South Dakota

Suit Seeks Land Payment

By Peter Harriman, Argus Leader
June 2, 2003

Tribe wants money for Fort Randall Dam

The landmark Cobell v. Norton lawsuit disclosed the longstanding mismanagement of approximately 500,000 individual Indians’ trust accounts worth billions of dollars by the Department of the Interior’s Bureau of Indian Affairs.

Now a suit scheduled to be filed in federal district court in Washington, D.C., on May 30 on behalf of the Yankton Sioux Tribe seeks to show the same BIA mismanagement of trust assets owned by tribes.

At issue is payment for Yankton tribal land flooded when the Fort Randall Dam was completed in 1956 to create Lake Francis Case. In addition, the tribe wants a percentage of revenue from hydroelectric power generated by the dam, according to Sherwyn Zephier, a Marty Indian School art teacher and Yankton tribal member who promoted the suit. The Army Corps of Engineers estimates the dam produces about $30 million in hydroelectric revenue annually.

But that might be just the beginning. There is a possibility the litigation could encompass tribal trusts nationwide. The Yanktons’ lawsuit was filed by Los Angeles lawyer Gary Frischer and Jeffrey Herman, of Herman and Mermelstein, of Hollywood, Fla. Now Frischer will be spending most of the next month in South Dakota, North Dakota and Nebraska, trying to interest other tribes at reservations such as Pine Ridge, Standing Rock and Cheyenne River in filing similar suits.

“I’ve got a full calendar next month,” Frischer says.

Frischer went to the

Yankton tribal council with the proposed suit about two months ago and made a presentation of the issue to tribal members. By a 90 percent referendum vote, the tribe decided to go forward with the suit, he says. Frischer says he litigated multi-district class action lawsuits 23 times with famed San Francisco lawyer Melvin Belli, who died in 1996.

“Mel and I pioneered this field,” Frischer says.

Frischer and Herman earlier this year filed a $25 billion lawsuit against the federal government for setting up Indian boarding schools in South Dakota, Arizona, Utah New Mexico, Minnesota and California where Indian students were physically abused. Zephier is a plaintiff in that suit. Frischer says a similar suit against the Roman Catholic Church will be filed this month. Frischer estimated that there are 300,000 former boarding school students still living. “I have a feeling between 25,000 and 50,000 people will be a part” of those class action suits, he says.

Frischer’s expertise and reputation prompted Zephier to bring his concerns about Yankton tribal trusts.

“I knew it would take a law firm really skilled in this particular area,” he says.

Frischer says he is a newcomer to tribal trust issues, but Zephier says, “I grew up around it. My father was the Yankton Sioux Tribe’s first vice chairman. All my life I was aware of everything happening politically with the tribe. That was instilled in me my entire life. Since my father has passed away, I’ve picked up the torch. I proposed the suit to Gary, and it went from there.”

Frischer says he became convinced tribal trust concerns were worthy of litigation when he began to hear “hundreds of stories” like Zephier’s while he was interviewing people for the boarding school abuse suit.

The Yanktons’ lawsuit asks for a declaration that the BIA and Secretary of the Treasury have failed to give a complete accounting of tribal trust funds, as required by law. It asks for an injunction requiring the defendants to provide that comprehensive accounting. It also requests lawyer fees and “other relief as may be just and equitable.”

Frischer says he and Herman are taking the case on a contingency basis.

“This doesn’t cost the tribe anything up front. In our world, it’s all contingency. The better we do for them, the better we do for us. But it’s all our risk,” Frischer says.

“There is some overdue justice, some accounting due and some accountability,” Zephier says. “We would like to know where our money went.”

The Fort Randall Dam, he says, “was built illegally on our land. There was no agreement with our tribe. There was an agreement between the Corps and the BIA, one government agency to another. But there was no negotiation with the tribe.”

