ORDER (Denying Motion for Preliminary Injunction)

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					1                                                IN THE
                                       HO-CHUNK NATION TRIAL COURT
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     Timothy G. Whiteagle,
4          Plaintiff,

5    v.                                                        Case No.: CV 07-84
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     Ho-Chunk Nation Legislature, and, as
7    individuals, Elliot Garvin, Clarence
     Pettibone, Douglas Greengrass, Roberta
8    Decorah, Lawrence Walker, Jr., Daniel
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     Brown, Ona Garvin, Alvin Cloud,
     Kathyleen Lone Tree-Whiterabbit, Greg
10   Littlejohn, Scott Sussman, Sheila Corbine,
     and Wilfrid Cleveland,
11           Defendants.
12

13                                              ORDER
                               (Denying Motion for Preliminary Injunction)
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                                                         INTRODUCTION
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18            The Court must determine whether to grant the plaintiff‟s request for a preliminary
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     injunction, thereby effectively removing the President from his office. The plaintiff, however,
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     failed to substantiate the type of ongoing harm necessary to justify the issuance of an injunction.
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     The Court shall refrain from granting this extraordinary relief, and the case shall instead proceed
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23   in accordance with the established scheduling of the matter.

24

25                                              PROCEDURAL HISTORY

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              The Court recounts the procedural history of the instant case in significant detail in a
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     previous judgment. Order (Prelim. Inj. Hr’g), CV 07-84 (HCN Tr. Ct., Nov. 8, 2007) at 2. For




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1    purposes of this decision, the Court notes that defendants, by and through Ho-Chunk Nation
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     Department of Justice (hereinafter DOJ) Attorney Alysia E. LaCounte, filed a timely Response of
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     Defendants to the Request for Preliminary Injunction on November 19, 2007. Id. at 3. The
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     Court convened the Preliminary Injunction Hearing/Scheduling Conference on November 21,

6    2007 at 9:00 a.m. CST, providing notice of the same through the above-referenced judgment.
7    The following parties appeared at the Hearing/Conference: Timothy G. Whiteagle, plaintiff, and
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     DOJ Attorney Alysia E. LaCounte, defendants‟ counsel.
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                                                    APPLICABLE LAW
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12   CONSTITUTION OF THE HO-CHUNK NATION
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     Art. III - Organization of the Government
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     Sec. 2.       Branches of Government. The government of the Ho-Chunk Nation shall be
15   composed of four (4) branches: General Council, Legislature, Executive, and Judiciary.
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     Art. IV - General Council
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     Sec. 5.        Annual Meetings. The People shall meet in General Council at least one time
18   each year, which shall be called by the President, and at other times as provided in Section 6 of
     this Article. Notice shall be provided by the President for all Annual Meetings of the General
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     Council.
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     Art. VI - Executive
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     Sec. 1.            Composition of the Executive.
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23          (a)   The Executive power of the Ho-Chunk Nation shall be vested in the President of
     the Ho-Chunk Nation.
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            (b)    The Executive Branch shall be composed of any administrative Departments
     created by the Legislature, including a Department of the Treasury, Justice, Administration,
26   Housing, Business, Health and Social Services, Education, Labor, and Personnel, and other
     Departments deemed necessary by the Legislature. Each Department shall include an Executive
27   Director, a Board of Directors, and necessary employees. The Executive Director of the
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     Department of Justice shall be called the Attorney General of the Ho-Chunk Nation. The




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1    Executive Director of the Department of the Treasury shall be called the Treasurer of the Ho-
     Chunk Nation.
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3    Sec. 2.            Powers of the President. The President shall have the power:

4              (j)      To call Annual and Special Meetings of the General Council;
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     Sec. 3.         Qualifications. The President shall be at least thirty-five (35) years old and
6    eligible to vote. No person convicted of a felony shall serve as President unless pardoned.
7    Art. VII - Judiciary
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     Sec. 5.            Jurisdiction of the Judiciary.
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             (a)     The Trial Court shall have original jurisdiction over all cases and controversies,
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     both criminal and civil, in law or in equity, arising under the Constitution, laws, customs and
11   traditions of the Ho-Chunk Nation, including cases in which the Ho-Chunk Nation, or its
     officials and employees, shall be a party. Any such case or controversy arising within the
12   jurisdiction of the Ho-Chunk Nation shall be filed in the Trial Court before it is filed in any other
     court. This grant of jurisdiction by the General Council shall not be construed to be a waiver of
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     the Nation‟s sovereign immunity.
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     Sec. 6.            Powers of the Tribal Court.
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             (a)    The Trial Court shall have the power to make findings of fact and conclusions of
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     law. The Trial Court shall have the power to issue all remedies in law and in equity including
17   injunctive and declaratory relief and all writs including attachment and mandamus.

