Fighting Disenrollment: The Nooksack 306

Akilah Kinnison

Today, 306 members of the Nooksack Indian Tribe in northern Washington State are fighting mass disenrollment from their community. For the Nooksack 306, as they have come to be known, this struggle encompasses more than tribal citizenship – it is about their most fundamental human rights as indigenous peoples.

For some of the Nooksack 306, citizenship is literally a matter of life and death. As previously reported by Indian Country Today Media Network, Sonia Lomeli is a 74-year-old diabetic who lives on tribal land and depends on tribal medical care including transportation to kidney dialysis. Ms. Lomeli has stated, “I am afraid I will die if they disenroll me.” Mr. Terry St. Germain, a 48-year-old fisherman with eight children, worries he will not be able to feed his family if stripped of his tribal fishing and hunting rights.

The pending disenrollments have already had immediate effects. According to the Nooksack 306, some members have already been fired from their jobs or denied housing; their livelihoods are being destroyed. In a callous move a few weeks ago, just before the start of the new school year, the Tribal Council denied school supply stipends to all Nooksack children aged 3 to 19 who are proposed for disenrollment.

Pitted against their own tribe by a prevailing tribal council faction, the Nooksack 306 are battling to maintain their cultural identity as indigenous peoples – a right guaranteed under international human rights law. In their pursuit of disenrollment, the tribal government is violating the Nooksack 306’s rights to live in community, to due process, and to equal protection.

It is well-established that tribes have the right to determine their own citizenship. This was recognized by the U.S. Supreme Court in 1978 in Santa Clara Pueblo v. Martinez as well as in the United Nations Declaration on the Rights of Indigenous Peoples (“UN Declaration”), which the United States endorsed in 2010. Article 33 of the UN Declaration states, “[i]ndigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.”

The Nooksack Tribe’s undisputed right to determine its own citizenship is not, however, the only right at stake. The fundamental human rights of the Nooksack 306 also weigh heavily in the balance. Under Article 9 of the UN Declaration, “indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the tradition and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right” (emphasis added).

Similarly, Article 27 of the International Covenant on Civil and Political Rights (“ICCPR”), a binding treaty ratified by the United States in 1992, mandates that “[i]n those States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language” (emphasis added).

To illustrate, in Lovelace v. Canada, the UN Human Rights Committee, which monitors ICCPR implementation, found that Canada’s Indian Act violated Article 27 by terminating an indigenous woman’s tribal citizenship when she married a non-indigenous man. The Lovelace decision confirms that, under international law, indigenous individuals have a right to live in community with their fellow tribal people and that this right is critical to maintaining indigenous identity and culture.

Yet, rather than respecting the Nooksack 306’s international human rights, the Tribal Council has gone so far as to amend the Nooksack Constitution in an attempt to eliminate the 306’s indigenous right to citizenship. The Tribal Council has also passed several new tribal laws and amended Nooksack judicial, appellate, and election codes in ways that appear designed to strip the Nooksack 306 of their ability to have a voice before the tribal courts or polity. For instance, the ever-shifting rules of the game were recently amended to allow proposed disenrollees only 10 minutes by teleconference to make their case that they are rightfully Nooksack, and without the assistance of lawyers or family members.

Most significantly, the disenrollments are not proceeding “in accordance with the traditions and customs of the community” as required by UN Declaration Articles 33 and 9. The disenrollment process appears, according to the Nooksack 306, to violate tribal customary and constitutional law. Since early 2013, Nooksack Chairman Bob Kelly has been operating outside the bounds of the Nooksack Constitution, refusing to hold constitutionally mandated meetings of the Tribal Council or the entire Nooksack People at which disenrollment could be discussed. Such measures violate due process, a right guaranteed by Articles 7 and 14 of the ICCPR as well as other international law. 

Further, the Nooksack 306 seem to have been targeted, at least in part, because they are of mixed Filipino-Nooksack ancestry, even though each is at least one-quarter indigenous as previously required under the Nooksack Constitution. The tribe has not been pursuing the mass disenrollments of persons of non-Filipino mixed Nooksack ancestry. The controlling Nooksack Council faction disputes that the disenrollments are racially motivated. However, an October 2000 LA Times article, entitled “Nooksacks Allege Filipino Family Has Conquered Tribe From the Inside” and the Council’s lawyers’ public reliance on the piece, illustrates that this rivalry, a long-running and significant feature of Nooksack politics, is at least partially motivated by racial animus. This animus is also evidenced by the fact that prior to a vote to amend the tribal constitution’s membership criteria this past summer, Chairman Kelly sent certain election materials only to non-Filipino Nooksack members.

Discriminatory disenrollment contravenes UN Declaration Article 9’s prohibition of discrimination “of any kind” in the exercise of the right to live in community and Article 2’s affirmation that indigenous “individuals . . . have the right to be free from any kind of discrimination.” It also violates the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”), ratified by the United States in 1994. ICERD Article 5, for instance, protects individuals’ exercise of political, civil, economic, and social rights as well as rights to land and culture under conditions of equality. In the inter-American system, the American Declaration on the Rights and Duties of Man, applicable to the U.S. by virtue of membership in the Organization of American States, protects the right to equality in Article II and the right to “take part in the cultural life of the community” in Article XIII.

The right to live in community is, in many ways, indigenous peoples’ most fundamental human right because it is critical to maintaining their identity and ways of life. It is this right that permits the Nooksack 306 to live on their traditional lands and to participate in the cultural and political life of their nation. Without the threshold right to citizenship, other protections for indigenous peoples’ human rights are rendered ineffective.

