No. 14-2027
In The
United States Court of Appeals for the Eighth Circuit
Patrick A. Lee Floyd Hand William J. Bielecki, Sr.
Plaintiffs/Appellants
V.
Cleve Her many Horses, Acting Substitution BIA Agent and Robert Ecoffey, former BIA Agent
and Oglala Sioux Tribal Defendants, et al
_____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DIVISION OF THE DISTRICT OF SOUTH DAKOTA
THE HONORABLE JEFFERY L. VIKEN United States District Judge
Case No. 5:13-Cv-13-05019
_____________________
APPELLANTS’ REPLY BRIEF
ORAL ARGUMENTS REQUESTED
Patrick A. Lee, Pro Se 203 E Oakland St Rapid City, SD 57701 (605) 341-4360
Floyd Hand, Pro Se P.O. Box 150 Pine Ridge, SD 57770 (605) 867-5762
William J. Bielecki, Sr., Pro Se
P.O. Box 1990 Pine Ridge, SD 57770 Tel: (605) 867-5028 Fax: (605) 867-1006 [email protected]
Corrected and Submitted: September 9, 2014
Appellate Case: 14-2027 Page: 1 Date Filed: 09/09/2014 Entry ID: 4194970
∼ i ∼
TABLE OF CONTENTS
1. ISSUES REFLECTING THE TRIBAL DEFENDANTS AND ........................ 1
BIA SUPERINTENDANT ........................................................................................ 1
SUMMARY OF ARGUMENT .................................................................................................. 1
ARGUMENTS ............................................................................................................................ 3
I. COMPLAINANTS’ SUIT IS PROPER BEFORE A FEDERAL COURT FORUM RATHER THAN A TRIBAL FORUM UNDER THE PRESENT CIRCUMSTANCES. ................................................................... 3
Public Civil Rights ..................................................................................................... 5
Procedures for Filing a Public Civil Rights Complaint ............................................. 5
2. ISSUES REFLECTING THE TRIBAL DEFENDANTS/APPELLEES ......... 14
ARGUMENT ............................................................................................................................ 14
B. Plaintiffs assert they have exhausted their Tribal remedies; throughout [DCD 9, 9-1 &
9-2], [DCD 38-1], [DCD 39], [DCD 43], and [DCD 46]. ........................................................ 15
C. Plaintiffs/Appellants sued Tribal Council Members in their Official capacity. ........... 17
ONGOING OST COUNCIL CONSTITUTIONAL VIOLATIONS ...................... 18
CONCLUSION ........................................................................................................ 20
CERTIFICATE OF COMPLIANCE ....................................................................... 25
CERTIFICATE OF FILING AND SERVICE ........................................................ 26
Appellate Case: 14-2027 Page: 2 Date Filed: 09/09/2014 Entry ID: 4194970
∼ ii ∼
TABLE OF AUTHORITIES
CASES:
Ex Parte Young, 209 U.S. 123 (1908) --------------------------------------------------- 18
Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024 (2014) ------------------------ 18
Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) -------------------------------------- 12
Oneida County v. Oneida Ind. Nation, 470 U.S. 226 (1985) ------------------------- 12
PATSY v. FLORIDA BOARD OF REGENTS, 457 U.S. 496 (1982) -------------- 23
Ralph Moore, Jr. v. City of Harriman 272 F.3d 769 (6th Cir. 2001) ---------------- 18
Vann et al v. United States Dept. of Interior D. C. No. 11-5322 (2012) ------------ 19
UNITED STATES STATUTES:
25 U.S. Code § 478b - Application of laws and treaties ............................................ 7
25 USC § 1302(a) ...................................................................................................... 7
28 U.S. Code § 1331 - Federal question .................................................................... 7
28 U.S.C. 1361 ........................................................................................................... 9
42 USC 1985(2) ......................................................................................................... 7
42 USC 1985(3) ......................................................................................................... 7
8 U.S.C. § 1401(b) ..................................................................................................... 3
Appellate Case: 14-2027 Page: 3 Date Filed: 09/09/2014 Entry ID: 4194970
∼ iii ∼
P.L. 93-638 CONTRACT:
93-638 Contract ------------------------------------------------------------------------------ 9
PL 93-638 contracts ------------------------------------------------------------------------- 2
Public Law 93-638 Self-Determination Contract --------------------------------------- 5
INDIAN REORGANIZATION ACT, AS AMENDED:
Indian Reorganization Act (“IRA”) ------------------------------------------------------- 4
Indian Reorganization Act of 1934 ------------------------------------------------------- 9
TREATIES WITH THE U.S.:
1868 Fort Laramie Treaty ------------------------------------------------------------------ 2
1868 Fort Laramie Treaty, Article I ------------------------------------------------------- 7
1868 Fort Laramie Treaty, Article V ----------------------------------------------------- 8
1868 Fort Laramie Treaty, Articles I and V --------------------------------------------- 4
OTHER AUTHORITIES
US Department of Interior ----------------------------------------------------------------- 5
Appellate Case: 14-2027 Page: 4 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 1 ∼
1. ISSUES REFLECTING THE TRIBAL DEFENDANTS AND BIA SUPERINTENDANT
SUMMARY OF ARGUMENT
While it is true that Chief judge Patrick Lee was terminated, he was
terminated for performing his duty as Chief Judge in attempting to preserve the
integrity of the Court, as well as the overall functions of the judicial system.
