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SD Supreme Court takes up case lawyer says could be 'absolute destruction' of tribal sovereign immunity

PIERRE, S.D. -- A former school principal is alleging he was wrongfully terminated from his job in a South Dakota Supreme Court case that one lawyer said could be an "absolute destruction" of tribal nations' sovereign immunity.

The Supreme Court on Tuesday, April 30, heard oral arguments for an appeal on a lower court's August decision to dismiss Timothy Stathis v. Marty Indian School. Marty Indian School, located on the Yankton Reservation in southeast South Dakota, hired Stathis in May 2017, then fired him months before his contract ended in June 2018.

According to court documents, First Circuit Court Judge Bruce Anderson dismissed the case based on tribal sovereign immunity and immunity of tribal officials and employees, a doctrine reiterated in state and federal court decisions stating that sovereign tribal nations have the right to make and uphold their own laws.

But Stathis' lawyer, James Taylor of Mitchell, is arguing that "tribal immunity as a doctrine should be abandoned or narrowed."

In court documents, Taylor writes that tribal immunity is a "completely judiciously created doctrine" with no basis in the U.S. Constitution, which "often provides tribal defendants with a unique vehicle to avoid liability for their actions that is simply unavailable to other similarly situated defendants."

In Stathis' case, Taylor argued that Marty Indian School should be held responsible in state court for prematurely terminating Stathis' contract even though the school is located on a reservation. He noted that the school is a registered South Dakota nonprofit, so they should be held to state legal standards as well.

"This case shows that individuals who contract with tribal entities are left with no forum," he said Tuesday.

Asked why he didn't take this case to federal court, Taylor said he "didn't see that we had jurisdictional basis in federal court."

Defense lawyer for Marty Indian School Rebecca Kidder of Rapid City on Tuesday said that plaintiffs are arguing for "no less than the overrule" of several court decisions upholding tribal sovereign immunity, and for state jurisdiction over "any suits of any non-Indian against any tribal member for conduct of tribal members on trust lands, on the reservation."

"Certainly, your Honors, to enact that in this case would not just be defining the perimeters of immunity or infringement, but an absolute destruction of them," Kidder said.

Kidder added that Stathis' contract was "crystal clear" in reiterating its tribal immunity and that the school was not subject to state laws or court.

Congress decades ago passed the Indian Self Determination and Education Assistance Act of 1975 and the Tribally Controlled School Act of 1988 — two laws that Kidder said were meant to provide tribes with control over their education.

"That includes decisions about personnel — whether to hire them, whether to discipline them, whether to terminate them," Kidder said. "If you cannot control your contractual relationships within the school, you can’t control the education that you’re providing to your children."

"There's no field more important to the development of tribal governance and tribal communities than the education of the children," she added.