Buddha Stands With Standing Rock
(all my relatives)
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.
Buddha Follows the Swerving State Van
The rebellious driver
No lines does he follow.
*Context. While driving out to Rosebud for the Indian Law field trip, several students (e.g., Brandi Gant and Anna Limoges) write a Buddha poem about my driving skills. They text it to Bo Bearshield who is riding with me in the state van. He reads it aloud. I chuckle.
The entire class (and several other patrons) are eating lunch at Subway in Winner, S.D. at the eastern edge of the Reservation. Without thought or warning, I announce, ‘hey, listen up everybody. Bo is going to recite a Buddha poem.’ To my surprise, Bo stands up and reads it. There is spontaneous laughter and applause.
Buddha stays with us for the rest of the trip.
Among the highlights of Professor Pommersheim’s sage talk was the advice to Tribes to broaden business licenses to include consent to tribal jurisdiction over tort claims related to the business and consent by the business’ employees. He also suggests that Tribes consider amending their civil procedure codes to eliminate interlocutory appeals over jurisdictional questions.
Here is the opinion in Scott v. Kindle:
The case at bar is fraught with such risk. There is no doubt that the action of the Tribal Council in removing President Scott from office is of historical significance. As such, it ought not be too readily set aside, especially when no practical remedy is available. As noted above, a new Tribal president, William Kindle, has recently been elected and taken office. Mr. Scott, even if he could prevail on his substantive arguments, cannot be placed back in office.3 Under these circumstances, it’s best to avoid any unnecessary constitutional conflict.
Here is the opinion in Woods v. Cheyenne River Sioux Tribal Council:
Despite the long and convoluted history of this case, much has been accomplished and both parties are to be commended for the positive results to date. As noted by Attorney Gunn in his letter of September 21, 2015, which is now part of the record in this case:
… the Tribal Council does not seek to undermine the rights and values enshrined in the Tribal Constitution or the Indian Civil Rights Act. To the contrary, the Tribal Council has honored and protected those rights by enacting redistricting legislation that ensures, and will continue to ensure, proportionate representation in the Tribal Council for all Tribal citizens.
There may still be differences of opinion in the details, but not on the overarching Tribal constitutional principle that mandates Tribal Council reapportionment. This, indeed, is worthy and noteworthy advance.
To be clear, while this case is over, the process of reapportionment and redistricting is not. Both sides realize that there is more to come, especially in regards to the Tribal Council’s commitment to taking a new tribal census in 2017 to guide redistricting for 2018 elections. See, e.g., Tribal Council Resolution 10-2015-CR. The implementation of this Tribal Council resolution may or may not lead to new litigation. If there is such litigation, the issue of Tribal Council sovereign immunity may be raised as a defense at that time. If it is, both the trial court and this Court shall rule upon it.
“Frank Pommersheim is the modern apotheosis of Ksa, Nanaboozhoo, Quetzalcotl, Athena, John Marshall, and the Buddha—all legends of judicial wisdom. Tribal Justice is a powerful culmination of his career work so far, and gives us all hope for another quarter century of his judgment, experience, and calm thoughtfulness. As the Buddha (probably) said, Pommersheim ponders from the stars and judges from the sky, yet speaks from the heart and writes for the land.” — Matthew Fletcher, Professor of Law, Michigan State University College of Law
“Every Tribal Judge should read this book. Written from the perspective of an able and seasoned Tribal Appellate Justice, it shares judicial perspective that is unique to members of the Tribal Judiciary. Justice is sacred. Native Justice is rooted in a world view that is starkly different than that of dominant society. We serve in Tribal communities but must deal with misguided federal law. This writing gives us guidance. Miigwetch, Frank!” — Michael Petoskey, Chief Judge, Pokagon Band of Potawatomi
“Professor Pommersheim’s new book […] is a soul-searching and compelling look at the importance of tribal courts of appeals in the development of a body of tribal law that is responsive both to the needs of tribal citizens, who adhere to traditional notions of justice, and the non-Indian community, with well-reasoned court decisions that lay out clear parameters for law and order in tribal communities. By examining individual cases from several different tribal communities, one of which was examined by the US Supreme Court and one which is about to be critiqued, Professor Pommersheim demonstrates himself to be an indispensable player in the advancement of tribal justice in numerous communities. Having been involved in some of the cases chronicled in the book, and having served with Professor Pommersheim on appellate courts for approximately 18 years, I have seen first-hand Professor Pommersheim’s commitment to ensuring that tribal appellate courts serve the needs of all litigants in tribal courts.” — BJ Jones, Chief Judge Sisseton-Wahpeton Oyate Tribal Court; Director Tribal Judicial Institute, University of North Dakota School of Law
“Only a poet could so seamlessly intertwine memoir, practical how-to, and grand vision in one remarkable book about law and life in Indian country. Tribal Justice is deeply compelling, taking the reader on a more than quarter-of-a-century ride through an extraordinary career devoted to tribal law and the people from which it springs.” — Angela Riley, Professor of Law, UCLA School of Law
“Professor and Justice Frank Pommersheim has once again written an inspiring book […] to be read and reread. His current writing and appellate opinions provide an essential guide to understanding tribal courts, specifically appellate courts. Justice Pommersheim’s book is a must read by all legal and judicial practioners and tribal, federal and state leaders to understand the importance of the Tribal judiciary in protecting and enhancing the sovereignty of tribal nations. Respectfully, he shares his life with Indian people in a most graceful, intellectual, and poetic manner and emphasizes that justice, freedom and equality is for all.” — Cheryl Demmert Fairbanks (Tlingit-Tsimpshian), Esq., Justice for the Inter-Tribal Court of Appeals for Nevada and White Earth Nation; Visiting Professor of Law, University of New Mexico’s Southwestern Indian Law Clinic