-3791 No______

IN THE

• OF THE UNITED STATES

DANNY D BISSONETTE, Supreme court, U.S. Petitioner/Appellant, FILED AUG22 2018

VS. OFFICE OF THE CLERK

BR•ENT FLUKE, Warden, Mike Durfee State Prison (Successer of DOOLEY) ROBERT DOOLEY, Warden; DAVID GILBERTSON; Chief Justice Supreme Court; CRAIG:PFEIFLE, Cir. Court Judge Seventh Cir. Respondent ' s/Appellees

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

a

PETITION FOR CERTIORARI

Danny D. Bissonette #15533 Mike Durfee State Prison 1412 Wood Street Springfield, South Dakota RECEWED 57062 Phone No. N/A SEP 25 2018 OFFICE OF THE CLERK SUPREME COURT, U.S. QUESTION(S) PRESENTED

1.. Did the Seventh Judicial of Pennington County. South Dakota error when it failed to set-aside the Judgment of Conviction, once it was notified Petitioner .. anEnrolled Member of aFederally recognized Indian Tribe, and he was living in Indian County, yet he had been prosecuted by the STATE OF SOUTH DAKOTA?

2. Did the SOUTH DAKOTA SUPREME OOURT, error when it failed to provide remedy to Petitioner by overturning the Seventh Judicial Circuit Court of Pennington County, South Dakota's denial for remedy concerning an Enrolled Tribal Member of a Federally recognized Tribe, who was unlawfully prosecuted by a STATE Court?

30 Did the U.S. DistrictyCourt of South Dakota, Western Division, error when it denied Petitioner the right to use Title 28 U.S.C...--,.Sec. 2241 to attack a Fort Laramie Treaty Violation which is causing him to be incarcerated unlawfully in a STATE Prison?

4. Did the Eighth Circuit Court of Appeals e.irro.r when it affirmed the U.S. Distict Court of South Dakota, Western Division's denial of Petitioner's use of Title 28 U.S.C. Sec. 2241 to attack a Fort Laramie Treaty Violation which is causing him to be incarcerated unlawfully in a STATE Prison?

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I - t LIST OF PARTIES

All artiis e:artn the Captionscoi the Case on the Cover Page as follows:

BRENT FLUKE, Warden of Mike Durfee State Prison. Mr. FLUKE, recently assumed the duties of Warden, after ROBERT DOOLEY retired

Address: Mike Durfee State Prison att: BRENT FLUKE 1412 Wood Street Springfield, South Dakota 57062

ROBERT DOOLEY, former Chief Warden of Prison Operations. DOOLEY, recently retired.

Address: ROBERT DOOLEY, address unkown. It is believed that he lives in the Yankton, South Dakota area.

DAVID GILBERTSON, Chief Justice of the SOUTH DMOYA SUPREME Court.

Address: SOUTH DAKOTA SUPREME COURT att: DAVID GILBERTSON 500 East Capitol Ave. Pierre, South Dakota 57501

CRAIG PFEIFLE, Circuit Court in the Seventh Judicial Circuit Court in Pennington County, South Dakota

Address: Seventh Judicial Circuit Court att: CRAIG PFEIFLE P.O. Box 230 Rapid City, South Dakota 57709-0230

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TABLE OF CONTENTS Item(s) Page(s)

- Question(s) Presented: I - List of Parties: ii Table of Contents/Index of Appendices: iii Table of Authorities Cites: iv Opinions Below: 1 Jurisdiction: 1-A Constitutional and Statutory Provision Involved 2 Statement of Cases: 3-4 Legal Argument(s): 49 Reason(s) for Granting Writ: 10-13 Conclusion: 13-14 Acknowledgement/Certificate of Service 15 INDEX OF APPENDICES Appendix (A) 1,4 Appendix (B) 1,4 Appendix (C) 1,3,5 Appendix D) 1,3 Appendix (D-1) 3 Appendix (C-1) 3 Appendix (D-2). 5

(i.li) TABLE OF AUTHORITIES CITED

Case(s) Page(s) Bissonette v. Dooley, 1 Johnson v. McIntosh, 7 Cherokee Nation v, Georgia, 7 Norton v. Shelby County, .7 Chicago I & L.R. Co. v. Hackett, 7 United States v. Van Chase, 8 Williams v. Lee, 9X 2 United States v. John, 9 Vene tie, 9 Hydro Res., 9 Ex Parte Crow Dog, 9 Tsosie v. United States, 9 BelLy. U.S. 11 Coleman v. Thompson, 12 Hadjuk v. U.S., 12 Jackson v. Carlson, 12 Herrera v. Collins, 13 Pemberton v. Collins, 13 State v. Molash, 14

Code(s) and Treaties: Fort Laramie Treaty; 1, 2,3,5, 10, 11, 12,13,14 Title 28 U.S.C. sec 2241; 2,3,5,11,12, 13.. Title 28 U.S.C. sec. 2254; 2,3 SDCL 22-30A-17; 2,3., 4 Title 28 U.S.C. sec 1331(a); 10 Title 18 U.S.C. sec. 3232 10

(iv) IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

* * * * * * * * * * * * * * * * * * * * * * * Petitioner respectfully prays that a Writ of Certiorari issue to review the judgment(s) below.

