Oneida Reply Brief by alicejenny

VIEWS: 7 PAGES: 11

									UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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MAISIE SHENANDOAH; ELWOOD FALCON;                                :
DIANE SCHENANDOAH;                                               :
MINOR CHILD Adah Shenandoah by and through                       :
her mother, Diane Schenandoah;                                   :
MINOR CHILD Pete Shenandoah by and through                       :
his mother, Diane Schenandoah;                                   :
MINOR CHILD Cameron Shenandoah by and                            :
through his mother, Diane Schenandoah                            :
DANIELLE PATTERSON;                                              :
MINOR CHILD Clairese Patterson by and through:
her mother, Danielle Patterson;                                  :
MINOR CHILD Jolene Patterson by and through :
her mother, Danielle Patterson;                                  :
MINOR CHILD Preston Patterson by and through :
his mother, Danielle Patterson;                                  :    Docket No.:
VICTORIA SCHENANDOAH-HALSEY; MATTHEW JONES; : 02-CV-1430(NAM/GJD)
MINOR CHILD Wesley Halsey by and through                         :
his mother, VICTORIA Schenandoah-HALSEY;                         :
MINOR CHILD Vincent Halsey by and through                        :
his mother, VICTORIA Schenandoah-HALSEY;                         :
MONICA ANTONE-WATSON                                             :
MINOR CHILD Martina Watson by and through                        :
her mother, MONICA ANTONE-WATSON;                                :
MINOR CHILD KYLE WATSON by and through                           :
his mother, MONICA ANTONE-WATSON;                                : PLAINTIFFS’
LAWRENCE THOMAS and ARNOLD THOMAS;                               : MEMORANDUM OF LAW
                                   Plaintiffs,                   : IN REPLY TO THE
              - against -                                        : OPPOSITION BY
ARTHUR RAYMOND HALBRITTER; PETER CARMEN                          : DEFENDANTS’ TO
MARILYN JOHN; DICK LYNCH, PAUL RINKO                             : PLAINTIFFS’ MOTION
STEWART F. HANCOCK; RICHARD SIMONS;                              : FOR PRELIMINARY
ARTHUR PIERCE; GARY GORDON; ‘JOHN DOES’                          : INJUNCTION
being all members of the Men’s Council;                          :
‘Jane Does’, being all members of the                            :
Clan Mothers; JEFF JOST; JACK McQUEENIE;                         :
DAN CAPUTO; KEVIN STORM; CHRIS MANWARING;                        :
GENE RIFENBURG; LARRY KUTZ; OFFICER URTZ;                        :
FRANK SIMINELLI; LORI BILLY; CORKY RYAN;                         :
KEVIN O’NEIL; DALE ROOD; BILL PENDOCK; and                       :
Oneida Housing Corporation                                       :
                                   Defendants.                   :
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Donald R. Daines, Esq.(105953) Pro Bono Attorney for Plaintiffs,
202 Carnegie Center Princeton, New Jersey (609) 734-6335 tel (609) 452-1888 fax
       This Memorandum of Law on behalf of the plaintiffs Replies to the Defendants‟

Opposition to Plaintiffs‟ Motion for Preliminary Injunction and is filed pursuant to

L.R.7.1(c)(1) and (2).     This is a civil rights habeas corpus action brought by plaintiffs

residents of the 32-acre Oneida Indian Reservation (the Sovereign Territory) seeking relief

under the Indian Civil Rights Act (ICRA) against the defendants who individually and

collectively crafted, adopted and are enforcing the so-called „housing‟ ordinance. Presently

before the Court are two motions:

       (a) by defendants to dismiss plaintiffs' complaint, pursuant to Rule 12(b)(6) of the
       Federal Rules of Civil Procedure, arguing that it fails to state a claim upon which
       relief can be granted; and
       (b) the other by plaintiffs seeking a preliminary injunction prohibiting defendants, and
       any one acting through or under them, from engaging in any and all further
       proceedings against plaintiffs in furtherance of defendants‟ so-called housing
       ordinance.

