Guest Post by Frank Pommersheim on the Retirement of Judge Sherman Marshall

JUDGE SHERMAN MARSHALL RETIRES

Sherman Marshall, Chief Judge of the Rosebud Sioux Tribal Court, recently retired after more than 35 years as the heart and soul of the Rosebud Sioux Tribal Court system. Judge Marshall was born and raised on the Rosebud Sioux Indian Reservation. He is a fluent Lakota speaker and deeply steeped in Lakota tradition and custom. Sherman received his Associate of Arts degree from Sinte Gleska University and also was the first recipient of a Bachelor of Selected Studies from Sinte Gleska University. He is a 1984 graduate of the University of South Dakota School of Law and a long time member the South Dakota Bar Association. Upon graduation from USD Law, Sherman was admitted to practice and returned home to the Rosebud Sioux Reservation. After serving as an administrator at Sinte Gleska University for several years, he joined the Rosebud Sioux Tribal Court as the Chief Judge, a position he has held since 1986. It is likely that Judge Marshall is one of longest serving judges on any tribal court in Indian Country.

It is difficult to fully understand and comprehend how much Sherman was able to accomplish during his long tenure on the bench. Early in his judicial career, Judge Marshall decided that it was incumbent upon him and his staff to visit all 20 tribal communities on the Reservation to describe the judicial system to community members and equally important, to receive input (including criticism) from community members. Over time, these efforts did much to enhance and increase community respect for the Rosebud Sioux Tribal Court system. Judge Marshall was also instrumental in helping to establish the Rosebud Sioux Tribal Bar Examination, as a necessary prerequisite for practice in the tribal courts of the Rosebud Sioux Tribe. Rosebud is the only tribe in South Dakota and one of the few anywhere in Indian country that prepares and administers its own Bar Examination. Closely related to the implementation of its own Bar Examination, Sherman was a key figure in establishing Sicangu Oyate Tribal Bar Association, one of the very few functioning tribal bar associations that exists in Indian Country. The Sicangu Oyate Tribal Bar Association, which includes both law trained and non-law trained tribal advocates has served to help create and identify a community of practitioners who are committed to practicing in tribal court with integrity and a commitment to fairness and due process.

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Frank Pommersheim’s NAICJA Keynote

Frank Pommersheim asked us to post his keynote speech from this year’s NAICJA conference, “An Emeritus Prose Podcast: The Pandemic Checkpoints of the Cheyenne River Sioux Tribe: A Teaching Essay.”

Here it is:

The Pandemic Checkpoints of the Cheyenne River Sioux Tribe

An excerpt:

In the Spring of 2020, the Cheyenne River Sioux Tribe (CRST) began implementing a series of limited vehicle checkpoints within the boundaries of the reservation as part of its comprehensive public health response1 to limit the spread of COVID-19. One of the checkpoints was located on a state highway running through the Reservation. There was an immediate uproar in South Dakota. Many people, both Native and non-Native, contacted me and asked, ‘Frank, can the Tribe really do this?’ My answer was ‘yes.’
As the questions about this Tribal public health initiative became increasingly heated, the merits of the health policy were increasingly subsumed in political rhetoric concerning the ‘rights’ of non-Natives and the authority of the state to quash the Tribe’s efforts. The calls kept coming. My answer of ‘yes’ remained the same. Yet the supporting legal analysis was not so easily summarized. No (federal) statute or Supreme Court case unequivocally said yes or no. The answer of ‘yes’ required a careful exegesis of both Supreme Court precedent and the law of the CRST.

New Poem from Frank Pommersheim: “Buddha Stands With Standing Rock”

Buddha Stands With Standing Rock

Frank Pommersheim

 

Water

against oil

 

flow

against frack

prairie

against Corps

horse

against tank

song

against empire

spirit

against capital

vision

against history

peace

against war

life

against death

Mitaku Oyasin

(all my relatives)

 

Guest Post — Frank Pommersheim: A Short Inquiry into Pe’ Sla: History, Public Policy, and Moral Imagination

A Short Inquiry into Pe’ Sla:  History, Public Policy, and Moral Imagination

By Frank Pommersheim

In 2012, several Lakota tribes, including Rosebud, Crow Creek, Standing Rock, and the Shakopee Mdewakanton Sioux of Minnesota purchased a 2,400 acre ranch on the open market.  The purchase price was about $9 million dollars.  The land is located within the western part of South Dakota in a rural portion of Pennington County.

The land is also located within the sacred Black Hills and the historical Great Sioux Nation as recognized in the Fort Laramie Treaty of 1868.  The Lakota name for this area is Pe’ Sla or the ‘Heart of All That Is.’  Tribal plans for the land include historical, cultural, and religious activities, as well as sustainable buffalo ranching.

The Tribal path best suited to these cultural, spiritual, and economic activities involves placing this land into ‘trust’ status.  This process is authorized by § 5 of the Indian Reorganization Act of 1934.  This ‘land into trust’ provision is specifically designed to permit tribes to reacquire some of their land base that was severely reduced (in the amount of 90 million acres) during the time of treaty violations and the allotment process that ran from 1877-1934.

The two major effects of placing land into trust are that the land is no longer subject to local property tax and it becomes part of ‘Indian country’ as defined by federal law at 18 U.S.C. § 1151.  This latter designation establishes an area of substantial federal and tribal jurisdiction and minimal state authority.

The process for placing land into trust requires a tribal application and review by the Bureau of Indian Affairs.  This administrative process requires notice to the public, including county and state governments.  Interested parties may also submit written arguments in favor or in opposition to the tribal application.

