Two members of the “Nooksack 306” – Nooksack Indian Tribe citizens who are fighting disenrollment – are awaiting an appeals court ruling on a case involving their alleged unconstitutional removal from the tribal council.
Council members Michelle Roberts and Rudy St. Germaine, along with more than 270 of the members targeted for disenrollment, filed a motion in Nooksack Tribal Court of Appeals February 18 seeking an emergency review of a February 7 order by Nooksack Tribal Court Chief Judge Raquel Montoya-Lewis, denying an injunction to stop Council Chairman Robert Kelly and other defendants from removing Roberts and St. Germaine from the council and reinstate them to their elected positions. Montoya-Lewis said the council had the power to remove them and that the court did not have the power to deal with the political aspects of the events.
According to the court documents, Kelly called three emergency meetings over the Martin Luther King Jr. weekend, effectively blocked Roberts and St. Germaine from attending the meeting via teleconference and, at the last meeting, led the council in removing them from office for missing three meetings.
The motion to the Nooksack Tribal Court of Appeals asking for a review of Montoya-Lewis’s order is the latest action in a long series of legal moves that have taken place since February 2013, when the tribal council under Kelly’s direction passed Resolution 13-02: Initiating Involuntary Disenrollment for Certain Descendants of Annie James (George).
The common thread among the 306 members facing disenrollment is their mixed Filipino and American Indian heritage. Moreno Peralta, spokesman for the families, told Indian Country Today Media Network that the families believe they are being dispossessed of their Nooksack identity because of their mixed Nooksack and Filipino ancestry.
Read more at At Indian Country
UPDATE THERE HAS BEEN A STAY IN THE DECISION UNTIL THE INTERIOR SECRETARY DECISION CAN BE PUBLISHED
7 comments:
How low can these tribal committee leaders sink? This definitely smells of lawyer crap. It is the lawyers who have taught our leaders these evil tricks that are destroying our tribes. Even though the leaders are the ones who carry through with the evil deeds, the lawyers are coming up with and teaching them these evil deeds, these lawyers will get their Karma too, they and their generations will have to somehow pay. They have caused and helped to strip us of our heritage, they have wronged us! and now the Government is once again wronging the true natives.
As promised, here is the follow up to my earlier post regarding the development of new strategies to combat the stacked deck against disenrollees.
For the Nooksack I believe they can argue that applying a standard to one group from the tribe without applying it to all members is in violation of the laws of the tribe. I hope they take this argument and run with it.
It is no revelation that the BIA supports corrupt tribal enterprises, leaders, and organizations. They are in collusion with tribal leaders that disenroll legitimate members. The BIA has an internal agenda, and under the pretense of fostering self-determination, they are assisting with the removal of tribal members.
Here is one example of the collusion.
This example comes in the form of a powerful fallacy. The fallacy is that the BIA can apply tribal law as a guideline in making their decisions.
Think about that for a moment. The BIA cannot judge, interpret, apply, or enforce tribal law; only the tribe can perform these functions. Why then does the BIA apply tribal law to make decisions on disenrollment appeals? The first appellants who explicitly state in their appeals that they do not recognize the authority or jurisdiction of the BIA to apply tribal law in the decision making process will gain an advantage.
Another advantage that appellants can utilize is the fact that once a member is disenrolled, tribal law no longer applies to him or her. OP posted a statement from Gabe Galondas where he argued that disenrollment makes weak sovereigns because disenrolled members are no longer governed by tribal laws. The tribe then has non-members living on the reservation who don't have to follow the laws of the tribe, thus weakening their authority. The BIA cannot apply tribal law to disenrollees any more than the tribe can once they are no longer members.
Take it another step further. The BIA is a federal agency. They are governed by the laws and regulations of the US Govt. The BIA doesn't observe tribal law, is not subject to tribal law, and has no business pretending that they must make decisions that are consistent with tribal law. Especially tribal law that does not apply since disenrollees become simple US Citizens once they are no longer tribal members.
