Lomeli v. Kelly, (2013)

• Court: Nooksack Tribal Court of Appeals
• Writing for the Court: ERIC NIELSEN, CHIEF JUDGE
• Decision Date: 18 June 2013
• Docket Number: 2013-CI-CL-001
• Citation: Lomeli v. Kelly (Nooksack Tribal Ct. of App. 2013)
• Parties: SONIA LOMELI; TERRY ST. GERMAIN; NORMA ALDREDGE; RAENNA RABANG; ROBLEY CARR, INDIVIDUALLY ON BEHALF OF HIS MINOR SON, LEE CARR, ENROLLED MEMBER OF THE NOOKSACK INDIAN TRIBE, PLAINTIFFS/APPELLANTS, v. ROBERT KELLY, RICK D. GEORGE, AGRIPINA SMITH, BOB SOLOMON, KATHERINE CANETE, LONA JOHNSON, JEWELL JEFFERSON, AND ROY BAILEY, DEFENDANTS/APPELLEES.

SONIA LOMELI; TERRY ST. GERMAIN; NORMA ALDREDGE; RAENNA RABANG; ROBLEY CARR, INDIVIDUALLY ON BEHALF OF HIS MINOR SON, LEE CARR, ENROLLED MEMBER OF THE NOOKSACK INDIAN TRIBE, PLAINTIFFS/APPELLANTS, v. ROBERT KELLY, RICK D. GEORGE, AGRIPINA SMITH, BOB SOLOMON, KATHERINE CANETE, LONA JOHNSON, JEWELL JEFFERSON, AND ROY BAILEY, DEFENDANTS/APPELLEES.

NO. 2013-CI-CL-001

Nooksack Tribal Court of Appeals

June 18, 2013

ORDER DENYING PERMISSION FOR INTERLOCUTORY APPEAL

ERIC NIELSEN, CHIEF JUDGE

Pursuant to Nooksack Tribal Code (NTC) 80.03.020,^[1] Appellants request permission to file an interlocutory appeal from the trial court's May 20, 2013 Order denying their motion for a preliminary injunction.^[2] Appellants moved to enjoin the Nooksack Tribal Council from engaging in disenrollment proceedings against them.

The trial court found the relevant facts were undisputed, and the parties do not challenge those factual findings. See, Order at 3-4. The court found that in December, 2012, appellant Terry St. Germain submitted paperwork to the Tribe to apply to have his children enrolled. A special meeting of the Nooksack Tribal Council was held to address the enrollment issue. The Enrollment Officer informed the Council he did not have sufficient information to show the children were qualified for enrollment. The Tribal Council Secretary, a relative of the children, told the Council that if the children were not eligible for enrollment then he too was not eligible. The Council Chairman informed the Council he would research the issue.

At the Council's regularly scheduled January 8, 2013 meeting the Enrollment Officer told the Council that he and the Chairman had gone the Bureau of Indian Affairs' office and discovered there was no documentation to support the childrens' enrollment. He also informed the Council that their research revealed supporting documents for approximately three hundred enrolled members did not exist or were missing. The Tribal Council Secretary and another Council member are part of the group of three hundred.

At an executive session of the Tribal Council held on February 12 2013, resolutions were adopted by the Council to initiate proceedings to disenroll the three hundred members that the Chairman discovered there were no documents supporting their right to enrollment. The Council Secretary and Council member who were included in the group of three hundred were instructed they could not participate in discussions or vote on the resolution. Following the Tribal Council's adoption of the resolution, the three hundred members including the Appellants, were sent Notices of Intent to Disenroll.

Appellants filed suit against six Tribal Council members and two Enrollment Officers. The suit alleges the Tribal Council's resolution to proceed with disenrollment violate the Nooksack Constitution and Title 63 of the Nooksack Tribal Code. Appellants did not sue the Tribe.^[3]

After filing their suit, Appellants filed a motion to enjoin the Tribal Council from conducting the disenrollment proceedings. Appellants argued the Council members, in adopting the resolution initiating the disenrollment proceedings, acted outside the scope of their official authority. The trial court denied the motion. Appellants seek an interlocutory appeal from the order denying their motion.

Under NTC 80.03.020, "Permission to file an interlocutory appeal shall be granted only if the Nooksack Tribal Court has committed an obvious error which: a): would render further proceedings useless; or b) substantially limits the freedom of a party to act." Appellants contend the Tribal Court committed "obvious error" by "holding that tribal sovereign immunity operates as a bar to prospective injunctive relief against tribal official sued in their official capacity" and by "holding Appellees did not act outside the procedures in Title 63 "when they initiated disenrollment proceedings on their own violationà without first providing any evidence whatsoever that those Nooksacks subject to disenrollment do not meet the membership requirements of Article II, Section I, of the Nooksack Constitution." Permission to File Interlocutory Appeal at 2.

