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Rabang v. Kelly

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

July 31, 2018

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



         This matter comes before the Court on Plaintiffs' response to the Court's order to show cause (Dkt. No. 159) and Defendants' responses[1] (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.

         I. BACKGROUND

         This 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 decision.

         Plaintiffs in this matter are “purportedly disenrolled” members of the Nooksack Indian Tribe.[2] (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.)

         The 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).

         On 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.)

         Since 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.)

         Following 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).

         The 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).


         From 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.

         The 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 itself.”)

         The 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 ...

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