2018-02-07 / Top News

Noem’s threat to tribal sovereignty is real

Recognizing the threat to Public law 280
By James Giago Davies
Native Sun News Today

Courtesy Photo Courtesy Photo RAPID CITY—Reservation leaders say they are not fooled by South Dakota Congresswoman Kristi Noem’s House bill, H.R. 4864. Called the “No Haven for Dangerous Fugitives Act of 2018,” the bill would allow Federal marshals to go onto a reservation and apprehend a suspect, acting at the behest of the State. Regardless of the validity of the safe haven argument, tribal leaders like Cheyenne River’s Harold Frazier imply this is a ruse, to attack tribal sovereignty, and in the process increase the ability of every state to extend their criminal and civil jurisdiction onto every reservation.

“We have a process, procedures in place already for extradition,” Frazier said. “The law is already there, it’s just not being followed, and I kind of feel that with them passing this law is trampling all over our rights, even our existence, in my opinion.”

For a long time, Lakota country has been collectively aware that a movement is underway to erase the treaty protected separation of tribal sovereignty from state authority. Last year, two North Dakota State legislators, Kevin Kempenich and Vicky Steiner, introduced a “concurrent resolution” to urge the United States Congress to “modify the Indian reservation system by vesting the states with the ability to engage in relations with Native American tribes and with the responsibility of developing plans to improve the failed Indian reservation system.”

North Dakota representative Kevin Cramer has supported that resolution, along with many other attempts to roll back the protections of tribal sovereignty.

Cramer also had a notorious 2013 exchange with tribal representatives from Spirit Lake, where he said, as a white man, given tribal jurisdiction over violence against women cases, he would have no rights, and not “get a fair trial” in tribal court. He admitted to Melissa Merrick, Director of Spirit Lake Victim Assistance, he had never even been to a tribal court.

When Merrick asked what guarantee did she have when she went to a white court she would get justice, Cramer responded with, “I speak out about that.”

Cramer assumed tribal bias where he had no personal experiences or data to justify such an assumption, but by saying he spoke out about the unfairness of the bad treatment Indians receive in white courts, he logically implies this bias actually exists, and hurts Indians.

Noem’s H.R. 4864 appears to be just the latest in a concerted strategy to eventually eliminate tribal sovereignty altogether, so that not only will Indians always be subject to non- Indian courts, but nothing will stop every other aspect of non-Indian culture, business and interest from operating on any reservation with impunity.

The roots of this issue go back to 1953, and Public Law 280. This Law enabled states to assume criminal, as well as civil jurisdiction in matters involving Indians as litigants on reservation land. Ten states were given the option of enacting Public Law 280, both North and South Dakota included. In 1964 a state wide referendum was voted on and defeated. The referendum called opting for Public Law 280. However, at that time, the state was only interested in a minimal amount of involvement, they basically just wanted control of the highways; they didn’t want to foot the bill for maintaining the tribal court system. For years, other regions had run into problems where federal funding did not meet the needs of tribal court systems run by mandatory Public Law 280 states.

South Dakota lost in the state Supreme Court, the court ruling it must be all or nothing, in opting for state jurisdiction on reservations, you could not cherry pick, and the frugal taxpayers of the state decided they did not want to foot the entire bill.

In 1968, the Civil Rights Act amended Public Law 280, so that a two-thirds referendum was needed to allow state jurisdiction over the reservation legal system, voting restricted to whatever enrolled members a given tribe allowed to vote. Since that time no tribe has ever held such a referendum, and given the perception tribes now have of such a referendum, none ever will be held.

Noem, Cramer, Kempenich and Steiner are all foot soldiers in a movement backed by the power special interests of energy companies and related business partners to eliminate the roadblock of tribal sovereignty altogether. Once sovereignty is lost, the reservation system will not be far behind; the wards of the state treaty-based relationship tribes have with the federal government would disappear, and nothing would stop states from controlling which companies take what from the vast combined energy wealth of reservations no longer protected by the 1968 amendment.

Chairman Frazier said that Tribes need to familiarize themselves with the impending threat this anti-tribal sovereignty movement represents, and identify where it can presently threaten a tribe. For example, the part of the Pine Ridge Reservation that extends into Nebraska, where the new nursing home facility is located, is not protected by the 1968 amendment to Public law 280. But there are procedures in place, which the tribe can use, to safeguard this area.

(James Giago Davies is an enrolled member of the Oglala Lakota tribe. He can be reached at

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