       The arguments of defendants opposing plaintiffs‟ motion for preliminary injunction

go to the merits of plaintiffs‟ ICRA claims and assert that plaintiffs have not shown a

„likelihood of success on the merits‟.      This is a different standard than applicable to

defendants‟ motion to have plaintiffs‟ complaint dismissed under FRCP 12(b) which, as a

general rule, provides that "a complaint should not be dismissed for failure to state a claim

unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31

L.Ed.2d 263 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

       Clearly, plaintiffs‟ complaint should not be dismissed under Rule 12(b) since it

alleges facts and claims which, if proven to be true, support a finding that plaintiffs‟ rights

under the ICRA have been violated due to the so-called „housing‟ ordinance being a bill of

attainder specifically prohibited under the ICRA.    Further, the undisputed, uncontroverted
and undenied facts, as alleged in the Complaint and set forth in the numerous Affidavits filed

by plaintiffs, demonstrate the need and entitlement of plaintiffs to a preliminary injunction to

protect them during the pendency of this action.

          In subsection „A‟ of their „Memorandum in Opposition to Plaintiffs‟ Motion for

Preliminary Injunction‟, defendants argue that plaintiffs will suffer no irreparable harm under

the so-called „housing‟ ordinance. Defendants dance lightly through the individual „steps‟ of

the „housing‟ ordinance crafted by the defendants and cavalierly conclude that “[i]n the end,

if the homes are found to be unsafe, dangerous and beyond repair, it will not cause

irreparable harm to remove those dangerous conditions.” [Defs‟ Mem. at 13-14 –italics
          1
added].       Defendants seek to side step the admitted and transparent punitive purpose and

intent of the „housing‟ ordinance and attempt to ignore the myriad non-punitive alternatives

which defendants could have used to „remove those dangerous conditions‟ if there purpose
                                    2
were other than punishment.             Subsection B of defendants‟ opposition argues that plaintiffs


1
  Defendants use the phrase “if the homes are found …” in order to further the ruse that the plaintiffs‟ homes
were not immediately condemned for destruction the instant the ordinance was adopted. Defendants selected
standards known to „fail‟ plaintiffs‟ homes coupled with prohibitions preventing plaintiffs from being able to
cure any „defect‟. One example is the ordinance requires homes on the Territory without foundations to be
destroyed (knowing that plaintiffs‟ homes do not have foundations) combined with another of defendants‟
ordinance No. 0-98-03, Article 7(5)(b) prohibiting the moving of homes in order to put it on a foundation,
thereby destruction of plaintiffs‟ homes was designed into the ordinance from the outset. [see Garber‟s
Declarations] Contrary to defendants‟ false assertion [Defs Mem. at 1], the plaintiffs strongly dispute the
defendants‟ claim that their homes are „unsafe‟. Exhibit A of Danielle Patterson‟s 11/12/02 Affidavit contains
proofs that her home could have been repaired but for the defendants‟ actions in furtherance of their purpose to
use the „housing‟ ordinance to forcibly evict her from the Territory and prevent her from being able to come
into compliance with the ordinance.
2
  Giving defendants the benefit of the doubt (and contradicting the admission by defendant Rinko), the
defendants are presumably referring in this sentence to the „housing‟ conditions as the „dangerous conditions‟ to
be „removed‟ and not to the plaintiffs themselves. If the purpose of the so-called „housing‟ ordinance were not
to „remove‟ the plaintiffs themselves (whom defendants had labeled „dissidents‟ and „not in good standing‟),
then the punitive destruction of plaintiffs‟ homes without extending the assistance necessary and needed for
them to remain on the Territory would not have been included in the ordinance.
The targeted, disparate treatment of the plaintiffs as „not in good standing‟ under the ordinance conclusively
evidences the punitive purpose behind the ordinance and confirms the intention of defendants to use it as a
subterfuge to forcibly evict and remove the plaintiffs from the Territory. There is no other explanation for
defendants to differentiate between the treatments of „in good standing‟ from „not in good standing‟ other than


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are entitled to no preliminary injunction because they „have not shown a likelihood of

success on the merits.” [Defs Mem., at 14]

        In all of their filings, defendants have completely failed to refute the Plaintiffs‟ claims

under the Indian Civil Rights Act that the real purpose of the entire so-called „housing‟

ordinance (including each and every step in the process) was to forcibly evict and remove

plaintiffs from the Territory and inflict additional punishment upon them based upon and in

furtherance of the long, well documented dispute between defendants and plaintiffs.

