SCAM...SCAM...SCAM...SCAM...SCAM...SCAM...SCAM MARIO GONZALEZNATIVE SUN NEWS: It’s been 36 years since you filed the federal court case to stop the payment of the Black Hills Claim award to the Oglala Sioux Tribe. Many people who weren't born or were small children then, are very misinformed about the Black Hills Claim. Can you explain the legal process that led up to the 1980 Supreme Court case? MARIO GONZALEZ: Under the 1946 Indian Claims Commission Act, the Sioux tribes were compelled to file their treaty land claims within 5 years. The Commission, however, was only authorized to award monetary compensation for the lands. The Sioux tribes filed their treaty land claims in the ICC as Docket 74 in 1951. Twenty-three years later, in 1974, the ICC awarded the Sioux tribe $102 million for the Black Hills. The Court of Claims, however, dismissed the $102 million award on appeal in 1975. So there was no Black Hills case in court from 1975 to 1978. In 1978, the tribe’s claims attorneys got Congress to pass a Special Jurisdictional Act that authorized the Court of Claims to hear the Black Hills Claim. The Court of Claims heard the case de novo and affirmed the 1974 ICC award for $102 million, and the U.S. Supreme Court affirmed it on June 30, 1980. NSN: Why did the Oglala Sioux Tribe file its own Black Hills Claim in 1980? MG: Many Indian tribes lost title to their treaty lands to the United States, not in the 1800s, but in the 1900s when they were paid monetary compensation for their lands through the Indian Claims Commission. The Oglala Sioux Tribe was concerned that if it was paid for the Black Hills after the June 30, 1980 Supreme Court case, it would forever lose its treaty title to the Black Hills. The Tribe authorized me to take whatever action was necessary to protect its interests. So I filed a civil complaint in U.S. District Court at Rapid City on July 18, 1980, to quiet title to all the land confiscated by the 1877 Black Hills Act, plus $11 billion in damages for the severance and removal of non-renewable resources, gold, silver, etc., and for denying the Tribe access and use of the Black Hills for over 100 years. Four days later, on July 22, 1980, the United States paid the Sioux tribes $102 million for the Black Hills, except for the Oglala Sioux Tribe. I filed a motion for injunctive relief to enjoin the Government from paying any of the Black Hills money to the Oglala Sioux Tribe. The Government was enjoined for two years pursuant to a stipulation between the parties, until 1982, while the Tribe appealed its case to the U.S. Supreme Court. NSN: How was the Oglala Sioux Tribe’s case resolved in the Supreme Court? MG: The Eighth Circuit Court of Appeals ruled that the federal courts lacked jurisdiction to return land to Indian tribes, and that the ICC was the Tribe’s “exclusive remedy.” The ICC, however, was only authorized to award monetary compensation for tribal lands, and the life of the ICC expired in 1978. NSN: What was the legal basis for the Oglala Sioux Tribe’s federal court complaint? MG: That the 1877 Black Hills Act was unconstitutional because it violated the due process and public purpose clauses of the Fifth Amendment, and the 1868 Treaty. And the U.S. District Court had a duty to declare the 1877 Act unconstitutional under a Supreme Court case called Marbury v. Madison. NSN: Why didn't the other tribes join in the Oglala lawsuit? MG: Because the Oglala Sioux Tribe had to act fast to prevent the Tribe’s title to the Black Hillsfrom being extinguished. I filed the Tribe’s lawsuit just four days before the money was paid to the Sioux tribes and deposited in their U.S. Treasury trust accounts. Also, unlike the other Sioux tribes, the Oglala Sioux Tribe was in a unique position to assert its claim to the Black Hills in 1980. Its contract with its claims attorney Arthur Lazarus, Jr. expired in 1977, and the claims attorney failed to get the Tribe’s authorization to file a new claim on its behalf under a 1978 Special Jurisdictional Act. Mr. Lazarus had nether a government approved attorney’s contract nor tribal authorization to include the Oglala Sioux Tribe as a party in the Court of Claims case he filed under the 1978 Act. So the Tribe asserted in its U.S. District Court complaint that it wasn't a party to the 1980 Supreme Court case, and that it was free to file an action to quiet title to the Black Hills, and for damages. This is why I was able to say in newspaper and radio interviews in 1980 that “the Black Hills were not for sale” when I filed the case. NSN: Why didn't the Federal Government distribute the $102 million award to the other Sioux Tribes after they were paid for the Black Hills in 1980? MG: Under the 1973 Judgment Funds Act the Government had only six months to come up with a secretarial plan to