The Plaintiffs/Appellants made every attempt available locally (Tribally) to
seek redress prior to seeking the Bureau of Indian Affairs (“BIA”) involvement. As
a result of seeking local resolve, Judge Lee was terminated.
Plaintiffs/Appellants assert that the BIA, under the secretary of Interior has a
clearly defined duty to resolve issues on Indian reservations when inter-tribal
constitutional and judicial issues cannot be resolved locally.
Said duty has been conferred onto the United States via various Treaties, as
well as the 1924 Indian Citizenship Act.
This pro se case originally involved the Oglala Sioux Tribal (OST) Council
Members stepping outside of their constitutional authority and directly interfering
with the Oglala Sioux Tribal Court on a jury rendered criminal conviction. When
the Chief Judge of the Court complained of said interference, the same Council
Members who had also dismissed the Chief Judge’s complaint [DCD 1-1 & 1-2]
against themselves with prejudice then terminated the Chief Judge from his
Appellate Case: 14-2027 Page: 5 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 2 ∼
position as Judge [ADD. 07, Pgs. 32-34 - OST Council Dismissing Complaint with
Prejudice, and Terminating Chief Judge Lee:] Due to the precedence now
established by the Council Members, in that the Tribal Council had complete and
unlimited power and authority over the Chief Judge and subordinate Judges, as
well as the Tribal Supreme Court, comprising the entire Tribal Judiciary, through
fear, intimidation and direct orders, the pro se litigants assert they had exhausted
[a]ll their inter-Tribal remedies, and now looks to the Bureau of Indian Affairs
(“BIA”) for enforcement of the Tribal Constitution pursuant their duties, by and
through the 1868 Fort Laramie Treaty, and the Federal Constitution & federal
statutes.
Because the BIA had allegedly failed in its duties, the pro se litigants, in
turn, looked to the District Court to order (mandamus) the local BIA agent to
perform his duties under Treaty, the Indian Reorganization Act, and the PL 93-638
contracts, as amended. [DCD 46, Pgs. 6-9].
The District Court had not addressed any issues respecting BIA required
duties, however, did address the exhaustion of remedies issue. The appellants now
appeal the District Court’s assertions that the pro se litigants failed to exhaust their
administrative remedies with the BIA, prior to filing suit in the District Court.
Appellees attempt to convolute the exhaustion of remedies issue by
comingling selective merits of the case.
Appellate Case: 14-2027 Page: 6 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 3 ∼
Accordingly, the pro se litigants request oral arguments in the interest of
justice considering the sweeping affect and importance of Tribal “Separation of
Powers,” “Judicial Immunity,” “Equal Application of the Law,” and “Tribal Law
Enforcement” has on the litigants and the people and Tribes at large, not to
mention the compelling interest the United States Government has with respect to
the civil rights of the people living under a dual citizenship with the US and
respective Tribes.
The Indian Citizens Act 1924
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.
Approved, June 2, 1924.
Note: This statute is codified in the 8 U.S.C. § 1401(b).
[ADD. 13, Pg. 50 - 8 U.S. Code § 1401(b). Nationals and citizens of United States at birth]. The issues before the Court are not in challenge of the OST Tribal
Constitution, but are those of having a Tribal Constitution through enforcement.
ARGUMENTS
I. COMPLAINANTS’ SUIT IS PROPER BEFORE A FEDERAL COURT FORUM RATHER THAN A TRIBAL FORUM UNDER THE PRESENT CIRCUMSTANCES.
A. Standard of Review.
Appellate Case: 14-2027 Page: 7 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 4 ∼
Whether the district court properly dismissed an action for lack of jurisdiction
and/or failure to exhaust administrative remedies is a question of law that the
appellate court reviews de novo.
Plaintiffs/Appellants filed their jurisdictional statement in the District Court
as 28 USC § 1331, 28 USC § 1332, 28 USC § 1343, 28 USC § 1361, 42 USC §
1983, 42 USC § 1985 18 USC §§241, 242 & 1153 (661), and 25 USC 1301-3, as
amended, et seq. [DCD 9, Pg. 2&3]. Additionally, they referred to the 1868 Fort
Laramie Treaty, Articles I and V, as having granted federal foundational
jurisdiction. [DCD 38-1, Pgs. 6 thru 10], the Indian Reorganization Act (“IRA”),
as amended [ DCD 9, Pg. 30], [DCD 38-1, Pg. 18], [DCD 43, Pg 18] and46, Pg.
23]. Additionally, Plaintiffs/Appellants added the “Indian Civil Rights Act
(“ICRA”), as amended as having significant intrinsic federal jurisdictional value
[DCD 9, Pg. 20], [DCD 38-1, Pgs. 6, 11, 17 & 26] and [DCD 46, Pgs. 3-7], and
Public Law 93-638 Self-Determination Contract by and between the Federal
Government and the Oglala Sioux Tribe [DCD 46, Pgs. 6-9].
