January 4, 2024: City of Martin (SD) Imposes Extreme Stipulation on Tribe’s Record Request
The City of Martin, S.D., wanted the Oglala Sioux Tribe to either waive its sovereign immunity or pay an unknown amount of exorbitant attorneys and administrative fees upfront in order to receive public records related to the city’s new redistricting map and requested under South Dakota’s public records statute.
These tactics are a blatant attempt to intimidate the Tribe into withdrawing its request for documents that could 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 Tribe, represented by the Native American Rights Fund (NARF), ACLU of South Dakota, and Public Counsel, appealed the City of Martin’s actions to the South Dakota Office of Hearing Examiners.
“The Oglala Sioux Tribe understands it may have to pay a reasonable fee for the records it requested, but charging attorney fees is simply not reasonable,” said Oglala Sioux President Frank Star Comes Out. “The City of Martin has no legal right to charge Native Americans a higher rate for copies of public records. The Tribe will not stand by while the city attempts to put up these illegal roadblocks. The Tribe demands the same transparency to which every other member of the public is entitled.”
Charging a reasonable fee for city staff time to fulfill a public records request is permissible. The City of Martin, however, did not calculate a potential fee and simply stated that the “request may cost many, many hours of both attorney and city employee time.”
Charging attorney fees is not allowed under South Dakota law.
South Dakota law also does not require Tribes to waive sovereign immunity to obtain public records. The United States Supreme Court recognizes that tribal sovereignty includes the inherent right of immunity to be free from suits whether private or commercial, like any other sovereign nation, noting in Santa Clara Pueblo v. Martinez that “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” The Tribe appealed to the South Dakota Office of Hearing Examiners because the conditions sought by the City of Martin are unreasonable at best or were sought in bad faith at worst.
NARF Staff Attorney Samantha Kelty explained, “The City of Martin’s attempt to block the Tribe from obtaining public documents about its redistricting process is alarming given the long history of voting violations against Native Americans in South Dakota. NARF will continue to join with Tribes to resist.”
TIMELINE: (The letters listed below are all available as exhibits in the Oglala Sioux Tribe's December 21, 2023, request for hearing.) Aug. 25, 2023: The Oglala Sioux Tribe made a public records request to the City of Martin pursuant to the South Dakota Open Records Law (S.D.L.C. § 1-27). Sept. 11: The City of Martin replied to the request, stating that “[i]f full payment is not received upfront,” the city requires the Tribe to “waive sovereign immunity to account for the possible non-payment of the requested materials. The Oglala Sioux Tribe must include the waiver in its written confirmation that it will pay the associated fee for gathering the twenty years of records." The letter from Gunderson, Palmer, Nelson & Ashmore, LLP, noted that the “City charges $235 per hour for my services, $225 per hour for its deputy attorney’s services, and $34.53 per hour for its city employee’s time and effort to acquire the requested materials.” A full estimate of the fees were not included, only that the “request may cost many, many hours of both attorney and city employee time.” Nov. 29, 2023: The Oglala Sioux Tribe objected to the conditions in the city’s letter. Dec. 6, 2023: The City responded, affirming its stance on the conditions of its original letter. Dec. 8, 2023: Oglala Sioux Tribe appealed to the South Dakota Office of Hearing Examiners and submitted a supplemental appendix December 21, 2023: Oglala Sioux Tribe requested hearing from the South Dakota Office of Hearing Examiners January 26, 2024: Office of Hearing Examiners Ruling
January 26, 2024: Tribe’s Request ‘Reasonable and Legal’
On January 26, 2024, the South Dakota Office of Hearing Examiners affirmedhttps://narf.org/nill/documents/20240126sd-examiners-decision.pdf 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 (NARF), the American Civil Liberties Union of South Dakota (ACLU-SD), 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 NARF 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.
March 2024: OST Appeals Examiners Decision to Protect Sovereign Immunity
The South Dakota Office of Hearing Examiners affirmed last month that the Oglala Sioux Tribe could not be required to pay the City of Martin’s legal fees to receive public records. Unfortunately, in that same decision, the examiner failed to protect the Tribe’s sovereign immunity.
That’s why the Tribe, represented by ACLU of South Dakota, the Native American Rights Fund (NARF) and Public Counsel, filed an appeal of the examiners’ decision.
By not recognizing and protecting tribal sovereignty, the examiners’ decision sets a dangerous precedent of penalizing Tribes by imposing additional requirements on them that no other entity or person is subject to under South Dakota law.
“Tribal sovereign immunity is based in the inherent sovereignty of tribal governments. Tribes cannot be forced to waive their own immunity. NARF stands by the Oglala Sioux Tribe in its commitment to protect its tribal sovereign immunity with this appeal,” said NARF Staff Attorney Samantha Kelty.
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