The Cobell suit, filed in 1996 by Eloise Cobell, treasurer of Montana’s Blackfeet tribe, is the catalyst for ongoing efforts to do a sweeping reform of the way the federal government carries out its fiduciary responsibility to Indians whose land and natural resources it has managed in trust since 1903. It also seeks to correct gross accounting and recordskeeping errors in Individual Indian money accounts, and missed payments to those accounts that total at least $2 billion, and possibly much more.

While the trust mismanagement issues in the Yanktons’ suit are allied with those in the Cobell litigation, Frischer hopes the two won’t be combined.

“It could happen,” he acknowledges, “but we hope not. Our suit is a little bit different.

“Cobell is for individuals. This is for the tribe, the land that is held in common.

“I think we’re going to stay out of the Cobell thing.”

New Gaming Compacts Bar Tribal Political Gifts

By Terry Woster, Argus Leader
June 18, 2001

Lawmaker argues provision inappropriate, but tribes not taking issue with it

PIERRE — Local governments in South Dakota are barred from using public money to influence elections, and American Indian tribes should be, too, language in new gaming compacts between the state and tribes says.

Seven of the eight South Dakota tribes that operate casinos have agreed to that restriction in recently negotiated compacts, says Bob Mercer, who works on the reservation gaming issue for Gov. Bill Janklow.

“The governor’s position simply is that no government can speak for all its citizens, so it shouldn’t be using public money to influence political decisions,” Mercer said during a recent hearing on the new compact with the Crow Creek Sioux Tribe at Fort Thompson. “That puts them on the same plane as city, county or school boards. They’re all prohibited from doing that.”

However Sen. Ron Volesky, D-Huron, took issue with Janklow’s characterization of tribal governments.

“They’re sovereign nations, if you want to argue what they are,” Volesky said. “They’re not county governments, and they’re not city councils; they’re sovereign nations.”

Jennifer Fyten, lawyer for the Flandreau Santee Sioux Tribe, said most South Dakota tribes don’t have the income to put much into political campaigns. That’s a phenomenon that has developed in states where the tribal casinos have been wildly successful, she said.

“I can’t speak for the other tribes, but from Flandreau’s standpoint, we have much bigger concerns to worry about for services for our people than contributing to campaigns. We’re trying to take care of things at home.”

Volesky said Janklow raised the issue as a smoke screen to try to undercut the political influence American Indians might exert.

“Quite frankly, that political influence is long overdue,” Volesky said. The gaming compacts should be confined to issues specifically related to that industry, he said. “To bring in another subject matter such as political contributions is not appropriate. If he wants to address those issues, he should do it in a separate forum.”

The new language isn’t a sticking point for the tribes, said Terry Marks, secretary of the Crow Creek Gaming Commission.

“We don’t have a problem with that,” he said. “It isn’t going to affect us.”

The only tribe with a casino that hasn’t included the language in a new compact is Standing Rock, and negotiations have just begun over a compact with that tribe, Mercer said. He also said the U.S. Department of Interior, which must agree to compacts, has accepted the language in the five agreements it has acted on so far. The federal agency said the limit doesn’t prohibit voter education or other nonpartisan activities.

Nationally, tribal contributions have increased considerably, especially since the passage of the 1988 Indian Gaming Act that opened the way for reservation casinos. The Center for Responsive Politics, a group that tracks campaign financing, says contributions from Indian gaming sources have increased from about $117,871 in 1992 to $2,827,682 last year. Between 1992 and 1996, the center said, contributions from Indian gaming grew from 8 percent of total gaming contributions to 26 percent of those contributions.

“In 1996, Democrats received 87 percent of Indian gaming contributions, while they received only 47 percent of non-Indian gaming contributions,” the center said in a study posted on its Web site.

Breakouts of South Dakota activity aren’t available, but a glance at campaign spending reports showed a few donations from tribes to candidates. For example, Elsie Meeks, Democrat candidate for lieutenant governor in 1998, listed a $1,000 contribution from the Oglala Sioux Tribe. Tom Van Norman, a Democrat who won a House seat from Eagle Butte in 2000, reported $5,000 from the Cheyenne River Sioux Tribe. Cheyenne River is the only reservation in the state without a casino.

The campaign reports in Secretary of State Joyce Hazeltine’s office show contributions to a few legislative candidates from some out-of-state tribes, usually for $250 or so. Among the tribes listed are the Mille Lacs Band of Onamie, Minn., Mississippi Choctaw from Philadelphia, Miss., and Oneida Nation from New York.

“It isn’t frequent, but a few tribes have given money directly to candidates,” said Chris Nelson, Hazeltine’s election supervisor.

Election laws don’t prohibit such contributions, he said. “They aren’t really corporations, and they aren’t individuals.”

State and local governments generally are bound by the principle that public money can be used only for public purposes, although state law seems to lack a single, specific statute that says that.

“As a general proposition, they can’t use money for campaigns, for candidates or issues,” says Larry Long, deputy attorney general. “You can find that principle in a variety of contexts.”

Those contexts include Supreme Court and circuit court decisions and past attorney general rulings, he said.

A 1941 Supreme Court decision in a Beadle County case, for example, said the county couldn’t use money to influence an election.

A 1988 opinion by then-Atty. Gen. Roger Tellinghuisen encompasses cities, counties and school districts and says they can’t use public tax dollars to influence elections.

“The government should not take sides in election contests or bestow an unfair advantage on one of several competing factions,” that opinion said. Noting that the state constitution guarantees that elections shall be free and equal, the Tellinghuisen opinion included this passage:

“Further, the use of public tax dollars for purposes of influencing election results implicates the rights of those who dissent from the government supported position. Dissenters who are in effect compelled to finance the expression of views with which they disagree have reason to complain and may assert an infringement of First Amendment rights.”

On Reservations, a Failing Mission Decades-long Effort has Been Unable to Help Tribal Colleges Thrive

By Beth Daley, Globe Staff
March 11, 2000

ROSEBUD SIOUX RESERVATION, S.D. – Among Sinte Gleska University’s maze of rusty trailers and crumbling buildings Liz Hopkins searches for a modern education.

She and her 9-year-old son survive on Ramen noodles and frozen burritos. Crudely chopped wood fills her tiny living room because the money she earns from three jobs isn’t always enough to fill the heating fuel tank. A degree from Sinte will change all that, she insists, and help her get a job preserving her tribe’s delicate beadwork and age-old traditions.

But a college degree alone may not be enough. More than three decades and millions of dollars since tribal colleges were founded with a clear mission – preservation and progress – Sinte Gleska and 30 other Native American educational institutions are still struggling to help transform reservations into self-supporting nations.

At a time when community colleges in Massachusetts and elsewhere are enjoying a rebirth as bridges to well-paying jobs or higher education, Indian colleges are thwarted by everything from geography to lack of expertise.

”These colleges are important, but they cannot perform magic,” said William Tierney, a professor at the University of Southern California and author of a book on tribal colleges. ”The real challenge is now to figure what do the colleges want to become. ”

When Hopkins receives her diploma in cultural resource management this December, she will graduate into a system of contradictions. Many of her classmates won’t find jobs on a reservation with 80 percent unemployment, yet few will ever leave to find work. The 29-year-old college offers degrees in many disciplines, including computer science and criminal justice, but courses are often canceled because of a lack of teachers. And while graduates are supposed to start small businesses and take over tribal management, few entrepreneurial or leadership seeds have been planted inside the makeshift classrooms.

Tribal college supporters and leaders say there is a large reason for the contradictions: money. Government funding is nearly half of what traditional community colleges receive. While President Clinton proposes spending $13.6 million more on the schools – and an unprecedented $90 million has been privately donated in the last decade – the colleges remain woefully underfunded.

