The South Dakota Office of Hearing Examiners has affirmed that to receive public records, the Oglala Sioux Tribe need not pay the City of Martin’s “outside legal fees incurred in producing the records.” The Tribe filed an appeal to the examiners’ office in December after the city demanded the Tribe pay attorney fees to receive public records.
“Our In-House Counsel requested public records related to redistricting,” said Oglala Sioux President Frank Star Comes Out. “The Tribe sought documents to ensure the city’s map affords tribal members an equal opportunity to vote, and the City of Martin has no legal right to try to force a tribal government to pay for the city's legal representation.
“Typically, a few days after you make a public records request, a city clerk informs you of the total cost of your request to receive a copy. Instead, I received a letter from a private law firm saying if the Oglala Sioux Tribe wanted the public records, we had to pay over $200 per hour for ‘many, many hours’ required for attorneys to work on our request,” said Oglala Sioux In-House Counsel Rae Ann Red Owl.
The letter also stated that if the Tribe did not agree to pay the undisclosed amount upfront, that the city would only respond if the Oglala Sioux Tribe agreed to waive its immunity rights as a sovereign nation. The Native American Rights Fund, the ACLU of South Dakota and Public Counsel filed an appeal to the hearing examiners on the Tribe’s behalf.
“South Dakota Open Records Law does not allow the City of Martin to withhold public records until a citizen pays the city's legal bills,” said Native American Rights Fund Staff Attorney Samantha Kelty.
The examiners’ office ordered the city to fulfill the Tribe's public records request as required by law and the same way the city fulfills other public records requests. Specifically, the examiners detailed that the City of Martin must calculate costs according to a set fee schedule and give the Tribe a line-item estimate of the amount.
“Given its status as a sovereign Native Nation, the Oglala Sioux Tribe’s tribal immunity should be recognized and protected. The City of Martin should not try to strong-arm the Tribe into waiving tribal sovereign immunity in order to gain access to voting rights records that affect Native Americans in Martin,” said Stephanie Amiotte, ACLU of South Dakota legal director. “There is a long, elaborate history of discrimination against Native Americans in matters relating to voting in South Dakota. By being able to receive and examine public records related to the city’s new redistricting map, the Oglala Sioux Tribe will be able to shine light on any new Voting Rights Act violations that could prevent Native Americans from having an equal opportunity to participate in the political process and elect representatives of their choice.”
The examiners found that many documents the city claimed fell under "attorney-client privilege" had no such protection, describing the documents as "easily available to City staff" to which the public, including the Tribe, has a legal right to review. The examiners ordered the City of Martin to fulfill the Tribe's request for documents related to redistricting meetings, city ward and mayoral elections, and how the city prohibits city employees from committing racial and ethnic discrimination. The examiners asked the Tribe to clarify a few public records requests for specific documents related to the last two rounds of redistricting so that the city may fulfill those requests, too.
“The Tribe fought for a victory that will benefit all South Dakotans,” said Mustafa Filat, Justice Catalyst Fellow at Public Counsel’s Opportunity Under Law Project. “By challenging the imposition of attorney fees, the Tribe safeguarded everyone’s right to a transparent and accessible government.”
The Tribe is still considering whether to appeal the examiners’ decision as it relates to the Tribe’s sovereign immunity. “The United States has long recognized that tribal sovereignty is privileged,” said Kelty.
The decision from the South Dakota Office of Hearing Examiners is below.
About Native American Rights Fund (NARF)
NARF is a non-profit 501c(3) organization focused on applying existing laws and treaties to guarantee that federal and state governments live up to their legal obligations to Native Americans. Since 1970, the Native American Rights Fund (NARF) has provided specialized legal assistance to Native American Tribal Nations, organizations, and individuals nationwide to assert and defend the most important Native rights. In hundreds of major cases. NARF has achieved significant results in critical areas such as tribal sovereignty, treaty rights, natural resource protection, voting rights, and Indian education. Like us on Facebook, follow us on LinkedIn, and visit us at narf.org to learn about the latest fights to promote justice and protect Native American rights.
About the ACLU of South Dakota
The American Civil Liberties Union of South Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of South Dakota is part of a three-state chapter that also includes North Dakota and Wyoming. The team in South Dakota is supported by staff in those states.
The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people. In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ communities. The ACLU of South Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of South Dakota.
About Public Counsel
Public Counsel is a nonprofit public interest law firm dedicated to advancing civil rights and racial and economic justice, as well as to amplifying the power of our clients through comprehensive legal advocacy.