NATIVE AMERICAN LAW & JUSTICE CENTER

Transcription

1 NATIVE AMERICAN LAW & JUSTICE CENTER 177 Riverside Avenue, Suite F-1091, Newport Beach, CA Tel: / drjag49@yahoo.com Web: To: Judge Erick L Larsh Dept. L-52 Superior Court California, Orange County, 341 The City Drive West, Orange, CA cc: 1. Ms. Karen Clay, Staff Counsel, Commission on Judicial Performance, 455 Golden Gate Avenue, Suite 14400, San Francisco, California Director, U.S. Department of Justice Office of Tribal Justice 950 Pennsylvania Avenue, NW Washington, DC Chair, Senate Indian Affairs Committee, United States Senate 838 Hart Office Building Washington, DC Stephen L Snyder, Attorney-at-law Rockfield Blvd. #205 Irvine, CA

2 SOVEREIGN TRIBAL COURT ORDER TO VACATE AND SET ASIDE AN UNLAWFUL ORDER FROM THE SUPERIOR COURT, STATE OF CALIFORNIA, COUNTY OF ORANGE, IN THE MATTER OF LEWIS V. LEWIS, CASE # 13D OF 7 OCTOBER 2013, INVOLVING AN ENROLLED TRIBAL MEMBER 1. Gary Lewis ( Lewis ), an Enrolled Tribal Member of the Shaykamaxum Yemmesee Washitaw Tribe, a treaty tribe under the 1835 Camp Holmes Treaty, codified at 7 Stat. 474, is a party to a divorce proceeding initiated by his wife in Superior Court of the State of California for the County of Orange ( Superior Court ). Lewis filed a petition in this Tribal Court seeking tribal intercession in the matter owing to his membership in the Tribe. This Tribal Court filed a Motion in the Superior Court claiming jurisdiction. The Superior Court denied the tribal Motion on the grounds that this Tribe is not federally recognized. The Court offered no reason or justification for this lame and bland decision. 2. It is blatantly obvious that power, not reason, became the Superior Court s currency in that it totally failed to examine and determine its misguided belief. Non-federally recognized Indian tribes have rights that predate the U.S. Constitution, and federal recognition of an Indian tribe is a political posture which gains no traction in an independent judiciary s inquiry into the totality of facts, findings and conclusions of law regarding federal Indian law germane to Indian tribes. 2

3 FEDERAL INDIAN LAW A. This Tribal Court regrets the cavalier attitude of the Superior Court in an illegal Order it issued regarding spousal maintenance, release of funds for a forensic accountant, and the movement of funds from one attorney trust account to another attorney s trust account. These funds belong to an Enrolled Tribal Member whose wife decided to walk away from her matrimonial bonds and commitments in the hope that a nontribal court will find in her favor. Non-tribal courts have refined and defined no-fault divorce proceedings contrary to Indian law, customs and mores where no effort is spared to save the marriage if indeed it can be salvaged and saved. The Superior Court s refusal to acknowledge the jurisdiction of a sovereign tribal court (25 U.S.C. 1310(3), 1311) is tantamount to a wanton misreading of established federal Indian law. The state court judge who decided to brush aside federal Indian law can be sanctioned under 18 U.S. 241 and 242 because he has engaged in depriving an Enrolled Tribal Member of his constitutional rights in concert and conspiracy with other attorneys. B. Unbeknownst to the Superior Court the concept of federal recognition of Indian tribes is a purely political posture with no support from first principles of law, Anglo-American jurisprudence, or federal Indian law. The Superior Court judge, Judge Erick L Larsh, indeed satisfied the requirements of a politician in robes when he carelessly tossed aside two hundred years of convoluted jurisprudence associated with Indian Tribes. 3

