In late July, 2016, the State of South Dakota presented evidence before a grand jury seeking indictments against the principles of a consulting company hired by the Flandreau Santee Sioux Tribe in 2015 to assist with the Tribe’s “Marijuana Resort” project. 

That project (and its results to date) has received substantial press coverage and has been a hotly debated issue throughout Indian Country. Ultimately, based on pressure from governmental forces the Tribe burned its marijuana crop and suspended the project. To be clear, I am not debating the viability or likelihood of success of that project. That is a separate discussion.   

A few news outlets contacted me for my assessment of the situation: non-Indian individuals being charged by a State government for State crimes that allegedly occurred on Tribal lands. 

 The jurisdictional analysis was so complicated that I almost created a diagram to make sure I was analyzing the situation properly. Any lawyer who has practiced Indian law can tell you that these difficult jurisdictional issues are not uncommon. Often it is quite unclear to the layman which laws apply and to whom. Keep in mind that the Tribe’s Executive Committee legalized marijuana including a comprehensive marijuana control ordinance.  

Unfortunately (for fortunately depending on your views), the State of South Dakota is within its jurisdictional rights to prosecute in this situation. Attorney General Marty Jackley appeared to be well area of such in his recent press conference addressing the issue. The State also felt the need to depict the Tribe as a poor “victim” in the execution of its sovereign economic rights. Yet, I never heard the Tribe asking for that help. 

The bigger story here is how the State of South Dakota, either intentionally or not, has used criminal sanctions against third parties to dictate the course of the Tribe’s economic development intentions; essentially resulting in a flank attack on Tribal sovereignty. 

Sure, the State had an arguable interest in “protecting” the State’s citizens from the “evils” of the Tribe’s planned marijuana project. Perhaps the individuals charged were engaging in activities outside of the law. But make no mistake, not a single individual was yet harmed by their activities. 

But the effect on Tribal sovereignty is clear:  on-reservation economic development by a Tribe will be policed by the State vis-a-vis the threat of state-based criminal sanctions against actual or potential business partners of the Tribe.  

This makes economic development by a Tribe even more difficult; especially in this circumstance where a Tribe has very little economy already.  We have seen these flank attacks on sovereignty before in many different forms. Without a doubt, we must protect Tribal sovereignty in all respects on all fronts.