Defendants attempt to cloak themselves in the very subterfuge and deception they devised,

but their own admission, the express language of the ordinance itself and the facts

surrounding the long dispute directly contradict defendants‟ assertions.

        Conspicuously missing from defendants filings is any denial of the express and

specific admissions by defendant Rinko to Attorney Barbara Olshansky that Eleanor Smith

(an attorney employed by one of the several law firms used by the defendants) admitted that

the defendants had directed her and others to devise a scheme by which to “evict the plaintiffs

and other „dissidents‟ from the 32-acre Oneida Nation territory.” [Olshansky Declaration, at

p. 2, par. 3]     The defendants further did not deny the admission by defendant Rinko that

defendants made a “decision ….. to develop a health and safety housing plan that could be

used to accomplish the same ends [forcible eviction of the plaintiffs from their homes and

from the 32-acre Territory] and provide a seemingly “legitimate” justification for ridding




to inflict additional punishment upon those previously identified „not in good standing‟. Defendants offer no
explanation or rationale for the different treatment.
   Comparing Exhibit 7 of Garber‟s 12/23/02 Declaration against Exhibit 19 of the same Declaration further
confirms defendants‟ real purpose of enabling „good standing‟ members to rebuild on the Territory while not
only failing to extend such option to „not in good standing‟, but making certain that „not in good standing‟
plaintiffs did not have the financial ability to do so.


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the Territory of the dissidents”. [Olshansky Declaration, at p. 2, par. 3]                      In the very real

sense, defendants intended and designed the „housing‟ ordinance to punish the plaintiffs by

making them homeless refugees driven from the 32-acre Sovereign Territory, the only
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homeland many of the plaintiffs have ever known.

ELEMENTS AND PROOFS OF BILL OF ATTAINDER
    As stated in plaintiffs‟ prior Memorandum, the Supreme Court has defined bills of

attainder as:




3
  The farce and charade of the „housing‟ ordinance is further revealed by the defendants‟ own actions against
Danielle Patterson. Rather than help Danielle repair or replace her home in place, the defendants used the
ordinance to prevent her from receiving a new HEAP furnace (after HEAP found her home suitable for same)
and also from moving her „trailer‟ in order to have it placed on a foundation, and then used both conditions as
reasons why her home „had‟ to be destroyed, rendering her homeless. [see Garber Declaration 02/05/03 and
12/23/02; also see Affidavits of several Plaintiffs] Defendants disingenuously argue that the plaintiffs are
better off homeless than living in their present homes.
   Defendants also attempt to claim that the „motivation‟ behind the „housing‟ ordinance was a tragic fatal fire
many years ago, however, they fail to disclose that the victims of that fire had to heat and light their homes by
candle and that the defendants themselves were part of the Warrior Society which prevented the municipal fire
services from entering onto the Territory in order to save them. See Thompson et al. vs. State of New York,
Halbritter, et al, 487 F. Supp. 212 (N.D.N.Y. 1979). Defendants fail to explain how the newly imposed
requirement that homes without foundations must be destroyed relates to „fire‟ safety nor why they do not use
other measures (there still is no Fire Department) to achieve this laudatory goal.
4
   Defendants attempt to „down play‟ the forced eviction from their homes and „relocation‟ off of the 32-acre
Sovereign Territory aspects of the „housing‟ ordinance by referring to their „offer‟ of „alternative‟ rental
housing in a development called „White Pines‟. The offer of rental housing off of the 32-acre Territory is not
compensation nor equivalent to living in one‟s own home on the only „unviolated ‟ Sovereign Territory of the
Oneida People. Further, this begs the issue of plaintiffs‟ lifelong residency on the Sovereign Territory and
their desire to continue doing so. Additionally, the „White Pines‟ project has not been confirmed as being
„sovereign‟ territory of equal stature as the 32-acre Territory, in spite of the assertion by defendants. Upon
information and belief, the question of whether newly acquired property outside of the Sovereign 32-acre
Territory can be subject to property tax is still under appeal and unresolved, pending before the Second Circuit
Court of Appeals in Manhattan. The White Pines might be subject to property taxes.
   In addition, there is growing discontent about the „tax-exempt‟ claims of the Oneida Nation. Recent decisions
further evidence erosion. “The Tribe's interests in raising revenues simply cannot outweigh the State's
legitimate interest in raising revenues through its system of taxation.” Prairie Band Potawatomi Nation v.
Richards, 2003 WL 136197, *11 (D.Kan.,2003) (opinion attached per Local Rules)
          Consequently, it is far from settled that plaintiffs would have the same status, rights, benefits,
immunities and protections if they were evicted from the Territory and forced to occupy rental housing in White
Pines. It is incredulous (yet consistent with everything else the defendants have done to the plaintiffs) that the
defendants would even argue that to the plaintiffs (who adhere to the Traditions of the Oneida and
Haudenosuanee) there is no difference between living on the Sovereign 32-acre Territory (where many have
lived for 40 years) and living in a multi-family, duplex complex in a non-sovereign development. The
plaintiffs cling to the indisputable fact that they live on Oneida Sovereign Territory and the defendants, by their
own admission, designed the „housing‟ ordinance to evict and remove them from it.


