by Julie Shortridge
She Challenged Tribal Judge – Domestic Abuse Counseling Center and Shelter Shut Down
On Friday, July 24, 1998, at approximately 2:00 PM, Margaret (Maggie) Penn, who worked for a domestic abuse counseling center and shelter called Tender Hearts Against Family Violence, Inc. in Fort Yates, North Dakota, was ordered to leave the Standing Rock Sioux Reservation. The order was served by Sioux County Sheriff Frank Landis, and John Vettleson who is Captain of Law Enforcement for the Bureau of Indian Affairs and supervising officer of the Standing Rock Sioux Tribal Police.
“I was a non-tribal member living and working on state land, not tribal or trust land,” said Penn. “If the tribe can banish me, they can banish anybody.” Penn is 1/8 Turtle Mountain Chippewa. Thousands of non-member Indians and non-Indians like herself own property, live and work within the boundaries of the Standing Rock Reservation.
Sheriff Landis and Captain Vettleson told Penn that she had to immediately leave Tender Hearts, where she was the only staff person on duty. They followed Penn as she drove from Fort Yates to her home in Selfridge, North Dakota, where both men helped her load a few personal possessions into her car. Sheriff Landis and Captain Vettleson, in the Sheriff’s vehicle, then followed Penn as she left her home in Selfridge, which she rented from a non-Indian rancher on non-tribal land, and drove the approximately 30 miles to the exterior boundary of the Standing Rock Sioux Indian Reservation, where they made a U-turn and drove off as Penn continued.
Penn had been removed from her home and place of employment within two hours of being issued the banishment order Captain Vettleson told Penn that if she returned to the Reservation, he would be obligated to arrest her.
“I was a non-tribal member living and working on state land, not tribal or trust land. If the tribe could banish me, they could banish anybody.” — Maggie Penn
On September 14, 1998, 51 days after Penn was banished from the Reservation, the Standing Rock Sioux Tribal Council filed a motion with the Standing Rock Tribal Court to vacate the banishment, at which time Judge Dog Eagle stated that Penn’s “presence on the Standing Rock Sioux Reservation shall be permitted.” But by then, Penn had lost her home and her job.
Penn filed a federal civil lawsuit against the Standing Rock Sioux Tribe, its officials who banished her from the reservation and others, claiming they had exceeded their lawful authority in banishing her. “Banishment is traditionally the most extreme form of punishment against its own tribal members for wrong-doing,” Penn said in an interview.
On January 27, 1999, Judge Patrick A. Conmy of the U.S. District Court for the Western District of North Dakota issued a judgment in which he dismissed Penn’s civil action, but made it clear he was appalled at what had happened to her. In his order, Judge Conmy wrote:
“Alice in Wonderland or the Wizard of Oz come to mind, but the situation is so bizarre that perhaps something of Kafka or Sartre would be [a] better [analogy].
Banished? From a political subdivision of a State? Without a hearing? A citizen of the United States? Evicted from her home under threat of arrest if she did not voluntarily comply? Evicted from her home with the cooperation and assistance of the Sheriff of Sioux County, apparently acting in his official capacity with the power of government behind him? I have the impression that as soon as someone with some appreciation of the rights possessed by all United States citizens learned of the “order” of banishment, it was somehow canceled by action of the Tribal Council. One wonders if the Sheriff and the BIA Police Captain would have carried out an order for summary execution by hanging if ordered by the ‘associate judge’.”
Judge Conmy also referenced the case Penn has in Tribal Court regarding her previous employment as a tribal prosecutor, and seeking either reinstatement or damages for her alleged wrongful termination from that position:
“As stated, Ms. Penn has an action pending in Tribal Court. The Tribal Court of the Standing Rock Sioux Tribe is not an independent judicial branch, although on paper it looks good. In the past, the salaries of elected judges whose decisions have offended the council have been terminated by the tribal council, despite tribal constitutional prohibitions…. It may perhaps show that I find the conduct towards Ms. Penn outrageous.”
Judge Conmy dismissed Penn’s civil charges against the tribe and its officials, including associate judge Isaac Dog Eagle, because the Tribe rescinded its banishment order.
“Judge Conmy also stated that the federal court did not have jurisdiction to remedy the banishment that cost me my home and my job. This means that the Tribe can now do this to any non-Indian or Indian any time they want, and they can claim tribal sovereign immunity if anyone tries to challenge them,” said Penn.
“The Tribal Court of the Standing Rock Sioux Tribe is not an independent judicial branch, although on paper it looks good.”–U.S. District Court Judge Patrick A. Conmy
Penn says she will appeal her banishment case to the 8th Circuit Court of Appeals, “and all the way to the U.S. Supreme Court if I have to.” Penn’s legal claim is based on the Indian Civil Rights Act, which requires Indian Tribes to recognize all U.S. Constitutional rights, including the right to due process and equal protection, and allows the federal courts to review a case when a person claims those rights have been violated. People on Indian reservations could benefit from some enforcement of that law. The problem is that the doctrine of tribal sovereign immunity prevents people from holding a tribe responsible when a tribe violates their Constitutional rights.