Plaintiffs/Appellants are not employees of the Bureau of Indian Affairs,
nor the Department of Interior, and is not seeking any action in the
Federal Courts respecting employment under Title U.S. Code: Title 5 -
Government Organization and Employees. Therefore, the Federal
Appellate Case: 14-2027 Page: 8 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 5 ∼
Administrative Procedures Act (“APA”) is inapplicable to the matters
before this Court. See Department of Interior:
US Department of Interior http://www.doi.gov/pmb/eeo/public-civil-rights.cfm
Public Civil Rights
No person in the United States shall, on the grounds of race, color, national origin, age or disability be subjected to unlawful discrimination under any program or activity conducted by or which receives Federal financial assistance from the Department of the Interior…
• WHO CAN FILE: Any person who believes they have been discriminated against based on the above standard.
Procedures for Filing a Public Civil Rights Complaint
http://www.doi.gov/pmb/eeo/File-Public-Civil-Complaint.cfm
Any person who believes that he/she has been discriminated on the basis of race, color, national origin, age, sex, or disability in any program or activity receiving Federal financial assistance from this Department may file a complaint with Interior's Departmental Office of Civil Rights.
In filing a complaint with us, the complaint must be in writing, signed and dated, and filed no later than 180 days from the date of the alleged discrimination… of the alleged discriminatory official(s) and/or public entity; the nature of the complaint, the basis of the complaint (race, color, national origin, gender, age, sex and/or disability), and the date the alleged discrimination occurred.
See [ADD. 13, Pg. 57 – Public Civil Rights:].
While any disputes by and between the BIA and the Governing body of the
Tribe may be subject to the “APA” for resolving their contractual disputes within
the Bureau, Plaintiffs/Appellants are not employees of either organization.
Furthermore, as non-employees of the Bureau and/or Tribe, Plaintiffs/Appellants
Appellate Case: 14-2027 Page: 9 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 6 ∼
are third-party victims of the breakdown between Tribal employees (Council
members) [a]nd (emphasis added) the BIA Agent in meeting their contractual
obligations. They are now seeking address of their constitutional grievances that
both the Bureau (Contractee) for failing its duties, and the Tribal Council members
(Contractor) for failing their duties, through the recourse of mandamus (compel to
enforce constitutional provisions), as both United States Citizens and Tribal
Citizens (dual citizenship). If Defendant/Appellees are asserting Indian/federal
policy as a form of defense, then perhaps the Secretary of Interior should be named
as a party defendant, rather than specific subordinates of his/her. A party to a suit
cannot adjudicate in behalf of itself (emphasis added) pursuant to APA 5 U.S.C. §
551 (1)(E) and 5 U.S.C. § 701(a)(2) & (b)(1)(E), . See [ADD 13, Pgs. 48 & 49].
The enforcement that Plaintiffs/Appellants seeks is that in the nature of civil
rights respecting “Separation of Powers ,“Judicial Immunity[See Tribal Separation
of Powers, ADD 03, Pgs.10 & 11],” “Equal Application of the Law,” and “Due
Process of the Law,” [See Tribal Bill of Rights, ADD 03, Pgs.15 & 16],” not
employment issues. Id.
B. There is a Federal Question Jurisdiction [DCD 38-1, Pg 6]
See Federal questions: 28 U.S. Code § 1331 - Federal question The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
1. Whether or not Tribal Constitutions by itself are Federal/Tribal law in light of Tribal Constitutions requiring the Secretary of Interior's approval or
Appellate Case: 14-2027 Page: 10 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 7 ∼
disapproval, thereby creating jurisdictional diversity. See Future Powers: [ADD. 03, 10 - Oglala Sioux Tribal Constitution:];
2. Whether or not 25 USC § 1302(a) (Indian Civil Rights Act of 1968, as amended) is federal law; and whether or not the US Congress specifically added 25 USC §1302(f) (2010 amendment) [ADD. 13, Pg. 57 - 25 U.S. Code § 1302(f) - Constitutional rights]for federal enforcement of §1302(a) which the Congress previously failed to provide enforcement prior to the 2010 amendments;
3. • Whether or not 42 USC 1985(2) [ADD. 13, Pg. 57 - 42 U.S. Code § 1985 - Conspiracy to interfere with civil rights] is federally enforceable against those who conspiratorially violate substantive due process and civil rights and make public policy for same in Indian Country against constitutionally protected substantive due process in absence of a Tribal judiciary;
4. • Whether or not 42 USC 1985(3) [42 U.S. Code § 1985 - Conspiracy to interfere with civil rights]is federally enforceable in Indian Country respecting injunctive relief against those impersonating tribal officials in absence of a Tribal judiciary;
5. • Whether or not the 1868 Fort Laramie Treaty, Article I grants federal subject matter jurisdiction in absence of a Tribal judiciary [ADD. 02, Pg. 1 - FORT LARAMIE TREATY, 1868] See [ADD. 13, Pg. 55 - 25 U.S. Code § 478b - Application of laws and treaties];
6. Whether or not the 1868 Fort Laramie Treaty, Article V grants federal subject matter jurisdiction with or without a Tribal judiciary[ADD. 02, Pg. 1 - FORT LARAMIE TREATY, 1868];
The Plaintiffs/Appellants had delivered, prior to filing a Federal action, to
the resident BIA Agent, a complaint and supporting proof thereof, in writing on
March 5, 2013. To this date, the BIA Agent had not responded back to the
Plaintiffs. The only response that the Plaintiffs had from Mr. Ecoffey, then the BIA
Agent, was an oral response that his superiors said to do nothing. Keeping in mind,
it is questionable as to whether or not the BIA Agent acted in good faith in light of
the conflict of interest that existed between him and the OST Tribal Council, due to
Appellate Case: 14-2027 Page: 11 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 8 ∼
his pending restaurant license. [ADD. 08, Pgs. 35-37 - Superintendant Robert
Ecoffey’s Conflict of Interest and DCD 46-1, Pg. 1&2, Res. # 13-59]. Mr. Ecoffey
was issued his lease dated March 26, 2013, two (2) weeks after the Council
dismissed the complaint against themselves [ADD. 07, Pgs. 32-34 - OST Council
Dismissing Complaint with Prejudice, and Terminating Chief Judge Lee:].
