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Oglala Sioux Fight Feds’ Bid To Toss Police Funding Suit

03 Mar 23

By Peebles Kidder

By Gina Kim

Law360 (December 21, 2022, 7:23 PM EST) — The Oglala Sioux Tribe fought Tuesday against the government’s bid to dismiss the tribe’s suit seeking more police personnel or funding to serve its 40,000 members, arguing that the U.S. breached its treaty obligations and saying that denying relief would cause “unimaginable suffering and death on the Pine Ridge Reservation.

In a brief filed with the U.S. District Court for the District of South Dakota, the Oglala Sioux Tribe urged the court to deny the government’s dismissal bid, maintaining that it sufficiently stated its claims for relief, and that the U.S. must fulfill its treaty obligations to provide law enforcement protection on the 3.1 million-acre Pine Ridge Reservation in South Dakota under 19th-century treaties that have been repeatedly reinforced by federal statutes since then.

“The language of the treaty is clear and unambiguous — the United States has the duty to provide sufficient law enforcement to provide ‘prompt and diligent inquiry’ and ‘investigation under the provisions of their treaty stipulations’ and to ‘proceed at once to cause the offender to be tried and punished,'” the brief states. “These obligations are unambiguous, and even if there is any ambiguity, it must be ‘construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.'”

Tuesday’s brief comes after the U.S. in November moved to dismiss the tribe’s complaint, arguing that federal officials can’t be forced to send the tribe more money to combat a purported “public safety crisis” on the Pine Ridge Reservation. The U.S. added that Oglala Sioux leaders can divert their existing resources for police and seek additional aid through the governmental process.

The U.S. further suggested that the Oglala Sioux could obtain more federal aid by asking agencies like the Indian Health Service to reimburse certain costs, thus freeing up existing funds for police use.

The dismissal bid came after the tribe sought a court order requiring the Bureau of Indian Affairs to provide emergency relief that would help pay for new police officers amid a rash of violent crime on the reservation, which is home to 40,000 tribal members, non-members and non-Indians.

The Oglala Sioux alleged in their July complaint that the U.S. pays for only 41 police personnel to cover the reservation, an area roughly the size of Connecticut. That police force, consisting of 33 officers and eight criminal investigators, means that only six to eight people are on each shift, the tribe said.

Federal treaties require the U.S. to provide such resources, the tribe argued, adding that police response time often exceeds 30 minutes, even in circumstances involving domestic violence, firearm activity and other imminent public safety threats.

On Tuesday, the tribe maintained that the U.S. breached its treaty and trust obligations regarding police resources under the Indian Self-Determination and Education Assistance Act; under the act, he Oglala Sioux signed contracts with the U.S. to provide treaty-based police patrol obligations.

The act also requires the interior secretary to provide the tribe with funds the secretary would have otherwise provided for the operation of treaty-based police duties, and not the amount that the Office of Justice Services provides to the tribe under contracts today, the motion states.

Yet the Bureau of Indian Affairs set up the Oglala Sioux’s base police funding amount predicated on the amount the tribe had set aside from its Tribal Priority Allocation funds in 1999, back when the tribe had 63% of its police officers funded by temporary U.S. Justice Department grants, and accordingly, allocated its police money to other government programs run by the tribe.

The government also grossly undercalculated the police service population on Pine Ridge, the tribe argued. By undercalculating the service population and failing to use the BIA’s standard for calculating the number of officers required, the U.S. has breached its treaty obligations and the Indian self-determination act, the Oglala Sioux alleged.

The Oglala Sioux also took issue with the contention by the U.S. that the tribe has the authority to divert funds from its already underfunded government programs to supplement its police budget. That argument, the tribe said, ignores the government’s obligations under the self-determination act and treaties, the motion states.

The U.S. also doesn’t dispute the tribe’s allegations that it receives no effective police services for missing and murdered indigenous people, drug enforcement and internal affairs, since its employees in those programs are located more than 90 miles from the reservation, the Oglala Sioux said.

The lengthy brief was also accompanied by the tribe’s reply to the government’s opposition to its preliminary injunction request, whereby the Oglala Sioux maintained that it had demonstrated that it would suffer irreparable harm absent a court order. The tribe argued that it had tried to work with the federal government for decades, including the White House, the assistant interior secretary and the Office of Justice Services, to assert that they had failed to abide by the treaty obligations, but to no avail.

“Defendants’ argument that the tribe has not shown irreparable injury is offensive to the tribal members and others relying on tribal police protection who have experienced violent trauma or who have lost a loved one due to violence,” the motion states. “It is also offensive to the tribal police officers whose lives are placed at even greater risk due to defendants’ arbitrarily low service population calculation and base contract amount.”

Representatives for the tribe and the U.S. did not immediately respond to inquiries for comment Wednesday.

The Oglala Sioux Tribe is represented by Rebecca Kidder, Patricia Marks, Ben Fenner and Conly Schulte of Peebles Kidder Bergin & Robinson LLP.

The U.S. is represented by Alison Ramsdell and Aron Hogden of the U.S. Attorney’s Office for the District of South Dakota; Brian M. Boynton, Brad P. Rosenberg, James D. Todd Jr. and Hilarie E. Snyder of the U.S. Department of Justice’s Civil Division; and Femila N. Ervin, Dondrae N. Maiden, Elizabeth A. Harvey and Kristen D. Kokinos of the Interior Department’s Office of the Solicitor.

The case is Oglala Sioux Tribe v. United States of America et al., case number 5:22-cv-05066, in the U.S. District Court for the District of South Dakota.

–Additional reporting by Caleb Symons and Joyce Hanson. Editing by Karin Roberts.