Nooksack Judges Dodge, Majumdar Assert New Info For Bad Faith Appeal

Law360 (October 15, 2021, 8:07 PM EDT) -- Two Nooksack tribal court judges and a former Nooksack citizen who accused them of persecuting her while she sought protection from domestic abuse are vying in the Ninth Circuit over whether the appellate panel should consider new information.

Elile Adams, who renounced her Nooksack citizenship, brought bad faith claims alleging an illegitimate tribal court persecuted her through child custody proceedings after she sought protection from domestic abuse, and is appealing a Washington federal judge's decision that tribal courts have jurisdiction over her criminal proceedings, which she says are politically motivated.

The underlying dispute is a spillover from a yearslong controversy over tribal officials allegedly conspiring to disenroll members who disagreed with their leadership.

Tribal court judges Raymond D. Dodge and Rajeev Majumdar are trying to get the Ninth Circuit panel to consider documents from Rabang v. Kelly — a suit the appellate court heard about the disenrollment dispute.

Nooksack Chief Judge Ray Dodge

Past Washington Sate Bar Association President & Nooksack Pro Tem Judge Rajeev Majumdar

They wrote in a Wednesday reply supporting their request for judicial notice of the documents that their motion does not pertain to the allegations of Rabang v. Kelly and instead quashes claims that Judge Dodge was illegitimately appointed to his position.

"Adams's argument that the materials submitted are not relevant are belied by the fact that she makes several references in her opening brief with respect to the legitimacy of Judge Dodge's appointment," the judges wrote.

"Indeed, it is for that reason that the judges have been forced to submit these additional materials for judicial notice. In her brief, Adams paints an incomplete and inaccurate picture of the events related to the United States' brief period of non-recognition of the tribe," they added.

Gabriel S. Galanda of Galanda Broadman PLLC told Law360 in a phone interview Friday evening that this judicial notice dispute was created as "an optical illusion and distraction" from Adams' bad faith claims against the tribal court.

"If they had a strong defense to the bad faith claims, they would have brought it, but they don't — they cannot contest and do not contest the central allegations underlying the bad faith claims, so they create confusion and misdirection," Galanda said.

"She sought domestic violence protection in 2017, and Ray Dodge converted that plea for domestic violence protection into a child custody proceeding — threatening the custody of her child — which should be unthinkable. But because that is so egregious and because the bad faith is so obvious here, they're trying to confuse the court by throwing a bunch of extraneous information to the court," he added.

Adams argued last week against allowing judicial notice of the first amended complaint in Rabang v. Kelly and sworn declarations by tribal attorneys, claiming the judges "inappropriately seek a do-over" of developing their side.

"Any tribal 'ratification' of Dodge's appointment in early 2016 does not negate his and the Nooksack Tribal Court's bad faith from March of 2017 to present. Nor does that material have any bearing whatsoever on whether the Nooksack Tribe plainly lacks criminal jurisdiction over Ms. Adams," she wrote in an opposition response.

"In any event, relevancy is not the proper standard for determining whether judicial notice is appropriate. Such a rule would open the floodgates," she added.

Adams said in her Washington federal court complaint in 2019 that the dispute dates to 2012, when she and her father — a spokesperson for the hundreds of people who faced tribal disenrollment — openly critiqued Nooksack tribal officers, dubbed councilpersons, who wanted to disenroll them.

Unrelated to the political feud, Adams encountered a variety of legal disputes with the father of her child over several years, which ultimately led to her obtaining a protection order against him issued by Judge Dodge in March 2017.

Later that month, Judge Dodge decided sua sponte — of his own accord — to issue a parenting order against Adams, which she claimed in her complaint was to "endlessly harass" her. She also alleged that he lacked authority to conduct these proceedings, yet forced her to appear before him 18 times over two years "through an abuse of judicial process."

The appearances resulted in Judge Dodge issuing 10 criminal counts against Adams, which prompted her to relinquish Nooksack enrollment and seek "asylum" with the Lummi Nation, obtaining citizenship with the tribe.

But Judge Dodge continued the tribal court proceedings and issued an arrest warrant charging Adams with contempt of court and interfering with custody proceedings. She was held in the local Whatcom County Jail for eight hours until her father posted $500 bail for her.

Adams filed a petition for writ of habeas corpus with the Washington federal court in August 2019, since people are still in custody after posting bail. But U.S. District Judge John C. Coughenour ruled in September 2020 that she had not exhausted her tribal court options before bringing the case to the federal court system.

She appealed the decision, alleging that Judge Dodge was illegitimately instated as a judge, but the judges are fighting back, trying to insert evidence during the appeal to prove his legitimacy.

Counsel for the judges did not respond to requests for comment at time of publication on Friday.

Adams is represented by Gabriel S. Galanda and Ryan D. Dreveskracht of Galanda Broadman PLLC.