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            ... legislative acts, no matter what their form, that apply either to named
            individuals or to easily ascertainable members of a group in such a way
            as to inflict punishment on them without judicial trial.
             United States v. Lovett, 328 U.S. 303, 315 (1945).

         The Bill of Attainder Clause serves as an important “bulwark against tyranny”.

United States v. Brown, 381 U.S. 437, 443, 85 S.Ct. 1707, 1712, 14 L.Ed.2d 484 (1965) The

determination of whether a legislative act constitutes an impermissible bill of attainder is

very fact dependent and requires an examination of the legislation under the historical,

functional and motivational tests. In an attempt to oppose plaintiffs‟ claims, Defendants

mischaracterize and misinterpret several decisions about bills of attainder.

         Defendants cite Selective Service System v. Minnesota Public Interest Research

Group , 468 U.S. 841, 104 S.Ct. 3348, (U.S.1984) as being relevant to this matter, however,

Selective Service is easily distinguishable and rendered inapplicable on several grounds. The

Court in Selective Service found

         [a]s this Court held in Flemming v. Nestor, supra, 363 U.S., at 617, 80 S.Ct., at 1376,
         "the sanction is the mere denial of a noncontractual governmental benefit. No
         affirmative disability or restraint is imposed," and Congress has inflicted "nothing
         approaching the 'infamous punishment' of imprisonment" or other disabilities
         historically associated with punishment. Id. 468 U.S. 841, 852-853

         In addition, the Court in Selective Service looked carefully at the Legislative History

of the subject Act and found that the noncontractual benefits could easily be restored by the
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individual simply filling out a form, thus making it easy to cure.                 There was no „subjective‟


5
  The Court in Selective Service noted from the legislative history “As Senator Stennis stated: „I thought of the
proposition here where some youngster might have overlooked signing up or might have misunderstood it or
had not been correctly informed, but he is not going to be penalized for that because he still has complete
control of the situation. All he will have to do is just to comply with the law, and that will automatically make
him eligible so far as this prohibition or restriction is concerned.‟ “ Id., at 9666
  As with all Bill of Attainder causes, the „legislative history‟ of the defendants‟ efforts, as described by
defendant Rinko, to devise a scheme by which to “evict the plaintiffs and other „dissidents‟ from the 32-acre
Oneida Nation territory” will be important to the court‟s analysis as to whether the real purpose of the
„housing‟ ordinance was to inflict additional punishment and property deprivation upon the plaintiffs.
Therefore, the internal memorandums, correspondences, analysis and various draft ordinances exchanged


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determination of whether the individual was a U.S. Citizen in „good standing‟ or „not in good

standing‟; the mere completion and filing of a form would cure the impediment to receiving

future benefits. Clearly, Selective Service is irrelevant to this matter because it involved no

forcible, armed eviction from private homes followed by confiscation and destruction of

those private property homes, as such punishment is historically associated with bills of

attainder. Furthermore, also contrary to Selective Service, there is proof (as well as

defendants‟ own admission) in this present matter of a punitive intent and purpose behind the

„housing‟ ordinance, using „not in good standing” as a label by which to identify and target
                                             6
the plaintiffs for punitive treatment.



