Case 2:17-cv JCC Document 120 Filed 10/06/17 Page 1 of 9 THE HONORABLE JOHN C. COUGHENOUR 2

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1 Case :-cv-000-jcc Document Filed 0/0/ Page of THE HONORABLE JOHN C. COUGHENOUR 0 MARGRETTY RABANG, OLIVE OSHIRO, DOMINADOR AURE, CHRISTINA PEATO, and ELIZABETH OSHIRO, v. Plaintiffs, ROBERT KELLY, JR., RICK D. GEORGE, AGRIPINA SMITH, BOB SOLOMON, LONA JOHNSON, KATHERINE CANETE, RAYMOND DODGE, ELIZABETH KING GEORGE, KATRICE ROMERO, DONIA EDWARDS, and RICKIE ARMSTRONG, UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON Defendants. I. INTRODUCTION // MOA: CASE NO. :-CV-000-JCC - Case No. :-cv-000-jcc BRIEF OF THE KELLY DEFENDANTS REGARDING THE EFFECT OF THE AUGUST, MEMORANDUM OF AGREEMENT AS DIRECTED BY // MINUTE ORDER (DKT. NO. ) NOTED FOR HEARING: October, Pursuant to the Court s September, Minute Order (Dkt. No. ), the Kelly Defendants provide this brief regarding the effect of the August, Memorandum of Agreement ( MOA ) between Defendant Robert Kelly as Chairman of the Nooksack Indian Tribe and Michael S. Black, the Acting Assistant Secretary Indian Affairs, on behalf of the United States Department of Interior. The changed circumstances demonstrated by the MOA should lead this Court to issue an indicative order pursuant to Civil Rules. and (h)() indicating that it lacks jurisdiction Telephone:.. PDX\0\\CSMM\0.

2 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 and intends to dismiss the plaintiffs claims. The Kelly Defendants then would seek Ninth Circuit permission for entry of that order pursuant to Federal Rule of Appellate Procedure (FRAP).. Moreover, the MOA only strengthens the grounds supporting the denial of the plaintiffs Motion to Compel (Dkt. No. ) and the granting of third party Schwabe s Motion to Quash (Dkt. No. ). A. The Effect of the MOA on the Court s Continued Jurisdiction Over This Lawsuit. The Kelly Defendants have asserted from the outset that the Court lacks jurisdiction to resolve the plaintiffs claims because, among other reasons, the claims require resolution of an intra-tribal dispute concerning tribal government and membership. See Santa Clara Pueblo v. Martinez, U.S.,, - (). This Court disagreed. // Order (Dkt. No. ). The Kelly Defendants have appealed this Court s jurisdictional rulings to the Ninth Circuit Court of Appeals. In its April, Order currently on appeal, the Court expressed concern regarding a potential lack of opportunity [for plaintiffs] to challenge the tribal court s jurisdiction because of the alleged lack of a quorum of the Tribal Council. // Order :- (Dkt. No ). The Court gave deference to DOI s letters stating it would not recognize the current tribal leadership, and found that the Court had jurisdiction in these circumstances in the interim period where the tribal leadership is considered inadequate by the DOI. Id. at 0: :. The Court described its jurisdiction as not permanent or inflexible, and expressly noted that if the DOI and BIA recognize tribal leadership after new elections, this Court will no longer have jurisdiction and the issues will be resolved internally. Id. at :-. // MOA: CASE NO. :-CV-000-JCC - PDX\0\\CSMM\0. Telephone:..

