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Law Says Oglala Sioux Tribe Can Ban Noem from Pine Ridge

I wondered if the Oglala Sioux Tribe has the legal authority to ban Governor Kristi Noem from the Pine Ridge Reservation. Jeremy Fugleberg does some homework and says, yup, looks like they do:

The tribe is on firm legal footing due to court decisions that date back to the late 1800s, said Grant Christensen, associate professor at the University of North Dakota law school, where his teaching and research focus is American Indian law.

“There’s no question they have the right to prevent her from entering, and if she chooses to enter, the ability to use their law enforcement to escort her from the border and watch her step back into the state of South Dakota and off Pine Ridge,” he said. “They absolutely have that right.”

…The tribe’s decision is backed by decades of case law, including the landmark 1982 U.S. Supreme Court case, Merrion v. Jicarilla Apache Tribe, about oil and gas taxes.

“One of the fundamental, inherent attributes of sovereignty is the right to exclude,” he said. “And there’s a whole line of cases that have upheld how to banish persons from reservations” [Jeremy Fugleberg, “Can Oglala Sioux Tribe Ban Gov. Kristi Noem from Reservation? Here’s What the Law Says,” that Sioux Falls paper, 2019.05.07].

Noem’s weekend propaganda message talked about how “Travel Matters.” “There’s always something new to discover in South Dakota,” her little Goebbelses penned for her, “and you can always count on a handshake and a smile to be waiting when you arrive.” But according to legal precedent, if Noem tries to discover anything on Pine Ridge, she’ll find awaiting her a frown and maybe handcuffs.

I’d suggest that Governor Noem should round up a posse of her Trumpist friends and go protest at the White River on Highway 73 just south of Kadoka… but that could be interpreted as riot-boosting.


  1. Porter Lansing 2019-05-07 10:28

    “You can always count on a handshake and a smile to be waiting when you arrive?”
    C’mon, boss lady.
    🎤 (Beware) beware of the handshake
    That hides the snake (can you dig it, can you dig it?)
    I’m a-telling’ you beware of the pat on the back
    It just might hold you back. 🎶
    Smiling Faces Sometimes – THE TEMPTATIONS

  2. marvin kammerer 2019-05-07 10:42

    good one cory!

  3. Donald Pay 2019-05-07 11:10

    Does that include air space? Can she fly through Pine Ridge air space?

    Also, wondering about the rights to wind above treaty lands. Has that been litigated?

  4. Cory Allen Heidelberger Post author | 2019-05-07 12:43

    Donald, I haven’t read the case law to see if it addresses air space… but I suspect the tribe would have trouble enforcing a no-fly zone.

  5. 96Tears 2019-05-07 12:51

    As it stands, this plays straight into Noem’s base, and wider. If she’s banned, she’ll pay no attention to issues on South Dakota’s largest rez. If they have problems, she won’t listen. She’s off the hook. Indian haters will cheer her on.

    This needs to be an intertribal position with all tribal councils in South Dakota signing off to have teeth. Next step, tribes sponsor billboards on both interstates asking why South Dakota’s Governor chose to go to war with Native South Dakotans to help foreign oil exploiters.

  6. jerry 2019-05-07 12:58

    Perfect time to start growing hemp at Pine Ridge and to start processing CBD for sale on and off the reservation.

  7. Roger Cornelius 2019-05-07 16:18

    Tribes absolutely have the right to banish any undesirables from the reservation. I’ve known it to have happen several times.
    During the 1973 Wounded Knee occupation 1960’s civil rights activist Angela Davis tried to gain access to the encampment and was removed from the reservation by the tribal council.
    On a more personal note, my great great grandfather Todd Randall was banned from the reservation in the late1880’s. Todd was a squaw man (married to a Lakota), stagecoach manager, bootlegger, and rancher. He earned the ire of the Indian Agent after it was reported that Todd told Red Cloud to accept only gold and not silver in all trade with the government and was thusly banned along with other squaw men.

  8. grudznick 2019-05-07 17:18

    The tribal air force might have a tough time ascertaining if the Governor were on a commercial flight to Denver than went right over the heart of the Piney Ridge, or if she were on board a helicopter that slowly circled some newly planted fields of demon weed.

