In The United States Court of Appeals for the Eighth Circuit. Case No. 5:13-Cv

Transcription

1 No In The United States Court of Appeals for the Eighth Circuit Patrick A. Lee Floyd Hand William J. Bielecki, Sr. V. Plaintiffs/Appellants 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 APPELLANTS REPLY BRIEF ORAL ARGUMENTS REQUESTED Patrick A. Lee, Pro Se 203 E Oakland St Rapid City, SD (605) Floyd Hand, Pro Se P.O. Box 150 Pine Ridge, SD (605) William J. Bielecki, Sr., Pro Se P.O. Box 1990 Pine Ridge, SD Tel: (605) Fax: (605) Bill_vanguard@yahoo.com Corrected and Submitted: September 9, 2014 Appellate Case: Page: 1 Date Filed: 09/09/2014 Entry ID:

2 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 Public Civil Rights... 5 Procedures for Filing a Public Civil Rights Complaint ISSUES REFLECTING THE TRIBAL DEFENDANTS/APPELLEES ARGUMENT 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] C. Plaintiffs/Appellants sued Tribal Council Members in their Official capacity ONGOING OST COUNCIL CONSTITUTIONAL VIOLATIONS CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE i Appellate Case: Page: 2 Date Filed: 09/09/2014 Entry ID:

3 TABLE OF AUTHORITIES CASES: Ex Parte Young, 209 U.S. 123 (1908) Michigan v. Bay Mills Indian Cmty., 134 S. Ct (2014) Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) Oneida County v. Oneida Ind. Nation, 470 U.S. 226 (1985) PATSY v. FLORIDA BOARD OF REGENTS, 457 U.S. 496 (1982) Ralph Moore, Jr. v. City of Harriman 272 F.3d 769 (6th Cir. 2001) Vann et al v. United States Dept. of Interior D. C. No (2012) UNITED STATES STATUTES: 25 U.S. Code 478b - Application of laws and treaties USC 1302(a) U.S. Code Federal question U.S.C USC 1985(2) USC 1985(3) U.S.C. 1401(b)... 3 ii Appellate Case: Page: 3 Date Filed: 09/09/2014 Entry ID:

4 P.L CONTRACT: Contract PL contracts Public Law Self-Determination Contract INDIAN REORGANIZATION ACT, AS AMENDED: Indian Reorganization Act ( IRA ) Indian Reorganization Act of TREATIES WITH THE U.S.: 1868 Fort Laramie Treaty Fort Laramie Treaty, Article I Fort Laramie Treaty, Article V Fort Laramie Treaty, Articles I and V OTHER AUTHORITIES US Department of Interior iii Appellate Case: Page: 4 Date Filed: 09/09/2014 Entry ID:

5 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 1 Appellate Case: Page: 5 Date Filed: 09/09/2014 Entry ID:

6 position as Judge [ADD. 07, Pgs 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 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. 2 Appellate Case: Page: 6 Date Filed: 09/09/2014 Entry ID:

7 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, Note: This statute is codified in the 8 U.S.C. 1401(b). [ADD. 13, Pg 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. 3 Appellate Case: Page: 7 Date Filed: 09/09/2014 Entry ID:

8 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 USC 241, 242 & 1153 (661), and 25 USC , 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 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 4 Appellate Case: Page: 8 Date Filed: 09/09/2014 Entry ID:

9 Administrative Procedures Act ( APA ) is inapplicable to the matters before this Court. See Department of Interior: US Department of Interior 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 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 5 Appellate Case: Page: 9 Date Filed: 09/09/2014 Entry ID:

10 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 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 6 Appellate Case: Page: 10 Date Filed: 09/09/2014 Entry ID:

11 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 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 U.S. Code 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 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 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, 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 7 Appellate Case: Page: 11 Date Filed: 09/09/2014 Entry ID:

12 his pending restaurant license. [ADD. 08, Pgs 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 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 & 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 Contract: [ADD. 13, Pgs. 52, 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 8 Appellate Case: Page: 12 Date Filed: 09/09/2014 Entry ID:

13 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 Appellate Case: Page: 13 Date Filed: 09/09/2014 Entry ID:

14 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 1 1 ] (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, 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. 10 Appellate Case: Page: 14 Date Filed: 09/09/2014 Entry ID:

15 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. 11 Appellate Case: Page: 15 Date Filed: 09/09/2014 Entry ID:

16 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, 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, 12 Appellate Case: Page: 16 Date Filed: 09/09/2014 Entry ID:

17 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 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 13 Appellate Case: Page: 17 Date Filed: 09/09/2014 Entry ID:

18 [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 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] 14 Appellate Case: Page: 18 Date Filed: 09/09/2014 Entry ID:

19 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 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 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 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 15 Appellate Case: Page: 19 Date Filed: 09/09/2014 Entry ID:

20 termination was Judge Lee filing a complaint against the Council members. [ADD. 03, Pgs 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 F.2d 682 (1980) providing an exception to Santa Clara, in that the 10 th Circuit concluded 4 [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. 16 Appellate Case: Page: 20 Date Filed: 09/09/2014 Entry ID:

21 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 17 Appellate Case: Page: 21 Date Filed: 09/09/2014 Entry ID:

22 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 (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 (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 18 Appellate Case: Page: 22 Date Filed: 09/09/2014 Entry ID:

23 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 Ordinance Takeover of Allotted lands] and Article 10, Section 1, Allotted Lands[ADD. 03, Pg 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 OST Ordinance 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 OST Ordinance Suspension of Ethics Code:]. 19 Appellate Case: Page: 23 Date Filed: 09/09/2014 Entry ID:

24 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 OST Resolution 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, 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 20 Appellate Case: Page: 24 Date Filed: 09/09/2014 Entry ID:

25 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 21 Appellate Case: Page: 25 Date Filed: 09/09/2014 Entry ID:

26 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 22 Appellate Case: Page: 26 Date Filed: 09/09/2014 Entry ID:

27 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 (605) Floyd Hand, Pro Se P.O. Box 150 Pine Ridge, SD (605) By /s/william J. Bielecki, Sr. William J. Bielecki, Sr., Pro Se P.O. Box 1990 Pine Ridge, SD Tel: (605) Fax: (605) bill_vanguard@yahoo.com 23 Appellate Case: Page: 27 Date Filed: 09/09/2014 Entry ID:

28 24 Appellate Case: Page: 28 Date Filed: 09/09/2014 Entry ID:

29 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 9 th day of September, /s/ William J. Bielecki, Sr. William J. Bielecki, Sr., Pro Se P.O. Box 1990 Pine Ridge, SD Tel: (605) Fax: (605) Appellate Case: Page: 29 Date Filed: 09/09/2014 Entry ID:

30 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 9 th day of September, /s/ William J. Bielecki, Sr. William J. Bielecki, Sr., Pro Se P.O. Box 1990 Pine Ridge, SD Tel: (605) Fax: (605) Appellate Case: Page: 30 Date Filed: 09/09/2014 Entry ID: