Wednesday, February 29, 2012

OPINION: The BIA Violates Sovereignty When it is In their Best Interest: Disenrollments Violate ICRA

Civil Rights attorney Donald R. Daines has written a post for us concerning the BIA and those with a "BIA Agenda", which surprisingly can be some tribal leaders.

The US BIA only violates Sovereignty when it is in their best interest. That’s why the BIA is known as the Bureau of Indian Annihilation. Once the BIA inserts the people its wants in power over the Tribal Nation, then when the People object and want their real leaders, the BIA says it cannot interfere because the dispute (which the BIA created in the first place) is an ‘internal’ problem which Tribal sovereignty prevents the BIA from interfering with. What took place in 1993 with the Oneida Indians of New York (not the Oneida Indian Nation that has existed for a 1,000 years as part of the Haudenosaune, but an entirely new ‘tribe’ called the Oneida Indian Nation of New York) is a textbook example of how the BIA (Bureau of Indian Annihilation) works.

Sovereignty is precious and to be protected. But some have said that sovereignty will be lost because of those who abuse power over a sovereign Indian Nation, like Hussein in Iraq, Kaddafi in Libya, but the US has shown that it only ‘steps’ in to protect the People if there are resources (oil, gas, casino revenues that can be used to balance State budgets instead of increasing taxes on the wealthy Americans, etc.) Colonization is ‘saving the indigenous people from a dictator’. Slavery by another name (PBS documentary)

The Indian Civil Rights Act was enacted in 1968 to protect the People from having their civil rights (freedom of speech, freedom of organization, etc) denied and taken away.

However, the only relief under ICRA is “habeas corpus” (free the prisoner from ‘custody’). The classic example is a ingle mother of 3 seized, handcuffed on a Friday night and driven by car 8 hours away to be ‘checked into a US Maximum Security Prison in Pennsylvania and remains in prison while the ICRA case winds its way through the US Courts. However, if those who seized control over the Tribal government or were put into power by the BIA release the person before the US Courts speak (‘catch and release’), then the US Courts have to find some other way that the individual is in ‘custody.

There have been (and will be many more) court cases in the US Courts defining and interpreting what constitutes ‘custody’ The US Courts have ruled that ‘banishment’ (Poodry) was found to be sufficient restraints upon liberty to be seen as ‘custody’ akin to being in prison. Finding ‘custody’ gives the US the right, responsibility and power to cross the sovereignty line and have the Tribal rights reinstated to the banished People.

In Shenandoah v Halbritter, the BIA appointee was shrewd enough not to utter the word ‘banished’, but achieved the same ends by labeling them ‘not in good standing’ and stripping the People of all rights of participation and benefits, even though they were kept on the rolls for US aid purposes.

The US Courts refused to find that labeling the people ‘not in good standing’ followed by enacting laws targeting the homes of those People for demolition to make them homeless was not sufficient restraint to constitute ‘custody’, therefore, the US Courts did not have the power under ICRA to do anything because it would violate sovereignty – mmm, and this was done by the US Courts AFTER the BIA had violated sovereignty to insert their appointee and given him control of the nation (so that the casino already agreed upon with the State of NY could move forward)- sound familiar?.

The US Courts also found that what the BIA inserted government did to the People by adopting laws aimed at destroying the homes of those labeled ‘not in good standing’ and leaving only those ‘not in good standing’ homeless did not constitute a ‘bill of attainder’. That issue and others were appealed to the US Supreme Court which denied certification to hear the.

I know everyone is scratching their head saying “a what?” ‘What’s a “bill of attainder” and what does that have to do with disenrollments?”

Well, don’t feel bad because most lawyers – as well as judges – have been asking themselves that question for hundreds of years – and will continue to ask themselves that question well into the future.

The U.S. Supreme Courts have defined bills of attainder as:... “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial.”
United States v. Lovett, 328 U.S. 303, 315 (1945)

A ‘bill of attainder’ is a law adopt ‘legislatively’, like when a council adopts a new law, which declares a person or persons guilty of a crime for a condition that they already have and requires a forfeiture or loss of property or a taking away of civil rights resulting in a loss of freedom. A bill of attainder declares a person a criminal or inflicts punishment for an act or condition already committed. It deprives rights, property or liberty because the way the person is, or what they did in the past and inflicts punishment or forfeiture of property upon that person(s) without a trial. In effect, a bill of attainder punishes a person without that person being given a fair trial. Objecting during a public hearing against a proposed law is not a fair trial.

