Lakota Country Times: Lengthy Rosebud Sioux suit dismissed

Wednesday, February 16, 2011  

The following story was written and reported by Vi Waln, the editor of the Lakota Country Times. All content © Lakota Country Times.

ROSEBUD, SOUTH DKAOTA – A lawsuit originally filed in 2002 in the Rosebud Sioux Tribal Court against the Tribal Land Enterprise, Inc. (TLE) has been dismissed.

The civil complaint (Ed Charging Elk, et al., Plaintiffs v. Tribal Land Enterprise, Defendants, Docket# CIV 02-271/05-16) was originally filed by several members of the Rosebud Sioux Tribe (RST) who contended that the value of certificates or shares they held were not properly evaluated according to the TLE By-laws. According to the RST website, the last evaluation of certificates was done by the TLE board of directors on September 14, 2010, at which time value share was determined to be 37.58.

The four page document, a “Memorandum Decision and Order,” was signed on January 24, 2011 by Special Judge B. J. Jones. He ordered “the complaint and amended complaint on this action be and hereby is dismissed without prejudice for failure to prosecute.”

Last week during a special meeting of the Rosebud Sioux Tribal Council, O.J. Semans requested permission to file a similar lawsuit against TLE on behalf of the shareholders. He cited RST Law & Order Code, Title Four, Civil Procedure, as the basis for his request. “The code requires I get approval from the tribal council,” he said. The rules of Civil Procedure state in part: “No class action shall be allowed to be brought in the Tribal Court without prior permission of the Tribal Council. No stockholder derivative action may be brought in Tribal Court without prior permission of the Tribal Council.”

The tribal council, which holds majority vote at the TLE shareholder meetings, declined to act on the request. “I don’t think the tribal council should be approving action against themselves,” stated Eric Antoine who serves as the RST In-House Attorney.

Excerpts taken from the court document are provided in the following paragraphs.

“The record reflects that on February 9, 2004 this Court denied in part and granted in part the Defendant’s motion to dismiss the action on sovereign immunity grounds. This Court held that although the Plaintiffs could not purse a claim for monetary relief against the Defendants, they could pursue their claims for equitable and injunctive relief under the Indian Civil Rights Act. Immediately after that ruling, according to the record, it appears that the Parties agreed to a possible federal congressional resolution of the case and the matter stalled until August of 2005 when the Plaintiffs reenergized their efforts to prosecute the case [footnote 1*] by subpoenaing several TLE and tribal officials for depositions. The Plaintiffs also filed an amended complaint adding more claims for injunctive and declaratory relief… [*Footnote 1 reads:] According to the Plaintiffs’ memorandum of law this was due to the fact that a tribal presidential election lead to the election of Rodney Bordeaux and a new Tribal Council, which withdrew support for a congressional fix. It should be noted that the previous Tribal President, Charles Colombe, was an original party to this action as a Plaintiff, but was permitted to withdraw as a party in November of 2003…”

“On May 8, 2007 the Rosebud Supreme Court affirmed this Court’s ruling permitting discovery to proceed and directed that discovery should proceed. This ruling resulted in a series of unprofessional actions by the Defendant and its counsel [Steven Sandven]. First, TLE filed a complaint with the Tribe’s Judicial Committee seeking the removal of Chief Justice Pommersheim for his ruling affirming this Court’s previous ruling that TLE was not immune from this suit for injunctive and declaratory action. This was a blatant attempt to utilize a political procedure to manipulate the Supreme Court and is admonished by this Court. Second, TLE and its counsel then filed a formal motion for the removal of this Judge on July 16, 2007 asserting that this Court had ignored the Tribe’s sovereignty in making its previous rulings. Again, this Court finds that the actions of TLE and its counsel were a blatant attempt to manipulate the Court because it had not gotten its way before this Court.

"On August 30 and 31, 2007 this Judge presided over an action titled Rosebud Sioux Tribe v. BBC Entertainment involving the same legal counsel for the Plaintiffs as this action originally involved, Mr. Robert Reutter. This Court makes reference to this case because the Court finds that the actions of then counsel of the Plaintiffs in that case explain the delay in the prosecution of this case. After this Court issued its judgment for the Tribe in that case on October 16, 2007 counsel for the Plaintiffs in this case made several critical comments about the Rosebud Sioux Tribal Court and even asserted in post-judgment proceedings in that case that this Court is illegitimate because of some change in the Rosebud Sioux Tribal Constitution. Counsel also insinuated the Court was not fair towards his client in the BBC Entertainment matter. Counsel then voluntarily gave up his license to practice law before this Court."

"From July 16, 2007 to May 26, 2009 no action was taken by the Plaintiffs to prosecute this case. The only action in the file during this time involved individual Plaintiffs wishing to withdraw from the case, apparently because of political aspirations. The Court granted motions of Plaintiff Colombe to withdraw so he could run for tribal president and also permitted Plaintiffs Bonnie Hairy Shirt, Edd Charging Elk, and Webster Two Hawk, to withdraw…”

“The Court finds that there have been two periods of time during which this case was not prosecuted and that dismissal without prejudice is the appropriate remedy at this time under Rosebud Sioux Tribe Rule of Procedure 41(c) and (d)…”