Case 2:17-cv JCC Document 34 Filed 03/02/17 Page 1 of 25 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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 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, Defendants. Case No. :-cv-000-jcc MOTION OF DEFENDANTS KELLY, GEORGE, SMITH, SOLOMON, JOHNSON, CANETE, GEORGE, ROMERO, EDWARDS, AND ARMSTRONG TO DISMISS PURSUANT TO F. R. CIV. P. (B)() AND F. R. CIV. P. (B)() NOTED FOR HEARING: Friday, March, I. INTRODUCTION AND REQUEST FOR RELIEF For nearly four years, the plaintiffs and their counsel have sought to prevent the Nooksack Indian Tribe from disenrolling them from the Tribe. This lawsuit is just the latest in a series of lawsuits in multiple jurisdictions, administrative appeals to the Bureau of Indian Affairs, public campaigns, and private entreaties to state and federal agency employees intended to interfere with and defame the Tribe and its agents and employees, prevent disenrollment, interfere with the Tribe s self-governance, and force the Tribe s leadership from office. and Exhibit, Declaration of Rickie Wayne Armstrong (Armstrong Decl. ). Because this is nothing more than an intra-tribal dispute inartfully pled as a RICO suit, the MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

2 Case :-cv-000-jcc Document Filed 0/0/ Page of Court lacks jurisdiction and must dismiss plaintiffs claims against defendants Robert Kelly, Jr., Rick D. George, Agripina Smith, Bob Solomon, Lona Johnson, Katherine Canete, Elizabeth King George, Katrice Romero, Donia Edwards, and Rickie Armstrong with prejudice, pursuant to Fed. R. Civ. P. (b)(). Even if that were not the case, plaintiffs utter failure to meet their burden to state a RICO claim, and to plead with the specificity required under Fed. R. Civ. P. (b), warrants dismissal pursuant to Fed. R. Civ. P. (b)(). Moreover, because the allegation of other facts by plaintiffs consistent with the First Amended Complaint (FAC) could not possibly cure the deficiencies, such dismissal should be with prejudice and without leave to amend. 0 II. STANDARDS FOR DISMISSAL A. Dismissal Under Rule (b)() The Court lacks subject matter jurisdiction over the plaintiffs claim because () the underlying issue is a purely intra-tribal dispute; and/or () the Tribe has sovereign immunity which has not been waived, and each of the moving defendants is protected by that sovereign immunity because he or she was at all times acting in the scope of his or her official capacity. A federal court is presumed to lack subject matter jurisdiction until the contrary affirmatively appears. Stock West, Inc. v. Confederated Tribes, F.d, ( th Cir.). The plaintiffs have the burden of establishing subject matter jurisdiction in opposing the motion because the plaintiffs are the party invoking the Court s jurisdiction. Id. Under Rule (b)(), a court must dismiss claims over which it lacks subject matter jurisdiction. Chapman v. Pier Imports (U.S.) Inc., F.d, ( th Cir. ). The party asserting jurisdiction bears the burden of proving that the Court has subject matter jurisdiction over the asserted claims, Kokkonen v. Guardian Life Ins. Co. of America, U.S.,, S. Ct., L. Ed. d (); though, even if a defendant does not move for dismissal under Rule (b)(), the Court has a duty to establish subject matter jurisdiction sua sponte. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 0 F.d MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

3 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 0, ( th Cir. 0). When determining the existence of subject matter jurisdiction, the district court is not confined by the facts contained in the four corners of the complaint it may consider [other] facts and need not assume the truthfulness of the complaint. Americopters, LLC v. F.A.A., F.d, n. ( th Cir. 0). In reviewing a factual attack on a complaint, a court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts, and a court s reference to evidence outside the pleadings does not convert the motion into a Rule motion. Gemtel Corp. v. Community Redevelopment Agency, F.d, n. ( th Cir. ). A court resolving a motion to dismiss under Rule (b)() must give the complaint s factual allegations closer scrutiny than required for a motion to dismiss pursuant to Rule (b)() for failure to state claim. Lipsman v. Sec'y of the Army, F Supp. d (D. D.C. 0). Motions to dismiss for lack of subject matter jurisdiction based on the sovereign immunity of an Indian Tribe, or because the case involves an intra-tribal dispute, are Rule (b)() matters. Fletcher v. United States, F.d (0 th Cir. ) (sovereign immunity); Ordinance Ass'n v. Babbitt, 0 F. Supp., (D. Wyo. ) (sovereign immunity); Miccosukee Tribe of Indians v. Cypress, F. Supp. d, 0 (S.D. Fla. ) (intra-tribal dispute). Where a defendant moves for dismissal for lack of subject matter jurisdiction, as well as on other grounds, the Court should rule first on the Rule (b)() challenge, since if it must dismiss a complaint for lack of subject matter jurisdiction, all other defenses and objections become moot and do not need to be determined. Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass'n, Fd ( nd Cir. 0). B. Dismissal Under Rule (b)() A defendant may move for dismissal when a plaintiff fails to state a claim upon which relief can be granted. Rule (b)(). To grant a motion to dismiss, the court must be able to MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

