JUNE 17, 2013 - Turtle Talk...Jun 04, 2013 · Secretarial Election on Amendment to Tribal...

MOTION FOR TEMPORARY RESTRAINING ORDER AND REQUEST FOR EXPEDITED DECISION BEFORE JUNE 21, 2013 - 1

Galanda Broadman, PLLC 8606 35th Avenue NE, Ste. L1 Mail: PO Box 15146 Seattle, Washington 98115 (206) 691-3631

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Hon. Ricardo S. Martinez

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE RUDY ST. GERMAIN, MICHELLE ROBERTS, enrolled Nooksack Tribal members,

Plaintiffs,

v. UNITED STATES DEPARTMENT OF INTERIOR; BUREAU OF INDIAN AFFAIRS; SALLY JEWELL, Secretary of the Interior; KEVIN K. WASHBURN, Assistant Secretary of Indian Affairs; STANLEY SPEAKS, Northwest Regional Director; SCOTT AKIN, Acting Northwest Regional Director; JUDITH R. JOSEPH, Superintendent for the Puget Sound Agency,

Defendants.

NO. C13-945 RSM

MOTION FOR TEMPORARY RESTRAINING ORDER AND REQUEST FOR EXPEDITED DECISION BEFORE JUNE 21, 2013 ORAL ARGUMENT REQUESTED NOTE ON MOTION CALENDAR: JUNE 17, 2013

Plaintiffs Rudy St. Germain and Michelle Roberts respectfully request the Court issue a

Temporary Restraining Order (“TRO”) enjoining Defendants, their officers, employees, agents

and any other federal person collaborating with them, from conducting the Secretarial Election set

for June 21, 2013. Plaintiffs seek an expedited decision before the accelerated and unlawful June

21, 2013, election date. Plaintiffs seek this injunction because of the grave threat of irreversible

harm presented by Defendants and the lack of adequate remedy at law.

Case 2:13-cv-00945-RSM Document 4 Filed 06/17/13 of 25



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I. INTRODUCTION The Bureau of Indian Affairs (“BIA”) is in the process of holding a federal election under

an unprecedented shortened schedule, motivated by racial animus against an identifiable class and

a bare desire to harm a politically unpopular group. A faction of the Nooksack Indian Tribe seeks

to amend its constitution as part of a general scheme to disenroll members retroactively. This

Secretarial election, authorized by the BIA on April 25, 2013 (“Secretarial Election”), will

immediately and irreparably harm over three hundred members of the Nooksack Indian Tribe.

Each of the targeted Nooksacks are entitled to tribal membership pursuant to, at least, Article II,

Section 1(H) of the Nooksack Constitution. Nooksack Tribal Council Chairman Robert Kelly and

his supporters have, therefore, requested the Secretarial Election to remove that Section 1(H),

ensuring the permanent disenrollment of the targeted Nooksacks. The targeting of this politically

unpopular group is a wholly improper purpose for any federal election.

Defendants have violated federal law, as codified in the Indian Reorganization Act

(“IRA”), 25 U.S.C. § 476(c)(2)(B), by failing to notify the Tribe that the proposed amendment is

in conflict with federal law. The proposed amendment, which has a discriminatory purpose and

effect and is motivated by racial animus toward an identifiable group and protected class and bare

desire to harm a politically unpopular group, violates the equal protection guarantees of the Indian

Civil Rights Act (“ICRA”), 25 U.S.C. § 1302(a)(8). Defendants’ approval of the Secretarial

Election is also arbitrary and capricious, an abuse of discretion, and contrary to law and should be

set aside in accordance with the Administrative Procedure Act (“APA”). 5 U.S.C. § 706.

II. FACTS A. SECRETARIAL ELECTION AS A PROXY FOR DISCRIMINATORY DISENROLLMENT.

On Friday, March 1, 2013, in a morning private executive session, five members of the

eight-person Nooksack Tribal Council passed Resolution No. 13-38, titled, “Request for




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Secretarial Election on Amendment to Tribal Constitution.” Declaration of Tribal Secretary Rudy

St. Germain (“St. Germain Decl.”), ¶2; see also id., Ex. A. Resolution No. 13-38 proposed “an

amendment to the Tribal Constitution in Article II – Membership, to remove § 1(h), which states:

‘Any person who possesses at least one-fourth (1/4) degree Indian blood and who can prove

Nooksack ancestry to any degree.’” Id.; see also generally id., Ex. B. According to Chairman

Kelly, the Secretarial Election is designed to prevent “losing control of the cultural identity of the

Nooksack Tribe” by targeting “large groups or families that have much weaker ties to Nooksack

than the rest of us” – specifically, 300-plus members of Nooksack-Filipino ancestry. Declaration

of Diantha Doucette (“Doucette Decl.”), Ex. B; St. Germain Decl., ¶3; id., Ex. C. The

Chairman’s admission is proof positive that the federal election is motivated by racial animus, and

a proxy for the retroactive disenrollment of Plaintiffs and over 300 of their relatives, and therefore

illegal. At minimum, the admission exhibits a bare desire to harm a politically unpopular group.

B. DEFENDANTS’ FAILURE TO APPRECIATE TRIBAL ILLEGALITY OF ELECTION. Also on Friday, March 1, 2013, Chairman Kelly travelled from the Nooksack Reservation

to Everett, Washington, to hand deliver a signed and codified version of Resolution No. 13-38 to

BIA Puget Sound Agency Superintendent Judith Joseph. Declaration of Gabriel S. Galanda

(“Galanda Decl.”), Exs. A-B. Chairman Kelly, Councilperson Katherine Canete,1 and Tribal

1 Defendant Canete has also exhibited the discriminatory intent of the Secretarial Election as a means to harm a suspect class and a politically unpopular group:

Vote YES to remove letter (h) from Article II of our Nooksack Tribal Constitution. I will be voting yes because the way I see it, it is simple . . . You are either Nooksack or you’re Not, and if you’re not then you don’t get to enroll! If you are Nooksack you would qualify under letters (A) through (G). Our Nooksack ancestors fought so hard and suffered many trials to keep Nooksack alive for our LINEAL Nooksacks! And I am not going to give our Nooksack away to anyone who does not descend from Nooksack. #keepitreal!




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attorney Grett Hurley met with Superintendent Joseph again on Monday, March 4, 2013, to go

over a “timeline for holding a Secretarial Election on adoption of an amendment to a

constitution.” Id., Ex. B.2 The very next day – only one full business day after Defendants

received Resolution No. 13-38 – Superintendent Joseph wrote to the BIA’s Northwest Regional

Director “requesting authorization to conduct the requested secretarial election on the proposed

amendment to the constitution.” Id., Ex. C. Superintendent Joseph simultaneously wrote

Chairman Kelly to advise him that the BIA was “requesting secretarial election on the proposed

amendment to your constitution.” Id. Superintendent Joseph did not consider the impropriety of

Chairman Kelly’s request for the Secretarial Election. See generally id.

