Earlier this month Judge Karen Schreier dismissed Brooks v. Gant, an Indian voting-rights lawsuit brought by residents of the Pine Ridge reservation. The dismissal came only because the filing of the lawsuit forced Secretary of State Jason Gant to open a satellite voting station in Shannon County, thus fulfilling the demands of the plaintiffs.
The state claimed victory, and Rapid City lawyer Sara Frankenstein (who also happens to be treasurer of the state Republican Party) threatened the state might use that "victory" as grounds for demanding that the "losers" pay the counties' and state's court costs. Representatives of the plaintiffs said the threat to force poverty-stricken Indians to pay rich white folks' lawyers was so morally politically repugnant that it was probably just bluster:
“That’s breathtaking,” said Bret Healy, Four Directions consultant. “They have the insurance public officials typically hold to cover lawsuits. We all met the plaintiffs via their depositions—single parents, one with an epileptic child, others caring for infirm elders, from one of the poorest counties in the nation. The state of South Dakota and the counties are really going to do this? God have pity on their souls.”But Frankenstein wasn't bluffing. She has filed a motion to take over $6,000 in court costs from 25 Oglala Sioux Tribe members. Frankenstein says golly gee, she's not doing this "to be vindictive or send a message"; it's just what winners do in federal cases.
“Won’t happen,” said [Four Directions co-director OJ] Semans. “It’s just a way to scare off Natives who might want to ask for equal rights in the future.”
“Granting costs would discourage plaintiffs from bringing suits to enforce the Voting Rights Act and would be contrary to the fundamental purpose of the Act,” agreed Laughlin McDonald, director emeritus of the ACLU Voting Rights Project. He also doubted it would happen.
McDonald, who has litigated Native enfranchisement cases since 1983, explained that a prevailing party in a federal case is ordinarily entitled to recover costs, but not when it comes to voting rights. “Federal courts have denied or severely limited recovery in those cases,” said McDonald.
What about recovering attorney’s fees? “I think such a motion would be filed in bad faith and even subject to sanctions,” said McDonald [Stephanie Woodard, "'They Caved': Tribe Claims Win in SD Voting-Rights Suit," Indian Country Today, 2013.08.13].
Four Directions calls that B.S. and has sent a letter of protest to various state officials, including Governor Dennis Daugaard. Here's a chance for the Governor to expand on his newly found reconciliatory spirit, admit that the counties and state "won" Brooks v. Gant only in technical terms, and tell Frankenstein to back off.
Instead, he kicks the Four Directions protest letter to Attorney General Marty Jackley, who flips Indians another finger:
In an emailed statement, Jackley said: “Under federal law, a prevailing party is permitted to request the court for certain allowable costs. The county defendants have made a request, and if there is an objection the federal court will determine whether and to what extent costs may be assessed” [Jonathan Ellis, "Voting Rights Case Settled, But Legal Costs Questions Isn't," that Sioux Falls paper, 2013.08.24].Translation: Don't bother me. You uppity Injuns will get what's coming to you from the court.
Governor Daugaard seems happy to play the benevolent friend of the tribes when they humble themselves by asking for help and give him a chance to exercise the power of the state. But when they challenge the power of the state, when they have the gall to ask for protection of voting rights that they will likely use to vote for Republicans' opponents, Governor Daugaard lets his friends bully our tribal neighbors.
Governor Daugaard, you have lawyer Frankenstein's number. Give her a call, and tell her to let Brooks v. Gant go.