  9. Roger Cornelius 2019-05-07 17:23

    During the Incident at Oglala, when the FBI agents were killed, several helicopters were shot down.

  10. grudznick 2019-05-07 17:35

    Indeed they were, but they were not orbiting at high altitude using the advanced listening devices and building penetrating advanced secret thermal and geo-nuclear powered imaging devices that Gov. Noem no doubt possesse today. They probably even have weather control units on those new choppers.

  11. mike from iowa 2019-05-07 18:02

    Is/was Mount Rushmore carved on government or reservation or disputed land?

  12. Roger Cornelius 2019-05-07 18:56

    Mount Rushmore was carved on Indian land.

  13. mike from iowa 2019-05-07 20:50

    Thank you very much, Roger. I did have a clew about that.

  14. Debbo 2019-05-07 21:43

    Could it be that Noem is as incompetent as Bumbling Baby in the WH? Oh, the [in]humanity!!

  15. Debbo 2019-05-07 21:55

    Minnesota needs to enact a ban ASAP, or else Prissy Pussy Pency will be here Thursday.

  16. Ryan 2019-05-10 11:38

    Every country was carved on the land of somebody who lived there before and didn’t want change. Unfortunate, but true.

    I agree with 96tears, though, that Noem is really a beneficiary of this ban. She wasn’t actually interested in tribal issues, so now she is free to ignore them and blame them for that. I like that the tribe wants to send a message, but sometimes sending a message costs the messenger more than the recipient.

  17. bearcreekbat 2019-05-10 13:08

    Ryan, I appreciate your knowledge of history on the taking of land. Throughout history land has frequently been taken by a government from foreigners as the spoils of war or by conquest, thereby creating new countries “carved on the land of somebody who lived there before and didn’t want change.”

    I wonder, though, what does history tell us about how often an existing government or society enacted laws that purportedly protected the rights of those owning lands within their jurisdiction, but then openly violated its own laws by forcibly taking that land from its lawful owners, as happened in the case of the U.S. and state of S.D. in taking land actually and legally owned by the Sioux Tribes in South Dakota?

    See e.g., United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). The Court affirmed findings by the Court of Claims, including findings that:

    . . . .In the winter of 1875-1876, many of the Sioux were hunting in the unceded territory north of the North Platte River, reserved to them for that purpose in the Fort Laramie Treaty. On December 6, 1875, for reasons that are not entirely clear, the Commissioner of Indian Affairs sent instructions to the Indian agents on the reservation to notify those hunters that, if they did not return to the reservation agencies by January 31, 1876, they would be treated as “hostiles.” Given the severity of the winter, compliance with these instructions was impossible. On February 1, the Secretary of the Interior nonetheless relinquished jurisdiction over all hostile Sioux, including those Indians exercising their treaty-protected hunting rights, to the War Department. The Army’s campaign against the “hostiles” led to Sitting Bull’s notable victory over Custer’s forces at the battle of the Little Big Horn on June 25. That victory, of course, was short-lived, and those Indians who surrendered to the Army were returned to the reservation, and deprived of their weapons and horses, leaving them completely dependent for survival on rations provided them by the Government . . .

    The court [of claims] also remarked upon President Grant’s duplicity in breaching the Government’s treaty obligation to keep trespassers out of the Black Hills, and the pattern of duress practiced by the Government on the starving Sioux to get them to agree to the sale of the Black Hills. The court concluded:

    “A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe.”

    What other nations, if any, violated their own laws by forcibly taking land from residents lawfully occupying their own land, (absent war, revolution, or some other circumstances over-riding the duty to obey law)?

    Thinking about this difficult question puts into perspective the shallowness of the so-called historical justification relied upon by apologists for the US government’s unlawful treatment of the Sioux Indian Tribes.

  18. Ryan 2019-05-10 15:16

    bcb, you found a lot more content in my brief message than I included. I stand by what I said and its meaning – all land was taken. I doubt folks who had land stolen from them during a war feel better about their loss because “hey, at least it was a war and not a broken contract.”

    You also seem to think that I believe the US government was justified in its treatment of others. Not at all. I think our government killed a whole bunch of folks in vietnam under false pretenses. Same for all those folks in japan we killed. Same for lots and lots and lots of people we have killed and lots and lots of stuff we have stolen. I’m not saying the US is justified – I’m saying our government has committed many terrible crimes and shouldn’t be trusted.

