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South Dakota challenge to tribes rejected by high court
Tuesday, October 19, 2004

The U.S. Supreme Court averted a possible extension of one of its most controversial rulings on Monday by refusing to take a dispute testing the reach of state jurisdiction into Indian Country.

Without comment, the nine justices rejected an appeal of a case from the South Dakota. In the case, the state Supreme Court held that state law enforcement cannot pursue tribal members onto reservations without a warrant or tribal consent, even if the alleged crime occurred off the reservation.

South Dakota attorney general Larry Long, a Republican, sought review of the case. He argued that Nevada v. Hicks, a Supreme Court ruling from 2001, allows states to go onto reservations to investigate alleged violations of state law.

"Hicks leaves no doubt that -- contrary to the South Dakota Supreme Court -- the state has authority as a matter of federal law to enter a reservation in pursuit of a fleeing perpetrator, detain the perpetrator and take a statement from him," Long wrote in a petition to the high court.

Long cited language in the Hicks opinion that was written by Justice Antonin Scalia, considered one of the staunchest conservatives on the bench. "State sovereignty does not end at a reservation's border," Scalia observed in July 2001.

But the South Dakota Supreme Court disagreed with Long. In a unanimous decision from April of this year, the justices rejected the assertion that Hicks authorized state jurisdiction over Indian lands. The key issue in Hicks was whether tribes could subject state officials to tribal court proceedings, they pointed out.

"In other words, in Hicks, tribal sovereignty was being used as a sword against state officers," Justice Richard W. Sabers wrote for the court. "Here, tribal sovereignty is being used as a shield to protect the tribe’s sovereignty from incursions by the state."

Attorneys for Nicholas Cummings, a member of the Oglala Sioux Tribe, agreed. In an opposition brief, they said the state was taking Hicks too far.

"The state's contention that the South Dakota Supreme Court defied Hicks is simply an overblown plea for error correction," they wrote in September. "As this Court is well aware, such pleas are not typically a basis for granting review."

The Tribal Supreme Court Project, a joint effort of the National Congress of American Indians and the Native American Rights Fund, was monitoring the case. It was one of several that were discussed last week during NCAI's annual conference.

Tribal leaders were worried about the case due to the potential to affirm the negative language in Hicks. They note that state and local law enforcement have entered into dozens of agreements with tribes to cooperate in criminal investigations. Hicks, on the other hand, sanctions conflict while ignoring tribal rights, they argue.

The case isn't the first time Long has used Hicks in his dealings with Indian Country. In an attempt to prosecute an Indian woman accused of voter fraud, Long sued several officials of the Crow Creek Sioux Tribe, including the tribal judge, for refusing to accept state warrants.

The tribe eventually relented under a threat of preliminary injunction but not before others registered objections to Long's campaign. The Oglala Sioux Tribe filed a brief challenging the use of Hicks.

This isn't the first time that Long has sought to overturn a ruling favorable to tribal interests either. Earlier this year, he tried to limit the amount of tax refunds owed to tribal members for an illegal gas tax but the U.S. Supreme Court refused the case.

Long is currently participating in a land-into-trust challenge against the Lower Brule Sioux Tribe and he filed amicus briefs in a case arguing that most of the Mille Lacs Ojibwe Reservation in Minnesota no longer exists. A federal appeals court has sided with the tribe.

South Dakota Supreme Court Documents:
Real Audio of Oral Arguments | Decision in South Dakota v. Cummings

Relevant Documents:
South Dakota Petition to US Supreme Court | Cummings Brief in Opposition | Supreme Court Docket Sheet

Relevant Links:
NARF-NCAI Tribal Supreme Court Project -

Related Stories:
US Supreme Court won't touch Indian tax ruling (5/24)
Court won't rehear challenge to tribal land base (5/21)
S.D. tribes contest reach of Supreme Court case (2/19)
S.D. puts pressure on tribal sovereignty (2/12)

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