Lakota Perspectives
IN THE
SUPREME COURT OF THE UNITED STATES
____________
JANIS SCHMIDT, Petitioner,
Vs.
LARRY BODIN, BIA Supt.,
FRIEDA BREWER MARSHALL, BIA Realty Officer,
ROBERT ECOFFEY, BIA Area Director,
BUREAU OF INDIAN AFFAIRS,
OGLALA SIOUX TRIBE,
GERALD BIG CROW,
CONNIE WHIRLWIND HORSE,
DALE VOCU,
DIDIER DUPONT,
LISA F. COOK, Tribal Judge
ANN APPLE,
OST TRIBAL POLICE,
CAPTAIN MILTAIN BIANIS,
FATHER PETER KLINK,
Respondents
ON PETITION FOR A WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF SOUTH DAKOTA
JANIS SCHMIDT
Pro Se
(701) 294-2106
QUESTION PRESENTED
The full and fair question is, if “The Right of the People to be … secure in their persons, houses, papers and effects, against unreasonable seizures shall not be violated,” (Fourth Amendment) and if, “No person shall be…deprived of life, liberty, or property without Due Process of law…” (Fifth Amendment), and if “All persons born….in the
1. approved unconstitutional acts of a person having her property stolen without compensation, her freedom invaded, and her liberty diminished since she cannot return to the place she lived for no reason;
2. approved government and officers of the court committing fraud upon the court.
3. Can officials and citizens use tribal courts and the judicial system to commit crime and use tribal courts to hide crimes through the 14th Amendment?
i
TABLE OF CONTENTS
Index to Apendices………………………………………………………………………………….ii
Opinions Below……………………………………………………………………………………………… 1
Jurisdiction…………………………………………………………………………………………………… 1
Constitutional and Statutory Provisions Involved…… 1
Statement of the Case…………………………………………………………………………… 2
Reasons for Granting the Writ………………………………………………………20
Conclusion…………………………………………………………………………………………………………35
INDEX TO APPENDICES
APPENDIX A Judgment of U.S. Court of Appeals denying review.
APPENDIX B Order of U.S. District Court
APPENDIX C Judgment of U.S. Court of
Appeals for the 8th Circuit denying Petition for Rehearing
APPENDIX D Evidence Proving Federal Judge Karen Schreier and Andrew Bogue were involved with defendant Robert Ecoffey, and should have recused.
1. Proffer Agreement, written by U.S. Attorney Karen Schreier in the investigation of Arlo Looking Cloud in the murder of Anna Mae Pictou Aquash, in partnership with my defendant, then U.S. Marshal Robert Ecoffey.
2. Order of Recusal, Judge Karen Schreier recuses from Arlo Looking Cloud and John Graham case, March 27, 2003.
ii
3. Judge Andrew Bogue, history of involvement with FBI in the prosecution of AIM Indians
TABLE OF AU
CASES
Binderup v. Pathe Exchange, 263
395-308, 44
Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971)…………………………………………………………………………………..32
Bulloch v.
763 F.2d 1115, 1121 (10th Cir. 1985)…………………………………..31
Duro v. Reina, 459
Estelle v. Gamble, 429 U.S. 97 (1976)……………………………………..32
Jones v. Alfred Mayer Co.,
392 U.S. 409 (1968)…………………………………………………………………………………..32
McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976)………………………………………………………………………………..32
(1981)……………………………………………………………………………………………………………………..33
Oliphant v. Suquamish Indian Tribe,
435
People v. Zaiic,
88 Ill.App.3d.477, 410 N.E.2d.526, (1980…………………………..31
Schmidt v. Big Boy, et al……………………………………………………………………….25
Schmidt v. Bodin, et al…………………………………………………………………………..25
Schmidt v. Fire Thunder, et al………………………………………………………..25
Swafford v. Templeton, 185
493, 494 S, 22 S
U.S. v. Fritz Arlo Looking Cloud…………………………………………………..27
STATUTES AND RULES
28 U.S.C. 1915…………………………………………………………………………………………………….32
28 U.S.C. Section 1254(1)…………………………………………………………………….. 1
28 U.S.C. 1331…………………………………………………………………………………………………..29
42 U.S.C. 1983…………………………………………………………………..26, 27, 28, 29
42 U.S.C. 1985……………………………………………………………………………………………... 29
Indian Civil Rights Act………………………………………………………………..26, 29
U.S. CONSTITUTION
First Amendment………………………………………………………………………………………………..32
Fourth Amendment……………………………………………………………………….. 1, 29, 32
Fifth Amendment……………………………………………………………………………… 2, 29, 32
Seventh Amendment…………………………………………………………………………………………..32
Fourteenth Amendment…………………………………………………………….. 2, 29, 32
OPINIONS BELOW
The ORDER of the United States Court of Appeals for the Eighth Circuit, filed July 15, 2008, denying petition for rehearing enbanc. Unpublished. Case. No. 07-3155 (8th Cir., July 15, 2008).
The ORDER filed April 9, 2008, Affirming the U.S. District Court for the District of South Dakota, for the 8th Circuit. Unpublished. case no. 07-3155 (8TH Cir., R. 47B).
The OPINION AND ORDER of the United States District Court for the District of South Dakota filed August 15, 2007, granting defendants’ motion to dismiss the complaint, 28 USC 1915(e)(2)(B)(i), (CIV 06-5034, 2007)
JURISDICTION
The Order sought to be reviewed was filed July 15, 2008.
The Order denying rehearing was filed April 9, 2008.
This Court has jurisdiction under 28 U.S.C. Section 1254(1).
FEDERAL CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
1. The Fourth Amendment to the United States Constitution reads in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation….”
2. The Fifth Amendment to the United States Constitution reads in relevant part: “No person shall be…deprived of…liberty, or property, without due process of law….”
3. The Fourteenth Amendment to the United States Constitution reads in relevant part: Section. 1. All persons born or naturalized in the
STATEMENT OF THE CASE
A. OVERVIEW
Imagine a person being forcefully taken from her property, put in a jail, and when she is let out told she cannot return to her home to get her belongings. When she finally gets 15 minutes, she discovers defendant living her house, sleeping in her bed, eating her food, claiming her things now belong to him. That is the beginning of my case. And while you imagine that such conduct is wrong and violates the basic precepts of our Constitution as it applies throughout the
It is clear error for the trial court to not only dismiss without a hearing but to call these allegations frivolous. These as summarized are breaches of our most fundamental rights.
B. Summary of Facts
In 1996, a friend of 5 years, Louise Big Boy, offered me a land upon which I could live and which she allegedly owned. What Louise did not tell me was that she didn’t own the land, but yet was fraudulently leasing to area ranchers, who in turn, were illegally subleasing. Apparently concerned that I would discover the fraud, in 2002, Louise asked me to move, without explanation and no discussions, after I had invested thousands of dollars in building a 2 story house.
I contacted the BIA who told me that Louise did not own the land on which my house was located, but that it was owned by
On August, 2002, an attorney for Catholic Church sent me a letter stating that the Church neither sold or leased their land. Louise and ranchers Whirlwind Horse and Vocu wrote a letter to the BIA Realty Officer, demanding that I be removed from the land by the BIA. Knowing that Louise Big Boy did not own any land on 3 Mile Creek,[1] BIA Supt Larry Bodin, nevertheless sent an official BIA eviction letter, dated October 20, 2003, in which he stated I was illegally trespassing on member Louise Big Boy’s land, that I had 30 days to vacate, even though he knew Louise did not own the land. The BIA’s letter provided me no appeal rights, and no hearing. I was not given any opportunity to be heard.
The deeds prove that 2 acres were owned by the Catholic Church as deeded land, not tribal land, thus making the BIA eviction letter at best, wrongly mistaken, and, at worst, fraudulent. I responded with 2 letters in response to Mr. Bodin’s eviction letter, within the 30 day time limit, but I never received a reply or hearing.
On
On May 5, 2004, Bodin wrote a letter to Gerald Big Crow, (Ex E) who was working for Oglala Sioux Tribe, in which Bodin acknowledged that Father Peter Klink, representing Red Cloud Indian School, had sold the 2 acres of Church land (and Plaintiff's house) to Oglala Sioux Tribe for $1.00, on a Quit Claim Deed, dated April 28, 2004, six months after the BIA eviction letter was sent to me. Big Crow, with the help of Bodin and the Oglala Sioux Tribe, then assigned ownership of the 2 acres to Louise Big Boy, sometime in May of 2004, seven months after BIA Supt. Bodin had sent the BIA eviction letter.
On May 28, 2004, the tribal police, Louise Big Boy and Robert Montileaux, and about 20 other people, came into my yard, without warrant or court order, and attempted to remove me by force. On
On
A couple of hours later, I was released to the Sheriff James Daggot of
On
While I was sitting in jail, all my belongings were stolen. Finally I was bonded out at a cost of $250, and I was released from Fall River County Jail on June 3, 2004. I was given notice to appear in Fall River Courthouse in
On June 4, I received a copy of Cook's court order, faxed to me by an attorney who had obtained a copy of it. Judge Cook failed to explain how she assumed jurisdiction over a BIA matter. The fact that Bodin wrote a BIA letter of trespass indicates that jurisdiction lay with the BIA and not judge Cook. In addition to serious jurisdictional and lawful questions about this bogus document, I was never served a copy of the Court Order, further proof that the whole eviction procedure was fraudulent, all without even a hint of due process.
I called the Sheriff Daggot who repeatedly made attempts to accompany me to my house so I could retrieve my belongings, including diabetic medicines, but was prevented from doing so by the fraudulent order of Judge Cook and which was physically carried out by Captain Milton Bianis. After repeated attempts, I was finally allowed into my house under strict supervision of Sheriff Daggot, and was allowed 15 minutes to get a few personal items. Capt. Miltain Bianis told me the tribal police pried the locks off my doors, and allowed Louise Big Boy and Robert Montileaux into my house. Robert was living in my house, sleeping in my bed, and eating all the food I had. Capt. Bianis said they were under Cook’s orders to do this. However, I never saw a copy of these orders, nor was any hearing held. I was not shown a copy of any evictions policies or law.
On
On June 28th, I received a 2nd court order from the suspended Judge Lisa Cook, who was by this time suspended, delivered to me by Sheriff Daggot, instead of the tribal police. The order issued without hearing, and permitted me only 4 days to get my belongings, of which two days had already passed. I was to be under strict supervision of the police.
On September 9th, I attempted to get my record from Sheriff Terrall at Hot Springs Jail, who refused to turn over my records.
I filed a lawsuit for damages and constitutional violations in Federal Court in May, 2005. At this time I was staying with Mr. Leroy Waters, my common law husband.
On
I asked Officer Martinez for a hearing before the Tribal Council, according to the Exclusion Order was my right to do. No hearing was held for me. I entered a Motion to Vacate Exclusion Order in Tribal Court and requested a hearing from OST Tribal Council on October 19th. No hearing was scheduled.
I returned to my home with Leroy Waters on the Reservation, for the following reasons:
(a) I was homeless and destitute,
(b) I had exhausted all remedies to have the illegal exclusion order voided,
(c) I knew I had done nothing wrong,
(d) I was under contract to teach classes at
(e) I missed my life with my common law husband, Leroy Water; and he missed me,
(f) All my possessions were at Leroy’s house.
On November 1, as I was having a cook sale in the Sioux Nation parking lot, Chief of Police Harold Brewer, without warrant or probable cause, forced me off the Reservation, without warrant, court order or probably cause. Two employees from Black Hills Peoples News attempted to follow, but were stopped by the OST Police and told to turn back or be arrested. Leroy Waters brought me back to our home, which is his right as a member, since I am neither a felon, nor had I committed any criminal acts or broke the law.
I tried to amend my Big Boy Complaint in order to add recent events but Judge Schreier denied my motion. On November 2, I filed a 1983 action against Cecelia Fire Thunder and others, claiming First, Fourth, Fifth, and Fourteen Amendment violations. Judge Karen Schreier was assigned to my case.
Harold Brewer continued to hound me, setting up surveillance. A fire was started right across the creek from Leroy’s house in November, 2005. The police kept driving in and out of Leroy’s yard. One female police knocked on the door and wanted to know who all lived there, which was strange considering there was a fire burning across the creek. The Tribe shut off Leroy’s electricity so I couldn’t use my computer. Later, on or about November, 2005, the police were driving around east of Leroy’s house at night, shining spotlights on the house. When I went outside to see what was going on they followed me with a spotlight.
On
I left for
I wrote an amended cause of action to include the additional illegal action of defendant Brewer and the Tribal Police. Marshal service was denied by federal Judge Karen Schreier, which made the service of summons and complaint difficult, if not impossible. I had no money to serve by mail.
On December 30th, 2005, I entered Pine Ridge Reservation to meet with someone who had agreed to serve the complaint and summons at the Billy Mills Hall, where a council meeting where a hearing was in progress to determine whether or not the Council was going to allow Cecelia Fire Thunder to resume her duties as tribal president. OST police chief Harold Brewer, met me inside the door of the Billy Mills Hall, and attempted to arrest me. He ignored my plea that I was only there to deliver some legal papers. He had no warrant, nor did he have any probable cause to arrest me. I escaped, and moved quickly inside to the front where the Council members were assembled. Harold Brewer was right behind me, determined to arrest me. When he started to push me toward the door, I screamed for help, that I was being falsely arrested. The Tribal Council sat there and did absolutely nothing. I was prevented from delivering complaint and summons to someone. I was escorted out the back door by about 8 police officers. Once outside, Brewer told me to get in the police car because he was arresting me. I asked what charge? He wouldn’t say. I refused to get in the car. I was surrounded by 10 or more armed police, with 4 police cars. The police pushed me into the police car against me will, for an unstated reason, and took me to the Pine Ridge Jail. Brewer ordered the jailer to lock me up. The jailor asked what I was charged with. Brewer couldn’t say. The jailor refused to lock me up. Brewer forced me to wait inside the jail for about an hour while he went to see, presumably, Cecelia Fire Thunder, for further instructions. Instead of releasing me, he put me in a police car against my will and we then went to the Casino. My friend followed in her car.
I was released, and we headed to
Cecelia Fire Thunder and several Council members, refused to accept the certified summons. I demanded, in a motion according to Rule 4, that Fire Thunder and council members be served by Marshals, which was so ordered. Fire Thunder moved to quash to motion to serve the summons because she said she had received two complaints, both the original and the amended complaint, insisting that she was only going to answer to the original complaint, in defiance of FRCP 15. Fire Thunder never answered, nor did Judge Schreier rule on her motion.
Judge Schreier denied my TRO, without a hearing, claiming the defendants had sovereign immunity, which they did not because they had acted outside of their jurisdiction and failed to follow the law, even their own code.
C. Procedural History
On May 4, 2006, I filed this suit against Larry Bodin, BIA Supt.; Frieda Brewer Marshall, BIA Realty Officer; Robert Ecoffey, BIA Area Director; Bureau of Indian Affairs, Oglala Sioux Tribe, Gerald Big Crow, Connie Whirlwind Horse, Dale Vocu, Didier Dupont, Tribal Judge Lisa F. Cook, Ann Apple, tribal prosecutor; OST Tribal Police, Captain Miltain Bianis, Red Cloud Indian School, and Father Peter Klink. I filed an affidavit to proceed in forma pauperis which was granted by the Court (Schrier, Judge). The case was subsequently reassigned to Judge Andrew Bogue, who granted my Motion for Marshal Service of Summons. which included Larry Bodin.
The Tribal defendants moved to dismiss. Former Tribal judge, Lisa Cook, filed an amended answer and motion to dismiss, in which she contradicted her attorney, stating that she had never been suspended. I thereafter filed evidence of Tribal Council minutes which proved Lisa Cook was suspended and censured, and argued Fraud Upon the Court.
I moved to amend to add the defendents Russell, Daggot, and Terrall, April 10, 2007. The Court denied my motion to join and my motion to add defendants.
After several delays, on May 23, 2007, the federal defendants finally made their Response by moving to dismiss under FRCP 12(b)(1), 12(b)(6), and 28 U.S.C. 1915, n which they submitted Affidavits of evidence for dismissal. In their arguments for dismissal, the government argued that that my whole claim was invalid and frivolous because BIA Superintendent Larry Bodin had not been served a Complaint and Summons. Yet the record shows that I was granted in forma pauperis standing, andgranted permission for Marshals to serve the Summons. All summons were served, except for the summons upon Larry Bodin, who they said could not be located.
I hired a private detective who quickly located Bodin. I provided court with Mailing information. and moved the Court a second time, to order the Marshals to serve Bodin. Marshals again failed and/or refused to serve Summons. The Trial court refused to order the Marshals to serve the Summons. The Government objected to my motion to have Marshals serve Bodin, and because he wasn’t served, Government claimed my whole case was invalid.
Because the Defendants offered evidence outside the pleadings, I offered an Affidavit of evidence, submitting 36 Exhibits that prove my case. On August 15, the Trial court dismissed my case, citing 28 U.S.C. 1915(e)(2), and erroneously ruling I had brought a frivolous and malicious claim for the purpose of harassing the defendants.
I timely appealed the decision on August 22, 2007. I applied to 8th Circuit for IFP, which was granted, but not before I paid the $450 filing fee. Eighth circuit never issued a briefing schedule and my case was dismissed before I was even permitted to file a brief.
REASONS FOR GRANTING THE PETITION
SUMMARY OF ARGUMENT
By this writ of certiorari, I am trying to have this Court reverse the lower courts and thereby uphold the most basic rights guaranteed to me and every other citizen under the United States Constitution and federal statutes. Through a conspiracy between public and private parties I was deprived of my property when I was illegally evicted from property at which I had built a home and kept all my personal belongings. Not only was I evicted, but a federal agency later granted ownership to the person who had me evicted even though she did not own the property when I was forcibly and illegally evicted. As I have alleged the facts, I clearly state a claim which must be examined by the Courts.
Again, through a conspiracy between public and private entities, I was deprived of my liberty without due process when I was illegally jailed in the
Finally, to add insult to injury, without any form of process, let alone due process, I was illegally evicted from the reservation. Putting aside the forcible nature of being dragged off the reservation by six tribal police, the illegal eviction violated the due process clause and the Indian Civil Rights Act, among other statutes and constitutional provisions.
This case presents issues of great public import, particularly with respect to the preservation of our individual rights. Putting aside that the Court applied an inappropriate standard concerning a motion to dismiss by actually deciding the facts and then dismissing my case as frivolous, the reality is that the facts as alleged and as will be found establish an egregious attack on our individual rights. If public and private entities are permitted to conspire to deprive a person, such as me, of their property without compensation, and to deprive a person, such as me, of liberty without any process or basis by illegally throwing me off a reservation and illegally jailing me, then there is little government cannot do to any individual without process. The facts are that I was deprived of the basic rights I am supposedly guaranteed by being a citizen of this Country. To ignore what occurred in my case, and to let stand what occurred to me, will encourage those in the position of these defendants to believe they can violate individual rights with impunity. It is time for this Court to put a stop to the lawlessness which occurs on Indian Reservations and to uphold the rights I and others are guaranteed.
First, I was wrongfully evicted by the Bureau of Indian Affairs (“BIA”) from property I was permitted to lease because the alleged owner, Louise Big Boy, purportedly owned the land. Fact is, however, that Louise Big Boy did not own the land. Thus, to justify the wrongful eviction, the BIA, the catholic church, and the
The Tribal order, by Judge Lisa Cook, was invalid and then a second order appeared years later which was forged, submitted to district court as evidence on summary judgment and constituted a fraud on the court. The violations did not stop there. I was then taken into custody and brought to the Fall River County Jail where I was held on charges which were never revealed to me. After being bailed out, I never was provided nor did I ever discover any basis for the Fall River County Sheriff to hold me. At no time during this litigation or at any other time was I provided with a legitimate basis for being wrongfully deprived of my liberty.
When I returned to the reservation and as a result of my speaking out about the way I was treated, I was ordered to be removed from the reservation without any hearing or explanation. Indeed, I was taken forcefully from the house of my common law husband by several tribal police without any warrant or legal basis and escorted off the reservation. I was threatened with jail should I ever return.
One reading my facts would wonder if this was real or simply a Kafkaesque novel. Unfortunately, for me, this was real, and I suffered grievous harm by the wrongful acts which deprived me of my property and liberty rights as guaranteed under the constitution and federal laws. Yet, when I looked to the Courts, the bastion of freedom, to uphold my rights, the lower court not only upheld the egregious violation of my rights, but dismissed my complaint out of hand and further ruled it was frivolous. Nothing has saddened me more in my life than the realization that our individual rights have become so “frivolous” in the eyes of our courts, that I endured treatment that no law abiding citizen should ever endure, only to be told that my life, liberty and property are not protected.