  19. Porter Lansing 2019-05-10 17:10

    Who was the land of Antarctica taken from?

  20. bearcreekbat 2019-05-10 17:57

    Ryan, thanks for the clarification. Please understand that I do not presume to know what you might or might not believe. I have learned that such presumptions are usually a fool’s errand. I simply read your comments and respond to what you have written in a manner that seems appropriate and, hopefully, with deference to your ability to clarify, add or subtract to the topic as you are inclined.

    I read your comment as indicating that countries and groups take each other’s land by force all the time, so the Sioux really have no greater complaint than any other group that has had their homes forcibly taken from them. My grandfather, bless his soul, was a bright caring man, yet he bought into the slightly historically inaccurate argument that since the Sioux forcibly took the Black Hills from the Arikara, it was entirely appropriate for the U.S. to take the land from the Sioux. This type of thought dies hard. See e.g.,

    The proponents of this argument, like my grandfather, often imply a lack of awareness or understanding of the legal implication of our governmen’s actions. The U.S. did not break a contact when they took the land from the Sioux. They unilaterally broke a treaty, and according the the U.S. Constitution:

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (italics and bolding added)

    U.S. CONST., Art. VI

    Thus, it wasn’t merely a broken contract, rather it was an intentional violation of the “supreme law of the land.” I can’t say for sure, but I fantasize that if my grandfather were alive today and understood that our own government violasted the “supreme law of the land” he would have a much different opinion about the merits of the Sioux’s complaint.

    Lastly, the idea that “folks who had land stolen from them during a war feel better about their loss” misses a key point I was trying to make. I was not trying to address how the Sioux felt, I was trying to address how non-Indians thought about defending what the government did. The U.S. was no longer at war with the Sioux precisely because of the treaty. The U.S. had not accused the Sioux of violating the treaty. Perhaps had the U.S. never signed the treaty and managed to conquer the Sioux in war, the taking of that land would have justifiable from our perspective. Under the actual events, however, it simply was not.

  21. Cory Allen Heidelberger Post author | 2019-05-11 12:57

    BCB is correct in elaborating on the issue of the broken promises of the U.S. government to prevent readers from drawing the wrong conclusion from Ryan’s position.

  22. Ryan 2019-05-13 13:00

    bcb said “I read your comment as indicating that countries and groups take each other’s land by force all the time, so the Sioux really have no greater complaint than any other group that has had their homes forcibly taken from them.” I’m sorry you inferred this much incorrectly, but my comment could just as easily have meant that all countries “taken” from any “rightful” occupants are equal travesties. I was commenting directly on cory’s comment about america being carved on stolen land. You decided that I was creating a separation or hierarchy between “takings.” That shows more about your opinions than about mine.

    And if we want to get as picky with everyone’s words as you are with mine, I’m sure you and cory are both aware that “America” is a lot bigger than the US. North and South America contain over 16 million square miles. The US makes up less than a quarter of that. Was all of north and south america carved on stolen land? Or are we ok when other people generalize, so long as it isn’t me?

  23. bearcreekbat 2019-05-13 13:51

    Ryan, again, thanks for clarifying your intent. You are also correct in indicating my comments say more about my own opinions than they can say about your opinions.

    I agree with you about the meaning of “America” and that is why I try to use the term U.S. or some variation rather than the term “America” when referring to the United States rather than either continent, which you might have noticed in my comments. Also my reference to the U.S. Constitution may have helped show that when referring to the “U.S.” I was not refering to any other American nations, north, central or south.

    My best guess is that when Cory used the term “America” he was also referring only to the U.S. just as many people who use that term do, but this is only my speculation as Cory is in the best position to clarify his intent for you.

  24. mike from iowa 2019-05-13 14:16

    I’m guessing most of us would refer to Central and South America as Central and South America so as to cause no confusion between them and America the beautiful (at least before wingnuts happened along). It is not that hard a conundrum.

  25. Cory Allen Heidelberger Post author | 2019-05-14 12:25

    Ryan, your geographic quibble doesn’t change the merits of BCB’s elaboration on your statement.

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