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Court says U.S. can protect tribe's interests
TUESDAY, FEBRUARY 4, 2003

A federal appeals court on Monday rejected a South Dakota tribe's bid to become a party to a 10-year dispute that threatens its land base.

In a unanimous ruling, the 8th Circuit Court of Appeals denied the Lower Brule Sioux Tribe's motion to intervene in a lawsuit over a 91-acre property. A three-judge panel said the tribe failed to show that the federal government isn't able to protect its interests.

"Aside from the purely conjectural conflicts that potentially might arise from conflicting legal duties, the tribe has not identified any specific tribal interest implicated in this litigation that the United States cannot or will not adequately protect," wrote Judge David R. Hansen for the majority.

The government is defending the Bureau of Indian Affairs' decision to take 91 acres of land into trust for the tribe. The state of South Dakota sued more than 10 years ago to prevent the transfer from becoming final.

The tribe argued that it has a right to be a part of the long-running case. "Having the tribe sit on the sidelines while the United States speaks for it is paternalistic and outmoded," Native American Rights Fund (NARF) attorney Tracy Labin said at an October 2002 hearing. "The tribe belongs at the table."

But the appeals court rejected that notion by referring back to the Department of Justice's involvement. "The government placed the land in trust and has doggedly defended that agency determination against South Dakota's attack through several rounds of litigation, including one bout at the Supreme Court," Hansen wrote.

Over the years, the dispute has become a symbol of tribal efforts to restore more than 90 million acres of land that was lost due to the assimilationist policy of allotment. Congress in 1934 authorized the government to take lands into trust but the policy has succeeded only nominally, with 9 million acres restored.

The land in question in the Lower Brule case used to be part of the tribe's reservation. It fell out of Indian ownership but the tribe purchased it in 1990 for $80,000, hoping to turn it into a tourist attraction.

Former governer Bill Janklow (R), now a Congressman, at first opposed the proposal. After meeting with chairman Mike Jandreau, he dropped his objections and the two governments came to an agreement.

South Dakota attorney general Mark Barnett, also a Republican, continued to fight the transfer, though. The dispute made it all the way to the Supreme Court, where Barnett hoped to challenge the very basis of the land-into-trust policy.

But in an 11th hour switch, Interior Secretary Bruce Babbitt avoided the showdown by changing the land regulations to require more input from state and local governments, essentially non-Indians. To the chagrin of tribes, those rules have stuck despite a later effort by the Clinton administration to overhaul them.

Upon taking control of the White House, the Bush administration delayed implementation of the changes. Former assistant secretary Neal McCaleb eventually dropped them altogether. Bush officials have made overtures to tribes about restarting a consultation effort to devise new rules but no concrete advances have been made.

Get the Decision:
STATE OF S. DAKOTA v. US DEP'T OF INTERIOR, No. 01-3611 (8th Cir. February 03, 2003)

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)

Related Stories:
Land still in limbo after decade-long fight (10/16)
The day the Supreme Court said no (10/16)
Janklow sues over tribal jurisdiction (10/10)
Focus on trust reform leaves estate on sideline (03/12)
Land regulations targeted for withdrawal (8/13)
Supreme Court turns down Pequot land case (5/1)
Norton delays land-into-trust regulations (4/16)

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