For more on these recent developments, and a history of this struggle, now
in its 19th month, see Rose's home page at
http://www.edwards1.com/rose/native/ffj/ffj.htm You can also consult
earlier postings to this list
("http://bioc09.uthscsa.edu/natnet/archive/nl/keweenaw-bay.html").
If you would like to protest the events related below, please write or fax:
1) Kendricks Bordeau - the law firm of current KBIC Tribal Prosecutor,
Gregor MacGregor.
Fax: 906-226-2543
Kendricks Bordeau
128 W. Spring St.
Marquette, MI 49855-4608
2) Fred Dakota - KBIC Tribal Chair. Fax: 906-353-7540
3) U.S. Representative Bart Stupak. Fax: 202-225-4744
4) U.S. Senator Carl Levin. Fax: 202-224-1388
*******************************************************************************
NOTE FROM ROSE EDWARDS, MEMBER OF KBIC AND FIGHT FOR JUSTICE
March 5, 1997
The latest attack aimed at FFJ by the tribal council...
Before attorneys can appear in tribal court they first must be approved by
Brad Dakota, the acting Chief Tribal Judge.
The tribal council passed a new resolution the other day, they are now
requiring that all attorneys and advocates be approved by the Chief Judge
before appearing in tribal court. This new resolution, they tell us, is to
establish a level of expectation for any advocate or attorney regarding
their understanding of tribal law.
This would be a good idea, if the person approving the advocate or
attorneys was someone other than an x-construction worker. But the real
reason I feel they passed this new resolution was to be able to deny FFJ
their attorneys of choice.
Like the United States Bill of Rights, the Indian Civil Rights Act
provides an accused criminal with the right to be represented by a lawyer.
The two systems differ in that United States court an attorney will be
provided for you free of charge, while in tribal court if you want an
attorney you must pay for it yourself.
================================================================================
LETTER FROM ALAN W. CLARKE, J.D., LL.M. - FIGHT FOR JUSTICE PRO BONO ATTORNEY
March 8, 1997
Greetings:
The new Keweenaw Bay Indian Community Tribal Court regulations concerning
admission to the Tribal Bar are fundamentally unjust and are a misguided
attempt to chill vigorous advocacy and to end legal representation in
politically sensitive cases. In particular they constitute an attempt to
deprive Fight For Justice of legal representation in Tribal Court. No
lawyer with integrity would subject him or herself to the standardless
discretion of a discredited and corrupt court system.Therefore, Fight For
Justice, and all others in need of legal representation, will now be
stripped of counsel in Tribal Court. This letter addresses the reasons
for this.
1. This resolution is completely without standards. Unlike state rules
governing a lawyer's conduct, this resolution leaves the question of what
constitutes misconduct or neglect completely up to Chief Judge Bradley
Dakota. It provides no code of professional conduct and no criteria
whatsoever for determining when or how one may have violated its terms.
Whatever Judge Dakota (who has never been to any law school and who is not
a member of any bar) deems to be misconduct will be misconduct. It is the
rule of one man rather than of laws. This violates fundamental tenets of
law.
"[T]he notion that persons have a right to fair warning of that conduct
which will give rise to criminal penalties" is deeply embedded in any
civilized society's concept of liberty. Marks v. United States, 430 U.S.
188, 191 (1977). No less authority than Blackstone comments invidiously
upon the example of Caligula "who... wrote his laws in a very small
character, and hung them up upon high pillars, the more effectually to
ensnare the people." 1 Blackstone's Commentaries 46 (Tucker ed. 1802).
Fair notice of that which is proscribed cannot be had in a regime that
provides no standards whatsoever in determining when conduct is
prohibited. The new tribal resolution fails this simple and fundamental
test of fairness. At least Caligula wrote his laws in small letters. At
KBIC the law of professional conduct is whatever Bradley Dakota, after the
fact, says it is.
2.The resolution purports to apply "at all times." Thus, the advocate is
covered both in court and out of court. If a member of Mr. Dakota's bar
were to strongly criticize the court - to the press for example - Chief
Judge Dakota could, under this resolution find them in contempt and fine -
or even disbar them. This is entirely different from any other state or
the Federal system where out-of- court criticism of the court is protected
as free speech and could not ordinarily be subject to discipline. And lest
one think well, so what, how could they enforce it - note that the terms
of the resolution require the lawyer to submit to the court's jurisdiction
for all purposes. So if Judge Dakota determines that an advocate is in
contempt,that advocate is for all practical purposes, in contempt, no
matter how innocent of wrongdoing he or she would have been in any other
court system. The advocate will have submitted him or herself to the
Court's jurisdiction. And there would be no appeal except to the Tribal
Council headed by Judge Dakota's father - federally indicted Fred Dakota.
