Court Hears S. Dakota-Indian Dispute Over Jurisdiction of Reservation Roads

Like many a traffic cop, Willard Bordeaux stopped a speeder the other day. But what Bordeaux then reported to headquarters is anything but typical.

“Subject is a non-Indian,” crackled the voice of the Bureau of Indian Affairs patrolman over the police radio. “Released with a warning.”

Bordeaux had no choice. The incident took place on U.S. 18 in the heart of the Rosebud Sioux Indian reservation, a remote, barren expanse of stubby pastures and ramshackle homes astride the Nebraska border. It is also one of the few places in the nation where justice, by design, is not blind.

Jurisdiction Limited

Thanks to a complex legal thicket that envelopes the administration of Rosebud, as well as many other Indian reservations around the country, the federal BIA police are the law here but still have no jurisdiction over the nearly 1,000 whites who live on reservation land.

At the same time, the county sheriff and a local policeman in the reservation town of Mission, both of whom are white, can not arrest or ticket Indians. And the state highway patrol pretty much steers clear of roads in Rosebud altogether.

Or at least it has up to now. In what could be a landmark legal battle pitting safety concerns against Indian autonomy and dignity, South Dakota and tribal officials are fighting in the federal courts over jurisdiction on the highways at Rosebud and other reservations.

The state says it should have control and points to a serious alcohol problem on the reservations that has led to an accident fatality rate at Rosebud three times the statewide average. At the neighboring Pine Ridge reservation, patrolled solely by an Oglala Sioux tribal police force, the highway death toll is five times the South Dakota norm, according to state figures.

Seen as Power Grab

But tribal leaders, who have vowed to keep state troopers off Pine Ridge and Rosebud no matter what the courts decide, claim that the statistics are misleading and that the state action is a thinly veiled attempt by hostile whites to seize power over Indian land.

“Unfortunately, there’s still a cowboy and Indian mentality, a redneck mentality, on the part of many (white) people out here,” charged Cora Jones, the BIA agency superintendent at Rosebud.

Viola Burnette, the attorney general of the Rosebud tribe, sees the highway dispute as part of a much broader struggle with the state. “They’re chipping away at our jurisdiction,” she said. “First they chip at the highways, then they chip at hunting and fishing rights, then I don’t know what. They’ll continue trying their best to get control of what happens on the reservations.”

The state won the first round in the courts last March when U.S. District Judge Donald J. Porter, acting in a suit initiated by the Rosebud tribe, said Indian authorities must share jurisdiction over reservation traffic with South Dakota police. Nevertheless, both sides insist they should have exclusive control and have appealed Porter’s ruling to a federal appellate panel in St. Paul, Minn.

Meanwhile, South Dakota Gov. George S. Mickleson, a Republican, has ordered state troopers to stay off Pine Ridge and Rosebud until some kind of accommodation can be worked out with tribal leaders.

Reservations such as Rosebud are theoretically sovereign lands, little nations within a nation guaranteed to the various tribes by treaties sometimes a century or more old. Subsequent court decisions and acts of Congress, however, have significantly diluted tribal powers and drastically reduced the original size of many Indian homelands.

Still, individual reservations have their own governments and courts as well as educational and law enforcement systems--all largely paid for with federal stipends. Indians who live on reservations are exempt from many state taxes and laws, yet are considered state citizens.

Pummelled by decades of land grabs, slights, deceptions and out-and-out harassment, many Indians are wary of any governmental actions perceived as restricting an already diminished capacity to control their own destiny. On the other hand, many whites resent the special privileges and legal status afforded Indians and suggest the reservation bureaucracy itself is to blame for turning Indian lands into bleak islands of poverty where joblessness can run as high as 90%.

Indeed, South Dakota Atty. Gen. Roger Tellinghuisen, a Republican, created an uproar earlier this year when he publicly suggested that reservations were an antiquated, “divisive form of government.” In the wake of widespread criticism, Tellinghuisen later apologized. But Indian leaders claim the remark reflects the attitude of many whites in the state.

Friction Evident

True or not, jurisdictional friction is evident on several fronts in South Dakota. For example, Tellinghuisen’s office has lent support to businessmen in a lawsuit to block Rosebud’s tribal government from regulating non-Indian owned commercial enterprises on the reservation.

Several months ago, state officials suspended bids for state-funded road repair projects at Rosebud when tribal officials demanded that disputes between contractors and workers be mediated in tribal courts. There are also simmering arguments over quality controls for water sources that cut across reservations, as well as hunting and fishing rights for non-Indians on Indian land.

But for the moment, at least, the highway battle is at center stage. The controversy has its roots in a 1953 federal law, passed in an era when Congress was actively trying to integrate Indians into the mainstream of American society, that granted outright authority over civil and criminal jurisdiction in Indian country to certain states. Other states, including South Dakota, were given the option of taking on such duties.

Over the years, South Dakota’s response to that statute has been confusing and contradictory. State lawmakers did, at one point, pass legislation to assume traffic duty on reservations, but enforcement of the statute was effectively blocked by a 1964 order of the state Supreme Court.

Made Informal Arrangements

Even so, state troopers worked out informal power-sharing arrangements with officials on some reservations. Under an unwritten agreement, state highway patrols have routinely cruised the Cheyenne River and Standing Rock Sioux reservations in the northern part of the state and issued citations to Indians which are recognized by tribal courts. Even at Rosebud, tribal officials periodically ask troopers to enter the reservation to conduct safety inspections of Indian school buses.

In 1986, however, the Rosebud tribe filed suit against the state after troopers issued a handful of tickets to Indians on reservation land. Despite their ongoing working relationship with the state, both the Cheyenne River and Standing Rock tribes later joined in the legal action, as did the Oglala tribe at Pine Ridge.

Ruling on the case last March, Judge Porter agreed with state arguments that a highway patrol presence on reservation highways could reduce lawlessness and drunk driving and save lives. And Porter, citing cost estimates for increased patrols, rejected arguments that state officials were making a power grab to snatch traffic ticket revenue from the tribes.

According to evidence provided to Porter by the state, the statewide highway death toll averaged 2.98 fatalities for every 100 million miles driven between 1977 and 1986. During the same decade, the death rate at Rosebud was 10.25 fatalities per 100 million miles and at Pine Ridge it was a startling 17.01. Tribal officials claim the numbers distort the problem, but offer little evidence to explain why.

Criticizes Officials

Also buttressing the state’s argument was an affidavit from a former officer on the federal police force at Rosebud. He claimed that Rosebud officials routinely used clout to thwart criminal prosecutions in the tribal court and that Indian judges rarely, if ever, sentenced tribal members to jail for drunk driving.

“When you get a pattern like this, it’s just too much,” argued John Guhin, the deputy attorney general in charge of the highway case. “ . . . A lot of these (Indian) officers are good officers and they try hard, but we think we can do a better job. We have to ask ourselves, can we just sit here and do nothing.”

The answer from tribal leaders, of course, is “yes.” They question whether South Dakota taxpayers will be willing to spend hundreds of thousands of dollars annually for increased traffic control on reservations. And they claim that Indians, who frequently complain of being hassled by state troopers off the reservation, will strongly resent a highway patrol presence on the reservation.