Saturday, March 3, 2012

OPINION II: Are Disenrollments a Violations of the Indian Civil Rights Act?

Civil Rights Attorney Donald Daines gives us a supplement and clarification to his prior post “Are Disenrollments a Violation of the Indian Civil Rights Act? But in the end, the solution does not lay in what the BIA or the US Courts decide, but within ourselves.”    To save space, the post will has a break in it, PLEASE read the entire supplement and add your questions and comments. OP

Thank you for the opportunity to supplement my previous post to clarify some confusion of the readers and address a couple of questions and misunderstandings about the Indian Civil Rights Act. As previously stated, the only relief under ICRA is “habeas corpus” (free the prisoner from ‘custody’). If the prisoner is in a Nation’s jail, the habeas corpus petition is made under to the US Courts 25 U.S.C. §§ 1301-1303 ICRA. If the prisoner is in a US Federal prison pursuant to an order of a Nation Tribal Court, the petition is made under to the US Courts still under 25 U.S.C. §§ 1301-1303 ICRA because the incarceration is according to the Tribal Court decision, not the US Court.

Indian Nations have ‘government to government’ direct with the US Federal government. An Indian Nation can take an Indian prisoner to be incarcerated for the Indian Nation. The incarceration is according to the Indian Nation’s judgment and order, not that of the US Courts or US laws. The US is merely the custodian of the prisoner pursuant to the Indian Nation’s Tribal Court orders and the US has no authority to release an Indian prisoner but must abide by the Tribal Court’s decisions.

One of the many “Anonymous” comments, I believe 11:42AM, was correct about how Santa Clara could be argued to apply only to additions to the Roll of new people, but not control the removal of members by disenrollment. Poodry over ruled Santa Clara with regard to ‘banishment’. The comment was “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.” Again, I have not yet found any decision addressing ‘disenrollments’, which are worse than banishment.

Even if an act is a clear violation of ICRA, you still must prove “restraint” that qualifies as “custody” before the US Court has any power to undue or release the person from “custody”. What restraint is sufficient to “custody will be a matter of debate for a very, very long time because there is no “bright line”. Poodry held that “banishment” was sufficient restraints upon liberty to constitute “custody”, therefore, the US Court not had power to step in, but under ICRA, it had an obligation to order the Indian Nation to release the banished people from the custody of banishment.

What I have not yet seen is a court decision that involves the question of whether “disenrollment” (mush worse than banishment) is sufficient “restraint” upon liberties to constitute “custody” for purposes of requiring the US Court to release the disenrolled from the custody of disenrollment.

If disenrollment can be found to be sufficient restraint to be custody, then the disenrolled have a powerful weapon to force the Nation to reinstate them. Everyone here knows that those who did the disenrollment will break their brains trying to figure out other ways to punish the reinstated members, so the dispute will never end until people realize how disenrollments are exactly what the US policies want, and they don’t even have to pay for the bullets. The new motto will become “the only good Indian is a disenrolled Indian.” What are you all thinking about? geesh

Well another potentially powerful weapon to use against those who use their intelligence to disenroll members rather than sharing the buffalo kill with the whole village is to argue that disenrollments are in fact “bills of attainder” and expressly prohibited by ICRA, therefore the US Courts must reinstate the members. You don’t have to argue that disenrollments are sufficient restraints upon liberties to rise to the level of being “custody” because ICRA specifically says “No Indian Tribe in exercising powers of self-government shall—(9) pass any bill of attainder or ex post facto law.” § 1302. ICRA acknowledges that bills of attainder are by definition “custody” and therefore, the US Court has the power under ICRA to grant habeas corpus relief and reverse the disenrollment.

So, the question becomes which the US Courts have not yet answered that I have found is do these disenrollments constitute a prohibited ‘bill of attainder’? Again, ICRA was only adopted in 1968, a little over 40 years ago – one life time. So of the more than 200 years of Indian Wars, Indians have only had ICRA for the last 40, and its meaning is being interpreted everyday, and will continue to be argued about.



So, what I tried to bring to the struggle were hopefully some new and potentially powerful arguments that the US Courts have not yet addressed that I know of. I hope others will find them to have potential and will pursue them in the US Courts, and I hope the arguments succeed. Maybe then, people will pause, take a breath and look at everyone not as enemies to be driven form the camp, but as family that deserves and needs a place at the fire. Sure, it might require some of the Indian 1% to take a little less, but the Wasicu (fat stealers) hopefully will do that.

