PIERRE, S.D. (KELO) — A South Dakota prosecutor has decided he won’t pursue a charge of eluding against a rural Fort Yates, North Dakota, man accused of violating a tribal traffic checkpoint on the Cheyenne River Indian Reservation.
Wayne D. Hepper still faces another lesser charge.
Steve Aberle, the Dewey County State’s Attorney, agreed with Hepper’s lawyer, Marty Jackley, that Hepper technically wasn’t eluding a law officer when Hepper drove away from a checkpoint near Faith on US 212 about 9:45 p.m. April 8.
The person staffing the checkpoint was tribal preservation officer Steve Vance, who allegedly told Hepper he couldn’t enter the reservation because Hepper’s truck had North Dakota license plates. Hepper disregarded the instruction and went past the checkpoint onto the reservation.
Sergeant Terry Long Mandan of the Cheyenne River Sioux police tried to pull Hepper over. Meanwhile Dewey County Sheriff’s Deputy Dan Assman put down tire-spike strips ahead. Hepper stopped after passing the county deputy’s vehicle. The deputy arrested Hepper.
Aberle acknowledged Hepper didn’t have to stop for the tribal sergeant and therefore wasn’t eluding him; South Dakota law doesn’t include a federal officer in its definition of a law enforcement officer.
“The officer in this case was an Indian Highway Safety Officer who is a Federally certified officer. Therefore, Indian Highway Safety Officer Terry Long Mandan is technically not a ‘Law Enforcement Officer’ for purposes of South Dakota’s Eluding statute,” Aberle wrote in his court document dropping the eluding charge.
Jackley said Tuesday he has requested the affidavits and video state Attorney General Jason Ravnsborg provided to Governor Kristi Noem. Ravnsborg sent investigators to monitor the checkpoints earlier this year.
Noem sent Ravnsborg’s information to President Donald Trump but said in the May 20 letter she wouldn’t make them available to the public “outside of a formal legal proceeding.”
Hepper faces one count of failure to halt for a stopped emergency vehicle with red lights. Jackley, who previously was state attorney general, has asked that the charge be dismissed or that the circuit judge order Ravnsborg’s affidavits and video to be made available.
“The State’s failure to provide Brady information, specifically any investigatory materials, including affidavits and video recordings, mentioned in the May 20, 2020, letter from Governor Noem to President Trump is the basis for this motion,” Jackley wrote the court.
“In the alternate, the defendant hereby requests to have the Court order the discovery of the investigatory materials attached to or mentioned in the May 20, 2020, letter sent by Governor Noem to President Trump regarding the ‘unlawful tribal checkpoints  being operated in violation of applicable law . . . ,'” he continued.
“In the further alternate, the defendant hereby requests that the Court conduct an in camera
review for exculpatory evidence relating to the aforementioned affidavits, videos, investigation
reports, and any other information created for the purpose of investigating the checkpoints at
issue in this case.”
Jackley later noted in the same motion, regarding attorney Aberle: “In preparation for trial, Defendant requested Brady materials on May 7, 2020, and again on June 16, 2020. The June 16 request explicitly requested any exculpatory information developed from the investigation into the tribal checkpoints. The fact that the prosecutor has still not produced the requested information should not reflect poorly on the prosecuting attorney, as it is believed that other State authorities are withholding this information.”
Noem, who was South Dakota’s one member in the U.S. House of Representatives at the time, defeated Jackley for the Republican nomination in their party’s June 2018 primary election.
The hearing on Jackley’s motion is set for August 17.