This means that that disenrollees are fully entitled to all the protections of the Constitution and the Bill of Rights and they must insist on these protections in their dealings with the BIA.
If anyone has an opposing viewpoint to this argument I welcome it. These arguments need to be debated and either refuted or made strong through legal analysis and test. It is all in hope of restoring fairness and justice for Indians. We can no longer tolerate the discrimination, abuses, and corruption.
I know what the answers going to be, but. If we are granted all of our civil liberties as US then it would be possible to have the merits of our case heard in court. We know this is not going to happen the way the tribes beat us up with "Santa Clara Pueblo v. Martinez". Tribal sovereignty and the hands off rule related to tribal enrollment will always allow the tribes to make it up as they go because they know the BIA has only to follow the direction that the congress has given. Do you really thing that anyone in the DOI or BIA is going to do something proactive.
White Buffalo,
I think that if the BIA can't use tribal law to make decisions on disenrollment appeals then they would be unable to justify the disenrollments. There is nothing in the BIA rules and regulations or in federal law that compels the BIA to use tribal law as a standard of review, but they do so because it is the only law that applies to tribal membership.
What if they couldn't use tribal law, or the tribal leader's interpretations of that law to justify disenrollments? Then they would have to issue decisions based on their own regulations and federal law.
I realize it is more complex than that because some tribal law calls for the BIA to play a role in membership decisions. I am saying that they have no jurisdiction and should never have any role at all. I am saying that since the BIA will rule that they cannot intervene in tribal membership disputes because Santa Clara v. Martinez gives tribes the right to determine their own membership, that the BIA should only review disenrollments in terms of how it impacts the rights of disenrollees as US Citizens.
This would mean that the BIA could not intervene in membership disputes. So what? They don't anyway. But without tribal law to justify the disenrollments the BIA would have to issue decisions that don't involve Santa Clara v. Martinez, or tribal law. They just might have to come out on the side of US Citizens that have had their civil rights violated by tribal leaders that ignore due process and the ICRA.
I am not expecting anything proactive from the BIA or the DOI. They won't intervene unless compelled to do so by a federal court. Even then they will say that there are limits to what they can do because of sovereignty. But if the BIA was forced to rule that civil rights had been violated, then you might be able to go to court and sue the tribe for civil rights violations.
Do you see where this is leading?
Are there any developments in the pala disenrollments?
The lawsuit filed by the Britten descendants against the Pala EC has an appeal hearing scheduled for March 6th. The Ninth Circuit Court of Appeals will review the appeal and issue a decision on whether or not to uphold the lower court dismissal on the grounds of sovereign immunity.
The Motion for Summary Judgment filed by the Trujillos against the BIA was denied, and a Cross Motion filed by the BIA was granted. From what I have heard the Trujillos plan to file a complaint against the BIA and sue under APA standards.
I hope both parties are successful but as I have said the deck is stacked. For the Brittens, The Ninth Circuit Court of Appeals must find something in the arguments that removes the protections of sovereign immunity from the Pala EC.
For the Trujilos, the Ninth Circuit Court will have to find that the AS-IA's decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.
It is difficult to succeed in federal court against the wide latitude offered the BIA decisions, and the protections of sovereign immunity. We will see what happens.
There is also some other activity that is going on. It is premature to discuss it at this time, but it does not involve reinstatement of the disenrollees. However I can say that it has the advantage of being outside the scope of Santa Clara Pueblos v. Martinez, it does not currently involve any sort of federal court action, the Pala EC cannot use sovereign immunity to protect themselves because they are not named parties in the action, and it does not require a remand of the AS-IA decision to be effective.
Keep your hopes up because the news of progress is encouraging at this time. It is not over until its over.
Thank you for the update. I hate not hearing anything. I am very hopeful that the MB descendants will be re enrolled no matter how long it takes
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