12 NICS App. 33, ROBERTS v. KELLY (March 2014)
IN THE NOOKSACK TRIBAL COURT OF APPEALS
Michelle Joan Roberts, et al., Plaintiffs/Appellants,
v.
Robert Kelly, et al., Defendants/Appellees.
No. 2013-CI-CL-003 (March 18, 2014)
|
Eric Nielsen, Chief Judge; Douglas Nash, Judge; Mark W. Pouley, Judge. |
|
|
Gabriel S. Galanda, Anthony S. Broadman, and Ryan D. Dreveskracht of Galanda Broadman PLLC, for Appellants; Thomas P. Schlosser and Rebecca JCH Jackson of Morisset Schlosser, Jozwiak & Somerville, and Grett Hurley and Rickie Armstrong, Nooksack Office of Tribal Attorney, for Appellees. |
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 34
OPINION
The events that lead to this action began in early 2013 when a majority of the Nooksack Tribal Council determined it was necessary to disenroll approximately 300 Nooksack Tribal members. The facts that led to that decision and the events surrounding it were reported in Lomeli v. Kelly, 12 NICS App. 1, 3-5 (Nooksack Tribal Ct. App. 2014), and will not be repeated here.
On August 8, 2013, the Tribal Council convened a Special Meeting and, along with other actions, passed Resolution 13-111 (Disenrollment Procedures).2 On August 13, 2013, Appellants filed the instant action requesting injunctive relief challenging the validity of the passage of the resolution and claiming the substantive procedures in Resolution 13-111 violate their constitutional right to due process under the Indian Civil Rights Act3 incorporated in Article IX of the Nooksack Constitution.
The trial court dismissed the case without the benefit of this Court’s opinion in Lomeli, supra, holding that it had no jurisdiction over Appellants’ complaint because the defendant Tribal Council members did not waive the Tribe’s sovereign immunity. The court reached that conclusion after first analyzing the merits of Appellants’ claims. Relevant to this appeal, the court found the “passage of the Procedures complies with the Bylaws of the Tribal Council, having occurred with a quorum present, and under the authority of the Constitution, which expressly reserves to the Council the responsibility for rules and regulations governing involuntary loss of membership.” Order at 6. The court also ruled the resolution’s substantive procedures did not violate a potential disenrollee’s due process right, with one exception: the provision prohibting representation at a disenrollment hearing. Order at 10, 13. The court concluded that because the substantive procedures sufficiently address due process concerns … the cloak of soveriegn immunity protects the Defendants.” Order at 12.
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 35
on subject matter jurisdiction, tribal sovereign immunity, and its decision to dismiss a complaint are all questions of law subject to de novo review on appeal. Lomeli, at 6.
In Lomeli, the Appellants urged the trial court, and later this Court, to adopt the federal Ex Parte Young4 analysis to allow them to enjoin alleged illegal and unconstitutional actions of the Council members related to the proposed disenrollment of hundreds of tribal members. This Court rejected the invitation to incorporate the Ex Parte Young fiction into Nooksack Tribal law. We held, however, “[w]here a suit is brought by a Tribal member against an officer, employee or agent of the Tribe acting in his or her official capacity and alleges the law or policy the officer, employee or agent is enforcing or threatening to enforce is unconstitutional, the Tribal Court has subject matter jurisdiction under both Article VI, § 2.A.3 of the Nooksack Constitution and Title 10 of the Nooksack Tribal Code to order declaratory or injunctive relief.” Lomeli, at 15. We also held, the Tribal Court must make a threshold finding the law or policy is unconstitutional or contrary to Tribal law. “That finding dictates whether it has the jurisdiction to enter an order enjoining or restraining its enforcement, assuming the plaintiff can show such an order is warranted as a matter of equity or law.” Id.
Although the court did not have the benefit of our decision in Lomeli when it entered its order, it apparently presaged our holdings and analyzed whether Resolution 13-111 complied with the Nooksack Constitution and Nooksack law. We do the same. Lomeli, at 15.
The Nooksack Constitution provides the Tribal Council “shall have the power” to enact ordinances, in conformity with the Constitution and “subject to approval of the Secretary of the Interior.” Const. art. VI, § 2. The Council has the exclusive authority to prescribe rules and regulations governing involuntary loss of membership, provided those rules and regulations are adopted by ordinance. Const. art. II, § 4 (“The tribal council shall, by ordinance, prescribe the rules and regulations governing the involuntary loss of membership.”) (emphasis added). We noted in Lomeli that the Council exercised this duty in adopting Title 63. Lomeli, at 18.
