Native American Press/Ojibwe News

Is a tribal court’s ex parte banishment legal or “patently unconstitutional”?

US District Court rules “the action of summary eviction … with absolutely no due process ranks right up there with summary execution”

By Clara NiiSka - March 29, 2002
Can a tribal court order the banishment of a non-Indian: forcible removal from her place of employment at a state-chartered non-profit organization on fee patent land, forcible removal from her home on white-owned fee patent land? Can a tribal court banish a non-Indian from state highways? Is the county sheriff obligated to enforce such a tribal court banishment order, particularly when he has personal knowledge that at least one of the reasons given by the tribal court for banishment is false? And—given ‘tribal sovereignty’—is there anything that a person banished without even a pretense of any fair hearing by the tribal court, can do about it?

On July 24, 1998, the Standing Rock tribal court issued an ex parte order, based on one person’s complaint and decided without a hearing, banishing Margaret Penn from the Standing Rock reservation. According to court records, Penn is 1/8 Turtle Mountain Chippewa, not enrolled and not enrollable, legally “a non-Indian and nonmember of the Standing Rock Sioux Tribe.”

Maggie Penn, who has a law degree, worked as a tribal prosecutor on the Standing Rock reservation. As Press/ON reported in a February 19, 1999 article by Julie Shortridge, Penn brought charges against tribal court chief judge Mike Swallow for unethical conduct in May 1996. Three months later, Penn was fired by Swallow. In September 1997 Penn sued in tribal court for wrongful termination from her job. The same month, Swallow was voted out of his judicial office; when his term expired in January 1998 he was hired by the tribal council as in-house attorney, with a substantial increase in his salary. The ethics charges against Swallow were apparently never fully heard by the tribal court, and Penn’s wrongful termination lawsuit was still pending when she was banished.

Penn had worked as a part-time grantwriter and bookkeeper at Tender Hearts women’s shelter since 1995. Her grantwriting skills brought in more than $600,000 to fund the facility. Penn also conducted seminars around the nation on Indian law and domestic violence. Tender Hearts Against Family Violence, Inc., was a non-profit organization incorporated under state law and located on fee-patent land, the “old Warrior Motel” converted into a battered women’s shelter in Ft. Yates, South Dakota. It received more than $40 thousand in federal money for fiscal year 1998. During the first half of 1998 Penn remained on Standing Rock reservation, working at Tender Hearts.

“The Tender Hearts program was embroiled in some controversy of its own,” according to US Senior District Judge Patrick Conmy in his March 6th, 2002 Opinion. On July 24, 1998, Faith Taken Alive requested that her uncle, tribal court judge Isaac Dog Eagle, banish Penn from Standing Rock reservation. Shortridge reported that the banishment request was “motivated by Taken Alive [and others] conspiring to seize control of Tender Hearts, Inc., in conjunction with illegal activities of three Tender Hearts Board members …”

Dog Eagle issued the banishment order ex parte, without a hearing, and without an opportunity for Penn to respond to Taken Alive’s allegations. The order provided a hearing would be held within thirty days, “but no such hearing was ever scheduled or held,” wrote Judge Conmy in his recent Opinion.

The banishment order was served on Maggie Penn at work, at the Tender Hearts shelter in Ft. Yates, South Dakota, by BIA police officer Captain John Vettleson, assisted by Sioux County, North Dakota, Sheriff Frank Landeis. The Ft. Yates police department apparently was not consulted.

According to deposition testimony by Sheriff Landeis, BIA police officer Vettleson called and “just asked me if I could come up to the PD for a little bit.” In situations where an arrest was anticipated, mutual backup between the Sheriff’s office and the BIA police was common, testified Landeis. Judge Conmy found that “such cooperation is not unusual and is really a necessity when one considers the vast amount of territory to be covered, the overlapping jurisdictions and the very rural nature of the area.”

“One of the grounds stated for Penn’s banishment is the fact that she brought a complaint against the Tribe for her wrongful termination as tribal prosecutor,” writes Shortridge. “Apparently, Penn was banished for exercising her legal rights in tribal court.

“Faith Taken Alive’s request for banishment also asserts that Penn had a gun …” Sheriff Landeis testified that “a little after noon,” on July 24, 1998, he stood outside the tribal police department, by the back doors, talking to the BIA superintendent at Standing Rock, Larry Bodin, and BIA police officer John Vettleson, “and then John handed me the order. And as I read through it, I at that time seen the part in there about the pistol. I advised them at that time that she didn’t have it, that it was given to me two or three months prior to that and that I’ve had it ever since.” Maggie Penn, concerned that the pistol would be stolen from her home in Selfridge, where there had been a number of burglaries, had given it to the Sheriff for safekeeping. Landeis testified that he and Vettleson “went over to the judge’s office and told him that I’ve had the gun for two or three months already.”