OPINIONS BELOW FEDERAL CASES: The opinion of the United States Court of Appeals for the Eighth Circuit appears at Appendix (A) to the Petition and is unpublished

The opinions.oif the United States Disrtict Court for the District of South Dakota, Western Division, appears as Appendix (B) to the Petition and is reportedat: Bissonette v. Dooley, 2Q17U.S. Dist. LEXIS 146476; Bissonette v. Dooley, 2017 U.S. Dist....LEXIS 149336; Bissonette v. Dooley, 2017 U.S. Dist. LEXIS 86; and Bissonette v. Dooley, 2017 U.S. Dist. LEXIS 188863.

STATE CASES: The opinion of the highest State Court is the South Dakota Supreme Court to review the merits appears at Appendix (C) to. the Petition.and is unpublished. Furthermore, after various, attempts to remedy Petitioner's unlawful incarceration within the S.D. Supreme Court he realized the incarceration was in violation of the Fort Laramie Treaty, and he proceeded with that claim in the Federal District Court.

The opinion of the Seventh Judicial Circuit Court of Pennington County, South Dakota appears at Appendix (D) tothe Petition and is unpublished. It contains various denialsf.&Lfférent attempts Petitioner used to overcome his unlawful incarceration. Furthermore after these denials Petitoner realized he was incarcerated in violation of the Fort

Laramie Treaty, and proceeded with that claim in the Federal District Court of South Dakota, Western Division.

(1) S

C JURISDICTIONAL STATEMENT

The Judgment of United States Court of Appeals for the Eighth

was entered on May 22, 2018, and the Judgment for Rehearing En Banc

was denied of July 11, 2018 The Jurisdiction of this Court is

invoked under Title 28 U.S.C. sec 1254(1)

(1-A) CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Seventh Circuit Court of Pennington, County, South Dakota violated Petitioner's Constitutional right Under the Fifth Amendment to the U.S. Constitution's Due Process Clause, when they failed to afford him-an Appeal, once he provided them with documents to prove that he timely requested from his trial counsel that an Appeal be filed. This is binding on the STATE OF SOUTH DAKOTA, via: the Fourteenth Amendment to the U.S. Constitution. Furthermore their actions violated the STATE OF SOUTH DAKOTA'S Constitution's Article VI, sec. 2 (Due Process Clause). The Seventh Judiicial Circuit Court of Pennington County, South Dakota violated Petitioner's Constitutional rights under the V Amendment to the U.S, Constitutions Grand Jury Clause, when the total amount that was presented to the Grand Jury did NOT exceed the amount neccessary for an Indictment under SDCL 22-30A-17. The STATE OF SOUTH DAKOTA'S SUPREME COURT, violated Petitioner's Constitutional rights underthe Fifth Amendment to the U.S. Constitution Due Process Clause, when they failed to afford Petitioner remedy from the errors of the Pennington County's Seventh Judicial Circuit Court, This again is binding upon the STATE via: The Fourteenth Amendment to theU,S. Constitution. Furthermore it again violated the STATE OF SOUTH DAKOTA'S Constitution's Article VI Sec 2 (Due Process Clause), • 4.The U.S. District Court of South Dakota, Western Division, failed to afford Petitioner relief when he presented them with:a violation of the Fort Laramie Treaty of 1868. Petitioner attempted to raise this violation using a Habeas Corpus Petition, pursuant to: Title 28 U.S.C. sec 2241. The District Court refused to allow his Petition to be heard under sec. 2241. Thereasonfor using sec. 2241 is stated within the Code itself. It addresses "Treaty" issues, and it allows one to avoid the various pitfalls that are within Title 28 U.S.C. Sec. 2254. The 2241 is designed for STATE Prisoners as spelled out in Sec. (d) of said Code. Furthermore their actions violated the "Indians Major Cimes act". 5. The Eighth Circuit Court of Appeals violated Petitioner's rights under the Fort Laramie Treaty and the "Indian Major Crimes Acts", when they Laff.irm•eSd the District Court of South Dakota., Western Division's decision. Furthermore they all violated Petitioner's right to

-• Liberty.