Previously, on February 12, 2013, the same five members of the Tribal Council who

promulgated Resolution No. 13-38 passed Resolution No. 13-02, which initiated “involuntary

disenrollment proceedings” against Plaintiffs and over 300 other enrolled Tribal members of

mixed Nooksack-Filipino ancestry – 15% of the Tribe’s membership – “who descended from

Annie James (George) or Andrew James.” St. Germain Decl., ¶3; id., Ex. C. Resolution No. 13-

02, too, was passed in private executive session. Id. The Tribal Council majority failed to

convene the monthly General Meeting of the Tribe in February or March 2013, each of which

public meetings would have occurred within one week of the Council’s passage of Resolution

Nos. 13-02 and 13-38, respectively, behind closed doors. St. Germain Decl., ¶2. The Tribal St. Germain Decl., Ex. E. As it stands, any person can be enrolled Nooksack without lineage provided they possess at least one-quarter Indian blood and are adopted by an adopted member of the Tribe per Article II, Section 1(G) of the Constitution. St. Germain Decl., Ex. B. 2 Defendant Superintendent Joseph provided Chairman Kelly and his allies with an outdated and annotated version of 25 CFR § 81. Galanda Decl., Ex. B. The two annotations concern election timing and suggest time was (and is) of the essence for the Secretarial Election for Chairman Kelly, et al., and Defendant Superintendent Joseph. See id. (concerning a “[n]otification of the election date,” 25 C.F.R. § 81.5, and that “no less than ten days” shall be allowed for voters to receive and return mail-in ballots, 25 C.F.R. § 81.19) (emphasis in original). Superintendent Joseph’s annotation did not highlight that “requests for absentee ballots received less than ten days before an election will be promptly honored.” 25 C.F.R. § 81.19.




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Council majority’s failure to hold those public meetings, and instead to conduct business in

private meetings, per se violated in Article II, Section 2 of the Nooksack Bylaws, which provides

that “the tribal council shall meet on the first Tuesday of each month.” Id., Ex. B. (emphasis

added); see also id. (Article II, Section 6 of the Bylaws: “All sessions of the tribal council (except

executive) shall be open to all members of the public.”) (emphasis added).

At the outset of that closed-door Tribal Council meeting on February 12, 2013, Chairman

Kelly ordered Plaintiffs Tribal Secretary Rudy St. Germain and Councilwoman Michelle Roberts

to leave the meeting. Id., ¶4. Councilpersons St. Germain and Roberts disagreed with being

excluded from the meeting; but rather than provoke a conflict, St. Germain and Roberts left the

meeting and waited outside of the Tribal Council meeting room for the next seven hours. Id.

Plaintiffs’ exclusion from the February 12, 2013, Tribal Council meeting violated Article III,

Section 2 of the Constitution, which provides: “The governing body under this constitution shall

be composed of one (1) chairman, one (1) vice-chairman, one (1) secretary, (1) treasurer, and four

(4) councilman,” and Article VI of the Constitution, which defines the powers of the eight-person

“Tribal Council.” Id., Ex. B (emphasis added). Plaintiffs’ exclusion also violated Article I,

Section 3 of the Bylaws, which says that the Tribal Secretary, “shall be present at all meetings of

the Tribal Council.” Id. (emphasis added).3

C. DEFENDANTS FAIL TO CONDUCT REQUIRED FEDERAL LEGAL REVIEW. On March 20, 2013, Defendant Acting Northwest Regional Director Scott Akin

3 Councilpersons St. Germain and Roberts’ exclusion also violated the custom, tradition, and understanding of the Nooksack Tribal Council of following Robert’s Rules of Order. St. Germain Decl., ¶5. Section 45 of Robert’s Rules of Order establishes that no voting member of a governing body should ever be compelled to leave a duly called meeting or to refrain from voting on any matter where he or she has a direct interest; in this case, Councilpersons St. Germain and Roberts’ disenrollment. Id. Instead, that voting Tribal Council member should be allowed to stay in the meeting and to decide for him or herself whether to vote or abstain on the matter. Id.




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purportedly completed the BIA’s “technical review” of the proposed constitutional amendment

and authorized Defendant Superintendent Joseph “to call and conduct the secretarial election.”

Galanda Decl., Ex. F. Crucially, neither Defendant Acting Northwest Regional Director nor any

other Defendants ensured that the proposed amendment does not violate federal law. Id.; see also

U.S. DEP’T OF INTERIOR, BUREAU OF INDIAN AFFAIRS, TRIBAL CONSTITUTIONS: A HANDBOOK FOR

BIA PERSONNEL (1987) [hereinafter “BIA Handbook”], at 4-5 (“In addition to technical

considerations[, a] proposed constitution will be considered ‘appropriate’ for Secretarial approval

only if it does not violate Federal law.”) (reproduced in Galanda Decl., Ex. G).

Meanwhile, on March 26, 2013, the Nooksack Tribal Council passed Resolution No. 13-

53, thereby appointing a Secretarial Election Board to administer the federal election to remove

Article I, Section H from the Nooksack Constitution. St. Germain Decl., ¶6; id., Ex. D. Like the

aforementioned Resolutions, Resolution No. 13-53 was passed in private executive session,

without the Tribal Council having convened the monthly General Meeting of the Nooksack Tribe,

in violation of Nooksack Constitution, art. II, §§ 2,6. In part, the Tribal Council appointed Tribal

Enrollment Officer Roy Bailey, whose “discovery” is cited in Resolution No. 13-02 as the genesis

for the disenrollment effort. Cf. St. Germain Decl., Ex. C, with id., Ex. D. According to

Secretary St. Germain: “The Tribal Enrollment Officer’s appointment to the Election Board that

will preside over the federal election to amend the Nooksack Constitution is very telling; it is a

strong tie that binds the Tribal Council’s disenrollment efforts with the Council’s Constitutional

amendment efforts.” Id., ¶6.

D. DEFENDANTS DISENFRANCHISE NOOKSACK VOTERS. On April 29, 2013, Chairman Bob Kelly sent a federal-election propaganda packet to

some, but not all, of Nooksack Tribal members, begging those selected Tribal members to register

to vote in the Secretarial Election in order to, again, “control [the] cultural identity of the




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Nooksack Tribe,” by targeting “large groups or families that [allegedly] have much weaker ties to

Nooksack than the rest of us who are currently enrolled here.” Doucette Decl., Ex. B; St.

Germain Decl., ¶7. Plaintiff St. Germain and his relatives who are proposed for disenrollment did

not receive Chairman Kelly’s propaganda aimed at them, as “large groups or families” of mixed

Filipino-Nooksack ancestry,4 in order to accomplish their termination from the Tribe pursuant to

Resolution No. 13-53. Id.; Doucette Decl., ¶¶6-7; Declaration of Brina Aldredge (“Aldredge

Decl.”), ¶3; Declaration of Alexander Nicol-Mills (“Nicol-Mills Decl.”), ¶4; Declaration of Crissa

Casano (“Casano Decl.”), ¶4; Declaration of Kirk Brown (“Brown Decl.”), ¶4.

