Does the South Dakota State-Tribal Relations Committee (created by the Legislature as a forum for issues of mutual concern between the state and tribes) have authority to issue legislative subpoenas to compel attendance of witnesses or production of documents?

Plain-English summary

The State-Tribal Relations Committee is a SD legislative committee created by SDCL 2-6-20 et seq. as a forum for discussion of issues of mutual concern to the state and tribal nations. It is composed of legislators (typically the chair and other members appointed under the statutes) and meets between regular legislative sessions.

At an October 23, 2017 meeting, a motion was made to issue subpoenas to compel witnesses to appear before the Committee. The motion was made in the context of the ongoing fallout from the GEAR UP / Mid-Central Educational Cooperative embezzlement scandal that had been roiling SD government since 2015. Chairman Heinert (Sen. Troy Heinert, D-Mission) ruled the motion out of order on the ground that the Committee did not have subpoena authority. To get a definitive answer, he asked the AG.

The AG agreed with the Chairman. The opinion walks through the SD legislative-investigation framework in three steps.

First, the Legislature as a whole has inherent investigative power, recognized in many state courts including Chesek v. Jones, Matter of Shain, and Morss v. Forbes. SDCL 2-4-14, 2-4-15, 2-6-5, and 2-6-6 provide enforcement mechanisms (Class 2 misdemeanor for non-compliance with a legislative summons). But the statutes assume an underlying committee with subpoena authority, they do not grant it across the board.

Second, committee subpoena power comes from one of two sources: an express grant in the committee's enabling statute (or resolution), or fair implication from the committee's directive. Morss v. Forbes explains that committee authority is limited by the act creating it. SDCL 2-6-5 itself ("any committee thereof authorized to summon or subpoena witnesses") assumes the underlying authority and only sets the penalty.

Third, the Legislature has expressly granted subpoena authority to some committees but not others. The Government Operations and Audit Committee gets express subpoena power under SDCL 2-6-4 ("summon witnesses"). The Executive Board of the Legislative Research Council and its appointed interim committees get subpoena power under SDCL 2-9-6 and the Interim Committee Rules. But the State-Tribal Relations Committee, although codified in SDCL 2-6-20 et seq., is not on that list. SDCL 2-6-23 describes its purpose as a "forum for discussion of issues of mutual concern to the state and the tribes," not as an investigative body.

The Committee is also not an interim committee in the special sense. "Interim committee" can mean either (a) a committee that meets between sessions or (b) a committee created by the Executive Board under SDCL 2-9-4(6) and governed by the Interim Committee Rules. The State-Tribal Relations Committee is interim in the first sense (it meets between sessions) but not in the second sense (the Executive Board did not create it). The Interim Committee Rules and their subpoena authority do not apply to it.

The bottom line: the State-Tribal Relations Committee may not subpoena witnesses absent further legislative action. The Legislature can grant the authority by amending SDCL 2-6-20 et seq., and the AG explicitly notes that the Legislature can do that "if it is so inclined." Until then, the Committee operates as a discussion forum without compulsory process.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Legislature could have amended the State-Tribal Relations Committee statutes since 2017 to add subpoena authority. Anyone working with the Committee today should check the current SDCL 2-6-20 et seq. and any subsequent AG opinions before assuming the Committee still lacks subpoena power.

What the opinion meant at the time

For Chairman Heinert and the Committee in 2017, the opinion validated the Chairman's procedural ruling. The motion to subpoena GEAR UP scandal witnesses was correctly ruled out of order; the Committee did not have the authority. Witness testimony to the Committee remained voluntary.

For the legislators who had pushed for subpoenas (mostly Republicans on the Committee, per news coverage at the time), the opinion identified the available remedy: ask the Legislature in the 2018 session to amend SDCL 2-6-20 et seq. to grant subpoena power. The AG explicitly held that door open.

For other SD legislative committees, the opinion clarified the underlying framework. Subpoena power exists for the Government Operations and Audit Committee (SDCL 2-6-4) and for Executive Board interim committees (SDCL 2-9-6 + Interim Committee Rules). Other statutory committees need an express grant or a fair implication argument from their purpose. The State-Tribal Relations Committee's "forum for discussion" purpose did not generate a fair implication for compulsory process.

For tribal government officials engaging with the Committee, the opinion meant their appearance before the Committee was voluntary. The Committee could invite, request, and expect cooperation, but could not legally compel. The opinion did not affect any other source of authority (federal investigations, state Audit Committee proceedings, court process) that could reach the same witnesses.

For the broader SD public watching the GEAR UP fallout, the opinion explained why a key Committee with apparent jurisdiction over tribal-state matters could not formally compel testimony from people involved in the scandal. The investigative function rested with the Government Operations and Audit Committee, which did have subpoena power, and with state and federal prosecutors.