18   HO-CHUNK NATION RULES OF CIVIL PROCEDURE
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     Rule 60.           Emergency Order, Temporary Restraining Order and Ex Parte Temporary
20                      Restraining Order.

21   (B) Temporary Restraining Order. When it appears from a party‟s pleading that a party is
     entitled to judgment and any part thereof consists in restraining some act, the commission or
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     continuance of which during the litigation would injure the party, or when during the litigation it
23   shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some
     act to be done in violation of the rights of another party and tending to render the judgment
24   ineffectual, a temporary injunction may be granted to restrain such act.
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     (C) Procedure. The application for an injunction or restraining order made to the Court shall not
26   be heard except upon notice to such other persons as may be defendants in the action, unless the
     Court is of the opinion that irreparable loss or damage will result to the applicant unless a
27   temporary restraining order is granted.
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1                                                  FINDINGS OF FACT
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     1.       The parties received proper notice of the November 21, 2007 Preliminary Injunction

4    Hearing/Scheduling Conference.
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     2.       The plaintiff, Timothy G. Whiteagle, is an enrolled member of the Ho-Chunk Nation,
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     Tribal ID# 439A002569, and resides at W10786 Gomer Road, Black River Falls, WI 54615.
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     3.       The defendant, Ho-Chunk Nation Legislature, is a co-equal branch of tribal government
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9    with principal offices located on trust land at Ho-Chunk Nation Headquarters, W9814 Airport

10   Road, Black River Falls, WI 54615. CONSTITUTION                    OF THE   HO-CHUNK NATION (hereinafter
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     CONSTITUTION), ART. III, § 2. The defendants, Elliot S. Garvin; Clarence P. Pettibone; Douglas
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     G. Greengrass; Roberta M. Decorah; Lawrence L. Walker, Jr.; Daniel M. Brown, Sr.; Ona M.
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     Garvin; Alvin Cloud; Kathyleen V. Lone Tree-Whiterabbit; and Gregory A. Littlejohn, are duly
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15   elected legislative representatives of the Ho-Chunk Nation, a federally recognized Indian tribe.

16   See 72 Fed. Reg. 13648 (Mar. 22, 2007). The defendant, Attorney Scott Sussman, serves as legal
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     counsel for the legislative branch.                 The defendant, Attorney Sheila D. Corbine, serves as
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     Attorney General of the Ho-Chunk Nation. See CONST., ART. VI, § 1(b). The defendant, Wilfrid
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     Cleveland, is the duly elected President of the Ho-Chunk Nation. Id., § 1(a).

21   4.          On May 24, 2007, the Court entered a final judgment in an election challenge to the
22   results of the April 24, 2007 General Primary Election in which the plaintiff, Michael J.
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     Sallaway, sought to have the Court acknowledge the felony status of candidate for President,
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     Wilfrid Cleveland. The Court ruled as follows:
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26                      The plaintiff needed to present clear and convincing evidence that Mr.
                        Cleveland was a felon. This cannot be accomplished by the Jackson
27                      County Court file submitted into evidence. It was the burden of the
                        plaintiff to bring in expert witnesses, individuals who were apart [sic] of
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                        the underlying crime, to question Mr. Cleveland, etc. For example, the
                        plaintiff could have subpoenaed, to the extent that they were available,