(2) STATEMENT(S) OF THE CASE Petitioner was indicted by a Pennington County Grand Jury on August 12, 2010. Count 1: Aggragated Grand Theft by receiving Stolen Property, and Count 2: Contributing to the abuse, neglect and delinq- uency of a Minor. Petitioner filed a Motion for Writ of Error Coram Nobis, on or about May 31, 2016. The Grand Jury Transcripts showeI that they only heard testimony of alleged crimes totalling $915.97. See: App. D-i pg 2 #4, Coünt1, was a violation of SDCL 22-30A-17, This Code required the amount of alleged theft to exceed one thousand dollars in value. Therefore when the Grand Jury Indicted the Defendant on testimony that fell below the one thousand dollar value, it was not legal to charge the Defendant with a crime that is for over the one thousandddollar value. See.Also: App. D-i.,. .pg.i #1 Petitioner Furthermore filed a request for an Appeal with his trial counsel who failed to file a Notice of Appeal with the Court. This Request was timely filed with his trial counsel. See: App. D-2 pg. #1, Petitioner made several attempts to litigate these issues which the Court rejected. See: App. D. Petitioner then after the Seventh Judicial Circuit Court of Pennington County, South Dakota refused to afford him remedy, he Appealed to the South Dakota Supreme Court. This Appeal began with a Writ of Madamus, See: App. C-i. Furthermore Petitioner attempted to • seek various otherremedies from the , with no avail. It involved hLrn challenging theCTourts jurisdiction, and violat- ions of the Fort Laramie Treaty. The Court in a attempt to silence the Petitioner issued an ORDER, prohibiting him from filing any other documents in their Court. See:App. C. Petitioner then proceeded to seek remedy in the U.S. District Court of South Dakota, Western Division. He filed a Writ of Habeas Corpus, pursuant to: Title 28 U.S.C. sec. 2241. The reason for using sec. 2241 instead of sec. 2254 was two fold. First and foremost it was to be used by a STATE Prisoner, who is incarcerated unconstitutionally or in violation of a Treaty of the United States of America. Secondly it was the only way for him to get back into Court due to the limitat- ions of sec. 2254. Congress seen the need to allow remedy for only a small narrow window of reason(s). One of the reasons is a violation of Petitioner's Treaty rights, under 'the Fort Laramie Treaty. This is clearly defined in their own SDCL, when they asset to the fact that

(3) all land west of the middle of the Missouri River to the State lines of. Montana and Wyoming, is !Indian Petitioner is an enrolled memb.. of the Ogla]a Sioux Tribe, which lies in the land as defined as "Indian Country'!,, and the alleged crimes took place in "Indian Country". The U.S. District Court refused to allow Petitioner to proceed to the merits of the Case, being the violations of his Treaty rights, See: App. B. 4, Petitioner then Appealed to the Eighth Circuit Court of Appeals for a Certificate of Appealability, which they denied. Therefore he immedtely f'iled for a Rehearing En Banc, which was timely filed, but the Court ultramately affirmed its earlier denialof Petitioner's Application for a Certificate of Appealability, See: App. A. LEGAL ARGUMENT(S) 1, The Seventh Judicial Circuit Court of Pennington County, did error when it failed to Set-Aside Petitioner's Judgment, once it was notified that the Defendant ,ths an enrolled member - of the 0g1a1a Sioux Tribe, Furthermore the Court should have granted the Writ of Error Coram Nobis for the reason(s) as follows: Petiti one rst;iightJd laredtt1iar he was indicted by a Pennington County Grand Jury on 8/12/2010, on two (2) Counts, and an Arrest Warrant was issued that same day. Petitioner declares the Grand Jury Transcripts alleged three (3) victims. Petitioner declares the Court records clearly show that;his alleged Obligations to this action totaled only nine hundred fifteen dollars and ninety seven cents, ($915.97). This is the amount'of obligations the Grand Jury would have been-allowed-to consider for the crime. Petitioner declares SDCL sec. 22-30A-17 clearly states that Grand Theft must exceed one thousand dollars ($1,000.00), but the Grand Jury only heard testimony from victims who's total share of the obligation to the Petitioner was $915.97. This is a violation of Petitoner's rights against double jeopardy. Petitioner declares the Grand Jury was without legal authority to issue an Indictment for Count 1: Aggregated Grand Theft, by receiving Stolen Property, because the value was less than $1,000.00. Petitioner further declares the Pennington County States Attorney, William A. Williams filed an Answer to his Writ of Error

(4) • Coram Nobis, confirmed' the fact that these issues should have been raised in a Direct Appeal. Petitioner had provided the Court with a copy of the letter he sent to his trial counsel requesting an Appeal be filed. 'ee: D-2. Petitioner's trial Counsel failed to file a Notice of Appealwith'the Court, Therefore he was entitled to relief on that grounds alone. g. Petitioner further declares the facts,axguments.and authorit-, ies contained within.:the1iWrit of Error of Coram Nobis was enough to vacate the Judgment of Conviction, and allow Petitioner to begin from the start. This could have been done via: Summary Judgment as requested in his Motion for Summary Judgment.

See.:. App. D. / The South Dakota Supreme Court erred when it failed to afford Petitioner remedy as requested in his Writ of Mandamus. Furthermore when the Courts jurisdiction was drawn into question, it.:was their duty to provide evidence to support that jurisdiction and authority. Furthermore the South Dakota Supreme Court érredwhen it prohibited the Petitioner from filing Eor any further relief from that Court'. The STATE Constitution makes it clear that the Courts are open to every man. See: Article VI, sec. 20 to wit: "All courts shall be open, and every man for an injury done him in his property, person, or reputation, shall have remedy by due course'of law, and right and justice, administered without denial or delay". See: App. C The U.S. District Court of South Dakota, Western Division erred when it denied Petitioner the right, to litigate his Fort Laramie Treaty • . violations in that Court. It was clear from Title 28 U.S.C. sec. 2241 that it was proper and necessary for him to use sec. 2241 to attack these violations. The vioLa'ti..ans are clear and plainly defined as follows: a. Petitioner asserts, in cases of judicial misconduct when one assesses the consequences of an erroneous factual determination supported by the Grand Jury Clause, the STATE Supreme Court and (1968) do not adhere to those in a criminal case ... A factuálcmis1caiTr"ige of justice arises even in the absence of showing cause or prejudice because the indifference thereof, (w)ill not support a distinction in the standard of proof. First, and of paramount importance, a factual-error inaLcr.iminal case exposes the accused to a complete loss of his/her personal Liberty interests through a STATE imposed confinement without support of any law would

(5) I )'

be a complete denial of.dueprocess. In the instant case it would be proper for this Court to remand for dismissal on the substance of Petitioner's claim(s). That is, in extraordinary cases where a Constitutional violation of factual importance has resulted in a conviction of one who is actually innocent or otherwise by Writ of Error, based upon the evidence presented, a Federal Court may grant the Writ in the absence of a showing or cause for any procedural default that arises in Court ... without "competent jurisdiction'? thus where ineito.rioxs claims are few, as herein, those remaining procedures must ensure that those few claims are not stifled by undiscriminate generalities. Accordingly, the complexities of our Federalism and the working of a scheme of government's involving the interplay of two governments, one which is subject to limitations (***417) enforceable by the other ... are not to be escaped by simple, rigid rules, which by avoiding some abuse, generate others. The Case now before this Court, exemplifies the need under the Exclusive Jurisdiction Clause to enforce the law, where a STATE Court cannot do ... minus their own. jurisdiction. ..lacking herein. See: Rule 12(b)(2), 371 U.S. at 322 and Rule 12(F). It is well documented that jurisdiction issues may be raised.. at any time whether or,not it implicated a denial of federal or STATE proceedings that lie in repose. Petitioner asserts, that the case now before•this Court warrants further review with respect to both entities, that is, any abuse of judicial power, contrary to, cannot dictate the commands of due process of law ... That is, the Great Writ should be the 'substance of justice' not the form of procedures. Moreover, in cases such as this case, the question of the Constitution- ality of what Congress proscribed of said laws is good grounds for this Court to issue a Writ of Habeas Corpus ... to inquire into the legality of the imprisonment of a protected person (i.e. Ward of.the. Government) under such convictions, and If the laws are determined to be unconstit- utional the prisoner should be discharged. Petitioner states: during the colonization of America, Congress was granted the power to "regulate commerce" with the Indian Tribes, while the President was empowered to make Treaties. Necessarily including Indian Treaties, with the consent of the Senate, U.S. Const. Article I. sec. 8, cl 3; Article II, sec. 2, cl. 2. Congress set the basic pattern of Federal Indian Law in a seriés..of Trade and Intercourse Act passed between 1790 and 1834. e.g. 1 Stat. (137 (1790); 2 Stat. 139 (1802); 4 Stat. 729 (1834).