That same day, Superintendent Joseph issued a Notice of Secretarial Election and voter

registration packet to the Nooksack electorate. Doucette Decl., Ex. A. The Notice stated that

Defendant BIA Regional Director had “approved and authorized a Secretarial Election” and that

Defendant Superintendent Joseph had been appointed as “Chairman” of the Election Board “to

conduct the Secretarial Election pursuant to regulations found in 25 CFR Part 81.” Id. The

“Rules of Secretarial Election” enclosed with the Notice explained to Nooksack voters: “This

election will be conducted by mail-in ballot. NO POLL VOTING WILL BE ALLOWED.” Id.

Superintendent Joseph set the date of the Secretarial Election for June 21, 2013, and stated

that all voter registration forms must be received by May 10, 2013 – only ten working days later.

Id. Superintendent Joseph set June 4, 2013, as the deadline for challenging omissions from the

official eligible voter list – even though 25 C.F.R. § 81.13 allows until June 11, 2013, for doing 4 Plaintiffs and their 300-plus relatives proposed for termination via the Secretarial Election comprise the “large” Rabang, Rapada and Narte-Gladstone families. See generally Galanda Decl., Ex. D, at 2 (June 9, 2013, Letter from Dr. Bruce Miller, The University of British Columbia stating that “[t]he Rabang, Rapada and Narte/Gladstone extended family ancestry shows their continuing connections to the Nooksack”); see also id., Ex. E (May 7, 2013, Letter from Dr. Jay Miller, University of Washington: “In all, it is my informed professional opinion that because at least Matsqui George was Nooksack by blood, his biological daughter, Annie George Mack James, was too. As such, Annie and her heirs are fully qualified to be enrolled Nooksack, as they have been for decades.”).




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so. Id. The “Rules of Secretarial Election” section further explained: “REMEMBER, THIS IS A

FEDERAL ELECTION, NOT A TRIBAL ELECTION.” Id. In all, Superintendent Joseph set a

90-day process for the federal election. Cf. 25 C.F.R. § 81.5(f).5

Several Nooksack voters “never received a Voter Registration Packet and [were] therefore

unable to register to vote by the May 10, 2013 deadline.” See e.g. Brown Decl., ¶3; Nicol-Mills

Decl., ¶4; Casano Decl., ¶4. These Nooksacks were not allowed to register, despite 25 C.F.R. §

81.19’s promise that “requests for absentee ballots received less than ten days before an election

will be promptly honored.” Other Nooksack voters received the Secretarial Election voter

registration packet, but ten working days between April 29 and May 10, 2013, proved to be an

insufficient amount of time for them to get registered via received and returned mail. See e.g.

Declaration of James Rapada (“Rapada Decl.”), ¶5 (“I filled out my voter registration form and

mailed it to the BIA on May 3, 2013. My name does not, however, appear on the Official List of

Registered Voters for the Secretarial election.”); Declaration of Karen Ahenakew (“K. Ahenakew

Decl.”), ¶3 (“I filled out my voter registration form and mailed it to the BIA, however it arrived a

day late. My name does not appear on the Official List of Registered Voters for the Secretarial

election. Based on my experience, 10 business days was not long enough for mail to be sent from

the United States to Canada and returned.”). As such, this category of Nooksack voters are not

listed on the “Final Official List of Registered Voters – Registered By the Bureau of Indian

Affairs Puget Sound Agency – For the Nooksack Tribal Secretarial Election of June 21, 2013.”

Galanda Decl., Ex. F. Several Nooksack voters who registered before May 10, 2013, but are not 5 Defendants will surely defend this Motion by claiming that “because the statute requires the Secretary to hold an election within ninety days, there is not a great deal of flexibility on timing.” Galanda Decl., Ex. Q. Even so, the Court should wonder why took the BIA so long – i.e., from March 20, 2013, when it received Defendant Acting Northwest Regional Director’s authorization to convene the election, until April 29, 2013 – to notice the election. Id., Ex. F; Doucette Decl., Ex. A. The result of that 40-day delay was allowing Nooksack voters only ten days to get registered to vote in a federal constitutional election of enormous tribal significance.




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listed on the Voter Registration List, filed “written challenges” to their omission with

Superintendent/Election Board Chairman Joseph, per 25 C.F.R. § 81.13. See e.g. Aldredge

Decl., Ex. A; K. Ahenakew Decl., Ex. A; Declaration of Lance Campbell (“Campbell Decl.”), Ex.

A; see also Rapada Decl., Ex. A (“25 CFR 81 allows me until today – ‘at least ten days before the

election’ – to offer this challenge, although I see from the voter registration packet you mailed out

that you required challenges to be made by June 4.”).

But Superintendent Joseph denied those challenges, because Defendants “have no record”

of the voter-challengers’ registration forms. Galanda Decl., Ex. I. No opportunity was given for

the challenger to provide proof that they “filled out the voter registration form and mailed it to the

BIA by May 10, 2013.” Id. Defendants denied other challenges because the registration form

was received a few after the deadline. Galanda Decl., Ex. H (“We received your registration on

May 13, 2013.”); but see Aldredge Decl., ¶5 (“I filled out my voter registration form and mailed it

to the BIA from California on May 6, 2013.”). Again, this was in violation of 25 C.F.R. § 81.19,

which requires that “requests for absentee ballots received less than ten days before an election

will be promptly honored.”

In all, Defendants entirely failed to allow enough time for Nooksack voters to duly register

for the Secretarial Election, especially those living off of the Nooksack Reservation and in

Canada, like Lance Campbell, who lives in Vancouver, British Columbia.6 Campbell Decl., ¶¶3-4

(“On May 6, 2013, I received Voter Registration Packet from the Bureau of Indian Affairs Puget

Sound Agency for the June 2013 Secretarial election. . . . I filled out my voter registration form

and mailed it to the BIA on May 7, 2013. My name does not, however, appear on the Official List 6 “[T]he [Nooksack] tribe was considered Canadian until 1973.” In re Junious M, 144 Cal.App. 3d 786, 792 (Cal. App. 1983). According to Dr. Bruce Miller: “In the case of the Nooksack, tribal members have long lived on both sides of what is now the international border.” Galanda Decl., Ex. D, at 2; see also generally Eileen M. Luna-Firebaugh, The Border Crossed Us: Border Crossing Issues of the Indigenous Peoples of the Americas, 17 WICAZO SA REV. 159 (2002).




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of Registered Voters for the Secretarial election.”). As former Nooksack administrator Diantha

Doucette explains:

[T]en business days, or less, is simply not enough time to allow each and every Nooksack voter: (1) to receive the Secretarial election information and propaganda in the first instance, especially those members living in Canada; (2) to then read and understand the nearly 40 pages of documentation (much of which reads as legalese) regarding a federal election and proposed Tribal constitutional amendment; (3) to then consult with Nooksack family, community members, and Tribal leaders and/or the BIA about the election and proposed amendment to our Tribal Constitution; and (4) to in that consultation process somehow decide whether or not Section H is in fact “harmful” to the Tribe as Chairman Kelly says and the BIA suggests; (5) to eventually decide whether to register to exercise the Nooksack constitutional right to vote in an election being conducted by a non-tribal government; and (6) to finally take action to complete the federal voter registration paperwork and in turn mail it back to the BIA, probably through a visit to the Post Office.