Designed in the spirit of community colleges, tribal colleges opened in an effort to reverse the dismal success rates of Native Americans in higher education. Even now, more than 85 percent of Indians in traditional colleges drop out and return to their reservation.

That tether sparked the tribal college movement in the 1960s, smack in the middle of the country’s largest integration movement in education. Still feeling the pain over a series of failed government assimilation experiments, including forced English programs in faraway boarding schools, they wanted separate and equal schools and looked to historically black colleges as examples.

”Native Americans looked at the black colleges and saw them as an asset they didn’t have,” said Julie Reuben, associate professor at the Harvard Graduate School of Education who studies the history of higher education.

But unlike historically black colleges that were educating students to compete in the larger society, Indian colleges wanted to educate their own to stay on the reservation, replace the many non-Indians in administrative jobs, and rebuild their nations.

The first tribal colleges were created in 1968; new institutions are being established.

”They said if we could control our education, we could reclaim our culture and control our destiny,” Reuben said.

Native American college graduates, however, say they don’t necessarily want a world of three bedrooms, two baths, and sedans. Many expect to make around $18,000 a year if they land a job at all. On a reservation like Rosebud, where the per capita income hovers around $4,500, it is enough to simply earn a living on their own soil.

”We have different priorities here,” said Sherry Red Owl, head of education for the Rosebud tribe. Offered a job in Washington, D.C. for more than $150,000 recently, she declined in favor of keeping her $32,000 a year job. ”We’re trying to build our own solution.”

Indeed, Rosebud reservation, sprawling over 900,000 acres in the southern part of the state, is in desperate need for an answer.

The county where the reservation is situated is thought to be one of the poorest in the nation. Many of the reservation’s 20,000 residents live in ”marshmallow” houses, federal low-income homes named for their pastel pink, blue, and green colors. Phones are luxuries and while cars are a necessity on a reservation, where it can take an hour to drive to a store, many residents can’t afford the upkeep or they buy $400 ”rusted runners” that are abandoned in backyards.

Alcoholism is rampant. Last month, tribal leaders sat in front of angry parents upset that a drunk driver plowed into a school bus carrying 35 children, injuring some of them. Violence, often alcohol-related, is common. One of the reservation’s 20 townships is dubbed ”ax town” by locals because of the weapon of choice during fights.

”It’s a tough life here,” said Scott Bordeaux, son of Sinte Gleska’s president and foundation director of the college. But ”almost everyone stays” or comes back. Away for 13 years, he recently came back for family reasons.

Even the gifted have trouble away from the reservation.

Graduating fifth in her high school class, Sammie Bordeaux (no relation to Scott) won a full scholarship to Notre Dame. Instead, she went to South Dakota State, in part because it was closer to home. She was back on the reservation by the second year.

”I wasn’t prepared for the change. It wasn’t the academics, but everything was so different,” said Bordeaux, 31, who is set to graduate from Sinte Gleska in December. Her four children and her mother, Red Owl, will watch from the bleachers.

While most tribal colleges are two-year institutions, many use Sinte Gleska – named for Spotted Tail, a former tribal chief – as a model. Now offering three master’s degree programs and enrolling more than 900 students, the college hopes to launch a doctorate program. Most students pay between several hundred to $1,000 for tuition, depending on their financial status. Since it opened in 1971, about 900 students have graduated and the school is slowly sending a growing cadre of teachers to work in local schools. A growing number of non-Native Americans are attending Sinte, attesting to its reputation.

All tribal college students – many who have little knowledge of their heritage – are required to take language and cultural courses. At Sinte, students learn that many of their forebears were burned on their upper legs running through burning grass during a severe prairie fire in the 19th century. Thus, their name: Lakota Sicangu Oyate, or Burnt Thigh people.

