FFJ Brief 1 & 2

See below for second brief

---

BRIEF IN SUPPORT OF MAGISTRATE'S ORIGINAL ORDER REQUIRING THAT RECORDS BE RETURNED TO THE OLD TRIBAL CENTER CURRENTLY IN FIGHT FOR JUSTICE'S CONTROL

Dakota begins his quest (to have the federal government accomplish what he failed to do by using violence and intimidation) with a question-begging argument. He asserts that persons in unlawful possession of property lack standing to object to its disposition. But that, of course, is the very issue that a court would have to determine. Before a court could make such a determination it would first have to have jurisdiction. As will be demonstrated, this court lacks such jurisdiction under the abstention and exhaustion rule of National Farmers Union Ins. Co v. Crow Tribe, 471 U.S. 845 (1985) as further elucidated in a closely analogous case to the one at bar, U.S. v. Tsosie, F.3d (August 9, 1996, 10th Cir., No. 94-2111). It cannot make any determination of the lawfulness of FFJ's possession and must return the records to them. Thus, Dakota's reliance on a fallacious premise dooms his argument.

Since personal property, not real estate, is involved in this intra-tribal dispute, it is dubious whether U.S. Courts have any jurisdiction whatsoever at any point over the property in question. But that question aside, what is beyond question is that this court must abstain and require exhaustion of tribal remedies before it can even determine whether it has subject matter jurisdiction.

One aspect of tribal sovereignty concerns its power in the first instance to determine tribal jurisdiction. Thus, a federal court must defer to a tribal court and must abstain until tribal court remedies are exhausted. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985). This includes all tribal appellate procedures. Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1989). This principle of presumptive jurisdiction in the tribal court which must be fully exhausted before a federal court can even begin to look at the question of federal court jurisdiction, was applied by the Tenth Circuit Court of Appeals in U.S. v. Tsosie , F.3d (10th Cir., August 9, 1996, No. 94-2111). Tsosie involved a dispute between an allottee and a person claiming aboriginal grazing rights in Navaho treaty land. The United States brought a trespass action in federal district court on behalf of the allottee and against Mrs. Tsosie, who claimed aboriginal grazing rights in the property. The district court dismissed the action citing the tribal exhaustion doctrine and the Tenth Circuit affirmed saying:

The tribal court exhaustion rule "provides that `as a matter of comity, a federal court should not exercise jurisdiction over cases arising under its federal question or diversity jurisdiction, if those cases are also subject to tribal jurisdiction, until the parties have exhausted their tribal remedies.'" Id. (quoting Tillett v. Lujan, 931 F.2d 636, 640 (10th Cir. 1991)). The rule was created "because of Congress's `strong interest in promoting tribal sovereignty.'" Id. (citing Moffett, 947 F.2d at 444). Where comity concerns are present, "[j]urisdiction presumptively lies in the tribal court . . . unless Congress has expressly limited that jurisdiction." Moffett, 947 F.2d at 444. Moreover, the exhaustion rule does not require an action to be pending in tribal court. Id.; cf. United States v. Bank of New York & Trust Co., 296 U.S. 463, 480 (1936) ("Even where the District Court has acquired jurisdiction prior to state proceedings, the character and adequacy of the latter proceedings . . . may require in the proper exercise of the discretion of the federal court that jurisdiction should be relinquished in favor of state administration.").

The Court went on to say:

Because the dispute here is between two Navajo Indians and involves land located in Navajo Indian country, we believe this case is essentially 'a reservation affair' in which in which exhaustion of a tribal court remedy almost always required. (citation omitted).

Similarly, the dispute between the Dakota faction claiming to be the tribal government and Fight For Justice is wholly a reservation affair. It pits one group of enrolled Keweenaw Bay tribal members against another. The dispute involves, among other things tribal law, the question of the legitimacy of the so-called tribal government, and tribal property. It, therefore, is "essentially 'a reservation affair'."