Doucette Decl., ¶11.

Defendants’ decisions to convene the Secretarial Election by absentee rather than poll

voting and to carry out the federal election at a rapid pace, coupled with the precipitating

Constitutional and democratic failures of the Nooksack Tribal Council, along with violations of

25 C.F.R. § 81.19, alone counsel for the stoppage of the federal election. See Doucette Decl., Ex.

A; ¶12 (“the rather accelerated pace of this Secretarial election, in addition to the selective

mailings and propaganda from Chairman Kelly, make me seriously question whether this election

is being conducted for a proper purpose and otherwise in a good way.”); Split Family Group v.

Moran, 232 F.Supp.2d 1133, 1136 (D. Mont. 2002) (“[R]ushing this [Secretarial] election . . .

risks a needlessly uninformed electorate, greater expense [and a] possibility of mistake in creating

the election roll and preparing the ballot”). Indeed, when a Secretarial Election to amend the

Nooksack Constitution was last conducted, in 1989 voting occurred at polling locations for

members living on-reservation, and via absentee voting for those living in Canada and elsewhere.

Galanda Decl., Ex.s K, M-N. And as additional time and other provisions were allowed to




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accommodate absentee voting via mail by Canadian members, the election took four months, not

90 days.7 Id.

E. PLAINTIFFS’ REQUESTS FOR FEDERAL INTERCESSION REBUFFED. On May 2, 2013, Plaintiffs’ attorneys sent a letter on their behalf to United States Attorney

Jenny A. Durkan, alerting her to Defendants’ unlawful involvement in the Secretarial Election

that is a proxy for the disenrollment of Nooksacks of Filipino descent and a clearly identifiable

politically unpopular group, and requesting her intercession. Galanda Decl., Ex. O. The letter

alerted Ms. Durkan to Chairman Kelly’s issuance of election materials to only those Nooksack

members not of Filipino descent, the targeting of a clearly identifiable politically unpopular

group, as well as the racial animus displayed in his April 29, 2013 letter. Id. (quoting Doucette

Decl., Ex. B). The letter also informed Ms. Durkan of the procedural defects in the Secretarial

Election request, including Chairman Kelly’s refusal to hold monthly public Tribal Council

meetings in violation of Nooksack law and the exclusion of Plaintiffs from the Council’s closed

door proceedings. Id.

On May 17, 2013, the Plaintiffs, through their attorneys, sent a second letter to U.S.

Attorney Durkan, again requesting her intercession. Galanda Decl., Ex. P. This second request

emphasized that Secretarial involvement in an election motivated by animus against a suspect

class and a clearly identifiable politically unpopular group violates the Plaintiffs’ federally

guaranteed voting and civil rights. Id. The letter also drew specific attention to the insufficient

period of time allowed for voter registration. Id.

On May 24, 2013, Ms. Durkan declined to intercede to halt the federal election. Galanda

Decl., Ex. Q. Ms. Durkan declared that “the Secretary has called and will hold a Secretarial

7 The Tribe’s first Secretarial election, in 1973, took five months to complete. Galanda Decl., Ex.s L.




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election on June 21, 2013.” Id. On shortened time, and because neither the BIA nor its Interior

Board of Indian Appeals possesses the authority to issue “immediate, emergency, relief in the

nature of a temporary restraining order,” Plaintiffs respectfully request that this Court intercede

and halt the unlawful Secretarial Election, as required by the IRA and the APA. Kiowa Hearing

Board v. Acting Southern Plains Regional Director, 35 IBIA 107, 107 (2000).

III. ARGUMENT A. PLAINTIFFS SATISFY EACH STANDARD FOR OBTAINING THE REQUESTED TRO. District courts must issue a TRO where plaintiff shows that (1) “serious questions going to

the merits [a]re raised,” (2) that “the balance of hardships tips sharply in the plaintiff’s favor,” (3)

that a likelihood of irreparable injury exists, and (4) that the injunction is in the public interest.

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (citation omitted);

see also Towery v. Brewer, 672 F.3d 650, 657 (9th Cir.), cert. denied, 132 S. Ct. 1656 (2012)

(“[S]erious questions going to the merits and a balance of hardships that tips sharply towards the

plaintiff can support issuance of a [TRO], so long as the plaintiff also shows that there is a

likelihood of irreparable injury and that the injunction is in the public interest.”) (quotation

omitted); Shell Offshore v. Greenpeace, 709 F.3d 1281, 1291 (9th Cir. 2013) (same).

B. PLAINTIFFS HAVE ESTABLISHED SERIOUS QUESTIONS GOING TO THE MERITS. 1. The Secretarial Election Set For June 21, 2013, Violates The IRA.

In 1988, Congress amended Section 476 of the Indian Reorganization Act (“IRA”) to

include a timetable for the calling of an election, including a process by which the Secretary must

“review the final draft of the constitution and bylaws, or amendments thereto to determine if any

provision therein is contrary to applicable laws.”8 25 U.S.C. § 476(c)(2). The 1988 amendments

8 Section 476(c)(2)(B) of the IRA is enforceable pursuant to 25 U.S.C. § 476(d)(2). Section 476(d)(2) provides the requisite waiver of sovereign immunity and subjects the Secretary to judicial review by statute. See 25 U.S.C. § 476(d)(2) (“Actions to enforce the provisions of this section may be brought in the appropriate Federal district court.”); see also generally Sac and Fox




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impose a mandatory fiduciary duty on the Secretary to notify a tribe in writing if “the Secretary

finds that the proposed constitution and bylaws or any amendments are contrary to applicable

laws.”9 25 U.S.C. § 476(d)(1); Thomas v. U.S., 141 F.Supp.2d 1185, 1197 (W.D. Wis. 2001); see

also Timothy W. Joranko & Mark C. Van Norman, Indian Self-Determination at Bay: Secretarial

Authority to Disapprove Constitutional Amendments, 29 GONZ. L. REV. 81, 96 n.88 (1994)

(“[T]he Secretary must review the draft amendments to determine if any provision therein is

contrary to applicable laws. If the Secretary finds that a proposed amendment is contrary to

applicable laws, he must notify the tribe in writing of the objection . . . .”) (quotation omitted).

Section 102 of the 1988 Act, 25 U.S.C. § 476 note, provides:

For the purpose of this Act, the term . . . “applicable laws” means any treaty, Executive order or Act of Congress or any final decision of the Federal courts which are applicable to the tribe pursuant to an Act of Congress or by any final decision of the Federal courts.

