Document/Letter 1 Exposing Oglala Sioux Tribal President Theresa Two Bulls Law Breaking and Self Serving Tyranny

Document/Letter 2 Exposing Oglala Sioux Tribal President Theresa Two Bulls Law Breaking and Self Serving Tyranny.

Richard,

This is stuff that I wrote long time ago and combined two articles into one for your viewing.   This will give you an idea of what happened in the C&W case.  Briefly, Tibby Kocer who is the former Acting Transportation Director did not know who to publish Requests for Proposals (RFP’s) so Tibby contacted Warren Barse (owner of C&W Enterprises, Inc.) to help him with the publication.  As a result Warren was able to view the BIA Engineers Estimate on four (4) separate projects.  Since Warren was also a contractor and was going to bid on those projects it was illegal to provide him with the Engineer Estimate because this gave Warren an advantage over the rest of the bidders in submitting bids that are at or near the Engineers Estimate.  In other words it gave Warren and advantage to secure the contracts and Warren did in fact secure everyone of them.  That said, after Warren started the projects and started earning money the Tribe had to pay him.  I would approve the pay estimates and request a check from the Tribes Financial Accounting Office (FAO).  David Rabbit who was the Tribes Treasurer issued the check after clearing it and the check was sent to Warren legitimately.  Then David would take the money out of Department of Transportation’s construction account to make Tribal payroll before the C&W check got cashed.  This caused C&W ‘s check to bounce.  This happened on three (3) separate occasions, the checks were approximately 350 thousand, 475 thousand and 650 thousand.  I turned David into the feds but the damage was already done.  Warren moved to other projects off the reservation that would pay him for his work on time rather than providing him with bounced checks.  (I can’t blame him for that).  Eventually Warren became too spread out and started to fail, but how could he reasonably be expected to not fail when the Tribe’s Treasurer kept bouncing checks on him?  Warren needed that money to pay his bills and in road construction projects if you don’t get paid on time you end up incurring massive expenses.  So Warren started taking short cuts in an attempt to catch up when he came back to Pine Ridge but like I said the damage was already done and he could not catch up.  He started providing us with substandard work which we would reject.  We ended up giving him time extensions on his contracts knowing that the treasurer was ultimately responsible for his demise and attempted to give him some breathing room.  But he failed anyway and councilman Joey Rosales from Kyle accused me of bad management practices and recommend my termination.  Pete Caposella told the Tribe that they should have given me a medal for all the work I did in attempting to resolve the issues of non-compliance by the Tribe and by the contractor as well instead the threw me out the door. 

My administration was a “take no shit from contractors” and “take no shit from Council Reps” administration.  But I was also reasonable in my understanding that both the Tribe and the contractor was at fault through a previous Transportation Director allowing C&W to see the engineers estimate and the Tribes Treasurer stealing the contractor’s money and converting it into payroll AND in dealing with a corrupt contractor who convinced the Tribe’s DOT acting director to allow him to see the engineers estimate then fail to comply with federal specifications in constructing roads.  Construction contracting is not easy to understand and it takes years of experience and training to get it all.  I have that experience, however each time we have new elections I cannot be reasonably expected to “teach” the new council reps each and every time we get new ones.  It is just too much stuff for them to comprehend in a short period of time.  If they don’t or can’t understand then they start pointing fingers and start looking for scape goats.   

Okay, let’s get past all the details of what happened in the C&W case because it involves engineering stuff and interpretation of specifications that most folks don’t understand unless they work with it on a daily basis.  

Peter Caposella who was the Tribe’s lead attorney, Brett Shelton who is still the Tribes attorney, Gary Heezen who is still the Tribe’s DOT engineer and myself all took information concerning C&W’s progress on these contracts to the Standing Committee’s and Tribal Council who ultimately made decisions.  We advised them of what was occurring and gave them pro’s and con’s of what would happen as a result of whatever decision they made.  Once they made a decision we simply followed their orders.  The result was we were told to terminate C&W’s contract because he was no longer complying with the specifications and had abandoned the job.  We ended up in arbitration with the American Arbitration Association.  There is a lot of history that goes with this and I had about ten (10) reams of paper in the files altogether.  After we entered into litigation our attorney rightfully advised tribal employees to stay away and not communicate with Warren Barse owner of C&W.  As a result the “John Steele” administration passed an Executive Committee resolution directing Tribal staff to stay away from Warren Barse.   We kept John informed of everything and he fully understood the issues and did not dispute what we were advising him of and further, he fully supported OST-DOT’s position.