4 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 conclude that the moving party is entitled to judgment as a matter of law, even after accepting all factual allegations in the complaint as true and construing them in the light most favorable to the non-moving party. Fleming v. Pickard, F.d, ( th Cir. 0). However, to survive a motion to dismiss, a plaintiff must cite facts supporting a plausible cause of action. Bell Atlantic Corp. v. Twombly, 0 U.S., -, S. Ct., L. Ed. d (0). Although the Court must accept as true a complaint s well-pleaded facts, conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper Rule (b)() motion. Vasquez v. L.A. County, F.d, ( th Cir. 0). The Supreme Court instructed in Twombly that a litigant cannot simply recite the elements of a cause of action to avoid dismissal under this rule. He or she must instead provide the grounds of his entitlement to relief, which requires more than labels and conclusions. 0 U.S. at. The litigant must plead a claim that moves across the line from conceivable to plausible. Id. at 0. [W]hile a complaint attacked by a Rule (b)() motion to dismiss does not need detailed factual allegations, a plaintiff s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Id. at. [W]hen plaintiffs have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed. Id. at 0. In Ashcroft v. Iqbal, the Supreme Court set out a two-pronged approach for reviewing the sufficiency of a complaint in the face of a motion to dismiss for failure to state a claim. U.S., S. Ct., -0, L. Ed. d. First, the Court may identify those statements in a complaint that are actually legal conclusions, even if presented as factual allegations. Iqbal at -0. Such conclusory statements are not entitled to a presumption of truth. Id. Second, the Court presumes the truth of any remaining well-pleaded factual allegations, and determines whether those allegations and reasonable inferences from them plausibly support a claim for relief. Id. at 0. MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

5 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 In addition, RICO claims must satisfy Rule (b), which requires plaintiffs to state with particularity the circumstances constituting their claims. Moore v. Kayport Package Exp., Inc., F.d, ( th Cir. ). The Ninth Circuit has interpreted this particularity requirement as requiring that a plaintiff state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation. Perkumpulan Investor Crisis Ctr. Dressel-WBG v. Regal Fin. Bancorp, Inc., F. Supp. d 0, 0 (W.D. Wash. ), citing Odom v. Microsoft Corp., F.d, ( th Cir. 0); see also Vess v. Ciba-Geigy Corp. USA, F.d 0, 0 ( th Cir. 0)( Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged. ); Moore v. Kayport Package Exp., Inc., F.d, ( th Cir. ) ( Rule (b) requires that the pleader state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation. ). Given these pleading requirements, plaintiffs may not simply assert that each of the defendants made a false statement, but must at least state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation. Edwards v. Marin Park, Inc., F.d 0, 0 ( th Cir. 0). Where a complaint alleges that several defendants participated in a fraudulent scheme, Rule (b) does not allow a complaint merely to lump multiple defendants together but require[s] plaintiffs to differentiate their allegations... and inform each defendant separately of the allegations surrounding his alleged participation in the fraud. Swartz v. KPMG LLP, F.d, - ( th Cir. 0) (quotations omitted). Clearly, one conclusory allegation fails to meet the who, what, when, where, and how requirements to properly allege fraud with specificity. Siver v. CitiMortgage, Inc., 0 F. Supp. d, (W.D. Wash. ), citing Fed. R. Civ. P. (b). The mere conclusory statements in the complaint that an enterprise was conducted through the MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

6 Case :-cv-000-jcc Document Filed 0/0/ Page of fraudulent use of the United States mails and telephone wires is not sufficient to set forth a claim under RICO, absent the allegation of some specific and identifiable scheme on the part of the defendants. Snowbird Constr. Co., F. Supp. at. This heightened pleading requirement applies to all claims that sound in fraud, which includes claims arising under RICO. Lancaster Community Hospital v. Antelope Valley Hospital District, 0 F.d, 0 ( th Cir. ). The heightened requirement also applies to claims of conspiracy to defraud. Wasco Products, Inc. v. Southwall Technologies, Inc., F.d, ( th Cir. 0). III. STATEMENT OF FACTS 0 As plaintiffs have alleged, each of the moving defendants is an employee of the Nooksack Indian Tribe. FAC 0,. Most, but not all, of the moving defendants are also enrolled members of the Tribe. Defendants Robert Kelly, Rick D. George, Agripina Smith, Bob Solomon, Lona Johnson, and Katherine Canete are members of the Tribal Council, the governing body of the Tribe. FAC ; Exhibit, Armstrong Decl. Ms. Canete is also the General Manager of the Tribe. FAC. Defendant Elizabeth King George is the Director of the Nooksack Enrollment Department (NED). FAC. Defendant Katrice Romero is the Director of the Nooksack Indian Housing Authority (NIHA). FAC.. Defendant Donia Edwards is the Director of the Nooksack Education Department (Edu.). FAC. Defendant Rickie Armstrong is the Tribe s in-house attorney. FAC ; Armstrong Decl.. B. Leadership and Governance of the Nooksack Tribe The Tribe is a federally recognized Indian tribe. The Tribe s governing body consists of seven elected officials: One Chairman, one Vice-Chairman, one Treasurer, and four Councilmembers. FAC. Each official is elected by vote of all eligible voters (Tribal members who are years or older). Const. & Bylaws of the Nooksack Indian Tribe (Const.), Art. VI, Sec. (c). Exhibit, Armstrong Decl. MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