Despite the obviously false allegations in Taken Alive’s complaint, tribal court judge Dog Eagle reportedly told Vettleson to “go ahead and serve” his ex parte order banishing Maggie Penn.

According to deposition testimony, both Landeis and Vettleson knew that Maggie Penn is non-Indian—and thus that she is not under the jurisdiction of the tribal court. Backing each other up, the BIA police officer and the County sheriff got into their respective squad cars, and “both drove down with our vehicles to Tender Hearts.” The BIA police officer served Penn with tribal court judge Dog Eagle’s ex parte order of banishment.

“Maggie had read over the order and … she wanted to fax it to her attorney or get ahold of him. She couldn’t get the fax to go through. She couldn’t get [her attorney] on the phone, and she then asked … what would happen if she didn’t obey the order, and John [Vettleson] advised her that she could be arrested,” according to the sheriff’s testimony.

Maggie Penn, reportedly assuring the police that she would “not cause any trouble,” left the shelter driving her own car. The police escorted her to the Sheriff’s Office, where Landeis ‘dropped his car off at the sheriff’s office,’ and got into Vettleson’s BIA squad car. Riding together, the two law enforcement officers escorted Penn for approximately 17 miles on state highways to Selfridge, North Dakota, where Penn rented a house—on fee-patent land—from white rancher James Blotske. They left Penn to pack up the few belongings she would be able to fit into her car, went to the nearby Cenex station to get gas, then returned to Penn’s residence and “helped her carry boxes out to her vehicle.”

“I believe Maggie had asked what would happen if she would come back to her residence,” Landeis testified, “and at that time John [Vettleson] said that he’d be obligated to arrest her, or his officers would.”

The law enforcement officers gave Penn about 45 minutes to sort through her house full of possessions, pack, and load her car. They helped her catch her cat. Then, Sheriff Landeis and BIA police officer Vettleson, riding together in Vettleson’s BIA patrol car, escorted Maggie Penn northbound on state Highway 6, about 25 miles to the Standing Rock Reservation boundary line. “It must have been about 3:00,” testified Landeis.

Less than two hours after Maggie Penn was notified of tribal court judge Isaac Dog Eagle’s ex parte order, she had been escorted “over the line,” banished, exiled, forced to leave her job, her community, her home, and most of her personal property behind her. The law enforcement officers made a U-turn and returned to the reservation.

Maggie Penn told this writer that she preferred not to speak to the press at this time. Another person who was banished at about the same time as Penn says that such ex parte exile is indeed “cruel and unusual punishment, a wrenching removal from home and community, a kind of ‘social death penalty’.” The details of the banishment are seared into memory, and summarily stripped of community and social identity, cast out, a refugee ‘community’ of one alone, “it takes years to rebuild one’s self, to recover confidence, to find the self-confidence to put down roots again.”

Penn sued. Drawing on her considerable expertise in Indian law, she sued Isaac Dog Eagle officially and personally, the Standing Rock tribe, and a number officials. Constrained by limited federal jurisdiction in the face of tribal sovereignty—despite the federal funding of the Standing Rock tribal court, tribal council, and BIA operations on Standing Rock reservation (according to federal single audits, the Standing Rock tribal council received over $17 million in federal dollars in fiscal year 1998)—Penn based much of her suit on the habeas corpus remedy afforded by the Indian Civil Rights Act. Penn also requested that the federal court find that it had jurisdiction to hear “any cause of action arising out of the issuance and execution of the banishment order.”

The Standing Rock tribal council responded by vacating the banishment order on September 14, 1998, and then arguing that Penn’s federal lawsuit was moot because the banishment order no longer existed.

In an order dated January 27, 1999, US District Court Judge Patrick Conmy wrote that Penn’s “petition for the Writ of Habeas Corpus is now dismissed as having been mooted by the cancellation of the offending order, and the court finds that the balance of the requested relief is beyond the limited jurisdiction of this court under the pleading filed.” Despite the dismissal, Conmy was sharply critical of the actions of the tribal judge, et al., pointedly writing in Margaret A. Penn v. Isaac Dog Eagle, et al., “… I find the conduct towards Ms. Penn outrageous.”

While the federal court’s dismissal of the habeas corpus action was on appeal, Penn settled her federal lawsuit against the tribe and her long-pending lawsuit in tribal court for $125,000. Then, on July 21, 2000, she sued the United States and several other defendants under the Federal Tort Claims Act, USC 1983, and various state law torts. The US and Sioux County moved for summary dismissal “based primarily on theories of absolute and qualified immunity.” In other words, they argued that even if what they had done to Maggie Penn was illegal, she couldn’t do anything about it.