Looking at the consecutive numbering of resolutions, resolution number (13-56)
compared to the resolution numbers 13-98 & 99, Mr. Ecoffey’s lease had been
pending long before the Council dismissed the complaint against themselves and
the termination of Judge Lee.
Both the Tribal Council, and the BIA has a duty pursuant to the Indian Civil
Rights Act [a]nd pursuant the 93-638 Contract: [ADD. 13, Pgs. 52,53 - 93-638 - 25
U.S.C. §450L(c)(c)(5). Contract or grant specifications].
The District Court never addressed any Treaty arguments DCD 49, et
seq.], nor had it addressed the issue as to whether or not Tribal Constitutions are
in fact Federal laws pursuant the OST Tribal Constitution Preamble citing
home rule, not inconsistent with Federal Laws and our Treaties… [ADD. 03,
Pg. 5], Powers of Council, Section 1:Enumerated Powers, subject to any
limitations imposed by the statutes or the Constitution of the United States and
subject further to all express restrictions upon such powers contained in this
Constitution and the attached By-Laws [Add. 03, Pgs.7 & 8], Section 2. Future
Appellate Case: 14-2027 Page: 12 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 9 ∼
Powers: … may in the future be delegated to the council by members of the
tribe or by the Secretary of the Interior, or any other duly authorize official or
agency of the Federal Government. [ADD. 03, Pg. 10], and the BIA asserting
its authority to amend or modify the OST Tribal Constitution by rejecting an
approved Constitutional Amendment by the People. See Amendment F [ADD.
Pgs. 18 & 19], and that the Indian Reorganization Act of 1934 [DCD 9, Pg 30:
Amended Complaint].
Clearly, the Secretary of the Interior, by and through subordinate agencies of
the Federal Government has power and authority over Tribal Constitutions,
thereby has the duty to enforce said constitutions.
In the instant case, the Tribal defendants had never been tried or punished in
the Tribal Court. As a matter of fact, When the Plaintiffs/Appellants sought
criminal prosecution, the Tribal prosecutor was order by the OST Council not to
prosecute.
The subject matter is clear… Tribal Constitutions’ that was encouraged,
drafted, financed, and mandated by the Secretary of Interior in order for the Indian
Tribes to maintain judiciaries separate and apart of a “Court of Indian Offences,”
and their enforcement. Without enforcement, the constitution has no effect.
The District Court acknowledged that it had jurisdiction respecting 28
U.S.C. 1361.
Appellate Case: 14-2027 Page: 13 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 10 ∼
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. All arguments and authorities have been raised throughout the proceedings
in the District Court. The District Court had dismissed this case against the BIA
Superintendant, without prejudice, strictly on the basis of alleged failure to exhaust
their remedies with the BIA. Oral arguments were never allowed.
Appellants Patrick A. Lee, Floyd Hand, and William Bielecki, Sr.,
(“Complainants”) filed this pro se lawsuit as an Emergency Petition Writ of
Mandamus in the South Dakota District Court. [DCD 11] (Complaint), [DCD 9]
(Amended Complaint). The Complainants named Robert Ecoffey, Superintendent
of the Pine Ridge Agency, Bureau of Indian Affairs, in his official capacity, as a
defendant in the action pursuant to.2 [DCD 1 & 9]. The Court dismissed the
Emergency Petition [DCD 1] without prejudice, citing that it was premature and
that the defendant should first have an opportunity to respond. [DCD 6, Pgs. 1 &
2], dated March 15, 2013.
1 References to the District court record will be denoted by the letters “DCD” followed by the appropriate docket number and page or paragraph number. Appellants assert the District Court Order was filed as an addendum to the Tribal Appellees. 2 Cleve Her Many Horses became the Acting Superintendent on May 7, 2013, following the retirement of Robert Ecoffey, and was automatically substituted as a defendant prior to the discovery of a conflict of interest existing between Mr. Ecoffey and Tribal Council Members.