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 36
“subject to any limitations imposed by the Nooksack Tribal Constitution and any federal laws that may be applicable.” Id.
The Nooksack Constitution does not define “rule” or “regulation” so we will look to the dictionary definition. Black’s defines “rule” as generally, “an established and authorative standard or principle; a general norm mandating or guiding conduct or action in a given type of situation.” Black’s Law Dictionary 1330 (7TH ed. 1999). Regulation is defined as the “act or process of controlling by rule or restriction.” Id. at 1289. Resolution 13-111 prescribes what is required of both the potential disenrollee and the Council in a disenrollment proceeding. The resolution’s procedures guide how the proceeding is conducted, how evidence must be submitted, and address the rights and obligations of the person subject to the proceeding. These are more than meeting procedures. Under the above definition, the procedures in Resolution 13-111 are in the nature of rules.
Consistent with that preamble and statement of purpose, NTC 63.004.010(B)(2) includes procedures governing disenrollment, including notice of the intent to disenroll, the manner the notice is served, a deadline for a response, provisions for a meeting to contest the disenrollment, and requests for reconsideration of an adverse decision. While the procedures in NTC 63.004.010(B)(2) lack the specificity found in the resolution, NTC 63.02.001 contains detailed procedures governing enrollment.5 Resolution 13-111 creates specific procedures and guidelines for conducting disenrollment proceedings similar to those found in NTC 63.02.001. The inclusion of procedures and guidelines in Title 63 evidences the legislative intent and understanding that “procedures” regarding the manner in which enrollment, and disenrollment
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 37
actions are conducted are “rules and regulations” as contemplated in Article II of the Constitution.6
Moreover, Article VI, § 1.J of the Constitution grants the Council the power to establish and amend the procedures by which it conducts its own business, and general authority to establish procedures governing the conduct of the Tribe’s agencies and officials. In Lomeli, for instance, we affirmed the Council’s authority to establish and alter meeting times and locations. Lomeli, at 22-24. Article II of the Constitution, however, specifically addresses the duties of the Council in relation to the Tribe’s members, including establishing rules and regulations for the loss of membership. Resolution 13-111 does not merely establish procedures regulating how the Council conducts its own business. It establishes procedural rules governing the conduct, rights and obligations of members in quasi-judicial disenrollment proceedings, and as such those rules must be adopted in compliance with Article II.
Even if Article VI, § 1 can be read broadly to encompass the Council’s authority to adopt procedural rules governing quasi-judicial proceedings in general, under established rules of statutory construction procedural rules governing disenrollment proceedings must comply with Article II. When faced with a conflict between a specific and general statutory or constitutional provision, any ambiguity or conflict is resolved in favor of the specific provisions. See Nelson v. Yurok, 5 NICS App. 119, 129 (Yurok Tribal Ct. App. 1999) (“it is a commonplace of statutory construction that the more specific provision of law controls the less specific”); In re the Welfare of C.H., 5 NICS App. 105, 109 (Tulalip Tribal Ct. App. 1999) (referencing the general rule of statutory construction that “the more specific controls over the more general”); Williams v. Tulalip Casino, 5 NICS App. 53, 54 (Tulalip Tribal Ct. App. 1998) (the specific appeal period governs Employment Court appeals, rather than the more general appeal period contained in Tulalip Court Rules); C.S. v. Tulalip Tribes Housing Dept., 10 NICS App. 5, 9 (Tulalip Tribal Ct. App. 2011) (publication pending; currently viewable at http://www.nics.ws/opinions/opinions.htm), citing Tulalip Casino v. Hood, 4 NICS App. 123 (Tulalip Tribal Ct. App. 1996) (under rules of statutory construction, more specific provisions take precedence over conflicting general provisions). Article II of the Constitution is a specific provision. It mandates all rules and regulations regarding the disenrollment of members be established by ordinance approved by the Secretary of the Interior.
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 38
rule or regulation for purposes of a disenrollment proceeding. Because Resolution 13-111 was not constitutionally adopted by ordinance, or amendment to an ordinance, and was not approved by the Secretary, the Council cannot use the procedural rules in Resolution 13-111 in Appellants’ disenrollment proceedings.