The Indian Civil Rights Act, 25 U.S.C. § 1302 (“ICRA”), constitutes one of these “Act[s] of

Congress” that is deemed an “applicable law.” As noted by leading IRA scholars,

This review places the tribe’s constitutional decision under the very same federal court review which the Supreme Court condemned in Santa Clara Pueblo [v. Martinez, 436 U.S. 49 (1979)].10 This effectively reverses Santa Clara Pueblo insofar as constitutional amendments are concerned. Of course, the membership example is merely illustrative and the practice required by the 1988 amendments would neither be limited to membership provisions nor to the “equal protection”

Nation v. Norton, 585 F.Supp.2d 1293, 1302 (W.D. Okla. 2006). This is a private right of action that may be exercised by individual tribal members as well as the Tribe. See Thomas v. United States, 189 F.3d 662, 664-65 (7th Cir. 1999) (allowing suit by group of tribal members); Sekayumptewa v. Salazar, No. 11-8005, 2011 WL 231460, at *2 (D. Ariz. Jan. 24, 2011) (same). 9 “Prior to 1988, there were no statutory limitations upon the Secretary’s power to disapprove IRA constitutions and amendments.” Cheyenne River Sioux Tribe v. Aberdeen Area Director, 24 IBIA 55, 62 (1993). 10 In Santa Clara Pueblo, a female tribal member brought suit in federal court against the tribe, seeking declaratory and injunctive relief against enforcement of a tribal ordinance denying membership in the tribe to children of female members who marry outside the tribe, while extending membership to children of male members who marry outside the tribe. The tribal member claimed that this rule discriminated on the basis of both sex and ancestry in violation of the ICRA. The U.S. Supreme Court held that the ICRA does not authorize the bringing of civil actions for declaratory or injunctive relief to enforce its substantive provisions.




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guarantees in the ICRA. The ICRA also guarantees “due process of law,” which presents the Secretary with “substantive due process” tests by which to analyze tribal constitutional provisions. Thus, the 1988 amendments preserve the potential for the same intrusive federal review of tribal constitutional enactments which the Supreme Court found inappropriate for ordinances or the mere acts of tribal officials in Santa Clara Pueblo. . . . [Further, b]y creating a cause of action independent of the Administrative Procedures Act, Congress apparently provided for review free from the deference accorded administrative action by the APA's review provisions. . . . [T]ribal ordinances and official acts are not subject to federal review, but manifestations of the whole tribe’s vision of their government, as embodied in their constitution-making, are.

Joranko & Van Norman, supra, at 103-104, 104 n.132 (emphasis added).

The Nooksack Constitution also mandates compliance with the ICRA. See St. Germain

Decl., Ex. B (“All members of the Nooksack Indian Tribe shall be accorded equal rights pursuant

to tribal law [and] Title II of the Civil Rights Act of 1968 (82 Stat. 77) against actions of the

Nookeack Indian Tribe in the Exercise of its powers of self-government”). In Milam v. United

States Dep’t of the Interior, 10 I.L.R. 3013 (D.D.C. Dec. 23, 1982),11 it as held that the BIA may

not recognize “actions taken by a tribe [not] taken in compliance with the tribal constitution.” Id.

at 315; see also id (the BIA must “refrain from recognizing any such action taken in violation of

the constitution”). In other words, when a rogue tribal council takes actions “in derogation of the

express language of the [tribe’s] Constitution,” the BIA is prohibited from approving those

actions because the tribal constitution is, in the context of the IRA, an “applicable law.” Id. at

3016; see also See Ransom v. Babbitt, 69 F.Supp.2d 141, 151-52 (D.D.C. 1999) (“While

11 The 1988 IRA amendments did not upset the Milam decision. See generally Seminole Nation of Oklahoma v. Norton, 223 F.Supp.2d 122 (D.D.C. 2002) (applying Milam). In fact, the amendments strengthened the ability of the BIA to approve or disapprove proposed amendments.

The Secretary’s approach to the 1988 amendments amounted to a pair of bluntly contradictory recommendations, namely, that either secretarial authority to approve amendments should be abolished in order to remove the fetter on tribal self-determination it represented, or that secretarial authority should be increased in order to give it greater scope. Congress chose the latter approach . . . .

Joranko & Van Norman, supra, at 98 (citing S. REP. NO. 577, 100th Cong., 2d Sess. 36 (1988)).




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respecting tribal sovereignty, the BIA must sometimes interpret tribal law if doing so will affect

federal-tribal relations.”); United Keetoowah Band of Cherokee Indians in Oklahoma v. Muskogee

Area Director, 22 IBIA 75, 80 (1992) (the BIA “has both the authority and responsibility to

interpret tribal law”); Estate of Mary Dodge Peshlakai v. Navajo Area Director, 15 IBIA 24, 36

(1986) (“[T]he BIA must interpret tribal laws to ensure that tribal action in which the Department

has an interest is consistent with that law.”). In sum, the IRA mandates that the Secretary advise

the Tribe, in writing, if its proposed amendment violates the Nooksack Constitution.

On its face and in application, the amendment will violate the ICRA and the Milam

decision (vis-à-vis Article IX of the Nooksack Constitution’s incorporation of the ICRA). As

noted above, the proposed amendment would remove Section 1(H) from the Nooksack

Constitution, which states: “Any person who possesses at least one-fourth (1/4) degree Indian

blood and who can prove Nooksack ancestry to any degree” is entitled to Nooksack membership.

Section 1302 of the ICRA states that “[n]o Indian tribe . . . shall deny to any person within its

jurisdiction the equal protection of its laws or deprive any person of liberty or property without

due process of law.” 25 U.S.C. § 1302(a)(8).12 This provision of the ICRA “incorporate[s] . . .

the safeguards of the Bill of Rights to fit the unique needs of tribal governments” by guaranteeing

the equal protection of tribal laws and regulations. Long v. Mohegan Tribal Gaming Authority, 1

Am. Tribal Law 385, 398 (Mohegan Gaming Trial Ct. 1997) (citing Santa Clara Pueblo, 436 U.S.

at 62 n.14). Discriminatory tribal laws and regulations and/or discriminatory application of tribal

law and regulation – particularly where motivated by racial animus – do not satisfy the scrutiny

applied under Section § 1302(a)(8). A “facially neutral” law or policy that is “nonetheless

applied by government actors in a discriminatory manner” is unconstitutional under ICRA’s

12 It is important to note that Plaintiffs cause of action does not arise under the ICRA. Plaintiffs’ cause of action arises under 25 U.S.C. §476(c)(2)(B).




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Equal Protection Clause. Boston’s Children First v. Boston School Committee, 260 F.Supp.2d

318, 331 (D. Mass. 2003); see also Nunez v. Cuomo, No. 11-3457, 2012 WL 3241260, at *15

(E.D.N.Y. Aug. 17, 2012) (“Because discriminatory intent is rarely susceptible to direct proof, a

party may state an intentional discrimination claim based on circumstantial evidence of intent,

such as the disparate impact the complained of conduct has on a particular group.”) (quotation

omitted). It has long been the case that where a “challenged governmental policy is facially

neutral, proof of disproportionate impact on an identifiable group, such as evidence of gross

statistical disparities, can satisfy the intent requirement . . . .” Committee Concerning Community

Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009) (citing Village of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-66 (1977); Hazelwood School Dist. v.

