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State Court Upholds Tribal Jurisdiction

PIERRE, S.D. -The South Dakota Supreme Court upheld tribal jurisdiction in
a criminal case and ruled that state law enforcement could not engage in
free pursuit onto reservations to make an arrest.

A lower court ruled against the state in the original case, South Dakota v.
Cummings, but the state appealed with the argument that it did have
jurisdiction to free pursuit with the jurisdiction of a reservation, as
given by Nevada v. Hicks, but in this case, without permission or a
warrant.

The South Dakota justices said no, the state did not have jurisdiction. The
case, with national implications, points to the fact that if a state wants
to pursue persons who try to use the reservation as a means to escape
prosecution it must first negotiate with the tribes and enter into a
compact, such as Public Law 280.

"We are ecstatic, we fight and we fight and we fight and don't get to see
very many results. This is a strong solid win," said Rena M. Atchison of
the Abourezk Law Firm.

"The South Dakota Supreme Court opinion has some strong language supporting
tribal sovereignty," Atchison said.

The written opinion stated that, "tribal sovereignty was being used as a
shield to protect the Tribe's sovereignty from incursion by the state. This
is significant because historically, the federal government has been highly
protective of the tribe's right to be free from harm and interference from
the state."

Two lower state courts concluded that the state did not have jurisdiction
to enter the reservation in a free pursuit situation. It started more than
a year ago, when Nicholas Cummings, Oglala Lakota, who lives on the Pine
Ridge Reservation was observed driving 71 miles per hour in a 65 mph zone
along a federal highway.

A deputy sheriff began pursuit with lights flashing. Cummings then sped up
to 90 miles per hour and stopped a mile inside the border of the Pine Ridge
Reservation. The officer, with weapon drawn, forced Cummings to his knees,
handcuffed him and then took him to the front of the patrol vehicle. The
recorder in the patrol vehicle caught Cummings when he said he had been
drinking.

The deputy did not have a warrant or permission to enter the reservation,
but did, through his dispatcher, notify tribal law enforcement that he was
entering the reservation.

The charges of speeding and eluding were both misdemeanors. The case went
to magistrate court where the court imposed a precedent lawsuit, State v.
Spotted Horse (1990) in its decision. In Spotted Horse, the state Supreme
Court ruled the state could not use any evidence gained after it entered
the reservation.

The charges against Cummings are still pending, Atchison said. But all
evidence gathered inside the reservation boundaries are not allowed in any
future court action. In fact, she said, she hoped that the officer would
not have identified Cummings before entering the reservation boundary. The
officer determined who the driver was after they were within the boundary
of the reservation.

Cummings possesses a commercial driver's license and the eluding charge
would put his livelihood in jeopardy, should he be found guilty of that
charge, Atchison said.

"The complete statement of the issue is, can a state pursue an Indian who
is reasonably suspected of committing an off-reservation crime, pursue him
on to the reservation, stop and interview him," Guhin argued before the
court.

"The magistrate court said no. The magistrate court erred, because it did
not follow the U.S. Supreme Court decision in Nevada v. Hicks."

Guhin said the U.S. Supreme Court opinion, as written by Justice Antonin
Scalia, went the next step in Hicks and said the state did have a
concurring interest in executing a search warrant with regards to an
off-reservation crime by someone living on a reservation.

"This was to keep reservations from becoming asylums for fugitives," Guhin
said.

A question and answer period between the state justices and Guhin tried to
extract information that would lead to awareness of how each federal
justice viewed Nevada v. Hicks, but none was apparent.

"Other language in Hicks suggests the court wanted the opinion to be read
broadly," Guhin said.

The court rejected that argument and referred to the earlier State v.
Spotted Horse as case law that pertained to the Cummings case.

In that case, the defendant was pursued onto the Standing Rock Reservation,
arrested, then transported to Mobridge, S.D. The state Supreme Court ruled
that all evidence in that case obtained after crossing the boundary could
not be used.

In the written opinion the high court also instructed the state to enter
into agreements with the tribes that would establish proper jurisdiction.
In the 1950s when Public Law 280 was enacted the state signed on to the
law, but tribes were not required at the time to agree. After changes were
made in the 1960s the state did not compact with the tribes.

Guhin argued that reservations were part of the state, "which was the rule
set in Hicks. Reservation residents hold state elections and obtain social
services; reservation residents are serving in the state legislature,
reservations are indeed part of the state.

"And that's what the Supreme Court held. It's an accurate description of
the reality," Guhin asserted in oral arguments. He added that the state
does not need exigent circumstances, such as were present in the Cummings
case, to enter the reservation.

After a brief banter between Guhin and the justices it was determined that
the state has not attempted to negotiate jurisdiction with the tribes since
1990 when the state Supreme Court encouraged the state to do so. The only
tribe with an agreement, which precedes change in Public Law 280, is with
the Sisseton-Wahpeton Sioux Tribe.

"It is difficult to maintain the proposition that the state, after having
failed to effectively assert jurisdiction when given the opportunity by
Congress, now suddenly gains that jurisdiction through no action of the
state or the tribe," Justice Richard Saber wrote.

Atchison said she hoped it would be the beginning of a new era in South
Dakota where there was an absence of relentless anti-tribal litigation from
the attorney general's office.

"In this age of ever-increasing state encroachment upon tribal sovereignty
and jurisdiction, I think this gives the Lakota and Dakota people some good
reasons to restore their faith in the court system as defenders of the
principles of tribal sovereignty.

"In this next-century, if South Dakota is to move forward together, the
Attorney General will have to choose between wielding a sword or giving a
handshake - they can no longer do both," Atchison said.