7 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 Tribal Council Regular Elections are conducted on the third Saturday in March on even numbered years. Nooksack Tribal Code (N.T.C.).0.0. Exhibit, Armstrong Decl. Starting with the 0 election the Tribal Chairman, Tribal Secretary, and Council Positions A and B elections are held every four years thereafter. Starting with the elections the Tribal Vice-Chairman, Treasurer, and Council Positions C and D are held every four years thereafter. N.T.C..0.00(B). Id. There are no limits to the number of terms a Council Member may serve. Eligible voters and candidates may contest the election results to the Election Board, and final decisions of the Election Board may be appealed to the Nooksack Tribal Court sitting as an appellate court. N.T.C..0.0,.00. Under the time frames proscribed by ordinance, a contest that is appealed must be decided within approximately fourteen days of the election. Id. If the time for appeals has passed for decisions of the Election Board and there are no pending appeals of decisions, the Election Superintendent certifies the election. N.T.C The new Council Members are sworn in the day after the Tribal Council Secretary has received the Election Board s certification of the results. N.T.C Because the new Council Members cannot, by ordinance, be sworn in until the election results are certified, and the results cannot be certified until all pending appeals have been decided, the ordinance implicitly provides that the Council Members whose terms expired continue on as holdovers during any appeal period, so the Tribe is not left in a position of being unable to govern or transact the business of the Tribe. This implicit allowance for holdover terms under the Constitution has been recognized and upheld by the Nooksack Tribal Court sitting as an appellate court for election appeals. See Campion v. Swanaset, No. NOO-C--00, April, Order at :-0, Exhibit, Armstrong Decl. ( Since the intent of the Nooksack tribal government was not with malice or ill will, the court decrees the current tribal council shall stand until the orderly transition of MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

8 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 power of the government and the new election is completed. ). The Campion court also refused the plaintiff s request that it invalidate any actions taken by the council members between the time of their election and the time of the decision. Campion, at :. Mr. Kelly was elected Chairman by a vote of all members of the Nooksack Indian Tribe in 0, and reelected in. Exhibit, Armstrong Decl. Chairman Kelly s second term expires March,. Id. He is, without any dispute, the Chairman of the Tribe and a member of the Tribal Council. He is not in holdover status, as plaintiffs allege. There is absolutely no factual or legal basis to support plaintiffs allegation, in footnote, that Chairman Kelly s receipt of his salary was part of a scheme to personally enrich the defendants. FAC. Mr. Solomon was elected to the Tribal Council, Position A, by a vote of all members of the Tribe in. His term expires on March,. Ms. Johnson also was elected to the Tribal Council in, occupying Position B, and her term expires on March,. Exhibit, Armstrong Decl. Neither Mr. Solomon nor Ms. Johnson are in holdover status. In, there were four Tribal Council seats up for election: the Tribal Vice- Chairman (held by Mr. George, who was elected in ), Treasurer (held by Ms. Smith, elected in ), Council Position C (vacant following a recall election) and Council Position D (held by Ms. Canete, elected in, who is also employed as the Tribe s General Manager). FAC ; Exhibit, Armstrong Decl. Due to extraordinary circumstances related to the disenrollment of approximately 0 individuals, including the plaintiffs, and previous security concerns and threats of violence associated with disenrollment protests, the Tribe postponed the regular elections that were to have been held on March,. Vice-Chairman George, Council Member/Treasurer Smith, and Council Member Canete continued to occupy their Council seats as holdovers until an election could be held, consistent with the holdover terms provided for under Nooksack law. Armstrong Decl.,. MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

9 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 In August,, the Northwest Regional Director of the BIA, Stanley Speaks confirmed that neither the Nooksack Constitution nor federal law authorized the Secretary of the Interior to conduct or approve Tribal Council elections. Exhibit, Armstrong Decl. As Mr. Speaks noted, Tribal Council elections are recognized as sovereign tribal processes. Garcia v. Western Regional Director, IBIA (). Absent any constitutional authority specifically instructing the Secretary to conduct a tribal election, it is up to the Nooksack Tribe through its own internal processes and operating through its own internal forums to carry out this inherently sovereign function. Id., at -. In a breach of contract suit brought by the Tribe in November, against the organization that provided its appellate court services, the Nooksack Tribal Court affirmed sub silentio the validity of the Council Members holdover terms. Nooksack Indian Tribe v. Northwest Intertribal Court System, Case No. -CI-CL-00, (//) (entering preliminary injunction in Tribe s favor over Northwest Intertribal Court System s objection that the Tribal Council had no standing to initiate litigation because of the alleged lack of quorum), Exhibit, Armstrong Decl. The Order was not appealed. Tribal Council elections were conducted in January,, open to all enrolled Tribal members over the age of, and the results were certified by the Election Superintendent, pursuant to Title. Vice-Chairman George, Council Member/Treasurer Smith, and Council Member Canete were reelected. New Council Member Roy L. Bailey was elected to fill the vacant Position C. Exhibit, Armstrong Decl. The Council is fully seated. There were no challenges to the election results. C. The Disenrollment Dispute The eligibility criteria for membership of the Nooksack Indian Tribe are identified in the Tribe s Constitution. Const. Art. II, Sec.. The Constitution further provides that the Tribal Council is authorized to enact ordinances concerning future membership in the Tribe, adoption into the Tribe, and loss of membership, subject to the approval of the Secretary of MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

