8^th Circuit

JANIS SCHMIDT,                              )           Case No. 06-2806

Appellant                                  )  PETITION FOR REHEARING EN BANC

v.                                                                   )

CECELIA FIRE THUNDER, et al.      )

COMES NOW THE APPELLANT,  Janis Schmidt, hereby requests a Rehearing En Banc  of this court's April 9, 2008 Order affirming judgment in accordance with the Opinion of the district court.

            Pursuant to Fed. R. App. P. 35, en banc consideration by this court is appropriate when it is necessary to maintain uniformity of the court's decisions, or if the proceeding involves a question of exceptional importance.  The court's Order necessitates en banc review for both of these reasons, as discussed below.  It is also possible that the court's Order is the result of the court having overlooked or misapprehended the Appellant’s arguments. 

In support of this petition for rehearing, the attention of this honorable Court is directed to material points of fact and law that were evidently overlooked in its ORDER;  and, to apparent conflicts with other decisions of this Court that were not addressed at all in its OPINION, such as U.S. v. Fritz Arlo Looking Cloud, a case reviewed by the 8^th Circuit in which Justice Nye sat on the panel, and he was also assigned to my 3 cases before the 8^th Circuit.  In support of Appellant’s petition for rehearing en banc, in particular, excellent grounds exist for en banc consideration, for all of the following reasons:

(1)        consideration by the full Court is necessary to secure and maintain overall uniformity of its decisions;

(2)        the instant proceeding involves several highly unusual questions of exceptional national importance;  and,

(3)        the OPINION of April 9, 2008,  conflicts with existing opinions by other courts of appeal, and it substantially affects rules of national application in which there is an overriding need for national uniformity.

ISSUES

I.                   Whether Fraud Upon the Court involving the court can be summarily dismissed without investigation?

II.                Whether the Court applied sovereign immunity incorrectly in violation of the U.S. Constitution?

III.             Whether tribal courts, Courts of Indian Offenses and I.R.A. tribal governments have a legal basis for jurisdiction?

IV.              Whether tribal government and its courts have to obey the U.S. Constitution and it’s laws as mandated b y 42 U.S.C. 1983?

SUMMARY OF FACTS

In September of 2005, Cecelia Fire Thunder closed down the local newspaper in which I printed my stories about Arlo Looking Cloud and Bob Ecoffey.  She ran the publisher out of the Pine Ridge Reservation.  On 10-14-05, I was confronted by 6 armed OST police officers Friday morning,  at the home of member Leroy Waters, with whom I was living.  I was told I had 20 minutes to pack up and get out because Cecelia Fire Thunder, OST President, had made a petition to exclude me.  I was given no prior notice, nor had a hearing taken place before the Tribal Council as prescribed by OST Law and Order Code.  No probable cause existed to warrant my removal.  Judge Marina Fast Horse executed a tribal court order, ordering my immediate removal, dated 10-13-05, in which no hearing had been held.  Fire Thunder said in her exclusion order number (4):   "that on or about March 24, 2004, the Plaintiff was charged and summoned by the

On November 2, I filed a lawsuit against Cecelia Fire Thunder, having first exhausted all tribal remedies, both through tribal court and the Tribal Council, who both refused to give me a hearing.  I  brought a 1983 claim because my Constitutional rights of due process was violated when Fire Thunder refused to grant me a legal hearing before the Tribal Council.  Judge Karen Schreier was assigned to my case.  I was granted to proceed in pauperis. At the same time, I filed an injunction to be allowed back on the reservation, because I was a 14 year resident and employed by Oglala Lakota College and had 5 classes to teach the coming semester.  Judge Schreier waited 4 months, then she denied the TRO, based on sovereign immunity.   I requested Marshal service of summons and complaint, which Judge Schreier denied.  On or about December 15, 2005, I was arrested by OST Police Chief Harold Brewer, without a warrant and without probable cause, and taken to Pine Ridge Jail, a tribal facility.  I was charged with threatening Louise Big Boy, whom I had not seen or had contact with in over a year.  I was body searched by an OST police officer, and touched against my will.  I was incarcerated in solitary confinement over 24 hours.   I was told by Harold Brewer and prosecutor Teresa Two Bulls that if I returned to the reservation, I would be turned over to the FBI, who would then deal with me as a terrorist.  They threatened Leroy Waters, the man I lived with and a member, with a fine and 6 months jail time if he brought me back to his home, the house I helped him build.  I begin writing to amend my Complaint, to add false arrest and false incarceration along with more defendants. 

On December 30^th, 2005, I was attempting to meet someone who had agreed to serve the complaint and summons, at the Billy Mills Hall, where a council meeting was taking place.  A hearing was being held to determine whether or not the Council was going to allow Cecelia Fire Thunder to resume her duties as tribal president.  I had been denied Marshall service, and the only way to deliver summons was to have someone deliver it.  I had been given a ride to Pine Ridge and it was not my intent to move back to the Reservation.  OST police chief 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?  I 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 Rapid City.

I had the original complaint and the amended complaint with me.  At the Federal Courthouse in Rapid City, I added a first amended cause of action including the additional illegal action of defendant Brewer and the Tribal Police of making a false arrest and incarcerating me, a nonmember, in a tribal jail for over 24 hours, without warrant or probable cause.  I hand wrote the additional causes of action to my amended complaint, and filed it on December 30, 2005.  Judge Schreier refused to allow me to make an addition on my amended complaint, in violation of Fed. R. Civ. P. 15 which says I may amend once as a matter of right.  Instead, Judge Schreier called my pro se add-on to Amended Complaint, and 2^nd amendment, which it was not; it was part of the amended complaint. 

