Bill Protecting Native American Two-Spirit Individuals Fails in South Dakota State Senate

PIERRE, S.D.— South Dakota State Sen. Red Dawn Foster introduced Senate Bill 166 with a series of amendments to the South Dakota state senate on Feb. 1 that included protections for individuals identifying as LGBTQ (Lesbian, Gay, Bi-sexual, Transgender) and Native American Two-Spirit in the State of South Dakota. The bill is one of the first sponsored by Sen. Foster, an Oglala Lakota Democrat representing District 27, which includes Bennett, Haakon, Jackson, Pennington, and Oglala Lakota counties.

The bill included provisions of existing laws that would protect individuals based on sexual orientation and gender identity with specific identification as Native American Two-Spirit. It is the first time the term Native American Two-Spirit is up for discussion in an official capacity in a state government. 

Senate Bill 166 unanimously passed in the South Dakota Senate Judiciary Committee on Thursday, February 18 and continued to two full hearings on the Senate floor, ultimately being voted against 27-8 on Wednesday, Feb. 24. It was the first time a committee in any state government in the United States has approved protections for Native American Two-Spirit individuals. 

“We are very proud of Senator Red Dawn Foster,” said Monique “Muffie” Mousseau to Native News Online. “We are happy SB166 made it through the Senate Judiciary Committee as well as a first reading on the Senate floor. This is the furthest this bill has ever been and we are grateful for this experience.”

South Dakota law does not prosecute hate crimes based on gender identity or sexual orientation. However, federal law has covered both categories since 2009, when the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was signed into law by President Barack Obama. Hate crimes committed on the basis of the victim's sexual orientation or gender identity can be prosecuted in federal court. 

“Since the arrival of Europeans, to what is now called the United States of America, there was, is and always will be Native American Two-Spirit, gays, lesbian, bi-sexual, transpersons, and queer, regardless of judgement from the brainwashed believers of European religion and hateful ignorance,” Mousseau said to the South Dakota Senate Judiciary Committee on February 18. 

Many, including Mousseau, consider the term Two-Spirit to be sacred. She’s a proud Two-Spirit woman, having married her partner Felipa De Leon in 2015 at the National Gay Marriage Celebration at Mount Rushmore, where 8 gay couples married under the faces of Mount Rushmore National Memorial in defiance to the State’s opposition to support same-sex marriage. 

Among those who inspired Foster’s sponsorship of SB 166 is Oglala Sioux Tribal member Monique “Muffie” Mousseau, who was influential in the passing of her tribe’s hate crime law that offers protection to its LGBTQ and Two-Spirit citizens. In September 4, 2019, the Oglala Sioux Tribal Council passed hate crime legislation which protects LGBT and Two-Spirit individuals, with 14 votes in favor, 2 against and 1 abstention. The Oglala Sioux Tribe is the first tribe to enact such a law. 

According to Candi Brings Plenty, Executive Director of Two Spirit Nation, 7 out of 9 tribes in the State of South Dakota have either passed resolutions and written letters of support for Senate Bill 166. “The only reason we don’t have the other two tribes expressing their support is because we haven’t reached them yet,” said Candi Brings Plenty to Native News Online.

The Two Spirit Nation is a national grassroots organization that was created during the Standing Rock NoDAPL movement at the Oćeti Šakowin camp to elevate visibility, advocacy and awareness. “It is a means to reclaim our sacred space in our sacred circles and to attribute to healing historical trauma for all Two-Spirits across Turtle Island,” said Brings Plenty. 

“Supporting our Two-Spirit relatives is important, because having wao’hola (respect) for all life, is part of Lakota epistemology and our core cultural values,” said Cheyenne River Sioux Tribal Member Alli Moran to Native News Online. “Mita’kuye Oyás’in means ‘We Are All Related’ and we respect all life—human, animals, water. It is our overall holistic respect for all living things and we understand the interconnectedness of all living things.” 

“Clearly, South Dakota is a state that maintains an old mentality and not very progressive when it comes to diversity and inclusion,” Mousseau said. “Our legislators must realize that our LGBTQ & Native American Two Spirit relatives must be integrated and accepted into constitutional protections because mitakuye oyasin.” 

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