Tribal courts’ hands are tied

By Steve Miller, Journal Staff Writer | Monday, December 04, 2006

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Unlike state or federal courts, the Oglala Sioux Tribal Court has no say in settling the dispute over the Nov. 7 election that has roiled Pine Ridge Indian Reservation, according to the tribe’s current chief judge and a retired chief judge.

That is partly because of the lack of separation of powers between the judicial, legislative and executive branches of tribal government, tribal Chief Judge Lisa Adams and retired Chief Judge Pat Lee of Rapid City said.

Adams said last week that she had not been contacted by the newly elected tribal officers selected Nov. 7 nor by the current tribal administration led by President Alex White Plume, who was dropped from the ballot.

The new council plans to be sworn in Tuesday.

But White Plume declared the Nov. 7 election void, and a new election board has scheduled a new election.

Regardless, the tribal court has no authority over the dispute, Adams said. “Because there is no separation of powers here, the court cannot make that call,” she said.

She said the tribal court, including her, is subject to the council. But she said it is unclear which council she is subject to — the current council or the one that was elected Nov. 7.

Adams said that a statement from White Plume — in which he said that the council has authority over the court — affirms that principle. White Plume made the statement last summer after the impeachment of then-President Cecelia Fire Thunder.

“That precedent would absolutely bar me from hearing anything to do with either the seating of the new council — or the unseating of the old — or challenges to anything to do with this election,” Adams said.

“As I see it with what is happening now between the old council and the new council is purely a political battle, and with the court’s authority not being separated from that of the tribal government as a whole, it would represent truly an inappropriate entanglement for any position to be taken by this court in the matter,” she said.

Adams noted that she also was a candidate in the general election and was elected. She was appointed to the chief judge spot to fill a vacancy last spring.

Former Chief Judge Pat Lee agrees that separation of powers between the judiciary and the legislative branches is an issue, although less so since 1997, when the tribal constitution was amended to provide for the election of the chief judge.

But the constitution names the tribal council as the sole judge of the qualifications for its own members as well as those of the president and vice president, according to Lee, who served as chief judge from 1989 until retiring in 2002. “So, every time there was a case like this, I would remand it back to the council,” he said.

Lee said the current council could settle the issue by voting either to affirm the Nov. 7 election or to set a new election. He said the council also could set a public referendum on whether to set a new election.

Newly elected council members argue that only White Plume and the tribal executive board voted for a new election — not the full council.

Judge Lee said the executive board typically is responsible for carrying out routine business of the tribe between official council sessions. It could be argued whether setting an election is considered routine business, he said.

However, White Plume and Vice President Eileen Janis argue that the council did, on Nov. 21, vote to begin the process for a new election when it voted for a new election board at that meeting.

Regardless, the tribal court has no authority in the matter because there is no real separation of powers, Adams said.

Adams said the Indian Reorganization Act of 1934 formed a model constitution that was shown to a number of tribes as they were forming new governments. “Implicit in that constitution is a separation of powers, but the implication has never been recognized officially, either by way of case law or by tribal ordinance,” Adams said. “So, we’re in a really funny predicament.”

Lee said he favors amending the constitution to strengthen and clarify the separation of powers between the tribal courts and the council and tribal president.

“I believe the tribal supreme court should be allowed to rule on the constitutionality of tribal council actions,” Lee said.

But, under the current constitution, the supreme court would get involved only at the request of the council, Lee said.

However, the separation of powers problem is not as prevalent as it once was in Indian Country, according to professor Frank Pommersheim, who teaches at the University of South Dakota Law School.

“More and more tribes have effective separation of powers,” Pommersheim, who sits on the Supreme Court of the Rosebud Sioux Tribe, said. “Many tribes follow a de facto separation of powers,” he said.

However, Pommersheim said, he didn’t know whether the Oglala Sioux Tribe had a separation of powers ordinance.

“I think, sometimes, people get too caught up in separation of powers,” he said. “I think the main thing is to know what the law of the tribe is on particular issues, such as who has final authority on qualifications for office and then evaluating them and then everybody playing by the rules,” he said.

However, both sides in the Oglala Sioux Tribe election flap say the constitution backs their position.

“That’s why, sometimes, you need a court that can resolve these competing constitutional claims about what the constitution means,” Pommersheim said. “Even if the constitution assigns that responsibility solely to the tribal council, if someone says that’s not true, who is going to resolve that dispute?”

However, because the tribal court apparently has no authority over the election, the dispute must be settled by the tribal council.

But as Adams noted, the question remains: Which tribal council will settle it?

Contact Steve Miller at 394-8417 or steve.miller@rapidcityjournal.com