Patrick Springer, Published September 29 2012
South Dakota tribal court offers no hope of appeal for Spirit LakeFARGO – The door to the appeals courtroom has been slammed shut for more than a year for American Indian residents of Spirit Lake Nation.
Criminal defendants and parties in civil lawsuits under the jurisdiction of Spirit Lake Tribal Court have no access to appeals because the tribe failed to renew a contract for appellate services, according to two former tribal judges.
The tribe used to contract with Northern Plains Intertribal Court of Appeals, based in Aberdeen, S.D., to handle appeals from the tribal court in Fort Totten.
The tribal court handles minor crimes, punishable by up to a year in jail, as well as civil matters, including contract disputes, collections, foster care placement and parental rights cases for American Indian residents of the Spirit Lake Nation.
During the summer of 2011, when the annual fee of $3,000 was due to extend the appeals contract for another year, the tribal council failed to renew it, said Peter Belgarde Jr.
Northern Plains Intertribal Court of Appeals sent several written reminders that the contract was up for renewal, he said.
Once, after several reminders went unanswered, Belgarde hand-delivered renewal notices for each tribal council member, and spoke with several, including Tribal Chairman Roger Yankton, about the urgent need to extend the contract, he said.
“I was assured by Chairman Yankton that he would be acting on it quickly, but nothing happened,” Belgarde said.
The contract lapsed as a result, and the tribal court has lacked access to appeals for more than a year, according to Belgarde and Molly McDonald, another former tribal judge.
“There’s no action, so the people are left without an appeals process,” Belgarde said. The lack of an appeals process means tribal members’ legal rights are being violated, he added. “The appeal, it’s their right.”
The tribal council also is violating the tribe’s own governing document, McDonald said, since it specifies that appeals in tribal court should be heard by the Northern Plains Intertribal Court of Appeals.
“That appeals process is in our code,” she said.
Shirley Cain, now the chief judge for Spirit Lake Tribal Court, did not return phone messages left by Forum Communications in the past two weeks.
Yankton, when contacted by Forum Communications, at first said tribal members still can file appeals. When asked whether appeals actually could be heard, however, he said the tribe’s law and order committee was exploring establishing the tribe’s own court of appeals.
“I’m looking into that,” Yankton said but otherwise declined to comment.
But some say the Spirit Lake Tribal Court lacks independence, since it falls under the authority of the tribal council, a gap of governmental checks and balances that would be exacerbated if the tribe took on the appeals function.
“They have control,” said Cheryl Good Iron, of Fort Totten, a tribal member who has been a critic of Yankton and his administration. “They have their own cronies on those boards.”
In fact, one of the issues that could not be appealed was a failed petition drive that was led by Good Iron early this year to oust Yankton.
The petitions initially were upheld by McDonald, who ordered that all activities of the tribal council cease until the Yankton removal issue was decided, a decision amended by Belgarde, who said the tribe needed to keep functioning.
An outside judge then was brought in from the Pine Ridge Indian Reservation in South Dakota, who ruled that a dozen signatures were invalid, and therefore dismissed the petition.
That meant that Yankton remained in office. His administration has been under fire in recent months for its handling of child protection and social services programs, which recently were handed over to the Bureau of Indian Affairs.
After months of prodding council members about the need to renew the appeals contract, Yankton tried to fire Belgarde and McDonald in October 2011, McDonald said.
But the two judges fought their dismissal, pointing out that the chairman could not fire them without council approval, she said, and the two stayed on the bench until their contracts expired at the end of February, after they heard the initial court maneuverings in Yankton removal process.
Noting that the appeals contract was for only about $3,000 a year, Belgarde said he didn’t think finances were the reason behind the nonrenewal, but said he would not speculate on the reason.
Frustrated that the tribe has not taken action, McDonald filed a grievance with the U.S. Department of the Interior’s Office of the Inspector General.
“Because of retaliation from the council, we, the judges, were terminated and now the tribal court staff is in jeopardy of losing their positions,” McDonald wrote in her complaint on March 27.
An investigator with the Department of the Interior’s Office of Inspector General replied on April 5 that her complaint did not involve allegations of fraud, waste and mismanagement of Interior programs, so it was referred to the Bureau of Indian Affairs.
But McDonald said she has heard nothing from the BIA, and she herself is one of those without any recourse, since there is no appeals avenue.
A BIA spokeswoman could not be reached to learn the status of McDonald’s complaint.
In civil disputes, tribal members could file a lawsuit in U.S. District Court, but the $350 filing fee would be a hurdle for many, she said. Appealing a federal court decision carries a $450 filing fee.
Readers can reach Forum reporter Patrick Springer at (701) 241-5522