Post by blackcrowheart on Oct 11, 2006 18:02:43 GMT -5
Ruling in tribe's favor stands
Lower Brule's land near I-90 now can be taken into trust
PETER HARRIMAN PUBLISHED: October 9, 2006
www.argusleader.com/apps/pbcs.dll/article?AID=2006610090320
<http://www.argusleader.com/apps/pbcs.dll/article?AID=2006610090320>
A 16-year federal litigation that tribes nationwide feared could lead to
a devastating limit on tribal sovereignty might finally be resolved
since the U.S. Supreme Court this week declined to hear the case.
It means an 8th Circuit Court ruling stands, and 91 acres along
Interstate 90 near Oacoma owned by the Lower Brule Sioux Tribe may be
taken into trust for the tribe by the Department of the Interior.
The case arises from South Dakota's effort to block that, going back to
a lawsuit originally filed in federal court in 1990.
The land purchased privately by the tribe and about eight miles from the
Lower Brule reservation would go off the state tax rolls once it becomes
trust land.
Even more important, according to South Dakota Attorney General Larry
Long, if tribes are allowed to establish trust lands outside
reservations, the state loses an important ability to regulate land use.
Long cites an unsuccessful attempt in the 1980s by a private developer
to try to give land to the Oglala Sioux Tribe and get it enrolled in
trust to operate a landfill and avoid state environmental regulations.
He also points to the hog rearing operation that is a partnership
between a North Dakota company, Sun Prairie, and the Rosebud Sioux Tribe
that evades the state anti-corporate farming provision.
"That's got way more to do with what's at issue here than the simple
loss of the real estate tax," Long says.
But in seeking to block Lower Brule's efforts at Oacoma, in its lawsuit
the state questioned the constitutional authority of the federal
government to take land into trust outside the contiguous borders of
reservations.
It was the equivalent of firing a nuclear weapon at a mosquito, say
proponents of tribal sovereignty, and it reverberated through all of
Indian Country.
In an editorial in July, Indian Country Today wrote that "enemies of
tribal sovereignty have targeted land-into-trust as the next Indian
policy to throw into the meat grinder of the U.S. Supreme Court. They
have attacked it from one end of the country to another. So far, they've
failed."
The 1934 Indian Reorganization Act that allows the government to take
land into trust for tribes is the primary tool tribes use to regain
traditional land holdings lost in the 1887 Indian Allotment Act when
reservation lands held in common by a tribe were broken up and assigned
to individual tribal members, who often sold them. Acquiring trust land
off reservations also can be a powerful economic development tool, said
Lower Brule Chairman Michael Jandreau.
To resolve what amounts to a business dispute by attacking the
fundamental principle that allows tribes to reach beyond reservation
borders to establish trust land, the state has shown it still considers
Indian tribes adversaries, Jandreau insists.
"I say this bluntly," he says of the lawsuit. "To me it is nothing but
the social bigotry underlying all treatment of Indian tribes by state
government that is fostered and promoted by the attorney general's
office. In this case, it appears to be supported by the governor of our
state."
Jandreau calls Long's concerns about land use regulation "red herrings,"
and he says the tribe offered to negotiate with the state and Lyman
County about how the tribe would develop the Oacoma land.
Plans for development
With the Supreme Court decision not to hear the case and to let the
appeals court ruling stand, the tribe now will create a development plan
and seek financing. A truck stop and tourist amenities promoting the
Native American Scenic Byway are likely uses for the land, Jandreau
says.
"We need dollars to do that," he says. Tax incentives because the land
is in trust help the tribe garner such funding, Jandreau says.
On its face, negotiating uses for trust land with state and local
government sounds good, but the basic shortcoming, says Long, is the
ambiguity in determining who enforces a negotiated settlement. The
tribe? The Interior Secretary? Someone else?
"Let's assume a deal is made for a piece of ground off the reservation
that it can only be used for a museum. Sometime in the future, the use
changes to a gas station or a casino or a hog-confinement facility. Who
is the individual, the entity who has the responsibility to make sure
the original use is abided by?" Long asks.
In declining to hear the South Dakota case, the Supreme Court adhered to
a pattern of turning down such trust cases. Long notes that the court
decided not to hear a similar case from Utah at the same time it decided
not to hear the Lower Brule case.
"It's troubling. It's disappointing. But it's not surprising," Long said
of the court's decision. "We had a lot invested in this case and wanted
them to take it.
"Sooner or later, there will be one of these cases that gets on
somebody's radar. We hope it's sooner," he said.
Sovereign rights
Jandreau insists the state simply is looking for opportunities to
restrain tribal sovereignty, and the Oacoma trust case is just one
illustration of that.
Lower Brule also was rebuffed in its attempt to have its cattle herd
become part of the state's certified beef program because it would not
waive sovereignty, Jandreau says.
"I said I'll sign any statement you need to come and examine our
processes and ensure yourselves that we are doing everything we need to
do to qualify for the certified beef program," he says. "But we're d**n
sure not going to waive our sovereign immunity.
"We're not interested in trying to do anything that is
counter-productive to the state of South Dakota," Jandreau said. But in
its approach to the tribe, the state is fostering the illusion of a
desire to cooperate with a sovereign entity, he maintains.
"There seems to be this ongoing hand outstretched," Jandreau said. "But
it has this invisible barrier at the tips of the fingers so you cannot
reach forth and grab it."
