Wednesday, September 26, 2012

ASSOCIATE JUDGE B.J. JONES DENIES REQUESTS FOR A PRELIMINARY INJUNCTION FREEZING SPENDING OF $48.9 MILLION SALAZAR SETTLEMENT AND ALSO DENIES STANDING ROCK SIOUX TRIBAL COUNCIL MOTION TO DISMISS SETTING DATE FOR PLAINTIFFS RESPONSE FOR DISMISSAL FOR OCTOBER 8

STANDING ROCK SIOUX TRIBAL CHAIRMAN CHARLES MURPHY SIGNS RESOLUTION FOR SRST TRIBAL COUNCIL BUDGET ON $48.9 MILLION SALAZAR SETTLEMENT

RECALL PETITIONS ON THREE SRST TRIBAL COUNCIL MEMBERS CERTIFIED AND DATE TO BE SET FOR RECALL ELECTION

STANDING ROCK SIOUX TRIBE COUNCIL ON AGING HAS FILED MOTION FOR PRELIMINARY INJUNCTION FREEZING SALAZAR SETTLEMENT 
9-27-12




BY DEBORAH LAVALLIE

On April 11th, U.S. Attorney General Eric Holder and U.S. Secretary of Interior Ken Salazar announced the historic $1.023 billion settlement of the United States government's mismanagement of monetary assets and natural resources held in trust by the United States Department of Interior and the United States Department of Treasury, in lawsuits filed by 41 federally-recognized tribes, ending long-running disputes and claims spanning a 100 year period, and, ending the tribal lawsuits against the government for mismanagement of tribal trust accounts, trust land and natural resources, compensating the tribes for their Breach of Trust claims.  Since the time of the announcement the tribes involved in Nez Perce et al, v Salazar, otherwise known as the Salazar Settlement have distributed or have been in the process of planning how their settlements will be disbursed to tribal membership.  While in some cases tribes have already distributed their settlements as per capita payments to their members, in some the issue of disbursement has become controversial as in the case of the Standing Rock Sioux Tribe and the distribution of the $48.9 million trust settlement the SRST received on behalf of their people.

On January 8, 2002 the Standing Rock Sioux Tribe filed a lawsuit against the U.S. Government for Breach of Trust for failing to properly account for trust funds the tribe had entrusted to the government for the sale, lease and occupancy of tribal trust lands and assets.  After ten years of litigation the government decided to settle the lawsuit for $48.9 million and the tribe agreed to that amount though the resolution No. 078-12 did not specify how the proceeds would be distributed.  The Salazar Settlement agreement executed by Bill Perry, a D.C. attorney, on behalf of the tribe, neither compelled nor prevented the distribution of the judgment in a per capita manner to tribal membership, though other tribes who received similar settlements opted to payout a 100% disbursement to their members.  Disagreement over the disbursement is now being litigated in tribal court with Petitions for Preliminary Injunctions filed by tribal members Valerie Wolf Necklace in Wolf Necklace v Standing Rock Sioux Tribal Council and Fool Bear and Dancing Bull-Buffalo Boy v Standing Rock Sioux Tribal Council, asking for a freeze on the distribution of the funds by the SRST Tribal Council until the issues are settled by the Courts.

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Associate Judge B.J. Jones returned his Decision Monday, denying the Petitions for a Preliminary Injunction on the $48.9 million Salazar Trust Settlement.  After hearing testimony by tribal elders from each of the reservation districts on Friday, September 21 in Wolf Necklace v Standing Rock Sioux Tribal Council, a discrimination action filed by Wolf Necklace on behalf of all SRST enrolled members living off of the Standing Rock reservation, and Archie Fool Bear and Kathy Dancing Bull-Buffalo Boy v Standing Rock Sioux Tribal Council, a Breach of Trust Complaint that was filed requesting a Preliminary Injunction, on the Salazar Settlement, Jones took the weekend to come to his decision, and, though both Petitions for the Preliminary Injunction were denied, he gave the Plaintiffs 14 days to Respond to the SRST Council's Motion to Dismiss, setting a hearing date for the Response for October 8.  

The two consolidated cases were heard by Judge Jones Friday on the Plaintiffs request for a Preliminary Injunction to prevent the Defendants, the Standing Rock Sioux Tribal Council from 'distributing the proceeds' from the $48.9 million Salazar Trust Settlement, in a manner that they contended would violate their rights as tribal members and various provisions of the Standing Rock Sioux Tribal Constitution and Indian Civil Rights Act.  The Plaintiffs argued that the SRST Tribal Council has ignored the 'express' wishes of the people to distribute the Settlement per capita to all enrolled members, regardless of their residency, and that the budget approved by the Tribal Council to distribute the Settlement was not taken to the districts as required by the SRST Constitution, also stating that the Tribal Council rescinded a passed motion to take that budget to the districts prior to approval after the Plaintiffs met with the tribal council, and that the present method offered by the council to distribute the funds fails to provide for the rights of off-reservation members in violation of their equal protection rights.

