S.D. puts pressure on tribal sovereignty

FROM THE ARCHIVE

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WEDNESDAY, FEBRUARY 12, 2003

The state of South Dakota on Tuesday temporarily suspended voter fraud charges against an American Indian woman pending resolution of a dispute that tests the limits of tribal sovereignty.

Attorney general Larry Long plans to press a federal judge to force the Crow Creek Sioux Tribe to serve subpoenas on its members. In a statement, he invoked the Supreme Court's 2001 Nevada v. Hicks decision, which expanded state police powers over Indian Country.

"We're only asking the federal court to allow us to protect the integrity of state elections, by allowing us to serve these subpoenas," he said.

Long's strategy means Rebecca Red Earth-Villeda, a member of the Flandreau Santee Sioux Tribe, is off the hook for now. She is accused, in state court, of forging a handful of absentee ballot applications in last year's federal election, during which Indian voters carried Sen. Tim Johnson (D) to a narrow victory over former congressman John Thune (R).

But it puts the pressure on the Crow Creek Tribe, whose court refused to allow state authorities to serve subpoenas on tribal land. The state sought to compel grand jury testimony of 10 tribal members who live on the reservation.

"Each is a victim of having absentee ballot applications forged in his or her name and passed by Red Earth," the state alleged in the federal court complaint, filed on January 31.

The Crow Creek Tribal Council voted 6-1 on January 28 to refuse the subpoenas. Chairman Duane Big Eagle Sr. did not agree with his colleagues and, according to Long, tried to cooperate with the state until he was "overruled" by the council. Big Eagle was unavailable for comment yesterday.

As a result, Big Eagle was not named a defendant in the federal lawsuit but the other six members of the council were. Also named is Tribal Court Judge Paul Mueller, who informed state agents on January 29 of the tribe's stance. The state submitted in court what it said was an audio recording of the conversation.

"We are denying you jurisdiction," Mueller said, according to a transcript. He added: "Unless we get an order from the federal court saying you have jurisdiction here."

A hearing is scheduled next Tuesday in Sioux Falls to address the dispute. Long believes the Hicks decision, which allows state law enforcement to carry out its activities involving individual tribal members, bolsters the state's position.

The tribe has not yet filed court papers to respond to Long's charges. But a case that will be reviewed by the Supreme Court in the upcoming year suggests that Hicks may not apply to tribal governments.

The 10 Crow Creek tribal members were to have testified last Friday in state court. They were offered $40 for meals, transportation from the reservation to a state courthouse in Sioux Falls, an overnight hotel stay and a check for $135.15 in "litigation costs."

Red Earth-Villeda faces 19 criminal charges for the alleged fraud. Without the grand jury testimony, the case against her is weakened, the state acknowledges. Long's office tried to delay a related proceeding against Red Earth-Villeda but the request was rejected.

Separately, Red Earth-Villeda has filed a federal lawsuit against former attorney general Mark Barnett, who continues to work on the fraud case against her.

Relevant Documents:
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