So, the two arguments are (1) prove that Disenrollments place a person under sufficient restraints to constitute “custody”, therefore the US Courts have the power and obligation to release the disenrolled from custody and reinstate him; and (2) prove that Disenrollments are in fact “bills of attainder” specifically prohibited by ICRA, so once again, the US Courts have the power and obligation to release the disenrolled from custody and reinstate him.

I see the two arguments as completely independent, but could be made in the case to test them both. I hope the US Courts see disenrollments as bills of attainder as I do, but that will be up to the Courts and the parties to find out what the courts say.

Back to the Maisie Shenandoah v Halbritter matter, the case went through the Federal Courts all the way up to the US Supreme Court where Certification to Hear the matter was denied. The Traditional Oneida Indians, however, filed an Appeal with the BIA in 1995 challenging Halbritter’s claim of authority. Their BIA Appeal was supplemented in 2004 because of new evidence found supporting their argument.

However, the BIA has failed and refused to take any action on their appeal over the past 17 years. None of the pleadings have been reviewed; nor hearings conducted; no arguments heard or decided, nor any of the motions filed on behalf of the Traditionals even though the appeal has passed its 15th anniversary of filing.

The BIA individual assigned to ‘handle’ this appeal is a Mr. Scott Keep. This is the same Scott Keep who was held in contempt of Federal Court in 1996 by US District Judge Thomas Zilly of Seattle for the way Keep handled the north Puget Sound’s Samish Tribe's federal recognition.

After years of having its constitutional rights deprived by the BIA, the Samish Tribe finally won recognition as a result of a lawsuit. In ruling in favor of the Samish, US Magistrate Zilly condemned the BIA and Keep for denying the Samish its Fifth Amendment right to due process. Magistrate Zilly cited the case's "protracted and tortured history ...made more difficult by excessive delays and governmental misconduct."

Judge Zilly wrote that he had "no confidence in the agency's ability to decide the (Samish) matter expeditiously and fairly." And it appears from the decision that Judge Zilly reserved special disdain for Mr. Keep, saying that Mr. Keep” showed an "apparent disregard for ...traditional standards of fair play" and ruled Mr. Keep to be in contempt of court. Although we understand that Judge Zilly later lifted the contempt citation, he left in place sanctions preventing Mr. Keep from ever again "taking any action" involving the Samish Tribe. The Appeal by the Oneida Traditionals still languishes in the dusty boxes stored at the BIA.

And Indian Country expects the BIA to help them out? To find a just solution about anything? After 500 years of invasion, and over 200 years of Indian Wars that have never stopped, and the Cobell Trust situation, why do People still believe that they will find justice in the US Courts? It lies within ourselves. The US Courts might temporarily cause a ‘time out’, but no permanent solution will be found until the People refind the compassion, respect and courtesy for each other and searching for peaceful resolutions with fairness to all.

Maisie Shenandoah and the other Traditional Oneida’s knew that what they were seeking could not come from the US Courts, but only from within the hearts of the Oneida and Haudenosaune People. The Courts could protect the Traditionals from being victims of ongoing violence against them and maybe protect them from being made homeless, but the struggle was not about homes, but about preserving the Traditional self governance and not have their Nation turned into a Corporate Oligarchy with the BIA appointee being the head. The hope remains for a reunified Oneida Indian Nation, a restoration of the Haudenosaune and the Grand Council and a return of the PeaceMakers lessons.


Don Daines is an attorney with over 30 years of experience concentrating in civil rights and creating housing opportunities for low income families. He was privileged and grateful to have served as the pro-bono attorney representing Oneida Wolf Clan Mother Maisie Shenandoah and the other Traditional Oneida Indians in their struggle to maintain and preserve their Oneida Matrilineal form of self government and the Haudenosaune Confederacy against the claim of power by Raymon Halbritter, the BIA appointee. He taught school on the Dine’ Reservation in the early 1970’s, initially at the BIA School at Many Farms, then at Chinle. He also served as the pro bono attorney for the volunteers at the Cherokee Memorial Removal Park on the Trail of Tears at Blythe Ferry, TN, helping them form and establish their 501(c)(3) (nonprofit) status so they could receive donations to be used to help the Memorial. The information provided is not intended, and should not be used, as a substitute for consultation with legal counsel.
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