internal tribal mechanisms, the BIA must
recognize the tribal leadership embraced by the tribe
Court previously stated that “if the DOI and BIA
recognize tribal leadership after new elections, this Court
will no longer have jurisdiction and the issues will be
resolved internally.” (Dkt. No. 63 at 11.) These
circumstances have come to pass. The DOI recognized the
Nooksack Tribal Council as the Tribe's governing body,
following the agency's validation of the December 2017
special election. (Dkt. No. 145-1.) The ...