tribal membership

Year-End News Coverage of Nooksack Disenrollments Controversy

Matthew L.M. Fletcher

Here.

An excerpt:

The 306 people fighting to stay on the Nooksack Indian Tribe’s membership rolls won a rare legal victory recently when Tribal Court Chief Judge Raquel Montoya-Lewis ruled that tribal leaders had violated their rights by denying them $250-per-person Christmas checks that were mailed to everyone else in the 2,000-member tribe.

But the ruling didn’t put any extra presents under anyone’s tree. While Montoya-Lewis ruled that it was illegal to deny the 306 the same treatment as other tribe members before their legal status is determined, she also decided that she had no legal authority to order Chairman Bob Kelly and his supporters on the tribal council to issue checks to anyone.

The episode was one more example of the difficulties that the 306 have faced during the past year, as they try to get courts to block the move to strip them of tribal membership under a process known as disenrollment.

Ninth Circuit Affirms Injunction against BIA in San Pasqual Band of Mission Indians Membership Dispute

Matthew L.M. Fletcher2 Comments

Here are the materials in Alto v. Black:

CA9 Opinion

San Pasqual Band of Mission Indians Brief

Alto Answer Brief

Federal Appellee Brief

San Pasqual Band of Mission Indians Reply Brief

An excerpt:

In an appeal from the district court’s orders denying a motion to dissolve a preliminary injunction and denying motions to dismiss in an action concerning a dispute over membership in an Indian tribe, the panel affirmed in part, dismissed in part, and remanded. The San Pasqual Band of Mission Indians’ governing documents vested the United States Department of Interior, Bureau of Indian Affairs, with ultimate authority over membership. The panel held that the district court had jurisdiction to enjoin preliminarily the enforcement of the Bureau of Indian Affairs’ order upholding the Band’s decision to disenroll descendants of Marcus Alto, Sr. from the Band, and that the Band was not a required party, because the claims underlying the preliminary injunction concern solely the propriety of final agency action. Accordingly, the panel affirmed the district court’s denial of the Band’s motion to dismiss the claims on which the injunction rests and  the district court’s consequent refusal to dissolve the preliminary injunction. The panel remanded to allow the district court to clarify its order. Finally, the panel held that it lacked jurisdiction to review on interlocutory appeal the Band’s motion to dismiss the Altos’ other claims, on which the district court expressly deferred ruling.

Lower court materials here and here.

Nooksack Issues TRO in Nooksack Tribal Christmas Checks Dispute with Proposed Disenrollees

Matthew L.M. Fletcher2 Comments

Here are the new materials in St. Germaine v. Kelly (Nooksack Tribal Court):

St Germain v Kelly Brief in Support of TRO Relief

St Germain v Kelly Defendants’ Response in Opposition to Motion for TRO

St Germain v Kelly Order Granting Motion for TRO

An excerpt from the order:

Therefore, the Court finds that, at this preliminary TRO stage in this matter, the Defendants have violated the Nooksack Indian Tribe’s Constitution, Article IX and the Equal Protection clause of the Indian Civil Rights Act in passing Resolution 13-171 and acting upon it. The Court orders that the Defendants be enjoined from treating the proposed disenrollees differently from other tribal members with respect to the Christmas Support distribution. However, the Court finds that the Court cannot order specific relief requiring the expenditure of tribal funds. The Court hopes, however, that the Defendants will consider the implications of Resolution 13-171 and treat the Plaintiff proposed-disenrollees fairly, despite the fact that the Court is prohibited by the law from ordering them to do so.

Nooksack Tribal Councilwoman Michelle Roberts on Disenrollments

Matthew L.M. Fletcher

Here is “Genocide: A Year In The Life of The Nooksack 306.”

Additional news coverage here.

Federal Court Remands Cal. Valley Miwok Membership Issues to BIA

Matthew L.M. Fletcher

Here are the materials in California Valley Miwok Tribe v. Jewell (D. D.C.):

56 Federal Motion for Summary J

83 Intervenor CVMT Response to US Motion

86 Plaintiff CVMT Reply

87 DCT Order Denying Motion for Reconsideration

88 DCT Order on Cross-Motions for Summary J

An excerpt:

For the reasons discussed below, this Court concludes that the Assistant Secretary erred when he assumed that the Tribe’s membership is limited to five individuals and further assumed that the Tribe is governed by a duly constituted tribal council, thereby ignoring multiple administrative and court decisions that express concern about the nature of the Tribe’s governance. Therefore, the Court will grant Plaintiffs’ motion for summary judgment in so far as it seeks remand of the August 2011 Decision and deny the Federal Defendants’ cross motion for summary judgment.

