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Olga Sioux Tribe v. United States Army Corps of Engineers

March 15, 2008

OGLALA SIOUX TRIBE, PLAINTIFF,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

On December 28, 2001, Plaintiff Oglala Sioux Tribe ("Oglala Tribe" or "Tribe") filed this action against the United States Army Corps of Engineers ("Corps"), various Corps officials, and the United States (collectively, "Defendants"). The Oglala Tribe seeks declaratory, injunctive, and mandamus relief relating to Defendants' transfer of lands and recreational areas and/or granting of perpetual leases for recreational areas in the Missouri River Basin to the South Dakota Department of Game, Fish and Parks ("South Dakota"), the Cheyenne River Sioux Tribe, and the Lower Brule Sioux Tribe under Title VI of the Water Resources Development Act of 1999 ("WRDA"), Pub. L. No. 106-53, 113 Stat. 269 (1999), as amended by Pub. L. No. 106-541, 114 Stat. 2572 (2000).

This matter is now before the Court on the parties' responses to the Order to Show Cause issued on July 7, 2003, which directed Plaintiff "to show cause...why this case should not be dismissed for lack of subject matter jurisdiction." 7/7/03 Order at 1 ("Show Cause Order"). Upon consideration of the parties' Responses, the Plaintiff's Reply, and the entire record herein, for the reasons stated below, this case is dismissed.

I. BACKGROUND*fn1

A. Historical Background

The Oglala Sioux Tribe is a distinct band of the Teton Division of the Sioux Nation. The Tribe consists "of approximately 41,000 citizens with territory of over 4,700 square miles in the southwestern portion of South Dakota," which includes portions of the Missouri River basin. 2d Am. Compl. at ¶¶ 2, 14. The Oglala Tribe claims that they have used and occupied some portions of the Missouri River basin "[s]ince time immemorial." Id. at ¶ 14 (including description of relevant portion of the basin).

In 1825, the Tribe entered into a treaty of friendship and protection with the United States. See 7 Stat. 252 ("1825 Treaty"). The Oglala Tribe claims that under the 1825 Treaty, it became a protectorate nation of the United States. See id. at ¶ 18.

In 1851, the Oglala Tribe and the other bands of the Teton Division of the Sioux Nation entered into a treaty which was later ratified by Congress. 11 Stat. 749 ("1851 Treaty"). The 1851 Treaty created a defined territory for the Teton Division bands, which covered much of the area in the Missouri River basin, from the Mississippi River westward. Thereafter, United States citizens began to encroach upon the land set aside for the tribes in the 1851 Treaty.

In 1868, various Sioux bands, including the Teton band, entered into another treaty with the United States in an effort to end the struggle created by this encroachment. 15 Stat. 635 ("1868 Fort Laramie Treaty" or "1868 Treaty"). The 1868 Fort Laramie Treaty was ratified by Congress and proclaimed effective by the President in 1869. Article 2 of the 1868 Treaty designated specific territory for the various Sioux bands within the land defined in the 1851 Treaty, which became known as the Great Sioux Reservation. Under Article 12 of the 1868 Treaty, no future treaties for cessions of land in the Great Sioux Reservation would be valid "unless executed and signed by at least three-fourths of all the adult male Indians, occupying or interested in the [land to be ceded]." 15 Stat. 635, as quoted in United States v. Sioux Nation of Indians, 448 U.S. 371, 376 (1980) ("Sioux Nation").

In 1877, Congress ratified and confirmed a cession agreement--the Act of February 28, 1877, ch. 72, 19 Stat. 254 ("1877 Act")--that was purported to be made between the relevant Sioux bands and commissioners working on behalf of the United States. The 1877 Act ceded over 7 million acres of territory in the western portion of the Great Sioux Reservation, primarily the Black Hills region, to the United States. It was later determined that "the treaty was presented just to Sioux chiefs and their leading men. It was signed by only 10% of the adult male Sioux population[,]" not three-fourths as required by Article 12 of the Fort Laramie Treaty. Sioux Nation, 448 U.S. at 381-82 (ultimately determining that the United States was required to pay interest for the unconstitutional taking of land carried out through the 1877 Act).

In 1889, Congress passed legislation--the Act of March 2, 1889, ch. 405, 25 Stat. 1889 ("1889 Act")--that provided for the further, conditional diminution of the remaining portions of the Great Sioux Reservation. The 1889 Act created six smaller, distinct reservations within the Great Sioux Reservation for the various Sioux bands. In addition, it provided that all of the land not contained in those distinct reservations would be returned to the public domain of the United States and subsequently opened for settlement. However, before the 1889 Act could take effect, Congress required that the United States had to gain the "acceptance and consent" of three-fourths of all the occupying or interested adult Indian males, as required by Article 12 of the Fort Laramie Treaty, which had to be acquired and proclaimed by the President within one year of the Act, after he was presented with "satisfactory proof" of that acceptance and consent. See 1889 Act, § 28.