United States, 433 U.S. 299, 307–08 (1977)) (quotation omitted). What is more, even if the

proposed amendment did not target a suspect class – it clearly does, as all of those targeted by the

proposed amendment are of Filipino decent – it is unmistakably is based on a bare desire to harm

a politically unpopular group. See U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 534

(1973) (“For if the constitutional conception of ‘equal protection of the laws' means anything, it

must at the very least mean that a bare congressional desire to harm a politically unpopular group

cannot constitute a legitimate governmental interest.”); Perry v. Brown, 671 F.3d 1052, 1085 (9th

Cir. 2012) (a change in law violates equal protection clause “where a privilege or protection is

withdrawn without a legitimate reason from a class of disfavored individuals, even if that right

may not have been required by the Constitution in the first place.”); Arizona Dream Act Coalition

v. Brewer, No. 12-2546, 2013 WL 2128315, at *15-*20 (D. Ariz. May 16, 2013) (citing Moreno,

413 U.S. 528; City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Romer v.

Evans, 517 U.S. 620 (1996); and Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011)).




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Here, Defendants cannot deny that their recognition of Resolution No. 13-38 will have a

disparate impact on a particular group. The Tribal Council is currently attempting to disenroll

Plaintiffs and those 300-plus Nooksacks who are similarly situated. These Nooksacks meet, at

least, the requisites of Article II, Section 1(H), of the Nooksack Constitution. See generally

Galanda Decl., Exs. D, E. Even so, as discussed above, the Tribal Council’s plan is to disenroll

these Nooksacks because their application files show that they were enrolled by a prior Tribal

Council under a different section of Article II. The Tribal Council then plans to disallow these

Nooksacks to reenroll under Article II, Section 1(H), because it will have been removed. It is

luridly obvious that Resolution No. 13-38 unconstitutionally targets Plaintiffs and those

Nooksacks who are similarly situated. Doucette Decl., Ex. B; Aldredge Decl., ¶3; Nicol-Mills

Decl., ¶4; Casano Decl., ¶4; Brown Decl., ¶4. Defendants cannot offer any legitimate

governmental interest whatsoever to establish why the Secretarial Election and the

disenrollment proceedings must be completed in tandem. Even if these similarly situated

Nooksacks were not targeted because of racial animus had any merit – it does not – they cannot

deny that Resolution No. 13-38 unconstitutionally targets an identifiable group – particularly

those 300-plus Nooksacks who are currently subject to disenrollment proceedings. See id.; see

also Amended Complaint For Injunctive Relief, Declaratory Judgment, and Mandamus, ¶28 (“In

answering [the Tribe’s email] inquiries starting in January and continuing until at least March,

2013, Defendant BIA pointed to circa 2000 news descriptions of Plaintiffs as ‘outsiders . . . of

Filipino and American Indian descent,’ and also questioned Plaintiffs’ status as Nooksacks given

their ‘Canadian Indian blood.’”).

As such, the BIA is required to object to the proposed amendment and to notify the

Tribe in writing of its objection. Plaintiffs have a clear statutory right to ensure that this




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procedure is carried out. See 25 U.S.C. § 476(d)(2) (actions to “enforce the provisions of

[Section 476] may be brought in the appropriate Federal district court”). The IRA requires that

the BIA notify the Tribal Council that the proposed amendment violates federal law – particularly

the ICRA and the Milam decision. Defendants have acted egregiously, and Plaintiffs will prevail

on the merits of this claim. At minimum, a serious question going to the merits has been raised.

2. The Secretarial Election Set For June 21, 2013, Violates The APA. Judicial review of federal agency action is made available through the Administrative

Procedures Act (“APA”).13 5 U.S.C. §§ 701-706; Ohio Valley Envt'l Coal. v. Aracoma Coal Co.,

556 F.3d 177, 192 (4th Cir. 2009). “In determining whether agency action was arbitrary and

capricious, the court must consider whether the agency considered the relevant factors and

whether a clear error of judgment was made.” Id. at 192. The reviewing court must vacate an

agency’s decision if it has relied on factors which Congress had not intended it to consider,

entirely failed to consider an important aspect of the problem, offered an explanation for its

decision that runs counter to the evidence before the agency, or is so implausible that it could not

be ascribed to a difference in view of the product of agency expertise. Nat'l Ass’n of Home

Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007). Defendants have violated the APA

in at least four instances.

First, it is hornbook law that a violation of administrative materials setting forth agency

policy gives rise to a cause of action under the APA. See U.S. v. 1996 Freightliner Fld. Tractor,

13 Exhaustion is excused where resorting to exhaustion “would simply be futile or the remedy inadequate.” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 419 (6th Cir. 1998); see also Goodin v. Innovative Technical Solutions, Inc., 489 F.Supp.2d 1157, 1163 (D. Hawai‘i, 2007) (“Plaintiffs are not required to exhaust administrative remedies when doing so would be futile or the remedy inadequate.”) (citing Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980)). Here, the Secretarial election is set for June 21, 2013. Neither the BIA nor its Interior Board of Indian Appeals possesses the authority to issue “immediate, emergency, relief in the nature of a temporary restraining order.” Kiowa Hearing Board, 35 IBIA at 107.




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634 F.3d 1113, 1116 (9th Cir. 2011) (“Generally, the government is bound by the regulations it

imposes on itself.”); Yakama Nation v. Holder, No. 11-3028, 2011 WL 5835137, at *3 (E.D.

Wash. Nov. 21, 2011) (“[T]he internal policies that can bind an agency and give rise to a cause of

action under the APA are not limited to only those rules promulgated pursuant to notice and

comment rule making,” they can also be “any published or unpublished agency guidelines”).

Here, Defendants have defied the binding policies set forth in its own handbook. See generally

BIA Handbook; Garvais v. U.S., No. 03–0290, 2010 WL 610282, at *23 (E.D. Wash. Feb. 17,

2010) (noting that the BIA Handbook “provides one relevant reference point from which to

evaluate the conduct” of BIA agents).14 The BIA Handbook states that, “[i]n addition to

technical considerations[, a] proposed constitution will be considered ‘appropriate’ for

Secretarial approval only if it does not violate Federal law.” BIA Handbook at 4-5 (emphasis

added). Defendants did not conduct the required federal legal review to ensure the proposed 14 The BIA Handbook was recently described in a University of Chicago Law Review as follows:

Under both the IRA and regulations promulgated by the Secretary of Interior, approval is only accorded to “appropriate” constitutions. The Handbook specifies that the BIA provides assistance “from the beginning of the constitutional development process.” The Handbook further explains the “constitutional concepts” of delegated authority from the people to their elected leaders, of written expression of that delegation, and of protecting the rights of the members. . . . The BIA has provided Indian tribes with more than conceptual guidance. Detailed explanations of proposed provisions, format, and content are all offered by the Handbook . . . . As the Assistant Secretary for Indian Affairs explained in 1988, “it is not unusual for the tribe to submit to the Bureau of Indian Affairs numerous drafts of a proposed constitution for informal review over an extended period of time prior to the submission of a final proposed draft for formal review . . . .” The BIA encourages tribes to provide an “explanation of how membership” is determined. Moreover, the BIA Handbook underscores the centrality of membership in the eyes of the Department of Interior. When “a major change in membership requirements which would drastically alter or increase the size of the tribe” is made, “central office” rather than branch office review is required.