Wolf Necklace v Standing Rock Sioux Tribal Council and Fool Bear and Dancing Bull-Buffalo Boy v Standing Rock Sioux Tribal Council were consolidated by the Court because both challenged the SRST Tribal Council's decision on the distribution of the Salazar Trust Settlement proceeds and both cases alleged that the distribution was imminent.  The Wolf Necklace action requested a temporary restraining order to prevent distribution.  The Court denied her request on September 14, but ruled that she had stated a sufficient claim entitling her to a hearing.  Afterwards the other two Plaintiffs filed their own lawsuit stating many of the same issues as Wolf Necklace.  Although they didn't ask for preliminary relief the Court opted to consolidate the two cases because both challenge the Salazar Trust Settlement distribution.  The Court denied both motions for Continuances by Fool Bear and Dancing Bull-Buffalo Boy.  It was their contention that they were not being provided sufficient time to prepare their case, but the Court noted that the SRST Tribal Council had waived their right to adequate notice of the Preliminary Injunction hearing and that without a legal order in place they were free to distribute the Salazar Trust Settlement as planned.

The Defendants, the Standing Rock Sioux Tribal Council represented in Court by tribal attorney Chris Lindbland, remained opposed to per capita payments to all enrolled tribal members. Lindbland argued that the Complaints should be dismissed and challenged the Plaintiffs standing to assert claims for off-reservation membership of the Tribe on the ground that they do not allege a 'concrete injury' from the proposed plan.  He stated that the Tribal Council provided adequate due process in the form of district meetings to discuss Settlement proceeds, and even if the Tribal Council opted to disagree with the wishes of many members who were heard at those meetings, it does not constitute a violation of due process.  Lindbland also argued that the Tribal Council decision to distribute the Settlement in a manner that the Plaintiffs and many other tribal members disagree with, is a 'political' question not subject to judicial scrutiny, meaning that even though the Council decision not to distribute the Settlement solely by per capita payments to tribal members is an unpopular one, it is not subject to a lawsuit if the allocation plans are according to tribal law.

FooL Bear argued the case for the Plaintiffs and presented his testimony, stating that it was the final Tribal Council resolution and budget the Plaintiffs took issue with, claiming it is not a product of the district meetings held and is out of step with the wishes of the people.  He stated that he had received requests from tribal members in Minneapolis and Bismarck areas to assert their rights for them at the hearing.  He argued that the lands and resources mismanaged by the U.S. Government as trustee of those assets belong to the Standing Rock tribal members, both on and off the reservation, and not to the elected tribal leaders.  He further argued that the distinction the Tribe draws between on and off-reservation membership is an artificial one that violates the core principle of membership in a Tribe, which has nothing to do with domicile.  He said that Title 20 of the Tribal Code will effectively prohibit the districts from distributing any of the economic development or housing monies to off-reservation members, violating their rights, concluding that the Tribal Council have failed to listen to the people on this important issue.

Judge Jones allowed witness testimony and several well-respected tribal elders from each of the districts spoke.  Tribal elder Lynnes End of Horn from Wakpala presented a document from SRST Tribal Chairman Charles Murphy proposing to distribute the Salazar Settlement proceeds as a per capita payment to 'all' tribal members.  According to several witnesses there were no off-reservation meetings called for.  Tribal members, Mary Louise Defender, Patti Kelly, Robert Gates, Rhea Martinez Archambault and End of Horn testified to the needs of the people, especially, the elders and the hardships tribal members, both on and off the reservation have endured because of the tribal government's mismanagement of both tribal and allottee resources, not being able to comprehend why their elected tribal leaders would so easily ignore the wishes of the people to have a 100% per capita payout.  Germaine Tremmel, originally from Wakpala and a Human Rights Advocacy Worker for the United Nations spoke in both Lakota and English, decrying the division this issue has brought among the people, and speaking about the need of the elected leaders to listen to the people's wishes.  Many of the witnesses testified as to how the Tribal Council did less than an adequate job informing the people of what the Salazar Settlement was for and what the options of the Tribe were.  Some attended most of the district meetings and believed there was an overwhelming 'consensus' of the people who were present that the Settlement funds were the rightful property of the people and should be distributed per capita, though many said the Council did not want to hear this opinion. 

Judge Jones denied the Motion to Dismiss by the SRST Council, and also denied the Plaintiffs Request for Preliminary Injunction, freezing the Settlement funds.  Since the Motion to Dismiss was only filed the day of the hearing the Plaintiffs are entitled to Respond to the Motion to Dismiss and have 14 days to do that. He concluded, "There is no dispute the Council did hold meetings in the districts prior to approving a final budget.  It is true the approved budget did not have much support at the district meetings," and, though he was somewhat troubled with the apparent contradiction in what the Council did with the budget, Jones felt "The remedy for the people is the ballot box, not the Court system unless it proves a particular act violates the law."  The exact budget approved by the Council was never taken out to the districts for input.

