Voting rights at center of tribal dispute with city

The Oglala Sioux Tribe, with help from the South Dakota ACLU, is seeking records related to voting rights from the City of Martin

The City of Martin, South Dakota and the Oglala Sioux Tribe are at odds over a public records request sent by the tribe.

The City of Martin has asked that the Oglala Sioux Tribe waive its sovereign immunity or pre-pay an undetermined amount of attorney fees and administrative fees for the records it requested. The South Dakota American Civil Liberties Union (ACLU) is challenging this through the South Dakota Office of Hearing Examiners.

On August 25, under the South Dakota Sunshine Act, the tribe requested records relating to potential violations of the Voting Rights Act of 1965, according to the South Dakota ACLU.

The initial request from the tribe asked for an extensive list of documents, each of which span a time range of 20 years, including election results, redistricting maps (boundary changes and reorganization plans), agendas from meetings where redistricting was discussed, any and all analysis of Section 2 of the Voting Rights Act or Gingles factors and more.

On September 11, the City of Martin denied the tribe’s request unless the tribe waived its sovereign immunity and paid upfront for time spent gathering records and attorney fees for 20 years’ worth of records. City representatives said the requested attorney’s fees were included as many of the records required an attorney’s assistance to locate.

After the denial, the tribe got in touch with the South Dakota ACLU. Working with the ACLU, the tribe narrowed the requested records down to a 10-year time frame from 20.

The tribe, represented by the ACLU, Native American Rights Fund and Public Council, is appealing the City of Martin’s stipulations before the South Dakota Office of Hearing Examiners.

The ACLU said the charging of attorney fees and request to waive tribal sovereignty are unreasonable.

“Why do they not want to produce these records without imposing these very stiff, punitive demands on the tribe like making them pay agreed to prepay attorneys fees in an unknown amount and also waive their tribal sovereign immunity,” said Stephanie Amiotte, legal director of the ACLU of South Dakota and a citizen of the Oglala Sioux Tribe, in a phone call. “It certainly begs the question, why aren’t they just producing these records as they would to any other requester if, in fact, everything is in accordance with the Voting Rights Act or the law.”

The City of Martin said it’s asking for attorney’s fees to be charged due to the nature of the documents requested.

“The requests are vague and broad, leaving it difficult for a layperson to determine whether a statutory exception applies,” said Sara Frankenstein, an attorney representing the City of Martin. “Many of the requests require legal analysis as to whether the documents sought are excluded from public disclosure pursuant to South Dakota law. Additionally, the request sought documents spanning over twenty years. Such a huge and broad request is taxing on the City of Martin’s resources and its citizenry. The City of Martin is small, and resources are thin.”

Generally, tribal sovereignty allows tribes to be free from lawsuits whether private or commercial, much like any other nation. The tribe is choosing to pursue action through the Office of Hearing Examiners because it says the conditions sought by the City of Martin are unreasonable or sought in bad faith.

The City of Martin’s legal counsel said the city requested that the tribe waive its sovereign immunity to ensure the request would be paid should it be fulfilled.

“Due to sovereign immunity, the City does not have legal recourse for collecting the applicable fee should the Tribe not pay, and the amount may be substantial if the ACLU continues to demand 20 years’ worth of broad-ranging documents,” Frankenstein said.

Frankenstein also said if the Oglala Sioux Tribe or ACLU refuses to pay for the records request or sovereign immunity is not waived, Martin taxpayers will have to foot the bill.

The ACLU said a request to waive sovereign immunity reflects a larger problem facing Indian Country.

“It really carries bigger implications than that because it amounts to a gradual erosion of the constitutionally protected status as a sovereign nation,” Amiotte said. “We see that every day in attempts by states to take that sovereign status away through encroachment on jurisdictional issues, and just other areas that tribes really do enjoy that status as a sovereign nation to govern in a manner that other governments are allowed to govern.”

Records shared with the Rapid City Journal and ICT suggest the City of Martin did share a January 2022 redistricting map with the tribe; however, no other records will be shared without pre-payment.

“The ACLU’s press release is wildly inaccurate,” Frankenstein said in an email to the Journal and ICT. “First, the City has yet to deny any document requested, other than broadly asserting a general denial that protected or privileged documents will not be disclosed, if the ACLU truly seeks them. The ACLU is not contesting the withholding of protected or privileged documents, so no denial of records is at issue here. In other words, there has been no ‘denial’ to trigger any judicial review.”

The City of Martin and Bennett County are within the exterior boundaries of the Pine Ridge Reservation and are considered by the Department of the Interior to be reservation land. State agencies, however, such as the South Dakota Department of Transportation, generally list Bennett County as not being within the reservation. Census records indicate roughly half of Martin’s population is non-Native.

In 2005, the South Dakota ACLU attempted to sue the City of Martin for Voting Rights Act Violations. After an 11-day bench trial, the claim was dismissed.

Dateline:

RAPID CITY, S.D.