I served the complaint and amended complaint by U.S. Mail.  Cecelia Fire Thunder and several Council members, refused to accept the certified summons.  I demanded, in a motion, 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.  

I notified the court and defendants of a change of address, filed in court on 2-6-06.  (Ex A,  Docket #55)  While I was trying to get all the defendants served, the defendants were using another attorney, who was not on file with the court, to write a motion to dismiss.  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.  I asked Judge Schreier to recuse, 5-15-06.  On 5-30-06, Judge Schreier entered an order refusing to recuse.  Federal judge Karen Schreier, had pretextual motives for refusing  to recuse, even though she recused for similar reasons in the U.S. v Arlo. Looking Cloud case  (Exhibit B, Order of Recusal).   Area BIA Director Bob Ecoffey and federal defendant was involved with then U.S. Attorney Karen Schreier, who wrote the Proffer Aggrement,  which was later instrumental in Arlo Looking Cloud being  prosecuted for the murder of Anna Mae/ ( Ex C, Proffer Agreement)     

A motion to dismiss was written by  attorney Mario Gonzalez, who was not registered with the court as defendants’ attorney  (Ex D, Docket )  who sent the Motion to a  Pine Ridge Address. ( Ex E, Certificate of Service) knowing full well I had been excluded from the Reservation.  The clerk of court had my Hay Springs address, and I received other motions from defendants’ attorney at my Hay Springs address.  (Ex F,  Objection to Robert Grey Eagle’s Motion )  In her Order dismissing the Fire Thunder case, Schreier claimed I didn’t respond to the Motion to dismiss.  Both are officers of the court.  Both would have to know that the Motion to Dismiss was accomplished by fraud.  Judge Scheier dismissed my case on a Motion made by an unappeared attorney, who failed to notify the Plaintiff of his Motion to dismiss. 

I filed a timely appeal, wrote an Appeals Brief and Supplemental Brief.  I filed a motion for the 8^th Circuit to investigate Fraud Upon the Court.  (Ex G, Motion to 8^th Circuit to Investigate Fraud Upon the Court).    That the Panel could summarily dismiss my appeal with my request to investigate Fraud Upon the Court, demands that the Panel en Banc decide if errors were made.

        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. 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.

 One can find many examples of Courts assuming jurisdiction when not waiving sovereign immunity would constitute a grave injustice,  Pamela Hood v. Tennessee Student Assistant Corp, “We conclude that Article I, Section 8, of the Constitution gives Congress the power to abrogate states’ sovereign immunity.”  Sovereign immunity is also not a bar to recovery of "back pay" or damages from the tribe and its departments if they engage in unlawful practices.  One other way is if a judge is acting in an administrative function. Other cases are Chisholm v. Georgia 2 u.s. 419 (1793) Kilbourn v. Thompson 103 u.s. 168 (1880) Pollock v. Farmers' Loan and Trust Company 157 u.s. 429 (1895) Gravel v. United States 408 u.s. 606 (1972) Doe v. McMillan 412 u.s. 306 (1973) Butz v. Economou 438 u.s. 478 (1978) Hutchinson v. Proxmire 443 u.s. 111 (1979) Nixon v. Fitzgerald 457 u.s. 731 (1982) Harlow v. Fitzgerald 457 u.s. 800 (1982) Clinton v. Jones 520 u.s. 681 (1997) Alden v. Maine 527 u.s. 706 (1999) Seminole Tribe of Florida v. Florida 1995-41 (1996)

The Fifth Amendment to the U.S. Constitution is  understood as being self-executing and as furnishing plaintiff a right to compensation in a broad spectrum of cases.

The Defendants  thereby violated the First, Fourth, Fifth, and Fourteenth Amendments, the Indian Civil Rights Act, in which this Federal Court has original jurisdiction, statutes 42 U.S.C. 1983 and 28 U.S.C. 1331, in which this Federal Court has original jurisdiction:   whether or not the Judges violated Plaintiff’s civil rights is to be determined by a jury, just like any other defendant who is accused of violating my rights. The orders that issue, if any, are those required by jury findings.

What the Defendants did, violated my Constitutional Rights. I am a victim of civil rights torts, and crimes under 18 USC 241/242. Because of Judicial Immunity, I have no civil damage remedy.  I have no injunctive relief by which to stop Defendants from violating my rights and to render to me the human respect I am  due under the Constitution.

The First Amendment, and Article Six allow me access to Federal court for redress of grievances.  The Seventh Amendment gives me the right to sue for damages.

As a result of Defendants’ wrongful unconstitutional actions, I have been damaged in an amount to be proven at trial.

In addition, I am entitled to punitive relief,   Acting under the color of law, Defendants worked a denial of my rights, privileges, or immunities secured by the United States Constitution or by Federal law and guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, to wit, they sought and got court orders based on their misrepresentations.

I cannot imagine a case more fraught with Constitutional issues than mine.  Therefore, dismissal by Judge Schreier under FRCP 12(b)(1) was entirely inappropriate.  Judge Schreier’s reckless disregard for the U.S. Constitution, my inalienable rights, and flat out ruling outside the Federal Rules of Civil Procedure, plus allowing Fraud Upon the Court, should have been of grave concern to the 8^th Circuit.

Attached are Exhibits as required proof of Fraud Upon the Court.

REMEDIES REQUESTED

All premises having been duly considered, Appellant respectfully requests rehearing en banc of all issues that have arisen to date in the instant appeal, and a thorough published opinion to follow.

Appellant also takes this opportunity respectfully to request leave to deliver oral arguments to the full Court convened en banc.

I request that the Panel not assess me costs and attorney’s fees since I never had my day in court.

Respectfully submitted,

Janis Schmidt

                                    Warwick, ND  58381