Missouri River land issue goes to Appeals Court

WASHINGTON, D.C. ? In a setback for South Dakota tribes, a Federal District Court here allowed the transfer of Missouri River land to the state of South Dakota.

Land that the Crow Creek Sioux Tribe claims is owned by the tribes of the Sioux Nation was transferred in violation of the treaties, argued lawyers for the tribe. The case also maintained that the state and Corps of Engineers did not perform proper environmental studies to determine cultural lands.

District Court Judge Paul Friedman allowed transfer of contested land to the state of South Dakota after he accepted a delay to hear arguments in a lawsuit that asked for a stay of execution. The land transfer was supposed to have taken place on Dec. 21, 2001 but was postponed because of the initial lawsuit.

Tribal attorney Peter Caposella said an appeal will be filed even though the transfer will take place. The appeal will try to stop any more transfers and undo the transfers that have taken place, Caposella said.

"The judge agreed the Corps is in violation of (Native American Graves Protection and Repatriation Act), but he refused to stop the land transfer. We have a decent basis for appeal because the Corps is in violation of the law."

The law requires identification of all historical or cultural property.

"The Corps has not properly evaluated and has not properly consulted with the tribes. The Corps didn't follow up and also used old, outdated materials. They need to consult with the tribes. The Judge agreed, but transferred the land anyway," Caposella said.

Some 63 recreational sites along the Missouri River will be transferred to the state of South Dakota as part of the Mitigation Act, as is it called. The bulk of 150,000 acres of land will be transferred to the state.

The land involved lies along the banks of the Missouri River as it passes through the Standing Rock, Cheyenne River, Crow Creek, Lower Brule and Yankton Reservations. Only the Cheyenne River and Lower Brule tribes joined in legislation to transfer the land that passed during the Clinton Administration.

The land in question, according to members of the Black Hills Treaty Council, belongs to the Lakota and Dakota Tribes and is not able to be transferred to the state.

The land lies above a flood level established by the U.S. Army Corps of Engineers on the lakes created by hydroelectric power dams established by the Pick-Sloan Act. In the 1950s construction of the dams created lakes that flooded tribal and private land. The act allowed for the return or transfer of land to the tribes should the shoreline above the lake level not be used as a flood level.

Elders and other members of the river tribes have argued endlessly that the transfer of land to the state will destroy burial sites, cultural sites and spiritual areas.

Sportsmen's groups support the transfer, because, they assert, they will be unable to use the game-rich areas along the river if the tribes gain control of the hunting and fishing permits. The Act calls for control of permits by the tribes and the state. The state will control the east side of the river and the tribes the west.

The Crow Creek Sioux Tribe will not quit in its effort to stop the transfer of land to the state, Roxanne Sazue, tribal chairwoman said, because their ancestors fought and died for the land. She plans to continue the fight to stop transfer of more treaty land.

At this time the Crow Creek Sioux Tribe is the lone plaintiff in the lawsuit, but it has the verbal support of the Standing Rock and Rosebud Sioux Tribes. The tribes have yet to sign on to the lawsuit as friends of the court, Caposella said. The Rosebud and Oglala Sioux Tribes are also involved through the treaties. In addition, water from the Missouri River transferred by a special federally funded project, Mni Wiconi, will go to the tribes and other users.

The legislation gave the Oglala Sioux Tribe an easement along the river for the Mni Wiconi pumps and facilities. This legislation was added at the last minute as the bill was attached to the omnibus spending bill in the last legislature. Tribal leaders expressed surprise that this was done without consultation.

Many opponents to the land transfer call the bill the Janklow-Daschle bill. They claim that South Dakota Governor Bill Janklow acted as a major author of the bill with Sen. Tom Daschle, D-S.D. Janklow just recently announced his candidacy for the U.S. House of Representatives. He also referred to the bill as the best thing that happened to the state in 50 years. It took three years to get the bill through Congress.

This latest action does not affect a lawsuit filed by the Oglala Sioux Tribe that also asks for a stop in the transfer of land, not only to the state but to the Lower Brule and Cheyenne River Sioux Tribes.