3 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 Rule (h)() of the Federal Rules of Civil Procedure provides that [i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. The MOA demonstrates that the circumstances which convinced this Court to exercise jurisdiction have substantially changed. The purpose of the MOA, by its terms, is to outline a procedure by which the federal government will recognize a Tribal Council, elected through a Special Council Election under Nooksack law, as the governing body of the Nooksack Indian Tribe. Declaration of Connie Sue Martin, Ex. (MOA, A, B). The MOA recognized Chairman Kelly as the person of authority within the Tribe with whom the DOI will maintain government-to-government relations, and restored the Tribe s funding for essential governmental services - including its Tribal Court. Id. (MOA, C, F). The special election contemplated in the MOA is proceeding, consistent with Nooksack law: candidates have submitted their packets for establishing their candidacy, the primary election is scheduled for November, and the final election is scheduled for December,. Declaration of Connie Sue Martin, Ex.. The plaintiffs are afforded the same right to run for office and vote in the election as Nooksack Tribal Members are, pursuant to the MOA. Id. (MOA E). Upon the successful completion of the pending elections and the resolution of any election challenges to the Election Board and the Tribal Court, the DOI will issue a letter granting full recognition of the Tribal Council as the valid governing body of the Nooksack Indian Tribe. Id. (MOA D). According to the Court s own prior jurisdictional analysis, to which the Kelly Defendants preserve their objections and appeal, the MOA demonstrates that the Court now // MOA: CASE NO. :-CV-000-JCC - Telephone:.. PDX\0\\CSMM\0.

4 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 lacks jurisdiction and should dismiss the action. The MOA demonstrates that there is a functioning government at Nooksack recognized by the DOI. The DOI has entered the MOA with that functioning government and that government will hold a new election. This ensures a tribal forum recognized by the DOI where intra-tribal disputes may be resolved. Because the MOA presents changed circumstances, including demonstrating that the DOI has recognized Chairman Kelly as the person of authority within the Tribal government and that new elections are under way, the Court should now decline its temporary exercise of jurisdiction. The Court should consider the proper procedure to implement such an order. Because the jurisdictional issues regarding the claims against the Kelly Defendants are before the Ninth Circuit, the Ninth Circuit not this Court presently has jurisdiction. See United States v. Claiborne, F.d, 0 ( th Cir. ), cert. den. U.S. (); State v. Powell, F.d, ( th Cir. ); Griggs v. Provident Consumer Discount Co., U.S.,, 0 S. Ct. 00, L. Ed. d (). Thus, this Court should issue an indicative order pursuant to Civil Rule.. The Ninth Circuit should then grant permission and remand the case for entry of a dismissal pursuant to Federal Rule of Appellate Procedure (FRAP).. See also Snell v. Cleveland, Inc., F.d, (th Cir. 0) (per curiam) (Rule (h)() only applies to actions pending before the court. ). Thus, if the Court determines it would be inclined to hold that it lacks jurisdiction based on the new circumstances and its obligation to revisit jurisdiction under Rule (h)(), the Court should state in an indicative order that it will dismiss the action if the Court of Appeals remands for that purpose. The Kelly Defendants would then promptly notify the circuit clerk // MOA: CASE NO. :-CV-000-JCC - Telephone:.. PDX\0\\CSMM\0.

5 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 under FRAP.. If the Court of Appeals remands for that purpose, the Court may dismiss the claims. The Kelly Defendants urge the Court to conclude that the changed circumstances evidenced by the MOA warrant dismissal. B. The Effect of the MOA on Plaintiffs Pending Motion to Compel Discovery (Dkt. No. ). The Kelly Defendants and the Tribal non-parties against whom discovery has been sought have already articulated more than adequate bases for denying the motion to compel. The MOA provides additional support for denying the motion and prohibiting discovery. The party discovery sought from Kelly Defendants Robert Kelly, Katherine Canete and Rickie Armstrong is impermissible under binding Ninth Circuit authority because this Court is divested of jurisdiction over the Kelly Defendants pending their appeal to the Ninth Circuit. Party discovery that is presently barred by the divestiture of jurisdiction would be similarly barred if this Court determines based upon the changed circumstances demonstrated by the MOA that it lacks jurisdiction. As the Tribe and non-party Tribal employees asserted in their opposition to the plaintiffs Motion to Compel (Dkt. No. 00), the documents the plaintiffs seek from the Kelly Defendants and the non-party Tribal employees are Tribal documents, and the Court cannot compel the production of Tribal documents by individuals who do not have the right or authority to provide Tribal documents. The MOA recognizes Chairman Kelly as the person of authority for the Tribal Government for government-to-government purposes. The Tribe, through Chairman Kelly, asserts its sovereign immunity to its fullest extent, consistent with Nooksack law. There has been no waiver of that immunity so as to permit discovery against // MOA: CASE NO. :-CV-000-JCC - Telephone:.. PDX\0\\CSMM\0.