Now the Two Bulls administration takes office.  In District level Federal court Warren Barse’s attorney was Russell Janklow who is the son of Bill Janklow.  Janklow was attempting to garnish the Tribes motor fuels money but according to a South Dakota Codified Law money that is used for essential government services is un-garnishable.  Judge Schreir knew that fact and was unable to react so she sent the case back into State Court where Judge Caldwell was going to hear it.  The same term existed where Judge Caldwell had no choice to rule that C&W could not garnish money used for essential government services and was boxed into making that ruling.  This would have sealed the case in favor of the Tribe.  Theresa Two Bulls knew of this fact because she attended and testified at the Federal District Court hearing in-front of Judge Schreir and seen the Judges opinion.

After the Federal District Court hearing and prior to the State Court hearing Theresa Two Bulls and Council Woman from Oglala District Barbara Dull Knife met with Warren Barse secretly in Chamberlain, SD to make a deal, then came back to host a council meeting and told the council that the Tribe had to pay C&W or risk losing its assets.  (She was very, very wrong in her assumption and knew she was wrong because of the garnishment issue as it related to SDCL.  We labeled Warren as a “snake charmer” because he lied most of the time).  The council meeting was held on April 27^th, 2009 and the council passed resolutions to pay C&W.  At the same time the State Court hearing was scheduled for sometime in late May or early June 2009 but we had a jr. attorney in Sioux Falls working with State Court Judge Caldwell to move that hearing up.  On April 27^th, 2009 when the council was making the motions to pay off C&W Judge Caldwell agreed to move the hearing up to the next day, April 28^th, 2009.  Had the Council and its President not acted so hastily, we would have won in court the very next day and would not have had to pay C&W anything! 

The main dispute was on the Base & Blotter project where C&W received a contract for 1.9 million dollars to complete a contract in Oglala.  He completed and was paid for 60% of that contract then was terminated for cause.  The 60% payment of which he actually earned was about $1,140,000.00.  Keep in mind that he still didn’t complete the remaining 40% of that contract and it still remains uncompleted today.  Combined with the arbitrator’s award and interest, the Two Bulls administration decided to pay C&W an additional 1.5 million dollars.  This totals $2,640,000.00 that C&W received on a 1.9 million dollar contract that C&W only finished up to 60% of the work.  He only completed a little over ½ of the work, got full payment and got a bonus of 740 thousand dollars on top.  Nobody on the Council thought about the impact that the contractor’s performance bond has on this project and yet the advisors practically screamed it so they would hear but it only fell on deaf ears.  The contractors bond is a guarantee that the contractor will finish the job.  Well, since Ms. Two Bulls “made a deal,” “behind closed doors” in Chamberlain, SD the Tribe lost the performance bond.  Now because of inflation it will probably cost somewhere near 3.5 million dollars to finish this job.  So now the Tribe is out of 6.1 million dollars ($6,100,000.00) on this deal all because of the “knee jerk” reaction that Theresa Two Bulls initiated and the Tribal Council followed.  None of this would have happened if they only had listened to their advisors Mr. Whalen and Mr. Caposella. 

Robin Tapio who is the Council rep from Pine Ridge made a remark in Council session saying “I know that the Motor Fuels employees will lose their jobs when we take the Motor Fuels money but there is welfare and unemployment and other jobs that they can go to.” All of those employees had families that depended on them.  They all had bills to pay and food to put on the table. 

Walter Big Crow as a council member continuously provided Warren with information about the Tribe and Warren ended up submitting a legal document in the form of an affidavit to the United States District Court indicating that Councilman Walter Big Crow was his informant.  This is what damaged the Tribes legal position, Peter, John and I all had to pull damage control after that.  I actually charged Walter with impeachment based on Treason against the Tribe.  We had a hearing, it was on KILI radio and everyone said I beat Walter and that he should be impeached.  But his buddies on council let him go.  The Tribal members were pretty upset.  But Walter is still eligible to become council rep and runs for that office every term and is gaining ground. 