distribute the $102 million award, minus 10% attorney’s fees. Because the Oglala Sioux Tribe’s case was in court for two years, the Government was unable to distribute the money within the six month period. The 1973 Act also requires an agreement on the division and distribution of funds when two or more tribes are determined to be beneficiaries. If no agreement can be reached, Congress will have to pass new legislation to authorize the distribution of the funds. The Oglala Sioux Tribe, and the other Sioux tribes, have continually rejected the distribution of the $102 million award since the 1980s, and have demanded that any legislation passed by Congress must include the restoration of federally lands to the Sioux tribes. NSN: Is there any precedent where the Federal Government returned lands to Indian tribes? MG: Yes, President Richard Nixon in his July 8, 1970 message to Congress supported the return of federally held lands in the Kit Carson National Forest in New Mexico to the Taos Indians. Congress subsequently returned 50,000 acres to the Taos Indians. There is no reason why federally held lands in the Black Hills cannot likewise be returned to the Sioux tribes. NSN: What is the current status of the Black Hills Claim? MG: Either the Government’s going to introduce legislation in Congress to distribute the $102 million monetary award -- which has now grown with interest to over $1.3 billion -- or the Sioux tribes are going to introduce their own legislation to restore federally lands to the tribes. Primarily because of the Oglala Sioux Tribe’s 1980 lawsuit, and all the Sioux tribes’ continuous rejection of the Black Hills claims money, the Sioux tribes have been postured in the best position they have been in since 1877 to have federally held lands in the Black Hills returned to them. In May, 2008, the Obama Campaign issued a policy statement that the Sioux tribes should not be forced to accept the $102 million Black Hills award, and that President Obama supported government-to-government collaborative talks between the parties to explore innovative solutions to resolve the Black Hills Claim. Unfortunately, the tribes never responded to Obama’s policy statement. But there is still a small window of opportunity to respond before Obama leaves office. The Oglala Sioux Tribal Council appointed Dr. Elgin Bad Wound, William Means and Richard Broken Nose as the Tribe’s new delegates to the Black Hills Sioux Nation Council to replace Oliver Red Cloud, Reginald Cedar Face and Johnson Holy Rock, who are now deceased. Leonard Little Finger and Richard Moves Camp were appointed as spiritual advisors to the Council. The Black Hills Sioux Nation Council delegates are now preparing a response to the policy statement and are formulating innovative solutions to resolve the Black Hills Claim. NSN: What obstacles currently exist to prevent the Oglala Sioux Tribe from resolving the Black Hills Claim? MG: The biggest obstacle is the lack of knowledge and understanding of the Sioux land claims on the part of many tribal officials and tribal members. In the 1980s, opposition from Senator Tom Daschle and the Open Hills Association, and S.D. state officials, was a major obstacle. The western states were claiming, and still are claiming, that all federally held land in each state are held in trust by the United States for that state, and thatCongress must eventually transfer all of these lands to the states. Senator Bradley of New Jerseyeventually sponsored a bill for the Sioux tribes to return federally held lands in the Black Hills to the Sioux tribes because of opposition from Senator Daschle and others. Another obstacle is the officious intermeddling of a few non-tribal members in the internal affairs of the Oglala Sioux Tribe who, instead of working with their own tribes to resolve the Sioux land claims, continually criticize the Oglala Sioux Tribe, the Tribe’s new Black Hills Sioux Nation Council delegates, and me, for preparing a response to President Obama’s 2008 Policy Statement. Their solution is to sit back and do nothing, and rhetorically say over and over that “the Black Hills are not for sale.” There will eventually be a bill drafted by the BIA that is introduced in Congress to distribute the Black Hills Claim money if the Sioux tribes fail to act. All you have to do is see what happened to the Western Shoshone in 2004 when Senator Harry Reid got Congress to pass an Act that forced the distribution of their ICC claims money to them in per capita payments. The Tribe’s new delegates to the Black Hills Sioux Nation Council, and their spiritual advisors, need to move ahead and do what’s right for the tribal membership and the next seven generations of all the Sioux people. It’s a sacred obligation. (Mario Gonzalez can be reached at Gnzlaw@aol.com)