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Doucette v. Bernhardt

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

August 9, 2019

DAVID BERNHARDT, Secretary of United States Department of the Interior; TARA SWEENEY, Assistant Secretary - Indian Affairs; JOHN TAHSUDA III, Principal Deputy Assistant Secretary - Indian Affairs; and UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants.



         THIS MATTER comes before the Court on (i) a motion for summary judgment, docket no. 28, brought by plaintiffs Robert Doucette, Bernadine Roberts, Saturnino Javier, and Tresea Doucette, and (ii) a cross-motion for summary judgment, docket no. 31, brought by defendants United States Department of the Interior (“Interior”), Interior Secretary David Bernhardt, Assistant Secretary Tara Sweeney, and Principal Deputy Assistant Secretary (“PDAS”) John Tahsuda IIII. Having reviewed all papers filed in support of, and in opposition to, the motions, the Court enters the following order.


          Plaintiffs were unsuccessful candidates for four open positions on the Nooksack Tribal Council, the governing body of the Nooksack Indian Tribe of Washington (the “Nooksack Tribe” or “Tribe”). They allege that, prior to the most recent change in presidential administrations, Interior had established a policy of “interpreting Tribal constitutional, statutory, and common law to determine whether the Tribal Council was validly seated as the governing body of the Tribe” for purposes of government-to-government relations. See Am. Compl. at ¶¶ 1-4, 24, 29, 31, 33, 39-40, 45, 47, 60-63 (docket no. 18). According to plaintiffs, in endorsing the results of primary and general elections conducted in the fall of 2017, defendants departed from Interior's previous policy.

         Plaintiffs assert a claim under the Administrative Procedure Act (“APA”) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1331. See Alto v. Black, 738 F.3d 1111, 1124 (9th Cir. 2013); Goodface v. Grassrope, 708 F.2d 335, 338 (8th Cir. 1983). They seek a declaratory judgment, pursuant to 28 U.S.C. § 2201, that Interior's alleged “change in policy” was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); see also Am. Compl. at § VII.A (docket no. 18). Plaintiffs ask the Court to require defendants to determine anew whether the elections at issue were held in compliance with the laws of the Nooksack Tribe. See Am. Compl. at §§ VII.B-C (docket no. 18). Although plaintiffs have standing to pursue such remedy, see Chinook Indian Nation v. Zinke, 326 F.Supp.3d 1128, 1140 (W.D. Wash. 2018), the Court concludes that plaintiffs are not, as a matter of law, entitled to such relief because Interior never adopted a policy of construing Nooksack law with respect to how Nooksack Tribal Council elections should be conducted, and defendants could not have behaved inconsistently with a non-existent policy.

         In refusing, for a period of time before the 2017 elections, to recognize actions taken by the Nooksack Tribal Council, Interior did not purport to interpret Nooksack law concerning the manner in which elections must be administered, but rather effectuated the consequences to the Tribe of having failed to even hold an election before the terms of half of the council members expired. Moreover, during the course of and subsequent to the 2017 elections, Interior admirably balanced the deference it owes the Tribe, as a sovereign entity, with its responsibility to ensure that it deals only with a duty constituted governing body for the Tribe. Plaintiffs have not made the requisite showing to survive summary judgment, and their APA claim and this action are therefore DISMISSED with prejudice.

         A. Composition of the Nooksack Tribal Council

         The Nooksack Tribe has been federally recognized since 1973. Am. Compl. at ¶ 15 (docket no. 18). According to its Constitution, the Tribe's governing body is the Nooksack Tribal Council, which has eight seats, consisting of a chair, a vice-chair, a secretary, a treasurer, and four positions lettered A through D. See Nooksack Const. art. III, § 2, Ex. N to Galanda Decl. (docket no. 12-14). The term of each council member is four years, with the tenure of the chair, secretary, and positions A and B staggered by two years from the tenure of the vice-chair, treasurer, and positions C and D. Id. at art. III, § 3. Thus, every other year, four positions on the Nooksack Tribal Council are up for election. At least five members of the Nooksack Tribal Council must be present at a meeting to constitute a quorum for transacting business. See Nooksack Bylaws art. II, § 4, Ex. N to Galanda Decl. (docket no. 12-14).