So let’s look at the damages.  C&W received a contract for 1.9 million dollars to complete the Base & Blotter contract in Oglala.  This was the main contract in question.  He completed and was paid for 60% of that contract before his contract was terminated for cause.  This was about $1,140,000.00.  Combined with the arbitrator’s award and interest, the Two Bulls administration decided to pay C&W an additional 1.5 million dollars.  This totals $2,640,000.00 on a 1.9 million dollar contract that C&W only finished up to 60% of the work.  It’s like he only completed a little over ½ of the work, got full payment and got a bonus of 740 thousand dollars on top.  And we are not done yet.  Nobody on the Council thought about the impact that the contractor’s performance bond has on this project and yet the advisors (Caposella & Whalen) practically screamed it so they would hear but it only fell on deaf ears.  The contractors bond is a guarantee that the contractor will finish the job.  Well, since Ms. Two Bulls “made a deal,” “behind closed doors” the Tribe lost the performance bond.  Now because of inflation it will probably cost somewhere near 3.5 million dollars to finish this job.  So now the Tribe is out of 6.1 million dollars ($6,100,000.00) on this deal all because of the “knee jerk” reaction that Theresa Two Bulls initiated and the Tribal Council followed.  And the author is saying give her and her Council a chance?  Why?  They messed up, big time!  None of this would have happened if they only had listened to their advisors Mr. Whalen and Mr. Caposella. 

We haven’t even talked about all the Transportation employees who lost their jobs because of this administration’s decision.  Robin Tapio who is the Council rep from Pine Ridge made a remark in Council session saying “I know that the Motor Fuels employees will lose their jobs when we take the Motor Fuels money but there is welfare and unemployment and other jobs that they can go to.”  How can anyone make such decisions is beyond me.  All of those employees had families that depended on them.  They all had bills to pay and food to put on the table.  They were all human beings who walked with dignity and pride because they were able to support their families and themselves without help from anyone.  Robin Tapio, the rest of the Council members and their President took all of that away from them with a simple deal with a corrupt contractor.

As far as the impeachment complaints, Lisa Adams who is a former Chief Justice of the Oglala Sioux Tribal Court wrote up the complaints of violations of 26 laws by Theresa Two Bulls.  Lisa was hired by the Tribes Road Commissioners who paid the attorney fees “out of their own pockets.”  Lisa’s complaints were based on factual documentation and the Tribes own attorney approved them as being very valid complaints.  So we have two individuals who have their Jurist Doctorate degrees in Law, each from opposing sides who agree that the complaints are valid and should have been heard on Tribal Council floor.  The Tribal Council did not even as much as read the complaints and they took all of three (3) minutes to decide against the complaints. Then since the Road Commissioners submitted an impeachment against Theresa she arranged to disband the entire Road Commission.  That reeks of retaliation by the Tribal President.          

Council rep Rosales from Medicine Root District said I was guilty of bad business management during that Council meeting of April 27^th, 2009.  Obviously, he does not know of the history of the Tribes Transportation Department.  When I took over it was 240 thousand dollars in debt and had only three employees.  It could barely pay the light bill.  I was preceded by other Directors who were attorneys (Diane Zephier), an engineer (Melvin “Tibby” Kocer) and engineer with his Professional Engineering Degree (PE) (Chuck Hacker) and several other well educated individuals attempting to properly administer the Transportation Program. It had a failed construction program and a failed planning program that was it.  Seven years have passed under my leadership as Transportation Director.  Today there is more than 15 million dollars in the bank earmarked for road construction projects.  There are around 50 permanent employees and an additional 50 to 75 more contract employees during the construction season.  We have a successful planning department and successful construction department.  We developed and are operating a Mass Transit Busing department.  We took over and repaired the Pine Ridge Airport.  We contracted the Road Maintenance department from the Bureau of Indian Affairs.  We negotiated a 4.5% TERO agreement with the State.  We negotiated and receive 1 million dollars annually from the State under a Motor Fuels agreement.  We have built road after road in our construction projects, we even built several bridges.  We negotiated to have Pine Ridge to Oglala State Highway 18 reconstructed.  We were one of the first Tribal Transportation Departments in history to receive a Direct Funding Agreement from Federal Lands Highways which basically eliminated the involvement of the BIA.  Altogether and under my administration as Director of Transportation we negotiated and completed over 75 million dollars worth of projects and have 25 million dollars worth of projects in the planning stages.  And now Mr. Rosales accuses me of bad business management?  I could literally run circles around Mr. Rosales and the entire Tribal Council when it comes to business.   

Jeffrey L. Whalen
Tribal Transportation Consultant
P. O. Box 1687
Pine Ridge, South Dakota 57770
(605) 867-6030 Main
(605) 407-0007 Cell