Margretty Rabang v. Robert Kelly, Jr. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGRETTY RABANG; et al., No. 18-35711
Plaintiffs-Appellants, D.C. No. 2:17-cv-00088-JCC
Western District of Washington,
v. Seattle
ROBERT KELLY, Jr.; et al., MEMORANDUM*
Defendants-Appellees.
On Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted June 7, 2019
Submission withdrawn June 13, 2019
Resubmitted May 3, 2021
Seattle, Washington
Before: BEA and NGUYEN, Circuit Judges, and MÁRQUEZ,** District Judge.
Margretty Rabang and others (collectively, “Rabang”) allege that members
of the Nooksack Indian Tribal Council and other tribal officials acted unlawfully in
disenrolling hundreds of tribal members in order to deprive them of money,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
property, and benefits in violation of the federal Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1964 (“RICO”). In response to actions by tribal
officials, the U.S. Department of the Interior (“DOI”) refused to recognize actions
taken by the tribal government until a lawful special election was held. The
Nooksack Indian Tribe subsequently conducted elections for the Tribal Council,
and the DOI recognized the results of those elections. The newly elected Tribal
Council passed a resolution adopting certain actions taken by the prior Tribal
Council that Rabang challenges in this lawsuit.
Ordinarily, “tribal court exhaustion” is “a prerequisite to a federal court’s
exercise of its jurisdiction.” Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa
Inc., 715 F.3d 1196, 1200 (9th Cir. 2013). But tribal exhaustion is not required
when “exhaustion would be futile because of the lack of adequate opportunity to
challenge the [tribal] court’s jurisdiction.” Id. (quotation omitted). The district
court determined that under this exception, it had jurisdiction over Rabang’s claims
during the period that DOI refused to recognize actions taken by the Nooksack
tribal government. After DOI recognized the newly elected Tribal Council, the
district court sua sponte dismissed the case on the ground that it now lacked
subject matter jurisdiction over Rabang’s RICO claims. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
Resolution of Rabang’s RICO claims requires consideration of the alleged
2
predicate acts, which all center on the allegedly unlawful disenrollment of
hundreds of members of the Nooksack Indian Tribe. But “[t]ribal enrollment
decisions are generally beyond the power of federal courts to review.” Aguayo v.
Jewell, 827 F.3d 1213, 1222 (9th Cir. 2016); see also Lewis v. Norton, 424 F.3d
959, 960 (9th Cir. 2005) (noting a “lack of federal court jurisdiction to intervene in
tribal membership disputes”). The district court therefore properly dismissed the
case for lack of jurisdiction.
Because the Nooksack Indian Tribe has a full tribal government that has
been recognized by the DOI, see Roberts v. U.S. Dep’t of the Interior, No. 19-
35743, ECF 47 at 5 (March 10, 2021) (holding that DOI recognition of new Tribal
Council was not arbitrary and capricious),1 Rabang’s case no longer falls under the
futility exception to the tribal exhaustion requirement, which “applies narrowly to
only the most extreme cases.” See Grand Canyon Skywalk Dev., 715 F.3d at
1203.2
AFFIRMED.
1
Appellees’ motion to strike Rabang’s notice of filings in Roberts v. U.S.
Dep’t of the Interior, No. 19-3574 [Dkt. 43] is denied as moot.
2
Because we affirm the district court’s determination that it lacked subject
matter jurisdiction over Rabang’s entire case, we need not reach the remaining
arguments on appeal.
3