September 28, 1979

Ms. Helen V. Wegner, Secretary 
Department of Commerce 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 79-37

Division of Human Rights jurisdiction over United Sioux Tribes of South Dakota Development Corporation

Dear Ms. Wegner:

You have asked for an official opinion based on the following factual situation:

FACTS: 

Three women have filed complaints with the South Dakota Division of Human Rights naming the United Sioux Tribes of South Dakota Development Corporation as respondent and alleging that they were discriminated against on the basis of their sex.

In connection with this situation you have asked:

QUESTIONS: 

1.  Does the South Dakota Division of Human Rights have jurisdiction over the United Sioux Tribes of South Dakota Development Corporation? 

2.  If the South Dakota Division of Human Rights does not have jurisdiction over these discrimination complaints, what agency does?

SDCL 20-13-10 prohibits certain unfair or discriminatory practices by an employer.  That statute provides: 

It shall be an unfair or discriminatory practice for any person, because of race, color, creed, religion, sex, ancestry, or national origin, to fail or refuse to hire, to discharge an employee, or to accord adverse or unequal treatment to any person or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or any term or condition of employment.

SDCL 20-13-1(5) defines “Employer” as follows: 

“Employer” means any person within the state of South Dakota who hires or employs any employee, and any person wherever situated who hires or employs any employee whose services are to be partially or wholly performed in the state of South Dakota.

SDCL 20-13-1(4) defines “Person” as follows: 

“Person” includes one or more individuals, partnerships, associations, corporations, unincorporated organizations, mutual companies, joint stock companies, trusts, agents, legal representatives, trustees, trustees in bankruptcy, receivers, labor organizations, public bodies, public corporations, and the state of South Dakota and all political subdivisions and agencies thereof.

It appears then that the United Sioux Tribes of South Dakota Development Corporation is an employer whose actions are governed by the Human Rights Act, SDCL 20-13.

An argument could be made that the State has no jurisdiction over United Sioux Tribes Development Corporation because it is closely tied to the Indian tribes of South Dakota and therefore that the South Dakota Human Rights Act can not be applied to the United Sioux Tribes Development Corporation.

The Articles of Incorporation on file with the South Dakota Secretary of State indicate that the United Sioux Tribes of South Dakota Development Corporation is a benevolent, non-profit corporation whose primary activity is to promote the economic development of the Indian people of South Dakota.  The United Sioux Tribes Board of Directors is composed of eleven tribal chairmen, eight of whom are from South Dakota Indian tribes, two from North Dakota and one from Nebraska.  The registered office of the corporation is in Pierre, South Dakota.

Congress possesses exclusive regulatory power over Indian tribes, and consent of Congress is required for state courts to exercise jurisdiction over Indian territory.  Hamilton v. MacDonald, 503 F.2d 1138 (1974).

But tribal activities occurring outside the reservation present different considerations.  “State authority over Indians is yet more extensive over activities . . . not on any reservation.” Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1963).  Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the state.  Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973).

Thus, where several tribes have formed a “benevolent non-profit corporation” which is located and does business outside the boundaries of a reservation, the corporation formed is subject to the South Dakota Human Rights Act.

Therefore it is my opinion that the South Dakota Division of Human Rights does have jurisdiction over the United Sioux Tribes of South Dakota Development Corporation.

In light of my answer to your first question, it is unnecessary to answer your second question.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:LSW:esp