The South Dakota Constitution: “Under God the People Rule” — But All the People?

For example, a treaty is, essentially, a contract between two sovereign nations.

Layli Long Soldier, Whereas (2017)

Voters in the newly created state of South Dakota ratified the state’s first constitution in 1889. Although the constitution has been frequently amended, it remains in effect to this day. Celebrated for its early embrace of the popular referendum, South Dakota’s constitution has also illustrated the limitations of relying on judicially enforced constitutional rights as a guarantee of equality and justice.

History

Standard histories of South Dakota’s constitution often emphasize its origins in the partisan conflicts, Gilded Age corruption, and prairie populism of the later 19th century. It took more than two decades after the creation of the Dakota Territory in 1861 for South Dakota to join the union and ratify a constitution. During that time, Democrats in Congress resisted Dakota statehood because the territory was expected to vote Republican. But after Republicans won back the White House and Congress in the elections of 1888, Democrats finally allowed North Dakota and South Dakota to become the 39th and 40th states as part of a deal that also included the admission of Washington and Montana.

Prior to statehood, many drafters and ratifiers of the South Dakota Constitution were outraged by the corruption of federally appointed territorial governors such as Nehemiah Ordway. In response, the drafters of the 1889 constitution placed sharp limitations on the activities of the new state’s government, including taxation and appropriations. The limitations prevented the state from funding internal improvements such as roads, bridges, and irrigation systems until an amendment loosened the restrictions in 1936, years into the economic and agricultural crises of the Great Depression.

The most celebrated aspect of South Dakota’s constitution may be the state’s adoption in 1898 of the initiative and referendum process allowing citizens to propose and vote on their own laws, as well as to refer laws passed by the legislature to a citizens’ veto. The innovation was supported by the state’s Populist Party governor and promoted by Father Robert Haire, a Catholic priest who went on to help found the South Dakota Socialist Party. Today, nearly half the states have similar direct democracy provisions, but South Dakota was the first.

Histories that celebrate early South Dakota’s expansive commitment to democracy have tended to downplay, or entirely ignore, another aspect of the state’s founding. In the decades immediately preceding South Dakota’s constitutional formation, a large part of the land within the state’s borders was taken by the federal government from the Native nations who were its lawful owners, especially the Oceti Sacowin (sometimes referred to in the past as “Sioux”).

The years surrounding South Dakota’s founding were scarred by anti-Indian violence and displacement. The infamous Wounded Knee massacre took place only a year after constitutional ratification. Although federal troops carried out the massacre, they had been welcomed by South Dakotan settlers who were panicked by rumors of a looming Indian uprising.

On December 28, 1890, about 300 Miniconjou and Hunkpapa Lakota, mostly cold and hungry women and children, surrendered to Army forces. The next morning, near Wounded Knee Creek, a struggle over a deaf Native man’s refusal to hand over his rifle without payment quickly escalated into a frenzy of killing. Army troops fired artillery at fleeing Natives in wagons and in a nearby ravine. In the words of historian Heather Cox Richardson: “Over the next two hours, the soldiers hunted down and slaughtered all the [Oceti Sacowin] they could find, riding them down and shooting them at point-blank range as they tried to escape. . . . Soldiers shot babies in their cradle-boards. . . . Some of the soldiers scalped their victims.”

In an indication of public sentiment among settlers in South Dakota, L. Frank Baum, the future author of The Wizard of Oz but in 1890 the sole proprietor of the Aberdeen Saturday Pioneer, responded to news of the massacre by publishing an editorial in favor of the “total extermination” of the Indians. Shortly before the massacre, he wrote: “Why not annihilation? . . . Better that they die than live the miserable wretches that they are.” This was the world in which the South Dakota Constitution was drafted and ratified. No account of South Dakota’s constitutional democracy can be complete without addressing the role of Native nations.