"The Plaintiffs have not been able to persuade the Tribal Council to distribute the Settlement funds per capita so they sought judicial intervention to overturn the Council.  This Court cannot do that without running afoul of the Separation of Powers Doctrine and the Political Question Doctrine" Jones stated.  He felt it was a district matter for distribution of the funds and there was nothing in the Council resolution that discriminates against the off-reservation members.

Judge Jones said that the Court is mindful of the most famous Hunkpapa, Sitting Bull when he told his people, "Let us put our minds together and see what life we can make for our children," stating he did not tell the people to act for their own self interest but instead to act for the future generations.  "The mismanagement of the U.S. did not occur with the current generation of tribal members.  It extended over several generations of tribal members now gone, but whose voice must now be heard now that judgment day has been reached.  When the Council acts it must speak for those generations gone, and those to come, and not just for the current generation of voters."

Plaintiff and SRST - ACTT spokesperson, Fool Bear, commenting on the Courts Decision, stated, "Our belief in a system of Separation of Powers in filing our case, shows that it truly does not exist, but we'll move forward.  We, in protection of 'all' enrolled members of the Standing Rock Sioux Tribe will ultimately take this to the next level."

On Tuesday, September 24 Chairman Charles Murphy signed the resolution  for the Standing Rock Tribal Council budget on the $48.9 million Salazar Trust Settlement.  In a letter sent to Chairman Murphy via email dated September 20, Bill Perry, SRST 's attorney in Wash. D.C., advised the SRST on these cases, stating the prudent course of the Tribe would be not to disburse any of the settlement funds until the Tribal Court has the opportunity to address the matter raised.  Chairman Murphy did not respond to attempts to contact him.

The Recall Petitions for Avis Little Eagle, Phyllis Young and Jay Taken Alive were certified by Election Supervisor Elliot Rhoades, on Tuesday also, and one more Recall Petition was turned in on Duane Claymore from the Wakpala district.  Signatures are also being gathered for Recall on Sharon Two Bears from the Cannonball district, Ron White and Ron Brown Otter, both at large Council members.

The Standing Rock Sioux Tribe - ACTT Active Citizens for Tribal Truth stated in a press release, "It is a sad day in Standing Rock history.  We will see how much actual 'infrastructure' and 'economic development' will come from Council spending.  ACTT will continue to advocate for the responsible use of the Settlement funds and will continue to seek to place responsible people on the Council who will follow the spirit and intent of the law, where people are concerned, as they should."  The SRST - ACTT group has advocated for an ambassador position on the Tribal Council who would represent off-reservation enrollees, a satellite center in the Bismarck Mandan area and other population centers, and absentee voting rights.  ACTT will be filing an Appeal at the October 8 hearing.  In their response to charges that SRST - ACTT advocacy for tribal council accountability against alleged tribal council corruption and mismanagement has divided the Standing Rock Sioux Tribe over money, the group asserted, "As we have stated repeatedly, this is not about the money.  This was about the disrespect that was shown to the people of Standing Rock to make up their own minds.  This was about the lies that our so-called leaders were willing to say so they could use the Settlement money to get themselves reelected.  This is about the rights of the people being violated again and again to the point where white people no longer have to oppress, bully or threaten us, because our own leaders are doing it.  This is about the hypocrites on the Council who say they are Lakota and then turn their backs on their own relatives just because they live somewhere else and can't do something for them, such as vote."  The group has also set up a CHIPIN account to raise funds for attorney/legal fees to file an Appeal in the Injunction and to make the Standing Rock Sioux Tribe accountable.  SRST - ACTT will be having a meeting Friday, September 28 at 6 P.M. at the Prarie Knights Casino.  The public is invited to attend.

On Wednesday, September 26 the Council on Aging at Standing Rock filed for a Motion for Preliminary Injunction on the Salazar Settlement contending that Associate Judge B.J. Jones breached his own Order dated September 14, in Wolf Necklace v Standing Rock Sioux Tribal Council by not allowing the enrolled membership of SRST to voice their needs, concerns and opinions which they say is the Lakota way.  With a 98% unemployment rate, federal funding budget cuts, a vast increase in tribal membership homelessness, a vast increase in the numbers of the elderly, domestic violence, alcoholism and other social ills the Council on Aging supports the SRST - ACTT position of distributing, equally to both on and off reservation members with IIM Accounts the $48.9 million Salazar Trust Settlement.  Their Request for Preliminary Injunction is based on the 1868 Fort Laramie Treaty, the 'Supreme Law of the Land' according to Sioux Treaty Law.

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