STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 4, 1970

Lowell Schmidt
Commissioner of Revenue
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-36

Joint exercise of governmental powers with Indian Tribe SDCL 1-24

Dear Mr. Schmidt:

You have requested my opinion on the following factual situation:

Representatives of this office have met with representatives of the Tribal Council in discussion of a cooperative venture whereby, by a lawfully adopted Tribal Ordinance, the Oglala Sioux Tribe would impose a retail sales, service and use tax upon all persons on the reservation who are subject to its jurisdiction. The State of South Dakota would continue to impose its tax on all persons on the reservation over whom it has jurisdiction and through the Sales Tax Division of the Department of Revenue would proceed to collect both taxes pursuant to a tax collection agreement.

The question here then is, what powers do I, as Commissioner of Revenue, have to enter into an agreement with the Oglala Sioux Tribe for the collection of both the state sales tax and the sales tax imposed by that governing body as an instrumentality of the United States?

While the exact nature of the status of a tribe and its governing body, the Tribal Council, seems to be open to some dispute and has been variously considered by the Federal courts and Congress at different times in different ways; recognition of tribal governments and tribal powers may be found not only in acts of Congress and in treaties, but also in state statutes, which, when adopted " ... at the request of the Indians themselves, and without challenge by the Federal Government, have been accorded special weight." U.S. ex rel Kennedy v. Tyler, 269 U.S. 13, 16 (1925). Tribes have certain attributes of local self government when exercising tribal functions. All such attributes are subject to the supreme legislative authority and general control of the United States, it has been held. Cherokee Nation v. Kansas Railway Company, 135 U.S. 641 (1890). In its relations with state and municipal governments, an Indian tribe is treated for certain purposes as an instrumentality of the Federal Government. U.S. v. 4,450.72 Acres of Land, 27 F. Supp. 167 (1939).

Assuming, therefore, that the Oglala Sioux Tribe has certain aspects as a Federal instrumentality, I will proceed to answer the specific question you have raised.

SDCL 1-24 provides for the joint exercise of governmental powers between any agency of this state and any agency of the United States or any other state. As stated in SDCL 1-24-2:

Any power or powers . . . exercised or capable of exercise in a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having such power or powers ... and jointly with any public agency of any other state or of the United States to the extent that the laws of such state or of the United States permits joint exercise or enjoyment.

The term "public agency" means, among other things, any agency of the South Dakota state government or of the United States.

SDCL 1-24-3 reads:

Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of 1-24-2 to 1-24-9 inclusive. Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement may enter into course.

SDCL 1-24-4, contains the required contents of any such agreement.

It is my opinion that you have power to enter into such an agreement with the Oglala Sioux Tribe under SDCL 1-24 and that the same may be made effective when you have complied with the requirements for the adoption of rules as provided in SDCL 1-26.

Respectfully submitted,

Gordon Mydland
Attorney General