Structural Provisions 

The basic political structures in the South Dakota Constitution, as in most state constitutions, are more democratic than the analogous provisions in the U.S. Constitution. In South Dakota gubernatorial elections, there is no Electoral College: whoever receives the most votes for governor wins. After being appointed, South Dakota Supreme Court justices serve renewable eight-year terms rather than being permanently insulated from democratic change through life tenure. Each state senator represents an equal number of people, as opposed to the malapportioned federal Senate, where a voter in Wyoming receives nearly 70 times the legislative power of a voter in California. Perhaps most importantly, the South Dakota Constitution can be amended based on a majority vote by the state’s citizens, as opposed to the virtually unamendable federal Constitution, which may in fact be the world’s most difficult to amend.

But the South Dakota Constitution also contains various features that limit democratic responsiveness. Above all, legislators are elected to winner-take-all, “compact, contiguous” districts, and the elected legislature is itself responsible for defining the districts that will be used in future legislative elections. The result, especially in recent years, has been that relatively moderate or progressive voters have been packed into a few districts representing either Native American or urban areas, while conservative voters have been distributed more efficiently across the state. Predictably, a dramatic divergence between vote shares and seat shares has followed. Although a Democrat has not received more than 60 percent in any statewide vote since 2008, Democratic candidates have continued to receive roughly 25 percent — and often around 35 percent — in statewide votes over the last decade. But, in large part because of winner-take-all voting and the legislative map, the state legislature is, as of late 2025, 8 percent Democrat and 92 percent Republican.

The greatest limitations on South Dakota’s democracy have often arisen from the exceptional status and discriminatory treatment of Native nations. To begin with, the drafters and ratifiers of South Dakota’s constitution were declaring state sovereignty over vast expanses of land illegally expropriated from Native nations who, according to the U.S. Supreme Court’s foundational federal Indian law cases, possessed their own sovereignty. It is difficult to reconcile accounts of the expansive democracy of early South Dakota with the manifestly undemocratic foundations of the state’s constitution.

In addition, from South Dakota’s founding to the present, political leaders have attempted to limit the political power of Native peoples in the state. One history notes that “after South Dakota became a state in 1889, the state legislature adopted provisions limiting voting, jury service, and running for political office to white men. Even after Congress passed the Indian Citizenship Act in 1924, South Dakota refused to comply with its provisions. The state explicitly prohibited Native Americans from voting until 1951 and then continued for decades to find ways to disenfranchise most Native Americans.” Even after a federal judge’s 2004 decision finding that South Dakota’s legislative redistricting plan illegally diluted the votes of Native Americans, voter suppression continued. In the presidential election of 2004, for example, a leading history of the right to vote notes there were still “well-documented instances of Native-American voters being barred from the polls because they failed to present identification papers, even though the law did not require them to do so.”

In many respects, Native nations in South Dakota are thriving today. But areas of concentrated disadvantage persist both on some reservations and in some residentially segregated neighborhoods, such as in Rapid City. The result is that Native South Dakotans, in the aggregate, experience among the highest levels of socioeconomic inequality in the United States, including a poverty rate roughly four times higher than the overall state rate, and an infant mortality rate roughly three times as high. Life expectancy in Oglala Lakota County, which lies inside the Pine Ridge reservation, was recently estimated to be 60 years.

Indigenous inequalities in South Dakota cannot be attributed solely to past federal policies, nor to the legacy of private racism that once expressed itself in signs declaring “No Dogs and Indians Allowed,” and which continues to receive occasional public expression today. A long history of state policies has also contributed to current inequalities. A particularly striking example can be found in the 1930s, when, according to a recent history, so-called “warning out” laws “targeted off-reservation Natives, barring them from legally residing within certain communities or receiving basic housing, social, welfare, educational, and medical services.” Over decades, city planning policies and redlining led to the segregation of Native residents in Rapid City into neighborhoods of concentrated disadvantage that continue to exist today. The South Dakota Constitution failed to prevent such inequality either by ensuring the democratic inclusion of Native citizens or by effectively barring discrimination against them.

