ACLU, other rights groups, say Martin, S.D., imposing extreme stipulations on tribe’s records request
The city of Martin wants 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 ACLU of South Dakota, the Native American Rights Fund (NARF) and Public Counsel, is appealing 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 OST 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 fulfil a public records request is permissible. The city of Martin (its welcome sign, posted on the City of Martin website, is seen above), 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 is appealing 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.
Stephanie Amiotte, ACLU of South Dakota legal director, said it’s a clear violation of the law.
“In a democracy, people are entitled to information about the work the government is carrying out on their behalf. The Oglala Sioux Tribe is no different,” Amiotte said. “But the city’s conditions are unreasonable, not grounded in South Dakota law and undermine the objective of governmental transparency at the heart of the public records request process. The city’s conditions also treat tribes in South Dakota differently than other requesters who are making public records requests.”
“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,” said NARF senior staff attorney Samantha Kelty.
“Imposing attorney fees on public records requests will act as a deterrent, rendering them financially inaccessible to the vast majority of the public,” said Mustafa Filat, Justice Catalyst Fellow at Public Counsel’s Opportunity Under Law Project.
Timeline
Aug. 25: 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: The Oglala Sioux Tribe objected to the conditions in the city’s letter.
Dec. 6: The city responded, affirming its stance on the conditions of its original letter.
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.
The Native American Rights Fund 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, 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.
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
Editor’s note: This column is from a Jan. 4 press release sent by ACLU South Dakota Communications Director Janna Farley.
Janna Farley is Communications Director, ACLU South Dakota
