Tuesday, October 28, 2008

Russell Means files election objection with Oglala Supreme Court

Press Advisory, For Immediate Release
Contact: David Adams
Russell Means Freedom Campaign
RE: Appeal to Oglala Tribal SUPREME COURT for
Election Code Violations in the Oglala Sioux Tribal Presidential Race

RUSSELL MEANS, ) APPEAL NO.__________________
Appellant, )
Appellee. )
COMES NOW Russell Means and hereby submits this brief in support of his position
with regard to the decision of the Election Board of Appeals regarding the candidacy of Theresa
Two Bulls that was heard and decided on October 27, 2008.
Jurisdiction of this Court is invoked under the Oglala Sioux Tribe 2008 Election Code,
Section 21 “Appeals to the Supreme Court of Oglala Lakota Nation” as an appeal as of right
pursuant to subsection A. This appeal is taken from a final judgment in the Election Board of
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Tuesday, October 28, 2008
Appeals. Notice of appeal was timely filed in accordance with the Oglala Sioux Tribe 2008
Election Code.
A question of law has arisen with regard to interpretation of the Oglala Sioux Tribe 2008
Election Code Section 9(10), “Conflict of Interest as Basis for Disqualification.” Specifically, the
legal issue is whether Section 9(10) prohibits a candidate from running where a conflict of
interest exists prior to the election actually taking place; or whether it prohibits a candidate from
holding a tribal office, in this case, President, once elected if that candidate also holds an elected
state office, or has been serving as a state elected official.
Here, Theresa Two Bulls has been serving as a South Dakota State Senator since 2004.
She currently is running for that same position and currently is the incumbent for the position.
She has been actively campaigning for both the position of Oglala Sioux Tribal President and
South Dakota State Senator since the 2008 election process opened on the Pine Ridge Indian
Reservation. In essence, she is seeking to serve two sovereigns simultaneously after already
swearing to uphold the laws of the State of South Dakota for her current term. She remains a
seated State Senator.
South Dakota state law, ironically, offers some guidance with regard to this issue. The
South Dakota Constitution at Article III, § 3 provides that: “No judge or clerk of any court,
secretary of state, attorney general, state’s attorney, recorder, sheriff or collector of public
moneys, member of either house of Congress, or person holding any lucrative office under the
United States, or this state, or any foreign government, shall be a member of the Legislature.”
Interpretation of this Constitutional provision resulted in the general rule that so long as
the two positions are compatible, one can hold dual offices. This reflects an abrogation of the
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Tuesday, October 28, 2008
common law doctrine of incompatibility that had been created to maintain public confidence in
the integrity of government. The obvious goal of this doctrine is also to ensure that governmental
responsibilities are exercised in the public interest and to avoid even the appearance of
It does not take a stretch of the imagination to recognize that serving as a Tribal President
would clearly conflict with simultaneously serving as a State Senator. And here, Miss Two Bulls
is not only running for the position of State Senator, but already is a State Senator. There is no
prohibition in the incompatibility doctrine that would require Miss Two Bulls to actually be
elected to both offices. It can just as easily apply to her being a candidate for both offices.
Although not precisely on point, the Hatch Act of 1939, as amended, offers some
guidance with regard to why her holding office as a State Senator is unacceptable while even
becoming a candidate for an elected position in any Oglala Sioux tribal election.
The Hatch Act (5 U.S.C. §§ 1501 - 1508) restricts the political activity of individuals
principally employed by state, county, or municipal executive agencies in connection with
programs financed in whole or in part by loans or grants made by the United States or a federal
An employee covered by the Act may not be a candidate for public office in an election in
which any candidate represents, for example, the Republican or Democratic party in a partisan
The prohibition against political activity extends not merely to the formal announcement
of candidacy but also to the preliminaries leading to such announcement and to canvassing or
soliciting support or doing or permitting to be done any act in furtherance of candidacy. Because