10 Case :-cv-000-jcc Document Filed 0/0/ Page 0 of 0 Interior. Const. Art. II, Sec.. On June,, in a Secretarial election called to amend the membership criteria in the Constitution, Nooksack voters approved the deletion of Article II, Section (H), which had permitted the membership in the Tribe of individuals who were at least one- fourth degree Indian blood who could prove Nooksack ancestry to any degree. After Article II, Section (H) was deleted, the Tribal Council amended the corresponding section of the Tribe s enrollment ordinance, Part.0.00()(h). Exhibit and, Armstrong Decl. Between November 0, and November,, the Tribe disenrolled individuals, including the plaintiffs, who failed to demonstrate legally sufficient blood connections to the Tribe to satisfy the criteria established under the Tribe s amended Constitution and enrollment code. and Exhibit, Armstrong Decl. Because the plaintiffs were disenrolled, they are no longer entitled to the benefits of Tribal membership. They do not qualify for services provided by Tribal departments and agencies, including but not limited to housing, social services, health care, and educational services. The Tribe has begun to take steps to disenroll the plaintiffs from the various programs to which they had been entitled when they were enrolled Nooksack Tribal members. The Tribe has also taken steps to evict two of the plaintiffs from residences on Nooksack tribal trust property for failure to pay rent. NIHA is a division of the Nooksack Tribal Administration. NIHA was empowered by the Tribe to manage the Nooksack public housing stock, including the authority to enter into lease agreements and pursue evictions. NIHA evicted Elizabeth Oshiro and obtained an Order of Eviction against Margretty Rabang, although at present Ms. Rabang has neither vacated the premises nor been removed. 0 and Exhibit, Armstrong Decl.; FAC -,, -,, a, e-k, Those disenrolled on November, include plaintiffs Dominador Aure, Christina Peato, Elizabeth Oshiro, Olive Oshiro, and Michelle Roberts (Plaintiff and Relator in plaintiffs original Complaint). Plaintiff Margretty Rabang was disenrolled on June,. FAC. MOTION TO DISMISS - 0 CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

11 Case :-cv-000-jcc Document Filed 0/0/ Page of v. 0 Neither Ms. Oshiro nor Ms. Rabang appealed the Tribal court orders. Ms. Rabang, however, filed a collateral attack in Whatcom County Superior Court, alleging claims of trespass and seeking a writ of restitution restoring her to her property. The Whatcom County Superior Court dismissed Rabang s suit for lack of subject matter jurisdiction. 0, Armstrong Decl. Ms. Rabang did not appeal the dismissal. Id. Since the Tribe began the process of amending the Constitution and beginning the disenrollment process, individuals subject to disenrollment, including the plaintiffs (represented by the same counsel who represent them in this suit) have filed twenty-seven lawsuits, appeals, and administrative appeals in multiple fora, including Tribal, state, and federal courts (including this one), the BIA and its Interior Board of Indian Appeals (IBIA), as well as grievances against all of the Tribe s attorneys involved with (or falsely alleged to be involved with) the disenrollment matters, which were all dismissed by the Washington State Bar Association. and Exhibit, Armstrong Decl. This RICO suit is simply the latest effort in this long, intra-tribal dispute over Tribal leadership and disenrollment. IV. LAW AND LEGAL ARGUMENT A. Dismissal Under Rule (b)() is Warranted. The Court Lacks Jurisdiction to Adjudicate an Intra-Tribal Dispute The Court should dismiss this lawsuit for lack of jurisdiction because it originates in a several years-long intra-tribal dispute regarding membership in the Tribe, disenrollment, and disagreement with the policies of Chairman Kelly and the Nooksack Tribal Council. An intra-tribal dispute is one that affects matters of trial self-government and sovereignty. Santa Clara Pueblo v. Martinez, U.S.,, S. Ct. 0, L. Ed. d 0 (). Some such matters include (but are not limited to) the inherent power to determine tribal membership, to regulate domestic relations among members, to prescribe MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

12 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 rules of inheritance for members, and the power to punish tribal offenders. Montana v. U. S., 0 U.S.,, 0 S. Ct., L. Ed. d ()( Indian tribes retain their inherent power to determine tribal membership ). The enforcement of a tribe s own tribal laws against members of the tribe here, the Tribe s Constitution, its Enrollment Ordinance, its Election Ordinance, and its Unlawful Detainer Ordinance - is certainly within the scope of the tribe s inherent sovereignty. Boney v. Valline, F. Supp. d, (D. Nev. 0). Federal courts do not have jurisdiction to resolve tribal law disputes... These disputes are within the exclusive jurisdiction of the Community s tribal court. Smith, F. Supp. at (citing cases); Runs After v. United States, F.d, ( th Cir. ) (holding that federal courts do not have jurisdiction to interpret a tribal constitution or tribal laws). The Tribe s right to determine who is, and is not, a member, is immune from review by a federal court. Santa Clara Pueblo, U.S. at n.; Williams v. Gover, 0 F.d, 0 ( th Cir. 0) ( Under Santa Clara Pueblo, Mooretown Rancheria had the power to squeeze the plaintiffs out, because it has the power to define its own membership. It did not need the BIA s permission and did not ask for it, and the BIA never purported to tell it how to define its membership. ); see, also, Adams v. Morton, F.d, ( th Cir. ) ( [U]nless limited by treaty or statute, a Tribe has the power to determine tribal membership. ), accord, Apodaca v. Silvas, F.d 0 ( th Cir. ) (per curiam); Ordinance Assn. v. United States Dept. of the Interior, F.d 0 (0 th Cir. ). In addition to the Tribe s disenrollment decisions, the Court would also have to adjudicate other issues of Tribal law: whether the Tribal Council and the Tribal departments were authorized to act to revoke member benefits from disenrolled plaintiffs, or to evict Rabang and Elizabeth Oshiro. Those issues have already been appropriately adjudicated by Tribal authorities under Nooksack law, in the Nooksack Tribal Court. See Miccosukee Tribe of Indians, F. Supp. d (federal court lacked subject matter jurisdiction over intra-tribal MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

