South Dakota Gov. Dennis Daugaard (R) discussed Indian health and Medicaid expansion plans during his State of the State address on January 12, 2016. Photo from South Dakota State News

State files to stop Pe' Sla to trust
By Brandon Ecoffey
Lakota Country Times Editor
www.lakotacountrytimes.com

PINE RIDGE-- Although South Dakota Governor Dennis Daugaard's most recent comments to the Rosebud Sioux Tribal Council regarding Pe' Sla have grabbed the headlines, it is the legal filings in the matter that illuminate the state's opposition to the land being transferred into trust status.

The opposition filed by the state did not include any reference to the treaty relationship that exists between the federal government and tribes, nor did it mention the cultural significance of the site to Lakota people

“Please accept and consider this letter as the State of South Dakota’s opposition to the acquisition in trust of land referred to as Pe’ Sla...” and with that began the legal argument presented by representatives of South Dakota Gov. Dennis Daugaard’s administration against efforts by local tribes to place one of their most ancient sacred sites in federal trust.

Prior to making its case against tribal efforts to place land into trust the state felt it necessary to address concerns that use of the land by tribal members would be restricted if left in control of the state South Dakota.

“At the outset, it is important to make clear that the State is confident that by filing this opposition, the Tribes and their members will not be kept from utilizing Pe’ Sla as a Sacred Site,” wrote the state.

In a September 2015 filing addressed to the Bureau of Indian Affairs' Great Plains Regional Director the State of South Dakota unveiled its legal strategy and philosophical underpinnings of their resistance to Pe’ Sla being placed under the control of the federal government.

Pe’ Sla has been a gathering site for Lakota people for thousands of years. Each year ceremonies that are essential to the continued existence of Lakota way of life are performed by tribal-citizens on a peak located in the Black Hills of South Dakota.

In 2012 the approximately the 2000 acres that hosts the site was put up for auction by non-Native owners who placed a $9 million bounty on the land. Lakota people were made aware of the effort to sell the land by a crowdfunding effort by the independent journalism site LastRealIndians.com who also broke the story.

The Rosebud, Crow Creek, Standing Rock and Shakopee Mdewakanton Sioux nations would purchase the property and begin taking steps to place the land into federal trust. Land in federal trust is property where the federal government holds legal title to the land but the beneficial interest remains with a tribal-nation.

For tribes the placement of the land into trust prevents the state from collecting property taxes but does present with it a number of jurisdictional issues as enforcement of laws on the land would then become a federal responsibility. Tribal-nations have long argued that as part of the federal trust relationship between the federal government and tribal-nations that necessary resources to maintain such land is the responsibility of the United States government. Trust status would also free tribal members of petty harassment by local law enforcement officials who would lose the right to enforce state and county law on the property.

Last month the Bureau of Indian Affairs announced that the tribes’ request to place the land into federal trust status had been approved however resistance from the State of South Dakota have halted these efforts.

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The letter addressed to the Great Plains Regional office signed by Assistant Attorney General Matt Naasz is filled with legal technicalities that fail to take into consideration the cultural needs of Lakota people and a treaty-relationship between tribes and the federal government.

In the filing the State argues four main points including arguments that the Great Plains Regional Director does not have the authority to be the initial decision maker on this application, the Indian Reorganization Act is not the proper vehicle for placing this land into trust, and that the relevant criteria do not weigh in favor of taking the property into trust. The details of the arguments are blanketed with legal terminology but the motivations behind the arguments are apparent in the text.

The state’s argument against the transfer comes down to a question of whether multiple tribes can legally take the land into trust as part of a coalition. The state contends that the process of placing land in trust can only be done by individual tribes. In line with this argument the state also raises concern over who will be held legally liable for civil costs accrued on the land and if an agreement was finalized on law enforcement.

Additionally, the state expressed worries that the distance between the four the tribal-nations and the site was too great for tribes to demonstrate a need for the property to be entered into trust.

“The Rosebud Reservation is the closest reservation to Pe’ Sla, 170 miles away. This distance requires the Secretary to give great scrutiny to the justification for taking this property into trust. In light of the scrutiny to be provided to the Tribes’ justification for acquiring Pe’ Sla into trust, when compared to the issues raised by the State in this letter, it is clear the Pe’ Sla should not be moved into trust at this time,” the State wrote in the letter.

The opposition filed by the state did not include any reference to the treaty relationship that exists between the federal government and tribes, nor did it mention the cultural significance of the site to Lakota people.

(Contact Brandon Ecoffey at editor@lakotacountrytimes.com)

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