Jeffrey Whalen: Oglala Sioux Tribe's court system in shambles

The following opinion was written by Jeffrey Whalen for the Native Sun News. All content © Native Sun News.

OST Tribal Council: Judge, jury and hangman
Separation of powers a joke on the Pine Ridge Reservation

The Oglala Sioux Tribal Court system is in shambles. Even though the tribal members voted for a separation of powers in December of 2008 during a Secretarial Election, and the language is now a part of the Oglala Constitution, the court system is still experiencing “bullying” by our legislators. This opinion article is going to address some of the problems associated with political interference and will suggest a solution as well.

The Oglala governmental structure is set up similar to the United States where there are three branches of government which are legislative, judiciary and executive branches. In terms of the United States, there is a separation of powers between all three branches of government which essentially insure checks and balances between the three.

Since the enactment of the 1934 Indian Reorganization Act, our elected tribal legislators, also known as Tribal Council members have been trying to understand this new way of governing their people. Those past council members consisted of very well respected individuals who were genuinely concerned about the welfare of their constituents. They didn’t meet as often as the current day council members do, they didn’t accepts much pay for doing their jobs, they didn’t travel much and most important, they were trusted.

A shift started occurring around the 1970’s or so where the council started receiving a decent wage and the tribe started to expand. President Nixon’s administration authorized a public law which allowed tribes to become self-determined. Once tribes started to figure out what this meant, more federal money started to flow into the reservations through contracting federal services and eventually Public Law 93-638 was passed by Congress which is the Indian Self-Determination and Educational Assistance Act.

On June 20, 1980 the Oglala Sioux Tribal Council passed ordinance 80-02 which is commonly referred to as Section 19. This ordinance modified section 19 of the tribes Law & Order Code and made it a law forbidding the Tribal Council from interfering with the functions of the tribal courts. It reads in part; “No member of the Tribal Council shall obstruct, interfere with, or control the functions of any Oglala Sioux Tribal Court, or influence such functions in any manner in a case or cases pending before the courts.”

As time went on, the tribe started taking indirect costs out of the federal contracted programs and around 1994 they began paying half of the council person’s salary with this money. From then on the council members slowly seemed to lose their focus on the people and started ushering in a new era of thinking. They started to increase their salaries even more. I remember when their wage went up to $32,000.00 per year, I had asked one candidate what his political platform would be and he responded by saying, “I’m running because of 32 big ones!” This meant that he was running for the money and not the people.

The council members started getting more confident that they could run the entire organization and continuously got involved into places where they shouldn’t be. They routinely crossed lines of authority into the executive and judiciary branches of tribal government and demanded that they’ directives be implemented or suffer the consequences. The section 19 ordinance that they had passed in the 1980’s seemed to have lost its steam and the tribal council members were back to routinely violating court functions and interfering with that system.

There was a tribal court case that the council was monitoring which had passed the lower court levels and went to the Tribal Supreme Court. One of the former Tribal Presidents pulled a Supreme Court Justice aside and told him to rule in a certain manner or be terminated. The Supreme Court Justice responded by saying that he would rule according to the law and nothing more.

The next thing that happened was a move that set a wicked precedence in tribal government, that unscrupulous Oglala Tribal President had the Supreme Court Judge removed. Since that point in time, the courts were literally “run over” by various members of the Tribal Council.

Many of the readers might wonder why we don’t have many businesses on the Pine Ridge Indian Reservation. The answer to that is our court system has been seriously weakened by the legislators. The modern day council member wants absolute power and control over the Oyate. I keep going back to the best example of someone constantly overriding the system, Lydia Bear Killer (council rep from Pass Creek) and her verbally violent, unreasonable attacks against anybody who goes against her. Because we have a weakened court system, business developers rightfully refuse to set up shop here.

The result is continuing mass unemployment and the root of all this evil is in the hands of the persons who simply want power and greed for themselves. They have been dubbed “the dark siders.”

In order to take back control of our government, we voted for a separation of powers and it was approved on December 18, 2008 by Michael Black, Aberdeen Regional Director for the BIA. Whoever drafted the language of the separation screwed up because they didn’t include a full separation of powers. They limited the separation between the legislative and judicial branches and forgot about the executive branch of government. The Tribal Council still rules with an iron hand and violates law any time they want to.

In a few short years the “dark siders” figured out how to manipulate the system again. They try to adhere to Sec. 19 and don’t seem to get involved in court cases anymore but they found a new way to wreck the system. Just like a former President did with the Supreme Court Judge, they go after lower court judges.

The constitutional amendment in 2008 allowed the Oyate to vote at large for the Chief Judge and for the judge to serve for a four (4) year term. So electing a judge is now in the hands of the Oyate but wait a minute, if we have the power to elect a judge, why on earth are the dark siders removing them? It turns out that the council has the power to remove any supreme court and lower court judge and the council gets to reappoint a judge of their choice for the unexpired term!

So let’s look at this. Lower Court Chief Judge Marwin Smith was elected by the Oyate to serve a four year term around 2010. He was removed by the Tribal Council in 2011. The council appointed Judge Langworthy and removed her in 2012. The council then appointed Judge Pat Lee and removed him in 2013. Then the council appointed Judge Wynn and suspended her in 2014. Rumor has it that Judge Wynn has recently resigned and if this is true, the council will have to appoint another judge.

These Chief Judges are all required to have Jurist Doctorate Degrees so they are extremely educated in law. Yet the Tribal Council who is predominately uneducated past high school still has control over the court system. Judge Wynn has or had at least three (3) cases on deck addressing violations of the constitution by certain members of the Tribal Council. She was unreasonably suspended for alleged infractions that were not fully proven to be true.

Our constitution contains conflicting articles in it. On one hand it prohibits the legislature from passing bills of attainders meaning legal issues belong in the court system, not on the tribal council floor. Then in another article it allows the legislators to become the judge, jury and hangman for the judges. This is wrong and must be amended immediately. We do not have a separation of powers at all and the court system continues to be a wreck because the council is still allowed to control it through hiring and firing judges.

The Oglala has two forms of government, the traditional form and the IRA form. The IRA form is in bad need of repair and should include a full and complete separation of powers between all three entities.

If not, then the council will continue to wreak havoc on the system and maintain control over the judiciary and executive branches. There are no checks and balances in the system and we continue living in poverty as no business in their right mind will set up shop here.

This means no employment opportunities or legitimate court decisions for our Oyate because of the root of all evil and bullying continues to come from within…our own Tribal Council.

(Jeffrey Whalen can be reached at: Jeffrey.whalen2@gmail.com)

Copyright permission Native Sun News

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