Judith Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U. CHI. L. REV. 671 173-74 (1989) (quotation and citation omitted).




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amendment to the Nooksack Constitution comports with federal law. Galanda Decl., Ex.s C, F.

As discussed above, the proposed amendment violates the ICRA and the Milam decision. The

BIA acted arbitrarily and capriciously when it authorized a Secretarial election to remove Section

1(H) from the Nooksack Constitution.

“In addition,” the BIA Handbook provides, the BIA must also disapprove and object to

constitutions that do not “conform to current Department policies.” Id.; see also Kirsty Gover,

Genealogy as Continuity: Explaining the Growing Tribal Preference for Descent Rules in

Membership Governance in the United States, 33 AM. INDIAN L. REV. 243, 256-57 (2009) (noting

the BIA’s responsibility to ensure that it does not authorize Secretarial elections that do not

comport with the policies described in the BIA Handbook). The BIA Handbook goes on to list

“some of the types of provisions that frequently render proposed constitutions inappropriate,”

including “[a]ttempts to disenroll members retroactively.” Id. at 4-6. Here, the Tribal

Council is clearly attempting to disenroll members retroactively. Beginning on February 14,

2013, the Tribal Council commenced issuance of a “Notice of Intent to Disenroll” to Plaintiffs

and over 300 other enrolled Nooksack members. These Nooksacks meet, at least, the requisites

of Article II, Section 1(H), of the Nooksack Constitution; although the Enrollment Office checked

another box on their enrollment applications.15 Don’t worry, Chairman Kelly and his Tribal

Council majority say, “[i]f you are disenrolled, you may submit a new application for

membership.” Doucette Decl., Ex. D. If all goes as planned, however, Article II, Section 1(H),

will be gone by that time. To be clear, Plaintiffs would have a problem voting to remove Article

15 The Enrollment Office has stated elsewhere that it “do[es] not have to prove that Plaintiffs fail to meet the criteria in [Section 1(H)] Article II because Plaintiffs were not enrolled under those sections.” Article II, Section 4 of the Constitution clearly states that the “reasons for [loss of membership] shall be limited exclusively to failure to meet the requirements set forth for membership in this constitution.” This, too, violates the Nooksack Constitution. The issue is currently being litigated in the Nooksack Tribal Court.




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II, Section 1(H), of the Constitution on a going-forward basis. But that is not what is taking place

here. Instead, a vividly transparent attempt to permanently and retroactively disenroll Nooksacks

of Filipino descent – i.e., “large groups or families that [allegedly] have much weaker ties to

Nooksack” – has been sanctioned by the Secretary, in violation of the APA.

Second, Defendants have violated the APA by setting June 4, 2013, as the deadline for

challenging omissions from the official Voter Registration List. Federal regulations provide that

“[t]he election board shall determine the eligibility of any written claim to vote presented to it by

those whose name does not appear on the official list of registered voters . . . .” 25 C.F.R. §

81.13. The regulation only permits the election commission to reject challenges “not presented

least ten days before the election . . . .” Id. Here, however, Defendants set the cutoff date a full

eighteen days before the election, on June 4, 2013. Doucette Decl., Ex. A. Defendants also

violated the APA when they failed to respond to timely challenges by tribal members whose

names were improperly omitted from the official eligible voter list. See generally Aldredge Decl..

“There is no compelling reason to force tribal members to force tribal members to vote in the

dark, when a short delay will provide much greater illumination.” Split Family Group v. Moran,

232 F. Supp.2d 1133, 1137 (D. Mont. 2002).

Third, Defendants violated the APA when they rejected late requests for absentee ballots

received less than ten days before an election. Title 25 C.F.R. § 81.19 clearly states that “requests

for absentee ballots received less than ten days before an election will be promptly honored.” As

discussed infra, Defendants have refused to honor certain requests for absentee ballots, in

violation of this straightforward regulation; in doing so, they have violated the APA.

Finally, the APA provides a cause of action when the BIA “recognize[s] an unlawful tribal

action.” Milam, 10 I.L.R. at 3017; see also generally Seminole Nation of Oklahoma, 223




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F.Supp.2d 122. In Milam, for instance, the D.C. District Court held that the BIA acted in

violation of the APA when it “recognized” certain actions taken by the Seminole Nation of

Oklahoma that were authorized at a “special meeting” of the Tribal Council. Milam, 10 I.L.R. at

3016. The Seminole Constitution required that notice for “special meetings shall be given at least

ten (10) days in advance to all members of the General Council and shall contain the time, place,

and purpose.” Id. (quotation omitted). The Milam Court found that during one meeting, proper

notice was not given to the General Council, in violation the Seminole Constitution. Id. The

Court held that “[t]he notice provision [of the Constitution] is entirely clear on its face. Neither

the Secretary, nor the Indians themselves, may ignore the express provisions of the constitution. .

. . Accordingly . . . the Secretary may not effectuate [the Tribe’s] decision . . . .” Id. at 3017.

Here, as discussed above, the Tribal Council enacted Resolution No. 13-38 during a Tribal

Council meeting that did not comport with the requirements of the Nooksack Constitution. Thus,

the BIA’s approval of this Resolution on March 20, 2013, violated the APA.

C. PLAINTIFFS WILL SUFFER IRREPARABLE HARM WITHOUT INJUNCTIVE RELIEF.

Loss of tribal membership will inflict instantaneous, devastating, and irreparable harm on

the Plaintiffs, their families, and their descendants for generations to come.

The harm caused by the Secretarial Election would be devastating. Tribal membership is

essential for access to the tribal and federal benefits afforded to members of federally recognized

Indian tribes. Without tribal recognition, Plaintiffs will immediately lose access to tribal housing;

federal Indian food programs; federal healthcare benefits from Indian Health Services including

prescription eyeglasses, prescription drugs, and hospitalization; treaty-protected fishing and

hunting rights; Indian student scholarships; hiring preference for some federal and tribal jobs; per

capita payments; and other reserved rights afforded to tribal members. See Galanda Decl., Ex. R

(Plaintiffs and other disenrolled members “will no longer be qualified for tribal housing, medical




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facilities, treaty-protected fishing or hunting rights, or any other rights reserved to Nooksack tribal

members”). The loss of such benefits would create irreparable hardships for the Plaintiffs. No

forum exits to redress these harms.

