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.

• Author: Zenor, Jason Scott

1. 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)

2. 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. (22) Gilbert refused to accept the suspension, believing that the letter was written within her rights as an employee. (23) Thereafter, the FSST terminated Gilbert from employment. (24)

   In her application for unemployment benefits from the Department in September of 2004, Gilbert argued that her comments to the tribal council were made within her capacity as the FSST's educational coordinator and that her termination was unjustified, thus entitling her to benefits pursuant to South Dakota's unemployment compensation law, S.D.C.L. section 61-6-14. (25) The Unemployment Division agreed, finding that Gilbert's termination for violating the FSST's political activity policy did not disqualify her from unemployment benefits. (26)

   The FSST appealed, and in the subsequent hearing, the unemployment referee reversed, finding that Gilbert was properly discharged for work-related misconduct and that she was not eligible for unemployment benefits. (27) On appeal to the circuit court, Gilbert amended her argument claiming that she could not be denied unemployment benefits because her letter was protected as free speech under both the United States and South Dakota Constitutions. (28) The circuit court disagreed and affirmed the referee's determination that her letter, having been written on tribal stationary and intending to be divisive toward tribal government, clearly violated the FSST's political activity policy. (29) Gilbert appealed that decision to the South Dakota Supreme Court. (30)

   The South Dakota Supreme Court upheld the circuit court's decision. (31) The sole issue before the court was whether Gilbert's "federal or state [c]onstitutional right to freedom of speech protects her from being denied unemployment insurance benefits." (32) Justice Meierhenry, writing for a unanimous court, applied the two-prong test, set forth in Pickering v. Board of Education (33) to decide whether a constitutional protection is applied to public employee speech. (34)

   Pursuant to the test developed by the United States Supreme Court in Pickering, the South Dakota Supreme Court evaluated whether Gilbert spoke as a citizen on a matter of public concern, concluding that Gilbert's own statement showed that she had not written the letter as a citizen and that its contents were not a matter of public concern. (35) Therefore, she was not entitled to any protection under the First Amendment of the U.S. Constitution. (36)

   Next, the South Dakota Supreme Court evaluated whether the South Dakota Constitution provided Gilbert's speech additional protection. (37) The court looked to the 1885 South Dakota Constitutional Convention for guidance as to the meaning of South Dakota's Bill of Rights. (38) With little historical record, the court decided that the framers of the South Dakota Constitution did not intend to provide any more freedom of speech than that provided by the U.S. Constitution. (39) Finding that the South Dakota Constitution provided Gilbert no additional protection, the court ultimately held that Gilbert's letter was simply "the airing of internal grievances." (40)

   Although the FSST prevailed on appeal and was relieved of any obligations to pay Gilbert unemployment benefits, the case raises fundamental questions of jurisdiction and tribal sovereignty. (41) The decision in Gilbert fails to acknowledge federal Indian law. (42) First, the court's decision granted the state regulatory authority over an internal tribal employment dispute without an express election by the FSST. (43) Second, the court did not take into account the federally guaranteed right of tribal sovereign immunity from suit in state court without an express waiver of sovereign immunity by the FSST. (44) Third, the state court has undermined the tribal courts by assuming subject matter jurisdiction over an internal tribal matter, an issue that goes to the core of all courts. (45) Finally, the court mistakenly applied the United States and South Dakota Constitutions to a tribal matter despite precedent that these laws do not apply to tribes or their members. (46) Moreover, the FSST inexplicably acquiesced to jurisdiction by not challenging the assumption of subject matter jurisdiction by the state courts and by not asserting the well-known precedent that the Federal and South Dakota Constitutions do not apply to tribes. (47)

3. BACKGROUND

   1. APPLICATION OF THE FEDERAL CONSTITUTION TO TRIBES

      In Worcester v. Georgia, (48) the United States Supreme Court held that Indian tribes are "distinct, independent political communities, retaining their original natural rights[.]" (49) As sovereign nations, pre-existing the Constitution, tribes are regarded as unconstrained by the Constitution and the Bill of Rights. (50)

      In 1968, Congress passed the Indian Civil Rights Act (51) (ICRA) and thereby imposed restraints on tribal governments similar to the restraints imposed on the federal and state governments in the Bill of Rights and Fourteenth Amendment of the U.S. Constitution. (52) The objective of ICRA was to strengthen "the position of individual tribal members vis-a-vis the tribe," and to "promote the well-established federal 'policy of furthering Indian self-government." (53) Though the Bill of Rights in the United States Constitution was the model for ICRA, Congress selectively included protections that "fit the unique political, cultural, and economic needs of tribal governments." (54) For example, the statute does not prohibit the establishment of religion, nor does it require jury trials in civil cases or appointment of counsel for indigents in criminal cases. (55) The provisions of the Second, Third, and Seventh Amendments of the U.S. Constitution were omitted entirely. (56) The Equal Protection Clause in ICRA guarantees "the equal protection of [a tribe's] laws," rather than of the federal laws. (57) Of all the...