6 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 the Tribe. Even if the plaintiffs had sufficiently argued that no valid government exists to exercise the privilege, which they did not, the MOA debunks that notion. The Court should deny the plaintiffs Motion to Compel. Discovery against the Kelly Defendants, the Tribe and the Tribe s employees should be barred. C. The Effect of the MOA on Defendants Motion to Quash Subpoena (Dkt. No. ). The Motion to Quash the subpoena issued to Kelly Defendants counsel should be granted. The subpoena is designed to seek documents that are attorney-client privileged and/or attorney work product, to circumvent the Tribe s assertion of sovereign immunity, and which are outside of the scope of inquiry currently before the court. The plaintiffs arguments against the Motion to Quash are not specifically premised upon any argument that the Tribal Council is not a legitimate government, but upon an assertion that the Tribe s administration of its own courts is somehow evidence of a crime or a fraud. The MOA recognizes the Tribe, as represented by Chairman Kelly, and implicitly recognizes the Tribe s right to administer its own courts. Apart from that recognition, the MOA does not have a direct impact on the plaintiffs argument. However, there is no reason to entertain their insufficient rationale for the extraordinary relief they request (the crime-fraud exception to attorney-client privilege) if there is ultimately no basis to assert jurisdiction in this case. be quashed. The subpoena seeking attorney-client privileged and work product documents should // MOA: CASE NO. :-CV-000-JCC - PDX\0\\CSMM\0. Telephone:..

7 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 D. The Effect of the MOA on Defendant Dodge s Pending Motion for Summary Judgment (Dkt. No. ). The Kelly Defendants join in the arguments of Judge Dodge in his Briefing In Response To Memorandum Of Agreement (Per Order, Dkt. # ). The MOA provides additional support for granting Judge Dodge s Motion for Summary Judgment and dismissing the plaintiffs claims against him. II. CONCLUSION The Court previously concluded its exercise of its jurisdiction is flexible and for an interim period, and that if the DOI and BIA recognize tribal leadership after new elections, this Court will no longer have jurisdiction and the issues will be resolved internally. // Order (Dkt. No. ch) :-. Significant changed circumstances now exist similar to those the Court identified. The MOA demonstrates that the DOI and the BIA recognizes Chairman Kelly as the representative of the current government, who is tasked under the MOA with holding new elections. The Court should conclude that the changed circumstances support a holding that it lacks jurisdiction and should dismiss the plaintiffs claims if the Ninth Circuit restores jurisdiction. The Court should stay all other pending motions to allow the Ninth Circuit to return jurisdiction to the Court under FRAP.. Once jurisdiction is restored and the Court dismisses the claims, the other pending motions would be moot. If the Court does not issue an indicative ruling to dismiss, it should conclude that the new circumstances based on the MOA provides further grounds on which to deny the Motion to Compel and grant Schwabe s Motion for a Protective Order. // MOA: CASE NO. :-CV-000-JCC - PDX\0\\CSMM\0. Telephone:..

8 Case :-cv-000-jcc Document Filed 0/0/ Page of Dated this th day of October,. 0 By: /s/ Connie Sue Martin Connie Sue Martin, WSBA # csmartin@schwabe.com Christopher H. Howard, WSBA #0 choward@schwabe.com Attorneys for Kelly Defendants // MOA: CASE NO. :-CV-000-JCC - PDX\0\\CSMM\0. Telephone:..

9 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 CERTIFICATE OF SERVICE The undersigned declares under penalty of perjury, under the laws of the State of Washington, that the following is true and correct: That on the th day of October,, I electronically filed the foregoing BRIEF OF THE KELLY DEFENDANTS REGARDING THE EFFECT OF THE AUGUST, MEMORANDUM OF AGREEMENT with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: Gabriel S. Galanda Anthony S. Broadman Ryan D. Dreveskracht Bree R. Black Horse Galanda Broadman, PLLC P.O. Box 0 th Avenue NE, Suite L Seattle, WA Rob Roy Smith Rachel Saimons Kilpatrick Townsend & Stockton LLP th Avenue, Suite 00 Seattle, WA 0 /s/ Connie Sue Martin Connie Sue Martin, WSBA # CERTIFICATE OF SERVICE - PDX\0\\CSMM\0. U.S. Bank Centre Telephone --