William J. Bielecki, Sr.
P.O. Box 1990 Pine Ridge, SD 57770
Tel: (605) 867-5028 Fax: (605) 867-1006
(Advocate before the Oglala Sioux Tribal Court)
October 5, 2008
Mr. Floyd Hand, Sr.
P.O. Box 150
Pine Ridge, SD 57770
OGLALA SIOUX TRIBE
PINE RIDGE, SOUTH DAKOTA
TRIBAL INHERENT POWERS
MEMORANDUM OPINION
Dear Mr. Hand;
This submission is in response pursuant to your request for a legal opinion reflecting the nature of "Inherent Powers”, and how the known body politics of the Oglala Sioux Tribal Council, and the Oglala Sioux Treaty Council, respectively, is to be lawfully regarded as governing entities.
As you may know, there still remains considerable controversy regarding the 2006 elections. Without going into evidentiary background, it is important that I first point out that the 2006 elections allegedly involved a series of political manipulations that resulted in the Court of Election Appeal’s to issue an “Order” on November 06, 2006 for new Primary and General Elections of the entire Council. It is my present understanding that, to date, the Court of Election Appeals had never rescinded nor reversed that order. As many may realize, neither the Election Board or the candidates for elective office ever honored the order in question for new elections, and as such, the legitimacy of the current Council is still greatly at suspect, with the exception of Mr. Gerald Big Crow who lawfully filled a vacancy of the Tribal Council in mid 2008 election, by and through a separate election held in the Pine Ridge Village.
I also need to point out that based on the above 2006 election issue, I must notify you that I have represented in Tribal litigation, a number of enrolled Tribal Members in opposition to the alleged defiance of the Election Board and candidates for elective office reflecting the 2006 elections, and said litigation is most likely not complete or final.
I also must point out that I had the opportunity to appear as a professional witness in behalf of Mr. Alex White Plume before the Court of Elections Appeals on November 5, 2006. I volunteered to come forward as a professional witness in light of my being an Officer of the Oglala Sioux Tribal Court (licensed Advocate), but mostly "in the interest of justice," thereby defending the Constitution and By-Laws of the United States and of the Constitution and Ordinances of the Oglala Sioux Nation, of which I take very seriously.
Furthermore, I would like to add that my undertaking as a witness back in November 2006, and in the preparation of this opinion, was and is done so without compensation of any kind. I have no personal interest in the outcome of any Council legislation, nor Tribal Elections, other than maintaining the human/civil rights of the Tribal Citizens. I do this strictly in the interest of justice for the preservation of human/civil rights of all the citizens of the Oglala Sioux Nation and/or indigenous peoples wherever.
You may also be aware that: although I only carry a law license for the Oglala Sioux Nation Tribal Courts, I have personally practiced 3 years in the Oglala Sioux Tribal Courts and have 18 years of varied personal litigation experience in the Federal Seventh Circuit Court (Chicago, ILL) (bankruptcy & judicial circuit); the Circuit Court of Cook County, Illinois; the 18th Circuit Court (DuPage County, Illinois); the Eastern District of Michigan (Detroit, MI); the Second Judicial District Appellate Court of Illinois; and the Illinois State Supreme Court. My background also includes being a former licensed tax practitioner that included negotiating offers and compromises before the Internal Revenue Service, in addition to being President and Vice President of a number of various corporations, enterprises and special projects.
Having said all that, I will place this particular issue of the 2006 elections aside, and attempt to respond to your request as objectively as possible and in the light most favorable of giving the benefit of doubt, that the present Council is duly authorized to act in an official capacity, strictly for the purposes of the issues defined below. However, I do so without waiving any rights, privileges, immunities or responsibilities of any of the parties that may become part of further litigation, whether I personally represent them or not, reflecting the 2006 elections.
Mr. Hand, I had an opportunity to speak with you and several other distinguished Lakota elders, not to mention reviewing numerous documents, definitions, and case law history, regarding "Tribal Inherent Powers." While Tribal Inherent Powers may vary from tribe to tribe, especially with wide submission to Federal Pub. L. 280 laws, I will focus only on Oglala Sioux Nation Tribal Nation Inherent Powers.
Based on the preliminary issues you have presented to me, and after further thought and reflection and reviewing a number documents, it became my understanding that I needed to first provide some basic definitions before going further, each taken from Black's law Dictionary, 5th edition, as follows:
Exclusive and Innate
What is the legal definition of Inherent Powers and/or Authority;
What is the legal definition of Sovereignty;
What is he legal definition of Sovereign states;
What is the legal definition of Sovereign right;
What is the legal definition of Sovereign people;
What is the legal definition of Sovereign power or sovereign prerogative;
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Limited by Law and Nature
What is the legal definition of Sovereign Immunity;
What is the legal definition of Clipped Sovereignty;
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How, when and why was the Treaty Council(s) formed?