Appellate Case: 14-2027 Page: 14 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 11 ∼
In sum, Patrick Lee, in his capacity as Chief Judge of the Tribal Court, had
terminated Bette Goings as Court administrator, who had been ultimately returned
to her former position by a substitute Judge. Upon Judge Lee’s return, a cordial
administrative dispute began between Judge Lee and the Tribal Council. But then,
Goings was charged criminally for physical assault on another attorney, as well as
other charges, and thus was terminated again. However, when Judge Lee had
sentenced Goings, a strong politically connected employee, to a six month jail
sentence in light of her criminal conviction as a result of a jury trial, this is what
escalated the issues that is now before the Court. As a result of Goings’ sentence,
in retaliation, she subsequently filed a complaint, the same day of her confinement,
before the Tribal Council against Judge Lee, and then filed an appeal thereafter in
the Tribal Supreme Court against her criminal conviction and sentence.
The formal complaint against the Tribal Council was the result of Goings’
complaint against Judge Lee and the Tribal Council taking instant action against
Judge Lee, without notice, hearing or counsel, and suspended him without pay
until a hearing could be scheduled and heard before the Council. During the
interim period of suspension, an associate Judge, at the order of the Tribal Council,
released Goings from confinement, and restored her back to her position as Court
administrator. Once the Council heard the complaint against Judge Lee, he then
was exonerated of any wrong doings, and was restored back to the bench.
Appellate Case: 14-2027 Page: 15 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 12 ∼
However, during the hearing of the complaint against Judge Lee, Judge Lee was
still denied representation by counsel, which only continued to compound the
Tribal Council’s violations against the Oglala Sioux Tribal Constitution for
ignoring separation of powers, due process of law, equal application of the law,
and rights to counsel.
When Judge Lee asked Bielecki to represent him and Floyd Hand, before the
Tribal Council, this is when Bielecki had drafted the complaint and each had first
presented it to Mr. Ecoffey, area BIA superintendent pursuant Article I and V, of
the 1868 Fort Laramie Treaty [ADD. 02, Pg. 3 - FORT LARAMIE TREATY,
1868] see Indian cannon of Construction: Montana v. Blackfeet Tribe, 471 U.S.
759 (1985) and Oneida County v. Oneida Ind. Nation, 470 U.S. 226 (1985), and as
United States Citizens pursuant the 1924 Indian Citizenship Act, on March 5,
2013.
Mr. Ecoffey, during an hour meeting, assured the Plaintiffs/Appellants that
he would forward the complaint to his supervisors in Aberdeen, SD (regional
office) and also to Washington, D.C.
Also on March 5, 2013, Lee, Hand, and Bielecki subsequently then filed the
complaint [DCD 1-1 & 1-2] with the Oglala Sioux Tribal Secretary pursuant the
Tribal Constitution and Tribal ordinances. Subsequently, on the same day they also
filed a criminal complaint with the Oglala Sioux Tribal (“OST”) Attorney General,
Appellate Case: 14-2027 Page: 16 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 13 ∼
who assured Plaintiffs that she (Tatewin Means) would follow through with the
complaint, due to the seriousness of the allegations and evidence, but later dropped
the complaint at the demand of the Council.
After filing the criminal complaint with the with OST Attorney General,
Bielecki and Hand went back to Mr. Ecoffey’s office and spoke with Mr. Ecoffey,
who was smiling and laughing as he stated that his superiors said to do nothing.
When he was asked for a written response, he said that he had none, and that there
was nothing more he could do. What the Plaintiffs/Appellants did not know at the
time, is that Mr. Ecoffey was planning his retirement and that he was waiting on a
business license approval for a third subway store to operate in the Tribal casino,
and that it was approved two weeks later. The Plaintiffs did not learn this until
almost a year later.
Then on March 11, 2013, the OST Council had assembled for a Council
meeting, and had the entire police force in attendance in anticipation of civil
unrest, as well as Mr. Ecoffey’s attendance. None of the Plaintiffs/Appellants were
noticed or invited. While listening on the radio, the OST Council dismissed the
complaint [ADD. 07, Pgs. 32-34 - OST Council Dismissing Complaint with
Prejudice, and Terminating Chief Judge Lee:] and [DCD 38-2, Pg. 1 (Motion 13-
98)]against themselves unanimously with prejudice. Then they terminated Judge
Lee without notice of hearing, hearing, nor counsel, thereby violating due process
Appellate Case: 14-2027 Page: 17 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 14 ∼
[DCD 38-2, Pg. 2 (Motion 13-99)]. Mr. Ecoffey, while in attendance, could have
spoken up, but offered nothing, presumably because of his pending restaurant
license.
In light of the numerous OST Tribal unconstitutional actions by the Tribal
Council, the failure of the resident BIA agent, and the Plaintiffs/Appellants
exhaustion of all local remedies, the Plaintiffs sought remedy through the District
Court primarily for the protection/enforcement of their civil rights in their fifth and
seventh request for relief.3 [DCD 1 & 9]
2. ISSUES REFLECTING THE TRIBAL DEFENDANTS/APPELLEES
ARGUMENT
A. Standard of Review.
Whether the district court properly dismissed an action for lack of
jurisdiction and/or failure to exhaust local Tribal judicial remedies is a question of
law that the appellate court reviews de novo.
