Gilbert V. Flandreau Santee Sioux Tribe: The South Dakota Supreme Court Assumes Jurisdiction, Overlooks Federal Indian Law, and Misapplies Constitutional Principles to a Tribal Nation

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The United States Supreme Court has long recognized that Indian nations, as sovereign entities pre-dating the federal Constitution, are "distinct political communities, having territorial boundaries, within which their authority is exclusive[.]" (2) Tribes possess the inherent right to "make their own substantive law in internal matters[.]" (3)

In Gilbert v. Flandreau Santee Sioux Tribe, (4) a unanimous South Dakota Supreme Court adjudicated an internal employment dispute between a tribal member and the tribal government. (5) The court affirmed the South Dakota Department of Labor Unemployment Insurance Division's (Department) decision validating the Flandreau Santee Sioux Tribe's (FSST) decision to terminate its employee for violating the FSST's political speech policy, precluding the tribal member employee from collecting unemployment insurance. (6)

However, in making its decision, it is arguable the court overlooked fundamental principles of federal Indian law and its own precedent by assuming jurisdiction over the internal tribal matter. (7) Additionally, the court mistakenly applied both federal and state First Amendment principles to the FSST and its member. (8) The South Dakota Supreme Court missed an opportunity to explicitly evaluate the basis of its jurisdiction to adjudicate the matter as well as its jurisdiction over a tribe that is immune from suit in state court. (9) In doing so, the South Dakota Supreme Court overlooked United States Supreme Court precedent and federal policy that recognizes tribal self-government and tribal sovereign immunity as a vital role in the protection and promotion of Indian self-determination and economic development. (10)

This note will first examine the unusual facts underlying the Gilbert decision. (11) Then it will examine the pre-constitutional status of tribes, the doctrine of tribal sovereign immunity from suit in state court, and state jurisdiction over tribal internal matters. (12) This note contends that the South Dakota Supreme Court mistakenly assumed jurisdiction over the tribal employment dispute, an internal matter committed to the FSST's exclusive jurisdiction, and that there was no federal law, state law, or tribal-state compact which conferred jurisdiction to the state. (13) Finally, this note will urge tribes in South Dakota to reassess their own laws and call for tribes to establish their own regulatory scheme that is controlled by tribal governments and is free from state control. (14)


Helen Gilbert, an enrolled member of the Flandreau Santee Sioux Tribe, was employed by the FSST as an educational coordinator for six years. (15) She unsuccessfully sought a position on the tribal council. (16) Believing that the candidate appointed to the position by the tribal council had made defamatory comments about her during the political campaign, (17) Gilbert reported her disapproval of the appointment in a letter to the tribal executive committee. (18) Gilbert wrote the letter on tribal government stationary, during work hours, and signed it in her capacity as education coordinator. (19) Gilbert's letter outlined alleged defamatory statements made against her, criticized the tribal chairman for treating specific employees differently and unfairly, and named other employees who were not subject to tribal disciplinary action. (20)

On the basis of the letter, the FSST suspended Gilbert for violating the its political activity policy that prohibits tribal employees from engaging in political activities during work hours. (21) Under the FSST's policy, political activity is broadly defined as:

   [I]nclud[ing], but is not necessarily limited to, the following:
   preparing, circulating, signing, or soliciting signatures to
   petition for recall, referendum or initiative, enrollment petitions,
   election petitions or any other petition involving tribal matters or
   affairs; any activity intended to influence the out-come of a tribal
   election or a vote on a matter involving tribal affairs, whether
   verbal or written, that is intended to be divisive towards the
   tribal government. … 


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