Rosebud Tribe battles Black Hills lawsuit

By Rob Capriccioso
Indian Country Today, Oneida, N.Y.
(MCT)

WASHINGTON — Rosebud tribal leaders are asking for time to work out an agreement with the Obama administration and Congress before any courts decide to dole out a decades-old financial settlement for the federal government's historic plunder of Sioux lands in the Black Hills region of the Great Plains.

Chairman Rodney Bordeaux said his tribe and other Sioux leaders may be able to work with the government to get their lands back, instead of money.

He said the tribe mentioned the issue specifically to President Barack Obama when he campaigned on the reservation last year. A fellow tribal member, Wizipan Garriott, now works as a special assistant in the Department of the Interior and served on Obama's transition team.

''We keep the lines of communication open," Bordeaux said, adding that he is excited for the administration to appoint a long-promised White House senior advisor on Native affairs. "And there is no reason not to have hope."

Bordeaux' hope is rooted in history. The U.S. government agreed in an 1868 treaty that the Black Hills would be set aside for use by the Sioux. But after gold was discovered there, the government soon changed its tune, and Congress passed a law taking the land in 1877.

The tribal government's concern over a financial settlement has been piqued as a result of a new lawsuit, filed in federal court in Sioux Falls, S.D. It seeks to circumvent the tribal government and get money directly awarded to individual tribal members.

The tribe's council passed a resolution last year, which states that the Rosebud Sioux Tribe has not authorized, approved, or consented to any lawsuit filed by individuals to seek Black Hills settlement funds.

The council has now authorized funds for legal services to file the appropriate opposition to the lawsuit on behalf of the tribe.

Lawyer Wanda L. Howey-Fox, who represents the tribal members trying to receive a financial settlement, said the best that can be done is to get money. According to the lawsuit, courts cannot give back the land the Rosebud Tribe and other Sioux tribes claim as their own.

''We don't think they have a chance," Bordeaux said of the tribal members who are suing. "But you never know with this federal court system anymore."

The suit stems from a ruling by the Supreme Court in 1980, which upheld a lower court ruling that awarded eight Sioux tribes $106 million for Black Hills lands that had been wrongfully poached by the federal government.

The award was equal to the 1877 value of the land plus $17.5 million plus interest. Trust funds held for the tribes by the Department of the Interior now contain about $900 million, according to lawyers for the tribal members.

The lawsuit seeks a federal judge to decide how to distribute the money to individual tribal members from Interior's trust funds.

Since the Supreme Court's decision, all of the Sioux tribes have refused to take the money, instead insisting on the return of their lands.

The lawsuit, which officially lists only 19 tribal plaintiffs, is a class-action suit with approximately 5,000 tribal members signed on, according to Howey-Fox. She said that some fear retribution from tribal governments for taking part in the case.

Bordeaux and other tribal leaders and members believe it is irrelevant what the lawsuit says the courts can do in terms of land. They say that both Congress and the Obama administration can help them get back the land they view as rightfully theirs.

The issue has already been raised many times to Congress members, including Sen. Byron Dorgan, D-N.D., who chairs the Senate Committee on Indian Affairs.

''They've listened, and they say they want to uphold treaties," Bordeaux said. "But when push comes to shove and we start asking for our lands back, then you find out how supportive they really are."

The Rosebud Sioux Tribe has long refused a financial settlement, partially because leaders did not want to be seen as ceding their treaty rights in any manner.

Accepting the monetary award for the Black Hills, Bordeaux said, could forever extinguish the claim of the Sioux nations to the return of any land in the Black Hills.

He also noted that Sioux Nation member tribes do not seek return of all the Black Hills, only lands under federal ownership. He added that there would be no retribution against tribal members involved in the suit.

''I do think they are being shortsighted and going against the wishes of their forefathers and ancestors. But it's not a position that is shared by a vast majority of our members."

Tribal legal officials are already arguing that federal law prevents a court from ordering federal officials to disburse money from the old court cases. They say that because the tribes refused to accept the money during an allotted time period, the Interior can now only disburse the funds with the approval of Congress.

Beyond legal arguments, some tribal members have said that taking the money would amount to blessing the theft of tribal lands.