RAPID CITY, S.D. ? Sioux treaties through the 19th century will have a going over in federal court in Washington, D.C., in a new lawsuit in the Mitigation Act controversy. The suit filed by the Oglala Sioux Tribe asks that thousands of acres of land not be transferred to the state of South Dakota and two other Sioux tribes. The OST seeks to prevent any transfer of land along the Missouri River that the tribe claims is part of the 1868 treaty that established the Great Sioux Reservation. Any transfer of land would be illegal under that treaty, it says. The tribe also argues that by way of the treaty it owns all of the cultural items below and above the water level on both sides of the rivers. The 1868 treaty gave the Lakota people the land west of the Missouri River from the low water mark on the east shore of the Missouri River.
The Oglala Tribe claimed that an 1889 law creating six separate reservations in the western part of the state did not diminish the boundaries of the original 1868 treaty. The Oglala complaint asserts that the 1889 law that established the reservations did not contain the signatures of three-fourths of the males
of the Sioux Nation as required. Many other signatures, those of mixed blood and white people,
appeared on the documents illegally, the complaint states.
The Oglala also note that the U.S. Supreme Court in 1980 said that the U.S. government confiscated the western end of the Great Sioux Reservation in violation of Article 12 of the 1868 Treaty and the Fifth Amendment.
Therefore the tribe argues that it owns all of the cultural items along either side of the Missouri River and that the federal government and U.S. Corps of Engineers, defendants in the case, have not taken the
proper measures to protect those items.
The lands in question are shore properties that lie above the established flood line of the lakes established by the hydroelectric power dams. The Corps has the responsibility to transfer surplus land back to the tribes.
In an attachment to the Water Resource Development Act of 2000, Congress ordered the Corps to transfer the land to the state and the Cheyenne River Sioux Tribe and the Lower Brule Sioux Tribe. This Lower
Brule Sioux, Cheyenne River Sioux and South Dakota Terrestrial Protection Act was pushed through Congress and signed by President Clinton without proper consultation with the Oglala Sioux Tribe, the lawsuit claims.
The Oglala ask temporary and permanent injunction against transfer of the land to the state and the two mentioned tribes. This lawsuit goes further than one filed by the Crow Creek Sioux Tribe which only
mentions the state. The Oglala lawsuit puts more emphasis on the treaties, said Mario Gonzales, Oglala tribal attorney.
The Crow Creek lawsuit succeeded in stopping the land transfer set for Jan. 1. The hand over was rescheduled for Feb. 8. A hearing will be held on Feb. 1 in federal court, said Peter Capposella, attorney for the
Crow Creek tribe.
More than 120 recreational areas along the river are to be transferred to the state and both lawsuits claim the federal laws do not properly protect the cultural items on the sites.
The lands in question were held by the Oglala Sioux Tribe by aboriginal title, the complaint states. And the treaty of 1851 verifies that ownership with the Great Sioux Nation.
When the Pick-Sloan Act was passed in 1944 to establish the series of hydro-electric dams along the Missouri River, none of the Oglala Sioux Tribe's fifth-amendment-protected property interest in the lands were ever acquired by the Corps for the main stem dams, the court documents state.
The Crow Creek Sioux Tribe's lawsuit is joined or supported by the Standing Rock Sioux Tribe and the Rosebud Sioux Tribe.