Thus far the Dakota regime has availed itself solely of violent self-help remedies. It has not sought any tribal court action in this matter. Indeed, when members of the political opposition brought suit in tribal court over Dakota's high-handed actions the Dakota regime refused to abide by the Judge's express ruling. In the case of Rose Edwards, et al. v. Bradley Dakota, case No. C-95-6&7 Judge Thorne expressly held that:

The current chief judge is confirmed as a 'hold over' chief judge, including actions taken since the December election. A new election must be held within 30 days. In that special election the candidates and the electors shall be taken from the same list as was effective for the 1994 election. Decision, 27 June 1995, at 9-10 (emphasis added)

The Dakota regime did not appeal this ruling; thus, it became law. Yet they simply ignored the ruling and made various excuses for ignoring tribal law favorable to the dissidents. The hold-over judge in this instance was Bradley Dakota, Fred Dakota's son. Thus, Dakota used raw political power to subvert the law and place his son and supporter illegally in the Chief judge's position. Moreover, because Fred Dakota's faction engineered an illegal take-over of the tribal government (which proposition we stand ready to prove in tribal court action) FFJ has a ready defense on the merits to Dakota's claimed superior right to the records in question. But that evidence must be presented to a properly constituted tribal court, not this court.

The Court can take judicial notice of the fact that Dakota refused to even consider Senator Levin and Congressman Stupak's proposal that his differences with Fight For Justice be arbitrated. Peaceful solutions are not in Dakota's world-view. Dakota and his faction are above the law and therefore come to this court with unclean hands in asking the court to do what it lacks jurisdiction to do in any event. Under the Rule of National Farmers Union and as further explained in Tsosie, this court must abstain in the matter and require Dakota and his faction to pursue his remedy in tribal court. Requiring Dakota to pursue a peaceful remedy in tribal court, rather than violent self-help, is thus consonant with both the law and justice.

CONCLUSION

This court lacks jurisdiction to make an initial determination of the lawfulness of Fight For Justice's possession of these documents. It should abstain from any action pending exhaustion of tribal remedies and should return the records from whence they came.

---

FFJ'S BRIEF IN OPPOSITION TO IDENTIFYING ITS MEMBERSHIP AS INDIVIDUAL CLIENTELE

I. COMPELLED DISCLOSURE OF FIGHT FOR JUSTICE'S MEMBERSHIP IS NOT PERMITTED UNDER THE RULE OF NAACP v. ALABAMA AND WOULD VIOLATE FIRST AMENDMENT RIGHT OF ASSOCIATION PRINCIPLES

Dakota seeks identification of Fight For Justice members as individual clients of attorney Mark Wisti. We object on the ground that such is, as demonstrated below, improper.

Fight For Justice (FFJ) is an unincorporated, loose knit organization that enjoys the assistance and loyalty of 60-70% of the tribe. It, however, does not maintain a membership list, charges no dues, and does not have a structure whereby it could easily ascertain all of its supporters. Under the present circumstances of intimidation and fear existing on the KBIC reservation (as demonstrated below) it would be foolish for this group to keep or create a detailed membership list. As a persecuted group it must exercise caution with its supporters. FFJ has a number of lawyers, including Mark Wisti, who represent it as a group but none of these lawyers would be able to identify all of the membership of Fight For Justice. The court can take judicial notice of the fact that attorneys often represent groups without being able to identify all of the group's members.

However, impossibility is not the primary objection (although the demand is clearly impossible under these circumstances). Even if FFJ had a clearly defined list of members and supporters disclosure would be improper under the rule of N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958) and Bates v. Little Rock, 361 U.S. 516 (1960) prohibiting compelled disclosure of an organization's membership list. Bates, 361 U.S. at 522-523 summarizes the rule and its rationale:

Like freedom of speech and a free press, the right of peaceable assembly was considered by the Framers of our Constitution to lie at the foundation of a government based upon the consent of an informed citizenry --a government dedicated to the establishment of justice and the preservation of liberty. U.S. Const., Amend. I. And it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States. De Jonge v. Oregon, 299 U.S. 353, 364; N. A. A. C. P. v. Alabama, 357 U.S. 449, 460.

Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference. Grosjean v. American Press Co., 297 U.S. 233; Murdock v. Pennsylvania, 319 U.S. 105; American Communications Assn. v. Douds, 339 U.S. 382, 402; N. A. A. C. P. v. Alabama, supra; Smith v. California, 361 U.S. 147. "It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association. . . . This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." N. A. A. C. P. v. Alabama, 357 U.S., at 462. (emphasis added).

