|The following opinion by Patrick Lee appears in the latest issue of the Native Sun News. All content © Native Sun News.
Patrick Lee, former chief judge for Oglala Sioux Tribe.
Why I filed a complaint against the Oglala Sioux Tribal Council and others
By Patrick Lee
Some of you may have heard that the Tribal Council has terminated me as Chief Judge of the Oglala Sioux Tribal Courts on March 11, 2013.
As a former public official, I believe I owe the public an explanation to clarify the issues that led up to the Council’s action, and the legality of said actions.
In January 1936, the Oglala Lakota people expressed their will to be governed by a constitution. The new constitution that was adopted provided that the laws of the Tribe would not be inconsistent with the U.S. Constitution and Federal laws. The U.S. Constitution divides the government into three branches—legislative law‐making branch, presidential‐‐ executive branch and the judicial branch for interpreting the laws.
The people voted for Separation of Powers way back in 1936 when the tribal council passed Section 19 of the Code. In 2008 the people made it clear that they wanted separation of powers so that all three branches of government would have a balance of power, and that the power would not be concentrated into just one branch of government. They also voted in a Bill of Rights to protect the civil rights of tribal members. The Constitution empowers the Council, but since 2008, it also limits their power when civil rights and due process are involved.
The reason I filed my complaint against the tribal council was not for personal reasons. Some of the council members have supported me over the years and I appreciate them for their support. They know who they are. A few council members are the head‐hunters and they know who they are. These uneducated few are the bullies and the thugs who influence the others. They do not understand the constitution, the laws and their oath of office. The reason all Council members were named is because all voted to violate the constitution at one time or another. The unconstitutional actions are listed in the complaint.
I filed my complaint because I have a duty to stand up for the people. I took an oath of office to support and defend the tribal constitution, as did all council members. For example, Lydia Bear Killer said that she was going to vote for something that may be against the constitution but she was going to violate it for the people. She and others show that they do not understand that the constitution is the people. It is the authority given from the people to the tribal council. If you support the people, then you have to support and defend the constitution as you swore on your oath at the inauguration.
The latest amendments to our constitution includes a Bill of Rights and a Separation of Powers doctrine that divides the government into three branches—Legislative (Council), Executive (President) and Judicial (Courts). That means that the council cannot act as the Judicial Branch of government. Its duties are limited to making law, not deciding legal cases and handing out punishment. On February 5, 2013, The Tribal Council in direct violation of several laws acted on a verbal complaint against Jeff Whalen for writing unfavorable articles about the Council. There was no written complaint, there was no service of a written complaint on Jeff Whalen and there was no notice of any action that would be taken against him.
This is in violation of the new OST Bill of Rights, which prohibits the tribal council from denying any person of DUE PROCESS OF LAW. Due process means notice, hearing, right to counsel, and an opportunity to raise all defenses such as Freedom of Speech, Freedom of the Press, Freedom of Expression, and Freedom to express his opinion as well as the right to face his accusers and be sentenced by a court of law which has guidelines to follow. This is a basic constitutional right that is enjoyed by all tribal members and when the Council passed a resolution prohibiting him from ever working for the Tribe, it handed out PUNISHMENT, which is also prohibited by the Bill of Rights, which refers to an illegal BILL OF ATTAINDER (Legislative punishment).
As a legislative body the council should have referred it to their attorney who might have filed a complaint in tribal court, which is designed to handle complaints of this type. The Council was involved in a court action that was ex.‐parte (a word that council reps seem to detest) and it infringed on the functions of the JUDICIAL BRANCH OF GOVERNMENT. Such an infringement is damaging to the entire tribe, not only Mr. Whalen.
No organization should be allowed to draft its complaint and then rule on the complaint, and then hand out punishment that had already been decided. There is no fairness in that kind of procedure and that is why the Court should have handled that case. The in‐house attorney at the time should have advised the council that they were in violation of the Constitution and the law, but she failed to do so.