Ballot Initiatives

Ballot initiatives have long been a prominent focus of political activity in South Dakota, especially since a 1972 constitutional amendment allowed voters to propose amendments to the constitution. Successful ballot initiatives and referendums over the years have imposed term limits on elected officials (1992); vetoed a strict abortion ban passed by the state legislature (2006); vetoed education policy changes opposed by teachers’ unions, such as the abolition of teacher tenure (2012); raised the state’s minimum wage (2014); reformed campaign finance and ethics in government laws (2016); banned payday loans (2016); adopted a version of “Marsy’s Law” to protect the rights of crime victims (2016, with an update in 2018); and expanded Medicaid coverage under the Affordable Care Act (2022), providing health coverage for tens of thousands of uninsured state residents after years of legislative opposition.

In the 2021 case Thom v. Barnett, initiated by then-Gov. Kristi Noem, South Dakota’s Supreme Court invalidated a successful 2020 citizen-initiated constitutional amendment that would have legalized marijuana in the state. The basis for the court’s decision was a “single-subject” requirement for ballot initiatives that was adopted in 2018 — perhaps not surprisingly, on the basis of a legislative referral rather than a voter initiative. The single-subject requirement is a subtle example of South Dakota legislators’ increasingly frequent attempts to obstruct or undermine the ballot initiative process. An especially stark example arrived in 2016, when the legislature responded to the passage of the voter-initiated “Accountability and Anti-Corruption Act” mentioned above by not only repealing it, but declaring the repeal to be part of a “state of emergency” and thus immune from being reversed by voter referendum.

More recently, legislators twice placed on the ballot, and voters twice rejected, constitutional amendments that would have increased the approval threshold for constitutional amendments —to 55 percent for all amendments in 2018’s Amendment X, and to 60 percent for amendments with certain fiscal impacts in 2022’s Amendment C, which was timed to appear on a low-turnout primary ballot. In November of this year, a legislatively referred constitutional amendment will again ask voters to create a 60 percent supermajority requirement for all future constitutional amendments.

Legislators also passed a series of laws in 2018 imposing burdens on petition circulators, including new paperwork requirements. A 2019 law attempting to create a state registry, fees, and identification badges for paid circulators was enjoined by a federal court, as was a 2020 law requiring circulators to be South Dakota residents and to disclose personal details if paid. In all, recent South Dakota Law Review article counted 33 new laws enacted between 2017 and 2024 to regulate initiated measures. If the initiative and referendum process once placed South Dakota at the vanguard of popular democracy, it seems to have now become the focus of a pitched battle between the people of South Dakota and their elected representatives.

Rights Provisions 

The South Dakota Constitution, like many state constitutions, echoes the federal Bill of Rights but also includes additional rights. From its beginning in 1889, South Dakota’s Bill of Rights has provided, for example, a bar on imprisonment for debt. Unlike the federal Second Amendment, South Dakota’s constitution also explicitly establishes an individual right to bear arms for self-defense. Unlike some more recent state constitutions, South Dakota’s does not contain an explicit right to privacy or sex equality, although it does contain an explicit declaration of the inherent right to “happiness.”

In 1946, in line with the national Republican backlash against the expansion of labor rights during the New Deal, South Dakota’s largely rural voters approved a “right to work” amendment prohibiting the “closed shop” agreements that would soon be prohibited nationwide by the Taft-Hartley Act of 1947. In 2010, South Dakota voters approved an additional amendment guaranteeing, among other things, the use of secret ballots in votes to authorize employee representation by a union. In the spirit of the tax revolts of the 1970s, South Dakota added a constitutional amendment in 1978 requiring a two-thirds vote of both houses of the legislature in order to increase “certain tax rates or valuations.”