3 5. That the Oyate (People) civil rights are protected against entrapment of a
despotic form of government that the United States government is supposed to protect the people from living under. The laws are not the problem, only equal application and law enforcement; and
7. That the Bureau of Indian Affairs, Pine Ridge Agency's Superintendent be ordered to enforce the "Civil Rights" of the people as described by the people's Tribal Constitution pursuant the Indian Civil Rights Act of 1968, as amended and other Federal Statues. The United States has a duty to protect the people's Civil Rights, its time it started to live up to that duty. [sic]
Appellate Case: 14-2027 Page: 18 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 15 ∼
Plaintiffs/Appellants filed their jurisdictional statement in the District Court
as stated before. (supra).
B. Plaintiffs assert they have exhausted their Tribal remedies; throughout [DCD 9, 9-1 & 9-2], [DCD 38-1], [DCD 39], [DCD 43], and [DCD 46].
Plaintiffs/Appellants assert that due to the OST dismissing the complaint
against themselves, then terminating Chief Judge Lee without notice, hearing, or
available counsel, and in direct defiance to constitutional authority, they have
block all available judicial process locally.
Complaint For Impeachment Against Patrick Lee, Chief Judge of the Oglala Sioux Tribal Court
While the Tribal Defendants and BIA assert that the Plaintiffs failed to
exhaust Tribal Judicial remedies, they also failed to state that they blocked all
judicial remedies by terminating the Chief Judge. [ADD. 04 - Plaintiffs’ Request
for Criminal Prosecution: and DCD 9-1, Pgs. 1-5]. A close examination of the
complaint demonstrates how the OST Council interferes with the judiciary, and
obstructs justice in a court that constitutionally is to be separate from the Council.
In the particular order [ADD. 04 - Plaintiffs’ Request for Criminal Prosecution:
and DCD 9-1, Pgs. 1-5], it clearly shows that 1) the Council defied the Court by
reviewing a case (Bauman) [ADD. 05, Pgs. 24-28 - Impeachment of OST Chief
Judge Lee:] that never petitioned the Tribal Supreme Court, but the Council used
the case as cause to terminate Judge Lee, and 2) the second cause used for
Appellate Case: 14-2027 Page: 19 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 16 ∼
termination was Judge Lee filing a complaint against the Council members. [ADD.
03, Pgs. 10-12 - Oglala Sioux Tribal Constitution (Art. 5 - Judiciary):]. When the
OST Council does not like a judicial ruling, they simply terminate the Chief Judge,
which sets a precedence to keep all others in line with the Council. Constant fear
and intimidation by the Council is the daily policy. This is exactly how the
Plaintiffs were blocked from judicial remedies. This is only one of many examples.
“Separation of Powers,” “Judicial Immunity,” “Equal application of the Law,”
“Due Process” are unheard of commodities, that are essential for an effective
judiciary, for a constitution to have substantive value. And, of course, law
enforcement.
See Dry Creek Lodge Inc v. Arapahoe and Shoshone Tribes, United States
Court of Appeals, Tenth Circuit. - 623 F.2d 682 (1980) providing an exception to
Santa Clara, in that the 10th Circuit concluded4 [To hold that they have access to
4 14 By the decision in Santa Clara the tribal members seeking injunctive relief under the Indian Civil Rights Act were in substance directed to the remedies available to them in their own tribal courts and from the officials they had elected. Much emphasis was placed in the opinion on the availability of tribal courts and, of course, on the intratribal nature of the problem sought to be resolved. With the reliance on the internal relief available the Court in Santa Clara places the limitations on the Indian Civil Rights Act as a source of a remedy. But in the absence of such other relief or remedy the reason for the limitations disappears. 15 The reason for the limitations and the references to tribal immunity also disappear when the issue relates to a matter outside of internal tribal affairs and when it concerns an issue with a non-Indian. 16 … The record demonstrates that plaintiffs sought a forum within the Tribe to consider the issue. … The limitations and restrictions present in Santa Clara should not be applied. There has to be a forum where the dispute can be settled.
Appellate Case: 14-2027 Page: 20 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 17 ∼
no court is to hold that they have constitutional rights but have no remedy…].
Santa Clara applied those Tribes where Plaintiffs had access to Tribal Courts, such
is not the case in the instant case.
C. Plaintiffs/Appellants sued Tribal Council Members in their Official capacity.
Tribal Defendants/Appellees et al assert that the ex parte young doctrine
fails to apply in the instant case due to parties named in their personal, rather than
their official capacity. However, Plaintiffs/Appellants assert that they sought to
amend several times throughout their pleadings. See [DCD 38-1, Pg. 32, DCD 43,
32, and DCD 46, Pg. 32, prayers for relief]. Furthermore, Plaintiffs/Appellants
believe that the “Course of Proceedings” clearly demonstrate that the plaintiffs
were suing the Defendants in their official capacity for mandamus only, and no
other financial claims. See Course of Proceedings Doctrine: Ralph Moore, Jr. v.