4 C. The incontrovertible truth that Aboriginals lived in this continent before the arrival of explorers, adventurers and settlers is well established. The early laws of conscience in this country recognized their sovereign existence beginning with the Royal Proclamation of 1763 and the Northwest Ordinance of 1787 which cautioned white settlers about their dealings with Indians who were not suave or sophisticated with the European s concepts, ideas and ideals of trade and commerce. D. The Superior Court has entertained the thought that it could hang its opinion and conclusions of law on a mistaken fact that the Shaykamaxum Tribe is not a federally recognized tribe which justified its decision to intrude into the affairs of an Enrolled Tribal Member. The political stand adopted by the Superior Court in this matter is not representative of the characteristics of a judicial branch of the State of California. The exercise of right by individual Indians as state residents or citizens has conflicted on occasion with tribal self-government. For example, the right of an Indian to sue in a state court may be preempted by the tribal rights of selfgovernment. Fisher v. District Court, 424 U.S. 382 (1976); tribal court sovereignty was upheld in Williams v. Lee, 358 US. 217, 222 (1959); Colliflower v. Garland, 342 F. 2d 369 (9 th Cir. 1965). E. The Superior Court desires to be ignorant of the fact that in 1977, the American Indian Policy Review Commission reported that [t]he distinction the Department of the Interior draws between the status of recognized and unrecognized tribes seems to be based merely on precedent whether at some point in a tribe s history it established a formal political relationship with the Government of the United States. The 4

5 commission identified 133 non-federally recognized tribes. At that time, no administrative process was in place for these non-federally recognized tribes to seek federal recognition. In 1978, the Department of Interior established an administrative acknowledgment process by which Indian groups could submit a petition to seek federal recognition for purely political requirements and purposes, and certainly not to make a legal or constitutional point. F. The Superior Court also decided to shut its eyes on a study released in May 2012 by the Government Accountability Office which revealed that non-federally recognized Indian tribes netted more than $103 million in federal funding over a four-year period, including one in Oklahoma. The study was requested by U.S. Representative Dan Boren, Oklahoma's lone congressional Democrat and ranking member of the Subcommittee on Indian and Alaska Native Affairs. The report issued by a Government Accountability Office analyst states that it was completed to address... the key means by which non-federally recognized tribes have been eligible for federal funding and the amount of federal funding awarded to non-federally recognized tribes for fiscal years 2007 through One of the tribes in question hails from Oklahoma, which like most other states doesn't officially recognize Indian tribes. The Sapulpa-based Euchee (Yuchi) Tribe of Indians, which is an incorporated nonprofit, received about $775,000 in federal funding during the study period. A search of USASpending.gov shows the Euchees have received an additional $1 million in federal funding since 2000, all of it from the U.S. Department of Health and Human Services. 5

6 That total was not included in the report's findings, which was limited to a four-year period. The Cherokee Nation of Oklahoma has received more than $1.1 billion since 2000, and that's just in Oklahoma. According to the study's findings, most of the $103,588,000 in question went to the Lumbee Tribe of North Carolina through the U.S. Department of Housing and Urban Development. G. The Superior Court also chose to ignore the fact that non-federally recognized tribes have been around for a long time. In fact, all tribes were non-federally recognized until the Continental Congress began to negotiate treaties with some Native nations in the 1770s. But the new U.S. federal government chose to concentrate its attention upon nations found west of the Appalachians or in Florida, ignoring virtually every tribe located within the core boundaries of the original thirteen states. The eastern tribes, in spite of the new federal Constitution which established federal supremacy over "commerce" with the tribes (Article 1, section 8, clause 3, U.S. Constitution), were left to flounder in a sea of neglect, racism, and ambiguity. Things have not changed all that much in two centuries. United States of America, Samish, Snohomish, Snoqualmie & Steilacoom Indian Tribes v. State of Washington, 641 F.2d 1368 (1981) declared that federal recognition of an Indian tribe was not a legal requirement, but a political one. H. When Congress or the Executive has found that a tribe exists, courts will not normally disturb such a determination because of the political question 6

7 doctrine, outside the scope of judicial review. United States v. Rickert, 188 U.S. 432, 445 (1903); United States v. Holliday, 70 U.S. (3 Wall.) 407 (1866); United States v. Boyd, 83 F.547 (4 th Cir. 1897). I. The Superior Court is painfully ignorant and unaware of the findings, conclusions of law, and the decisions of federal courts in Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975), a landmark decision regarding aboriginal title in the United States. The United States Court of appeals for the First Circuit held that the Nonintercourse Act applied to the Passamaquoddy and Penobscot, nonfederally recognized tribes, and established a trust relationship between those tribes and the federal government that the state of Maine could not terminate. The federal government granted $85 million in compensation for the Passamaquoddy despite the fact it was federally non-recognized. The Nonintercourse Act is still valid and supports this Tribal Court s contention that the Superior Court is barred from interceding in the affairs of Lewis whose divorce proceedings must be adjudicated in this Tribal Court according to federal Indian law. J. Indian Tribes have long been recognized as possessing the common law immunity from suit traditionally enjoyed by sovereign powers whether recognized or unrecognized by the federal government. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 508 (1991); Bottomly v. Passamaquoddy Tribe, 599 F. 2d 1061, 1066 (1 st Cir. 1979). 7

