Rosebud, SD… On July 26, 2007 the Bureau of Indian Affairs “BIA” supervised a Secretarial Election “SE” to amend the Rosebud Sioux Tribe “RST” Constitution. Amendment “W” or Article XI of the new constitution created an Independent Tribal Court, which also included a limited waiver of sovereign immunity to protect individual Indians from illegal or unconstitutional actions committed by the legislative and executive branches of tribal government.
Instead of abiding by the federal statutes concerning the “SE”, the governing body has made motions, introduced resolutions and legislation attempting to re-amend the duly approved constitutional amendments, I might add, with the full support and blessing of “BIA.” I submitted a written request to the “RST” tribal secretary, but like the “BIA,” they too continue the long history of ignoring my requests. Four long years later and at the end of the term limits established by the new constitution, there is now a drive by the Bordeaux administration to call for another Secretarial Election to re-amend the amendments that became law on September 9, 2007. At the invitation of President Rodney M. Bordeaux, Ms. De Springer, on behalf of the “BIA,” explained the constitutional process and gave her opinions on the amendments. I requested her educational background in constitutional law that qualifies her as an expert in tribal constitutions from the “BIA” Aberdeen Area Office. Without a degree in constitutional law, Ms. Springer would appear more as a rubber stamp for the Bordeaux administration and “BIA” then a legitimate constitutional expert. Her boss suggested I request that information in “FOIA” request. Knowing the “BIA” and the long history of failing to respond or address my written requests, it is just another long drawn out administrative process to tell you to kiss their (beep).
I believe the “RST” should have abided by the “RST” Constitution and created the Independent Tribal Court within the 45-day time limit established by Congress. In Indian Country and especially the “RST”, we are all well aware that tribal law, federal law, employment rights, constitutional and civil rights is dependent on how loyal an individual is to the Tribe if seeking redress of grievances’. If civil rights were important for all our tribal members to the governing body, I think that individual tribal members should have been afforded the opportunity to bring cases before the tribal judiciary challenging government actions under the Article XI of the Constitution. This would allow for the tribal judiciary to develop its civil rights jurisprudence and to start developing case-law on the limits of the tribal government and its agencies.
With the passage of the Tribal Law and Order Act of 2010 “TLOA” by Congress, included was a provision for review of the Indian Civil Rights Act “ICRA” by the newly created “TLOA” Commission. In 1968, the “ICRA” was originally introduced and enacted as an effort to protect individual Indians from the “arbitrary and capricious” actions of tribal governments and/or officials. Unfortunately, while the “ICRA” was well intended and expressly forbid tribes from taking actions that violated an individual’s rights, the “ICRA” failed to include an effective enforcement mechanism which would hold tribal officials accountable for violations of its provisions. As a result, the number of civil rights violations in Indian Country has reached epidemic proportions. Thousands upon thousands have been stripped or denied the basic due process and equal protection rights provided for in the United States Constitution, the “ICRA,” and tribal laws.
In accord with the First Amendment of the United States Constitution, I/We created a petition on Change.org titled, “Sign the National Petition for Justice in Indian Country” requesting Congress appoint a special impartial counsel to conduct a full investigation into the reasons why Indian citizens are denied equal protections of the law and civil liberties in Indian Country. Since the passage of the “ICRA” in 1968, unjust actions committed by tribal governments have gone with no oversight and since 1978, not one federal dollar has been spent on the enforcement of fundamental civil rights of American citizens domiciled on reservations.
The greediness and selfishness of tribal leaders benefitting from a corrupt tribal government cannot be addressed because that is a “personal trait,” but the ongoing civil liberty violations can. Please take time to sign the petition on change.org in support of other tribal members across America that has suffered injustice(s) at the hands of those that are supposed to represent all of their people. I would like to suggest those that have been harmed by tribal government by the equal protection and civil rights clause prepare your documentation to submit to Congress or the “TLOA” Commission.
Thanking you in advance for your time and consideration.
Todd C. Fast Horse
PO Box 416
Rosebud, SD 57570
Secretarial Election Background
On July 26, 2007 the enrolled members of the Rosebud Sioux Tribe voted on certain proposed constitutional amendments. Twenty-three of the twenty-seven amendments received a majority vote. September 9, 2007 was 45 days after the election. By that time the BIA had to either rule that an amendment was invalid for some reason, or it became effective by operation of law. The BIA took action to approve the amendments. None of the amendments were disapproved.
The Indian Reorganization Act, 25 U.S.C. § 461-479, and the accompanying regulations, 25 C.F.R. § 81.1-81.24, set forth the procedures that an Indian tribe must follow to amend its constitution. “Secretarial elections … are federal-not tribal-elections.” Thomas, (Thomas v. U.S., 141 F.Supp.2d 1185 (W.D. Wis., 2001) citing Thomas v. U.S., 189 F.3d 662, 667 (7th Cir., 1999))
The Secretary has 45 days to resolve election contests, conduct an independent review and approve or disapprove the election. See 25 U.S.C. § 476(d)(1). The Secretary’s authority to review amendments that have been ratified by a majority vote is limited to insuring that they comply with applicable federal law. See § 476(d)(1). If they do not, the Secretary may disapprove them within forty-five days of the election. Id. If the Secretary does not approve or disapprove the amendments within that time, the amendments are deemed to have been approved and become effective. See § 476(d)(2). The Indian Reorganization Act provides a private right of action to enforce the statutory scheme of the act in federal district court. See § 476(d)(2)(“Actions to enforce the provisions of this section may be brought in the appropriate Federal district court.”)
(Thomas v. U.S., 141 F.Supp.2d 1185 (W.D. Wis., 2001) emphasis added)
The Rosebud Tribal Council had a duty to implement the amendments, and any refusal or failure to do so was “unlawful.” (Thomas, 189 F.3d at 668) Again, the Tribal Council has violated the will of the voters. As of September 9, 2007 the amendments were in effect. The existing provisions of the Rosebud Constitution which were amended, became nullities as they were amended and the new constitutional provisions took effect.
The applicable provisions of 25 U.S.C. § 476 –
(d) Approval or disapproval by Secretary; enforcement
(1) If an election called under subsection (a) of this section results in the adoption by the tribe of the proposed constitution and bylaws or amendments thereto, the Secretary shall approve the constitution and bylaws or amendments thereto within forty-five days after the election unless the Secretary finds that the proposed constitution and bylaws or any amendments are contrary to applicable laws.
(2) If the Secretary does not approve or disapprove the constitution and bylaws or amendments within the forty-five days, the Secretary’s approval shall be considered as given. Actions to enforce the provisions of this section may be brought in the appropriate Federal district court.