City of Harriman 272 F.3d 769 (6th Cir. 2001)
Plaintiffs/Appellants state that they corrected the record in [DCD38-1, Pg. 4]
as follows:
17 The plaintiffs alleged that their personal and property rights under the Constitution had been violated by the defendants. A jury so found and awarded damages. There must exist a remedy for parties in the position of plaintiffs to have the dispute resolved in an orderly manner. To hold that they have access to no court is to hold that they have constitutional rights but have no remedy…
Appellate Case: 14-2027 Page: 21 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 18 ∼
When adding the OST Tribal Defendants, the Plaintiffs inadvertently filed against them personally, when in fact it should have been both personally and in their official capacities. The actions taken by the OST Council would include those actions taken on or about March 05, 2013 and prior, that included conspiracy with non-Council members, would be considered actions taken in the official capacity and the principal of Ex Parte Young (splitting doctrine) would be applicable because the OST Council members were not yet lawfully suspended by operation of law (OST Ordinance 41-26) up to that point. (sic).
The “Ex Parte Young Doctrine” Ex Parte Young, 209 U.S. 123 (1908)
definitely applies. See Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024
(2014):
[As this Court has stated before, analogizing to Ex parte Young, 209 U. S. 123 (1908), tribal immunity does not bar such a suit for injunctive relief against individuals, including tribal officers, responsible for unlawful conduct. See Santa Clara Pueblo, 436 U. S., at 59.]
See also: Vann et al v. United States Dept. of Interior D. C. No. 11-5322 (2012)
ONGOING OST COUNCIL CONSTITUTIONAL VIOLATIONS The local newspapers read “Historic Complaint” dismissed by OST Tribal
Council, with prejudice.
In light of the precedence established by the OST Council in dismissing the
complaint against themselves, they continue to violate the people’s rights. While
the Plaintiff/Appellants’ rights were violated, the latent effects of lack of
“Separating of Powers,” lack of “Judicial Immunity,” the lack of “Equal
Appellate Case: 14-2027 Page: 22 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 19 ∼
Application of the Law,” and the lack of “Due Process” effects everyone. The
effects become systemic through the entire system of justice.
On June 11, 2013, the OST Council passes an ordinance to forcibly acquire
eleven (11) grazing units of approximately 100,000 acres, of which close to 40% is
privately allotted land, while waiving all appraisals. Without any notice to land
owners, BIA Superintendant Cleve Her Many Horses immediately started
terminating leases for those grazing units without notifying any land owners. The
result would be leveraged land sales because the revenue stream was arbitrarily cut
off from the land owners, thereby rendering the land useless, unless sold to the
Tribe. See [ADD. 09, Pgs 38-41 - Ordinance 12-21 Takeover of Allotted lands]
and Article 10, Section 1, Allotted Lands[ADD. 03, Pg. 13 - Oglala Sioux Tribal
Constitution:]. The Tribal purchase of allotted lands are clearly in violation of the
OST Constitution.
On February 3, 2014, the OST Council suspended the OST Council’s Ethics
Code for 60 days, which to date, still remains suspended. See [ADD. 10, Pgs. 42-
43 - OST Ordinance 14-03 – Suspension of Ethics Code:]. On the same date, the
OST Council also suspended the OST Ethics Board for 60 days, which to date, still
remains suspended. See [ADD. 11, Pgs. 44-45 - OST Ordinance 14-04 –
Suspension of Ethics Code:].
Appellate Case: 14-2027 Page: 23 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 20 ∼
On May 1, 2014, Chief Judge Mary Wynne was suspended for reporting to a
clerk’s supervisor that the clerk acted with incompetency on a matter, and that the
clerk needs further training. The result was that the OST Council suspended the
Chief Judge for 45 days. See [ADD. 12, Pgs. 46-47 - OST Resolution 14-188 –
Suspension of OST Chief Judge Mary Wynne:]. The result was that every case was
pushed back, which only affects speedy trials among other things.
On April 21, 2013, Larry Swalley receives a threatening letter of warning,
reminding what happens when anyone speaks against the Council. The letter
reminded Swalley that Jeff Whalen was terminated and permanently barred from
Tribal employment. See [ADD. 06, 29-31 - Letter of Threat Demonstrating
Council Policy:]
As precedence is established for Tribal Council blatantly ignoring the Tribal
Constitution, these fear tactics permeate the entire Tribal system of government,
and the judiciary is rendered helpless.
CONCLUSION By the continual actions of the current Tribal Council aerates an aroma of fear and
intimidation that has permeated the entire judiciary. That litigants no longer look to
the Tribal Supreme Court, they simply run to the Tribal Council with complaints
because they lost their case. Where a Judge (Chief Judge Mary Wynne) just
recently received a 45 day suspension because she informed a court clerk’s
Appellate Case: 14-2027 Page: 24 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 21 ∼
supervisor that the clerk acted incompetent on issuing a protection order, and that
she needing further training. In turn, that pushes all the cases back, thereby
violating the rights of the people respecting speedy trials, not to mention the
Constitutional provision of having a law trained judge as head of the Tribal Courts.
Another pending issue is: to date, an election issue dating back to October 2012 is
still pending an outcome in the Court due to the many continuances cause by lack
of a law trained Judge. The new elections begin this October. Every time a Chief
Judge is suspended or terminated, the Courts are left without a law trained Judge
until either returning or replaced, in further violation of the Tribal Constitution.