In Shenandoah v Halbritter, the US Courts refused to find that the new housing code adopted by the BIA appointee’s council requiring housing to meet standards selected by the council to make long standing and existing homes to be in violation of those standards, and therefore requiring immediate condemnation and demolition, was not a ‘bill of attainder’

A bill of attainder was part of English common law. Habeas Corpus guaranteed a fair trial by jury before some one is incarcerated or has property taken or forfeited, however, a bill of attainder bypasses Habeas corpus by having the law adopted legislatively. A bill of attainder was mostly used for treason or an already done act or being a certain ‘kind’ and simultaneously suspends a person’s civil rights. This process guarantees that the person would be found guilty of the crimes stated in the bill of attainder. A bill of attainder was a convenient method used the by the English Crown (King) to remove nobles who were deemed to be “getting above themselves” and forcing them to forfeit their entire ‘estate’ and castles including serfs to the Crown.

The victorious colonist invaders of North America, having just freed themselves from the dictates of a King did not want another King to ever come into power and seize control over them. So, while copying much of the Haudenosaune form of self governance (but leaving out things like decision by consensus and not giving the right of vote to women) the colonists included Article I, Section 9, paragraph 3 of the U.S. Constitution stating that: "No Bill of Attainder or ex post facto Law will be passed." We must give credit to the colonists because at least they did not want any bills of attainder used against them. The colonists knew that the Bill of Attainder Clause prohibiting bills of attainder served as an important “bulwark against tyranny”.

Now, I know many of you are scratching your heads again and asking ‘What does this have to do with me and disenrollments?’ Well, the 1968 Indian Civil Rights Act specifically states: “No Indian Tribe in exercising powers of self-government shall—(9) pass any bill of attainder or ex post facto law.” § 1302. At least the US Congress wanted to protect the Indian People from becoming victims of tyranny and a King or Dictator rising to power within the Nation.
So, the question becomes do these disenrollments constitute a prohibited ‘bill of attainder’, and if so, then the US Government is required to step in, reverse them and reinstate the disenrolled members.

The US Courts found (correctly) that Tribal Nation Membership is completely within the sovereign powers of the Tribal Nation and the US Courts are prohibited from violating that sovereignty (Santa Clara)– but Santa Clara might be argued to apply only when people want to be added to the Rolls but not to People who are already members and being stripped of that membership.

Poodry clearly supports that Santa Clara does not apply to ‘banishments’. To me, banishment (found in Poodry to be a violation of ICRA) is equal to or maybe even less than disenrollment. Yet, I have been unable to find any US Court decision addressing whether disenrollments violate ICRA either (a) they constitute “banishment” by another name, or (b) because disenrollments are “bills of attainder” which are explicitly prohibited by ICRA. I think a very good case could be made that disenrollments are in violation of and prohibited by ICRA, and therefore reversible by the US Courts.

The Elders helped me see and learn, however, that the remedy everyone is seeking, hoping and praying for does not lie in the US Courts, it lies in the hearts of the People. To remember compassion. To act with a Good Heart and a Good Mind and compassion to all people in all things.

The US Courts might reinstate the People, but those with a BIA agenda, or some other selfish purpose will find another way to reach their selfish goals, which again those who suffer from the new way will be right back trying to figure out how to restore fairness, equity and compassion.

I feel sadly for all of the People, those who have suffered ‘death’ as if Custer or Carson had executed their whole family as well as for those who pulled the trigger of disenrollment aimed at the victims. I feel sadly that all of Indian Country does not try help each other heal from the PTSD caused by Manifest Destiny, the People are divided, uncaring to the elderly, the sick, the homeless because of selfish greed or power hunger, both of which have no limits once a person is infected with them. Many have lost their balance and sense of compassion for others.

I thank you for allowing me to share these thoughts. The struggle of today sadly will never end and will be the struggle of future generations and continue until all People have compassion for one another and look upon each other with love instead of anger.


Anonymous said...

What! There is nobody that wants to make a comment on this, Mark or John are you that stu stu stu Stupid! Or just afraid.

Anonymous said...

Geez Donald should have just stated your last sentence and we all would have been better off....what insight...what wisdom!

Anonymous said...

28 U.S.C. § 2254
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody. (for prisoners)

I think thats what you mean....two different habeas corpus sections.

25 U.S.C. §§ 1301-1303. habeas corpus is for Indians it refers to detention and custody. ICRA

Detention and custody are used in a broad sense.

example : The Indian man is being detained (to keep under restraint)

Anonymous said...