Under the due process clause of United States Constitution the fundamental requirements of due process are “the opportunity to be heard,” Grannis v. Ordean, 234 U.S. 385, 394 (1914), and “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). At a minimum, the due process demands that a deprivation of a right be preceded by “notice and opportunity for hearing appropriate to the nature of the case.” Mullane, 339 U.S. at 313. This opportunity “must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). We find these principles sound and hold they are applicable under the due process provision of the Indian Civil Rights Act, which is specifically incorporated in Article IX of the Nooksack Constitution.7
The trial court relied on the Supreme Court’s holding in Mathews v. Eldridge, 424 U.S. 319 (1976) to guide its analysis. We too find that case instructive, and adopt its test in analyzing procedural due proccess claims under the Nooksack Constitution, absent a showing Nooksack custom or tradition favors a different test. Under Mathews, the sufficiency of due process is determined by applying a three part test. This test balances, first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and third, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 39
Here, Appellants have a strong interest in retaining their membership, which we hold is a constitutionally protected property right. Membership in the Nooksack Tribe brings with it not only certain benefits,8 but a cultural, familial and spiritual identity. Appellants argue that a loss of tribal membership is akin to losing United States citizenship, and due process requires the Tribe’s procedures for disenrollment must be similar to the procedural requirements governing divesment of United States citizenship. We do not minimize the strong interest in retaining tribal membership, but we agree with the trial court it is not analogous to United States citizenship. Unlike the loss of citizenship, a person is not rendered stateless by the loss of tribal membership. See Jeffredo v. Macarro, 599 F.3d 913, 921-922 (9th Cir.2010) (tribal disenrollment is not analogous to denaturalization because the person has not been rendered stateless).
The Tribe’s interest, however, is equally strong. As the United States Supreme Court has stated, “[a] tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72, n. 32 (1978). Because of that importance, membership determinations are committed to the sole discretion of a tribe. Id. at 54. The Tribe as well as its members have a vital interest in ensuring only those who meet the citeria for enrollment are entitled to share the rights and privileges of membership, and conversly that those who have been erroneously granted membership be divested of those rights and privileges.
The third factor looks to the risk of erroneous deprivation and the value of the additional procedures. Mathews, 424 U.S. at 335. As the trial court points out, these proceedings are not like civil trials. They are to determine whether the person met the criteria for enrollment at the time of enrollment. That criteria is based almost entirely on documentary evidence: (1) descendancy from Nooksack Public Domain allottees and their lineal descendants living on January 2, 1942; (2) descendancy from a person whose name appears on the Nooksack census roll dated January 1, 1942; (3) lineal descendancy from a person who was enrolled after January 1, 1942, if possessing ¼ Indian blood; (4) receiving payments under the Distribution of Judgment Fund dated October 6, 1966 or lineal descendancy from such person, if possessing ¼ Indian blood; or (5) whether validly adopted into the Tribe. Const. art. II, § 1 (A through G).9
Furthermore, it is the Tribe’s burden to prove a member did not meet the above criteria based on the evidence submitted when the member was enrolled. NTC 63.04.001(B)(1)(a). A member has no burden to prove an entitlement to their membership status. The Tribe’s burden of proof carries with it the burden of “providing documentation supporting disenrollment to the disenrollee establishing why he or she does not meet the Nooksack Constitutional requirements under which they were originally enrolled.” See Resolution 13-111 § V(I).10 If the Council
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 40
determines the evidence justifies disenrollment, the person is not only entitled to request reconsideration of the decision and submit documentary evidence in support of the request, but is also entitled to reapply for enrollment by submitting appropriate documents showing the constitutional criteria for enrollment is met. NTC 63.04.001(B)(3). Disenrollment does not prejudice a person’s right to later enrollment. It is in this context that we discuss the third Mathews factor. See Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (the procedural safeguards afforded in each situation should be tailored to the specific function to be served by them).
The procedures limit the disenrollment hearing to ten minutes. Appellants argue ten minutes is insufficient time for a person to explain why he or she should not be disenrolled. We disagree. The relevant evidence will be primarily documentary. Appellants fail to show how ten minutes is insufficient time to explain why that evidence met one of the specific criteria for enrollment or why the Tribe’s evidence is incorrect. There is no basis to conclude that ten minutes is not enough time to offer that explanation, provided there is an opportunity to submit the explanation in writing before the hearing.11 There must be a limit on the length of each hearing, otherwise these proceedings will unduly burden the Council, which has other vital duties to perform.