Common questions

Q: What is the State-Tribal Relations Committee?
A: A SD legislative committee created by SDCL 2-6-20 et seq. as a forum for discussion of issues of mutual concern between the state and tribal nations. It meets between legislative sessions and is composed of legislators.

Q: Why did the subpoena question come up?
A: At an October 23, 2017 meeting, in the context of the ongoing GEAR UP / Mid-Central Cooperative embezzlement scandal, a motion was made to subpoena witnesses. The Chairman ruled it out of order. The AG opinion confirmed the ruling.

Q: Does the Legislature as a whole have subpoena power?
A: Yes. The inherent investigative power of a legislative body is well established. SDCL 2-4-14, 2-4-15, 2-6-5, and 2-6-6 provide enforcement mechanisms. But the question for any specific committee is whether it has been granted (expressly or by fair implication) a share of that power.

Q: What is the difference between a statutory committee and an interim committee?
A: A statutory committee is one codified in state statute and continues until the Legislature repeals the statute. An interim committee in the technical sense is one created by the Executive Board of the Legislative Research Council under SDCL 2-9-4(6) and governed by the Interim Committee Rules. "Interim" can also informally mean a committee that meets between sessions, which the State-Tribal Relations Committee does, but that informal sense does not confer Executive-Board-style authority.

Q: Which SD committees have subpoena power?
A: The Government Operations and Audit Committee has express subpoena power under SDCL 2-6-4. The Executive Board of the LRC and its appointed committees have subpoena power under SDCL 2-9-6 and the Interim Committee Rules. Other statutory committees, including the State-Tribal Relations Committee, do not have subpoena power unless their enabling statute expressly grants it.

Q: Can the Legislature grant the Committee subpoena power?
A: Yes. The AG explicitly notes that the Legislature can amend SDCL 2-6-20 et seq. to grant subpoena power if it chooses. The Committee just cannot create the authority for itself.

Q: Can the Committee compel anyone to attend in any other way?
A: No. Without subpoena power and without the SDCL 2-6-5 / 2-6-6 enforcement penalties attaching, the Committee can only invite and request. Appearance is voluntary.

Q: What's the relationship between this Committee and the Executive Board?
A: They are separate. The Executive Board is the LRC's governing body and has its own grant of subpoena power. The State-Tribal Relations Committee is a free-standing statutory committee not created by or under the Executive Board, so it does not get the Executive Board's authorities.

Q: Does this affect any other tribal-state legislative interaction?
A: No. The opinion is narrow to the Committee's subpoena authority. Other channels (federal investigations, state audit, court process, federal Indian-affairs committees) are unaffected.

Background and statutory framework

SD's Legislature operates with a mix of standing statutory committees, interim committees appointed by the Executive Board of the Legislative Research Council, and special committees or task forces created for specific purposes. Each committee's authority is set by the legislative act or resolution that creates it.

The Legislature as a whole has inherent investigative power, well-recognized in state-court doctrine across the United States. Chesek v. Jones (Md. 2008), Matter of Shain (N.J. 1983), and Morss v. Forbes (N.J. 1957) state the principle: a legislative body is "vested with all investigative power necessary to exercise its function properly." That includes summoning witnesses and compelling production of documents.

Committees are delegated portions of that legislative investigative power. But Morss v. Forbes explains that committees act under specific delegations and may not act on "whims and caprices" of their members. The extent of a committee's investigative power is "limited by the act or resolution to which it owes its existence." A committee's subpoena authority must either be expressly stated in the creating act or fairly implied as necessary to carry out the committee's directive.

SD has codified that framework. SDCL 2-6-5 makes it a Class 2 misdemeanor to fail to comply with a summons "before either house of the Legislature or any committee thereof authorized to summon or subpoena witnesses." The phrase "authorized to summon or subpoena witnesses" is key, the statute assumes underlying authorization and sets the penalty for non-compliance. It does not, by itself, grant authority to any particular committee.

Where the Legislature has wanted to grant committee subpoena authority, it has done so expressly. SDCL 2-6-4 expressly gives the Government Operations and Audit Committee the authority to "summon witnesses." SDCL 2-9-6 expressly gives the Executive Board, and the committees it appoints, subpoena power. The Interim Committee Rules (SDCL 2-9-5) implement that authority for Executive Board committees.

The State-Tribal Relations Committee is codified in SDCL 2-6-20 et seq. Its enabling statutes do not include subpoena authority. SDCL 2-6-23 describes the Committee as a forum for "discussion of issues of mutual concern to the state and the tribes." A discussion forum is not an investigative body, and the AG concluded that subpoena power cannot be fairly implied from the Committee's directive.