Lower Brule's land near I-90 now can be taken into trust
PETER HARRIMAN PUBLISHED: October 9, 2006
www.argusleader.com/apps/pbcs.dll/article?AID=2006610090320
<http://www.argusleader.com/apps/pbcs.dll/article?AID=2006610090320>
A 16-year federal litigation that tribes nationwide feared could lead to
a devastating limit on tribal sovereignty might finally be resolved
since the U.S. Supreme Court this week declined to hear the case.
It means an 8th Circuit Court ruling stands, and 91 acres along
Interstate 90 near Oacoma owned by the Lower Brule Sioux Tribe may be
taken into trust for the tribe by the Department of the Interior.
The case arises from South Dakota's effort to block that, going back to
a lawsuit originally filed in federal court in 1990.
The land purchased privately by the tribe and about eight miles from the
Lower Brule reservation would go off the state tax rolls once it becomes
trust land.
Even more important, according to South Dakota Attorney General Larry
Long, if tribes are allowed to establish trust lands outside
reservations, the state loses an important ability to regulate land use.
Long cites an unsuccessful attempt in the 1980s by a private developer
to try to give land to the Oglala Sioux Tribe and get it enrolled in
trust to operate a landfill and avoid state environmental regulations.
He also points to the hog rearing operation that is a partnership
between a North Dakota company, Sun Prairie, and the Rosebud Sioux Tribe
that evades the state anti-corporate farming provision.
"That's got way more to do with what's at issue here than the simple
loss of the real estate tax," Long says.
But in seeking to block Lower Brule's efforts at Oacoma, in its lawsuit
the state questioned the constitutional authority of the federal
government to take land into trust outside the contiguous borders of
reservations.
It was the equivalent of firing a nuclear weapon at a mosquito, say
proponents of tribal sovereignty, and it reverberated through all of
Indian Country.
In an editorial in July, Indian Country Today wrote that "enemies of
tribal sovereignty have targeted land-into-trust as the next Indian
policy to throw into the meat grinder of the U.S. Supreme Court. They
have attacked it from one end of the country to another. So far, they've
failed."
The 1934 Indian Reorganization Act that allows the government to take
land into trust for tribes is the primary tool tribes use to regain
traditional land holdings lost in the 1887 Indian Allotment Act when
reservation lands held in common by a tribe were broken up and assigned
to individual tribal members, who often sold them. Acquiring trust land
off reservations also can be a powerful economic development tool, said
Lower Brule Chairman Michael Jandreau.
To resolve what amounts to a business dispute by attacking the
fundamental principle that allows tribes to reach beyond reservation
borders to establish trust land, the state has shown it still considers
Indian tribes adversaries, Jandreau insists.
"I say this bluntly," he says of the lawsuit. "To me it is nothing but
the social bigotry underlying all treatment of Indian tribes by state
government that is fostered and promoted by the attorney general's
office. In this case, it appears to be supported by the governor of our
state."
Jandreau calls Long's concerns about land use regulation "red herrings,"
and he says the tribe offered to negotiate with the state and Lyman
County about how the tribe would develop the Oacoma land.
Plans for development
With the Supreme Court decision not to hear the case and to let the
appeals court ruling stand, the tribe now will create a development plan
and seek financing. A truck stop and tourist amenities promoting the
Native American Scenic Byway are likely uses for the land, Jandreau
says.
"We need dollars to do that," he says. Tax incentives because the land
is in trust help the tribe garner such funding, Jandreau says.
On its face, negotiating uses for trust land with state and local
government sounds good, but the basic shortcoming, says Long, is the
ambiguity in determining who enforces a negotiated settlement. The
tribe? The Interior Secretary? Someone else?
"Let's assume a deal is made for a piece of ground off the reservation
that it can only be used for a museum. Sometime in the future, the use
changes to a gas station or a casino or a hog-confinement facility. Who
is the individual, the entity who has the responsibility to make sure
the original use is abided by?" Long asks.
In declining to hear the South Dakota case, the Supreme Court adhered to
a pattern of turning down such trust cases. Long notes that the court
decided not to hear a similar case from Utah at the same time it decided
not to hear the Lower Brule case.
"It's troubling. It's disappointing. But it's not surprising," Long said
of the court's decision. "We had a lot invested in this case and wanted
them to take it.
"Sooner or later, there will be one of these cases that gets on
somebody's radar. We hope it's sooner," he said.
Sovereign rights
Jandreau insists the state simply is looking for opportunities to
restrain tribal sovereignty, and the Oacoma trust case is just one
illustration of that.
Lower Brule also was rebuffed in its attempt to have its cattle herd
become part of the state's certified beef program because it would not
waive sovereignty, Jandreau says.
"I said I'll sign any statement you need to come and examine our
processes and ensure yourselves that we are doing everything we need to
do to qualify for the certified beef program," he says. "But we're d**n
sure not going to waive our sovereign immunity.
"We're not interested in trying to do anything that is
counter-productive to the state of South Dakota," Jandreau said. But in
its approach to the tribe, the state is fostering the illusion of a
desire to cooperate with a sovereign entity, he maintains.
"There seems to be this ongoing hand outstretched," Jandreau said. "But
it has this invisible barrier at the tips of the fingers so you cannot
reach forth and grab it."