3. Unlike any other court system the entire authority under this
resolution lies with one person. If one arguably commits an act of
misconduct in most other court systems, the Judge has only contempt powers
(subject to legitimate appellate rights to higher courts). The Judge has
no authority to suspend a person's license or to disbar them. The Judge
would have to send the case to an independent grievance commission which
would provide the accused lawyer with the full panoply of due process
rights. No such protections are evident in Judge Dakota's system. He will
be the accuser, Judge, and executioner all in one. . . with no effective
appeal. Thus, even if this flawed resolution were to be revised to contain
standards, it would still fall far short of providing due process to any
lawyer accused of wrongdoing.
4. In addition to providing for fines, costs, suspensions, and disbarment,
this resolution also provides that Judge Dakota may "order restitution to
anyone injured as the result of the violation." We have already
demonstrated that there is no way to know in advance what a "violation"
might be. If Judge Dakota doesn't like it, it is a violation. But it is
worse yet. What could an injury be? If a lawyer were to make critical
remarks about federally indicted Fred Dakota, the Judge's father, would
his feeling be hurt? If so, that would be an injury for which the Judge
could order restitution. Since there are no standards, and no effective
appeal to another court of any kind, and since one would have acceded to
the Tribal Court's jurisdiction, such a preposterous ruling would
nonetheless be enforceable. A lawyer could be bankrupted by Judge Dakota's
whim.
5. The resolution provides that "anyone who knows of a violation of these
rules by a. . . lawyer may file a written complaint with the Chief Judge."
No hearing of any kind is provided for. The accused does not even have a
right to a hearing before Judge Dakota. So one could be tried and
convicted on the hearsay complaint of some interloper without any hearing
before anyone and without any opportunity to respond and without any
effective appeal.
6. This resolution provides that a lawyer's fitness to practice law will
be determined by Chief Judge Bradley Dakota, who lacks even a law degree
much less a bar license. Without any standards to guide him and without
any formal legal education this man will decide what constitutes
acceptable advocacy.
7. One cannot escape the conclusion that this resolution is politically
motivated. By far the most cases involving counsel in Tribal Court over
the last 18 months have involved the cases in which Fight For Justice's
entirely pro bono attorneys have battled to try to establish some minimal
due process for this politically persecuted group. The Court is
undoubtedly unhappy about having its ethical lapses exposed publicly. When
a Tribal Judge sat on a case in which his own father had an interest,
FFJ's lawyers exposed it. When another Tribal Judge ruled that FFJ could
not have evidentiary hearings in support of its motions, FFJ's attorneys
pointed out that this violated rules of fundamental fairness - that any
court in the land would allow a criminal defendant to support their claims
with evidence. FFJ's lawyers have been the sole legal voice to many Tribal
members and they have provided vigorous advocacy free of charge. Now the
Tribe seeks to chill that advocacy by establishing bar admission rules
that will exclude all lawyers with integrity. Simply put, Bradley Dakota
does not want any effective and vigorous lawyers challenging his father's
regime. He seeks to quell criticism through the subterfuge of promulgating
bar admission rules. The fraud and hypocrisy in this are blatant,
pronounced and deeply disturbing.
===============================================================================
LETTER FROM MARK WISTI, J.D. - FIGHT FOR JUSTICE PRO BONO ATTORNEY
March 6, 1997
As a pro bono attorney for the group, Fight For Justice, I feel compelled
to publicly write to the newspapers in regard to the latest insidious
Resolution of the Keweenaw Bay Tribal Council.
The Tribal council has recently passed Section 1.207, which purportedly
will regulate the practice of law before the Tribal Court. Section 1.207
is nothing but a vicious and cowardly action of the tribal council, which
as a practical matter will serve not only to deprive Fight For Justice of
its pro bono legal team, but will end the rights of all members of the
Keweenaw Bay Indian Community to legal representation on any matter in the
Tribal Court. No attorney in his or her right mind would agree to be bound
by the provisions of Section 1.207.
It is well established in our legal system that the court has the right to
issue contempt sanctions against attorneys. However, it is recognized in
our legal system that contempt sanctions are to used only in extreme
cases. While an attorney is always under an obligation to use proper
decorum in dealing with the court many situations arise where a vigorous
advocate must risk offending the court in order to adequately represent
his or her client. No fine line can be drawn as to when vigorous advocacy
crosses over into contempt and there are many safeguards for attorneys in
State and Federal Courts in regards to the power of the court to hold them
in contempt. Ultimately, an attorney would have the right to an appellate
review in regards to a judge's decision to hold him or her in contempt.
There is no unilateral right in the Michigan or the Federal Courts for the
court to impose contempt sanctions upon an attorney without the
opportunity for appellate review.