Penn asserts that the Standing Rock Sioux Tribal Court exceeded its lawful limits of jurisdiction when it banished her under the auspices of “traditional law and custom.” First of all, according to Penn’s complaint and well-established Indian law, an Indian tribe does not have criminal jurisdiction over non-members, and does not have civil jurisdiction over non-members living and working on non-Indian land. In addition, the Standing Rock Sioux Tribe does not even have a banishment statute in its tribal code. The Tribal Council has never passed a law allowing it to exclude anyone from the exterior boundaries of the reservation.
A moot point, exhausting all remedies, and tribal sovereignty
Judge Conmy ruled that Penn’s case was moot because the Tribe rescinded the banishment order. But Chad McCabe, Penn’s attorney, argues that just because someone stops doing something illegal doesn’t mean a case around that previous illegal action is moot. Lifting Penn’s banishment after 51 days did not undo the fact that they had forcibly removed her from her home and livelihood, without due process.
Another reason it is not moot, according to McCabe, is because it is a case that could be repeated. As it stands now, the Tribal Court could banish any other non-member it so wishes to banish, and there is no legal recourse. “Any non-member Indian or non-Indian living within the boundaries of the Standing Rock Sioux Indian Reservation can likewise be banished from their home and employment at anytime. …Such a serious threat to the rights and liberties of non- members and non-Indians living within the Reservation boundaries must be addressed or other petitioners will be before the Court in the same circumstance.,” McCabe said in court documents.
Penn’s attorney also claims that the federal court should review her entire claim, pointing out that the U.S. Supreme Court has recognized that a person does not have to “exhaust all remedies” in tribal court before bringing a case to federal court in situations where the tribe is asserting jurisdiction to harass someone, or when the tribe acts in bad faith, or if litigating the issue in tribal court would be futile. Such is the situation, McCabe argues, in Penn’s case.
As evidence of the Tribe’s bad faith, McCabe and Penn outline a series of events. The person requesting the banishment, Faith Taken Alive, is Judge Dog Eagle’s niece. As such, Judge Dog Eagle should have recused himself from the matter. In addition, Judge Dog Eagle issued the order despite the fact that he knew the significant allegations against Penn were false. 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. 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 that Taken Alive had bought for her, and had made threatening statements. In fact, County Sheriff Landis informed Judge Dog Eagle that Penn had given the gun to him for safe keeping because there was a rash of robberies where Penn lives. Penn never asked to have the gun back and Sheriff Landis had it in his possession for approximately three months prior to the banishment request. Penn is known by Judge Dog Eagle and by tribes throughout the country as an advocate against violence. In addition, Judge Dog Eagle knew of the motive to harass Penn, and knew that the banishment request was motivated by Taken Alive, Lola Agard, Michele Manley and Martina Miller conspiring to seize control of Tender Hearts, Inc., in conjunction with illegal activities of three Tender Hearts Board members, according to Penn’s complaint. The banishment order was issued without a hearing or an opportunity for Penn to respond, and within 1-2 hours of the order being issued, Penn was physically removed from the Reservation, with threat of arrest if she was to return.
The Tribe admitted in its motion to vacate the banishment that Judge Dog Eagle acted illegally and violated Penn’s civil rights when he banished her from the Reservation. In fact, the Tribe concedes that the Tribal Court did not have jurisdiction over Penn when the court banished her. But the Tribe claims it is immune from responsibility because of “tribal sovereignty.” The Tribal Council is attempting to place the blame on Judge Dog Eagle and to distance themselves from him, even though there is evidence that the Tribal Council has extremely close working relationships with Tribal judges, even going so far as to direct judges how to decide cases.
The Tribe admits in court documents that Judge Dog Eagle acted illegally and violated Penn’s civil rights when he banished her from the Reservation. But the Tribe claims it is immune from responsibility because of “tribal sovereignty.”
One tribal council member said in a phone interview that they saw a receipt for a $800-900 payment to Faith Taken Alive for mileage and expenses. “It didn’t say that it was related to her successful efforts to banish Penn, but we all know that’s what it was about,” said the council member. Two other payments are also alleged to have been made to Taken Alive, although no documentation was revealed to substantiate that claim.
“Associate Judge Isaac Dog Eagle is a good man. He’s very traditional and very honorable. But other people are telling him what to do,” said Penn. Penn claims that the tribal administrative officer Leonica Alkire had been telling Dog Eagle that he had to sign the illegal orders. Penn claims that Leonica was also behind Judge Swallow’s firing of Penn as tribal prosecutor in 1996.