8 Therefore, the political stand of federally recognized tribes, or otherwise, should not guide the Superior Court in its decisions. Its decisions ought to be guided by reason, study, examination, scholarship and research into the affairs of an Indian tribe, federally or not federally recognized, and its inherent tribal sovereignty which has long been established by the United States Supreme Court in Cherokee Nation v Georgia, 30 U.S. (5 Pet.) 1 (1831), and Worcester v Georgia, 31 U.S. (6 Pet.) 515, 559 (1832). K. Needless to say, the government stands to save millions of dollars in benefits that won't have to be extended to tribes that aren't able to meet the strict Bureau of Indian Affairs (BIA) recognition standards, which require tribes to produce mountains of documentation, including anthropological data and genealogies from the mid-1800's, phone records, and guest lists from annual tribal picnics and funerals. One tribe, the 153-member Jena Band of Choctaws of Louisiana, has spent nearly a half-million dollars in research money to produce the material. The Shaykamaxum does not have deep pockets, therefore, has rejected such a political venture which is almost an exercise in futility. L. An unincorporated Indian tribe is one without a treaty arrangement, or non-federally recognized which the Internal Revenue Service held in Revenue Ruling 94-16, Section Gross Income Defined (Also Sections 7805; 26 CFR ) Cumulative Bulletin 19; Revenue Ruling March 21, Federal income taxation of Indian tribes and corporations organized by Indian tribes: Neither an unincorporated Indian tribe nor a corporation organized under section 17 of the Indian Reorganization Act of 1934 is subject to federal income tax on its income, 8

9 regardless of the location of the activities that produced the income. However, a corporation organized by an Indian tribe under state law is subject to federal income tax on its income, regardless of the location of the activities that produced the income. Revenue Ruling clarified and Revenue Ruling amplified. The Superior Court must come to terms with federal Indian law and release tribal matters to tribal courts instead of needlessly increasing its courts dockets for commercial purposes. Interfering with a tribal matter is malicious, vexatious and frivolous because political postures replace legal issues and doctrines under the rule and color of law. This unnecessary and time-consuming effort must cease with immediate effect. The State of Washington has included FEDERAL INDIAN LAW as one of the mandatory subjects that will be covered in the state bar examinations. Perhaps its time for California state court judges to evidence a working knowledge of federal Indian law. ORDER OF THE TRIBAL COURT 1. It is hereby ordered that the Superior Court s unlawful ruling authorizing $2, as spousal maintenance be annulled as void and illegal as this matter involves an Enrolled Tribal Member whose tribal sovereignty is not subject to a state court s interference or intercession. 2. It is hereby ordered that the $7, supposedly to be released to a forensic accountant be annulled as void and illegal as this matter 9

10 involves an Enrolled Tribal Member whose tribal sovereignty is not subject to a state court s interference or intercession. 3. It is hereby ordered that any monies ordered by the Superior Court to be moved from Attorney Nguyen s trust account to Attorney Snyder s trust account will result in federal sanctions against these two attorneys and the state court judge who chose to be arrogantly ignorant of federal Indian law. 4. Further proceedings of this matter (Lewis v. Lewis) will only be heard in this Tribal Court. Any further action in this matter by any nontribal court will be reported to the Senate Indian Affairs Committee, and the Commission on Judicial Performance for the application of sanctions. Like the miner s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith... Felix S. Cohen ( ) SO ORDERED this 14 th day of October, Judge Navin-Chandra Naidu Chief Judge, Shaykamaxum Yemmesse Washitaw Indian Nation Member #160325, American Judges Association Member # , American Bar Association 10