13 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 dispute alleging the misuse of broad and unfettered power bestowed on Tribe s chief.). Once tribal remedies have been exhausted, the Tribal court s resolution of tribal law is not subject to review by this Court. Smith, F. Supp. at n.; Burlington Northern R.R. v. Crow Tribal Council, 0 F.d, ( th Cir. ) (explaining that exhaustion of tribal court remedies would provide any subsequently reviewing federal court with an authoritative interpretation of tribal law). Unless the Court determined the tribal court lacked jurisdiction, plaintiffs are precluded from relitigating issues raised and resolved in the tribal forum, including the authority of the holdover Council members to govern, and the evictions of plaintiffs Rabang and Elizabeth Oshiro. Iowa Mut. Ins. Co. v. LaPlante, 0 U.S.,, 0 S. Ct.,, L. Ed. d 0 (); United States v. Turtle Mountain Housing Auth., F.d, n. ( th Cir. ). In In re: Sac & Fox Tribe of the Miss. In Iowa/Meskwaki Casino Litig., 0 F.d ( th Cir. 0), the Court dismissed for lack of subject matter jurisdiction a RICO claim centering on a dispute (like the case at bar) concerning the authority of a tribal council to act on behalf of the tribe. Similarly, in Smith v. Babbit, the district court concluded it had no basis to assert jurisdiction over a claim arising from an intra-tribal dispute regarding membership a subject matter governed by tribal code despite the reference to RICO and mail fraud. F. Supp. at, judgment aff d, appeal dismissed in part, 00 F.d, ( th Cir. ). RICO violations are inapplicable to tribal disputes and acts allegedly committed within the course and scope of a defendant s employment with the Tribe. Plaintiffs allege that RICO Defendants carried out their scheme to defraud Plaintiffs, through their official positions in or other affiliations with the Tribe... FAC. As the FAC demonstrates, the issues in this lawsuit relate solely to purely intramural matters touching exclusive rights of self-government. Donovan v. Coeur d Alene Tribal Farm, F.d ( th Cir. ). As such, the Court lacks jurisdiction and dismissal is warranted. MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

14 Case :-cv-000-jcc Document Filed 0/0/ Page of 0. Sovereign Immunity Bars Plaintiffs Claims An additional basis for dismissal is the Tribe s sovereign immunity. Notwithstanding plaintiffs efforts to sue the defendants in their personal capacities (FAC, ), they affirmatively allege that all acts and omissions of the defendants alleged fraudulent conduct were done in the course and scope of their governance of and employment by the Tribe (FAC, 0-, -, -, -,, -, -, 0-, 00, 0, 0, 0, 0, 0,, -, -). Tribal sovereign immunity extends to individual tribal officers where, as here, they are acting in their representative capacity and within the scope of their authority. Stock West Corp. v. Taylor, F.d, ( th Cir. ); Hardin v. White Mountain Apache Tribe, F.d, ( th Cir. ); accord Cameron v. Bay Mills Indian Community, F. Supp., (W.D. Mich. ); Smith, F. Supp. at. Indeed, the acts complained of (disenrollment (FAC,, -,, -,, - 0, 0, a, a-d, l-q), eviction (FAC -,, -,, a, e-k, v), and the denial of benefits afforded to enrolled Tribal members (FAC 0-, -, 0, p-u, w) could not have been carried out but for the fact that the defendants were acting in their official capacity to carry out the Tribe s power and authority. Imperial Granite Co. v. Pala Band of Indians, 0 F.d, ( th Cir. ) (plaintiffs complaint against tribal officials barred by sovereign immunity because the [officials ] votes individually [had] no legal effect and it was the official action of the Band, following the [officials ] votes, that caused [plaintiff s] injuries ); see, also, Weeks Constr., Inc. v. Oglala Sioux Housing Auth., F.d, 0- ( th Cir. ) ( as an arm of tribal government, a tribal housing authority possesses attributes of tribal sovereignty and suits were barred by sovereign immunity). The Tribal Council is an arm of Tribal government, and as such is presumptively immune from suit. The same is true for each of the other Tribal departments plaintiffs have identified as both RICO enterprises (Tribal Court, NIHA, Enrollment Department, Indian Health Department, and Education Department). Plaintiffs have not alleged that this MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

15 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 immunity has been waived by the Tribe. RICO contains no language which suggests Congress unequivocally waived Indian tribes sovereign immunity. Absent a congressional or tribal waiver, the Tribe, like other sovereigns, is immune from suit for alleged RICO violations. Smith, F. Supp. at, citing Bair v. Krug, F.d, - ( th Cir. ) (holding that State of Nevada was immune from RICO suit absent a waiver or its sovereign immunity); Snowbird Constr. Co. v. United States, F. Supp., 0- (D. Idaho ) (allowing RICO suit to proceed only after concluding that sue and be sued clause in tribal ordinance unequivocally expressed waiver of sovereign immunity); see also McMaster v. State of Minnesota, F. Supp., (D. Minn. ), aff'd, 0 F.d ( th Cir. ) (holding that State of Minnesota was immune from RICO suit absent a waiver of its sovereign immunity); Ungaro v. Desert Palace, Inc., WL (D. Nev. ) (holding United States government is immune from RICO suit). B. Plaintiffs RICO Claim Against the Tribal Government Fails as a Matter of Law.. The Tribal Council Cannot be Liable Under RICO Plaintiffs allege that six of the seven members of the governing body of the Nooksack Tribe constitute a RICO defendant called the Holdover NITC. It is well-established that a governmental entity such as the Tribal Council is not capable of forming the criminal intent necessary to support the alleged predicate RICO offenses. Smith, F. Supp. at n. (dismissing RICO claims against tribal governing body, noting The Business Council, as a governmental entity, is not capable of forming the criminal intent necessary to support the alleged predicate RICO offenses. ); Lancaster Community Hosp. v. Antelope Valley Hosp. Dist., 0 F.d, 0 ( th Cir. ) (holding that RICO claims against a public hospital were properly dismissed because government entities are incapable of forming [the] malicious intent required under RICO); County of Oakland v. City of Detroit, F. Supp., (E.D. Mich. ) (holding that a municipal corporation cannot form the MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