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 41
process. We do not find, and Appellants fail to show, there is a risk of erroneous deprivation of membership if potential disenrollees are not allowed to present their explanations in person.
Finally, we agree with the trial court that prohibiting a potential disenrollee from being represented at the proceeding violates due process and that allowing representation will not unduly burden the Tribe. See Goldberg v. Kelly, 397 U.S. at 270 (“the right to be heard would be, in many cases, of little avial if it did not comprehend the right to be heard by counsel”). Appellees correctly recognized the right to representation is crucial. Following the trial court’s order, the Council adopted a subsequent resolution allowing representation. Resolution 13-163.
In the context of a disenrollment hearing and the nature of the evidence relevant to the hearing, we find 21 days notice, while not long, is the minimum time to allow a person to respond, submit evidence (if they choose to) and prepare for the hearing without offending due process.12 The problem is the provision that grants the Council the discretion to hold a hearing earlier if notice is personally served and the Council determines the person has sufficient time to make a telephonic appearance. There are no standards to guide the Council in its exercise of that discretion. The Council can arbitrarily set a hearing date without consideration of the person’s acutal ability to arrange a short notice telephonic appearance. If the time allowed by the Council is insufficient, the person will not have the opportunity to timely submit any evidence in opposition to disenrollment and the result is a real risk of an erroneous deprivation of the person’s membership. There is simply no Tribal interest served by granting the Council the discretion to decide to provide a person less than 21 days notice based on its belief the person has sufficient time to arrange a telephonic appearance, particularly when there is no mechanism for a person to challenge that belief. See Stanley v. Illinois, 405 U.S. 645, 656 (1972) (efficient procedures are a proper state interest but not at the expense of the due process right to prepare a defense). To satisfy due process, every potential disenrollee must be given the same 21 day notice. We find this provision a violation of the due process notice requirement.
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 42
any procedural rules governing disenrollment proceedings must be adopted by ordinance and the ordinance approved by the Secretary of Interior as provided for in the Nooksack Constitution.13
Appellants14 also argue the Defendant tribal officials deprived them of substantive due process and subjected them to disparate treatment by adopting a policy of providing “Back to School” support to enrolled members of the Tribe, but withholding such benefits from students subject to disenrollment proceedings. We agree with the trial court’s dismissal of this claim. The trial court correctly found, “the proposed disenrollees have not lost access to such support if the proceedings conclude with their continued tribal enrollment.” Order at 13. The children that have been temporarily denied payment of benefits may in fact receive the benefits in the future. This undisputed fact leads to the conclusion that the only relief available to the children is a court order that the Nooksack Tribe make immediate financial payment to Appellants while disenrollment proceedings are pending or stayed. Under our holding in Lomeli, the sovereign immunity of the Tribe prevents the Nooksack courts from ordering an immediate payment of funds, or any other remedy that creates a money judgment in favor of Appellants.
The trial court’s order dismissing this cause of action is affirmed.
The other assignments of error identified in Appellants’ Notice of Appeal and briefs are either rendered moot by our decision, are without merit15, or were disposed of in our decision in the Lomeli case and we therefore decline to address them.
12 NICS App. 33, ROBERTS v. KELLY (March 2014) p. 43
ORDER
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
The Tribe also recognizes that similar procedural prescriptions in other ordinances are rules. For example, Title 10 and Title 80 are procedural rules governing proceedings in the trial and appellate courts. Those “rules”, like Resolution 13-111, cover such matters as when pleadings must be filed and served, their content and burdens of proof.
We do not hold the due process provisions of the Indian Civil Rights Act must be interpreted identically to the due process clause in the United States Constitution. A different interpretation may be appropriate if it is shown the Tribe’s customs and traditions require it. We only find that given the purpose of the Indian Civil Rights Act, to “secure for the American Indian the broad constitutional rights afforded to other Americans,” and thereby to “protect individual Indians from arbitrary and unjust actions of tribal governments” (Santa Clara Pueblo v. Martinez, 436 U.S. 61), that these longstanding fundemental principles are the starting point in any procedural due process analysis.
See 41 Am.Jur.2d Indians; Native Americans § 17 (2006) (“Indian tribes have membership rolls for a variety of reasons, most notably for the distribution of assets and judgment funds in circumstances involving the distribution of tribal funds and other property under the supervision and control of the federal government.”)
Assignments of Error A., B, C, E, F and G. Appellants’s Notice of Appeal at 6-14.