The federal government on Thursday hit back against the Oglala Sioux Tribe's bid for extra police or funding on its South Dakota reservation, arguing that the 19th-century treaties the tribe relies on don't create a court-enforceable duty to provide a specific amount of funding or number of police.
In a 38-page brief filed Thursday in South Dakota federal court, attorneys from the U.S. Department of Justice and the U.S. Department of the Interior urged the judge to dismiss the Oglala Sioux Tribe's complaint, maintaining that the tribe fails to state a claim for breach of trust, or seek any relief under the Administrative Procedures Act in its bid for more law enforcement and funding for police presence on its Pine Ridge reservation, or create new programs to protect its 40,000 members from a purported "public safety crisis."
While the tribe leans on a trio of 19th-century treaties to argue that the U.S. breached its duties to provide police protection on the 3.1-million-acre Pine Ridge reservation, the federal government countered that the Oglala Sioux fail to point to any language in any of the treaties that create a judicially enforceable duty to provide a specific level of funding for police, much less at the tribe's preferred level.
Furthermore, the Office of Justice Services with the Bureau of Indian Affairs properly rejected the tribe's proposals under the Indian Self-Determination and Education Assistance Act to get more funding for police and criminal investigations, considering the tribe was asking for way more funding than what's allocated for law enforcement presence on Pine Ridge, Thursday's brief states.
"In an effort to forestall dismissal, plaintiff miscasts treaty language that stands in the way of its proposed interpretation and asks this court to make unreasonable inferences about what the treaties require," Thursday's brief states. "Plaintiff's opposition also improperly, and repeatedly, seeks to amend its amended complaint by asserting new factual allegations and new legal claims about the amount of funds the BIA is currently providing to plaintiff under the terms of its ISDEAA contract."
Thursday's brief is the latest development in a suit the Oglala Sioux launched in July, alleging that the U.S. pays for only 41 police personnel to cover the entire reservation that is roughly the size of the state of Connecticut. That police force, consisting of just over 30 officers and eight criminal investigators, means that only six to eight people are on each shift to service the population of 40,000 members, the tribe alleged.
The Oglala Sioux sought a court order last year requiring the BIA to provide emergency relief to hire more police amid a rash of violent crime on Pine Ridge.
Federal treaties require the U.S. to provide such resources, and the government is breaching its obligations, the Oglala Sioux argued, adding that police response time often exceeds 30 minutes, even in circumstances involving domestic violence, firearm activity and other imminent public safety threats.
The U.S. contended that tribe officials have the power to repurpose their allotment of BIA funding for police and could also seek more aid by asking agencies like the Indian Health Service to reimburse certain costs and free up existing dollars for police use.
On Thursday, the U.S. maintained that the tribe's breach of trust claim fails because the U.S. has never taken exclusive control of police presence at Pine Ridge, citing a 1983 Supreme Court ruling involving the Quinault Indian Reservation, in which the high court held that a fiduciary relationship arises when the government assumes such control over Native American-owned forests and properties.
But, without the Oglala Sioux's ability to show that the U.S. assumed exclusive control, there can be no showing of a trust duty, or a breach of that duty, the government argued.
The tribe's ISDEAA claim based on the OJS' declinations of its proposed funding requests also fails for several reasons, the U.S. said. While the Oglala Sioux argued that the OJS didn't give a basis for deciding whether its declinations complied with federal law, the record clearly shows that the tribe wanted way more funding beyond the amount allocated for police on Pine Ridge, the U.S. argued.
The agency's partial declinations were appropriate because the Oglala Sioux's proposals appeared to improperly seek an increase of approximately $3.1 million beyond the secretarial amount allocated for police on Pine Ridge, while the tribe's criminal investigations proposal seeks for an increase of $310,000 beyond the secretarial amount, the U.S. added.
"Agency letters filed with plaintiff's complaint show that the agency properly explained that OST's proposals requested a budget of $9,628,345 for its Law Enforcement program and $2,211,159 for its Criminal Investigation Program, while the Secretarial amounts for the programs were, respectively, $4,026,151 and $1,327,781," the government's brief states.
Nor can the Oglala Sioux obtain judicial review of the amount of money the BIA allocates for police programs on Pine Ridge, because the bureau's decision on how to allocate that money from its yearly lump sum appropriation is based on the agency's discretion, the U.S. said, adding that courts can't intervene in that allocation under the Administrative Procedures Act.
Representatives for the tribe and the U.S. did not immediately return inquiries for comment Friday.
The Oglala Sioux Tribe is represented by Rebecca Kidder, Patricia Marks, Ben Fenner and Conly Schulte of Peebles Kidder Bergin & Robinson LLP.
The U.S. is represented by Alison Ramsdell and Aron Hogden of the U.S. Attorney's Office for the District of South Dakota, Brad P. Rosenberg, James D. Todd Jr. and Hilarie E. Snyder of the U.S. Department of Justice's Civil Division, and Femila N. Ervin, Dondrae N. Maiden, Elizabeth A. Harvey and Kristen D. Kokinos of the Interior Department's Office of the Solicitor.
The case is Oglala Sioux Tribe v. United States of America et al., case number 5:22-cv-05066, in the U.S. District Court for the District of South Dakota.