June 10, 1982

Mr. David E. Gilbertson 
Cameron Law Offices 
610 First Avenue East 
Sisseton, South Dakota 57262

Official Opinion No. 82-32

School District Polling Places on Indian Allotment Land

Dear Mr. Gilbertson:

As the attorney for the Sisseton School District, you have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

At a recent meeting of the Sisseton School Board, enrolled members of the Sisseton-Wahpeton Sioux Tribe presented a request to the Board that polling places be established at the Tribal District Headquarters for school board elections.  According to the request, the polling places would be located on allotment land and would be staffed by tribal members.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Can South Dakota's election laws be enforced against Indians voting at polling places located on Indian allotment land for election law violations taking place during local school board elections? 

2.  If the South Dakota election laws cannot be enforced, may the school board authorize the establishment of polling places on Indian allotment land?

IN RE QUESTION NO. 1:

SDCL 13-7-11 states that 'the number and place of voting precincts shall be determined by the school board.'  Further, SDCL 13-7-12 provides, in  part, that 'each voting precinct shall be presided over by an election board consisting of a minimum of two clerks and one judge appointed by the school board.' (emphasis added).  These statutes give each school board the power to create voting precincts and the authority to appoint the judge and clerks to preside at the voting precinct.

The problem raised by your request is created by language found in the United States Supreme Court's decision in DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975).  That decision held that by opening the portions of the Lake Traverse Reservation to settlement by the Act of March 3, 1891 (26 Stat. 1035), Congress intended to terminate and disestablish the reservation.  DeCoteau, 420 U.S. at 445-449.  In a footnote, the Supreme Court noted that the State of South Dakota does not have jurisdiction over Indians on allotment or 'trust' land located within the former confines of the Lake Traverse Reservation.  DeCoteau, 420 U.S. at 429, fn 3. 

The problem created by this language from DeCoteau is compounded by the fact that SDCL 12-1-2 provides that the general election laws of the State of South Dakota apply to school board elections.  Violations of some of the state's election laws are classified as criminal offenses.

In this particular factual situation, the question of whether the state has jurisdiction to enforce the election laws at polling places located on Indian  allotment land can be answered after a brief review of the principles discussed by the United States Supreme Court in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959).  That decision states that, absent governing acts by Congress, the question presented in situations similar to the one presented in this request is whether the state action infringes on the right of the reservation Indians to make their own laws and to be ruled by them. 

Williams, 358 U.S. at 223. 

Here, the enrolled members of the Sisseton-Wahpeton Sioux Tribe are exercising rights granted to them as state citizens.  The tribal members, who are to staff the polling places, are exercising state authority as an officer of the school district.  The enforcement of state election laws in regard to school board elections does not infringe on the rights of the tribal members to make their own laws and to be ruled by them.  It would be more incongruous to allow the tribal members to take advantage of the rights and privileges provided by state school board election laws without making them responsible for the duties and responsibilities set forth in the same statutory provisions.  See, Indian Oasis School District School No. 40 v. Zambrano, 526 P.2d 408 (Arizona 1974).  Therefore, it is my opinion that the answer to your first question is YES, South Dakota's election laws can be enforced against Indians voting at and staffing polling places located on Indian allotment land for election law violations taking place during local school  board elections.

IN RE QUESTION NO. 2:

Because the answer to Question No. 1 is YES, it is not necessary to answer your second question.

Respectfully submitted,

Mark V. Meierhenry
Attorney General