By Emma Whitford

Law360 (September 27, 2020, 8:02 PM EDT )

Coronavirus cases were on the rise in South Dakota in July when Hope Chipps, a 48-year-old Lakota woman, was evicted from her Rapid City apartment, along with her husband, children and grandchildren.

She had withheld rent, part of a pressure campaign to get her landlord to restore the hot water and fix the sparking electrical outlets. But after her landlord filed a lawsuit to throw her and her family out for nonpayment, Chipps felt defenseless. Standing before the magistrate judge without a lawyer, she recalled, "I felt like I was dumbfounded. I didn't know what to do."

Chipps is now part of Rapid City's homeless community, the majority of whom are Native American, and her family has scattered. No longer able to quarantine, she couch surfs and checks in on elders camping along the Rapid Creek, despite the arthritis in her ankles.

While many jurisdictions enacted eviction moratoriums this spring in response to the pandemic, South Dakota made no special accommodations. Rapid City has a large Native American population — nationally, the majority of Native Americans live in metropolitan areas — and a shortage of affordable housing. Tenants there have very few legal defenses on the books, and report difficulty finding lawyers who will represent them for free.

A new federal eviction ban enacted this month by the Centers for Disease Control and Prevention offers a glimmer of hope through December, but it has qualifications and will be of little use if people don't know about it, or have no help filling out the required paperwork.

Brent Thompson, director of East River Legal Services in Sioux Falls, which serves tenants in the eastern part of the state, described the new CDC rule as a "pretty big game-changer" for South Dakota, which had "no moratorium whatsoever put in place."

Under normal circumstances, tenants facing an eviction case have a narrow four-day window to file an answer, or face default. Tenants can argue that their apartments are not safe, but that defense has strict requirements, including that they set aside rent in escrow accounts.

Nonpayment cases are "pretty much slam dunks," according to attorney Todd Schweiger, who has represented both tenants and landlords in Rapid City. There have been more than 80 evictions in Rapid City's Pennington County since May, according to sheriff's office data.

Still, effectiveness of the CDC rule "entirely depends on public education," Thompson said. This poses a challenge in a state where there's "just not a lot of informational resources or direct legal aid representation."

Eric Pickar of Bangs McCullen Law Firm represents Rapid City landlords. He told Law360 that he has yet to receive notice from a tenant invoking the CDC rule. Tenants "have to take affirmative action," he said. "And if you don't do that, the judicial system is not going to do that for you."

To try to bridge the gap, Thompson's office has set up a website called SD Law Help. A guide to the new CDC rule is featured prominently, detailing how a tenant must fill out a declaration to their landlord stating that they meet certain qualifications, including that they have experienced a "substantial" loss of income.

In Rapid City, a new grassroots tenant union, West River Tenants United, has been busy teaching neighbors about the fast-paced eviction process and accompanying them to their hearings so they don't have to face the judge alone — eight so far. 

They center their efforts on supporting Native American tenants, contextualizing evictions in a long legacy of displacement in the Black Hills of western South Dakota, stretching back to the United States' seizure of tribal lands in the 19th century.

"We've been continuously stolen from," said Lakota organizer Mark Tilsen. "We're literally fighting and begging for places to live on our own land."

Already, Native Americans make up more than 70% of Rapid City's homeless population, compared with less than a quarter of the population overall. A 2016 study by the Black Hills Knowledge Network found that the Native American population in Rapid City has a poverty rate more than triple that of the white population.

The same study identified a shortage of nearly 1,500 apartments renting for $500 or less. Not only is social distancing difficult on the streets, but reports of harassment and intimidation along Rapid Creek have prompted tenant union members to patrol the camps at night.

West River Tenants United demanded a blanket eviction moratorium this spring. Its leaders are skeptical about the new CDC rule because it does not cover lease violations, such as alleged property damage, or permanently absolve tenants of their rent obligations.

They're also concerned about helping tenants navigate the rule's qualifications, in part because their efforts to get advice and representation from their local public defender office, Dakota Plains Legal Services, have not been fruitful. "It seems virtually impossible for tenants to find lawyers to represent them here," said member Karissa Loewen.

Andrea Rosenburg, deputy managing attorney at Dakota Plains Legal Services, told Law360 by email that landlord-tenant issues are a high priority, but said there is a "stringent" application process for services based on factors like income and household size. 

"I do know that we have gone to court in the past on evictions and my recollection is that we had one recently," she said. "If we had a case where we felt that a tenant had legal merit, we would be very likely to make the attempt to take it on."

Gov. Kristi Noem's office did not respond to a request for comment on the state's dearth of tenant protections. Rapid City officials highlighted more than $400,000 in federal pandemic relief funding, part of which will likely be allocated for rent relief, though a timeline to release the funds hasn't been confirmed.

Meanwhile, winter is coming and it's starting to get cold. Mona Herrington, a Lakota organizer with West River Tenants United, said new federal relief funds need to be dispensed as quickly and seamlessly as possible. She's helping distribute free meals each Friday, part of a Native mutual aid project, and says lines have swelled from 50 or 75 people to more than 200.

"I know that there are people that are falling through the cracks," she said. "People I knew had homes before."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

For a reprint of this article, please contact reprints@law360.com.