(6) 4

The Supreme Court under Justice John Marshall's leadership was indepently fashioning legal doctrines that would influence Indian Law for the next century and a half begining in 1850. The first • - decision in which this Court att.ampted to formulate its view of Indian Tribes and their legal and historical relation to the law was, Johnson v. McIntosh, 21 U.S. (8 Wheat), 543 (1823). Justice Marshall: On the right of occupance held: "They may, more correctly, perhaps, be denominated to which we assert a title independent of their will, which must take effect in point to possession, when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation, tO the United States resembles that of a ward to his guardian. See: Cherokee Nation v, Georgia, 30 U.S. (5 Pet.) 1,(1831)-thus the term "wards" was to have equally mixed history. It provided a doctrinal basis for protection of the Tribes by the Federal Government, In the interim, existing Treaties were not affected. 25 U.S.C. sec. 71. This Court has held that in, Norton v. Shelby County, (1886) 6 S.Ct. 1121, 1125; 18 U.S. 425, 442, 30 LOEd. 178 and Chicago.I & L.R. Co. v. Hackett, (1913) 33 S.Ct 581, 584; 228 U.S. 559, 566, 57 L.Ed, 966, "That a law held unconstitutional is inoperative and confess neither rights nor duties thus a suit is brought in STATE Court and removed to Federal Court. If it is determined that the case was one over which the Federal Court have exclusive jurisdiction, the Federal

Court , remarkable enough cannot hear the case. It must dismiss a case falling within its Exclusive Jurisdiction because the Court which the case was removed had no jurisdiction." Accordingly, the Supremacy Clause is a sufficient basis on which to rest the Appellate jurisdiction over STATE Court decision(s) violative to Federal Law. That is, neither Sovereign Immunity bars

Supreme Court review of STATE Court Judgments in--suit in which a STATE is a Party. Since Supremacy of Federal Law requires review of the Federal question presented by such judgments...notwithstanding. Moreover, the Equity jurisdiction vested in Circuit Courts by the Constitution, to control and restrain improper or unathorized acts by public officials and boards cannot be abrogated, impaired, or circumscribed by subsequent legislative Acts. (i.e. STATE Law). It would seem and wholly so, that the Court without competent jurisdiction be repungent to the Constitution. Whether any reference be had to the Act of 1887 or to existing statutory provisons, that is, it was thepurpose of Congress to invest the Courts, of the Union, and

(7) Additional material from this filing is a vailablen i the Clerk's Office. • the justices and judges thereof, with power upon Writ of Habeas Corpus, to restore to liberty to any person within their respective jurisdict- ion who is held in custody contrary to an, :Act of Congress by whatever authority, In violation of the Constitution or any Law or Treaty of the United States, is a rebellion against the government itself. There being no doubt of authority of the Congress to thus liberalize the commo.n Law procedure of habeas corpus in order to (***982) safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a Law or Treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a STATE Court of criminal jurisdiction may have a judicial inquiry in a Court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the STATE (***589) Court to proceed to judgment against him (citation omitted). Accordingly this administration perhaps long over due has witnessed a new dawn for the restorative of Justice and a stronger Nation-to-Nation where equality is paramount, in a relationship to protect the Tribal Nations. The implementation of those crit-ical provisions which clearly represent ayictory for Indian Country, not±thsThnd.ing, ..Thus it can be said "jurisdiction is sufficient • grounds under the Major Crimes Act, if any part of the offense took place in Indian Country". See: United States v. Van Chase, 137 F.3d 579 (8th Cir. 1998), "including the original boundaries of aRes- ervation that remains intact." IMoreover, plenary authority over the tribal relations of the Indian has been expressly exercised by Congress from the bEe:gining,. The power has always been deemed a political one, not subject to be controlled by the judicial department of the Gover- nment, It is then, perhaps, possible that the contending force in Indian Affairs have reached some sort of finality in balance and that no further major changes of direction will occur. Nothing in the history of Federal Indian Policy, however, justifies confidence in such a conclusion. 1. Petitioner asserts that the laws used to prosecute him which appear in the current codification of South Dakota Statutes, remain inoperative going into the twenty first Century, since 1968. A period of about 50 years of illegal prosecution. See: Act of April 11th, 1968, Pub. L. 90-284, sec. 403, Title IV, 82 Stat, 73, 79, because