the statute has been interpreted to prohibit preliminary activities regarding candidacy, any action
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Tuesday, October 28, 2008
that can reasonably be construed as evidence that the individual is seeking support for or
undertaking an initial “campaign” to secure nomination or election to office would be viewed as
candidacy for purposes of 5 U.S.C. § 1502(a)(3).
Under this logic, the employee would be prohibited from writing introductory letters to
local party committees requesting the opportunity to meet with them; and also from meeting with
individuals to plan the logistics and strategy of his or her candidacy.
Here, Theresa Two Bulls has not resigned from her position as State Senator to run for
Tribal President. And while not technically an “employee” of the State of South Dakota, it is the
sovereign she has chosen to serve for four years to date.
It is a well-established principle of federal Indian Law that tribes have the right to
determine their own governance, membership, and other aspects of tribal life loosely defined as
“sovereignty.” The Indian Self Determination and Education Assistance Act of 1975 as amended
is the most obvious reflection of this principle. Without regard to the erosion of the sovereign
rights of tribes over time, it is clear that a tribe, any tribe, can create and enforce their own
process for electing tribal officials.
Here, the Oglala Sioux Tribe has placed the conflict of interest provision in the Section 9
of the Oglala Sioux Tribe 2008 Election Code that governs Eligible Candidates and Prohibited
Conduct. It is a well-established legal rule of statutory construction that statutes, or in this case,
ordinance provisions are to be read together (in pari materia) and, where there are conflicts,
somehow “harmonized,” giving significance and effect to each part.
It simply makes no sense to allow a candidate already holding public office to run for yet
another, conflicting, public office with a different sovereign; and then allow that same person a
choice of position post election to the detriment of voters on either side of the fence. People who
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Tuesday, October 28, 2008
will vote for her as a State Senator will do so to the detriment of her opponent, Jim Bradford; and
then, if she gives up this office in favor of the Tribal Presidency, she does a disservice to her
stateside constituents who were directly responsible for her being elected in the first place. The
same holds true if she decides to forfeit the Tribal Presidency once elected. She does a disservice to
me, her opponent; the other Presidential candidate who came in third, John Yellowbird Steele; and
the voters who might have voted differently if they had known she would drop out at the end of the
process. It amounts to disenfranchising those voters. Theresa Two Bulls has made her choice
regarding which she prefers if the past four years are any indication in that regard.
Following the logic of the Election Board of Appeals, Theresa Two Bulls will be allowed to
place the Oglala people in the untenable position of allowing her to choose what she wants to do if
elected as either or both Tribal President and State Senator. If the theory is she serves the sovereign,
it would seem that this activity is more self serving than anything. How can the people of the Oglala
Nation trust a person who runs for both offices, perhaps wins both, and then chooses one over the
other? It runs completely contrary to application of the doctrine of incompatibility as reflected in
Section 9(10).
I would urge this Court to consider reading the provisions and intent of the Oglala Sioux
Tribe 2008 Election Code Section 9 together to conclude that once a person is serving as an
elected official for the State, or even running for State Office (it is unusual you have both
situations with Miss Two Bulls here) one cannot also be an eligible candidate for tribal office.
This is not intended to hurt Miss two Bulls personally, but instead in intended to maintain a
degree of sovereignty and allow the people to choose elected officials who true interest is only
with the people of the Oglala Nation.
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Tuesday, October 28, 2008
Respectfully submitted this 28th day of October, 2008.
Russell Means
P.O. Box 99
Porcupine, SD 57772
Subscribed and sworn to before me, a notary public for the State of __________________ on
this ___ day of 2008.
Notary Public for the State of __________________
_____________________________ S-E-A-L
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Tuesday, October 28, 2008
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Tuesday, October 28, 2008