Some early data shows that the mixture of culture and academics appears to be working. One recent study shows higher rates of median income, employment, and postgraduate education among tribal college graduates compared with other American Indians living on reservations. Turtle Mountain College in North Dakota recently started a Center for New Growth and Economic Development. And throughout all the reservations, tiny pockets of microbusinesses like laundries and beadworking are sprouting.

Still, many, if not most, fail. And most reservation casinos, billed as an economic lifeblood, are no Foxwoods. Rosebud’s casino, with 120 slot machines, a bingo hall, a $7.77 prime rib buffet, and wine served from a box, takes in about $3 million a year. Little trickles down directly to residents and only a few college graduates get jobs there.

So many students, like Hopkins, piece together a living with financial aid and odd jobs to see them through their time in college, which can typically take six to eight years. Most students are women in their late 20s or early 30s with two or more children.

Hopkins is one of the lucky ones. She expects to get a job preserving her tribe’s delicate beadwork and age-old traditions. While she will earn less than $20,000 a year, it will mean she can stop relying on the government food surplus.

“That’s why I do this,” Hopkins said as she prepared for her twice-annual trip to Rapid City, 230 miles away, to buy bulk toilet paper and shampoo. The $40 it cost to fill up the borrowed van meant that she and her son would eat canned meat and little else for the rest of the month.

As her son went to play with his BB gun on a street filled with garbage surrounded by a cluster of 27 marshmallow homes, Hopkins looked around.

”It’s about helping myself, my family,” she said. ”Mostly I want to help the Lakota people.”

This story ran on page A01 of the Boston Globe on 3/11/2000.
© Copyright 2000 Globe Newspaper Company.

Court Ruled

South Dakota Supreme Court ruled in November that disputes involving non-Indians but concerning Indian trust land will have to be directed to tribal courts. The court found in favor of three Oglala Sioux tribal members who had been sued by several non-Indian ranchers who sought damages for livestock trespass caused by the failure of the tribal members to fence their leased trust lands. The ruling was hailed by tribal lawyers as a major victory for the jurisdiction of Indian tribes throughout South Dakota.

Sioux General Council Suspended Chairman

On a vote of 46-0, the Yankton Sioux General Council suspended chairman Steven Cournoyer and his brother, vice chairman Robert Cournoyer without pay until an investigation of alleged wrongdoing and malfeasance is completed. The accusations involve spending improprieties, contracts that benefit the Cournoyers, and unlawful hiring and firing.

Acerage in South Dakota Must be Considered a Reservation of the Yankton Sioux

The U.S. Supreme Court has agreed to decide whether some 430,000 acres in South Dakota must be considered a reservation of the Yankton Sioux tribe. The State of South Dakota appealed lower court decisions which ruled that Indian reservations can only be eliminated if Congress clearly expresses its intent to do so. In an unrelated case, the South Dakota Supreme Court ruled that a 1894 federal law ended the Yankton Sioux reservation status.

The state believes that the land in question lost reservation status in 1894 when the tribe sold 200,000 acres to the government for $600,000 so that it could in turn be sold to settlers, and the remaining 230,000 acres were given to individual tribal members. Most of that land was subsequently sold to non-Indians. The state argues that other treaties with Indian tribes which used language similar to the Yankton Sioux treaty have been found to terminate reservations.

Congress Intentionally Diminished the Yankton Sioux Reservation

On January 26, 1998, the U.S. Supreme Court unanimously reversed the decision of the Eighth Circuit Court of Appeals and found that Congress intentionally diminished the Yankton Sioux Reservation in 1894 and that tracts of land not allotted to the tribe are no longer considered “Indian country.” Thus, the State of South Dakota has primary jurisdiction over activities on such ceded lands. (See the November 1997 issue of “CERA NEWS”.) James Abourezk, attorney for the Yankton Sioux tribe, has warned that the legal fight concerning the reservation boundaries is not over and the State should not rush in to claim jurisdiction. He says it would “be a mistake” for the State to arrest Indians in areas the tribe apparently still believes are “Indian country.”