The greatest threat to tribal sovereignty is the failure of tribes to abide by the laws they have made to govern themselves when the application of those laws do not give individuals or governing bodies the result they desire. Observing the Rule of Law only when it suits your needs or desires is actually lawlessness. It is no excuse that we live in a country whose government has been drifting into lawlessness powered by the corrupting influence of money. Tribal nations need to rise above and set and keep a higher standard.
These are dangerous times for Indian tribes with tribal sovereignty and sovereign immunity under fire, sometimes because of abuses by the tribes themselves. Employing tribal sovereign immunity to victimize and disenroll tribal members is just one of those abuses, sometimes aided by the inaction of the Federal trustee which has trust obligations to Indian tribes and their aggregate individual Indian members.
Like the rest of Indian Country, I have followed with interest how a small faction of Nooksack‘leadership,’ and its non-Indian and Indian surrogates, have gutted the entire Nooksack Tribal Government and Tribal Courts in the process of disenrolling about 300 Nooksack Indians from the tribe, in an attempt to maintain control by what is known as the Holdover Council. After a long history of having turned its back on thousands of disenrolled Indians and flouting its trust responsibility to disenrolled Indians for decades, the United States has finally said enough is enough. It will not recognize a tribal decision to disenroll some 300 tribal members by a tribal council sitting in violation of its own constitution and laws.
Several federal agencies, including the Department of the Interior (DOI), Bureau of Indian Affairs (BIA), Indian Health Service (IHS) and Housing and Urban Development (HUD), no longer recognize the entity that purports to be the Nooksack Tribal Council. Through three decisions issued last year by Acting Assistant Secretary Larry Roberts, Interior determined that the Nooksack Indian Tribe does not have a legitimate governing body, elected in conformance with the Nooksack Constitution (it required an election for five (5) of the positions on the Council to be held over a year ago). The Feds say that with less than five (5) legitimately elected council positions being filed, there is no Nooksack Tribal Council quorum to act for the tribe. DOI has proceeded to issue notice that it cannot determine that there is a bona fide tribal governing body in charge at Nooksack. It is the U.S. trustee’s responsibility to make sure that funds are being controlled and spent by a legitimate tribal government. IHS has reassumed responsibility for the provision of health services at the tribal health facilities. Since the tribal court also has been rendered without authority to act, presumably the BIA also will engage in its trust duty to make sure there is law and order on the reservation.
The U.S. District Court for the Western District of Washington has ruled that the so-called Holdover Council, acting as “the Nooksack Indian Tribe,” lacks standing to bring suit against Interior Secretary Ryan Zinke because “they are not duly elected under the Nooksack Tribe’s Constitution.” The case challenged Interior’s decision not to recognize the Holdover Council as a bona fide legal tribal governing body and was recently dismissed by the Federal court judge whose decision tracked the language of the DOI/BIA decision(s). The same Federal court has also taken jurisdiction in a private RICO action filed by the Nooksack disenrollees. The court ruled, on the Holdover Council’s motion to dismiss, that the disenrolled can pursue their action against the Holdover Council and its non-Indian “judge” (the tribe’s attorney) who was installed to control the tribal court after the Holdover Council fired the court’s Chief Judge for ruling against them. The Federal District Court appeared to be shocked with this nullification of the independence of the tribal court, and rightfully so. The conduct of the Holdover Council has made headlines, especially regarding its treatment of its own people.
The Department of Interior’s Assistant Secretary for Indian Affairs, Larry Roberts, notified other Federal agencies, such as IHS, HUD, and presumably the NIGC, that it will no longer issue Federal funds to the Nooksack Indian Tribe. So why is the NIGC not acting at Nooksack commensurate with the other Federal agencies? The NIGC has closed Indian casinos in the past when it could not determine that the facilities and revenues were in control of a bona fide tribal governing body. As former Chairman of the NIGC, I shut down the Elem Casino in California when the factions were shooting at each other and the casino operations did not appear to be in control of a recognized tribal government. NIGC Chairman Phil Hogen shut down the Sac and Fox Tribe’s Meskwaki Casino in 2013. The present NIGC Chairman shut down Chukchansi Gold Casino in California when it could not be determined whether a bona fide tribal government was in control of the casino and its revenue (this action after physical force was used in the takeover of Chukchansi tribal gaming).
Is there some rationale, or some kind of favoritism, or political influence in play, or some legal excuse for not acting in this analogous situation? For some reason the Nooksack Holdover Council is getting special treatment. This is no mere internal matter involving tribal politics or membership or an enrollment dispute. It is a matter of the NIGC as trustee doing its duty under IGRA and its own regulations now that the tribal gaming facilities and revenue are now in the hands of an entity that the Department of Interior has determined is not the legitimate governing body. Additionally, the office of Indian gaming should be requesting the Inspector General and FBI to assist in investigating to whom and where these funds are going. The U.S. Trustee is acting in a very disjointed manner here. An attempt to have questions answered by the NIGC was met with a response that the commission was “limited” in its ability to provide information.
The Nooksack Holdover Council continues to make gaming per capita distributions to their families and allies, but excluded the Nooksack 300 from those payments. Calling these payments from Indian gaming revenues stipends or distributions does not exempt them from IGRA’s Revenue Allocation Plan (RAP) requirements before distributions can be made to individuals. IGRA and the NIGC regulations also prohibit such discriminatory distributions. It does not appear that Nooksack has ever had a RAP approved by Interior that would even allow distribution of Class II or III gaming revenues to Nooksack members. (A review of the Federal Register revealed no filing of a Nooksack RAP.) Distribution of tribal gaming revenues without an approved RAP is a serious violation of IGRA and NIGC Regulations. DOI/BIA and NIGC have a trust responsibility to all the Nooksack people to not let an illegitimate organization take, spend and distribute tribal gaming revenues, unless they are a bona fide tribal government, and then only under an IGRA-required RAP.
Nooksack, and other tribes that abuse their sovereign authority and hide behind tribal sovereign immunity to get away with it, have already given Indian country an enormous black eye at a time when we can least afford it. The NIGC should not give the Trump Administration or the U.S. Congress any reason to use Nooksack as an example to show that Indian policy needs to be fixed. This administration has already stated that tribes should “take the exit ramp of the Indian Reorganization Act (IRA) and become corporations that can monetize all land and resources” (quoting Interior Department Secretary Zinke’s remarks to tribal leaders). The actions of the Holdover Council to disregard and deconstruct the Nooksack tribal court and Nooksack court of appeals also reflects negatively on tribal courts. It validates anti-Indian sentiments that attack the fairness and due process of tribal courts. These kinds of abuses of tribal sovereign immunity and tribal authority are weakening the ability of tribes to defend their sovereignty in the courts, Congress and the administration.
Nooksack gaming should be shut down and not allowed to reassume until DOI, NIGC’s mother department, can determine that a legitimate tribal government is in charge. DOI has spoken, repeatedly, declaring that the Nooksack council is defunct and will remain illegal until a duly elected tribal council is recognized. The Federal District Court said that the DOI decisions stand during the interim until the DOI and BIA recognize a newly elected tribal council. NIGC is undermining fellow federal agency authority and disregarding the court decision upholding the DOI/BIA decisions. There is absolutely no justification for the NIGC and DOI Office of Indian Gaming inaction.