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Native Sun News: Cheyenne River landowners sue over flooding
Friday, October 19, 2012
Filed Under: Law | National | Trust
More on: cheyenne river sioux, missouri river, native sun news, south dakota
 
The following story was written and reported by Talli Nauman, Native Sun News Health & Environment Editor. All content © Native Sun News.


Oahe Landowners Association members gathered outside the federal courthouse in Sioux Falls after filing suit Oct. 15 for compensation on behalf of thousands who lost land to the Missouri River dam project over half a century ago. In front, plaintiff Raymond Handboy Sr. In back, left to right, plaintiffs’ attorney Judith Zeigler, Diane Booth, Marcella LeBeau, Tonya Davidson, Ria Ducheneaux and Randy Davidson. PHOTO COURTESY/MARVEL HANDBOY

Cheyenne River landowners seek compensation from US
Land flooded by Missouri River damming at center of lawsuit
By Talli Nauman
Native Sun News
Health & Environment Editor

SIOUX FALLS — The Cheyenne River Sioux Tribe’s Oahe Landowners Association filed a lawsuit against the United States on Oct. 15 seeking payment through a class action for private lands taken from Native Americans in the damming of the Missouri River in South Dakota 60 years ago.

“The plaintiffs have brought suit to obtain a declaration that the Individual landowners and their heirs are entitled to compensation for their land that was taken without just compensation, and an accounting to determine the amount of compensation owed,” states the complaint filed in South Dakota U.S. District Court in Sioux Falls.

The 12-year-old federal Cheyenne River Sioux Tribe Equitable Compensation Act provided $290.7 million plus $144 million in back interest to the tribe in recognition that “the federal government did not justify, or fairly compensate the tribe” for the Oahe Dam and Reservoir construction. The ensuing Tribal Equitable Compensation Act (TECA), which the tribal council promulgated with a 9-3 vote on March 9, excludes former landowners, heirs and off-reservation tribal members from eligibility for any further compensation.

Not content with the exclusion clause, members of the non-profit Oahe Landowners Association, established by the tribe with the money from the compensation act, filed the federal claim.

As many as 5,000 fee-land and Indian allotment owners and heirs may be joined to the class action, according to attorney Judith Zeigler.

It was filed on behalf of Cheyenne River Sioux tribal-member landowners in the names of some of the 24 surviving owners of the land taking and one heir: Casimir L. LeBeau, Clarence Mortenson, Raymond Charles Handboy Sr. and Freddie LeBeau.

“The Oahe Dam destroyed more Indian land than any other United States public works project,” the suit alleges. “Over 180 families — 30 percent of the tribal population — were forced to leave their homes and sever the profound cultural connection that they had to the land,” it states.

“The Secretary of the Interior distributed the interest on the trust funds established by the act to the tribe alone, even though nearly half the flooded lands belonged to the Individual Landowners.

“This distribution, and the failure of the defendant (U.S. government) to compensate the individual landowners and their heirs, breached the government’s fiduciary duty and trust obligations. Thus, the individual landowners remain unfairly compensated to this day despite express Congressional recognition that the previous compensation for this taking was grossly inadequate,” it argues.

The tribal resolution for distribution of the funds according to a Tribal Plan “contains no provision for payment to the individual landowners, despite repeated requests by the individual landowners that there be some provision for compensation to them and their heirs,” according to the lawsuit.

“Ostensibly in accordance with the act, which prohibits ‘per capita’ payments to tribal members, the Tribal Plan contains no provision assuring that individual landowners will receive a single cent of the trust fund distribution, even though the individual landowners owned 44 percent of the land that had been taken by the United States, which accounted for nearly 58 percent of the value lost,” the suit says.

The U.S. government is liable for the failure to compensate individual landowners because of its fiduciary duty as a trustee, implicit in the compensation act, it states.

It goes on to recount the legacy of forced relocation since Congress ratified the Flood Control Act of 1944, authorizing the Army Corps of Engineers to develop the Pick-Sloan Project for building six hydroelectric dams in the upper Missouri, including the Oahe Dam, which created one of the largest artificial reservoirs in the United States, stretching nearly from Pierre, S.D., to Bismarck, N.D.

Construction of the Oahe Dam required the Army Corps of Engineers to flood a vast amount of land, approximately 370,000 acres, in North and South Dakota. Over a quarter of this land, 104,492 acres, was owned by the tribe and the individual landowners. Of the 104,492 acres, approximately 46,275 acres consisted of allotted and deeded land held by the individuals. The flooding began in 1948.

Six years passed before any funds were appropriated to compensate for the land. In 1954, Congress authorized payments to the tribe and the individual landowners. “The amount paid, however, was long recognized as grossly disproportionate to the true value of the land taken,” the filing states.

The compensation act specifically notes that “the Oahe Dam and Reservoir project … severely damaged the economy of the tribe and members of the tribe by inundating the fertile, wooded bottom lands of the tribe along the Missouri River that constituted the most productive agricultural and pastoral lands of the tribe and the homeland of the members,” according to the complaint.

A U.S. Senate committee report states that 181 families, or 30 percent of the tribe’s population, were forced to relocate when the Oahe Dam was built. It also notes that “members lost 30,000 head of livestock,” and that this loss would not have happened if river bottom lands had been available to protect the animals.

The report also states that neither the tribe nor its members received the benefits of irrigation that others did as a result of the dam-building project.

The complaint calls for: an order certifying the named plaintiffs as representatives of classes consisting of the original owners of land that was taken by the federal government to construct the Oahe Dam and Lake Oahe, as well as the heirs of the original owners; a decree construing defendant’s trust obligations to plaintiffs and the members of the various classes, declaring that defendant has breached its trust obligations; an acknowledgement that failure to distribute monies from the trust fund to the individual landowners and their heirs is a breach of defendant’s common law fiduciary duty; a statement that defendant has not provided plaintiffs and members of the class with a full and complete accounting of their trust funds; an order to make an accounting of the trust funds owed to the individual landowners and their heirs; fees and costs; and “any such further relief the court deems just and equitable.”

(Contact Talli Nauman at talli.nauman@gmail.com)


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