Margretty Rabang v. Robert Kelly, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 2021
• Docket: 18-35711
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 4 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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Argued and Submitted June 7, 2019 Submission withdrawn June 13, 2019 Resubmitted May 3, 2021 Seattle, Washington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.