How, when and why was the Oglala Sioux Tribal Council formed?
What is the Indian Reorganization Act of 1934 (Title 25, Section 476 of the U.S. Code) and its enacted purposes?
*******
Inherent powers. An authority possessed without its being derived from another. A right, ability, or faculty of doing a thing, without receiving that right, ability, or faculty from another. Powers originating from the nature of government or sovereignty, i.e., powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from express grants.
Sovereign Immunity. Doctrine precludes litigant from asserting an otherwise meritorious cause of action against a sovereign or a party with sovereign attributes unless sovereign consents to suit. Principe Compania Naviera, S. A. v. Board of Com'rs of Port of New Orleans, D.C.La., 333 F.Supp 353, 355. Historically, the federal and state governments, and derivatively cities and towns, were immune from tort liability arising from activities which were governmental in nature. Most jurisdictions, however, have abandoned this doctrine in favor of permitting tort actions with certain limitations and restrictions. See Federal Tort Claims Act; Governmental immunity; Tort Claims Acts.
Sovereign people. The political body, consisting of the entire number of citizens and qualified electors, who, in their collective capacity, possess the powers of sovereignty and exercise them through their chosen representatives. See Scott v. Sandford, 19 How. 404, 15 LEd. 691.
Sovereign power or sovereign prerogative. That power in a state to which none other is superior or equal, and which includes all the specific powers necessary to accomplish the legitimate ends and purposes of government. iEtna Casualty & Surety Co. v. Bramwell, D.C.Or., 12 F.2d 307, 309.
Sovereign right. A right which the state alone, or some of its governmental agencies, can possess, and which it possesses in the character of a sovereign, for the common benefit, and to enable it to carry out its proper functions; distinguished from such “proprietary" rights as a state, like any private person, may have in property or demands which it owns.
Sovereign states. States whose subjects or citizens are in the habit of obedience to them, and which are not themselves subject to any other (or paramount) state in any respect. The state is said to be semisovereign only, and not sovereign, when in any respect or respects it is liable to be controlled (like certain of the states in India) by a paramount government (e.g., by the British empire). In the intercourse of nations, certain states have a position of entire independence of others, and can perform all those acts which it is possible for any state to perform in this particular sphere. These same states have also entire power of self-government; that is, of independence upon all other states as far as their own territory and citizens not living abroad are concerned. No foreign power or law can have control except by convention. This power of independent action in external and internal relations constitutes complete sovereignty.
Sovereignty. The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.
The power to do everything in a state without accountability, to make laws, to execute and to apply them to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like.
Sovereignty in government is that public authority which directs or orders what is to be done by each member associated in relation to the end of the association. It is the supreme power by which any citizen is governed and is the person or body of persons in the state to whom there is politically no superior. The necessary existence of the state and that right and power which necessarily follow is "sovereignty·." By "sovereignty" in its largest sense is meant supreme, absolute, uncontrollable power, the absolute right to govern. The word which by itself comes nearest to being the definition of "sovereignty" is will or volition as applied to political affairs. City of Bisbee v. Cochise County, 52 Ariz, 1, 78 P.2d 982, 986.
Clipped Sovereignty. In the relations of the several states of the United States to other nations, the states' have what is termed as clipped sovereignty. Anderson v. N. V. Transadine handebmaatschappij, Sup., 28 N.Y.S2d 547, 552.
My submission is as follows:
It is my understanding, supported by the Sioux signatories, that the Sioux Nation Treaty Councils were officially, recognized, though not necessarily named the same, and with mutual consent and acceptance by both the United States Federal Government and the Native Indians, back in 1851 at Fort Laramie, when the 1851 Treaty was first signed.
Sioux Indians
______________________________
Sioux:
Mah-toe-wha-you-whey, his x mark.
Mah-kah-toe-zah-azh, his x mark.
Bel-o-ton-kah-tan-ga, his x mark.
Nah-ka-pah-gi-gi, his x mark.
Mak-toe-sah-bi-chis, his x mark.
Meh-wha-tahni-hans-kah, his x mark.
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US Government
In the presence of –
A.B. Chambers, secretary.
S. Cooper, Colonel, U.S. Army
S. Cooper, Colonel, U.S. Army
Thomas Duncan, Captain, Mounted Riflemen
Thos. G. Rhett, Brevet captain R.M.R.
W.I. Elliot, First lieutenant R.M.R.
