Court denies Department of Interior motion to dismiss OST suit

RAPID CITY—On May 23, 2023, the South Dakota District Court ruled in favor of the Oglala Sioux Tribe (OST), denying a motion to dismiss, brought by the US Department of Interior (DOI) OST was the plaintiff in this case, DOI was the defendant. OST sought relief from inadequate funding for tribal law enforcement, this enforcement provided through 638 contract.

District Judge Roberto A, Lange ruled in favor of OST “to a limited extent”: “…this Court determines that the United States has a duty of protection, cooperation, and support of the Tribe’s law enforcement, and the Defendants may neither abandon altogether funding and support of the Tribe’s law enforcement, nor act arbitrarily and capriciously, or otherwise in disregard of that duty. Defendants should reevaluate the Tribe’s requested funding including the service population data and provide technical assistance to the Tribe to refine its funding requests.”

Although born in Spain, the 60-year-old Lange was raised on a family farm near Madison, South Dakota. Lange assumed office on January1, 2020. He was graduated cum laude from Northwestern School of Law in 1988 with a Juris Doctor. In his most noted case, Lange ruled against Governor Kristi Noem’s efforts to display fireworks at Mt Rushmore. He also ruled in favor of the Rosebud Sioux Tribe, telling the federal government they “must do better” in providing the Sicangu with treaty obligated health care. The unfortunate consequence in that ruling was Lange was willing to concede that healthcare is a treaty obligation and not charity or compensation for land taken, but the tribal attorneys erroneously characterized it as compensation for land taken.

OST recently made six claims against the federal government concerning inadequate law enforcement funding, and the Court said in the ruling: “Claim one seeks a declaratory judgment that Defendants have a duty to ensure competent and effective law enforcement on the Reservation and claim two alleges mismanagement of funds. In claims three through six of the amended complaint, the Tribe invokes the Indian Self-Determination and Education Assistance Act (ISDEAA). Under ISDEAA, tribes can enter into contracts— commonly referred to by their original public law number as ‘638 contracts’—with the United States to run programs previously administered directly by the government.”

It is difficult to determine whether the benefits of 638 contracting law enforcement were ever realized by OST over the years, but what isn’t in dispute is that the funding for law enforcement on the Pine Ridge Reservation was inadequate, and the Court ruled the government had a duty to rectify this inadequacy: “…the express language of the 1868 Treaty—when read in conjunction with the 1825 Treaty, 1851 Treaty, federal appropriations acts funding tribal police, and the numerous federal statutes Congress has enacted involving federal law enforcement responsibility on the Reservation—imposes some duty on the United States to provide law enforcement support on the Pine Ridge Indian Reservation.”

But this is where the “limited extent” comes into play. Although the Court rules funding is inadequate, as in the previous Rosebud healthcare ruling, which is cited several times in this ruling, it does not define what must be done to make the funding adequate, and states that this ruling cannot and does not address funding specifics. The Court explained: “The contours of that duty is a more difficult question. The 1825 Treaty committed the United States to provide ‘protection’ and cooperate to some degree with the Tribe to prosecute those non-Indians engaged in criminal misconduct. The 1851 Treaty required the United States to protect the Tribe and its members from ‘depredations’ by non-Indians. In the 1868 Treaty, the United States covenanted to ‘keep an office open at all times for the purpose of prompt and diligent inquiry’ into ‘such matters of complaint by and against the Indians,’ to investigate ‘all cases of depredation on person or property,’ to prosecute those non-Indians and non-tribal member Indians subject to the authority of the United States who harm tribal members on tribal lands…”

In Rosebud, the Court determined that funding adequacy is addressed merely by the Court informing the federal government “it must do better.” While it is reasonable to assume doing better logically entails real steps to achieve adequacy, these steps need not be adequate to be real. Only a future court battle can determine specifics in establishing funding adequacy. In other words, the motion to dismiss was denied, but this does not necessarily mean adequate funding for OST law enforcement will ever be realized—it does not mean that the additional funding and resources OST sought will match what the government or any future court might determine adequate.

One argument the government continues to make is that if ordered to increase funding for any given tribal program or contract, this necessarily takes money from the rest of the budget. Lange was not moved by this argument, and so justifiably limits the funding to this particular 638 contract: “…tribes are not to be given short shrift on federal funding just because they operate a program under a 638 contract instead of the federal agency providing that service directly…”

If the federal government intended to meet the funding requests of OST, it would not have filed a motion to dismiss, and it is not unreasonable to speculate that the government response to the District Court ruling will be as minimal as justifiably possible, constituting further court battles to determine the specifics of meeting funding adequacy.

Law enforcement relief, while coming to Pine Ridge, may be long delayed by the legal process, and not meet the funding and resource specifics OST detailed for the Court. The Court conceded that OST’s concerns about understaffed and overworked personnel, about late response times where that late response resulted in adverse outcomes, were legitimate and compelling. However, there is no timetable for when the government must increase resources and funding for OST law enforcement, or to what extent that increase will address tribal concerns or needs. Similar to the previous Rosebud ruling, this leaves OST with a hollow victory, hollow in the sense that the Court obligated relief may be so minimal and slow to materialize, tribal members may not notice any substantive improvement for years to come. Court battles take time, and it may take more than one future court battle to achieve adequate law enforcement funding.

(Contact James Giago Davies at skindiesel@msn.com)

 

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