The South Dakota Office of Hearing Examiners affirmed last month that the Oglala Sioux Tribe could not be required to pay the City of Martin’s legal fees to receive public records. Unfortunately, in that same decision, the examiner failed to protect the Tribe’s sovereign immunity.
That’s why the Tribe, represented by ACLU of South Dakota, the Native American Rights Fund (NARF) and Public Counsel, is appealing the examiners’ decision.
The appeal to the Office of Hearing Examiners stems from a dispute the Tribe had with the City of Martin. The city wanted the Tribe to pay an unknown amount of exorbitant attorney and administrative fees or waive its sovereign tribal immunity in order to receive public records. While the examiner’s decision last month found the Tribe’s request to be reasonable and required the city to calculate costs according to a set fee schedule, it mistakenly approved the city’s demand that the Tribe either pre-pay estimated costs or waive tribal sovereign immunity. This requirement is contrary to public records laws.
By not recognizing and protecting tribal sovereignty, the examiners’ decision sets a dangerous precedent of penalizing Tribes by imposing additional requirements on them that no other entity or person is subject to under South Dakota law.
Below are comments from:
- Stephanie Amiotte, ACLU of South Dakota legal director: “Neither South Dakota nor federal law requires Tribes to waive sovereign immunity to obtain public records. Tribal sovereign immunity is an inherent right of a Tribe and the examiner’s ruling is an erosion of its constitutionally protected status as a sovereign Native Nation. The Office of Hearing Examiners should not allow the City of Martin to strong-arm the Tribe into waiving tribal sovereign immunity in order to gain access to voting rights records that affect Native Americans in Martin.”
- Samantha Kelty, NARF senior staff attorney: "Tribal sovereign immunity is based in the inherent sovereignty of tribal governments. Tribes cannot be forced to waive their own immunity. NARF stands by the Oglala Sioux Tribe in its commitment to protect its tribal sovereign immunity with this appeal.”
- Mustafa Filat, justice catalyst fellow at Public Counsel’s Opportunity Under Law Project: “Access to public records is an essential right for all South Dakotans. We are proud to support the Oglala Sioux Tribe’s right to access public records without unnecessary and unlawful constraints.”
The Notice of Appeal and the Statement of Issues can be found below.
About the ACLU of South Dakota
The American Civil Liberties Union of South Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of South Dakota is part of a three-state chapter that also includes North Dakota and Wyoming. The team in South Dakota is supported by staff in those states.
The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people. In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ communities. The ACLU of South Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of South Dakota.
About Native American Rights Fund (NARF)
NARF is a non-profit 501c(3) organization focused on applying existing laws and treaties to guarantee that federal and state governments live up to their legal obligations to Native Americans. Since 1970, the Native American Rights Fund (NARF) has provided specialized legal assistance to Native American Tribal Nations, organizations, and individuals nationwide to assert and defend the most important Native rights. In hundreds of major cases. NARF has achieved significant results in critical areas such as tribal sovereignty, treaty rights, natural resource protection, voting rights, and Indian education. Like us on Facebook, follow us on LinkedIn, and visit us at narf.org to learn about the latest fights to promote justice and protect Native American rights.
About Public Counsel
Public Counsel is a nonprofit public interest law firm dedicated to advancing civil rights and racial and economic justice, as well as to amplifying the power of our clients through comprehensive legal advocacy.
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