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1                       then Jackson County Assistant District Attorney, now Jackson County
                        Circuit Court Judge Gerald W. Laabs[,] or the battered police officer,
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                        Alfred Young, in order to discuss the underlying charges, timeframe,
3                       location and so on and so forth. . . . [T]he plaintiff did not unequivocally
                        convince the Court that the defendant violated a section of the ELECTION
4                       ORDINANCE, under the clear and convincing standard.
5
     Michael Sallaway v. HCN Election Bd., CV 07-27 (HCN Tr. Ct., May 24, 2007) at 15-16 (citing
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     ELECTION ORDINANCE, 2 HCC § 6.15b (requiring “the person challenging the election results [to]
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     prove by clear and convincing evidence that the Election Board violated th[e] Election Ordinance

9    or otherwise conducted an unfair election, and that the outcome of the election would have been
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     different but for the violation”).1
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     5.       On June 1, 2007, the Ho-Chunk Nation Supreme Court declined to accept an appeal of
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     the foregoing judgment due to its untimely filing. Order Denying Appeal, SU 07-10 (HCN S.
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14   Ct., June 1, 2007).2

15   6.       On June 27, 2007, the Court entered a final judgment in an election challenge to the
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     results of the June 5, 2007 General Primary Election in which the plaintiffs, Michael J. Sallaway
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     and JoAnn Jones, sought to have the Court acknowledge the felony status of President-elect,
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     Wilfrid Cleveland. The Court dismissed the cause of action on grounds of res judicata, thereby
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20   precluding the plaintiffs “from prosecuting th[e] claim a second time.” Michael Sallaway et al.

21   v. HCN Election Bd. et al., CV 07-47 (HCN Tr. Ct., June 27, 2007) at 14-15.3
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     7.       On June 29, 2007, the Ho-Chunk Nation Supreme Court “denie[d] the appeal and
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     affirm[ed] the [foregoing] Trial Court decision.” Order (Denying Appeal), SU 07-11 (HCN Tr.
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     Ct., June 29, 2007).4

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     1
       An electronic copy of the decision may be accessed on the judicial website at www.ho-chunknation.com/?PageId=
27   115#elect.
     2
       An electronic copy of the decision may be accessed on the judicial website at www.ho-chunknation.com/?PageId=
28   134.
     3
       See supra note 1.
     4
       See supra note 2.


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1    8.       The plaintiff alleges the following harm within his initial pleading, accompanying motion
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     and at the Preliminary Injunction Hearing/Scheduling Conference:
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              a.        “a felon in the office of the President of the Ho-Chunk Nation jeopardizes the
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     continuation of gaming conducted by the Ho-Chunk Nation for the benefit of the People of the

6    Ho-Chunk Nation,” Compl., CV 07-84 (Oct. 23, 2007), Attach. 1 at 1;
7             b.        “a felon, as president, eliminates the chance of the Ho-Chunk Nation concluding a
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     compact with the State of Wisconsin, per the National Indian Gaming Regulatory Act,” id.;
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              c.        “numerous contracts that the President of the Ho-Chunk Nation must execute . . .
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11   cannot be executed by a felon, according to the terms of the contract. Entering into such

12   contracts over the signature of a pseudo-President is a fraudulent act, which is not only
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     punishable at law, but is a disgrace to the People of the Ho-Chunk Nation,” Mot. for Prelim. Inj.
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     Enjoining the Ho-Chunk Legislature from Entering into Contracts that are Signed by Wilfred
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     [sic] Cleveland, the Pseudo-President of the HCN from Attempting to Delegate his Wrongfully
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17   Assumed Signature Auth., CV 07-84 (Oct. 23, 2007) at 2-3;

18            d.        “the General Council . . . was announced by this pseudo-President, Wilfrid
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     Cleveland . . . :          a clear, unmistakable . . . violation of the Constitution,” Prelim. Inj.
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     Hr’g/Scheduling Conference (LPER at 22, Nov. 21, 2007, 10:39:03 CST) (citing CONST., ARTS.
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     IV, § 5, VI, § 2(j)); and
22

23            e.        “every Ho-Chunk warrior, man or woman, believe [sic] that prestige is . . . very
24   important, and lowering of that status of prestige . . . or lowering of integrity, and acting
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     cowardly or shamefully, that has great value in our tribe, something that is written about,
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     something that is sung about over centuries,” id. at 23, 10:42:36 CST.
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1    9.       The plaintiff offered no evidence to substantiate the first three (3) assertions of harm.
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     The fourth assertion of harm represents a past occurrence. The final assertion of harm, similar to
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     a claimed constitutional injury, does represent an allegedly ongoing harm.
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                                                         DECISION
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7             The plaintiff must capably assert standing to maintain his cause of action. In other
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     words, the plaintiff must present an active case or controversy to the Court for adjudication. See
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     CONST. ART. VII, § 5(a); see also Clarence Pettibone v. HCN Legislature et al., CV 01-84 (HCN
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11   Tr. Ct., May 15, 2002) at 9-26. As a component part of standing, the plaintiff must demonstrate