(8) I

said Act is Exclusive of State jurisdiction. Accordingly, all prosecutions whether criminal or civil are not only voidable but are (VOID). Also See: Williams v. Lee, 358 U.S. 217 (1959). This Court stated "the territory west of the Missouri River in the Western part of the State of South Dakota is still Great Sioux Nation', that .ha:sn't.be..Q:n extinguished as of today". m. It is clearly established principle of Federal Law that STATE Courts do not have jurisdiction over offenses enumerated in the Indian Major Crimes Act. The precedents is so deeply rooted that even a history of unchallenged S10AATE jurisdiction over lands will not defeat the Exclusive jurisdiction that arises once a Federal Court determines the lands. are Indian Country. See: United States v, John, 437 U.S. 634, 652-54 (1978). The holding in John, Id at 649-54, rejecting the STATES asserted reliance interests and historical assertions. This:Court held that present application of Indian Country statues overrode the STATE'S assertion of jurisdiction. After Venetie, "Congress-not the Courts, not the STATES, not the Indian Tribes--gets to say what land is Indian Country suLtject to Federal jurisdiction. Hydro Res., 608 F.3d at 1148. Therefore malfeasance are liable in the context, that jurLdiciton can never be conferred, waived, or consented to.:even under a referendum vote. The people, not the Council have sole jurisdiction of that matter. See: Ex Parte Crow Dog, 109 U.S. 556 (1883). n, Petitioner contends it is well documented with reason at present, such as this case now before this Court. That then Congres- ional and Executive Federal Indian.- Policy seem clearly to be based on a model of continuing plurarlism. It recognizes that the Tribes are here to stay, regardless of their inquities, for the indefinite future and the Courts with J'.o.nse:it'from Congress must seek to strengthen those provisions. The Assimilation view-point which has intermittently predominated injustice in the past, is not, now in favor. o. Petitioner contends in Tsosie v. United States, 825 F.2d 393 (Fed. Cir. 1987), stated: "Treaties are commonly included agreement by each side to punish and compensate for acts of depredation by "bad men" among their own memebers, a clause that still can support a claim against the United States", where a STATE has superceded an Act of Congress without consent. See: Williams v, Lee, 358 U.S. 217 (1959) (9) I

REASON(S);FOR GRANTING WRIT 1, Did the Seventh Judicial Circuit Court of Pennington County, South Dakota error when it failed to set—aside the Judgment of Conviction, once it was notified Petitioner is. an Enrolled Member of a Federally recognized Indian Tribe, and he was living in Indian Country,:yet he had been prosecuted by the STATE OF SOUTH DAKOTA? The answer to this question is yes it did error and for that reason this Writ should issue. Furthermore, Petitioner, being an enrolled member of the Oglala Sioux Tribe is entitled to all provision of the Fort Laramie Treaty. This Treaty is between the U.S. Govenment and in part the Oglala Sioux Tribal people. Therefore it is beyond that he is under the E1ci.usie jurisdiction of the Federal Court System, being, a resident within Indian Country. The Seventh Judicial Circuit Court had not jurisdiction to hold Petitioner to any judgmentissued by it. See: SDCL Vol. 10 The United States dictrict Courts have sole jurisdiction over prosecutions for violations of federal criminal statues. See: 18 U.S.C. sec. 3232. They also have jurisdiction over a variety of types of civil cases. The most important category is cases • "arising under the Constitution, statutes, OR TREATIES of the United States". See: 28 U.S.C. sec. 1331(a). This is often referred to as "federal question" jurisdiction, and it includes cases alleging Civil Rights violations. In cases involing federal rights, federal Courts generally apply federal law. Procedural and evidentiary questions in federal district courts are g:ovérn:ed by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Federal Courts apply state law usually when the law of the state fits, the claim thats raised in the action. In diversity cases, and in other cases such as treaty violations the Courts must ahere to Federal Treaty law. The United States Constitution is the supreme law of the land,nd1must

t.7 - be followed. It is written in broad and general language which allows a lot of room for interpretation by Judges. Treaties are equal to in stature to statutes, but they can not override the Constitution. It is for the reason(s) as stated herein that this Court should grant the Writ. 2. Did the South Dakota Supreme Court, error when it failed to provide remedy to Petitioner by overturning the Seventh Judicial Circuit Court of Pennington County, South Dakota's denial of remedy concerning an Enrolled Tribal Member of a Federally recognized Tribe,