Any "governmental action which may have the effect of curtailing the freedom to associate is subject of the closest scrutiny" FEC v. National Right To Work Committee, 459 U.S. 197, 207 (1982) citing: NAACP v. Alabama, supra. See also, Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 (1982)(strict scrutiny test not met - disclosure provisions of state law cannot be constitutionally applied to Socialist Workers Party a minor political party that historically has been the object of harassment by Government officials and private parties).

II. DAKOTA'S PURPOSE IN PROCURING THE NAMES OF FIGHT FOR JUSTICE MEMBERS IS TO INTIMIDATE, HARASS, AND OPPRESS HIS POLITICAL OPPOSITION

Fred Dakota has consistently used the governmental arms of his regime to intimidate, harass, and oppress his political opposition, the members of Fight For Justice. The affidavit of Judith C. Smith, provides but one example among many that we could provide the court with in an evidentiary hearing of Dakota's use of the Tribal Court to intimidate, harass and oppress. Affidavit of Judth C. Smith is attached hereto marked "Exhibit A."

Fred Dakota also fires tribal employees for their political activities. See letter dated October 5, 1995 from Frederick Dakota, Tribal Chairman/Chief Executive Officer to Linda Rabitaille attached hereto marked "Exhibit B" stating: "The reason for discharge is due to political activity." And see Ms. Rabitaille's performance review attached hereto marked "Exhibit C" which confirms that she was not discharged for cause.

The Court can take judicial notice (or we can prove in an evidentiary hearing) Fred Dakota's many attempts to resort to violence against his political opposition. He has been quoted publicly as saying: "if it takes a body, there will be a body" and "the only thing that is negotiable is how long the rope is." June 1, 1996, Marquette Mining Journal, P. 3A).

Dakota's own personal lawyer, Mark Stevens, attempted to wrest control and planning of a raid on the Holy Name of Jesus Church and was prepared to personally lead the raid in a highly dubious attempt to use violence to gain records. See "Confidential Memo" dated April 16, 1996 from Joseph P. O'Leary to the Tribal Council attached hereto marked "Exhibit D." One can speculate about the reasons Mr. Stevens (who is Dakota's personal criminal defense attorney and who is not representing the tribe) would have for wanting to get the first look at any potentially incriminating records that might have been found.

Dakota's attempts to crush his political opposition is beyond cavil. The entire dispute with Fight For Justice began when the Dakota faction of the tribal council disenfranchised 202 voters and overturned an election in which his faction lost four council seats and his son tied for the Chief Judgeship. Even the normally taciturn bureaucrat, Ann Bolton, Bureau of Indian Affairs Supervisor, remarked in The Daily Mining Gazette dated 3 July 1996 that: "the whole council agreed on everyone accepted for enrollment, and certainly, the council was not voting on people it wasn't familiar with." Superintendent Bolton went on to remark that: "[t]he timing [of the nullification of the election and the disenfranchisement of voters] makes it unusually strange." That Fred Dakota manipulated the result of this election for his own political benefit constitutes an irresistible deduction from the facts.

Fred Dakota will manipulate the political process to maintain power and will use threats, harassment, intimidation, and even violence to suppress his political opposition. We stand ready to prove this and more in the event that an evidentiary hearing is called for.

The real reason that Dakota wants the names of Fight For Justice members is to use the list to intimidate, harass, and oppress. He uses the governmental arms of his regime, including its court system and police, to accomplish this end. See affidavits of Warren Christian Swartz, Jr., Donald Thomas Shalifoe, Sr., and Patrick Lee LaPoint marked collectively "Exhibit E." The tribal attorney has drafted police reports in cases involving FFJ members and then directed police officers lacking knowledge of the contents thereof to sign them. See transcript of excerpts from Martin Curtis' bond hearing attached hereto marked "Exhibit F." Such gross abuse of power and intimidation of political rivals shows what will happen if FFJ is forced to disclose its membership. This cannot be countenanced under NAACP v. Alabama and its progeny. Such goes to the core of the right of association protected by these cases.

