Law360 (October 15, 2021, 8:07 PM EDT) -- Two Nooksack tribal court judges and a former Nooksack citizen who accused them of persecuting her while she sought protection from domestic abuse are vying in the Ninth Circuit over whether the appellate panel should consider new information.
Elile Adams, who renounced her Nooksack citizenship, brought bad faith claims alleging an illegitimate tribal court persecuted her through child custody proceedings after she sought protection from domestic abuse, and is appealing a Washington federal judge's decision that tribal courts have jurisdiction over her criminal proceedings, which she says are politically motivated.
The underlying dispute is a spillover from a yearslong controversy over tribal officials allegedly conspiring to disenroll members who disagreed with their leadership.
Tribal court judges Raymond D. Dodge and Rajeev Majumdar are trying to get the Ninth Circuit panel to consider documents from Rabang v. Kelly — a suit the appellate court heard about the disenrollment dispute.
Nooksack Chief Judge Ray Dodge
Past Washington Sate Bar Association President & Nooksack Pro Tem Judge Rajeev Majumdar
They wrote in a Wednesday reply supporting their request for judicial notice of the documents that their motion does not pertain to the allegations of Rabang v. Kelly and instead quashes claims that Judge Dodge was illegitimately appointed to his position.
"Adams's argument that the materials submitted are not relevant are belied by the fact that she makes several references in her opening brief with respect to the legitimacy of Judge Dodge's appointment," the judges wrote.
"Indeed, it is for that reason that the judges have been forced to submit these additional materials for judicial notice. In her brief, Adams paints an incomplete and inaccurate picture of the events related to the United States' brief period of non-recognition of the tribe," they added.
Gabriel S. Galanda of Galanda Broadman PLLC told Law360 in a phone interview Friday evening that this judicial notice dispute was created as "an optical illusion and distraction" from Adams' bad faith claims against the tribal court.
"If they had a strong defense to the bad faith claims, they would have brought it, but they don't — they cannot contest and do not contest the central allegations underlying the bad faith claims, so they create confusion and misdirection," Galanda said.
"She sought domestic violence protection in 2017, and Ray Dodge converted that plea for domestic violence protection into a child custody proceeding — threatening the custody of her child — which should be unthinkable. But because that is so egregious and because the bad faith is so obvious here, they're trying to confuse the court by throwing a bunch of extraneous information to the court," he added.
Adams argued last week against allowing judicial notice of the first amended complaint in Rabang v. Kelly and sworn declarations by tribal attorneys, claiming the judges "inappropriately seek a do-over" of developing their side.
"Any tribal 'ratification' of Dodge's appointment in early 2016 does not negate his and the Nooksack Tribal Court's bad faith from March of 2017 to present. Nor does that material have any bearing whatsoever on whether the Nooksack Tribe plainly lacks criminal jurisdiction over Ms. Adams," she wrote in an opposition response.
"In any event, relevancy is not the proper standard for determining whether judicial notice is appropriate. Such a rule would open the floodgates," she added.
Adams said in her Washington federal court complaint in 2019 that the dispute dates to 2012, when she and her father — a spokesperson for the hundreds of people who faced tribal disenrollment — openly critiqued Nooksack tribal officers, dubbed councilpersons, who wanted to disenroll them.
Unrelated to the political feud, Adams encountered a variety of legal disputes with the father of her child over several years, which ultimately led to her obtaining a protection order against him issued by Judge Dodge in March 2017.
Later that month, Judge Dodge decided sua sponte — of his own accord — to issue a parenting order against Adams, which she claimed in her complaint was to "endlessly harass" her. She also alleged that he lacked authority to conduct these proceedings, yet forced her to appear before him 18 times over two years "through an abuse of judicial process."
The appearances resulted in Judge Dodge issuing 10 criminal counts against Adams, which prompted her to relinquish Nooksack enrollment and seek "asylum" with the Lummi Nation, obtaining citizenship with the tribe.
But Judge Dodge continued the tribal court proceedings and issued an arrest warrant charging Adams with contempt of court and interfering with custody proceedings. She was held in the local Whatcom County Jail for eight hours until her father posted $500 bail for her.
Adams filed a petition for writ of habeas corpus with the Washington federal court in August 2019, since people are still in custody after posting bail. But U.S. District Judge John C. Coughenour ruled in September 2020 that she had not exhausted her tribal court options before bringing the case to the federal court system.
She appealed the decision, alleging that Judge Dodge was illegitimately instated as a judge, but the judges are fighting back, trying to insert evidence during the appeal to prove his legitimacy.
Counsel for the judges did not respond to requests for comment at time of publication on Friday.
Adams is represented by Gabriel S. Galanda and Ryan D. Dreveskracht of Galanda Broadman PLLC.
The judges are represented by Rob Roy Smith and Rachel B. Saimons of Kilpatrick Townsend & Stockton LLP.
The case is Elile Adams v. Raymond Dodge et al., case number 21-35490, in the U.S. Court of Appeals for the Ninth Circuit.
--Editing by Marygrace Murphy.
Read more at: https://www.law360.com/nativeamerican/articles/1431280/nooksack-judges-ex-citizen-dispute-new-info-for-appeal?copied=1
