Means Files Injunction in Fish-in

Text of Federal Injunction Filed in Rapid City on October, 14, 2008

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

Plaintiff Russell Means now moves this Court to enter a preliminary injunction to stay the two state court actions presently pending against Mr. Means (State v. Means, Citation No. K243509, pending in the Circuit Court for the State of South Dakota, and State v. Means, No. 08-16162, in the Seventh Judicial Circuit Court for the County of Pennington in Rapid City, South Dakota), on the grounds that Mr. Means can establish a likelihood of success on the liability of his claims that the two state court actions violate treaty rights between the United States and the Lakotah Sioux Nation, and that Mr. Means will suffer irreparable harm if the two state court actions are not stayed.

In support hereof, Mr. Means relies on the Verified Complaint filed herewith and the reasons set forth below.

There are currently pending in the state courts of South Dakota two criminal actions against Mr. Means which violate treaties between the Lakotah Sioux Nation and the United States and which hence violate the Constitution of the United States. Mr. Means has established a likelihood of success on the merits.

The Lakotah Sioux Nation has entered into two Treaties with the United States which establish the controlling law in this matter.

On September 17, 1851, the Lakotah Sioux Nation, among other Indian Nations, entered into a Treaty with the United States known as the Fort Laramie Treaty. (Attached to the Verified Complaint is a Exhibit A is a true and complete copy of said Treaty.)

Article V of the 1851 Treaty provided in pertinent part: It is, however, understood that, in making this recognition and acknowledgment, the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.

Thus, by the 1851 Treaty, the Lakotah Sioux Nation retained the right to travel over the land where Mr. Means received the ticket, and the State of South Dakota lacked authority to impose any restrictions upon Mr. Means’ right, and retained the right to fish in the area where Mr. Means is charged with fishing without a license.

In 1868, the United States entered into another Treaty with, among other Indian Nations, the Lakotah Sioux Nation. (Attached to the Verified Complaint as Exhibit B is a true and complete copy of said Treaty). By this treaty, the United States, among other binding promises, recognized the Black Hills as being set aside for exclusive use by the Sioux people.
Article 17 of the 1868 Treaty provided:
It is hereby expressly understood and agreed by and between the respective parties to this treaty that the execution of this treaty and its ratification by the United States Senate shall have the effect, and shall be construed as abrogating and annulling all treaties and agreements heretofore entered into between the respective parties hereto, so far as such treaties and agreements obligate the United States to furnish and provide money, clothing, or other articles of property to such Indians and bands of Indians as become parties to this treaty, but no further.

Thus, the 1868 Treaty did not abrogate any of the sovereignty and land agreements of the 1851 Treaty.
“All courts, state and national must take judicial notice and be governed by a Treaty of the United States as a law of the land.” United States v. Rauscher, 119 US 407, 419-20 (1886)(Emphasis added). See also Maiorano v. Baltimore & O.R.R.Co., 213 US 268 (1909)(“Treaty, within limits of treaty making power, by express words of Art. VI, cl. 2, is Supreme Law of Land, binding alike national and state courts, is capable of enforcement, and must be enforced by them in litigation of private rights.’”)

Since a Treaty is the Supreme law of the land, this Court must both take judicial notice of, and apply in this case, the 1851 Treaty which prohibits this state from restricting Mr. Means’ right to travel over the land at issue since he had a Treaty right to travel over the land.

The State of South Dakota had no power or authority to impose limitations upon Mr. Means right to travel freely over the area in question. The State of South Dakota had no power or authority to impose limitations upon Mr. Means right to fish in the area in question.
Mr. Means has also established irreparable harm if the requested relief is not granted. A violation of a Constitutional provision per se constitutes irreparable harm. This is an issue of public importance which requires this Court’s intervention.

WHEREFORE, Plaintiff requests that this Court Court grant him the requested relief.

Criminal Indictment for Fish-in at Sheridan Lake

APNewsNow.

SIOUX FALLS, S.D. (AP) American Indian activist and actor Russell Means has gone to court over a Black Hills fishing protest.

Prosecutors charged Means for fishing without a license after an August protest at Sheridan Lake. Means responded by filing a federal lawsuit, asking for a preliminary injunction. He argues that the charge is a violation of the 1851 Fort Laramie Treaty.

Means makes the same argument about his January citation for driving with a suspended license in Tripp County. Under the treaty, Means says the Sioux did not surrender their hunting, fishing and traveling privileges in western South Dakota to the federal government.

Information from: Argus Leader, http://www.argusleader.com (Copyright 2008 by The Associated Press. All Rights Reserved.) APNP 10-15-08

Ignoring decades of fishing rights cases AND the Treaty of 1868, Larry Long, South Dakota Attorney General, has indicted Russell for his non-violent act of fishing at Sheridan Lake in August. This is an outrageous and desperate attempt to usurp the jurisdiction of the Federal Government in Treaty Issues.

Fort Laramie Treaty of 1868,

‘The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.’

1942 United States Supreme Court Ruling, “Viewing the treaty in this light we are of the opinion that the state is without power to charge the Yakimas a fee for fishing.”