III. DAKOTA'S STATED REASON FOR OBTAINING FIGHT FOR JUSTICE'S MEMBERSHIP CANNOT BE HIS REAL REASON; HIS STATED REASON CANNOT YIELD THE INFORMATION OR RESULT THAT HE CLAIMS; IN SHORT, KNOWING FFJ'S MEMBERSHIP CANNOT REASONABLY LEAD TO THE DISCOVERY OF ANY MISSING DOCUMENTS, COMPUTERS OR DATA

Dakota claims that some records and computer terminals are missing and seeks contempt sanctions against Fight For Justice members. He claims thus that the individual identities are needed to pursue such alleged contempt sanctions. However, he conveniently omits pertinent facts.

1. The marshals have had access to the former tribal center and all adjacent church properties under Fight For Justice control and have had FFJ's complete cooperation.
   
2. It was FFJ that offered these records to the court. There is no plausible motive, having offered such records to withhold any. Fight For Justice has publicly and from the beginning sought to transfer all of the records to the FBI for use in its investigation. It would make no sense to damage that investigation by withholding any portion of the records or related items.
3. Many records and items were removed by Dakota's faction before the take-over and by his people covertly during the confused first few weeks after the take-over. Many of the records and items of which he claims could well already be possessed by Dakota. We have witnesses who will state that truck and car loads of items left the compound covertly by Dakota supporters during this early period.
4. Dakota had members of his "guardian angel's" probe the compound and enter surreptitiously during the night-time. We are advised that these groups occasionally purloined records. Some of the items that Dakota now claims are missing are possibly in the possession of persons sent by him or his agents. In fact Dakota's people have bragged about their successes in penetrating the compound to retrieve documents and items.
5. The compound has been virtually open for long periods of time. Many non-FFJ members have had access. If any records are missing (and we do not believe that any are - they will show up eventually if not already in Dakota's hands or destroyed by Dakota or his agents) it is probable that others than FFJ will have been responsible.
6. Even if Fight For Justice had a membership list, it would contain hundreds of names, perhaps thousands if all supporters were to be included. A list such as this would be on no value in determining if one or more person s were to have purloined anything from the former tribal center. The information requested is not reasonably calculated to attain the stated goal of finding out who, if anyone, may have taken records and items. Everyone, including Dakota, already knows who the core members of FFJ are - they are the ones who have for the most part fraudulent warrants out for them by the tribal court. If they want that list from us, they will have first to give it to us.

Thus, the request for disclosure of Fight For Justice's membership serves no legitimate purpose. It cannot serve the stated purpose of determining who to issue a contempt citation to. Even if the court had such a list one could not plausibly argue that any Fight For Justice members have violated the court's order; nor would it be possible to determine whether a particular member had violated the order. The only plausible reason for disclosing the members of Fight For Justice would be to facilitate intimidation in violation of the members associational rights under the First Amendment as made available to Indians under the Indian Civil Rights Act, 25 U.S.C. 1302.

IV. CONCLUSION

The Supreme Court in Thornburg v. American Coll. of Obst. & Gyn., 476 U.S. 747, 767 (1986) illustrated the force, continued vitality and the breadth of scope, of the non-disclosure rule:

[T]he Court consistently has refused to allow government to chill the exercise of constitutional rights by requiring disclosure of protected, but sometimes unpopular, activities. See, e. g., Lamont v. Postmaster General, 381 U.S. 301 (1965) (invalidating Post Office requirement that addressee affirmatively request delivery of "communist" materials in order to receive them); Talley v. California, 362 U.S. 60, 64-65 (1960) (striking down municipal ban on unsigned handbills); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462-465 (1958) (invalidating compelled disclosure of NAACP membership list). Pennsylvania's reporting requirements raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right, and must be invalidated.

This court should refuse to give Fred Dakota's regime any tools of intimidation particularly where, as here, the disclosure sought would trench upon well-established First Amendment rights of association which are also part of the Indian Civil Rights Act and where Dakota has demonstrated his capacity to misuse his regime to intimidate, harass, and oppress.