After Congress passed the 1889 Act, the Secretary of the Interior sent a three-member commission to obtain the required acceptance and consent of the eligible Sioux males ("Sioux Commission"), which the Sioux Commission determined could be provided by the signing of a quit-claim deed. At that time, "5,678 adult male members [of the tribes] were eligible to give consent under article 12 of the 1968 Treaty and section 28 of the 1889 Act, 3,942" such that three-fourths approval would require 4,259 men to give consent. 2d Am. Compl. at ¶ 29. While the Sioux Commission collected 4,463 signatures, they "obtained no more than 3,942 valid signatures on quit claim deeds...[because] at least 512 of those were invalid...[having been provided by] non-Indian persons,...persons of mixed blood,...persons not members of the bands and tribes signatory to the 1868 Treaty,...underage (non-adult) Indian persons,... [and] female[s]," or were duplicate signatures. Id. In addition, the Sioux Commission obtained a "majority of the signatures...through coercion, fraud and bribery." Id. at ¶ 30.

In early 1890, the Sioux Commission submitted a report of its activities to President Benjamin Harrison. See Report and Proceedings of the Sioux Commission, Sen. Exec. Doc. 51, 51st Cong. 1st Sess. (1890) ("Commission Report"). The Commission Report contained a list of the names of each signatory of a quit-claim deed, which when compared with "[t]he census records contained in the [] Commission Report show [] that the Commission failed to obtain signatures from three-fourths of the adult male members eligible to give consent under article 12 of the 1868 Treaty and section 28 of the 1889 Act." 2d Am. Compl. at ¶ 31.

However, on February 10, 1890, President Harrison "proclaim[ed] the acceptance of [the 1889 Act] by the different bands of the Sioux Nation of Indians, and the consent thereto by them as required by the [1889 Act]" and stated that the 1889 Act was "declared to be in full force and effect." 26 Stat. 1554 ("1890 Proclamation"). Thereafter, "approximately one-half [of the Great Sioux Reservation that remained after the 1877 Act] was restored to the public domain...while six separate reservations were carved out of the remainder." Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 589 (1977) (internal quotations and citations omitted) ("Rosebud Sioux"). One of those six reservations is the Piney Ridge Reservation of the Oglala Sioux Tribe.

B. Relevant Legislation Enacted After the 1889 Act

In response to flooding along the Missouri River in the early-to-mid twentieth century, Congress passed the Flood Control Act of 1944 ("FCA"), 33 U.S.C. §§ 701, et seq. The FCA authorized the Missouri River Pick-Sloan Program, which authorized the Corps to develop a comprehensive flood control plan by constructing various dams and reservoirs along the Missouri River. After passing the FCA, "[s]even subsequent Acts of Congress authorized limited takings of Indian lands for hydroelectric and flood control dams on the Missouri River in both North and South Dakota." South Dakota v. Bourland, 508 U.S. 679, 683 (1993). Plaintiff alleges that to complete these various flood control programs, the Corps "acquired land [within the Great Sioux Reservation] by condemnation or by mense conveyance" to which the Oglala Sioux Tribe was not a party, including approximately 105 shoreline recreational areas in South Dakota. 2d Am. Compl. at ¶ 37-38.

More recently, Congress passed new legislation affecting the Corps' management of the Missouri River by passing the Water Resources Development Act ("WRDA"), Pub. L. No. 106-53, 113 Stat. 269 (1999), as amended by Pub. L. No. 106-541, 114 Stat. 2572 (2000). Title VI of the WRDA, Pub. L. No. 106-53, §§ 601-609, called for implementation of a plan to restore terrestrial wildlife habitat that was lost due to flood-control projects along the Missouri River. Specifically, §§ 603-606 directed the Corps to transfer title or grant perpetual leases for recreational areas surrounding FCA projects to the South Dakota Department of Game, Fish and Parks and two other Sioux Tribes. Under Title VI, this transfer was to occur by January 1, 2002. See Pub. L. No. 106-53, § 605(a)(1)(B).

In addition, § 607 of Title VI provided that [n]othing in this title diminishes or affects--(1) any water right of an Indian Tribe; (2) any other right of an Indian Tribe, except as specifically provided in another provision of this title; (3) any treaty right that is in effect on the date of enactment of this Act; (4) any external boundary of an Indian reservation of an Indian Tribe; (5) any authority of the State of South Dakota that relates to the protection, regulation, or management of fish, terrestrial wildlife, and cultural and archaeological resources, except as specifically provided in this title; or (6) any authority of the Secretary, the Secretary of the Interior, or the head of any other Federal agency under a law in effect on the date of enactment of this Act, including--(A) the National Historic Preservation Act (16 U.S.C. 470 et seq.); (B) the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.);...(G) the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.);.... Pub. L. No. 106-53, § 607(a). In particular, the Native American Graves Protection and Repatriation Act ("NAGPRA") "declared ownership or control of Native American human remains, associated and unassociated funerary objects, sacred objects and items of cultural patrimony ('Native American cultural items') ...


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