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Crow Creek Lawsuit Freezes Missouri River land transfer

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RAPID CITY, S.D. ? A federal judge in Washington, D. C. is blocking a controversial land transfer along the Missouri River that has pitted Sioux tribes against each other and raised bitter memories of the loss of ancestral land.

The arguments in this case may affect land transfers across the country. In winning a temporary stay, the Crow Creek Sioux argued that it is impossible to both transfer the land and implement the Native American Graves Protection and Repatriation Act (NAGPRA). The tribe is also asking for a permanent injunction to stop the land transfer.

"This is the beginning of the end for Indian people. Things told to us by our elders are coming true," said Roxanne Sazue, chairwoman of the Crow Creek Sioux Tribe. "We have to stand up now and file lawsuits. The Federal government has a plan for us, but we know what we want. It's time to take action, not talk."

On the other hand, two Sioux tribes and the state of South Dakota stand to receive 150,000 acres from the federal government. A federal law would give the land now controlled by the Army Corps of Engineers to the Cheyenne River Sioux Tribe, the Lower Brule Sioux Tribe and a state Terrestrial Wildlife Habitat Restoration project.

The transfer was scheduled for Dec. 21 when U.S. District Judge Paul Friedman of the Washington, D.C., District imposed a stay. Judge Friedman accepted the Crow Creek Sioux argument that the Corps could not turn over land to the state and at the same time enforce federal historic preservation laws.

Sazue argued that the much revised transfer law was altered without tribal consultation. Also, many tribes claimed it violated their treaties. The land transfer has been in the works for nearly five years. The original bill was rewritten and then repealed after tribes involved were surprised with the changed language.

"The tactic used with the mitigation bill is to divide and conquer. The government called us the river tribes and ignored those treaty tribes not on the river. We are all in this together. If (Crow Creek) loses, we all lose," she told a meeting of the Black Hills Sioux Treaty Council.

"This is our land, our ancestors fought and died for it. It is scary at this time in our history; we are not afraid to go to court because all we get from the federal government and Congress is that they tell us what we need."

At the root of the opposition is the fact that the state will receive the bulk of the 150,000 acres of land. The Treaty Council claims that it is in violation of the nation's constitution to transfer that land to the state. In another sticking point, cultural artifacts and objects are found in numerous places on either side of the river. The fear is that the state will not be held to a high enough standard to protect those cultural objects.

"You can take a boat down river to Chamberlain and see the bones of our ancestors coming out of the banks. They are trying to tell us something," Sazue said.

"But now everything is stopped."

The land transfer involves unused shoreline above a flood plain that was created in the 1950's Pick-Sloan project that dammed the Missouri River for hydroelectric power with a series of earthen dams. The lakes created by the dams displaced entire towns and many tribal members lost their homes and allotted lands in the bargain.

The state has claimed from the beginning of the process five years ago that the transfer of land to the state will mean better management of the land. Sen. Tom Daschle, D ? S.D. referred to the previous management by the Corps of Engineers as neglectful. Gov. Bill Janklow called the transfer as the best deal in 50 years for the state. Daschle and Janklow worked for three years to get the bill through Congress, only to see it repealed and rewritten.

Tribal members were paid a small amount for the land lost, but in the Pick Sloan Act a provision provided the land to be transferred back to the tribes if it was no longer useful.

The Cheyenne River Sioux and the Lower Brule Sioux approved the Daschle- Janklow bill but other Sioux Treaty Tribes opposed it. The bill passed as a rider to a water development appropriations in 1999 and was signed by then President Bill Clinton.

The official title of the legislation is the Cheyenne River Sioux Tribe, Lower Brule Sioux Tribe and State of South Dakota Terrestrial Wildlife Habitat Restoration Law.

But changes in the bill upset at least one of the supporting tribes, the Cheyenne River Sioux Tribe. Tribal Chairman Gregg Bourland, who had been instrumental in providing input in the original bill, now opposed it.

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The bill was later repealed. When it was passed again it provided for the land transfer to occur Dec. 21.

Sazue said that the Mitigation act, as it is referred to by its opponents, was another way to divide the tribes and the tribal leadership. "It's like the trust reform business. Then next they will want to quantify the water. It's an ideal way to conquer us through the land. We have to stop the lip service as tribal leaders and members and put a plan together. We are always reacting to something in Indian country," she said.

The tribe's attorney Peter Capossela said in a letter to Sazue that the tribe's position was to challenge both the land transfer and the lease of the land. It was impossible, the letter stated,

The Justice Department represented the Corps and stated that the tribe challenged the leases and not the land transfer. The government also stated that sufficient government to government consultations had been held. It mailed a letter that asked for one on the day of the hearing.

Sazue told the judge that the government should not have scheduled a consultation on the day of the hearing. Again, the judge agreed.

. While the Corps and government sift through the implications of the ruling, there may be a hold on transfers across the country, government officials said. Crow Creek officials disagree. They claim this lawsuit involves a specific statute.

Additional briefs must be submitted to the judge by Feb. 8 for a continuance of the stay judgment. The legal maneuvering will ultimately lead to a trial that will determine if the land transfer Act is constitutionally vague and ambiguous, as the Crow Creek tribe claims.

The only tribe that has expressed public support for the Crow Creek lawsuit is Standing Rock Sioux Tribe.

Meanwhile the Oglala Sioux Tribe has filed a separate lawsuit to block the transfer to the Cheyenne River and Lower Brule tribes. Mario Gonzalez, Oglala Sioux tribal attorney, said the lawsuit was filed in U.S. District Court in Washington, D.C., in hopes of preventing the change in ownership of 91,178 acres of land within 64 riverside recreation areas.

"We seek to enjoin the land transfers not only to the state of South Dakota but also the Cheyenne River and Lower Brule Sioux tribes," Gonzalez said.

John Yellow Bird Steele, president of the Oglala Tribe, said the tribe is waiting for an environmental-impact statement from the U.S. Army Corps of Engineers. Tribal officials apparently hope the report will bolster their lawsuit.

However, a corps official has said the environmental-impact statement will not stop the project, which was approved last January by Congress.

Gonzalez said the Oglala lawsuit alleges that the lands along the Missouri River contain more than 1,100 archaeological sites. The human remains and cultural items on those sites belong to the Oglala Tribe under NAGPRA, he said.

Under an 1868 treaty, the Oglala own all cultural sites on the western banks of the Missouri River, Gonzalez said. The repatriation law also gave the Oglala Sioux Tribe ownership of human remains and cultural items on the eastern banks of the river, he said.

The tribe argues in its lawsuit that boundaries of the Great Sioux Reservation, as set by the Fort Laramie Treaty of 1868, begin on the eastern banks of the river and were not diminished by an 1889 law that created six smaller Sioux reservations in the state.

Gonzalez said the tribe is seeking an immediate court order to prevent the corps from transferring Missouri River lands to the state and Cheyenne River and Lower Brule tribes.

All this comes as Gale Norton, secretary of Interior, has announced a reorganization of the BIA to form a new trust management office. Tribal officials across the country argue that they were not properly consulted in the plan.

The Great Plains tribes, of which Crow Creek is a member, oppose the new reorganization. Assistant Secretary for Indian affairs Neal McCaleb will hold a "consultation meeting" in Rapid City, South Dakota, on Jan. 10. Tribal leaders plan to meet the day before to strategize and plan their opposition to the reorganization.