The Resolution enacted by the Tribal Court provides as follows:
Upon a finding that any lay advocate or lawyer has violated any of the
aforementioned rules, or no longer meets the qualification in 1.207 the
Chief Judge may;
A. Revoke the advocate or lawyers admission to practice in Tribal Court.
B. Suspend admission for any length of time;
C. Reprimand any lay advocate or lawyer;
D. Assess fines and costs against the lay advocate or lawyer;
E. Order restitution to anyone injured as the result of the violation.
This section gives the Tribal Court unbridled discretion to not only fine
a lawyer any amount of money, but to order restitution without hearing, to
anyone 'injured' as a result of the violation. This kind of restriction
upon the right of an attorney to vigorously advocate for a client is
unheard of in any court of the United States. This Resolution would
theoretically allow the judge to order an attorney to pay a million
dollars to anyone injured - whatever this means - by the lawyer's
conduct.No right to a hearing is provided by this statute and no right to
appeal is provided by this statute. The statute allows the Tribal Judge -
who has clearly acted as an advocate of the powers that be in the Keweenaw
Bay Indian Community - unbridled discretion to continue the political
repression which has existed for approximately two years at the Keweenaw
Bay Indian Community. What is particularly disturbing in a democratic
society is that this Resolution ends the right of any individual of the
Keweenaw Bay Indian Community to have independent legal representation in
the Tribal Court.The only attorneys who will practice in the Tribal Court
will be flunkies of the Dakota regime.
What is most perplexing to me is to why the law firm of Kendricks Bordeau
Adamini Keefe Smith Girard & Seavoy, P.C., heretofore, one of the most
respected law firms in the Upper Peninsula of Michigan, would stoop so low
as to associate themselves with this type of blatant repression. I do not
know if Gregor MacGregor does not want to have any opponents anymore in
Tribal court, but as a result if the Resolution he will now have the
ability to go against unrepresented people in any type of proceeding in
the Tribal court. I publicly call upon the law firm of Kendricks Bordeau
Adamini Keefe Smith Girard & Seavoy, P.C. to disassociate themselves from
the Keweenaw Bay Indian Community. Their continued representation of the
Keweenaw Bay Indian Community is akin to representing a third world
dictatorship. But, some people will do anything for money.
While this may not seem to affect may non-Indians members of the community,
I am reminded of a quote I heard regarding Nazi Germany.
"When they came for the gypsies, I didn't care, because I was not gypsy.
When they came for the Jews, I didn't care, because I was not a Jew.
When they came for the Christians, I didn't care, because I was not a
Christian.
Now they are coming for me."
It is time for the people of the Keweenaw Bay Indian community to wake up
and see exactly what their government is doing.
=============================================================================
FROM A LETTER TO THE MEDIA BY STEVEN PENCE, J.D. - FIGHT FOR JUSTICE PRO BONO
ATTORNEY
March 6, 1997
...How can they claim that they are only developing standards to ensure
good advocacy when the tribal judge they employ is a police officer with
no training as an attorney? How can they expect the public to believe that
their motives are not related to repression, when this controversy boiled
over only after the council ignored the ruling of its judge, Judge Thorne,
when he ruled that the nullification of the tribal election was wrong?
You obviously will do what you will with this latest development, but in
all fairness, isn't it time for an Editorial about peacemaking, about a
belated arrest warrant being issued against a priest, about illegal
searches of church property and, now, an attempt to silence the pro bono
lawyers who have provided the only hope for disenfranchised tribal members?
Where do people go when they feel they have no access to justice?
================================================================================
FIGHT FOR JUSTICE PRESS RELEASE
March 7, 1997
The resolution is an unprecedented spineless attempt to assist the council
in their continued bid to control the people of the KBIC and a most feeble
effort to save face for their legal team.
KBIC spokesman Rich Rossway claims there is "an inadequate understanding
of tribal law" and that there have been "incidents" that interfere with
the administration of justice. We know where the interference comes from;
and the inadequacy concern, what law degree, if any, does the Chief Judge
possess?
If the Tribal Council, Mr. Rossway, and Chief Judge Brad Dakota are so
inclined to re-establish a level of respect and integrity for the tribal
court system, why don't they start, as a sign of good faith and testament
to their concerns, with an investigation of Tribal Chairman Fred Dakota
for possible Tribal Code violations in relation to the federal
indictments.
A prime example of blatant interference with the administration of justice
is the confidential memo dated April 16, 1996 to the Tribal Council from
Tribal Attorney Joseph P. O'Leary. O'Leary states, ". . . Fred Dakota's
alleged wrong doing . . . should also be specifically investigated to
determine whether charges should be brought against Fred. I truly believe
that the best interests of the Tribe will be served by these actions since
it will remove any appearance of impropriety from the criminal proceedings
surrounding the takeover."
Shortly after this charade of concern, O'Leary, as stated in his memo,
conveniently recused himself "from any and all criminal proceedings . . .
." The council and the Tribal Prosecutor's office knew of the alleged
improprieties of their chairman months before the federal indictments came
down, but was anything done about it. NO! If the present Tribal Prosecutor
has any integrity or backbone, he will start an investigation. If not,
there lies the answer of where the actual "interference with the
administration of justice" lies and the real reasons for the resolution.