On March 6, 2002—almost four years after Maggie Penn was banished—the US District Court for the District of South Dakota ruled on the motions for summary dismissal. As Patrick Conmy, now Senior District Judge, wrote in his opinion in Margaret A. Penn v. United States of America, et al., Case No. A1-00-93, “the essence” of Penn’s complaint “is that the banishment order should not have been carried out because it clearly violated the law.”

Conmy explained his ruling: “Immunity should extend to good faith actions taken within the jurisdiction of the officer. As a general rule, an officer carrying out a court order is clothed with immunity regardless of the idiocy of the order, but there has to be a limit to this policy. If the Tribal Court had ordered summary execution of Ms. Penn, surely Caption Vettleson and the Sheriff would not have carried out the order, although with the constitutional sanctity of the home of a citizen the action of summary eviction from the home and the County with absolutely no due process ranks right up there with summary execution.

“I do not find the [banishment] Order to be ‘facially valid.’ Ms. Penn is not a tribal member or even an ‘Indian’ for purposes of Tribal Court jurisdiction. The facts recited by the parties indicate that the [tribal] Court had issued other ‘banishment orders’ in the past. A continuation of a clearly unconstitutional course of conduct does not create legitimacy. The Order would be unconstitutional even if directed toward a tribal member. It is inconceivable to me that any law enforcement officer, trained in the constitutional requirements of arrest and search and seizure, could believe than an ex parte order forcing someone from their home and County of residence for a minimum period of 30 days could be valid.

“It may be argued, and probably will be so argued on appeal of this Order, that the denial of immunity will emasculate the effectiveness of law enforcement in that some determination of legitimacy of a court order will be required of the officers. I reject that argument in the belief that some determination of legitimacy is the clear duty of a law enforcement officer. ‘Just following orders’ should not be an excuse when the order is patently unconstitutional.”

Press/ON contacted Maggie Penn’s attorney, Randy Thompson of St. Paul law firm Stapleton, Nolan, MacGregor & Thompson. Thompson explained that the next step is, most likely, appeal by the defendants to the 8th Circuit Court, and quite possibly to the U.S. Supreme Court. If Judge Conmy’s ruling that Ms. Penn has any legal remedy is affirmed on appeal, only then—after years of litigation and reportedly working two jobs to pay her legal fees—will Maggie Penn’s case go to trial.

Stressing that most of his legal practice has nothing to do with Indian law, Thompson consented to an interview.

“From my perspective, this case is a … critical first step in dealing with two issues,” Thompson said.

The first is “the routine denial of fundamental constitutional rights by tribal governments and courts,” and the second issue is “holding the BIA and County Sheriff responsible for enforcing an order that violated constitutional protections and was issued by a court with no jurisdiction over Maggie Penn. …

“She was terrified that there was no one there to protect her rights. The tribe issued the [banishment] order ex parte. The feds and the sheriff enforced it. Who was there to protect her rights?

“The government needs to be concerned” that continuing such lack of accountability, “will essentially bring in a lawless system with no due process, no right to be heard.”

Thompson explained that the responsibility for the Standing Rock tribal court and tribal council’s actions ultimately lay with the US Government.

Larry Bodin, Standing Rock BIA superintendent, had testified in deposition that the tribal court, operated by the tribe under a Public Law 93-638 contract, was “basically, once … the contract is let, now it’s in the tribe’s court. In this case, the tribal court.” According to Bodin, the BIA’s supervision goes little farther than requiring that federal funds be audited: “There’s a once-a-year requirement of an annual audit. If the audit turns out good, we don’t mess with the tribe.”

When asked whether or not his federal agency had “any responsibility in administering this 638 contract to assure that the tribal court was operating in accordance with the Constitution of the United States,” the BIA superintendent explained, “Actually, in the case of Standing Rock Sioux Tribal Court, there was a judicial review done, the results of which I’m not privy to. As a matter of fact, as of today [August 2, 2001], I’m still looking for the results of the review that was taken by D.C.” about four years previously. When asked, “Have you ever received complaints from individuals that the tribal court is not operating properly,” Bodin responded, “Yes.” Upon receiving such complaints, Bodin said, “I check with the tribal prosecutor or the court administrator or the chief judge to see if there’s any validity to the allegations.”

Attorney Randy Thompson told Press/ON, “they keep funding the tribal council, keep funding the BIA.” Is there any concern that they will be held liable? Thompson said, “They knew that they had no jurisdiction over Maggie Penn,” yet the BIA police banished her on an ex parte tribal court order regardless.

