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News / Northwest

United Nations watchdogs raise concerns about Nooksack evictions, again

By Daniel Beekman, The Seattle Times
Published: May 28, 2023, 6:00am
3 Photos
Mike Rabang is at risk for eviction from his Deming, Washington home. He's seen on May 12, 2023.
Mike Rabang is at risk for eviction from his Deming, Washington home. He's seen on May 12, 2023. (Daniel Kim/The Seattle Times/TNS) Photo Gallery

SEATTLE — More than 5,000 miles separate Deming in Whatcom County, Washington, where the Nooksack River rushes out of the North Cascades, and the Palais des Nations in Geneva, where the United Nations Human Rights Council is headquartered.

But a long-running dispute over Indigenous heritage and property in this remote part of Washington has, nonetheless, captured the attention of experts assigned by the U.N. to monitor international human rights. Again.

The U.N.’s special rapporteurs for adequate housing and Indigenous rights, independent experts who in early 2022 called on the United States to halt an attempt by the Deming-based Nooksack Indian Tribe to evict certain families from their homes, are now putting more pressure on the White House. It’s a remarkable and possibly unprecedented step, observers say, with potential implications for the Nooksack Tribe and communities beyond.

More than two dozen people are currently at risk for eviction from homes that were developed on Nooksack land with federal tax credits through a low-income rent-to-own program. The tribe says the residents can no longer use the homes because their Nooksack membership was revoked years ago in a purge of 300-plus people. The residents deny they were justly expelled and say they have property rights, regardless, insisting the tribe is abusing them while using its sovereignty as a shield.

In a March 31 letter to Secretary of State Antony Blinken, U.N. experts Balakrishnan Rajagopal and José Francisco Cali Tzay reiterated concerns about the pending evictions of people who self-identify as Nooksack, “allegedly without due process and compensation, in violation of international human rights law.” Noting some of the people are elderly and vulnerable, the monitors also pushed back on the stance, taken by President Joe Biden’s administration last year, that the federal government can’t step in because it can’t interfere with a tribe’s internal affairs.

“States and indigenous authorities share the responsibility for ensuring that processes and decisions by indigenous authorities accord with international human rights,” particularly in the context of conflicts between indigenous individuals and their tribes, Rajagopal and Tzay wrote with Claudia Mahler, an independent expert for the U.N. on the rights of older people.

They cited “information received” about the dispute, “without prejudging the accuracy” of that information, and they requested details about the rent-to-own program, which is overseen by a Washington state agency. They also asked for evidence of “measures taken” by U.S. and Nooksack authorities “to ensure compliance with international human rights obligations … including through exploring feasible alternatives to the forced evictions.” They said they were sending a separate letter to the Nooksack Tribe.

The Nooksack Tribal Council says the U.N. experts are amplifying inaccurate allegations without properly investigating those claims and without speaking directly to tribal officials about the matter. In a statement this week, the council accused the U.N. monitors of breaching their own code of conduct and described the approach as “an insult to tribal sovereignty,” the precious independence that Indigenous communities have strived to retain.

Michelle Roberts is a leader among the people facing eviction, who are related through a common ancestor. They’re represented by a Seattle attorney, Gabe Galanda, a member of the Round Valley Indian Tribes who petitioned the U.N. for help in 2021. Roberts described the new letter as a source of hope and a second warning to the tribe that the world is watching.

“They’re asking to see something tangible,” Roberts said. “This is big for us.”

Eric Eberhard, a University of Washington School of Law professor and an expert on Native legal issues, has never before seen U.N. experts wade into “what might be viewed as an internal tribal matter,” as opposed to a disagreement between a tribe and the U.S. Not once, let alone twice, he said.

“This is really unusual,” because of the context and because the U.N. watchdogs have doubled down, Eberhard said, suggesting the move could boost awareness of international Indigenous law here. “They’re basically saying to the United States, ‘Yeah, we got your message. We understand there’s a unique relationship between the tribe and the United States, but … we want to know what you’re going to do.’”

Disenrollment saga

The Nooksack Tribe is small, with about 2,000 members, a 1-acre reservation, some trust properties and a casino near the Canadian border.

The current dispute dates back to a decade ago, when tribal leaders began trying to expel a large group of existing members. According to those leaders, the people who later became known as the “Nooksack 306” had been incorrectly enrolled in the tribe, starting in the 1980s. Nooksack members must trace their lineage to certain homesteaders or a 1942 census, according to regulations the tribe modified in 2014. The Nooksack 306 descend from a related village on the Canadian side of the border, the tribal leaders have said, citing disenrollment proceedings in 2016 and 2018.

“I wish the United Nations would expand their interest in the plight of the Native Americans” to still-enrolled members who need housing, Ross Cline Sr., then-chair of the Nooksack council, said last year. “Yet the U.N. is only concerned about a few Canadian Indigenous people.”

The 306 have battled the effort through legal and other means, insisting they should remain Nooksack. They’ve built a reputation as leading foes of tribal disenrollment, a controversial practice that can involve struggles over money and power, and stir questions about culture and identity.

