2 former employees file lawsuit against Dupree School District over banishment

Three Cheyenne River Sioux Tribe officials are being challenged in federal court for banning two former Dupree educators after allegations of child abuse.

In a Nov. 3 complaint filed in the United States District Court for The District of South Dakota, longtime teacher Sarah Shaff and superintendent Keith Fodness challenged their banishment by the Cheyenne River Sioux Tribe.

On Aug. 18, 2023, Shaff was formally excluded or banned from the reservation after allegations of child abuse were made by two tribal members. Fodness and the Dupree Elementary School Principal Cindy Lindskow were banished for allegedly failing to report allegations of child abuse.

The Cheyenne River Detectives Division completed its investigation and referred it to the Pierre FBI office. Tribal court records show three individuals were allegedly found to have violated the terms and conditions under which non-tribal citizens are allowed to enter and exit the reservation. It is unclear if any of the educators have been charged.

Represented by attorney Jason Rumpca, Shaff and Fodness launched a lawsuit against Chief Tribal Judge Brenda Claymore, Judge Margaret Egan and Cheyenne River Police Chief Charles Red Crow. All three were sued in their official capacities.

Rumpca declined to comment. The attorney representing the tribe did not respond to a request for comment.

While the Dupree School District is not affiliated with the tribe, it sits within the formal boundaries of the Cheyenne River Reservation. Further complicating the issue is the fact that not all of Dupree is tribal land. The exact area the school sits on is not tribal land.

Like many other reservations, the land was broken up and “checkerboarded” by the 1887 General Allotment Act (Dawes Act). After dividing the reservation into plots, the “excess” land was sold to private non-tribal owners for homesteading, and in 25 years tribal members could sell their plots to anyone.

The Cheyenne River Reservation boundaries seen today were defined in

1889. But by 1974, the tribe owned only half of the original 2.8 million acres, which remained in trust for the tribe or individual tribal members.

Checkerboarding makes it difficult to distinguish what is or isn’t tribal land, like Dupree.

As such, the Nov. 3 complaint argues that the tribe did not have the right to ban the employees from Dupree. The claim alleges that the school does not sit on reservation land, but it does sit within the external boundaries of the reservation.

While the tribe doesn’t have the authority to bring criminal charges against non-Natives, it would turn over its findings to the FBI for further action if evidence of child abuse is found to have occurred. This means that the tribe wouldn’t have the power to try any of the named individuals in criminal court, but non-Natives can be tried in civil court.

In September, Lindskow’s ban was reversed in civil court on the basis that she owned private property on the reservation.

While all three had tried to challenge their banishment, only Lindskow was successful. Fodness had argued that since he also occupied a home on the reservation, his banishment should be overturned. But his occupation at his residence was on the basis that he was a permanent employee. As part of his employment, Fodness was required to live in housing provided by the School District.

Because of this distinction, Cheyenne River Tribal Judge Margaret Egan chose not to reverse the ban on Shaff or Fodness. Fodness was still required to leave his home in Dupree.

Allegations made known

Parents of the children who were allegedly abused, Lance Frazier and Harold Hollow, filed a complaint in April 2023 in tribal court. The same allegations were reported to law enforcement officials from both the Cheyenne River Sioux Tribe and Ziebach County in October 2022.

The alleged abuse began in the 20212022 school year and continued through mid-October of the 2022-2023 school year.

According to the Aug. 18 Emergency Petition to Exclude, Shaff allegedly intimidated, bullied and struck children in her classroom. Shaff would allegedly throw “treats” on the ground and command students to “fetch them” like dogs.

The petition acknowledged that the school district is a state-operated school; however, it argues that due to the location of the school, a majority of students are tribal citizens or the children of enrolled tribal citizens. Nearly 90% of the population of Dupree is Native American. Both Frazier and Hollow, the parents of the allegedly abused children, are tribal citizens.

“If she is allowed to remain on the reservation, she will continue to intimidate, bully, and abuse minor children in her classroom,” the petition said.

The banishment petition claims Fodness was made aware of abuse allegations against both Frazier and Hollow but failed to report those allegations to the state.

In April 2023, Frazier and Hollow filed a civil complaint in tribal court seeking $1.2 million and/or $1 million in punitive damages for “emotional distress, mental anguish and racial profiling, defamation of character.” However, Frazier and Hollow filed a Voluntary Dismissal of their civil complaint in August 2023.

On July 12, the tribal council voted in a special session to banish the three educators from the reservation.

The issue at hand

As a sovereign nation, tribes are allowed to exclude or ban people from reservation lands. According to the Bureau of Indian Affairs, tribes possess the right to regulate activities within their jurisdiction, which includes the banishment of persons, Native or non-Native, from tribal lands.

Banning isn’t uncommon on reservations, both for organizations and individuals. In 2022, the Oglala Sioux Tribe banned a Christian missionary group “Jesus is King” from the Pine Ridge Reservation, and in 2019, the tribe banned South

Dakota Gov. Kristi Noem, though her banishment has since been reversed.

Additionally, while tribally operated criminal courts cannot prosecute nonNative individuals, tribal civil courts can. Fodness and Shaff’s banishment trials were both held in civil court.

Shaff and Fodness’s lawsuit also references Montana v. U.S., a 1981 landmark decision that states that, in most cases, tribes do not have legal jurisdiction over the activities of non-tribal members.

The complaint claims that as non-Native, non-tribal members, the tribal court does not have jurisdiction over them except in emergency circumstances. Rumpca argues that emergency circumstances were not met in this case.

The complaint states that Shaff and Fodness face “irreparable injury” as they haven’t been able to perform job responsibilities and in Fodness’ case have been forced out of their homes.

The complaint seeks to prohibit Red Crow from enforcing the tribal court’s “unlawful” exclusion order and to prohibit Egan and Claymore from maintaining the Tribal Court Civil Action against Shaff and Fodness.

On November 8, Chief Judge Robert Lange filed an order regarding a motion for a hearing. A copy was sent to the tribe’s counsel, Lillian M. Alvemaz.

This story is co-published by the Rapid City Journal and ICT, a news partnership that covers Indigenous communities in the South Dakota area.