H. Culbertson, interpreter for Assiniboine and Gros Ventres.
Francois L=Etalie, interpreter for Arickarees
John Pizelle, interpreter for the Arrapahos
B. Gratz Brown
Robert Campbell
Edmond F. Chouteau
John S. Smith, interpreter for Cheyennes
Robert Medlrum, interpreter for the Crows
*******
It is my further understanding, supported by the Oglala Sioux signatories, that the Oglala Sioux Nation Treaty Council was officially recognized, though not necessarily named the same, and with mutual consent and acceptance oy both the United States Federal Government and the Native Indians, back in 1868 at Fort Laramie, when the 1868 Treaty was signed.
15 Stat., 635 of US Code
Ratified, Feb. 16, 1869.
Proclaimed, Feb 24, 1869
Articles of a treaty made and concluded by and between Lieutenant-General William T. Sherman, General William S. Harney, General Alfred H. Terry, General C. C,. Augur, J.B. Henderson, Nathiel G. Taylor, John B. Sanborn) and Samuel F. Tappan, duly appointed commissioners on the part of the United States, and the different bands of the Sioux Nation of Indians, by their chiefs and head-men, whose names are hereto subscribed, they being duly authorized to act in the premises.
Oglala Sioux Indians
____________________________________________________
Tah-shun-ka-co-qui-pah, his x mark, Man-afraid-of-his-horses. (SEAL]
Sha-ton-skah, his mark, White Hawk. [SEAL]
Sha-ton-sapah, his x mark, Black Hawk [SEAL]
E-ga-mon-ton-ka-sapah, his x mark, Black Tiger [SEAL]
Oh-wah-she-cha, his x mark, Bad Wound. [SEAL]
Pah-gee, his x mark, Grass. [SEAL]
Wah-non-reh-che-geh, his x mark, Ghost Heart. [SEAL]
Con-reeh, his x mark, Crow. [SEAL]
Oh-he-te-kah, his x mark, The Brave. [SEAL]
Tah-ton-kah-he-yo-ta-kah, his x mark, Sitting Bull. [SEAL]
Shon·ka-oh-wah-mon-ye, his x mark , Whirlwind Dog. [SEAL]
Ha-hah-kah-tah-m iee h, his x mark, Poor Elk. [SEAL]
Wam-bu-lee-wah-kon, his x mark, Medicine Eagle. [SEAL]
Chon-gah-ma-he-to-hans-ka, his x mark, High Wolf [SEAL]
Wah-se-chun-ta-shun-kah, his x mark, American Horse. [SEAL]
Mah-hah- mah-ha-mak-near , his x mark, Man that walks under the ground. [SEAL]
Mah-to-tow-pah, his x mark, Four Bears. [SEAL]
Ma-to-wee-sha-kta, his x mark, One that kills the bear. [SEAL]
Oh-tah-kee-toka-wee-chakta, his x mark, One that kills in a hard place. [SEAL]
Tah-ton-kah-ta-mieeh, his x mark, The poor Bull. [SEAL]
Oh-huns-ee-ga-non-sken, his x mark, Mad Shade. [SEAL]
Shah-ton-oh-nah-om-minne ne-oh-minne, his x mark, Whirling Hawk. (SEAL]
Mah-to-ehun-ka-oh, his x mark, Bear's Back. [SEAL]
Che-ton-wee-koh, his x mark, Fool Hawk. [SEAL]
Wah-hoh-ke-za-ah-hah, his x mark; One that has the lance. [SEAL]
Shon-gah-manni-toh-tan-ka-seh, his x mark, Big Wolf Foot. [SEAL]
Eh-ton-kah, his x mark, Big Mouth. (SEAL]
Ma-pah-che-tah, his x mark, Bad Hand. [SEAL]
Wah-ke-yun-sha, his x mark, Red Thunder [SEAL]\
Wak-sah, his x mark, One that Cuts Off. [SEAL]
Cham-nom-qui-yah, his x mark, One that Presents the Pipe. [SEAL]
Wah-ke-ke-yan-puh-tah, his x mark, Fire Thunder. [SEAL]
Mah-to-nonk-pah-ze, his x mark, Bear with Yellow Ears. [SEAL]
Con-ree-teh-ka, his x mark, The Little Crow. [SEAL]
He-hup-pah-toh, his x mark, The Blue War Club, [SEAL]
Shon-kee-toh, his x mark, The Blue Horse. [SEAL]
Wam-balla-oh-con-quo, his x mark, Quick Eagle. [SEAL]
Ta-tonka-suppa, his x mark, Black Bull. [SEAL]
Moh-to-ha-she-na, his x mark, The Bear Hide. [SEAL]
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US Government
Attest:
S.E.Ward.
