State disputes 'illegal jurisdiction' of tribe

THURSDAY, OCTOBER 10, 2002

South Dakota Governor Bill Janklow (R) sued the Bush administration on Tuesday to dispute a tribal road tax and an Indian hiring program.

In papers filed in federal court, Janklow refused to submit to the "illegal jurisdiction" of the Rosebud Sioux Tribe. He said the state will not pay a two percent tribal tax or require highway contractors to give preference to tribal members and other Native Americans.

"[T]he tribe lacks the authority, as a matter of federal law, to subject state contractors to tribal civil jurisdiction," the October 8 complaint authored by deputy attorney general John P. Guhin stated.

Janklow, who is running for the state's sole U.S. House of Representatives seat, is not suing the tribe. He is challenging Secretary of Transportation Norman Y. Mineta's decision to withhold federal highway funds to the state.

Upholding a Clinton-era policy, Mineta recently informed the state that it was in violation of the Rosebud tribal law. An August 20 investigative report concluded that all tribes in South Dakota "have the jurisdictional authority" to impose tax and hiring preferences.

The position is based on a 1993 notice issued by the Federal Highway Administration, an agency of the Department of Transportation. The goal is to promote "employment opportunities for Indians on reservations."

"Tribes may impose this tax on reservations, but they have no tax authority off reservations," the document states.

But the state asserts that its road maintenance programs are threatened by tribal jurisdiction. Although the notice provides for federal reimbursement of tribal taxes, the court papers claim otherwise.

The state also disputes the "extraordinary" power of the tribe to enforce its road programs. Fines, suspensions and termination can be imposed if highway contractors do not follow the tribal ordinance.

During a six-year period, the state paid about $335,000 in taxes to the tribe but stopped in 1999. South Dakota receives federal highway funds in excess of $20 million.

Federal law was amended to allow for tribal taxes and Indian preference under the Indian Reservation Roads (IRR) program. Tribal leaders yesterday testified before a House committee to support an increase in Indian highway funds.

"Indian people," said Navajo Nation council delegate Andrew Simpson, "need better roads to reach a better future."

Other witnesses said support from the federal agencies was crucial to their success. "We think the federal government could serve Indian Country better if it trusted us more," said Timothy Tubby, a planner for the Mississippi Band of Choctaws.

The IRR program is funded through a percentage of a federal highway trust fund. It receives about $275 million per year, to be distributed to more than 500 tribes and Alaska Native governments.

Sen. Jeff Bingaman (D-N.M.) has introduced a bill to double the amount.

Relevant Documents:
Complaint: Janklow v. Mineta (10/8) | INDIAN PREFERENCE IN EMPLOYMENT ON FEDERAL-AID HIGHWAY PROJECTS ON AND NEAR INDIAN RESERVATIONS (DOT Notice N 4720.7)

Relevant Links:
Rosebud Sioux Tribe - http://www.rosebudsiouxtribe.org
South Dakota Department of Transportation - http://www.sddot.com
Federal Highway Administration - http://www.fhwa.dot.gov