between and among the several defendants are directly evidential of the defendants‟ intent and must be
preserved in order to be produced and examined as part of these proceedings.
6
  Defendants incorrectly characterize this dispute as being over money given to „good standing‟ versus „not in
good standing‟. Defendants further allege that plaintiffs could gain access to the money by simply appearing
before them and becoming members „in good standing‟. However, this is not only impossible and futile under
the circumstances, but repugnant to the plaintiffs for the same reason that the U.S. Supreme Court held that
requiring „Oaths‟ from Confederate soldiers constituted an improper bill of attainder. The Court in Selective
Services stated:
         Historically, bills of attainder generally named the persons to be punished. However, "[t]he singling
         out of an individual for legislatively prescribed punishment constitutes an attainder whether the
         individual is called by name or described in terms of conduct which, because it is past conduct,
         operates only as a designation of particular persons." Communist Party of the United States v.
         Subversive Activities Control Board, 367 U.S. 1, 86, 81 S.Ct. 1357, 1405, 6 L.Ed.2d 625 (1961). When
         past activity serves as "a point of reference for the ascertainment of particular persons ineluctably
         designated by the legislature" for punishment, id., at 87, 81 S.Ct., at 1405, the Act may be an attainder.
         See Cummings v. Missouri, 4 Wall. 277, 324, 18 L.Ed. 356 (1867).
           In Cummings the Court struck down a provision of the Missouri post-Civil War Reconstruction
         Constitution that barred persons from various professions unless they stated under oath that they had
         not given aid or comfort to persons engaged in armed hostility to the United States and had never "
         'been a member of, or connected with, any order, society, or organization, inimical to the government
         of the United States.' " Id., at 279. The Court recognized that the oath was required, not "as a means of
         ascertaining whether parties were qualified" for their professions, id., at 320, but rather to effect a
         punishment for having associated with the Confederacy. Although the State Constitution did not
         mention the persons or groups required to take the oath by name, the Court concluded that in creating a
         qualification having no possible relation to their fitness for their chosen professions, the Constitution
         was intended "to reach the person, not the calling." Ibid.
           On the same day that it decided Cummings, the Court struck down a similar oath that was required
         for admission to practice law in the federal courts. Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1867).
         Like the oath considered in Cummings, the oath "operate[d] as a legislative decree of perpetual
         exclusion" from the practice of law, id., at 377, since past affiliation with the Confederacy prevented
         attorneys from taking the oath without perjuring themselves. See Cummings v. Missouri, supra, at 327.


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           Similarly, defendants misplace reliance upon WMX Technologies, Inc. v. Gasconade

County, Mo. 105 F.3d 1195, (C.A.8 (Mo.),1997).                       Not only did the court in WMX find

absolutely no evidence which would support a claim of intent to inflict punishment, but the

Court determined that the ordinance in WMX did not require the closure of the existing

landfill, but only addressed future expansion and new land fill operations throughout the
             7
county.          The facts and findings in WMX are directly inapposite to the presence matter.

           Likewise, defendants incorrectly argue that Nixon v. Administrator of General

Services, 433 U.S. 425, 97 S.Ct. 2777, (U.S.Dist.Col., 1977) supports their claim that

defendants‟ „housing‟ ordinance is not a Bill of Attainder. As with WMX and Selective

Service, the Court in Nixon found that the legislative record behind the challenged legislation
                                                                                                            8
did not support any claim of punitive purpose nor inflict historical punishment.                                The



