Bamboozled by State jurisdiction

RAPID CITY— Every tribe has one treasure it must protect from plunder, a treasure that dwarves all other treasures combined— tribal sovereignty. People often wonder why sovereignty is so important— what sovereignty actually matters when the federal government can apply plenary power and run roughshod over it, whenever they are left with no alternative strategy.

But sovereignty does not create a relationship between equals, although, by definition, and by the spirit of the treaties signed, it should. The reality is, it doesn’t, because the government won’t allow it. The true value of sovereignty lies in the protection it provides from the greatest enemy any tribe has ever faced, and it’s not the federal government.

Identifying that enemy, and thwarting all their schemes to destroy sovereignty has been a tough nut for every tribe. Focus is on the rattle, and not the head of the snake, and the Supreme Court way back in 1886, in the United States v Kagama ruling, addressed the snake head directly: “(Tribes) owe no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found, are often their deadliest enemies.”

However it might be in other areas, in North and South Dakota, the state has made no bones about it, either currently or historically, that the presence of sovereign tribal nations within their borders is an abiding affront requiring drastic correction.

The power of the state to impose its designs on the sovereign nations residing within the state borders has always been curtailed by the federal government. The depth of hate a state feels for Indians cannot be overstated; a January, 1891 editorial by Wizard of Oz author, L Frank Baum, then the editor and publisher of the Aberdeen weekly, the Saturday Pioneer, represented not only the sentiment of the author, but most of the Pioneer’s readership: “The Pioneer has before declared that our only safety depends upon the total extermination of the Indians. Having wronged them for centuries we had better, in order to protect our civilization, follow it up by one more wrong and wipe these untamed and untamable creatures from the face of the earth.”

We err in thinking such views are an unenlightened expression of a long ago time, and that residents of the Dakotas have evolved well past the genocidal mentality expressed by Baum in his editorial. Suppressed by over a century of social progress, the embers of that historic enmity still burn hot in a sizable portion of the citizenry, as witnessed by the provocatively racist reactions to the pipeline protest on Standing Rock.

The state attack on tribal sovereignty proceeded with earnest in 1953, with the passage of Public Law 280. The federal government unilaterally granted state jurisdiction over mandatory states, the Dakotas not included. In non-mandatory states, the state would have to pass state law to assume any jurisdiction inside a reservation, and this South Dakota did, but their law, which gave them jurisdiction over all highways, was knocked down by the SD State Supreme Court. The Court determined they could not assume piecemeal jurisdiction, singling out the lucrative aspects, and leaving the tribes with the burden of all other civil and criminal responsibilities. What came next was a 1964 state-wide referendum, in which the State lost, and the tribes prevailed.

Four years later, the tribes had another blow landed in their favor, with the passage of the 1968 Civil Rights amendment requiring passage of a tribal referendum, before any state could assume any jurisdiction. No tribe in the Dakotas is going to vote for state jurisdiction.

This, then, would seem the death blow to state plans to undermine and eliminate tribal sovereignty. But, if nothing else, states are very persistent and resourceful. There must be an indirect way to undermine sovereignty, to force a state foot into the tribal door. Not only did South Dakota devise such a scheme, they ingeniously got misguided tribal members to help implement it, these members mistakenly thinking the changes helped the tribe.

By a vote of 2,161 to 526, Shannon County was renamed Oglala Lakota County in November, 2014. But there was no reason for Shannon County to even exist, but exist it had since 1875. Every tribe already has a general purpose government, it doesn’t require a county government, which in principle derives its identity, purpose and association with other state controlled counties. Once the reservation county starts incorporating all the infrastructure of state controlled counties, the slippery slope dynamic applies.

Oglala Lakota County is now organized, although many of its functions are still carried out by adjacent Fall River County. The County has a sheriff, Joe Herman, with offices in Hot Springs. A four-member County Commission meets in Hot Springs. But the rationale for why there should even be a county infrastructure within the borders of an Indian reservation is never articulated. Whatever power such a county has, this power is derived from the State, not the Tribe, and is outside the purview of the Tribe’s treaty based trust relationship with the federal government.

Beyond the county infrastructure, it has long been planned on reservations across the state to create a cooperative coordination between state law enforcement off the reservation, to come onto the reservation in a limited capacity, with law enforcement authority. This, too, sets a dangerous precedent which could be expanded and manipulated in short order.

Beyond this, a county school district is in place, and a new 400-student county high school is set to open near Pine Ridge village in 2020.

While the Oglala Sioux Tribe passes resolutions to keep out Kristi Noem, the policies she supports, like the county high school, slip by right under their watchdog noses. Until and unless the state can provide rationale for why a county should exist within reservation boundaries, the Tribe’s official position, if they wish to protect sovereignty from the greatest enemy, the state, should be to eliminate any and all justifications for the state ever having any role or influence within the borders of a reservation.

This does not mean a hostile relationship should be courted with governors like Noem. Not when she controls disaster relief resources, and her help was desperately needed in the recent spring flooding that left 8,000 Pine Ridge residents flood affected.

Even now, efforts are under away in the Dakotas to bring a vote to the floor in Washington that would strike down the 1968 Civil Rights amendment. A consequence would be a state-wide vote on tribal jurisdiction, and given the polarized tenor of these times, it could very well result in the state seizure of civil and criminal jurisdiction on all reservations. With county infrastructure on reservations expanding and conforming to the state standard, transitioning to a state controlled county would take minor tweaks. Tribal councils retain the power to reverse these trends. They could challenge the state in court, and the possibility exists, state counties within reservation borders could be abolished.

 

(James Giago Davies is an enrolled member of the Oglala Lakota tribe. He can be reached at skindiesel@msn.com)

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