Tim Giago: The laws that impacted the lives of South Dakota Indians

Monday, August 17, 2020  

Voting rights has never been something that the men and women of the Sioux Nations took lightly. Before there was a United States government the Lakota had a Democratic form of government in which the men and women participated.

Laws were enacted, leaders chosen, decisions on where to spend the winter season, and the times when the spiritual ceremonies were to be held were things decided by the Tribal Councils. Women had an equal vote on all decisions.

Everything changed when the U. S Government decided, in its infinite wisdom, that the Indian tribes needed Constitutions that were near replicas of their own. The Indian Reorganization Act became law in 1934 after it was voted into law by the tribes themselves. The traditional Lakota decided to boycott the election thinking that would prevent its passage. Wrong. The more progressive Lakota voted and the IRA became law. This marked the end of the traditional form of Lakota self-government.

My father was born in 1895 and my mother was born in 1902. Both were born on the Pine Ridge Indian Reservation. South Dakota joined the Union on November 2, 1889. Neither my mother or father were considered citizens of the United States or of the State of South Dakota until the Voting Rights Act for American Indians was passed in 1924. White women got the right to vote in 1921. The Voting Rights Act of 1924 also made the Lakota people citizens of the United States and of South Dakota.

Not all of the states ratified the Voting Rights Act for American Indians in 1924. Indian citizens of Arizona and New Mexico did not get the right to vote until after World War II when Indian veterans that served in combat came home and wondered why they were not allowed to vote and then set about forcing the states of Arizona and New Mexico to ratify the Voting Right Act.

There were no jails or prisons in Indian Country in the past. If a tribal member committed an act that would have brought him or her the death penalty under the new Constitution, under the old laws the harshest punishment they could receive was banishment from the Tribe. This was tantamount to a death penalty. One decision by the Supreme Court had a profound impact on Indian law.

Ex parte Crow Dog, 109 U.S. 556 (1883), is a landmark decision of the Supreme Court of the United States that followed the death of one member of a Native American tribe at the hands of another on reservation land. Crow Dog was a member of the Brulé band of the Lakota Sioux.

On August 5, 1881 he shot and killed Spotted Tail, a Lakota chief; there are different accounts of the background to the killing. The tribal council dealt with the incident according to Sioux tradition, and Crow Dog paid restitution to the dead man's family. However, the U.S. authorities then prosecuted Crow Dog for murder in a federal court. He was found guilty and sentenced to hang.



The defendant then petitioned the Supreme Court for a writ of habeas corpus, arguing that the federal court had no jurisdiction to try cases where the offense had already been tried by the tribal council. The court found unanimously for the plaintiff and Crow Dog was therefore released. This case was the first time in history that an Indian was held on trial for the murder of another Indian.

The case led to the Major Crimes Act in 1885, which placed some major crimes (initially seven, now 15) under federal jurisdiction if committed by an Indian against another Indian on a reservation or tribal land. This case was the beginning of the plenary power legal doctrine that has been used in Indian case law to limit tribal sovereignty.

The Major Crimes Act nearly stripped the Tribes of their sovereign status. The Voting Rights Act was severely hindered by the ability of the state government to gerrymander the Indian reservations.

The Pine Ridge Reservation with a 90 percent Indian population could not elect a Lakota man or woman because the reservation was so badly gerrymandered in favor of non-Indian candidates. When Tom Shortbull, now President of the Oglala Lakota College, ran for the state senate he saw immediately what the state had done to severely limit Indian participation in state elections. He fought this unfair system and beat it and won a seat to the state senate.

The next battle the Tribes had to fight, and are still fighting, is getting polling places on the reservations so tribal members do not have to drive 100 miles just to vote. And as the population of the Indian people dramatically increases in South Dakota it is probable that the Indian people will have the majority voting population in the next 50 years. Then what?

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Contact Tim Giago at najournalist1@gmail.com

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