I ask only that this Court review what occurred to me, and consider whether, viewing the facts in my favor, I stated a claim under our federal laws and constitution. I submit that my case is extremely important because, if what happened to me can occur with impunity, then the cornerstones of our country have certainly been removed and the crumbling of society has begun.
A. The Courts Suppressed the Facts, Knowingly Accepted False Documents, Denied Me Due Process, Refused to Investigate For Fraud, Which Caused My Case to Be Dismissed.
The 8th Circuit Court of Appeals received 3 cases on appeal, Schmidt v. Fire Thunder, et al., Schmidt v. Big Boy, et al., (actually I had to make 2 appeals within Big Boy in order to appeal all decisions), and Schmidt v. Bodin, et al. I filed Fraud upon the Court with the first case, Fire Thunder. Big Boy was appealed, and I filed Fraud Upon the Court with Affidavit of Evidence definitely proving not only the true of my case, but Fraud Upon the Court. Bodin was dismissed as frivolous, appeal denied because of my IFP status. Inherent in the Bodin case was Fraud Upon the Court, with 36 exhibits. I paid the filing fee. 8th Circuit failed to schedule briefing. The 8th Circuit consolidated all 3 cases, failed to investigate fraud, and dismissed each case separately, without opinion, without any investigation into the documented fraud, without allowing me to brief the Bodin case, another violation of my 14th Amendment right to due process. If the 2nd highest court can rubberstamp fraud, then our judicial system is no longer serving the people, just at the banking system is no longer serving the people.
This case was dismissed on a false premise in which the court summarized that this was a land dispute. I brought the action to court because I was illegally and fraudulently evicted and excluded from the Pine Ridge Reservation. I was arrested without a Warrant, and since no Order had issued, the actions of Judge Cook and the Defendants were illegal. A reasonable person would have and should have questioned the advisability of arresting and jailing the Plaintiff without a Warrant, without probable cause, and without jurisdiction. The malicious seizure of documents, papers, property, effects, and person, without a hearing, without a Warrant, violated my right to be secure in my person and property, papers, and effects under the Fourth Amendment of the U.S. Constitution, and the Indian Civil Rights Act, sec. 2, and 42 U.S.C. 1983. An officer of a court can seize a person or thing only pursuant to a specific seizure order of a justice of that court, which must identify or describe the persons or things to be seized with maximum possible specificity and necessarily with sufficient detail to make error unlikely, and must specify a facility (a jail, a courthouse, a storage facility, etc.) to which they are to be delivered without unnecessary delay, which facility must be controlled by that court. Transfer of the persons or things to the custody of a trial court is subsequent, and upon the request of the trial court, must be arranged and performed without unnecessary delay. None of this was done in my case.
I brought a claim under 42 U.S.C 1983, to federal court because defendants, in a conspiracy, did deprive me of my constitutional rights and property. The judge assigned to my case, Karen Schreier, was deeply involved with federal defendant, Bob Ecoffey, but refused to recuse, (Ex C, Proffer Agreement) although she had recused herself from the high profile U.S. v. Arlo Looking Cloud case because of the same involvement with the same federal officer, who witnessed for the government. (Exhibit B, Order of Recusal)
The court dismissed my civil action against defendants, by accepting defendants “facts” as true, and not my facts. The Eighth Circuit affirmed the trial court’s decision, thus affirming Fraud Upon the Court. All the way through, my facts were never accepted as being true. The Panel’s decision did not include any reasons for their opinion, which would lead a prudent person to believe they did not read the briefs or study the evidence when they summarily affirmed the district court decision when I had presented a prima facie 1983 action.
The trial court was able destroy my 1983 claims by dismissing essential parties, because it has absolute power to ignore my facts, substitute facts, thereby justifying the dismissal. I am submitting the facts to the Supreme, the same evidence that I submitted to the trial court.
As a result of Defendants' concerted unlawful and malicious conduct, I was both deprived of my rights to equal protection of all the laws and to due process of law, of my right to my property, my address and phone number, potential earnings from art business, art studio, orchard and garden, reputation, loss of equity and destroyed credit, and the due course of justice was impeded, in violation of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. sec. 1983, and 1985, and the District Court was obligated to Plaintiff to at least hear my Complaint because this Court has jurisdiction over all issues concerning the U.S. Constitution; 28 U.S.C. 1331.
