PIERRE, S.D. (AP) – Members of eight Sioux tribes should be given their share of hundreds of millions of dollars awarded in old court cases for the improper taking of the Black Hills, according to a lawsuit filed in federal court in South Dakota.
Even though the Sioux tribes have refused the money and have continued to demand the return of the land in southwestern South Dakota, the courts cannot give back that land, the lawsuit says.
The only remedy available for the loss of the Black Hills is money, said Wanda L. Howey-Fox of Yankton, one of the lawyers who filed the class-action lawsuit.
Howey-Fox said tribal members are wrong if they believe taking the money amounts to selling the Black Hills.
“There is no selling to be done because the court determined it was an improper taking and all the court can give as far as a remedy is money,” Howey-Fox said. “They can sit and hope and pine away that the government is going to give the Black Hills back, but that is never going to happen.”
But Charlotte Black Elk, who has been active in traditional issues including the Black Hills, said she would never consider taking money for the Black Hills, which the Sioux hold sacred.
“To take the money would bless the theft,” said Black Elk, who lives on the Pine Ridge Indian Reservation.
“This is obviously a move by people who just want a check,” Black Elk said of the lawsuit. “I believe some of them are not fully aware of the significance of the Black Hills and what taking money for it would mean.”
Black Elk and Mario Gonzalez, a lawyer for the Oglala Sioux Tribe, said they believe federal law prevents a court from ordering federal officials to disburse money from the old court cases. Congress would have to approve any spending of the money, they said.
The dispute is more than 130 years old.
In an 1868 treaty, the United States government agreed the Black Hills would be set aside for use by the Sioux. After gold was discovered there, miners and other fortune-seekers flocked to the area. That led to military battles that culminated in George Custer’s defeat at the Little Big Horn in 1876.
When the Sioux refused to sign a new treaty giving up the Black Hills, Congress passed a law taking the land in 1877.
The U.S. Supreme Court in 1980 upheld a lower court ruling that awarded eight Sioux tribes $106 million in compensation, the 1877 value of $17.5 million plus interest. The justices said the government had to pay for taking the tribal property.
However, all the Sioux tribes have refused to take the money, insisting instead on the return of the land.
The lawsuit, filed in federal court in Sioux Falls, also seeks the distribution of money from another case that awarded the Sioux compensation for the taking of timber, water and mineral rights in the Black Hills.
The lawsuit asks a federal judge to decide how to allocate the money among tribal members and to order the U.S. Interior Department to release the money from trust funds.
Howey-Fox, the lawyer for those filing the lawsuit, said the court rulings that awarded money for the Black Hills are final and cannot be appealed. That means money is the only remedy tribal members can get for the loss of the land, she said.
The trust funds recently held about $900 million, she said.
The lawsuit lists only 19 plaintiffs, but Howey-Fox said about 5,000 tribal members have signed up. Many who live on reservations do not want to be named plaintiffs because they fear retribution from those who oppose taking money for the Black Hills, she said.
Howey-Fox said the money should be disbursed to individual tribal members.
“There are people who actually think the Black Hills are coming back. I can pretty much guarantee that’s not happening,” Howey-Fox said.
Gonzalez, who has represented the Oglala Sioux Tribe for several decades in legal issues involving the Black Hills, said he expects the lawsuit will be dismissed under a federal law dealing with the disbursement of such funds. The tribes refused to accept the money during the time allotted, so the Interior Department can now disburse the funds only with the approval of Congress, he said.
Black Elk said tribal members who agree to take the money would be giving up their identities as Indians. Anyone who wants money for the Black Hills should not live on the reservations, she said.
“You’re not just taking money. You’re prostituting yourself,” Black Elk said.
The eight tribes listed in the lawsuit are the Crow Creek Sioux, Cheyenne River Sioux., Standing Rock Sioux, Lower Brule Sioux, Rosebud Sioux, Oglala Sioux, Fort Peck Sioux and Santee Sioux.