Thursday, March 2, 2023

The Bureau of Indian Affairs' Violates Tribal Sovereignty When it is In their Best Interest: Disenrollments Violate ICRA Yet NO ACTION TAKEN

 Civil Rights attorney Donald R. Daines has wrote a post for us in 2016 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.

OP: See that here is the San Pasqual dispute. The issue is SO BIG, they can't fix it. Now using "statute of limitations" to weasel out. 

 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 single 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.  OP: See Jeffredo v. Macarro

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 (See video at link above) 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 case.

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.

More from Daines: 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.

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 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. 

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.
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.

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