The following story was written and reported by Evelyn Red Lodge. All content © Native Sun News.

SIOUX FALLS, SOUTH DAKOTA –– Last week marked a critical event in the Black Hills Claims saga – with the dismissal of the lawsuit which may have forced Sioux tribes to accept money in exchange for the sacred land.

A class action complaint was filed in South Dakota Southern Division Federal Court in early 2009. The plaintiffs, Kenneth G. Different Horse, et al, include 19 tribal members from eight Sioux tribes.

According to court documents, they brought suit against defendants Kenneth Salazar, Secretary of Interior and Donna M. Erwin, Special Trustee seeking judgment to distribute [ceded] treaty land compensation money to individual tribal members. The Rosebud Sioux Tribe intervened in the suit seeking dismissal on the grounds that if money is accepted, it would seriously jeopardize the return of the [questionably ceded] Black Hills to Sioux Tribes.

Background documents say the plaintiffs’ claim goes back to a 1950 petition the Sioux Nation brought to the Indian Claims Commission (ICC). The petition contained basically two allegations: treaty violations, uncompensated taking of the Black Hills. Further, in 1960, the ICC separated the claims into what has become known as Docket 74-A and Docket 74-B.

Documents continue that Docket 74-A alleged the “Sioux Tribe of Indians had been paid an inadequate amount of money for the land it ceded to the United States under the [Fort Laramie] 1868 Treaty.” Eventually, 74-A went to the Court of Claims who entered a judgment for the Sioux Tribes in the amount of $40 million.

However, Oglala Sioux Tribe Attorney, Mario Gonzalez, added some history about 74-A in a published essay entitled, Why the Docket 74-A must be rejected. He recounts that in 1985 74-A was terminated in the Court of Claims. “The Oglala Sioux Tribe appealed the Court’s decision to the Federal Circuit which reversed and vacated the judgment. The Federal Circuit, however, [suggested] to the Sioux Tribes’ claim attorneys: ‘The parties may be able to stipulate the total dollar amount of various categories of offset to which the government is entitled. If the parties can so stipulate. This may be action that the counsel for the Sioux Tribe can take as part of the normal conduct of litigation without the necessity of obtaining the approval of the clients.’”

Gonzalez also said the attorneys took the advice and signed a settlement which “gave away 48 million acres of Sioux territory for [$40 million]. They also gave away $3.7 million of the awards to the government offset” without the knowledge of the Sioux Tribes.

As for 74-B, the recent court documents explain, “The Court of Claims affirmed the order if the [ICC] that the 1877 [Act], which took the Black Hills while claiming to implement an ‘agreement’ whereby it was claimed the Sioux relinquished their rights to the Black Hills.” In addition, the ‘agreement’ provided no compensation for the taking.”

Eventually, the Supreme Court agreed that the 1877 Act was an unconstitutional taking and as of 1980, the sum was calculated to be nearly $106 million. However, documents say the sum “has been stated to subsequently exceed $650 million.” Some tribal officials say it is close to $1 billion. Most tribes are reluctant to let their tribal members know the exact amount.

Since the judgment of Dockets 74-A and B, no money has been distributed, and Gonzalez explained why? “I have maintained all along that the plaintiffs [as individuals] have no standing to bring a lawsuit for distribution of Sioux land claims money. The money can only be distributed under the 1973 Act which requires a secretarial [Secretary of the Interior] plan and also requires all the consent of all the tribes involved in the land claims.”

However, the Sioux tribes can formulate and present their own legislative proposal to congress to resolve the claims. The tribes have, in fact, been working through the He Sapa Reparation Alliance to set up a process for the Sioux Tribes to enter into negotiations with the U.S. government to resolve the claims.

The Alliance was formed to respond to President Obama’s campaign statement that his administration is agreeable to negotiate with the tribes on a government-to-government basis to find solutions to resolve these claims. In that same statement President Obama stated that he would not support any forced distribution for land claims.”

The Different Horse suit was a class action suit of individual tribal members. Federal District Judge Lawrence L. Piersol found that under “Federal Rule of Civil Procedure ‘No individual Indian has title or enforceable right in tribal property.’”

He explained, “The Sioux Tribes have not waved their sovereign immunity. Accordingly, this Court has no jurisdiction over the Sioux Tribes. The fact remains that resolution by the Courts is at an end. If there is to be any result other than the current stalemate, then it must come from tribal government and the Congress of the United States.”

(Contact Evelyn Red Lodge at welakota@yahoo.com)