16 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 requisite criminal intent and cannot be held liable under civil RICO laws ).. Plaintiffs Have Not Pled, and Cannot Establish, Elements of RICO Claim To establish the basic elements of a civil RICO claim, a private plaintiff must allege () conduct () of an enterprise () through a pattern () of racketeering activity. Sedima S.P.R.L. v. Imrex Co., U.S., (). The plaintiff must also allege that he was injured in his business or property by reason of the RICO violation. U.S.C. (c). The complaint must allege sufficient facts to render the actual existence of a conspiracy plausible. Twombly, at ; American Dental Association v. Cigna Corp., 0 F.d, ( th Cir. 0). The failure to allege any one of the elements of a RICO claim is fatal. Here, plaintiffs have failed on every single one. a. No Conduct To adequately plead the conduct element of a RICO claim, a party must do more than allege mere knowledge of or participation in the alleged enterprise; a party must allege facts sufficient to establish that each of the named defendants participated in the operation and management of the enterprise alleged in the complaint. Reves v. Ernst & Young, 0 U.S. 0, S. Ct., L. Ed. d (). Plaintiffs, who allege that the defendants have performed their employment or leadership duties to the Tribe and thereby have provided services to an enterprise, have failed to meet this burden. Univ. of Md. at Balt., et al. v. Peat, Marwick, Main & Co., F.d, ( rd Cir. ) ( simply because one provides goods or services that ultimately benefit the enterprise does not mean that one becomes liable under RICO as a result. There must be a nexus between the person and the conduct in the affairs of an enterprise. The operation or management test goes to that nexus. ). Plaintiffs claims against defendant Armstrong, the Tribe s in-house attorney, fail as a matter of law because attorneys cannot be held liable under Civil RICO for the performance of legal services, even if plaintiffs alleged such services involved fraud, because the performance of legal services does not constitute operation and management of an MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

17 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 enterprise. See Baumer v. Pachl, F. d, ( th Cir. ) (lawyer s role limited to providing legal services cannot rise to the level of RICO liability); Handeen v. Lemaire, F.d, ( th Cir. ) (attorney does not conduct an enterprise's affairs through runof-the-mill provision of professional services); Azrielli v. Cohen Law Offices, F.d, ( nd Cir. )(RICO liability where defendant acted as no more than [an] attorney ); Menuskin v. Williams, 0 F. Supp., 0 (E.D. Tenn.)(attorney who performed standard, routine services for construction company not liable under RICO). b. No Enterprise An enterprise under RICO s must be engaged in, or the activities of which affect, interstate or foreign commerce. An effect on commerce is a jurisdictional basis for USCS. United States v Malatesta, Fd ( th Cir. ). The statute requires that the activity of the Enterprise, not each predicate act of racketeering, have an effect on interstate commerce. United States v. Rone, F.d, ( th Cir. ), citing United States v. Nerone, F.d, - (th Cir. ). Plaintiffs must show a nexus of the enterprise to interstate or foreign commerce, albeit minimal, to satisfy the requirement, which they have failed to do. Rone, at. c. No Predicate Acts of Racketeering RICO s sets forth four specific prohibitions aimed at different ways in which a pattern of racketeering activity may be used to infiltrate, control, or operate a[n] enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. RJR Nabisco, Inc. v. European Cmty., S. Ct. 0,, L.Ed.d, - (). These prohibitions can be summarized as follows: Section (a) makes it unlawful to invest income derived from a pattern of racketeering activity in an enterprise. Section (b) makes it unlawful to acquire or maintain an interest in an enterprise through a pattern of racketeering activity. Section (c) makes it unlawful for a person employed by or associated with an enterprise to conduct the enterprise s affairs through a pattern of MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

18 Case :-cv-000-jcc Document Filed 0/0/ Page of racketeering activity. Finally, (d) makes it unlawful to conspire to violate any of the other three prohibitions. Plaintiffs appear to allege that the predicate acts of racketeering at issue are violations of U.S.C. (mail fraud), (wire fraud), and (a)()(a)(i) (money laundering). Plaintiffs FAC fails on to satisfy plaintiffs burden to allege facts sufficient to plausibly allege such violations, much less with the specificity required under Rule (b). Conclusory allegations do not satisfy plaintiffs burden, and are not entitled to a presumption of truth in evaluating defendants Rule (b)() motion. (i) Mail and Wire Fraud 0 Plaintiffs allege a pattern of mail fraud, which occurs whenever a person, having devised or intending to devise any scheme or artifice to defraud, uses the mail for the purpose of executing such scheme or artifice or attempting to do so. Bridge v. Phoenix Bond & Indem. Co., U.S.,, S. Ct., 0 L. Ed. d 0 (0) (quoting U.S.C. ). The plaintiffs theory of injury in most RICO mail-fraud cases depends on establishing that someone - whether the plaintiffs themselves or third parties - relied on the defendant s misrepresentation. See Bridge, U.S. at -; In re U.S. Foodservice Inc. Pricing Litig., F.d 0, n. ( nd Cir. ), cert. denied, S. Ct., L. Ed. d 0 (). That is because reliance will typically be a necessary step in the causal chain linking the defendant s alleged misrepresentation to the plaintiffs injury. Sergeants Benevolent Ass'n Health & Welfare Fund v. Sanofi-Aventis United States LLP, 0 F.d, ( nd Cir. ). If the person who was allegedly deceived by the misrepresentation (plaintiff or not) would have acted in the same way regardless of the misrepresentation, then the misrepresentation cannot be a but-for, much less proximate, cause of the plaintiffs injury. See Bridge, U.S. at -. A specific intent to deceive is an element of the predicate act, mail fraud, on which MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