Press Advisory,
For Immediate Release
Contact: David Adams
Russell Means Freedom Campaign
RE: Election Code Violations in the Oglala Sioux Tribal Presidential Race

1. On October 22, 2008, Russell Means filed a complaint with the Oglala Sioux Tribe Election Committee challenging her eligibility to run under Section 9a, paragraph 10 of the Tribal Election Code. This law prohibits a candidate from simultaneously holding a State office AND a Tribal office.
2. Also, on October 22, 2008, Tribal Election Commission Chairman, Sidney Witt, gave an interview with the Rapid City Journal,“OST candidate challenges unsuccessful
By Heidi Bell Gease, Journal staff
Despite challenges by other candidates, Theresa “Huck” Two Bulls and Alice Perkins will be on the ballot for the Nov. 4 Oglala Sioux Tribe election.Two Bulls is running for tribal president against Russell Means, who filed a complaint challenging her eligibility. He cited tribal law that prohibits elected tribal officials from also holding state offices or serving on state or county boards.
Two Bulls, who was elected to the South Dakota State Senate in 2004, also is seeking re-election to the District 27 Senate seat on the state general election ballot.
Two Bulls could not be reached for comment Thursday.
But tribal election commission chairman Sidney Witt said Two Bulls is aware of the conflict of interest. He said she told him that if re-elected, she would not accept the Senate seat if she also is elected tribal president.“(The tribal ordinance) doesnʼt prohibit someone from running,” Witt said. “It just warns them that if they are successful, they canʼt hold two offices.”In addition, Meansʼ challenge — which was filed Wednesday — missed a Sept. 19 deadline for challenging candidates on the ballot and an Oct. 17 deadline for challenging results of the Oct. 7 primary election, Witt said. The complaint was ultimately dismissed on that basis.
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3. “But tribal election commission chairman Sidney Witt said Two Bulls is aware of the conflict of interest. He said she told him that if re-elected, she would not accept the Senate seat if she also is elected tribal president.” How is it possible that these hearsay comments in the Rapid City Journal by an election official are within his scope of duty? His Mr. Witt claiming that these heresay comments are now law and that the matter is closed? If the heresay comments are true, who is to say that Ms. Two Bulls wonʼt change her mind and keep the Senate seat. If this happens, whatʼs the tribe to do, hold another election?4. Respectfully, Mr. Wit is misinformed about the very Election Code he is charged with enforcing: Election Commission is responsible for: “Strict adherence to the provisions of the election code;”
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5. APPEAL FROM DECISION OF THE ELECTION COMMISSION In Re the Contest of the Election of:Theresa Two Bulls COMES NOW Russell Means, the Appellant above-named, and enters this appeal from the decision of the Oglala Sioux Tribe Election Commission, states as follows:1. That I am an enrolled member of the Oglala Sioux tribe, whose enrollment number is ________________.
2. That I am a qualified candidate for the office of President in the Oglala Sioux Tribe 2008 General Election.3. That Theresa Two Bulls should have been disqualified from running in the2008 election for the position of President of the Oglala Sioux Tribe due to the conflict of interest.
4. The Oglala Sioux Tribe 2008 Election Code that all the candidates received, at
Section 9, Subsection A, on page 11, at number 10, says that it shall be a conflict of interest for anyone to hold the position of President and also serve at the same time as a State elected official or who has already been serving as a State elected official.
5. Section 9 governs the eligibility of candidates to run.
6. Common sense would dictate that the purpose of Section 9, when read together with subsection 10, means that someone who is currently serving or has served as a state elected official cannot run; because if you allow that person to run, and they are elected, a conflict of interest is guaranteed.
7. The Election Commission took the position that subsection 10 meant that if Theresa Two Bulls wins then she has to choose between the tribal presidency or the State senate seat. This construction makes no sense. What is the point of running the election process when the winning candidate might be conflicted out of serving?
8. Theresa Two Bulls currently serves as a State of South Dakota Senator and has served as a South Dakota State Senator since 2004. She is on this year’s ballot for the same seat on the South Dakota State Senate. Her candidate bio and ballots for the South Dakota State Senate race 2008 is attached. She is listed as the incumbent for District 27.
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9. In accordance with the laws governing her State office, Theresa Two Bulls is currently sworn under oath to uphold the constitution of the State of South Dakota and the Constitution of the United States of America. Since the inauguration of office of Tribal President precedes that of the State Senate, her terms of office would overlap and she would be in the position of having to concurrently uphold the Constitutions of the State, the U.S.A., AND the Oglala Sioux Tribal Constitution. This generates an unconscionable conflict of interest.
10. Tribal Election Committee member admits in an article in the Rapid City Journal that he has been told by Theresa Two Bulls that she is aware of the conflict of interest and proceeds to make a legal interpretation of the OST Election Code:
OST candidate challenges unsuccessful
By Heidi Bell Gease,
Journal staff Thursday, October 23, 2008 “ …But tribal election commission chairman Sidney Witt said Two Bulls is aware of the conflict of interest. He said she told him that if re-elected, she would not accept the Senate seat if she also is elected tribal president. "(The tribal ordinance) doesn't prohibit someone from running," Witt said. "It just warns them that if they are successful, they can't hold two offices." Clearly, Mr. Witt’s position on the Election Commission does not allow him to render legal opinions related to the Code. If Mr. Witt needed an interpretation of the Code, he should haveasked the Executive Committee to have a Tribal Attorney interpret the Code for the Election Commission.
11. On October 24, 2008, the OST Election Commission informed Russell Means via telephone “the time had passed to protest candidates eligibility.” The Election Code is quite clear regarding this issue:
It is the duty of the Election Commission, not the Complainant to resolve these conflict of interest matters, so the Commission’s position that there is some time bar at issue is nonsensical.
12. We all have to follow the Election Code, so the Election Commission should have immediately disqualified her from running.
13. Consequently now, her name should be removed from the General Election ballot as a clearly erroneous action of the Election Commission.Complainant states under penalty of perjury that all the facts contained in this complaint are true and correct to the best of my information and belief.
WHEREFORE, Complainant requests the following relief from the Commission:
1. Remove Theresa Two Bulls from the ballot for the General Election due to conflict of interest under Section 9, Subsection A, number 10.2. Grant such other relief as may be just and equitable.
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