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Court upholds dismissal of SD tribe’s land lawsuit

PIERRE, S.D. – An appeals court June 26 refused to reinstate the Oglala Sioux Tribe’s lawsuit that sought to prevent the federal government from transferring thousands of acres of land along the Missouri River to the state.

In a 2-1 ruling, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court’s dismissal of the tribe’s lawsuit.

The lawsuit contends that the land along the river cannot be transferred to the state because it was taken from Sioux tribes illegally more than a century ago.

The appeals panel said another law, passed by Congress in 1946, prohibits courts from dealing with such old Indian claims. The dissenting appeals judge said one part of the lawsuit should be returned to a district judge for further consideration.

A lawyer for the tribe did not immediately return a call asking for comment.

With the support of then-Sen. Tom Daschle, D-S.D., and then-Gov. Bill Janklow, a Republican, Congress in 1999 approved the transfer of thousands of acres of federal land along the Missouri River to the state Game, Fish and Parks Department.

The land had been held by the U.S. Army Corps of Engineers since huge reservoirs were built on the river more than four decades ago, and the transfer allowed the state to take control of recreation areas and improve wildlife habitat along the river.

The Oglala Sioux Tribe, whose reservation is in western South Dakota far from the river, sued in an attempt to block the land transfer.

The lawsuit argues that the shoreline is included in the Fort Laramie Treaty of 1868 that gave Sioux tribes all of western South Dakota. An 1889 law passed by Congress took much of that land away from the Sioux on condition that three-fourths of the adult male Sioux agreed, and the lawsuit contends the government never got enough tribal members to consent.

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A federal judge dismissed the lawsuit, ruling that the Oglala Sioux Tribe no longer had a legally protected interest in the shoreline land because the 1889 law had taken effect and eliminated the land rights tied to the 1868 treaty.

The appeals panel said a 1946 federal law deprived courts of the power to consider such claims. The limitation imposed by the Indians Claims Commission Act, which was intended to resolve all existing claims by American Indians, means the court system cannot consider the Oglala Sioux Tribe’s claims dealing with whether the land was taken illegally 120 years ago, the appeals judges said.

The tribe also sought to require the Corps of Engineers to locate Native American historic sites on the land and nominate them for inclusion in the National Register of Historic Places.

The appeals court said that claim must be dismissed because the tribe did not show that the historic preservation law requires agencies to evaluate sites within any specific time frame. State archaeologists have been surveying the transferred shoreline to protect burial grounds and other sites.

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