(10) who was unlawfully prosecuted by a STATE Court? The answer to this question is yes it did error and for that reason this Court should issue the Writ. Again with Petitioner being an enrolled member of the Q;g,JLal.;.Siaux Tribe he is entitled to all provision within the Fort Laramie Treaty. That Treaty is an agreement between the United States Government and the O.giaia Sioux Tribal people not with the STATE OF SOUTH DAKOTA. The Supreme Court of South Dakota, does not have the authority to decide any tribal/treaty issue. The Fort Laramie Treaty herein is the controlling document, that must be upheld by a Court that has jurisdiction over the subject matter. With the Supreme Court of South Dakota failing to provide remedy to the Petitioner, by setting aside the judgment of Pennington County, it is now this Courts Uut;y to issue a Writ and provide Petitioner remedy at law by that Writ. The argument for this reasons is in line with the same argument as stated in reason # 1. 3. Did the U.S. District Court of South Dakota, Western Division, error when it denied Petitioner the right to use title 28 U.S.C. sec 2241 to attack a Fort Laramie Treaty violation which is causing him to be incarcerated unlawfully in a STATE Prison? The answer to this question is yes the District Court did error when it did fail to allow Petitioner to proceed with a Writ of Habeas Corpus under title 28 U.S. C. sec 2241. Sec. 2241 is designed just for this reason, as stated within the code to wit: "(a) Writs of haebeas corpus, may be granted by the .... district courts and any circuit judge within their respective jurisdictions. (c) the Writ of habeas corpus shall not extend to a prisoner unless--...(3) He is in custody in violation of the Constit- ution or laws or treaties of the United States; ... (d) Where an application for a Writ of habeas corpus is made by a person in custody under the judgment of and sentence of a :State.Court of a State which contains two or more Federal judicial districts., the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State Court was held which convicted and sentenced him..." It is clear to see that the District Court did error when it denied the Petitioner,.:, the right to use sec. 2241 Also See: Bell v. U.S., 48 F.3d 1042 (1995): "Bell could properly attack the execution of his sentence in a 28 U.S.C. sec. 2241 (a) habeas petition. As the District Court recognized however, it lacked subject matter jurisdiction to hear his petition because Bell was incarcerated in the Eastern Dist. (11) of Missouri. If he chooses to file a section 224.1(a) petition, Bell must do so in a court with jurisdiction over his present custodian". Also See: Coleman v. Thompson, 501 U.S. 722, 111 S,Ct. 2546, 115 L.Ed. 2d 640 (1991): "In all cases in which a state prisoner had defaulted his federal claims in state court pursuant an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violations of Federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Petitioner has demonstrated that the default in state court is because they never had jurisdiction over the person or matter because it is in violation of the Fort Laramie Treaty. Also See: Hadjuk v. U.S., 764 F.2d 795 (11th Cir. 1985) "A challenge to the lawfulness of the parole comm. actions cannot be brought pursuant to 28 U.S.C. sec. 2255 ... Such an action must be brought as a petition for Writ of Habeas Corpus pursuant 28 U.S.C. sec. 2241". Therefore it shows that a prisoner can use a 2241 for certain issue, and the Code spells out for treaty violations. Also See: Jackson v. Carlson, 707 F.2d 943 (7th Cir. 1983): "Where prisoner alleges that he was deprived of his liberty without due process of law in violation of the Fifth Amendment, as a result of prison disciplinary sanctions, the orderly analysis of the case requires that three questions be considered in sequence: 1) Can the proceeding be maint- ained as a habeas corpus proceeding? 2) If so, was there a deprivat- ion of liberty? 3) if so, was there a denial of due process?Although a habeas corpus proceeding challenges the legality of the petitioner's custody, 28 U.S.C. sec. 2241(c)(3), the challenge can be mounted even if the petitioner is not seeking immediate release from custody, provided he can show that but for the alleged denial of due process he would be released at an earlier date that is now scheduled," It is for the reason(s) as stated herein that this Court should grant the Writ,..... 4. Did the Eighth Circuit Court of Appeals error when it affirmed the U.S. District Court of South Dakota, Western Division's denial of Petitoner's use of Title .28 U.S.C. sec. 2241 to attack a Fort Laramie Treaty violation which is causing him to be incarcerated unlawfully in a STATE Prison? The answer to that question is yes, the Eighth Circuit Court of Appeals did error when it denied Petitioner