The judges are represented by Rob Roy Smith and Rachel B. Saimons of Kilpatrick Townsend & Stockton LLP.

The case is Elile Adams v. Raymond Dodge et al., case number 21-35490, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Marygrace Murphy.

Read more at: https://www.law360.com/nativeamerican/articles/1431280/nooksack-judges-ex-citizen-dispute-new-info-for-appeal?copied=1

Biden Administration Restores Protections for Indigenous Sacred Places

By Amber Penn-Roco

On October 7, 2021, immediately prior to Indigenous Peoples’ Day, President Biden signed a proclamation restoring protections to three National Monuments, the Bears Ears National Monument, the Grand Staircase-Escalante National Monument, and the Northeast Canyons and Seamounts Marine National Monument.

Following President Biden’s Proclamation, the Bears Ears National Monument will be restored to 1.36 million acres, and the Grand Staircase-Escalante National Monument to 1.87 million acres.

Both of those National Monuments had previously seen drastic reductions in size under the Trump administration, leaving the areas open to exploitation by companies seeking to develop the public lands that were rich in oil, gas, coal, and uranium. The Proclamation also restores protections at Northeast Canyons and Seamounts Marine National Monument that prohibit commercial fishing in the National Monument. 

The Biden administration, in particular, emphasized the importance of the restoration of the Bears Ears National Monument, stating:

Restoring these protections will conserve a multitude of sites that are culturally and spiritually important to Tribal Nations— including petroglyphs, pictographs, cultural sites, dwellings, and areas used for traditional rituals, gatherings, and tribal practices — as well as paleontological objects, landscape features, historic objects, and plant and animal species. Restoring the Monument’s boundaries and conditions restores its integrity, upholds efforts to honor the federal trust responsibility to Tribal Nations, and conserves these lands and waters for future generations.

The Proclamation comes after several years of public outcry following the Trump administration’s reductions. Especially instrumental in the fight to restore these protections were Indigenous peoples, to whom the lands hold great cultural and spiritual significance.

The Bears Ears Inter-Tribal Coalition, an entity comprised of delegates from the Hopi Tribe, Navajo Nation, Ute Indian Tribe, Ute Mountain Ute Tribe and the Zuni Tribe and an organization that was responsible for the initial creation of the Bears Ears National Monument, issued a statement in response to the Proclamation, stating:

By taking this action, President Biden will be recognizing the deep and enduring ancestral and cultural connections that Tribes have to this landscape and taking a step toward honoring his commitment to Indigenous People by acknowledging their original place in this country that is now our shared home.

In 2018, I published an article in the National Lawyers Guild Review, “Trump’s Dismantling of the National Monuments: Sacrificing Native American Interests on the Altar of Business”, which provides background on the importance of the Bears Ears National Monument and the Trump administration’s effort to diminish National Monuments throughout the United States. 

Although there is much more work to be done to protect Indigenous sacred places and the environment at large, President Biden’s decision to restore these monuments is a notable step in the right direction. Hopefully, it indicates a momentum shift within the federal government towards honoring the sacred.

Amber’s practice focuses on environmental protection in Indian Country. Her practice also includes tribal sovereignty issues, including economic development and tribal governance matters. 

Nooksack Tribal Judge Ray Dodge Accused of Harassing Domestic Abuse Victim

By Victoria McKenzie

Law360 (October 1, 2021, 10:44 PM EDT) -- The Ninth Circuit has been asked to decide whether the Nooksack Tribe has jurisdiction over a single mother who said an illegitimate tribal court judge persecuted her after she sought protection for domestic abuse, and then ordered her arrest on nonreservation land as part of a political vendetta.

In a reply brief filed Tuesday, two Nooksack tribal court judges accused 35-year-old Elile Adams of trying to "get even" with them after she was detained in Whatcom County, Washington, allegedly for failing to appear at a tribal criminal proceeding. Wrongful as her desire to "punish" the judges may be, they said, the district court was correct to find that Adams can't seek habeas relief in federal court without first exhausting tribal court remedies.

The district court also found that judicial immunity would apply whether or not the tribe had the jurisdiction to arrest Adams, and dismissed the case.

Adams' attorneys tell a very different story — that of a faction of "holdover" tribal leaders who sacked the chief tribal judge for her support of an election at a time when the tribe was divided over the proposed disenrollment of 300 citizens. The group then replaced her with their own attorney, Raymond D. Dodge, who is nonindigenous, according to the appeal.

Meanwhile, the U.S. Department of the Interior announced it would not recognize the group of council members, or any of their actions, according to the habeas writ Adams later filed in district court. The agency also invalidated any tribal court orders "based on actions taken by the tribal council after March 24, 2016," the petition states.