The State of South Dakota filed written comments in opposition to the Tribal application.  The essence of the state’s arguments were the loss of real property tax revenue in Pennington County and the creation of confusing ‘checkerboard’ jurisdiction in the affected area.  These arguments were rejected by the Regional Director’s written decision of March 10, 2016.

Key elements of the Bureau of Indian Affairs administrative decision include the following.  The loss of tax revenue in Pennington County is miniscule.  The loss of tax revenue in the amount of $78,887 is .00106% of the total county tax revenue of $7,416,900,664.  The potential jurisdictional problems are real enough, but have already been largely dealt with through a signed memorandum of understanding entered into between the Tribes and Pennington County.  This memorandum of understanding deals with both criminal and civil jurisdiction, not simply in broad generalizations, but also in practical terms of cross-deputization and shared resources.  The BIA decision also emphasizes the important fact that the local government of Pennington County, the government most directly affected by this application, did not oppose it.  Pennington County submitted no arguments in opposition.

Context is also significant and relevant.  In the Pe’ Sla application, the State of South Dakota not only opposes the tribes, but is in direct opposition to its own local county government.  This is striking and profoundly jarring.  The usual South Dakota refrain to keep the federal government out of the loop is now complemented by a desire to keep local government out too.

The Pe’ Sla case is not South Dakota’s first land into trust rodeo.  Indeed, the State of South Dakota has vigorously litigated land into trust cases for the past dozen years.  The State has opposed land into trust applications by the Lower Brule Sioux Tribe, the Sisseton-Wahpeton Tribe, the Crow Creek Sioux Tribe, and the Flandreau Santee Sioux Tribe.  The State lost all four of these cases, despite their appeals all the way to the Eighth Circuit Court of Appeals.  The State even sought review by the United States Supreme Court in the Lower Brule case, but its petition was denied.

Despite this, the State does not seek conversation or dialogue with the Tribes on these matters.  It seeks no common ground.  Apparently, it just prefers to litigate, to use its resources without qualm, and to go as far as necessary to ‘win,’ except that the State has yet to ‘win.’

With this useful history so close at hand, one might think that it is a good time to begin a respectful conversation and public policy dialogue.  Yet the only recent ‘talk’ has been Governor Daugaard’s hurtful and ill-informed comments on the Pe’ Sla case.  During his appearance before the Rosebud Sioux Tribe Council to inform the Tribe of the State’s decision to appeal the case, he opined on the Tribal failure to understand their mistake:

I also oppose the Pe’ Sla land into trust for this reason.  You have many Tribal members who have needs here on the Reservation.  And if Grandma needs housing or if Grandma needs transportation . . . Grandma doesn’t need you to spend tribal resources on a park land setting for religious use or for buffalo agricultural use.  Grandma needs housing.  Grandma needs food.  And so that’s your decision to make . . . not mine.  That’s yours to make.  But I don’t support it . . . For that reason.

While many people consider Governor Daugaard a good and decent man, his comments follow the all too common trajectory of many ‘leaders,’ who have gone before him.  Such state (and federal) ‘leaders’ know what is best for Indians without ever talking to them.  There is no need for conversation, respect, or reconciliation.

Just take care of ‘Grandma’ and forget about your religious heritage.  Take care of ‘Grandma’ and forget about sustainable buffalo ranching.  Just stay back and accept the unjust and impoverished status quo.  Don’t bother us with your efforts to (re)acquire a tiny portion of your sacred lands and to initiate a new sustainable buffalo economy.  Just stay back.  Just stay in your place.

The State of South Dakota is just repeating itself.  Just playing the same old hand of opposition to tribes.  Yet repeating the past is not inevitable.  Co-operative possibilities are not difficult to imagine.  They include such things as a joint park and permanent exhibit that deals with the history of the Black Hills, cooperative agricultural ventures involving buffalo, or a jointly run tourism office.

South Dakota.  Just turn your heart and mind around.  Withdraw your appeal.  Reset your political and moral compass.  Imagine a better, more respectful, and more inclusive future.  Good things are possible.  As Basil Brave Heart wisely encouraged the Governor in the context of the name change of Harney Peak to Black Elk Peak, “When I talk to him, I will say I know you’re frustrated, but I wish you would join us in our celebration.  I would appreciate it if you would embrace and celebrate with us on this great venture.”  Celebration without litigation.  South Dakota should think about it.

Guest Post by Frank Pommersheim on the Recent Federal Court Decision Affirming Flandreau Tribal Court Jurisdiction over Nonmember Business

The federal district court decision of Judge Schreier that denied the plaintiff’s motion for a preliminary injunction in the case of Fox Drywall and Plastering, Inc. v. Sioux Falls Construction was a ringing endorsement of the Flandreau Santee Sioux Tribal Court of Appeals decision in this case. It is one of the few (and perhaps only) federal court decisions indicating that the tribal court’s subject matter jurisdiction over non-Indians in the Montana context was so certain that the plaintiffs were not entitled to injunctive relief in that they could not show the likelihood of prevailing on the merits. Judge Schreier also noted that “there is a significant public interest in recognizing a tribe’s sovereign right to regulate activities by non-members on tribal trust land and a tribal court’s right to enforce those regulations, as long as that regulation falls within the confines of Montana” (p. 33).

Here is the tribal appellate decision at issue: Flandreau COA Decision II

And the rest of the materials in the case are here.