(12) the right to use title 28 U.S.C. sec. 2241 to bring forth his claim of a violation of the Fort Laramie Treaty. This Court should have remanded the case back to the U.S. District Court for an evidentiary hearing on the issues contained within the Petition. It is now this Courts duty as stated in the Constitution to uphold the Fort Laramie Treaty, as stated in the Petition. See: Herrera v. Collins, 506 U.S. 390, 122 L.Ed.2d 203, 113 S.Ct, 853 (1993): "The Supreme Court held that a petitioner otherwise subject to defenses of abusive or succ- essive use of writ may have his federal constitutional claim considered on the merits if he makes . a proper showing of actual innocence. This rule, or fundamental miscarriage of justice exeception, is grounded in the 'equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons".AlsoSee: Pemberton v. Collins, 991 F.2d 1218 (5th Cir. 1993): "(0)ne must recall the properly limited role of a Federal Court when a habeas petitioner challenges a State Court conviction, A Federal habeas Court grants relief when the Petitioner is 'held in custody pursuant to the judgment of a State Court only on the grounds that he is in custody in violation of the Constitution or laws or treaties of the United States', using 28 U.S.C. sec. 2241. A Federal habeas Court asks only whether a constitutional violation infected the trial". Its plain to see that the violation of the Fort Laramie Treaty did in fact infect •the STATES ability to prosecute the Petitioner. It is for the reason(s) as stated herein that this Court should grant the Writ. CONCLUSION Petitioner Danny Bisson.ette., has been deprived of his rights under the Fort Laramie Treaty, and basic rights that are guaranteed him by the Fifth and Sixth Amendments of the United States Constit- ution and seeks relief in this Court to restore his liberty. Based on the arguments and authorities presented herein, Petitioner's guilty plea. was substained in violation of due process and the Fort Laramie Treaty of 1868. Petitioner being an enrolled .0gla1a Tribal member, should be protected by the treaty, which at the least should have come from the U.S. District Court and/or the Court of Appeals. Furthermore if this Court elects not to address the issues presented in this Petition at this time, it is requested that the Writ issue and the matter be remanded to the Eighth Circuit Court of Appeals for reconsideration in light, of this Court'.s opinions pertaining to - - the Fort Laramie Treaty of 1868, all supra. It appears that the

(13) Federal Courts and the State Courts all choose to ignore the issues as presented to them. Furthermore, the disclaimer of jurisdiction cont—.. ainted in our Enabling Act and Constitution. deprives the STATE of criminal jurisdiction over Indians and Indian Country/Territory. Public Law 280 (Chapter 505, 62 Stat. 588) is not a present grant of jurisdiction and this STATE has not effectively, affirmatively, and unequivocally acted to assume jurisdiction in the manner specified in such Act. (Chapter 467 of the Laws of 1963 was a statutory effort by the STATE to comply with PUblic Law 280, which was referred to and rejected by the electorate of the STATE OF SOUTH DAKOTA, in 1964). Therefore in UN 6, Criminal jurisdiction over Indians for crimes committed within Indian Country in SOUTH DAKOTA, is exclusively vested in the Federal and Tribal Courts. Petitioner asserts the construction of Federal statutes relating back to 1889 is clearly within the province of the United States Supreme Court (i,e, Rule 29.4(b)) as the final arbiter, and in view of the importance of the question involved here... where the STATE Courts of SOUTH DAKOTA, never had jurisdiction over the Indians per se the ruling of the STATE Supreme Court ... in State v. Molash, 86 S.D. 588, 109 N.W.2d 591, 1972 S.D. LEXIS 145. More specifially, the Eighth • Circuit Court of Appeals in 1975 U.S. LEXIS 41, No. 73-1500, 489, Fed. 99 .. . reversed the District Court's summary judgment that the 1891 Act had not terminated the Sisseton Wahpeton Sioux Tribes Lake • Traverse Reservation (1975). The STATE OF SOUTH DAKOTA, and its Courts have repeatly overruled the State Supreme Court and Acts of Congress (1968) to which common sense dictates that the procedures by the STATE Courts is in all actuality ... Fraud of the Courts ... to prosecute the Indians, per this oppressive 'tyranny, displayed here, that without hesitation overruled this High Court of their precedents. Therefore Petitioner prays, this Court will issue a Writ of Certiorari and reverse the judgment of the Eighth Circuit Court of Appeals, and grant Petitioner the right to have his issues heard pertaining to his rights under the Fort Laramie Treaty of 1868. Respectfully Submitted this/may of August, 2018. re By: Danny D. Basso'nette #15533 Mike Durfee State Prison 1412 Wood Street Springfield, South Dakota 57062 (14) CERTIFICATE OF SERVICE

I, Danny D. Bissonette, certify a true and correct copy of my

Petition for Certiorari was sent to the South Dakota Attorney

Genera1,att: Marty. Jackley, at:. 1302 East Hwy. 14 Ste. 1, Pierre,

South Dakota. This was sent via: Prison Legal Mail, on the/ day of August, 2018.

By rirJViA Danny D. Bithsonet.te 11533 Mike Durfee State Prison 1412 Wood Street Springfield, South Dakota 57062

ACKNOWLEDGEMENT

SUBSCRIBE AND SWORN, to before me now this day of August, 2018,

Notary'Pub1±c—B0UTff tTTA—

MY COMMOW 00m Now. 19, 2019 My Commission Expires:

SEAL: DEBRA M,!LER$ NOTAIRY PUBLIC(RI FOUTH DAKOTA

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