Disenrollment would also inflict devastating cultural wounds. Cultural harm inflicted by

disenrollment would be no less damaging for individual Nooksack tribal members. The

Plaintiffs’ ancestors have, since time immemorial, been Nooksack. Galanda Decl., Ex.s D, E.

The Nooksack have historically been an insular and communal people. ROBERT H. RUBY, ET AL.,

A GUIDE TO THE INDIAN TRIBES OF THE PACIFIC NORTHWEST 219 (3rd ed. 2010); Galanda Decl.,

Ex D. This communal mindset largely continues today. Membership in the tribe plays a key role

in an individual Nooksack’s sense of personal identity, personal worth, and personal relationships.

Indeed, tribal membership is the sine qua non of Plaintiffs’ identities as American Indians and as

human beings. Disenrollment would amount to a form of banishment, a form of cultural death, as

devastating for individual tribal members. No balm exists to erase this harm.

D. THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS’ FAVOR. The balance of equities tips sharply in Plaintiffs’ favor. Unless Defendants are enjoined

from holding the June 21, 2013 Secretarial Election, Plaintiffs will suffer irreparable harm.

Meanwhile, Defendants will suffer no, or if any, nominal, hardship if the injunction is granted; the

Court’s order will merely preclude them from taking actions that are facially unlawful. Thus an

injunction will merely maintain the status quo. Univ. of Texas v. Camenisch, 451 U.S. 390

(1981). If the Tribal Council is truly not targeting Plaintiffs for retroactive disenrollment, it

should have no problem in maintaining the status quo until the disenrollment proceedings have

been completed and Plaintiffs and the other 300-plus disenrollees have had an opportunity to

reapply under Section 1(H), as advertised. See Doucette Decl., Ex. D.

//




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E. AN INJUNCTION IS IN THE PUBLIC INTEREST. The issuance of an injunction will serve the public interest. The public has an interest in

seeing that federal officials do not take actions that violate federal law. More importantly, the

public has an interest in preventing Nooksack leaders from unlawfully severing Plaintiffs’

political ties to the Tribe, and, in turn, terminating Plaintiffs’ legal rights to the many benefits

flowing from their status as enrolled members of a federally recognized Indian tribe. Curbing

these gross abuses of power through the issuance of an injunction will serve the public interest.

IV. CONCLUSION Plaintiffs have, at a minimum, raised “serious questions” going to the merits of their

claim for injunctive relief. Plaintiffs respectfully request that the Court issue an injunction

ordering the Defendants to comply with applicable federal law by immediately halting the

Secretarial Election; award costs and attorneys fees, and grant Plaintiffs such other and further

relief as the Court deems just and proper.

DATED this 17th day of June, 2013.

s/Gabriel S. Galanda Gabriel S. Galanda, WSBA# 30331 s/Anthony S. Broadman Anthony S. Broadman, WSBA #39508 s/Ryan D. Dreveskracht Ryan D. Dreveskracht, WSBA #42593 Attorneys for Plaintiffs GALANDA BROADMAN, PLLC P.O. Box 15146 Seattle, WA 98115 (206) 691-3631 Fax: (206) 299-7690 Email: [email protected] Email:[email protected] Email: [email protected]




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CERTIFICATE OF SERVICE

I, Gabriel S. Galanda, say:

1. I am now and at all times herein mentioned, a legal, permanent resident of the

United States, over the age of eighteen years, not a party to the above-captioned action, and

competent to testify as a witness.

2. On June 17, 2013, I caused to be filed and served true copies of the attached document on

the following person in the manner indicated:

Jenny A. Durkan United States Attorney Western District of Washington U.S. Attorney's Office 700 Stewart St. Suite 5220 Seattle, Washington 98101

¨ U.S. Mail þ Hand Delivery/Legal Messenger þ Email

The foregoing statement is made under penalty of perjury under the laws of the State of

Washington and is true and correct.

Signed at Seattle, Washington, this 17th day of June, 2012.

s/Gabriel S. Galanda Gabriel S. Galanda


[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER - 1


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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE RUDY ST. GERMAIN, MICHELLE ROBERTS, enrolled Nooksack Tribal members,

Plaintiffs,

v. UNITED STATES DEPARTMENT OF INTERIOR; BUREAU OF INDIAN AFFAIRS; SALLY JEWELL, Secretary of the Interior; KEVIN K. WASHBURN, Assistant Secretary of Indian Affairs; STANLEY SPEAKS, Northwest Regional Director; SCOTT AKIN, Acting Northwest Regional Director; JUDITH R. JOSEPH, Superintendent for the Puget Sound Agency,

Defendants.

NO. C13-945 RSM

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

BEFORE the Court is Plaintiffs’ Motion for Temporary Restraining Order. Having

reviewed said Motion and the file and pleadings therein, the Court deems itself otherwise fully

advised in the premises. Accordingly,

THE COURT FINDS that Plaintiffs have established serious questions going to the merits

and are likely to succeed on their claims since Defendants have violated federal law, as codified

in the Indian Reorganization Act, 25 U.S.C. § 476(c)(2)(B), by failing to notify the Tribe that the

proposed constitutional amendment is in conflict with federal law. The proposed amendment,

which has a discriminatory purpose and effect and is motivated by racial animus toward an

Case 2:13-cv-00945-RSM Document 4-1 Filed 06/17/13 Page 1 of 2

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER - 2


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identifiable group and protected class and bare desire to harm a politically unpopular group,

violates the equal protection guarantees of the Indian Civil Rights Act, 25 U.S.C. § 1302(a)(8).

Defendants’ approval of the Secretarial Election is also arbitrary and capricious, an abuse

of discretion, and contrary to law and is set aside in accordance with the Administrative

Procedure Act. 5 U.S.C. § 706.

Loss of tribal membership will inflict instantaneous, devastating, and irreparable harm on

the Plaintiffs, their families, and their descendants for generations to come.

The balance of equities tips sharply in Plaintiffs’ favor and the public interest favors an

injunction.

IT IS ORDERED that Plaintiffs’ Motion for Temporary Restraining Order is GRANTED.

Defendants, their officers, employees, agents and any other federal person collaborating

with them, are HEREBY ENJOINED from conducting the Secretarial Election set for June 21,

2013.

A preliminary injunction hearing is SET for July __, 2013 at _______ AM/PM. The

parties shall appear for that hearing in person. The parties may file motion, response, and reply

papers regarding a preliminary injunction; if no such filings are made, the Court will treat the

existing filings as preliminary injunction papers.

IT IS SO ORDERED. The District Court Executive is directed to enter this order and

provide copies of the same to counsel of record.

DATED this ____ day of June, 2013.

_______________________ Hon. Ricardo S. Martinez UNITED STATES DISTRICT JUDGE

Case 2:13-cv-00945-RSM Document 4-1 Filed 06/17/13 Page 2 of 2

JUNE 17, 2013 - Turtle Talk...Jun 04, 2013 · Secretarial Election on Amendment to Tribal...

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