Native Sun News Today: Bamboozled by State jurisdiction

Monday, September 23, 2019  

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.”

Gov. Kristi Noem (R) visited the Pine Ridge Reservation just a couple weeks ago. That might have been her last time there now that the Oglala Sioux Tribe has told her she isn't welcome. #NoKXL https://t.co/mXR55Qp1DV

— indianz.com (@indianz) May 3, 2019

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.

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

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