Land still in limbo after decade-long fight

FROM THE ARCHIVE

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WEDNESDAY, OCTOBER 16, 2002

A federal appeals court last week heard oral arguments in a bitter dispute that has tested government policy aimed at restoring the Indian land base.

Between the years of 1887 and 1934, tribes lost 90 million acres of land to non-Indians. The Lower Brule Sioux Tribe of South Dakota is seeking to reclaim 90 acres and has convinced the federal government on two separate occasions to take the property into trust.

But the state opposes the effort. Or, to be exact, Republican attorney general Mark Barnett, whose bid for governor recently failed, opposes the effort.

Governor Bill Janklow (R), on the other hand, supports the tribe. He didn't at first, though.

Concerned that a casino was in the works, he met with tribal chairman Michael Jandreau to discuss the issue. After a gentleman's agreement -- a handshake, to be exact -- Janklow dropped his objections in late 1998.

But by that time, the state was well into its decade-long assault that has stalled plans to turn the site into a tourist attraction, complete with tipis and a cultural center. The land, purchased for $80,000 in 1990, used to be part of the Lower Brule reservation until it fell into non-Indian hands.

"The tribe's sovereignty is at stake here," Native American Rights Fund attorney Tracy Labin said last week.

Labin was asking the 8th Circuit Court of Appeals to let the tribe intervene in the dispute. She told a three-judge panel that Indian nations need to be involved in matters affecting their rights.

"Having the tribe sit on the sidelines while the United States speaks for it is paternalistic and outmoded," she said at the October 7 hearing. "The tribe belongs at the table."

At first, the Department of Justice backed the intervention. But after a federal judge rejected the tribe's request, Bush administration attorneys refused to support the appeal to the 8th Circuit.

That doesn't mean the government won't stand behind its decision to take the land into trust, a Department of Justice attorney argued. "We have not reversed our position," Judith Rabinowitz said, "nor have we abandoned the tribe."

But the change in stance drew questions from the appeals court panel. "Doesn't it give credence to the tribe's assertion that you may not be willing to give full representation?" asked one judge.

"Like a lot of clients, a tribe wants to be convinced that you are 100 percent for them," the judge continued, "and when you don't support them [on appeal], that confidence might be eroded."

Many in Indian Country have lost confidence in the Department of Interior when it comes to land-into-trust. Amid confusing requirements, bureaucratic red tape and political games, some tribes have waited more than 10 years to hear an answer on their requests.

The South Dakota lawsuit didn't help. Facing Supreme Court review of the key Indian policy, the Clinton administration in 1996 modified its land-into-trust rules and regulations to allow more input by non-Indians.

As a result, "every trust land acquisition by every Indian tribe in America can be held up by state and local government lawsuits," wrote Steve Emery, a tribal law scholar, in a recent critique of Janklow's initial involvement in the matter.

After a two-year effort, the policy was rewritten to balance tribal and state views. But without tribal consultation, the Bush administration last year withdrew the changes and officials haven't offered an alternative.

"This issue goes to our money, it goes to our land," said National Congress of American Indians President Tex Hall. "This is a federal responsibility."

Since 1934, tribes have regained just 5 million acres of the lost land. Currently, the Indian estate is 54 million acres, including 11 million owned by individual Indians.

Recent Court Pleadings:
Opening Brief: Lower Brule Sioux Tribe (2/19) | Brief: State of South Dakota (4/8) | Brief: Department of Justice (4/9) Reply: Lower Brule Sioux Tribe (5/8)