Lawsuit filed to determine President Cleveland’s conviction status

By Ken Luchterhand

The issue of Ho-Chunk President Wilfrid Cleveland’s record has surfaced again.
Gary Funmaker has filed a lawsuit against Cleveland and the Wisconsin Department of Justice in hopes of clarifying whether Cleveland is considered a felon or not.
The Constitution of the Ho-Chunk Nation states that a felon cannot serve as president.
An article about the issue was published in the Wednesday, July 26, 2017, issue of the Jackson County Chronicle. The article told about the history of the charges and Funmaker’s efforts to get a final determination.
Although Cleveland has declined the offer to make a statement to the Hocak Worak regarding this issue, in the past he said that the felony charge was reduced to a misdemeanor and that he served his time for that charge.
Determining whether Cleveland is a felon or not normally would be a simple procedure, looking at the court records from 1972, when the violation occurred, However, the court records were all kept in paper back then, and a distinct decision on the matter is not so apparent.
“That’s what makes it so difficult. The court records from back then are not clear,” said Jackson County Clerk of Court Jan Moennig.
On May 2 this year, Funmaker filed the lawsuit against Cleveland and the Wisconsin Department of Justice for a declaratory judgement. The lawsuit is intended to have a judge decide if the charge against Cleveland is a felony or misdemeanor. Monroe County Judge J. David Rice has been assigned to the case.
No definite court date has been set, but officials at Jackson County Clerk of Courts office said a date could be set within a month.
“We need to know, once and for all, whether is he a felon or not,” Funmaker said. “Either way, we get the air cleared and can go on from there. But the not knowing and having this cloud hanging over him and the Nation is what is troubling.”
The records don’t determine whether the conviction was deemed a felony or misdemeanor, listing the conviction as “unspecified.” The court case is listed as a CF, meaning a criminal case and a felony, while a misdemeanor is listed as a CM. The original charge was Battery to a Peace Officer, which is a felony under state statutes.
On the Wisconsin Court Access (CCAP) online search engine, Cleveland is listed with two different names and two different listings of charges. His name is listed as “Wilfred” and “Wilfrid.”
However, Jackson County District Attorney Gerald Fox claims that the charge was reduced to simple battery, which is a misdemeanor. However, there are no records to indicate that.
Fox claims that, in 1972, there was a county court and a circuit court. Records indicate the case was heard in county court, which didn’t hear felony cases.
In Cleveland’s letter to request a pardon from the governor, the first line states, “After I was convicted of the Battery to a Peace Officer I really wasn’t focused on what I wanted to do with my life.” Funmaker points out that all cases of Battery to a Peace Officer are felonies, not misdemeanors. He also questions why Cleveland would ask for a pardon if he didn’t know he had a felony conviction.
According to a 2017 letter from Governor Scott Walker’s office, a pardon was not given by Gov. Jim Doyle or Gov. Walker.
The charges stem from an incident on January 23, 1972. The criminal complaint on file at the Jackson County Clerk of Court office, states that Cleveland was trying to flee by getting into a stolen police car. While trying to escape arrest, Cleveland struck Jackson County Sheriff Deputy Alfred Young in the nose, breaking his glasses and causing swelling in the nose and eye, according to the criminal complaint.
Cleveland filed a motion in Jackson County Circuit Court on July 28 to dismiss the Funmaker case. Funmaker has until August 25 to file supporting paperwork and Cleveland has until September 25 to file response briefs and opposing paperwork.
The Wisconsin Department of Justice also filed a motion to dismiss the case. The WDOJ has until August 25 to file response briefs and Funmaker has until September 12 to file a response brief.
The question of Cleveland having a felony record was a contentious issue in the past as well.
Cleveland was able to run for president in 2007 because the Ho-Chunk Nation court couldn’t prove he was felon in the case Mike Sallaway versus the Ho-Chunk Nation Election Board, despite the letter from Jackson County District Attorney Gerald Fox. 
Again, the subject was broached at the September 17, 2016 General Council session at the Alliant Energy Center in Madison, when a resolution was introduced to remove of President Wilfrid Cleveland based on the felony issue. Jeremy Rockman presented that resolution. Rockman stated that Cleveland is a felon and that no information is available that he has ever been pardoned of that felony.
“During his first tenure, I voted for Willy, not knowing of his felony,” said Cecelia Krause, who seconded the resolution. “The trust is gone. The background check was not done by the Election Board as it should have been done. We do not need service from this type of person.”
Michelle Greendeer Rave spoke in defense of Cleveland, saying that Jackson County District Attorney Gerald Fox first wrote a letter that Cleveland was a felon, then later recanted his information and said that he had made a mistake and that the original charges had been dropped down to a misdemeanor.
“The deal is done. The D.A. made a mistake,” Greendeer Rave said.
Cleveland took the podium and told the story of how he had assaulted a policeman decades ago, but the charges had been dropped from a felony to a misdemeanor and that he had served his time for the violation.
That resolution was defeated by a vote of 405 in favor and 1,386 against.
But now, Funmaker pointed out that Fox has flip-flopped on the issue. Fox sent a letter on May 31, 2007, that said he determined Cleveland was a felon, having looked at the 1972 court records. Fox made the statement that the offense of Battery to a Peace officer was “unarguably a felony.” Fox said that the conviction had not been reversed, set aside or pardoned. Fox then changed the record to show Cleveland was convicted of a felony, but is now said he made a mistake and the charge was originally a misdemeanor.
The Hocak Worak requested pardon information in writing from the Office of Governor Scott Walker.
“In reviewing our records, it appears that Wilfrid Cleveland completed an application for a pardon on June 30, 2010, but our records indicate Mr. Cleveland was never granted a pardon,” wrote Robert P. Berry, assistant legal counsel for Office of Governor Scott Walker.
“Looking at the pardon request for Mr. Cleveland, it appears he filed a pardon application for the crime of feloniously causing bodily harm to a police officer,” Berry wrote.