The court ruled: "When combined with the assertion of sovereign immunity, the Court finds that it can only act to grant prospective, injunctive relief in this matter should the actions taken by the Defendants clearly and unambiguously violate their official duties in ways more egregious than an error of law." Order at 9. Whether this ruling is a correct statement of Nooksack law is irrelevant because the court found the appellants' actions were not in violation of either the Nooksack Constitution or Title 63. Id. at 12-13. The court's ruling is not "obvious error." Appellants other contention is that Title 63 does not allow the Tribal Council to initiate disenrollment proceedings without first providing evidence the members subject to the proceedings do not meet the membership requirements. Permission to File Interlocutory Appeal at 6-7. Thus, the issue was whether the Appellees, in their capacity as members of the Tribal Council, acted in violation of Title 63 thereby stripping them of the protection of the Tribe's sovereign immunity.^[4]

Appellants cite to the language in Title 63 that "Any tribal member requesting loss of membership of another tribal member will need to present written documentation on how the information was obtained that warrants disenrollment", NTC 63.04.001(B), in support of their argument. Permission to File Interlocutory Appeal at 7. That language, however, provides a procedure for a tribal member to request the disenrollment of another tribal member. It does not prohibit the Tribal Council itself from initiating disenrollment proceedings. As the trial court pointed out, it would be absurd to read that language as somehow prohibiting the Tribal Council from initiating disenrollment proceedings where it obtains evidence a member is erroneously enrolled – particularly given the Tribal Council's broad authority to determine membership and loss of membership.^[5] Order at 12; See, Suquamish Tribe v. Lah-Huh-Bate-Soot, 4 NICS App. 32, 56 (Suquamish Tribal Ct.App. 1995) (strained or absurd consequences from a reading of a statute are avoided)(citations omitted).

Moreover, that same language does not require the Tribal Council to provide documentation evidence prior to initiating disenrollment proceedings. It is reasonable to interpret the language as requiring a member requesting the loss of membership of another member to present "written documentation on how the information was obtained that warrants disenrollment" to the Tribal Council, which "shall determine if the member is to be disenrolled." NTC 63.04.001(B)(2).

The court's ruling that Appellees did not act contrary to Title 63 is reasonable.^[6] Order at 13. It cannot be said the court committed "obvious error" in finding the Appellees did not violate Title 63, did not act outside their authority, and therefore would likely prevail on the merits. Order at 12-13.^[7]

Appellants further contend that the court's order will render further proceedings useless, arguing that "If the Ex parte Young^[8] doctrine does not apply to violations of the Nooksack Constitution and Enrollment Ordinance, Appellants will be estopped from further prosecuting their claims."^[9] The court, however, did not rule the Ex Parte Young doctrine inapplicable to violations of the Nooksack Constitution and Enrollment Ordinance. It did not reach the issue because it found Appellees' acts did not violate the Nooksack Constitution or Title 63.^[10] See, Order at 7 ("if there is an Ex parte Young that applies in the Nooksack Tribal Court system, that exception is a narrow one that only gives riles to prospective, injunctive relief when government officials act well outside the scope of their duties, not simply when an error of law or procedures occurs.").

The trial court has not issued an Appellants' claims. As the court pointed out "It is conceivable that the Court's view of these matters may change as the Plaintiffs develop their case and the factual situation become clearer." Order at 7 (italics original). Moreover, both parties indicate there is a Motion to Dismiss schedules for June 25, 2013, which if granted will render an interlocutory appeal moot. If there is a final adverse ruling on Appellants' complaint they can appeal that ruling as a matter of right. NTC 80.03.010 and 80.03.050.

Because the trial court did not commit "obvious error" which would render further proceedings useless, Appellants' request for Permission to File an Interlocutory Appeal is denied.

It is so ordered, this 17th day of June, 2013.

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Notes:

^[1] "An aggrieved party may seek review of acts of the Nooksack Tribal Court which are not final by filing a notice with the Court of Appeals for permission to file an interlocutory appeal."

^[2] Under 80.05.030 of the Nooksack Tribal Code the Chief Judge of the Court of Appeals is charged with the duty to issue a decision on a party's motion for Permission to File an Interlocutory Appeal.

^[3] The Tribe...