Jas. C. O'Connor.
J.M. Sherwood.
W. C. Slicer.
Sam Deon.
H. M. Matthews.
Joseph Bissonette, interpreter.
Nicholas Janis, interpreter.
Lefroy Jott, interpreter.
Antoine Janis, interpreter.
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While the treaties and the terms thereof were primarily established to bring closure to war, clearly said treaties were created between two or more separate nations, independent by nature and law to one and another, the United States and the various separate bands of the great Sioux Nation. Each band representing separate tribes. Prior to this period, commonly referred to Tribal Councils represented the Oyate (people) without interference of foreign or independent powers. Each nation had their own military and arms, and means of commerce independent from one and another, although they often traded with each other. It is totally irrelevant that the militaries and means of commerce were unequally matched. What is relevant is that prior to the treaties, each Nation maintained unrestricted or full Inherent Powers and Sovereignty. If restricted, then restricted only by the nature and horrors of greed and war. It must be kept in mind that though a dominion power may restrict by force the free exercise of lnherent Power and Sovereignty, it can never restrict or encumber the Inherent Right to use said Inherent Power. However, it can be waived, forfeited or given away, but must be done voluntarily, or Inherent Right still prevails.
Soon after the treaties were entered into, the United States had broken the treaties of which I will not elaborate on in this opinion.
Long before the Indian Reorganization Act (IRA), the United States Supreme Court first recognized inherent tribal sovereignty in Worcester v. Georgia in 1832, holding that Indian nations were "distinct, independent political communities, retaining their original natural rights . . . from time immemorial."
Assimilation and Allotment period 1871 - 1928
This period began with the end of the more infamous Indian wars and, the capture, surrender, or death of such notable personalities: Cochise and Geronimo of the Apaches, Little Wolf and Dull Knife of the Northern Cheyenne, and Crazy Horse, Red Cloud, Sitting Bull and Black Elk of the Sioux. After a series of Congressional acts without the consent of the Indians, the congress then passed the Indian reorganization Act of 1934, that virtually led to approximately 61 Indians Tribes extinct over the next 20 years.
The preamble o the Indian reorganization Act of 1934 clearly states:
(Wheeler-Howard Act - 48 Stat. 984 - 25 U.S.C. § 461 et seq )
--An Act to conserve and develop Indian lands and resources; to extend to Indians the right to form business and other organizations; to establish a credit system for Indians; to grant certain rights of home rule to Indians; to provide for vocational education for Indians; and for other purposes.
Sec. 2. The right to alter, amend, or repeal this Act is hereby expressly reserved (original on record).
Approved, June 18, 1934.
While the phrase and for other purposes is ambiguously vague and could not lawfully hold up in Court, the balance of the intentions was clearly to encourage tribes to set up business entities, whether incorporated or not; of which to deal with the Federal-Government (638 contrac funds) and state and private entities. The Bureau of Indian affairs (BIA) was directed by the US Congress to author and assist in drafting Constitutions for the Tribes that forced pledges to the United States of America, even though the Tribes still would not be allowed to enjoy full citizenship, simply because of ancestry.
EssentialIy, what the US Congress provided was a Sovereign Immunity and a Clipped Sovereignty. The constitutionality of the Indian reorganization Act has been under attack in the US Supreme Court .
The Supreme Court has been asked repeatedly to address the constitutionality of the IRA by a number of states d will hear a land-into-trust case. In 1995, the Eighth Circuit declared the IRA unconstitutional. The U.S. Department of the Interior sought U.S. Supreme Court review. The DOI then implemented new regulations and asked the U.S. Supreme Court to remand it to the lower courts to reconsider their decision based on the new regulations. The U.S. Supreme Court Granted the petition, vacated the lower court's ruling and remanded the case back to the lower court. Justices Scalia, O'Connor and Thomas dissented and stated in their opinion that "[t]he decision today--to grant, vacate, and remand in light of the Government's changed position---is both unprecedented and inexplicable "and"[w]hat makes today's action inexplicable as well as unprecedented is the fact that the Government's change of legal position does not even purport to be applicable to the present case." The dissent has no precedential value bearing on the actual legal issues. Seven months after the Supreme Court's decision to grant, vacate, and remand, the DOI removed the land from trust. In 1997 the Tribe submitted an amended application to the Secretary, requesting that the United States take the land into trust on the Tribe's behalf. The Eighth Circuit reexamined the constitutionality issue and affirmed the IRA's constitutionality.
