S.D. tribes contest reach of Supreme Court case

WEDNESDAY, FEBRUARY 19, 2003

A South Dakota tribe dropped its objections to the state's jurisdiction on Tuesday, clearing the way for prosecution of an American Indian woman on voter fraud charges.

Under threat of a preliminary injunction, the Crow Creek Sioux Tribe said it will no longer bar state agents from serving subpoenas on the reservation. On February 5, the tribal council rescinded a memorandum that led to the dispute. A copy was filed in federal court.

The shift in position prompted U.S. District Judge Charles Kornmann to forego action against the tribe. During oral arguments yesterday, he said it wasn't necessary to act on state attorney general Larry Long's request.

The action removes Long's obstacles in his case against Rebecca Red Earth-Villeda, a member of the Flandreau Santee Sioux Tribe who is accused of forging a handful of absentee ballot applications for last year's controversial federal election. Nearly a dozen witnesses who live on the Crow Creek Reservation are considered central to the state's prosecution. Long plans to move ahead with a grand jury proceeding.

Despite resolution of the subpoenas, the larger question of the state's authority over tribal lands still looms. Long has invoked the Supreme Court's 2001 Nevada v. Hicks decision, which expanded state police powers over Indian Country.

In response, the tribe disputed the reach of the controversial ruling, considered by many tribal leaders to be an infringement on their sovereignty. Citing case law and the 1868 Treaty of Fort Laramie, Crow Creek attorney Terry Pechota said the state's repeated attempts to assert control over Indian lands were unlawful.

"South Dakota is preempted from assuming jurisdiction that it attempts to assume in this case," Pechota wrote in court papers filed yesterday.

The Oglala Sioux Tribe backed up that view with an amicus brief that also contests the state's jurisdiction. The brief said Hicks applies to the actions of individuals, not to tribal governments.

"Based in large measure upon the fundamental principle of tribal sovereignty, the state has no right to force compliance with the subpoenas at issue here," attorney Mario Gonzales wrote.

Kornmann may or may not be called resolve the question. The tribes have asked for the case to be dismissed while Long's office has said it would proceed.

"[T]he case in this court is still 'live,'" deputy attorney general John P. Guhin wrote in a letter to Kornmann last week.

Red Earth-Villeda faces 19 charges in relation to last year's election. She has disputed the claims and has filed her own suit in federal court against former state attorney general Mark Barnett.

Relevant Documents:
Crow Creek Sioux Tribe Brief | Oglala Sioux Tribe Brief

Recent Court Pleadings:
Long Letter to Crow Creek Judge (January 23, 2003) | Crow Creek Tribal Council Vote on Subpoenas (January 28, 2003) | A Subpoena to Tribal Member (January 28, 2003) | Transcript Involving Crow Creek Judge (January 28, 2003) Complaint Against Crow Creek Tribe (January 31, 2003) | Long Affidavit (January 31, 2003) | Long Press Release on Red Earth-Villeda (February 11, 2003)

Relevant Links:
S.D. Attorney General - http://www.state.sd.us/attorney