It was the U.S. that set the stage for such conflicts, generations ago, by imposing “blood quantum” membership regulations on tribes, said Henry Cagey, a council member with the Lummi Nation, another Whatcom County tribe. Many thousands of people have been disenrolled or otherwise spurned by 80-plus tribes since the mid-1990s, when casino revenues surged, said David Wilkins, a member of the Lumbee Nation of North Carolina and University of Richmond professor who wrote a book about the phenomenon in 2017. Each instance is different, he said, with personal and political strife sometimes more important.

“Nooksack isn’t the only tribe doing this,” said Roberts, who says her grandmother was one of the last people in the area to weave traditional cedar baskets.

George Adams, who speaks and teaches the Nooksack Tribe’s Lhéchelesem language, isn’t one of the 306 but cut official ties recently after facing retaliation from tribal leaders for objecting to the disenrollment campaign, he said.

Membership shouldn’t be decided by a line on a map; traditionally, people moved between villages, Adams said. The campaign is partly about dividing resources among fewer people, “because why else would anybody want a smaller tribe?” he said, describing the agony of the dispute in terms of “temíxw,” which can be translated as the earth or life force sacred to the Nooksack.

“To be separated from that is like being separated at death,” he said.

Contested evictions

Most of the 306 live in other communities but about 20 households live on Nooksack properties held in trust by the federal government, Galanda said.

An eviction process with multiple stages began for some households years ago, with Nooksack police officers visiting their homes to serve documents. But the process has been delayed at points by federal investigations, bad weather and legal appeals, which are ongoing. It’s been upsetting for Roberts to see loved ones stuck in limbo all this time, especially elders, she said.

“They’re starting to get dementia and short-term memory loss,” Roberts said.

Seven households that have received eviction notices, with 28 adults and kids, live in homes developed by the tribe and investment bank Raymond James with tax credits, Galanda said. The Washington State Housing Finance Commission approved the tax credits partly because residents were supposed to take ownership after 15 years; that time has passed, yet none of the homes has been conveyed, according to Galanda and the U.N.’s information.

Those seven households sued last year in an attempt to stop the evictions and the state Supreme Court initially ordered the tribe to pause, but then cited “delicate issues of tribal sovereignty” and denied review of the case.

Galanda and other attorneys who could represent the 306 have been barred from Nooksack Tribal Court, he said. State and federal officials have urged the tribe to stop but haven’t taken effective steps, he said, arguing his clients should have recourse as U.S. citizens, whether enrolled as Nooksack or not.

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A February 2022 review by the U.S. Department of Interior determined the tribe was adhering to its own rules with its evictions, and multiple courts have declined to halt the process, the Tribal Council noted this week.

“The right to convey homes … requires multiple steps, including tenants being enrolled members of the Nooksack Indian Tribe,” with no loophole for people who self-identify, said the council, now chaired by RoseMary LaClair. Rather than recognize that, the U.N. experts “continue to disregard the facts.”

A spokesperson for the U.S. Department of State declined to comment on the new letter from the U.N. monitors except to say: “We convey letters like this to the appropriate domestic authority … the Department of the Interior.”

Though the Department of the Interior found no technical problems in 2022, “we implore the Tribe’s leaders to stop,” Assistant Secretary for Indian Affairs Bryan Newland said. The U.S. Department of Housing and Urban Development has shared similar concerns and offered assistance to the households “should the evictions take place,” a spokesperson said.

The Washington State Housing Finance Commission is working with multiple tribes that are supposed to convey tax-credit homes to residents and has reported some instances of noncompliance to the Internal Revenue Service, including by the Nooksack Tribe, Executive Director Steve Walker said.

“We know this is an agonizing situation,” he said. “Unfortunately, the Commission has no legal authority to stop these evictions.”

Gov. Jay Inslee supports that position, a spokesperson said.

U.N. pressure

In their March 31 letter, the U.N. experts portrayed the assistance HUD has offered as insufficient compared to actual compensation, finding that the residents “have accrued security of tenure and possibly homeownership rights, which are no longer linked to their tribal membership.” Though tribes are sovereign entities, the U.S. is still the “primary duty bearer” for upholding human rights everywhere in the country, the U.N. monitors added.

The experts described the Biden administration’s response to their 2022 letter as “only partial” and asked the administration to consider “potential interferences with the right” of the seven households to enjoy their own culture, religion and language with other members of their group.

The letter is important, Galanda said, because it asks Biden and Inslee “to contend with and not dismiss these property rights,” and because it tells tribes they “can’t proclaim that their rights as Indigenous groups should be protected without honoring the duties that go along with that,” he said.

“My folks had to go all the way to Geneva to obtain justice, because the doors of justice were closed” in Deming, Olympia and Washington, D.C., he said.

It’s unclear whether the letter will have much effect on the ground.

“I don’t think the U.N. has any direct enforcement authority, but it does speak with an objective, internationally approved voice,” Eberhard said. “The real power of the U.N. … is its moral authority and ability to spotlight an issue.”

The Nooksack Tribal Council isn’t backing down, partly because “There is a lack of housing in Washington state, and Nooksack has also been hit,” the council’s statement said. There are more than 209 still-enrolled members on a waiting list for homes, including elders, a spokesperson said.

“All nations have the right to govern themselves and establish their own laws and membership, and sovereign Tribes are no different,” the council said. “Tribes may require tribal membership for certain programs. Ignoring this fundamental right undermines Tribal self-determination and the government-to-government relationship between Tribes and the United States.”