           In both Cummings and Garland, the persons in the group disqualified were defined entirely by
           irreversible acts committed by them.
              Selective Service System v. Minnesota Public Interest Research Group 468 U.S. 841, *847-848,
           104 S.Ct. 3348,**3352 - 3353 (U.S.1984)
7
    The Court in WMX found
          There is no evidence the Commissioners intended to punish Waste Management by enacting the
          ordinance. We agree with the district court that Waste Management's allegations do not rise to the level
          of suggesting an intent to punish appellants for any past wrongdoings. [FN8] Nixon, 433 U.S. at 478,
          97 S.Ct. at 2808. Waste Management's bill of attainder was properly dismissed for failure to state a
          claim.
          FN8. Indeed, appellants do not argue that the ordinance punishes them for their past conduct in
          operating a landfill. Rather, they claim the ordinance was designed to stop their plans for future
          expansion of the landfill.
            WMX Technologies, Inc. v. Gasconade County, Mo. 105 F.3d 1195, *1203 (C.A.8 (Mo.),1997)
8
    The Court in Nixon stated:
          The District Court unequivocally found: 'There is no evidence presented to us, nor is there any to be
          found in the legislative record, to indicate that Congress' design was to impose a penalty upon Mr.
          Nixon . . . as punishment for alleged past wrongdoings. . . . The legislative history leads to only one
          conclusion, namely, that the Act before us is regulatory and not punitive in character.' 408 F.Supp., at
          373 (emphasis omitted). We find no cogent reason for disagreeing with this conclusion. ….. The
          relevant Committee Reports thus cast no aspersions on appellant's personal conduct and contain no
          condemnation of his behavior as meriting the infliction of punishment.
          …
             In this respect, the Act stands in marked contrast to that invalidated in United States v. Lovett, 328
          U.S., at 312, 66 S.Ct., at 1077, where a House Report expressly characterized individuals as
          'subversive . . . and . . . unfit . . . to continue in Government employment.' H.R.Rep. No. 448, 78th


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legislative history in this matter will reveal the punitive purpose of the ordinance, as

confirmed by defendants‟ own admission and as corroborated by the facts and events

including the well-documented historical dispute between the parties.

         The present matter is more on point with Davis v Kinloch, 752 S.W. 2d 420 (Mo. Ct.

App. 1988) in which the court found that the legislative act of defendants sending a letter

revoking the plaintiff‟s license to continue operating his restaurant constituted a prohibited

bill of attainder.        In Davis, as is here, there was a well-documented historical dispute

between the parties and in furtherance of that dispute, the mayor revoked the right of the

plaintiff to continue operating his restaurant.             Here, the plaintiffs have lived peacefully on

the Territory for over 40 years without the need for an „occupancy permit‟ s or being required
                                     9
to meet subjective standards.

         Directly contrary to Nixon, WMX and Selective Service, but consistent with Davis,

the sanctions imposed upon the plaintiffs by the so-called „housing‟ ordinance include the

deprivation of the right to continue living in their homes on the Territory; the forced removal



         Cong., 1st Sess., 6 (1943). We, of course, do not suggest that such a formal legislative announcement
         of moral blameworthiness or punishment is necessary to an unlawful bill of attainder. United States v.
         Lovett, supra, at 316, 66 S.Ct. at 1079. But the decided absence from the legislative history of any
         congressional sentiments expressive of this purpose is probative of nonpunitive intentions and largely
         undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature,
         in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the
         mantle of judge or, worse still, lynch mob. Cf. Z. Chafee, supra, at 161. [FN45] No such legislative
         overeaching is involved here.
            Nixon v. Administrator of General Services, 433 U.S. 425, *537-539 , 97 S.Ct. 2777,**2838
         (U.S.Dist.Col., 1977) [emphasis added]
9
  The linking of bills of attainder and ex post facto laws is explained by the fact that a legislative denunciation
and condemnation of an individual often acted to impose retroactive punishment. See Z. Chafee, Jr., Three
Human Rights in the Constitution of 1787, pp. 92-93 (1956). Following the Revolutionary War, States often
seized the property of alleged Tory sympathizers. See, e. g., James's Claim, 1 Dall. 47, 1 L.Ed. 31 (1780) ('John
Parrock was attainted of High Treason, and his estate seized and advertised for sale'); Respublica v. Gordon, 1
Dall. 233, 1 L. Ed. 115 (1788) ('attainted of treason for adhering to the king of Great Britain, in consequence of
which his estate was confiscated to the use of the commonwealth . . .'). Defendants‟ „housing‟ ordinance was
designed to do likewise against plaintiffs.



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and eviction from their homes under pain of arrest and imprisonment;                           the condemnation

and destruction of their homes, and being rendered homeless without any means to replace
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the forcibly seized and destroyed homes on the Territory.