The opinion is careful to distinguish two meanings of "interim committee." Used loosely, "interim" just means meets between sessions; in that sense the State-Tribal Relations Committee is an interim committee. Used in the SDCL 2-9-4(6) / Interim Committee Rules sense, "interim committee" means a committee appointed by the Executive Board and governed by the Rules; in that sense the State-Tribal Relations Committee is not an interim committee, because the Executive Board did not create it. The Interim Committee Rules' subpoena provisions apply only to Executive-Board-appointed committees.

The closing recommendation (that the Legislature could grant the Committee subpoena authority by amending the statute) is the AG's standard move when the answer is no by reason of unconstrained statutory text but a yes is achievable through ordinary legislative process. The opinion does not opine on whether granting the Committee subpoena authority would be a good idea; that is a policy question for the Legislature.

Citations and references

Statutes:
- SDCL 2-4-14, 2-4-15 (legislative summons)
- SDCL 2-6-4 (Govt Operations & Audit Committee subpoena)
- SDCL 2-6-5, 2-6-6 (criminal penalties for non-compliance)
- SDCL 2-6-8 et seq. (Retirement Laws Committee)
- SDCL 2-6-20 et seq. (State-Tribal Relations Committee)
- SDCL 2-6-23 (Committee discussion-forum purpose)
- SDCL 2-9-2 et seq. (LRC Executive Board)
- SDCL 2-9-4(6) (Executive Board appointment of committees)
- SDCL 2-9-5 (Interim Committee Rules)
- SDCL 2-9-6 (Executive Board subpoena power)

Cases:
- Chesek v. Jones, 959 A.2d 795 (Md. 2008)
- Matter of Shain, 457 A.2d 828 (N.J. 1983)
- Morss v. Forbes, 132 A.2d 1 (N.J. 1957)
- State v. Young, 2001 S.D. 76, 630 N.W.2d 85
- O'Toole v. Bd. of Trustees of S. Dakota Ret. Sys., 2002 S.D. 77, 648 N.W.2d 342

Prior AG opinions:
- AGO 76-11 (referenced as 1976 WL 352056)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1693

Original opinion text

Subpoena Authority of the State-Tribal Relations Committee of the Legislature

Dear Senator Heinert:

In your role as State Senator and Chairman of the State Tribal Relations Committee, you have requested an Official Opinion from the Office of Attorney General based on the following questions:

QUESTIONS:

• Does the State-Tribal Relations Committee, established pursuant to SDCL 2-6-20 et. seq., possess subpoena power?
• Is the State-Tribal Relations Committee a statutory committee or an interim committee?

ANSWER:

• The State-Tribal Relations Committee is a statutory committee without authority to issue subpoenas absent further action from the Legislature.

• Based on the analysis below, the answer to question two is part and parcel of question one.

FACTS:

The State-Tribal Relations Committee met on October 23, 2017. During that meeting, a motion was made to issue subpoenas for various individuals. As Chairman, you ruled that motion out-of-order because you believed the State‑Tribal Committee was without statutory authority to issue the subpoenas. In order to clarify this issue, you requested this Official Opinion.

IN RE QUESTION 1:

In order for the Legislature to effectively legislate, it must have the ability to obtain information regarding the intended effects or possible outcomes of proposed legislation or gather information in furtherance of other constitutional obligations. To this end, courts have generally recognized that a legislative body is inherently "vested with all investigative power necessary to exercise its function properly." Chesek v. Jones, 959 A.2d 795, 802-03 (Md. 2008); see also Matter of Shain, 457 A.2d 828, 831 (N.J. 1983) (investigative power of legislature has long been recognized); Morss v. Forbes, 132 A.2d 1, 8 (N.J. 1957) (legislature's ability to investigate consistently espoused). In meeting its obligations, it may become necessary for the Legislature to summon and examine witnesses, or require the production of books, records, and papers by compelled process. Chesek, 959 A.2d at 803. As a means of effecting these productions, the Legislature may issue subpoenas to the custodians of such records who may then be subject to contempt or criminal charges for non-compliance. Shain, 457 A.2d at 832; SDCL 2-4-14 and 2-4-15; SDCL 2-6-5 and 2-6-6.

Committees may be created to aid in the legislative function. As such, committees may be delegated "some portion of the investigatory power which the Legislature enjoys as a whole." Morss, 132 A.2d at 8. The committee, however, may not act on mere "whims and caprices" of its members. Id. The extent of a committee's investigative power is limited by "the act or resolution to which it owes its existence." Id. (citation omitted). Because a committee's power may be limited, the ability of a committee to compel the attendance of witnesses or the production of documents must either be explicitly stated in the act or resolution creating that committee, or the power must be fairly implied as necessary to carry out the committee's directive. Shain, A.2d 828 at 832; AGO 76-11, 1976 WL 352056.