Of Sheriff Landis and Captain Vettleson, Penn said, “I’ve worked with both these men. They’re excellent police officers. But they felt they had to execute the Tribal court order against me.”
“A pattern of bad faith conduct”
Documents submitted to federal court assert that “Ms. Penn suffered a pattern of bad faith conduct from the Tribe, Tribal Court, and … Judge Swallow and Alkire which began prior to her termination, continued as she attempted to litigate her claim in Tribal Court, and was finalized in the issuance and execution of the so called ‘traditional banishment’ order. …Dog Eagle, Manley, Agard, Miller, and Taken Alive conspired with … Swallow and Alkire to banish [Penn]….”
Penn, who is an attorney, was chief prosecutor in the Standing Rock Tribal Court in 1990-91, and again in 1995-96. Penn noticed discrepancies in how much sick leave she accrued per pay period (2.0 hours), and how much she should have accrued (3.2 hours), a violation of the federal Fair Labor Standards Act. Tribes are supposed to abide by all federal laws, unless a specific exemption applies. But the Tribe claims that because it is a “sovereign nation,” it does not have to follow any federal law it doesn’t want to follow. Ironically, the Tribal Court is funded 99% by federal dollars. Receiving federal funds generally includes a condition that the Tribe follow federal law. As stated in court documents, every penny of Penn’s salary was paid by federal dollars, yet the Tribe claims that, as a “sovereign nation,” they are not bound by federal employment law.
In August 1996, Penn was terminated as Tribal prosecutor for making an issue of what she saw as Tribal Chief Judge Michael Swallow’s unethical conduct. Penn first became aware of Swallow’s unethical conduct when, 45 minutes before a case was set for trial, Swallow stopped Penn in the hall to say he couldn’t hear the case because he had been giving legal advice to the defendant. He even signed a continuance to this effect.
Another example of possible unethical conduct was when Judge Swallow presided over the termination of parental rights against the biological father of Swallow’s then-wife’s child. According to Penn, Swallow wanted to be able to adopt the child himself, and getting the biological father’s parental rights terminated was the first step. “He has no concept of ethics,” said Penn. “There are many stories like this about Mike Swallow.”
In September 1997 Penn sued the Tribe in Tribal Court for $18 million for her wrongful termination. “But all I really wanted was to get their attention and get my job back,” said Penn. Also in September 1997, Swallow was voted out of office by 70% of those voting on the Standing Rock Sioux Reservation. He continued to sit as Chief Judge until January 1998, at which time the Tribal Council gave him a position as in-house attorney. “As Tribal Chief Judge, Swallow made $60,000. Now as in-house Tribal attorney he makes $80,000 and has a $20,000 expense account on top of it,” said Penn.
Penn first served as a Tribal prosecutor in 1991-92. At that time the Court Administrator maintained records of Court decisions and provided an index. But when Penn returned as Chief Tribal Prosecutor in 1995-96, Tribal Administrator Alkire did not maintain any records or indexing of court decisions. Penn was unable to look up past decisions the Court had made.
On a similar note, Jane Colhoff, Penn’s attorney in the case against the Tribe for her wrongful termination as Tribal prosecutor, was unable to get a copy of the court rules from the Chief Clerk of Court, even though Colhoff requested copies three times. Colhoff had to proceed through litigation in Tribal Court with no knowledge of what rules governed the courtroom.
Penn’s case has been heard by outside “special judges,” rather than being heard by a judge of the Tribal Court. One special judge initially brought in to hear Penn’s case against Chief Judge Swallow was B.J. Jones, a 12 year personal friend of Swallow’s. Penn alleges that Chief Judge Swallow even discussed with B.J. Jones how Penn might be banished from the reservation. Jones and Penn also had professional differences based on his focus on defending abusers, and Penn’s focus on prosecuting them. Even so, Jones did not recuse himself from the case, and Penn had to petition to get him disqualified to hear it.
Penn asserts that the entire “special judge” system is illegal. No statute or other action creates the authority for “special judges.” “Special judges” are hand chosen by the Tribe, and if a “special judge” rules against the Tribe in any matter, they will not receive further employment as a “special judge” with the Tribe. Only two categories of judges are created by the Tribal Code, the chief judge and the associate judge, both of which must stand for election every four years. Yet, according to Penn, a “special judge” has served for over four years and has never stood for election.
“There’s nothing more dangerous than an honest person on a reservation. If they want to run you out, they will.” — Maggie Penn
The Supreme Court of the Standing Rock Sioux Tribe has not ruled on the charges Penn brought against Chief Judge Michael Swallow, which she filed in May 1996. “I have not had one minute of hearing or other due process [for] legal remedies I have sought through the Standing Rock Sioux Tribe’s personnel procedures or in Tribal Court since 1996,” wrote Penn in her affidavit. She is now attempting to get the case heard in the 8th Circuit Court of Appeals.
