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Appeals court debates S.D. land transfer

A federal appeals court gave a cool reception on Monday to a South Dakota tribe seeking to halt the transfer of culturally significant land along the Missouri River.

The Crow Creek Sioux Tribe opposes the transfer on the grounds that it will harm burial grounds and other important sites. But a three-judge panel of the D.C. Circuit Court of Appeals openly struggled with the complaint, noting that the parcels in dispute were already accepted by the state more than a year ago.

"We're having trouble understanding what the current harm is," said Judge David B. Sentelle.

Peter Capossela, an attorney for the tribe, argued that the land loses federal protections in the hands of the state. The tribe's repatriation and historic preservation rights are lessened under state control, he said.

"That state is out there on the ground," he told the court. "That's the difference."

The case stems from a federal law ushered through Congress in 1999 by Sen. Tom Daschle (D-S.D.) and backed by then-governor Bill Janklow (R), now a Congressman. Contained in an appropriations act, it mandates the transfer of up to 150,000 acres of land to the state and to the Lower Brule Sioux Tribe and the Cheyenne River Sioux Tribe.

At issue yesterday were 60 recreational sites whose deeds the state has accepted. A federal judge last year refused to enjoin the transfer, prompting the appeal to the D.C. Circuit.

Lisa Jones, a Department of Justice attorney representing the U.S. Army Corps of Engineers, said that action mooted the tribe's complaint. She told the court that no violations of the Native American Graves Repatriation Act (NAGPRA) or other historic preservation laws have been claimed.

"Unless there's been some allegation of a violation of those laws, the tribe has no standing," she argued.

Capossela pointed to a separate case where the state and the Corps have failed to protect burial grounds along the Missouri River. The Yankton Sioux Tribe scored a NAGPRA victory last year by preventing construction on a recreational site.

But the judges weren't convinced and said the deeds require the state to follow all applicable laws.

"How could Congress have been clearer?" asked Judge David S. Tatel.

The Rosebud Sioux Tribe of South Dakota and the Mandan, Hidatsa and Arikara Nation of North Dakota have intervened in the case. In addition to the burial site claims, the tribes allege the transfer violates their treaty rights.

The case is Crow Creek Tribe v. White., No. 02-5049. The defendant is Thomas White, the Secretary of the Army, which oversees the Army Corps.

Relevant Links:
Army Corps of Engineers, Omaha District - http://www.nwo.usace.army.mil

Related Stories:
Appeals court hears Sioux land transfer case (3/17)
Judge: S.D. tribe not consulted (7/1)
S.D. tribe pushes return of disputed remains (06/12)
Tribe opposes Missouri River land transfer (8/13)

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