Nevertheless, Adams said Judge Dodge used his position to go after her because she and her father opposed the contentious plan to evict some 300 tribe members. Not long after being installed as chief judge, Adams said, Judge Dodge presided over an eviction action against an elder tribe member, whose lawyers he had "disbarred and excluded from court." Adams' father stood up for the elder in court, and in his native Nooksack language, publicly "humiliated" Judge Dodge for his unethical behavior, according to the writ.

The incident would later come back to haunt Adams when she appeared before Judge Dodge in 2017 to request a domestic violence protection order. According to Adams, Judge Dodge used his position to illegally assert jurisdiction over her child and initiate a custody action, threatening to take her daughter away, even though Adams had been awarded full custody in 2015 by a state Superior Court.

Then, Judge Dodge "took the unusual judicial step of personally asking Nooksack Tribal Police Chief Mike Ashby to investigate Ms. Adams for possible custodial interference," according to her appeal.

As part of a harassment campaign, Adams said Judge Dodge personally ordered "no less than twenty purported orders" against her between 2017 and 2019, many of them for contempt of court. As a result, Adams sought "asylum" for herself and her daughter with the neighboring Lummi Nation, and renounced her Nooksack citizenship. She appeared before Judge Dodge in 2019 and pled not guilty to criminal custodial interference, for allegedly violating the custody rights of the child's father — the man from whom Adams sought protection in 2017.

According to Gabriel Galanda of Galanda Broadman, who represents Adams in federal court, the father had not been seen since 2017 and had not made any appearance in court.

Then, while Adams was participating in an annual ritual called the Canoe Journey in 2019 — when all the tribal governments of the Northwest Treaty Tribes are shut down — Judge Dodge allegedly ordered Adams' arrest for failure to appear in court in relation to the criminal custodial action.

"On the morning of July 30, 2019, the Adamses were asleep or relaxing at home when tribal police officers arrived to the Adamses' home and assaulted, battered and falsely detained, arrested and/or imprisoned them," while refusing to identify themselves or present a warrant, the writ said. Her father was beaten, and his glasses broken, according to the petition.

After Adams' release on bail, Galanda filed twin habeas corpus petitions on her behalf in tribal and federal court, he told Law360. Judge Dodge refused to allow Galanda to represent Adams in the criminal custodial case, denying her "constitutional right to counsel," and also refusing to consider her pro se petition.

"They rejected her tribal habeas corpus petition because I signed it," Galanda said. "I then sought a writ of mandamus in front of the tribal court of appeals to compel the clerk to simply accept the habeas petition ... as a valid legal filing." But again, it was rejected.

Galanda finally had Adams refile her habeas petition pro se. "It was accepted for filing," he said, "but they've now sat on the filing since the fall of 2019."

The federal habeas petition named the Nooksack Tribe, several tribal court officers, Judge Dodge, and the pro tem judge who replaced him, Rajeev Majumdar, and invoked a bad-faith exemption to tribal court exhaustion.

Judge Dodge even sued Adams in Whatcom County Superior Court for libel after she told a blogger that "Judge Dodge has made my life a living nightmare," according to the federal habeas writ. He allegedly refused to recuse himself from her criminal case until October 2019.

According to Adams, Judge Dodge ordered her arrest "without due process, legal authority, or jurisdiction." Her case is the very "archetype for the bad-faith exception to exhaustion," she said, because the judge denied her access to counsel, denied her any means of contesting the criminal charges or her detention, and has "offered no legal or factual justification for the criminal sanctions against her."

In response to her Ninth Circuit appeal in 2021, the Nooksack Tribe and its tribal court judges rejected the accusations of bad faith or harassment. On Tuesday, the judges said that Adams "deceptively omitted" the fact that in 2017, the DOI restored its recognition of the tribal government after the tribe carried out a special election, which the DOI determined to be legitimate.

According to the tribe's reply brief, the Washington Supreme Court has repeatedly held that "its criminal jurisdiction is concurrent with tribes concerning offenses occurring on off-reservation trust lands," saying that Adams' protestations "are simply evidence of her disdain for the tribe."

Adams argued that Public Law 280 established Washington's exclusive criminal jurisdiction over off-reservation allotted land.

Galanda said Adams has already suffered "the ultimate consequence" by relinquishing her tribal enrollment. "I can't describe that for you — it doesn't translate," said Galanda, himself a Round Valley tribal citizen. "But imagine yourself as a natural-born American citizen, if that's who you are, fleeing to Canada to escape persecution of a judge."

Counsel for the Nooksack Tribe and for Judge Dodge declined to comment.

Judges Dodge and Majumdar are represented by Rachel B. Saimons and Rob Roy Smith of Kilpatrick Townsend & Stockton LLP.

The Nooksack Tribe is represented by Charles Norman Hurt of the Office of Tribal Attorney.

Adams is represented by Gabriel Galanda of Galanda Broadman PLLC.

The case is Elile Adams v. Raymond Dodge et al., case number 21-35490, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Jay Jackson Jr.