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

By Zenor, Jason Scott | South Dakota Law Review, Summer 2009 | Go to article overview

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


Zenor, Jason Scott, South Dakota Law Review


I. INTRODUCTION

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)

II. FACTS AND PROCEDURE

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. … 

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.