But this instant case before the Court has set precedence that even with an average
of 10 violations of constitutional or ethical violations per legislative sessions (111
out of 10 sessions) (DCD 1-1 & 1-2 (exhibits)], the Council is above the Tribal
Constitution. Even today the Tribal Council is attempting to arbitrarily confiscate
individual allotted land against the owner’s will. Infra.
While opposing counsels claim that the pro se Plaintiffs/Appellants lack
authority to represent the people, and that is true, however, the
Plaintiffs/Appellants are only seeking redress in their case. It is irrelevant that the
communities (people) who are none parties to the case may benefit by preserving
“Separation of Powers,” “Judicial Immunity” “Equal Application of the Law,” and
Appellate Case: 14-2027 Page: 25 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 22 ∼
“Due Process of the Law” pursuant to a Tribal Constitution that works for all,
including the litigants.
In a criminal case, violation of any single element is sufficient to dismiss an
accused from prosecution, due to Constitutional provisions. Without enforcement,
the Tribal Council becomes the Prosecutor, Jury, Judge, and hangman, all based on
emotions, rather than law. The judiciary only mimics the desired outcome of the
Council to mask a fictitious judiciary. This precept of Council authority echoes too
every Tribe and reservation that Tribal Councils are above the law. Without
question, the US Government has an extraneous and overwhelming interest above
that of Tribal legislative immunity of which to address the egregious wrongs and
depredation committed by the Defendants. These issues must be addressed!
Oral arguments were never allowed.
In the alternative, if having to wait potentially 8-10 years for the BIA to
respond to any grievances, the irreparable damage continues. In the case of
Georgia Patsy, she had filed for injunctive relief, but was told she needed to first
exhaust her state remedies, however, because of the length of time it takes for said
exhaustion, the U.S. Court overturned the Appellate Court, and remanded back to
the District. See PATSY v. FLORIDA BOARD OF REGENTS, 457 U.S. 496
(1982). Similar to the Patsy case, the Plaintiffs and the people are still waiting for
their rights, and stabilization of the judiciary. The District Judge stated that this
Appellate Case: 14-2027 Page: 26 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 23 ∼
case was filed 9 days after first making complaint, however, the BIA was never
precluded from processing the complaint simultaneously while this case was
pending with the District Court, or even the appeals court. To date, the BIA has
never responded to the Plaintiffs with respect to the complaint filed with
them, other than Mr. Ecoffey verbally stated that his superiors said to do
nothing.
For the reasons stated above, the District Court Order and Judgment should
be reversed, and this matter should be remanded back to the District Court for
further proceedings. Additionally, if the case is so complex as expressed, then
leave of court to amend should be granted.
By /s/ Patrick Lee By /s/ Floyd Hand Patrick A. Lee, Pro Se
203 E Oakland St Rapid City, SD 57701 (605) 341-4360
Floyd Hand, Pro Se P.O. Box 150 Pine Ridge, SD 57770 (605) 867-5762
By /s/William J. Bielecki, Sr. William J. Bielecki, Sr., Pro Se
P.O. Box 1990 Pine Ridge, SD 57770 Tel: (605) 867-5028 Fax: (605) 867-1006 Email: [email protected]
Appellate Case: 14-2027 Page: 27 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 25 ∼
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies pursuant to Rule 32(a), that this brief
complies with the type-volume limitations of Fed. R. App. P. 32 (a)(7)(B) because
this brief contains 5,978 words; and complies with the typeface requirements of
Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 software in 14 pitch Times New Roman.
Pursuant to Circuit Rule 28A(h), I also hereby certify that electronic files of
this Brief has been submitted to the Clerk via the Court’s CM/ECF system. The
files have been scanned for viruses and are virus-free.
Dated this 9th day of September, 2014.
/s/ William J. Bielecki, Sr. William J. Bielecki, Sr., Pro Se P.O. Box 1990 Pine Ridge, SD 57770 Tel: (605) 867-5028 Fax: (605) 867-1006
Appellate Case: 14-2027 Page: 29 Date Filed: 09/09/2014 Entry ID: 4194970
∼ 26 ∼
CERTIFICATE OF FILING AND SERVICE
I hereby certify that on September 9, 2014, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Eighth Circuit by using the CM/ECF system. I certify that all opposing
participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system with the exception of Patrick Lee and Floyd
Hand. I further certify that Patrick Lee and Floyd Hand are joined Appellants and
has authorized me to use an electronic signature in their behalf. Furthermore, a
hard copy original with all Appellants’ original signatures are being sent via the
U.S. Mail, postage prepaid, for filing with the Clerk of the Court for the United
States Court of Appeals for the Eighth Circuit.
Dated this 9th day of September, 2014.
/s/ William J. Bielecki, Sr. William J. Bielecki, Sr., Pro Se P.O. Box 1990 Pine Ridge, SD 57770 Tel: (605) 867-5028 Fax: (605) 867-1006
Appellate Case: 14-2027 Page: 30 Date Filed: 09/09/2014 Entry ID: 4194970
Top Related