After a long fight, the Nooksack tribe has declared roughly 300 members disenrolled. A showdown looms with the federal government, which considers the tribal council illegitimate. Taxpayer dollars are at stake, as well as the homes of dozens on Nooksack land.
They had 10 minutes to plead their case.
During three days of hearings, member after member of the Nooksack tribe phoned in and told the tribal council why they shouldn’t be kicked out. Sometimes they were greeted with silence. When the clock ran out, the line went dead.
With seconds left, Michelle Roberts declared: “We are Nooksack. We always will be Nooksack, and you guys can’t say any different.”
It’s a point being tested as never before. On Wednesday, a tribal council deemed illegitimate by the federal government announced it had removed from its rolls roughly 300 Nooksack members for failing to prove tribal lineage.
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“This has been a long and difficult process, and the Nooksack people are glad it’s finally over,” Chairman Bob Kelly said in a statement.
In normal circumstances, the council’s move might indeed put an end to a bitter four-year fight that has played out on remote Nooksack lands east of Bellingham and become a symbol, nationwide, of stepped-up tribal disenrollment around the country fueled by quests for money and power.
It’s true that the notice of mass disenrollment marks a new era. Roberts and dozens of other disenrolled members who live on tribal land could now be evicted from their homes.
Margretty Rabang, one of a few members disenrolled in a separate action in May, and for 27 years a preschool teacher’s aide for the tribe, is already in eviction proceedings.
“I have a 1- and 3-year-old I’m raising,” she said, referring to her grandkids. The prospect of being thrown out of her home before Christmas has left her so stressed that she has started taking antidepressants, she said.
Yet the future is hard to predict when it comes to the Nooksack saga, which has taken one bizarre and dramatic turn after another.
The tribe has summarily disbarred Gabriel Galanda, the aggressive Seattle attorney representing those facing disenrollment; fired a judge who ruled against the council; and refused to enforce appellate-court orders. One, never carried out, directed the tribal police chief to arrest the Nooksack court clerk who refused to accept Galanda’s pleadings.
Now, the tribe appears headed for a showdown with the federal government.
Feds issue warning
In October, Lawrence Roberts, the Department of Interior’s principal deputy assistant secretary for Indian affairs, wrote Kelly that his department would refuse to recognize any actions taken by the council since March 24. By that date, the council was obliged by its constitution to hold new elections.
Instead, four people with expired terms have continued to serve on the council.
The remaining four members (three if you don’t count a dissident barred from proceedings after a disputed recall election) do not constitute a quorum, Lawrence Roberts wrote, calling his rebuke “exceedingly rare.”
He warned that the Bureau of Indian Affairs (BIA), which falls under his department, would consequently review federal funding contracts.
If the situation continues, he warned, the BIA would take over from the tribe in providing federally funded services.
“I can probably count on one hand the number of times I’ve seen something like that in the 47 years I’ve worked with the tribes,” said Eric Eberhard, who teaches Indian law at the University of Washington and has represented tribes nationwide.
“It does happen,” though, he said. “The BIA is ultimately responsible to Congress that the [taxpayer] funds are being properly spent,” he said.
Federal contracts with the Nooksack tribe for fiscal 2016 amount to at least $10 million, according to documents and information from the BIA, the U.S. Department of Housing and Urban Development (HUD) and the Indian Health Sevice.
Far from being deterred by Lawrence Roberts’ letter, the tribal council held a referendum on whether to immediately disenroll the so-called “Nooksack 306.”
None of those facing disenrollment was allowed to vote. That ran counter to a ruling by a panel of three Nooksack appellate judges, provided to the tribe through a contract with the Northwest Intertribal Court System.
The judges ruled in March that the hundreds at risk of being purged were still, until a final decision had been reached, members.
The disenrollment referendum also excluded tribal members living outside Whatcom County from voting, said Michelle Roberts, a spokeswoman for the “306.” Including them, she said, the tribe’s eligible voting population numbers 1,800.
Referendum results posted on the tribe’s Facebook page Nov. 4 indicated 229 people voted; 209 voted yes.
So Lawrence Roberts wrote another letter to the council saying the Interior Department would not recognize the results — or any vote that failed to include all enrolled members. Roberts said that applied to long-delayed council elections finally due to take place in December and January, beginning with a primary.
Kelly said by email that he did not view the letters from the nation’s highest-ranking official for Indian affairs as binding. He pointed to rulings by the Nooksack Tribal Court over the last two months that purported to invalidate appellate orders, despite the tribal court’s being a lower body.
According to Kelly, by listening to the Nooksack council’s pleadings, the tribal-court judge, whose predecessor had been fired by the same council, was implicitly conveying legitimacy.
“The Department of Interior is required to follow the law just as we are,” Kelly said, by “law” meaning the tribal court orders. A federal process addresses funding issues, he added. “We look forward to addressing their concerns in that process if it comes to that.”
Kelly has asked for a meeting with Lawrence Roberts, who said in his latest letter he would make arrangements for one in the near future.
“Where are they going to go”
Rabang’s next eviction hearing, meanwhile, is set for Dec. 14. During a Nov. 9 hearing, she walked into the courthouse without her attorney, Galanda, who has not only been disbarred by the council but banned from tribal property. Wrapped in a Native American blanket, with drum-beating supporters behind him, he said to tribal police officers keeping him at bay: “You have zero authority.”
The tribal judge set a new hearing to give Rabang time to find another attorney.
“My kids are here. All my grandkids are here,” she said in a later interview, explaining why leaving would be hard.
There would be financial implications. When Rabang turned 55 this year, her rent for the four-bedroom house she has lived in for 22 years dropped to just $150 a month. She said she and her husband, a landscaper, would probably have to move to Canada, where her husband is enrolled in another tribe and could get housing benefits.
Still, she said, she could find a place. She worried about relatives in their 70s and 80s in the same situation. “Where are they going to go?”
Like other housing provided by the tribe, much of it rent to own, Rabang’s home is HUD-subsidized. In fiscal 2016, the agency allocated $870,000 to the Nooksack.
The tribe has a right to restrict federally subsidized housing to tribal members, said Lee Jones, spokesman for HUD’s regional office in Seattle. He added that HUD does not get involved in disenrollment matters.
It would, however, listen to recommendations by the Interior Department, Jones said. “Obviously, we will pay close attention to how Interior moves forward.”
The Indian Health Service, which appropriated $2.4 million to the tribe this year, is sending out stronger signals. Dean Seyler, director of the agency’s regional, Portland-based office, wrote to the Nooksack tribal chair earlier this month. He attached one of Lawrence Roberts’ letters to Kelly, referenced the quorum issue and raised concern about reports that the tribe was refusing to provide health care to those threatened with disenrollment.
Until a final decision had been reached, Seyler wrote, the tribe was required to provide health services to everyone eligible. If not, his agency would be forced to take “necessary measures.”
Of course, there is no consensus on whether a final decision has now been reached. Galanda, combative as ever, insists it has not and that no legitimate government will enforce the disenrollments.
There will perhaps be a “moment of truth” when the tribe issues evictions, he conceded. Locks can be changed. Tribal police officers can be called.
Still, Galanda insisted, “My clients are not going anywhere.”