         On March 24, 2016, the terms of the vice-chair, treasurer, and positions C and D expired without an election having been conducted to select persons to fill those seats. See Am. Compl. at ¶ 22 (docket no. 18). These “holdover” council members continued to take actions on behalf of the Tribe, including attempts to disenroll certain individuals from the Tribe. See Order at 1-6 (docket no. 62), Rabang v. Kelly, No. C17-88-JCC (W.D. Wash. Apr. 26, 2017).[1] On October 17, 2016, Lawrence S. Roberts, then Principal Deputy Assistant Secretary - Indian Affairs, wrote to Robert Kelly, Jr., then chair of the Nooksack Tribal Council (“Chairman Kelly”), and indicated that Interior “will only recognize those actions taken by the Council prior to March 24, 2016, when a quorum existed, and will not recognize any actions taken since that time because of the lack of a quorum.” AR 1. PDAS Roberts reiterated this message in a letter dated November 14, 2016, stating that Interior will not recognize elections or actions that are inconsistent with Nooksack law or the tribal court decisions in Belmont v. Kelly.[2] See AR 3-4. In correspondence sent on December 23, 2016, PDAS Roberts warned that the “lack of a quorum and inability to take official action puts all Federal funding to the Tribe at risk.” AR 5. PDAS Roberts further observed that Chairman Kelly and two “holdover” council members had attempted to “anoint” themselves as the Tribe's supreme court, but had taken such action without a quorum and in the absence of a valid election, so Interior would continue to recognize only the decisions of the Northwest Intertribal Court System, which then operated the Nooksack Tribal Court of Appeals. See id.

         B. Memorandum of Agreement

         On August 25, 2017, Michael S. Black, then Acting Assistant Secretary - Indian Affairs, entered into a Memorandum of Agreement (“MOA”) with Chairman Kelly, the purpose of which was “to provide and to outline a procedure whereby” the Assistant Secretary (on behalf of Interior) would recognize a tribal council as the governing body of the Nooksack Tribe. See AR 7-12. The MOA indicated, however, that it was “not intended by the parties to be either binding or enforceable upon either party, nor enforceable through an administrative process or in a court of law.” AR 10. Under the MOA, Acting Assistant Secretary Black provided interim recognition of Chairman Kelly as “a person of authority within the Nooksack Tribe, through whom the Assistant Secretary will maintain government-to-government relations with the Tribe for such time as this MOA is in effect, for the purpose of the Nooksack Tribe holding a special election and receiving funding under the Indian Self-Determination and Education Assistance Act.” AR 8. The interim recognition was to remain in effect until one of the following three events occurred: (i) the four vacant seats on the Nooksack Tribal Council were filled via a valid election; (ii) the MOA was terminated for cause; or (iii) 120 days elapsed after execution of the MOA. Id.

         In the MOA, Chairman Kelly committed to conduct an election within 120 days. AR 7. The election was to be held in accordance with the Nooksack Constitution and Bylaws, as well as tribal laws and ordinances, and all eligible Nooksack voters would be allowed to participate, regardless of county residency. Id. For purposes of the MOA, eligible voters included individuals who were purportedly disenrolled since March 24, 2016. AR 8-9. The MOA provided that, if the Regional Director for the Northwest Region of the Bureau of Indian Affairs (“BIA”) endorsed the special election results, the Assistant Secretary “shall issue a letter granting full recognition” of the Nooksack Tribal Council as the “valid governing body” of the Tribe. AR 8.

         The Nooksack Tribe conducted a primary election on November 4, 2017, and a general election on December 2, 2017, AR 86, resulting in the Nooksack Tribal Council being composed of the following individuals:

Robert Kelly


Richard “Rick” D. George


Agripina “Abbie” Smith


Nadene Rapada


Robert “Bob” Solomon

Position A

Carmen Tageant

Position B

Roy Bailey

Position C

Katherine Rose Romero

Position D

AR 668 (modified to show the newly elected members in bold font).

         C. Recognition of Nooksack Tribal Council

         Shortly after the MOA was signed, Interior itself had significant turnover. In September 2017, PDAS Roberts, the author of three letters sent to Chairman Kelly in 2016, which plaintiffs contend established Interior's policy concerning the upcoming Nooksack Tribal Council elections, was replaced by defendant John Tahsuda III as Principal Deputy Assistant Secretary - Indian Affairs. See Am. Compl. at ¶ 44 (docket no. 18). In October 2017, Acting Assistant Secretary Black, who had executed the MOA on behalf of Interior, moved to the Bureau of Reclamation, and for some period of time thereafter, PDAS Tahsuda served as Acting Assistant Secretary - Indian Affairs. Defendant Tara Sweeney assumed the position of Assistant Secretary - Indian Affairs in August 2018. Id. at ¶ 67. Ryan Zinke, who appointed PDAS Tahsuda, resigned as Interior Secretary in January 2019 and was succeeded by defendant David Bernhardt, the current Secretary of the Department of the Interior. See id. at ¶ 68.

         On March 7, 2018, Twyla Stange, Acting Regional Director (“Acting RD”) for the Northwest Region of the BIA, sent a memorandum to PDAS Tahsuda, in his capacity as Acting Assistant Secretary, endorsing the primary and general elections conducted on November 4, 2017, and December 2, 2017, respectively. AR 86-90. Acting RD Stange reported that the BIA had reviewed the declarations of Katrice Rodriguez (aka Romero), the Election Superintendent[3] for the Nooksack Tribe, dated September 7, October 7, November 21, and December 11, 2017, and January 16, 2018, [4] and concluded that ...

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