This limitation on committee authority is reflected in the statutory means to compel attendance. For instance, SDCL 2-6-5 provides the punishment of a Class 2 misdemeanor for any person who, without lawful excuse, fails to comply with a summons to appear "before either house of the Legislature or any committee thereof authorized to summon or subpoena witnesses." (emphasis added). The statute assumes the inherent authority of either house to compel production. At the same time, the statute recognizes that a "committee thereof" must be "authorized" to summon or subpoena witnesses. See also SDCL 2-6-6 (using similar language). Accordingly, in order to determine whether a committee possesses the authority to compel the attendance of witness or the production of documents, the grant of authority creating that committee must be examined.

Committees may be created directly by legislative act. If these committees are codified in state statute, they become known as "statutory committees." Other committees may be of limited duration and thus not subject to codification. For example, the Legislature created the Governmental Accountability Task Force by passage of Senate Bill 171, 92nd Session, 2017. By the terms of the Bill, the Act creating the Task Force will be repealed on December 31, 2017. Because the Act creating the committee will be repealed prior the next legislative session, its existence will not be codified and therefore it will not be considered a statutory committee. Conversely, the South Dakota Retirement Laws Committee, a statutory committee codified in SDCL 2-6-8 et seq., will continue until the Legislature repeals the statutory authority for its existence. In either case, however, the authority of a committee created directly by the Legislature will be limited by terms of the legislative act creating that committee.

The Legislature may also grant, to another body, the authority to create committees. The Legislature, through the passage of SDCL 2-9-2 et seq., created the Executive Board of the Legislative Research Counsel (Executive Board). The Executive Board was granted authority to appoint and name committees to aid in the legislative function. SDCL 2-9-4(6). In order to meet its statutory obligations, the Legislature specifically delegated to the Executive Board, and the committees duly appointed thereunder, certain investigative powers including the ability to issue subpoenas. SDCL 2-9-6.

The Executive Board, in furtherance of its statutory duties, was also given authority to make its own rules and regulations. These rules implemented by the Executive Board now appear in a document entitled "Interim Committee Rules." SDCL 2-9-5. A board, however, is limited in its authority by the parameters given in state law. O'Toole v. Bd. of Trustees of S. Dakota Ret. Sys., 2002 S.D. 77, ¶ 15, 648 N.W.2d 342, 346. The committees created by the Executive Board are likewise limited in purpose and scope to the grant of authority issued by the Executive Board. Accordingly, an Executive Board committee may only exercise the power granted to it by an official act of the Executive Board and in conformance with the Interim Committee Rules. The authority of a committee created by the Executive Board will be governed by the Interim Committee rules and as further limited by the motion or resolution creating that committee.

The State-Tribal Relations Committee is a statutory committee established by SDCL 2-6-20 et seq. The State-Tribal Relations Committee was not established by the Executive Board and may not, therefore, utilize the Executive Board's subpoena powers granted by statute or as provided in the Interim Committee Rules. As outlined above, the Interim Committee Rules only apply to committees established by the Executive Board. Rather than granting additional authority, the State-Tribal Relations Committee's designation as an "Interim Committee" simply means that the committee meets in the interval between regular legislative sessions. No additional power is granted to the committee by this designation and the committee's authority to act remains constrained by statute.

In comparing grants of statutory authority, the Government Operations and Audit Committee is clearly provided investigative ability. This authority specifically includes the ability to "summon witnesses." SDCL 2-6-4. In contrast, the State-Tribal Relations Committee was not so empowered. Had the Legislature intended to give the State-Tribal Relations Committee similar authority to summon witnesses or secure documentation through compulsory process, it could have. State v. Young, 2001 S.D. 76, ¶12, 630 N.W.2d 85, 89 (The Legislature "knows how to exempt or include items in its statutes"). The Legislature did not, but it certainly can, if it is so inclined.

Furthermore, a review of the statutes governing the State-Tribal Relations Committee itself indicate that it was established primarily as a forum for the "discussion of issues of mutual concern to the state and the tribes" rather than as an investigative body. See SDCL 2-6-23. It cannot, therefore, be fairly implied from the State-Tribal Relations Committee's statutory authority that subpoena power is necessary to carry out the committee's function.

CONCLUSION:

State-Tribal Relations Committee is a statutory committee granted only the authority provided to it by statute. It does not currently possess the power to summon or subpoena witnesses absent further action by the Legislature.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL

MJJ/RMW