The U.S. government takes a fiery stance against a Nooksack tribal council after the tribe sued over state and federal funding.
“This lawsuit was filed under false pretenses.”
So begins a brief filed this week by the U.S. government in a federal-court case revolving around a long-running disenrollment fight in the Nooksack tribe, east of Bellingham. The brief gets steadily more scathing.
Over 28 pages, Assistant U.S. Attorney Brian Kipnis excoriates a group of people who consider themselves Nooksack council members. Kipnis calls them an “unelected, unrecognized and illegitimate group, hereafter referred to as ‘the Kelly Faction.’ ”
Bob Kelly is the purported tribal chairman, leading the group that sued Department of Interior officials in February, claiming it caused the tribe to be wrongfully denied $13.7 million in federal and state funds.
The government’s response is unusual and leaves no doubt as to where it stands in what for years was an internal dispute, albeit one that helped provoke a national debate over the increasingly common practice of tribal disenrollment. Faction-fighting over power or casino riches has usually been the culprit, and the controversies have raised questions about Indian identity and governance.
The Interior Department, which oversees the Bureau of Indian Affairs, has been reluctant to step in, said Robert Anderson, who in the 1990s led the Indian law practice for the department and now directs the University of Washington’s Native American Law Center.
After reading the brief, he said of department officials, “it appears they really don’t have a choice.” The document makes a “good case that it really is an outrageous situation going on at Nooksack.”
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Its argument is rooted in the council’s cancellation of elections in March 2016. Long before, it had targeted some 300 people for disenrollment, saying they didn’t meet criteria for membership based on lineage. They hadn’t been kicked out yet, though, thanks to their dogged lawyer, Seattle’s Gabriel Galanda. So theoretically they would have been able to vote.
With no new elections, council members with expired terms kept on serving. In a series of polite but pointed letters this past year, Lawrence Roberts, then the ranking Interior official in charge of Indian affairs, said his department would not recognize — or fund — such a tribal government. Other federal and state agencies followed suit.
Kipnis, on behalf of new Interior Secretary Ryan Zinke, takes the showdown to a new level. He calls Kelly and his allies “anti-democratic” and “abusive.” He says they have engaged in a “scheme” to disenroll members using a “sham hearing process.”
The putative council members held 10-minute phone hearings in November, after which they declared most of the 300 disenrolled at last.
Some also were evicted from federally funded tribal housing and cut off from health care and other services subsidized by the government, Kipnis said.
Meanwhile, he pointed out, the Kelly group overthrew the tribe’s court system and appointed its own members to a new “Nooksack Supreme Court.”
“The secretary has concluded that it is past time for these abuses of power to stop,” Kipnis wrote, reserving even more scorn for the group’s attempt to proclaim itself a “victim.”
“Extraordinary,” Galanda said of the brief. “I’ve never seen the federal government take such a staunch position.”
“Trump administration calls out Nooksack tribe,” read a headline in the online publication Indianz.com. But while Galanda suspects President Trump would like to cut government money going to tribes, he and others say the new Interior secretary is, in this case, following the direction set by the Obama administration.
In an email to The Seattle Times, Kelly fired back. “The fact of the matter is that we have a group of non-Indians attempting to take over control of a federally recognized tribe with the assistance of a few bad apples within the Department of Interior.”
He called the brief’s claims “absurd and based on lies.” The Interior Department knows it, he said, and that’s why “the department refused to meet with us throughout this process so that we may provide them with the facts.”
Asked about Roberts’ repeated offer in his letters to meet with tribal leaders, Kelly said, “he never responded to our requests.”
In their earlier complaint, Kelly and his allies asserted that a tribal government’s composition is an internal matter, protected from federal interference by doctrines of tribal sovereignty and self-determination.
They are asking the court to order the government to release its funds.
The judge is expected to rule after all filings are in by the end of April.