in the united states court of appeals for the eighth circuit · 2014-09-26 · united states court...

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

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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


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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


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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


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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


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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.


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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.


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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


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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


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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


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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


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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


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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.


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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.


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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.


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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,


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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


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[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]


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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


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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.


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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…


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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


∼ 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:].


∼ 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


∼ 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


∼ 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


∼ 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]


∼ 24 ∼


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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


∼ 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


in the united states court of appeals for the eighth circuit · 2014-09-26 · united states court...

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