Since 1980, South Dakota’s supreme court has been selected according to the “Missouri plan,” in which the governor appoints state supreme court justices based on the recommendations of a nonpartisan nominating committee. Like many courts appointed in this manner, the South Dakota Supreme Court has rarely heeded Justice William Brennan’s call in 1977 to “step into the breach” and boldly guarantee the individual rights that Brennan saw as under threat from an increasingly right-leaning U.S. Supreme Court. A rare exception arrived when the U.S. Supreme Court reversed the South Dakota Supreme Court’s interpretation of the Fourth Amendment in 1976’s South Dakota v. Opperman. The South Dakota Supreme Court responded, defiantly, by upholding its prior ruling on state constitutional grounds.

The most significant and easily overlooked aspect of the rights provisions in South Dakota’s constitution may be their frequent failure, historically, to protect rights that are now widely recognized as fundamental. For example, the constitution’s declaration that “all men are born equally free” and have the right to “life and liberty” did not prevent the state law against miscegenation that required Yanktonai Dakota painter Oscar Howe to marry his German wife outside the state in 1947. Nor did the guarantee of equal freedom prevent the rise of South Dakota’s Ku Klux Klan in the 1920s, including residential cross-burnings in Sioux Falls. Nor did it prevent the persistence of racial segregation in Rapid City into the early 1960s, when the New York Times described South Dakota as “a pocket of Northern resistance to legal efforts to erase racial discrimination in public places.” Recent research has uncovered evidence of refusals to serve Black and Native people in Sioux Falls and residential segregation in cities across the state. In Vermillion, the home of the University of South Dakota, “a black barber with a white clientele . . . was apparently forced to commute from Yankton” — 25 miles away — “because he could find no lodgings in or near Vermillion.” Unlike Vermillion, Yankton had a Black neighborhood, which local whites referred to as “N____ Hill.”

Nor did the state constitution’s promise of equality include the right to vote for women, which was defeated in every attempted amendment prior to 1918, despite suffragists’ observation that “women are people,” and thus according to the state’s motto — Under God the People Rule —should be among those who rule.

Nor did the South Dakota Constitution’s promise of “freedom of religion,” “freedom of speech” and “peaceable assembly” prevent the state from banning unpopular speech and religious practices, especially in the early 20th century. In the words of a recent history, World War I saw “the jailing of Hutterite pacifists, and the detention and fining of socialist German farmers,” as well as a state-authorized ban on public teaching in German, “including sermons or public worship.” Another history notes that when Hutterites in Yankton County refused to buy war bonds, county officials “simply rounded up 100 steers and 1,000 sheep belonging to them, and auctioned them off.”

Nor did South Dakota’s constitution prevent the often-violent suppression of socialist and labor organizing. In 1918, for example, the mayor of Mitchell ordered the breakup of the Socialist Party’s state convention and the expulsion from town of all delegates. In 1919, a mob of several hundred in Madison attacked the home of the state chair of the Socialist Party, who had recently been released from a prison sentence as a conscientious objector. “When he failed to appear, members of the mob chopped their way through his roof with axes, [and] tied his hands and feet,” the historian Adam Hochschild writes. Later, in 1934, a state court enjoined the radical United Farmers League from meeting or distributing literature in the state. Soon after, the state prosecuted over a dozen members of the organization for “riotous assembly,” although a jury acquitted the defendants. It was the liberal Warren Court, through decisions such as Brandenburg v. Ohio in 1969, that eventually prohibited the prosecution of unpopular political speech, not the South Dakota Constitution.

Reconciliation and Democratic Reconstruction 

The South Dakota Constitution begins with a collective democratic summoning of “We, the people of South Dakota,” and later emphasizes that “all political power is inherent in the people.” But in practice, “the people of South Dakota” has not always included all its people. The members of Native nations, in particular, have often been excluded. If a redemption of South Dakota’s democratic promise one day becomes politically feasible, it might begin by bringing together the three sovereigns — tribal, state, and federal — in a process of reconciliation based on a recognition of shared history.

Gregory Brazeal is an associate professor at the University of South Dakota Law School, a former major in the Army Reserve, and the author of The Hero and the Victim: Narratives of Criminality in Iraq War Fiction. An extended version of this essay is available here.