US Maximum Security Prison in Pennsylvania

A writ of habeas corpus 25 U.S.C. §§ 1301-1303 is challenging your detention by a Indian Tribe....

The woman you speak of would be challenging the United states under 28 U.S.C. § 2254..habeas corpus (her custody)....

WHO DO YOU WORK FOR ? Holland and Knight?

Anonymous said...

I'm sure the post was written for this who have an attention span of more than a few sentences.

Anonymous said...

Give it a break....the good ol'boyz club at the supreme court level doesn't give a rats A's about that legally ramble....santa clara put a nail in that coffin ...the indian people that stood up to this tribal dictator did the absolute right thing....never give in...and be proud of your stand.

Anonymous said...

There are three women in the Supreme Court now, in case you haven't noticed.

Anonymous said...

Santa Clara put a nail in the coffin? Perhaps the nail in the coffin of attempting to challenge a tribes right to enroll people. Santa Clara does not fit in with termination of life long Indians from a band, restriction to or threats of restriction of Indians to there homes, or more important the termination of Indians rights under distress of a dictatorship.

Anonymous said...

Like i said....good ol'boyz...u forgot uncle tom if your really keeping count.

Anonymous said...

I understand that u r trying to get your day in court but ultimately you r challenging the ICRA...that has become a political football between the court and administration stating "not my job"....and the other clowns just what to get elected....good luck thou...u might get to an appellate court with a lot of time and money....honestly good luck.

smokeybear said...

Thank you "Very Much."..."Nice!" You have a way of putting these "Grievious Acts," perpetrated by the B.I.A., into "Perpective," with their "Hidden Agenda" for nothing more then $$$ and there "Underlying Quest" to keep the "Corrupt and Criminal Tribal Leaders," of their choosing, in power for their own "Self Interest!" They know, all too well, that the I.C.R.A. has no substance, as it is written, to actually protect the "Native American Indian" from these "Criminal Acts." Way back in the 1960s, when Congress held a series of hearings on the subject of the authority of Tribal Governments. These hearings told about the abuses that many tribal members had endured from the "sometimes corrupt, incompetent, or tyrannical tribal officials." In response to these occurrences, the Indian Civil Rights Act was enacted. To what "END?" It can't be stated as "Sometimes" Corrupt, Incompetent, or Tyrannical Tribal Officials" any longer, for with the advent of "Casino," in the hands of these "Greedy, Corrupt,Criminal, and Money Hungery Tribal Leaders," it is "Commonplace." Illegal Disenrollments and Banishments to "Bolster" their "Quest" for more $$$ at the "Expense" of "Legal Lineal Decendents." And your right, the B.I.A. isn't going to help the "Oppressed Indian" anytime soon....."There's no Money in it." The "I.C.R.A is ineffective, with no "Provision" to take down these "Criminals." The "I.C.R.A. needs to be "Revampt" to include these "Provisions."

Kenneth Hansen said...

I totally agree with this post. To my knowledge the federal courts have never ruled on the ICRA. It exists to protect people from the excesses of their governments--that's what civil rights are. If it doesn't apply to disenrollment, it doesn't apply to anything. The courts and the BIA need to stop running away from this.

Anonymous said...

To the Chukchanzi people struggling to regain their rightful elected positions....please review the case of the Saginaw Chippewa tribe in is similar to your plite ......the assistant secretary of Indian affairs Kevin Grover intervened to assist in the recognition of the duly elected can be need legal help, media and pressure on congressional offices....stage protest outside of your local district offices of the powers that be....peaceful of course

Anonymous said...

You know,some of the media made us look bad. Nobody really knows the story and yes they should have put some pressure on the media. The local media has all of our facts, they said it best. Read the Sierra Star. Really the BIA questioned why Tribal Council was not there. As Genera Council we made the decision to get them in there. They were not involved in how we got in. It is so hard to get anyone involved they might lose there job. Well guess what after they lose there membership there job is not going to be there. No Tribal status. I am and will keep standing up for what I believe in. I grew up here all my childhood, I know the ones who claimed(couldn't hide it) The ones who teased us for being poor dirty Indians,etc. They have now taken our Tribe over. Chukchansi's running around with blond hair and blue eyes thinking I am the True Chukchansi. I married a white man and my kids are still more Chukchansi than there family combined. Not that I care, the way I see it if your Chukchansi who am I to tell you that you are not.