19 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 plaintiffs RICO claim is based. U.S.C. ; Sun Sav. and Loan Assoc. v. Dierdorff, F.d ( th Cir. ). Plaintiffs fail to allege the specific intent to deceive by any defendant. Plaintiffs also fail to allege whether and how they, or third parties, were somehow deceived by defendants alleged misrepresentations. Indeed, plaintiffs do not even allege that the transmittals were made to third parties so as to further some fraudulent scheme, they simply allege the defendants communicated amongst themselves, with the plaintiffs, and by filing papers in tribal court. FAC. Plaintiffs do not allege that anyone was deceived by these communications because the recipients were either the plaintiffs themselves (who did not believe the communications to be true), or members of the alleged enterprise, who were allegedly all in on the scheme. Id. Nor do plaintiffs allege any reliance on the alleged misrepresentations, a necessary element of demonstrating proximate cause in a mail fraud claim. Bridge, U.S. at -. (ii). Money Laundering Out of thin air in the middle of their complaint, and out of whole cloth, plaintiffs insert an unfounded and slanderous allegation that all of the defendants have, on multiple occasions, engaged in money laundering. FAC. There is not a single fact alleged to support this claim, or to satisfy the plausibility standard under Iqbal. U.S.. Plaintiffs failed to plead the predicate act of money laundering. e. No Pattern of Racketeering A pattern of racketeering is demonstrated by two or more instances of racketeering activity that occur within 0 years of one another. U.S.C. (). To establish a pattern of racketeering activity for purposes of Section (c), the plaintiffs must show that each defendant committed at least two acts of racketeering, the last of which occurred within ten years... after the commission of a prior racketeering act. U.S.C. (). Defendants have already established, above, that plaintiffs have not adequately alleged racketeering activity. Even if that were not true, plaintiffs claims fail anyway because they MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

20 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 cannot establish a pattern. One of the prime considerations in finding a pattern is whether the predicate acts alleged are both related and sufficiently differentiated. Mullin v. Bassett, F. Supp., (D. Del. ). If the acts are too similar, then no ongoing design or continuity can be found. Id. The repetition of an act taken against a single victim or set of victims following closely on the heels of the original wrong, which follows closely on the heels of the original wrong, suggests no expansion, ongoing design, or continuity for RICO purposes and is insufficient to establish a pattern of racketeering activity. Satellite Financial Planning Corp. v. First Nat'l Bank, F Supp, (D. Del. ). In Temporaries, Inc. v. Maryland National Bank, F. Supp. (D. Md. ), the court held that there was no pattern of racketeering activity because the acts alleged took place in a definite period of time and did not have the potential to continue indefinitely. In Satellite Financial Planning Corp., the defendants acts took place in a one year period, with an alleged goal of stealing the plaintiff s business. Once that was accomplished, the defendants ended the relationship and thus the court concluded that the defendants were not trying to perpetrate an ongoing fraud. Id. at. The court thereafter held that the plaintiffs failed to allege a pattern of racketeering activity on two levels: first, the activities undertaken were not sufficiently unconnected in time or substance to constitute separate criminal episodes. Second, the acts were not sufficiently continuous and ongoing to create a pattern. Id. Here, plaintiffs claims are similarly flawed. The sum and substance of their allegations are that the governing body of the Tribe disenrolled a finite group of individuals, including the plaintiffs, and thereafter denied certain of the plaintiffs benefits to which only tribal members are entitled. The scheme was a single, continuous series of events that occurred in a limited period of time (which would have been even shorter but for the twentyseven proceedings plaintiffs have initiated). There is no fact alleged that would show that the MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

21 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 defendants are trying to perpetuate an ongoing fraud or continuing harm against the plaintiffs. Rather, from any construction of the FAC, it appears that with the completion of plaintiffs disenrollment proceedings and termination of tribal benefits, the goal of the alleged scheme has been accomplished and will not continue. Aside from a wholly conclusory allegation that RICO Defendants fraudulent activities remain ongoing, (FAC ) there is not a single fact alleged in the FAC to establish a pattern of racketeering. A violator of (c) who commits the pattern of predicate racketeering acts must be distinct from the enterprise whose affairs are thereby conducted. Bishop v. Corbitt Marine Ways, Inc., 0 F.d ( th Cir. ). When the alleged section (c) violator is a legal entity, such as a corporation, this required separation is not established merely by showing that the corporation, through its employees, officers, and/or directors, committed a pattern of predicate acts in the conduct of its own business. Atkinson v. Anadarko Bank and Trust Co., 0 F.d, 0- ( th Cir.) (per curiam), cert. denied, U.S. 0, 0 S. Ct., L. Ed. d 0 (). Plaintiffs have failed to allege the existence of an enterprise that is separated from the conduct of the Tribe s business and governance; rather, the FAC demonstrates that each of their alleged RICO defendants is an employee, officer, and/or director conducting the business of the Tribe and its departments. f. No Income Derived from a Pattern of Racketeering USC (a) requires that a person receive income derived, directly or indirectly, from a pattern of racketeering activity. The gravamen of (a) is not the receipt of funds or benefits from a pattern of racketeering activity; rather, it is the investment of such funds to acquire an interest in, establish, or operate an enterprise. Guerrero v. Katzen, F. Supp., (D. D.C. ). In order to recover under section (a), plaintiffs would have to show that at least one of the defendants received income from a pattern of racketeering activity and used at least some of it, or the proceeds of it, in acquiring, establishing or operating an enterprise engaged MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

