On January 26, 2024, the South Dakota Office of Hearing Examiners 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 (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.
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