By the actions described about, the malicious use of documents and illegal court orders without a hearing, the administrative falsification of documents to be used as evidence against Plaintiff without a hearing, by seizing her property without just compensation, Defendants violated Plaintiff’s right to liberty and property under the Due Process Clause of the Fifth Amendment of the U.S. Constitution, the Indian Civil Rights Act, sec. 8, and 42 U.S.C. 1983.
My case is predicated on officials committing fraud, then using my eviction as a pretextual reason to disguise their fraudulent intentions. The 8th Circuit has affirmed a fraudulent decision, which is why I am asking the Supreme Court to review my case.
B. Tribal Sovereignty and Judicial Immunity Is Being Abused By the Courts Allowing Officers of the Court to Commit and Hide Crimes and then Blame Indians and Non-Indians Who Try To Secure Basic Rights for Indians, Who Then Suffer Loss of Quality of Life, Property, and
If left standing, the lower courts’ ruling that Indian Tribes are sovereigns immune from a suit alleging violations of the U.S. Constitution, would result in a very troubling decision, in a society whose people already have good reason to lack confidence in the government’s decisions. If not corrected, law abiding citizens, such as me, can be arrested and jailed illegally and have their personal and real property property seized without any recourse. However, the law is not suppose to permit that. Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted."
A judge is an officer of the court, as well as are all attorneys. A judge is not the court. People v. Zaiic, 88 Ill.App.3d.477, 410 N.E.2d.526, (1980. Although I had submitted evidence proving that the Exclusion Order had been illegally executed, and not based on tribal law, Schreier dismissed my case by granting defendants sovereign immunity. As judge, Scheier must know that unlawful and unconstitutional acts waive all immunity. Both tribal Judge Cook and Judge Fast Horse issued orders with dire consequences, without jurisdiction, without hearings. There can be nothing more unconstitutional than that. Tribal government officials and defendants acted beyond the scope of their authority are not immune from claims for damages. All defendants claim sovereign and judicial immunity from the Constitution and its mandate to protect the rights of Citizens, knowing they could violate my constitutional rights with impunity because of sovereign immunity and never be held accountable, which is what Judge Bogue insured, when he wrongfully dismissed my case under the 28 U.S.C. 1915 statute, as frivolous and malicious, because it couldn’t be dismissed any other way. If my case was ever allowed to be heard by a jury, officials would be held accountable for their actions. Is this what the Constitution says in the First, Fourth, Fifth, Seventh, and Fourteenth Amendments?
Close questions of federal law, including claims filed pursuant to 42 U.S.C. 1983, have on a number of occasions arisen on motions to dismiss for failure to state a claim, and have been substantial enough to warrant this Court’s granting review, under its certiorari jurisdiction, to resolve them. See, e. g., Estelle v. Gamble, 429 U.S. 97 (1976); McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); Jones v. Alfred Mayer Co., 392 U.S. 409 (1968). It can hardly be said that the substantial legal claims raised in these cases were so defective that they should never have been brought at the outset. To term these claims frivolous [Page 490 U.S. 319, 329] is to distort measurably the meaning of frivolousness both in common and legal parlance.
For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief can be granted is a question of law and just as issues of fact, it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. Swafford v. Templeton, 185
Without denying Indian tribes their right to govern; the courts must guarantee to all its citizens, including its Indian citizens, that the U.S. Constitution is the supreme law of the land. To do otherwise, in these very troubled economic times, is to state there is no access to justice for the people, which is wrong, and invites chaos in the justice system. My case would give the Court an opportunity to restore some sense of confidence in
CONCLUSION
For the above reasons, I request that this Court grant my request for a writ of certiorari and reverse the decision of the Eighth circuit. Should my request be granted and the decision found in my favor, I would request a federal judge from outside the District of South Dakota preside over my case, a judge who has proven himself to be fair in dealing with Indians, Judge Royce Lamberth from the
Submitted this 11th day of October.
Respectfully submitted,
Janis Schmidt
[1] BIA has jurisdiction over all land, leasing, and trespass issues on Indian reservations, as stated in C.F.R. 166:800.
