Law enforcement issues unresolved following Oglala Lakota lawsuit

Judge orders tribe and federal government to negotiate a settlement of lawsuit within weeks

A 155-year-old treaty is central to defining what law enforcement services the United States is obligated to provide to the Oglala Sioux Tribe. But questions still remain about what that entails and what it means for the rest of Indian Country.

The “Bad Men Clause” within the 1868 Fort Laramie Treaty with the Oceti Sakowin (Lakota, Dakota and Nakota) states the United States is responsible for the protection of tribal citizens. This clause is now central to the 2022 lawsuit launched by the Oglala Sioux Tribe.

In July 2022, the tribe launched a lawsuit against the United States arguing that the United States has failed to uphold its treaty obligation of protecting the signatories of the 1868 treaty from “bad men.” The police department only has 30 employees and has struggled to keep up with an influx in emergency calls.

Currently, both parties, the Oglala Sioux Tribe and the United States, are in discussion and looking to negotiate a settlement per the judge’s order in the coming weeks.

“I’m not optimistic,” said Ben Fenner, a litigator from Peebles Kidder representing the Oglala Sioux Tribe. “Essentially the government has told us that the litigation is to determine the duty owed. Thus far, there’s been no movement and I’m not optimistic that there’s going to be any movement. My concern is that this will drag out for years and years, and in the meantime, the community will continue to suffer.”

According to the initial complaint filed in July 2022, of the thousands of 911 calls filed on Pine Ridge in the past year, 794 were calls for assault, 1,463 were domestic violence calls, 522 were gun-related calls, 541 were drug/narcotic calls and 541 were of reported missing persons.

Only between six and eight of the 30 Oglala Sioux Tribe’s officers are working at one time and responsible for servicing an area the size of Connecticut. The tribe’s law enforcement is administered under contract with the BIA’s Division of Law Enforcement Services. This means that Law Enforcement is entirely controlled by the tribe, using federal funds.

“If you’ve got a domestic violence call and an active shooter call that’s 150 miles away, the officers have to make a decision right there on the spot, ‘Which life do I save?’” Fenner said.

Xavier Barraza, Pomo Nation citizen and senior associate attorney for Peebles Kidder, said the standard number of officers per 1,000 individuals is 2.4 officers, and the Oglala Sioux Tribe is at 0.6 officers per 1,000 people.

“We’re not saying you need to give us more money, we’re saying you need to meet your standard,” he said. “At the end of the day that may mean money being appointed by Congress, but that’s not what we’re arguing.”

The Pine Ridge Reservation has a population of about 20,000 people spread over 3.1 million acres. The tribe’s total enrollment is about 46,855, and many tribal members commute from border towns to the reservation to work.

The immense land base means law enforcement, which is centered in the village of Pine Ridge, can often take up to an hour to respond to a phone call. Often officers have to prioritize which calls they’ll respond to, meaning many calls go without a response.

Right now, the Oglala Sioux Tribe’s lawsuit against the government stands at a crossroads. The issue isn’t whether or not the government has a duty to uphold treaty obligations, it’s how they have to uphold those obligations.

The tribe is requesting enough funding for 120 officers, which they said would be able to adequately police the reservation, and a re-evaluation of the budget set in 1999, which has not been adjusted since.

In 1999 when the BIA changed its funding mechanism for law enforcement, the amount of money calculated for the Oglala Sioux Tribe’s needs was based on additional support from non-BIA grants for law enforcement, allowing the tribe to use the Tribal Priority Allocation system for other programs. In 2006, the tribe stopped receiving that grant. The allocated amount set in 1999, however, was not adjusted for the change, inflation or rising population.

“Even if they can afford to hire a new officer, the attrition rate is a big problem. They don’t have the funds, they’re in constant damage control mode to keep the force at what it is, which is maxing out their funding,” Fenner said.

Prior to losing the Tribal Priority Allocation grant, the tribe’s law enforcement boasted a roster of 120 officers with a reservation population of only 15,521. After losing the grant, the tribe lost roughly half of its police officers; that number has continued to dwindle.

Earlier this year, former Oglala Sioux Tribe Police Chief Algin Young testified his 33 patrol officers could not respond to all 911 calls and work an average of 80 hours of overtime a week.

Representatives from the Department of the Interior declined to comment.

Problems not exclusive to Pine Ridge

Pine Ridge isn’t the only Indigenous community struggling with insufficient law enforcement. Several Indigenous communities have begun to sue the government over a lack of law enforcement funding and personnel.

In 2022, two Montana communities, the Northern Cheyenne Tribe and the Fort Belknap Indian Community, sued the United States. The Northern Cheyenne sued over a general lack of officers, drug investigators, missing persons investigators and jail space despite rising crime rates. The Fort Belknap Indian Community sued the United States after their request for a $3.8 million increase in law enforcement funding was rejected.

Both communities, like Pine Ridge, struggle with high rates of Missing and Murdered Indigenous People and drug trafficking.

There are different routes available to tribes. The Oglala Sioux Tribe could elect to move back to being a BIA law enforcement-operated tribe, rather than staffing their own law enforcement using BIA resources. This move doesn’t guarantee protection.

The Crow Creek Sioux Tribe, whose law enforcement is BIA-controlled, has been struggling for years with police staffing, a lack of a tribal jail and general crime on the reservation.

The tribe launched its independent citizen patrol initiative in July 2023 after the murder of tribal citizen Garrett Hawk. The tribal night patrol, however, does not have the authority to make arrests and must partially rely on the BIA.

Crow Creek Chairman Peter Lengkeek said a majority of drugs on his reservation are being trafficked by non-Natives.

Fenner spoke to a similar issue on the Pine Ridge Reservation, where non-Native drug traffickers enter the reservation and recruit vulnerable youth to work for them.

Even “Public Law 280” tribes, which are patrolled by non-Native law enforcement from nearby communities or counties, struggle with a lack of law enforcement resources.

In Montana, the Confederated Salish and Kootenai Tribes elected to be a Public Law 280 tribe in the 1960s, moving jurisdiction over the Flathead Reservation to Lake County officers while the tribal authority would continue to handle misdemeanors.

This past legislative session, representatives from Lake County moved to pass a bill making the state pay the county more money as they patrol the reservation and the county. The bill passed but was later vetoed by the governor. The county has since filed a lawsuit to attempt to gain more money and resources for patrolling the reservation and threatened to cease providing law enforcement if it’s not reimbursed for the average $4 million per year spent patrolling the Flathead Reservation.

South Dakota is not a Public Law 280 state, but in September 2022 the Oglala Sioux Tribe entered into an agreement with the Pennington County Sheriff’s Office to allow for mutual aid between the two parties.

“Every day that goes by the tribe, the community is suffering,” Fenner said. “The decision was handed down in May and here we are going into the winter, and there hasn’t been any real movement on the substantive order of the court, which is to re-evaluate the base contract.”