FUTILITY
     Defendants originally argued that plaintiffs‟ Complaint should be dismissed for

failure to exhaust Tribal remedies, but when plaintiffs pointed out that the Tribal Court, by

design of the defendants, had no jurisdiction over the claims asserted here, defendants now

allege that plaintiffs have a remedy by going to the defendants themselves who sit on the

appointed „Men‟s Council‟ and „plead‟ their cause. This is even more patently futile (if such

is possible once futility exists) than presenting this dispute to defendant Tribal Court and

equally confirms the futility of seeking „just‟ compensation from the very defendants who

enacted the bill of attainder and subjected plaintiffs to the punishments there under. .

Plaintiffs rely on their prior brief since defendants have presented nothing to contradict the

claim of futility. "That remedies are available in theory, but not in fact, is not synonymous with

failure to exhaust remedies." See United States ex rel. Cobell v. Cobell, 503 F.2d 790 (9th Cir.

1974), cert. denied, 421 U.S. 999 (1975). Rosebud Sioux Tribe of South Dakota v. Driving

Hawk, 534 F.2d 98, 101 (8th Cir. 1976). See also Thorstenson v. Cudmore, 18 Indian L. Rptr.

6051, 6054 (Cheyenne River Sioux Ct. App. 1991) (holding that the Nation cannot “establish


10
   Defendants attempt to wrongly portray plaintiffs as threatening physical resistance of „housing‟ ordinances,
however, plaintiffs have always used only peaceful, nonviolent resistance and legal action to prevent the
destruction of their homes under defendants‟ punitive „housing‟ ordinance. The defendants have written their
ordinance so that there is no way plaintiffs can avoid being in violation of it because their differential treatment
is due to the label „not in good standing‟ based upon prior conduct, a bill of attainder.
11
   The targeting of plaintiffs for punitive provisions under the ordinance is further revealed by the indisputable
fact that Ken Phillips, a member of the “Men‟s Council” lives on „Oneida Land‟ (Marble Hill) in a home
without a foundation the same as the plaintiffs, but the defendants carefully and surgically crafted the
ordinance so that it did not apply to Councilman Phillips due to his living outside of the Sovereign 32-acre
Territory. The ordinance explicitly only applies to homes within the Territory in order to exempt and not punish
Defendant Phillips while targeting plaintiffs. This also contradicts defendants‟ specious „safety‟ claims
pertaining to foundations. See Supplement Affidavit of Diane Schenandoah


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legal norms to regulate civil conduct, but then effectively place the opportunity to pursue

remedial redress in the hands of the alleged wrongdoer....if due process means anything, it

must, at its most fundamental level, mean that the duty to obey the civil law carries with it

the necessary correlative of access to the appropriate tribal forum to be heard”).

CONCLUSION
    The admission by defendants and the indisputable facts conclusively prove the claims

of plaintiffs that the so-called „housing‟ ordinance is a prohibited Bill of Attainder imposing

restraints upon them in violation of the ICRA. Defendants have used force and physically

eject plaintiffs from the Territory as found in Poodry to be suffiecn to for ICRA jurisdication,

as acknowledged by defendants [Defs‟ Mem. at 4]. The habeas corpus relief under the ICRA

is properly requested and needed by plaintiffs being quite simply an order from this court

freeing plaintiffs from the restraints imposed upon them by the defendants per the „housing‟

ordinance and the proceedings including orders to appear before the defendant Tribal Court

under pain of contempt. Defendants either do not realize or do not want to see that each and

every individual step they designed into the „housing‟ ordinance constitutes a „restraint upon

their liberty‟ (Tribal Court Orders against the plaintiffs compelling them to appear before the

Tribal Court; Court Orders authorizing the armed forced entry into plaintiffs‟ homes to

conduct „inspections‟; Court Orders mandating that plaintiffs vacate their homes; Court

Orders authorizing the demolition and destruction, etc.)       Because the „housing‟ ordinance

itself is a bill of attainder, any and all actions or proceedings in furtherance of implementing

or enforcing the ordinance are themselves bills of attainder and unreasonable restraints upon

the liberty of plaintiffs. Accordingly, plaintiffs repeat their prayer for preliminary injunction.

       Respectfully,
       Donald R. Daines, Esq. (105953) Attorney pro bono for Plaintiffs
       February 23, 2003



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