S. Dakota Legislature On Move Against Natives
Potentially damaging bills in S. Dakota legislature almost pass
Law would have prevented or slowed Indian land acquisition
Ruth Steinberger 2/16/2004
Two bills recently before the South Dakota legislature passed under the wire without being noticed although both potentially contained very serious language to limit or prevent tribes from having land placed into trust by the Department of the Interior.
HB 1296 and 1297 prevented private or public land, respectively, from being acquired by the federal government without the agreement of local governments.
The debate was contentious. Proponents argued that the federal government is encroaching on the states and currently owns 50% of land in the US. Opponents argued a number of issues, including the constitutionality of the limitations. Ultimately HB 1296 was tabled. Prime sponsor, Larry Rhoden (R-Union Center) said, “The states are loosing their sovereignty one acre at a time.”
Tracy Labin, Seneca/ Mohawk, is Senior Staff Attorney for Native American Rights Fund (NARF). Labin noted that the hearings on HB 1296 were controversial and added, “Only one time was there a question of transfer to tribes and the question was not answered. This was the only reference to tribes in the hour-long debate on the bill. Primarily, the opponents were concerned about the government stepping in to say you cannot sell your land to another entity.”
No representatives from any tribe were present at the hearings.
In testimony, the potential impact on tribes was called one of the ‘unintended consequences.’ In addition to tribal interests, the federal government acquires land for the military, the forest service and the Bureau of Land Management.
Tracy Labin explained that the potential impact to tribes, had this legislation passed, is unclear.
Section 465 of the Indian Reorganization Act, originally passed in 1934, authorized the Secretary of the Interior to acquire land to place in trust for tribes. Labin said, “Tribes could be implicated in this scenario [created by HB 1296 and 1297].”
Currently, the authority of the Department of the Interior to take land into trust for the benefit of tribes is being challenged by the State of South Dakota in a case involving the Lower Brule Sioux Tribe. NARF is representing the Lower Brule Tribe.
Referencing the Lower Brule case, Labin said, “The Attorney General’s office is arguing that Section 465 is an unconstitutional delegation of congressional authority. They are trying to invalidate the authority of the Secretary of the Interior to take land into trust for tribes altogether.” Labin was asked whether HB 1296 could be a way to legislatively limit the authority granted to the Secretary of the Interior to place land into trust for tribes because the courts have thus far not provided the solution the state is seeking.
Labin said, “This case involves tribal land in the state of South Dakota and the state of South Dakota is attacking the ability to take land into trust for tribes. The state is very clear that it doesn’t want land in trust for Indian tribes and I think the suit [against the Lower Brule decision] demonstrates that.” She noted that often state, counties and local governments are very proactive in filing opposition to acquisition of land for tribes. HB 1296 and HB 1297 could be a mechanism for stopping land acquisition for tribes altogether.
Labin explained Section 465. She said, “The Indian Reorganization Act was passed to reverse the effects of allotment. Over 90 million acres of tribal land was lost during the period of allotment, which spanned from 1887 until 1934. This provision was aimed specifically at reacquiring land for Indians and Indian tribes, giving the Secretary of Interior authority to take land into trust.” This does, in fact, include purchasing land and placing it into trust for Indian tribes.
Labin said that although the federal government does not normally buy land to take into federal trust for tribes, this bill preventing the sale of land by private individuals to the federal government, without the consent of local government or the state legislature, could effectively prevent the federal government from acquiring land for tribes. When asked, Labin said, “If the acquisition was for the purpose of an Indian trust acquisition, than it could prevent that.”
She noted that once a decision places a piece of land into federal trust, it is not actually placed in trust for 30 days, giving local and state government a 30 day opportunity to file suit. If they do so the land is not placed in trust until the resolution of that suit.
Proponents of HB 1296 would have ensured that any appeal by the state would actually be decided by the state itself, a convenient solution for restricting tribal acquisition of land.
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