Pe’ Sla in Federal Trust

KOTA-TV notes that Governor Dennis Daugaard lost his appeal of the Bureau of Indian Affairs decision to place the Pe’ Sla grassland in the middle of the Black Hills in federal trust for its tribal owners, the Rosebud, Shakopee Mdewakanton, Standing Rock, and Crow Creek Sioux. Pe’ Sla manager Joe Buck says he’s happy the tribes can get on with developing the land… for buffalo and spiritual uses, not for the casino some folks suspected would end up in the heart of the Hills:

“This is where all the stars and everything align at the center of the universe,” said Joe Buck as he stood atop Flag Mountain looking down over the sacred tribal land known as Pe Sla.

Four Sioux tribes purchased the 2,300-acre parcel in 2012 for about $9 million. Buck says he’s honored to have his job as he works to restore the land .

“We want to preserve this area in its natural state and bring back to Buffalo and the spirituality in our youth through camps and keep it as natural as possible,” he said.

When the tribes first purchased the former Reynolds Ranch there was concern about commercial development – particularly concern over placement of a casino.

“That’s been said by many people,” Buck said with a chuckle. “I don’t know why just because they hear Native Americans they got to mention the casino immediately. There will be no casino here” [Stewart Huntington, “Tribes Win Federal Trust Status for Pe Sla Property in Black Hills,” KOTA-TV, 2017.03.24].

Buck says the tribes plan to bring over a hundred buffalo to Pe’ Sla… and we’re all welcome to visit:

“We want our neighbors to be comfortable with us as well as us to be comfortable with our neighbors,” he said. “Keep an open mind and an open heart and keep moving forward. If anyone ever wants to come out and see what we’re doing out here, you’re more than welcome to come see what kind of project we have going” [Huntington, 2017.03.24].

Governor Daugaard’s appeal of the BIA decision did not challenge the religious and cultural significance of Pe’ Sla to the tribes. Governor Daugaard’s appeal hinged instead on technical arguments about the authority of the BIA to grant trust status to land held by multiple tribes, including one tribe, the Mdewakanton, outside the jurisdiction of the regional director issuing the ruling. In his December 2, 2016, decision, Principal Deputy Assistant Secretary of Indian Affairs Lawrence S. Roberts found all of the state’s arguments without merit.

On the no-multiple-tribes argument, Roberts found the Governor’s reading of the Indian Reorganization Act “cramped”:

The State contends that Section 5 of the IRA only authorizes the Department to acquire land in trust on behalf of a single tribe, which precludes the Regional Director from acquiring Pe’Sla for the Tribes. The State cites to language in Section 5 providing that “title to any lands or rights acquired pursuant to this Act … shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired.”

The State’s cramped reading ignores other language in Section 5, which authorizes the Secretary “[t]o acquire . . . any interest in lands . . . within or without existing reservations . . . for the purpose of providing land for Indians.” The IRA’s reference to “any interest” encompasses partial interests. The reference to “Indians” is not limited to one tribe or one individual Indian. Indeed, the Department accepts and holds land into trust for multiple tribes and its decisions to do so have not been disturbed by the courts. The purpose of the sentence from Section 5 quoted by Applicant is to clarify that the land will be acquired in trust; the IRA also makes clear that the Department may hold land in trust for multiple tribes. Here, the Department will hold the individual interests held by the four Tribes in trust for each Tribe [Lawrence S. Roberts, decision on South Dakota appeal of BIA decision, U.S. Interior Department 2016.12.02].

The state argued that the Shakopee Mdewakanton can’t be part of the trust decision because they did not vote on whether to accept or reject the Indian Reorganization Act in 1934. Roberts found that the tribe, formally organized in 1969, succeeded the Mdewakanton and Wahpekute Dakota bands, who signed treaties with Uncle Sam as early as 1805. Roberts cited multiple precedents for application of federal law to the Shakopee Mdewakanton before and after the 1934 passage of the IRA.

Roberts rejected the jurisdictional argument against the Shakopee Mdewakanton, saying statute gives the Great Plains Regional Director responsibility for all BIA activities within his region, the Dakotas and Nebraska, regardless of whether a party involved in that activity happens to be located outside that region, like the Minnesota-based Shakopee Mdewakanton. Roberts also rejected South Dakota’s argument that the trust status illegally recognized a new tribal government: Pe’ Sla is in trust on behalf of the applicant tribes, not the intertribal group they have formed to manage Pe’ Sla.