Tender Hearts Against Family Violence, Inc.
In 1990, a battered women’s program called Tender Hearts Against Family Violence, Inc. was incorporated under North Dakota state law in Fort Yates. Tender Hearts served two populations: those needing a shelter to get away from an abuser, and those needing other assistance such as help getting protection orders, counseling, advocacy, help finding housing, and transportation to testify in court.
The facility, housed in a former motel, is on “fee land”, not on tribally-owned land or tribal trust land. From 1995-97, Penn worked as a part-time book-keeper and wrote grants to support the facility. She also conducted seminars around the nation on Indian law and domestic violence.
Penn’s grant-writing skills brought in over $600,000 to run the facility. “Everything is in perfect financial order. I kept receipts for everything we bought, except there was no receipt for a $10 dryer repair part. That’s all. Everything else is there. I even typed a paragraph describing each grant and describing the budget for each grant,” said Penn.
Kathy Smith was the facility’s director from 1996 through mid-August 1998. Michele Manley from Turtle Mountain had worked on and off at Tender Hearts for 18 months, and Lola Agard was also employed there. But on advice of the Wheeler Wolf law firm, which represents Tender Hearts, Smith terminated Manley and Agard on July 22, 1998.
Two days later, on July 24, 1998, Judge Dog Eagle banished Penn on request of Faith Taken Alive, which was the first of several illegal orders issued by Judge Dog Eagle to allow employees Michele Manley, Lola Agard, and Martina Miller to seize control of the battered women’s program, according to Penn. On August 10, 1998, Judge Dog Eagle issued another illegal order terminating Smith’s employment and ordering law enforcement officials to remove her from the Tender Hearts property. This order was based on a flimsy, two or three sentence accusation that Amy Yellow, a Tender Hearts Board member and sister of terminated employee Lola Agard, scrawled on a piece of paper and gave to Judge Dog Eagle, according to Penn. Under threat of arrest, Smith was forced to leave the reservation, her home and her family. In the absence of Penn and Smith, Manley then became Acting Director of Tender Hearts.
The Board of Directors for Tender Hearts is now saying that there are funds unaccounted for and that Smith embezzled money. Smith and Penn met with a federal auditor on Monday, February 8, 1999 who is reviewing Tender Hearts’ books. Board member Yellow claimed that key documents were missing and did not provide the necessary information to the federal auditor. Fortunately, Smith had made copies of everything, and after she provided the federal auditor copies, the Board found their originals, according to Smith. “Thank goodness I made copies, or they would have said the information was missing. Without that information an audit couldn’t be done, and without an audit they could keep saying I stole money,” said Smith in a phone interview. The Tribe has also hired an auditor to look into the facility’s finances.
“When Smith left, there was funding for nine positions, but the only person they kept on staff was Michele Manley who was part-time,” said Penn. The shelter portion of the facility was closed in mid-August, and there are no services being offered. According the Smith, the pipes froze and then broke, causing water damage. “We used to serve between 1,200 and 1,500 women and children each year and we always had a full house,” said Smith.
Fort Yates has a population of almost 1,000. It is the County Seat for Sioux County, and is the headquarters for BIA and tribal offices for the Standing Rock Reservation where approximately 10,000 tribal members reside.
Smith laments the closing of Tender Hearts. “The police tell me that people aren’t reporting domestic abuse anymore because they know Tender Hearts is closed and there’s nowhere for them to go and no one to help. One woman and child were kept in jail over night because there was no where else to put them. She called the police, not knowing Tender Hearts was closed. You can’t tell me the violence isn’t still going on just because the facility is closed. There’s a $225,000 grant from the Department of Justice sitting there not being used because they don’t have the staff or where-with-all to run it. I approached the Chairman of the Council and asked that the Tribe take over the facility. Otherwise, the Department of Justice will take back the funding.”
Board member Yellow did not return this reporter’s phone call placed a day prior to going to press, nor could other board members be reached for comment. A phone number could not be found for Faith Taken Alive, and Tribal Chair Charlie Murphy was in an all day Tribal Council meeting on press day and could not be reached for comment.
Bucking the system
“I have worked in Indian Country to advance Indian law and to strengthen sovereignty for years. But now I’ve had to attack the doctrine of Tribal sovereign immunity to protect my own rights. It breaks my heart,” said Penn in an interview. “It all goes back to Mike Swallow because I stood up to him on his unethical behavior,” said Penn. “There’s nothing more dangerous than an honest person on a reservation,” she added. “If they want to run you out, they will.”