Prior posts are here, here, and here.

Fourth Suit Challening Nooksack Tribal Member Disenrollments Fails

Matthew L.M. Fletcher1 Comment

Here are the updated materials in St. Germaine v. Kelly (Nooksack Tribal Court):

St Germain v. Kelly TRO Motion

St Germain v. Kelly Declaration of Michelle Roberts

St Germain v. Kelly Declaration of Rudy St. Germain

St Germain v. Kelly Order on Motion for Temporary Restraining ORder

The complaint is here.

Fourth Nooksack Tribal Court Complaint in Disenrollment Dispute; IGRA Violations Alleged

Matthew L.M. Fletcher1 Comment

Here is the complaint:

Rudy St Germain v Kelly Complaint For Prospective Equitable Relief

And a press release:

Nooksack 306 Deprived Of Christmas Support

Deming, WA – Today the Nooksack 306 were forced to file yet another Tribal Court lawsuit, after it became public that on December 3, the Nooksack Tribal Council Faction led by Chairman Bob Kelly voted via secret “poll” to exclude the 306 families from $250 in Christmas support.

The families have asked the Nooksack Tribal Court to stop the Kelly Faction from excluding 306 families from the distribution, which they intend to make starting this Thursday, December 12.

“We are disgusted but not surprised that Bob Kelly and his followers would now deprive our families from Christmas support,” said Nooksack 306 family spokesperson Moreno Peralta.  “The holidays are a struggle for many of us, and they know that. This is just pure insult that is being added to the deep injury we’ve already suffered this year.”

Tribal member comments on the Tribe’s Facebook page confirm that Nooksack “families in need” could really use the Christmas monies.

The lawsuit alleges violation of the equal protection clauses in the Nooksack Constitution and federal Indian Civil Rights Act, as well as the Indian Gaming Regulatory Act (IGRA), which prevents tribes from distributing gaming revenues on a per capita basis without a federally-approved revenue allocation plan and/or in discriminatory fashion.

The Nooksack Tribe does not have any such revenue allocation plan.  The resulting violations of IGRA could result in the National Indian Gaming Commission levying civil fines against the Tribe up to $25,000 per distribution and/or closing the Tribe’s two gaming facilities.

New Scholarship on Tribal Membership and UNDRIP

Matthew L.M. Fletcher

Shin Amai and Kate Buttery have posted “Indigenous Belonging: A Commentary on Membership and Identity in the United Nations Declaration on the Rights of Indigenous People,” forthcoming in Oxford Commentaries on International Law: A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples, on SSRN.

Here is the abstract:

The recognition of indigenous peoples’ right to determine their own membership is crucial to the survival of indigenous groups and for their ability to meaningfully exercise their right to self-determination. This chapter will begin with a discussion of who indigenous peoples are, and will then proceed to review the specific provisions of the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) as they pertain to indigenous-determined group membership and duties: Articles 9 (right to belong); 33 (right to determine membership); 35 (right to determine responsibilities of members); and 36 (right to maintain relations across borders). Together, these provisions reinforce the right of indigenous peoples to define themselves, both in terms of membership and geographic scope. These rights are not absolute, however, and are constrained by Articles 44 (gender equality) and Article 46 (compliance with international human rights standards).

N.C. Trial Court Concludes First Generation Eastern Band Cherokee Descedent a Non-Indian for Criminal Jurisdiction Purposes

Matthew L.M. Fletcher1 Comment

Here is the opinion in State v. Nobles:

Nobles Order Final 112613

Briefs are here.

Part 1: Update on Tribal Membership/Disenrollment Issues at Grand Ronde — Complaint Filed

Matthew L.M. Fletcher2 Comments

Here is the complaint in Williams v. Leno (Confederated Tribes of Grand Ronde Tribal Ct.):

Williams v Leno Grand Ronde Tribal Court Complaint For Sanctions And Declaratory Relief

And the accompanying press release:

Lawsuit Filed Against Officials of the Confederated Tribes of Grand Ronde Challenging Illegal Enrollment Audit and Resulting Disenrollment Proceedings
Grand Ronde, OR – An ethics lawsuit has been filed in Grand Ronde Tribal Court against top officials of the Confederated Tribes of Grand Ronde regarding the proposed disenrollment of as many as 1,000 tribal members.  The lawsuit names the Tribal Council Chairman Reyn Leno and Enrollment Department Head Penny Deloe and alleges that they breached tribal law by disclosing members’ enrollment records and personal information to a third-party consulting firm in Albuquerque, New Mexico.

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