The Nooksack 306 could pursue claims against the United States for failing to protect these human rights, but to date they have chosen to contest their disenrollment primarily in tribal court, insisting that their own government respect internationally recognized human rights even if it is not directly bound by international instruments.

The Nooksack 306 have insisted, from the beginning, that theirs is a struggle to have their tribal government and court system recognize that, in their words, “We Belong.” Thus, the issue in this case is the tribal government’s responsibility to protect its citizens’ human rights by acknowledging that the right to determine citizenship is neither the only right at stake nor an unqualified right. In the interest of good governance, non-discrimination, and cultural survival, the right to determine citizenship should be exercised with an eye toward honoring and protecting indigenous individuals’ human rights to live in community within their nations. Hopefully that honor and protection will be afforded the Nooksack 306 once all is said and done.

Akilah Kinnison holds an LL.M. in Indigenous Peoples Law and Policy from the University of Arizona’s Indigenous Peoples Law and Policy Program. She currently works as an independent contractor and consultant in the fields of federal Indian law, international human rights, and indigenous peoples’ law.

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Two Bears Growling's picture
This reminds me of how things were at times for our ancestors. Folks would argue about things so seriously that half the tribe would pack up & move away & then start their own village. Perhaps this will be an option the Nooksack 306 may consider. There are lots of politics at times in various tribal nations I have found. There are other bands within various tribes & they each have their own set of rules, get their own funding & deal with things on their own. However, these individuals rights were violated even by the terms of their constitution. Meetings were held WITHOUT contacting ALL members notifying them of these meetings. Chairman Kelly, you are shameful in your deceptions. Rest assured you will not get away with this behavior. The Creator knows your heart & evil intentions. The Great Spirit deals with people like you all the time. Don't be surprised when things start going bad for you sooner than you think. You & every member who is behind this hijacking of the tribe have brought shame to yourself, your family, clan & the whole tribe. Man Above knows who each of you are & where you live. There is no hiding from our Creator when He comes for you & sends out His judges to hand down His judgment to each of you who are evil & full of deceptions.
Two Bears Growling
Coastal Resident's picture
You are so misinformed and did such little research for this article. Why would you do that? You write this article and don't even live in Whatcom County, Washington. You're an outsider who doesn't understand and here you are blabbing to the world on a subject you don't understand. This is why people don't take Native journalists seriously. No effort to research your topic.
Coastal Resident
Anonymous's picture
Some folks would like the tribes to simply open the doors to enrollment to anyone and everyone. While on one hand you state that the tribes can determine who is a member, the other hand slaps that notion right out of the ballpark with some UN nonsense that has no teeth. Unless you have a dog in the fight, stay out of the arena. If certain tribes allowed anyone who claimed membership to simply claim and join, they would be overrun with New Agers, phoney Freedmen, Gun Rights nuts, Indian Hobbyists and shamen of every ilk. Perhaps the tribe knows something about these people you don't. Certainly the tribe has the ability to determine their own citizenship. You don't, unless you are a member of that tribe. And unless you are, keep your nose out of their business. I am not a member of the Nooksack Tribe, but I resent non-tribal members weaseling their jaded opinions into our business, as if we invited them to do so.
Anonymous's picture
Akilah Kinnison is correct in her assertion that the Nooksack 306 are suffering a horrific violation of their human rights in their proposed disenrollment from their tribe. What is even more horrific, however, is that this very violation of THOUSANDS of Indian People's tribal, civil, and human rights through dismemberment by corrupt tribal governments has been occurring unabated at an alarming rate through the last decade. These violations have been brought to the attention of the United Nations Human Rights Committee repeatedly through submissions by the disenrolled from Picayune (Chukchansi), Pechanga, Redding, San Pascual, and numerous other offending tribes to James Anaya, the United Nations special rapporteur on indigenous peoples, thus far with no assistance. Also, Keith Harper--who now is in the process of being approved as an ambassador for human rights was approached for assistance by a protesting group of disenrolled members from various tribes on this matter during a "tribal leadership" conference at Pechanga several years ago, but refused to partake in a conversation. Mr. Harper also declined to even reply on several letters written to him by this writer requesting assistance on the mass dismemberments at Picayune Rancerhia of the Chukchansi Indians in 2006-2007 where lack of intervention has now resulted in dismemberment of over a thousand Chukchansi People from Picayune. As numerous agencies and entities stand idly by, including the BIA, the Department of Justice, the Federal Court, and the United States Congress itself, THOUSANDS of Indian People continue to have their tribal, civil, and human rights violated and their very birthrights stolen by their own People in this new tribal genocide--disenrollment. Truly, the Indian wars never ended...for they are now being waged against our own People not by the colonizers of centuries past but by our own People who have lost the meaning of what it means to be Indian.
Anonymous's picture
shameful acts of discrimination will be found out and karma is gonna bite cha! so get ready to eat what you dish out.
Anonymous's picture
They do not descend from Annie George. Annie George did not have any children. There is criteria to be an enrolled Nooksack Member and they do not meet that criteria. If you are not from Nooksack than you do not know the whole story. This family is dually enrolled Skway which is a band in Canada that is where they belong! When the council tried to disenroll them in the 90's family from the 306 surrounded, locked the building and said "the council member that brings the motion to disenroll to the table is gonna get beat to death...." So of course the issue was dropped. Every elder you talk to in Nooksack will tell you that they do not belong.
Anonymous's picture
Ms. Kinnison is the step-daughter of the infamous Cherokee faker Ward Churchill and she is also a Cherokee wannabe. I wouldn't believe her if she told me the sky was blue. If these folks have a case, I hope that they find a better advocate than this faker.