A much larger issue is that it sets a very bad precedent and sends a strong message to our “people” that you had better not criticize the council or you will never work for the tribe. As the Chief Judge who is sworn to uphold and defend our constitution, I was obligated to do something. The problem was exasperated on March 11 when the Council assembled to discuss my complaints.
President Bryan Brewer said that he contacted several lawyers who told him the complaint was “absurd.” These so‐called lawyers were also ex‐parted (heard only one side), and they did not know that the council reaffirmed Ordinance 41‐26 just a few weeks earlier when they used it to conduct my hearing on January 22. 41‐26 imposes immediate suspension of council members when a complaint is filed.
In the past, tribal attorney Marvin Amiotte advised the council that 41‐ 26 was rescinded by the Indian Civil Rights Act which allows all tribal members to be represented by an attorney of their choice. There were two lawyers present at that hearing and neither one of them said a word, but then, Lisa Adams is no “Marvin Amiotte,” nor is Bernice Delorme. When the Council suspended me and Judge Cedar Face on December 26, 2012, they violated the tribal law that allows the council to suspend a judge AFTER hearing. That was a gross violation of the law and of their oath of office.
When the council dismissed my complaint against themselves, drafted their own complaint against me, discussed their complaint then terminated my employment, it again acted as prosecutor, judge, jury and executioner. Injustice was swift and arbitrary. These are the kinds of actions that must stop if we are to be governed by our constitution. You cannot exercise all of those powers and call yourselves a democratic government. To outsiders this proceeding is laughable, but to our tribal people it is pathetic. It is embarrassing and makes me ashamed of how a few ignorant and arrogant committee members manage to take control of the majority of council reps who are basically very fine people.
The complaint against me consisted of a court case that was decided four months earlier. The attorney for the Land Committee did not show up for the trial. Larry Bauman is a tribal member and he won basically by default. If the attorneys who drafted this complaint had any integrity they would have seen the flaws in the complaint. For example, why wasn’t the case appealed to the Supreme Court? Or is the Tribal Council now the Supreme Court? The council performed all functions of the court except for wearing their robes.
When Lisa Adams said that I was a political appointee who could be removed at the will of the council she was wrong. I held an elective office that is provided in the constitution. When the elective office of the Chief Judge becomes vacant, the council can appoint a new Chief Judge with the same qualifications under the same conditions. As the new Chief Judge, I inherited the same duties, obligations authority and the same rights to due process as the previous judge.
A constitutional position is far more important than an attorney who is appointed for limited purposes. She is a political appointee—I was the Chief Judge that is named in our constitution. If I could be removed by simple Council action, then why did the Council go through an impeachment process on January 22, 2013, and exonerate me for any wrong doings?
The Council’s second complaint March 11, 2013 also alleged that I was involving myself in political activities. If I was playing politics, then I would still have my job. I could have easily looked the other way every time the council pretends to be the court and tramples on peoples’ civil rights and due process. I could have easily ignored the fact that the council rescinded the ordinance that implemented the Separation of Powers required by the constitution and gave supervision of all court employees to the Executive Director, who in turn reinstated two employees who had been terminated for over three months and failed to appeal through the OST Personnel Policies.
I could have easily ignored the fact that one of the employees that were reinstated by Executive Director John Haas is Betty Goings who is a convicted criminal by a tribal jury and spent the last month and a half in jail for physically assaulting a court employee half her size. The Executive Director did not take the time to educate himself on the tribal Personnel Policies and is in direct violation of them, despite my repeated written complaints to him, which he chose to ignore.
This is the mess that has been created by ignoring the mandates of the people who they constantly rave about helping. The people who put them in office are ignored once they get in office and I cannot stand by and do nothing when I am under oath to support and defend the constitution. When the constitution and the people are trampled on, then we have anarchy. Floyd Hand, Bill Bielecki nor I wish to overthrow the OST government; on the contrary, we want to make it better by honoring the will of the people; and that is why I filed my complaint.
( Patrick Lee is a member of the Oglala Sioux Tribe and long time judge)
Copyright permission by Native Sun News