12   that he “„personally has suffered some actual or threatened injury as a result of the putatively
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     illegal conduct of the defendant[(s)].‟” Pettibone, CV 01-84 at 10 (quoting Valley Forge Coll. v.
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     Americans United, 454 U.S. 464, 472 (1982)).
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              The plaintiff remains uniquely aware of this constitutional prerequisite, having faltered
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17   on this requirement in the past. Timothy G. Whiteagle et al. v. Alvin Cloud, Chair of the Gen.

18   Council, in his official capacity, et al., CV 04-04 (HCN Tr. Ct., Aug. 5, 2004), aff’d in part, SU
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     04-06 (HCN S. Ct., Jan. 3, 2005).                   The cited appellate decision includes the following
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     articulation of the issue: “[w]hile this Court is troubled by some of the allegations of the
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     Appellants, the Appellants‟ claims fail to allege an actual harm, which is redressable by the
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23   Court and fail to allege actual concrete injury to the named Appellants.” Whiteagle, SU 04-06 at
24   12. The plaintiff again fails to allege an “actual concrete injury” in relation to assertions
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     appearing within his initial pleading and accompanying motion.
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              The Court, however, shall refrain at this preliminary stage from ruling whether each of
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     the plaintiff‟s asserted injuries prove constitutionally sufficient. Rather, the Court simply rules




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1    that the ongoing harm, if any, does not warrant the Court granting the extraordinary relief
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     afforded by a preliminary injunction. See Coalition for Fair Gov’t II v. Chloris A. Lowe, Jr., as
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     Chairperson of April 27, 1996 Gen. Council, et al., CV 96-22 (HCN Tr. Ct., May 21, 1996) at 7,
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     aff’d, SU 96-02 (HCN S. Ct., July 1, 1996) (acknowledging “that a preliminary injunction is an

6    extraordinary remedy not to be issued lightly”); see also Bandini Petroleum Co. v. Superior
7    Court, Los Angeles County, 284 U.S. 8, 12 n.2 (1931). The plaintiff asks that the Court grant his
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     ultimate request for relief throughout the pendency of the suit on the basis of a generalized
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     assertion of injury. The plaintiff presented no evidence, testimonial or documentary, capable of
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11   justifying the necessity for such relief. The plaintiff asserts no harm that must be immediately

12   abated, and the Court shall accordingly require the plaintiff to satisfy his burden of production as
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     this case progresses toward trial. See Ho-Chunk Nation Rules of Civil Procedure, Rule 60(B).
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              The parties retain the right to file a timely post-judgment motion with this Court in
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     accordance with HCN R. Civ. P. 58, Amendment to or Relief from Judgment or Order.
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17   Otherwise, “[t]he time for taking an appeal shall begin from the date the judgment is filed with

18   the [Trial Court] Clerk [of Court].” HCN R. Civ. P. 57. Since this decision represents a non-
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     final judgment, “[a]n appeal from [this] interlocutory order maybe [sic] sought by filing a
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     petition for permission to appeal with the Supreme Court Clerk within ten (10) calendar days
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     after the entry of such order with proof of service on all other parties to an action.” Ho-Chunk
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23   Nation Rules of Appellate Procedure, Rule 8.5
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      Parties can obtain a copy of the applicable rules by contacting the Ho-Chunk Nation Judiciary at (715) 284-2722 or
     (800) 434-4070 or visiting the judicial website at www.ho-chunknation.com/?PageID=123.


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1             IT IS SO ORDERED this 12th day of December 2007, by the Ho-Chunk Nation Trial
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     Court located in Black River Falls, WI within the sovereign lands of the Ho-Chunk Nation.
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     Honorable Todd R. Matha
6    Chief Trial Court Judge
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