22 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 in interstate commerce. Kirschner v. Cable/Tel Corp., F. Supp., (E.D. Pa. ). There is no such allegation in plaintiffs FAC. Indeed, there is not a single fact alleged in plaintiffs complaint that any defendant received income from a pattern of racketeering and used a penny of it for acquiring, establishing or operating an enterprise engaged in interstate commerce. Kirschner, at. The FAC fails to state or suggest that any income received from disenrolling the plaintiffs, denying them benefits, or evicting them from tribally-owned housing was used in acquiring, establishing or operating an enterprise. g. No Injury to Business or Property To prove injury to business or property, plaintiffs must show proof of concrete financial loss, and not mere injury to a valuable intangible property interest. Chaset v. Fleer/Skybox Int l, LP, 00 F.d 0, 0 ( th Cir. 0). Without a harm to a specific business or property interest a categorical inquiry typically determined by reference to state law - there is no injury to business or property within the meaning of RICO. See U.S.C. (c); Canyon County v. Syngenta Seeds, Inc., F.d ( th Cir. 0) (quoting Diaz v. Gates, F.d, 00 ( th Cir. 0) (en banc), cert. denied, U.S. (0)). This limitation to a person injured in his business or property has a restrictive significance, Reiter v. Sonotone Corp., U.S. 0,, 0 L. Ed. d, S. Ct. (), which helps to assure that RICO is not expanded to provide a federal cause of action and treble damages to every tort plaintiff. Oscar v. University Students Coop Ass n, F.d, ( th Cir.) (en banc), cert. denied, L. Ed. d, S. Ct. (). Here, plaintiffs have failed to allege the concrete loss required under RICO because they have failed to document the amount of damages to which each plaintiff claims to be MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

23 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 entitled. Fireman's Fund Ins. Co. v. Stites, F.d 0 ( th Cir. 0). Plaintiffs have alleged no out-of-pocket losses, but, rather, injury to a valuable intangible property interest which is not sufficient to give them standing under RICO. Diaz, F.d at 00. h. No Conspiracy The plaintiffs must prove: () that two more people agreed to violate Section (c), and () that the defendant knew of and agreed to the overall goal of the violation. United States v. Philip Morris Inc., 0 F.Supp.d (D. D.C. 0). [W]holly conclusory allegations of conspiracy must be disregarded, including such assertions as that the defendants acted as part of a common scheme and conspiracy or that the defendants agreed to the overall objective of the conspiracy. Id. at. These are the kinds of formulaic recitations of a conspiracy claim that the Court in Twombly and Iqbal said were insufficient. Id. at. Plaintiffs have not alleged any facts to render the actual existence of a conspiracy plausible. All conspiracy allegations - - are the formulaic recitations and wholly conclusory allegations soundly rejected under Twombly and Iqbal. American Dental Assoc., at. To state a claim for conspiracy to violate RICO, the complaint must allege some factual basis for the finding of a conscious agreement among the defendants. Sebastian Int'l, Inc. v. Russolillo, F. Supp. d 0, 0 (C.D. Cal. 00). There is not a single fact alleged anywhere in plaintiffs FAC to establish that () that two more people agreed to violate Section (c), and () any defendant knew of and agreed to the overall goal of the violation. Philip Morris, 0 F.Supp.d. MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

24 Case :-cv-000-jcc Document Filed 0/0/ Page of 0 C. Plaintiffs Claims Should be Dismissed With Prejudice and Without Leave to Amend Under any internally consistent set of facts, the scheme that plaintiffs allege is one that is intra-tribal, undertaken in the course and scope of tribal self-governance, and allowing plaintiffs to file a second amendment to their complaint would not cure. For that reason, plaintiffs claims against defendants should be dismissed without leave to file a second amended complaint. Albrecht v. Lund, F.d, ( th Cir. ) (if the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency, then... dismissal without leave to amend is proper. ) (internal quotation, citation omitted). Dated this nd day of March,. By: /s/ Connie Sue Martin Connie Sue Martin, WSBA # csmartin@schwabe.com Christopher H. Howard, WSBA #0 choward@schwabe.com Attorneys for Defendants Robert Kelly, Jr., Rick D. George, Agripina Smith, Bob Solomon, Lona Johnson, Katherine Canete, Elizabeth King George, Katrice Romero, Donia Edwards, and Rickie Armstrong MOTION TO DISMISS - CASE NO. :-CV-000-JCC PDX\0\\CSMM\00. Telephone:..

25 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 nd day of March, I electronically filed the foregoing MOTION TO DISMISS 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 /s/ Connie Sue Martin Connie Sue Martin CERTIFICATE OF SERVICE - PDX\0\\CSMM\00. U.S. Bank Centre Telephone --