Righting wrongs, obtaining legal redress, depends on many factors—and one of them is finding a lawyer willing to take the case. “I think that my practice is unique,” Thompson said, “because virtually everyone with Indian law expertise is either a federal or state attorney, or works for tribal government, and indeed, the largest law firms in the state have now established Indian law departments because of the casino money.” He thought for a moment. “It would certainly be more lucrative for me to use my Indian law expertise to work for tribal government.” But, he continued, “there are so many genuine abuses of Constitutional rights and civil rights occurring—and they are hurting both Indian people and non-Indian people.”

Thompson said that he has been approached “by both non-members and [tribal] members who are looking for anyone they can find, to help them. The tribal establishment is insulated by sovereign immunity, judicial immunity,” as well as by “the policy of …tribal self-government with no bill of rights, no petition for redress, no access to the federal courts, and qualified immunity that protects police.” And, he added, “the ‘other side’ has financial resources generally not available to my clients.”

“I still believe that the idea of justice is a powerful thing,” Thompson said. “I don’t always prevail, but I sometimes prevail against the odds.

“I also believe that the tide of history is on the side of the people that I represent. I mean, ultimately, that constitutional protections will be extended to Indian people on the reservations. … I do not know when, but it will happen.” Either the tribal courts will act to ensure “independent courts, separation of powers, due process and other constitutional protections on their own, or it will get imposed from the outside. I am disappointed in the many talented lawyers who are tribal members, who are cognizant of this problem and who continue to support the same old ‘tribal’ way of doing business, rather than leading a reform movement—because if it is not reformed from within, it is going to be imposed from the outside.

“When tribes hide behind ‘rights of self-government,’ when they deny membership to qualified individuals … when tribal courts don’t provide impartial justice, when the benefits of membership are doled out according to political or personal considerations: then this is a system that is rotten to the core, and will ultimately fail.”

Thompson added, “The federal government has allowed the BIA to become an agency that acts in the best interests of tribal government. I would argue that their trust responsibility is to individual Indian people, not to the tribal government.”

On a more philosophical level, he said that despite the “historical racism” and other bitter legacies of history, “at some point you have to move forward together as a society. Regardless of what’s happened in the past, the most important question is: where do we go from here?

“There are fundamental aspects of democracy that are universal across cultures,” Thompson said, including that “sovereignty resides in the people, not the government, and that the legitimacy of the government is derived from the consent of the governed.”

From Thompson’s perspective, the problems presently confronting Indian people are massive, and the remedies are slim. “I could take ten pro bono cases a day, if I could afford them,” he said. “There is a huge unmet need for legal services in all aspects of this society.”

“If you throw up the defenses of tribal sovereignty, tribal immunity, etc.,” the legal situation on Indian reservations is “much more difficult” than that facing most US citizens. “Just consider the legal action necessary for exhaustion of remedies in tribal courts: you have just doubled your legal costs—to get a decision from a panel which is likely not to be impartial and whose outcome is predicated” on tribal politics.

For example, Thompson explained, consider the dynamics in “Mr. Melby’s case. [See “Grand Portage Band Purchases Marina to Settle Lawsuit: Band pays $1.6M to avoid litigating diminishment issue,” Press/ON, September 7, 2001.] The suit was brought by Dean Deschampe, who was the tribal land administrator. His cousin Norman Deschampe was the tribal chairman, who chose Anita Fineday as the tribal court judge. By the time the case went to the tribal court of appeals, both Dean and Norman were on the tribal council. So, the original plaintiff when the suit started was involved in the process of picking the judges to decide the case. It’s sad, it’s just sad.”

Press/ON asked Randy Thompson about Maggie Penn’s case. “I believe that what was done to Maggie Penn is indefensible.”

Nevertheless, he said, the “qualified immunity defense” raised on behalf of the police officers is not trivial, and “we have to defeat this defense in order to get to trial.” Despite the favorable decision by Judge Conmy, “the next step is likely to be an appeal by the defendants to the 8th Circuit. … I have to say that it is an interesting case” because of the interplay of conflicts it creates between “liberal and conservative judicial philosophies. The liberals are much more likely to be supportive of the unfettered rights of tribal government, for example, sovereignty, sovereign immunity. But, they often feel that the conservatives have gone too far with

the qualified immunity that protects police officers. The conservatives love qualified immunity of police officers, but are much more willing to reign in tribal government when it violates constitutional and civil rights.”

County sheriff has appealed, and the federal defendants have indicated that they will appeal as of April 1.

Cameron Hayden, Assistant US Attorney for the federal defendants, told Press/ON that his official comment is: “The judge’s decision is not final. It is not a final resolution to the action,” and it cannot be cited as precedent. “We will be making an appeal in the 8th Circuit Court of Appeals.