Currently, Carcieri v Kempthorne is before the U.S. Supreme Court. Rhode Island officials sued on grounds that the IRA is unconstitutional, but the Supreme Court declined to review this particular question. The Respondents' briefs are currently due by August 11, 2008, and oral arguments have not been scheduled. Recently, in MichGO v Kempthorne, Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals authored a dissent that struck down key provisions of the Indian Reorganization Act of 1934. Of the three circuit courts to address the IRA's constitutionality, Judge Brown is the only judge to opine that the land into trust process violates the U.S. Constitution. The First, Eighth and Tenth Circuits of the U.S. Court of Appeals have upheld its constitutionality. And even as I write this opinion, a challenge to the U.S. Department of lnterior's decision to take land into trust for the Oneida Indian Nation, Upstate Citizens for Equality, New York State, Oneida County, Madison County, the town of Verona, the town of Vernon, and others argue that the IRA is unconstitutional.
The Indian Reorganization Act in its Section 19, arbitrarily combined or joined non-member Indians of a Tribe while residing on a reservation with the member Indians of the same reservation for voting purposes in the acceptance of the Act. Furthermore, the BIA required the allegiance to the US Government as evidenced by the Preamble of the Oglala Sioux Nation Tribal Constitution, in direct contradiction to Inherent Powers, as follows:
PREAMBLE
We the Oglala Sioux Tribe of the Pine Ridge Indian Reservation, in order to establish a more perfect organization, promote the general welfare, conserve and develop our lands and resources, secure to ourselves and our posterity the power to exercise certain rights of home rule not inconsistent with Federal laws and our treaties, and in recognition of God Almighty and His Divine Providence, do ordain and establish this constitution for the Oglala Sioux Tribe.
CONSTITUTION OF THE OGLALA SIOUX TRIBE
ARTICLE IV - POWERS OF THE COUNCIL
SECTION 1. Enumerated Powers - The Oglala Sioux Tribal Council shall exercise the following 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 attached by-laws.
CONSTITUTIONAL BY-LAWS
Article III - Oath of Office
SECTION 1. Each member of the tribal council and each officer elected or appointed hereunder, shall take an oath of office prior to assuming the duties thereof; by which oath he shall pledge himself to support and defend the Constitution of the United States and this constitution and by-laws.
(Oath) I, ______________do solemnly swear that I will support and defend the Constitution of the United States against all enemies; carry out faithfully and impartially the duties of my office to the best of my ability, promote and protect the best interests of my tribe, the Oglala Sioux, in accordance with this constitution and by-laws.
CONCLUSION
Various historians has determined that the "Sioux Nation Treaty Council" formally formed in 1894, shortly after the Wounded Knee massacre. The Sioux Nation Treaty Council represents all of the Sioux Tribes (Approx. 49 Tribes), and all other Sioux Treaty Councils would be subordinate to it, regardless of the Treaty Council's name. The current delegates of the Black Hills Sioux Nation Treaty Council, Oglala Band is subordinate only to the Black Hills Sioux Nation Treaty Council and the Sioux Nation Treaty Councils and the Oyate. The Oglala Sioux Tribal Council does not have authority from the Sioux Nation Treaty Council to add nor withdraw delegates from the Sioux Nation Treaty Councils simply because it does not possess the Inherent Power or authority to do so. This authority can come only through independence of all other nations. The Oglala Sioux Tribal Council simply can never possess Inherent Power over the Oyate or People, and never can. This does not mean that it cannot continue to operate as a business entity and seek counsel with the Treaty Councils and work together. However, the Black Hills Sioux Nation Treaty Council, Oglala Band possesses Inherent Power and Authority over the Tribal Council, simply because the Tribal Council is nothing more than business entity manufactured or structured by the foreign nation commonly called the United States of America, as a matter of law. How the delegates are chosen and removed is a matter strictly held for the Chiefs, Headsmen, the Oyate and the great Sioux Nation Treaty Councils, respectively.
The provision in the Oglala Sioux Constitution By-Laws where it states:
Article VI - National Sioux Council
SECTION 1. The tribal council may appoint delegates to represent the Oglala Sioux Tribe to national councils.
is moot because the Sioux Nation Treaty Councils, or national Sioux Councils has the Inherent Powers on the acceptance and removal of any of the delegates to its Councils! It is irrelevant that the Tribal Council may have appointed delegates to the Treaty Councils or national councils, the Councils have accepted them and the Treaty Councils or national councils, Chiefs, Headsmen and the Oyate respectively only have the Inherent Power to remove them.
Respectfully Submitted,
(Signature)
William Bielecki, Sr.
Oglala Inherent Powers Memorandum Opinion
Oct. 5, 2008
