May 29, 2013

Tribe may seize Wounded Knee

With sales pending, tribe moves to seize Wounded Knee

By Brandon EcoffeyWhen James Czywczynski first announced that he was selling the two forty acre tracts of land, one at Wounded Knee and one at Porcupine Butte, for a total of $4.9 million, many people scoffed at the notion that someone would be willing to pay that much for the land.

Nonetheless as the months have passed and several potential buyers are now negotiating a final deal on the land the Oglala Sioux Tribe has decided to take action and file in federal court under the premise of eminent domain to seize the land.

On Thursday, May16, the Oglala Sioux Tribal council voted 14-0 to file in federal court for eminent domain over the land that Czywczynski, a nonmember, owns at Wounded Knee. While many have praised the tribe for exercising an established right of any government, the legal efficacy of this action is still undetermined.
Could it work?Although the tribe is granted this authority under its own constitution the legal waters become murky when it is acknowledged that the land owned by the seller is not tribal land and the seller is not a tribal member.

Speaking under the condition of anonymity one top federal Indian law attorney in Washington D.C. told Native Sun News that it would be highly unlikely that eminent domain could be used on the lands at Wounded Knee.

“It would be very hard for me to see the tribe pull this off,” the source said. “If this was truly a viable option for tribes than it would be extremely easy for tribes to consolidate their land bases. They could simply seize whatever they wanted from non-members within the confines of the reservation, provided they pay just compensation. Who determines what just compensation is?”

The lawyer also said that historically tribal jurisdiction is respected when the land is tribal land held in trust however when the land is owned by a non-Native and is not in trust the situation has been interpreted inversely by the courts.

Some tribal legal experts however feel that the tribe does have some legal standing to seize the land.

“The land in question is private, it is on the reservation and is needed for a public purpose, given its historical, cultural and traditional significance to the tribe,” said longtime tribal judge and law professor Patrick Lee. “Jurisdiction is always an issue when nonmembers are involved. Tribal ordinance 93-12 provides that nonmembers impliedly consent to tribal jurisdiction by owning land or by possession or use of any property situated within the exterior boundaries of the Pine Ridge Indian Reservation.

Procedurally that is a very strong position for the tribe to be in should the owner challenge tribal jurisdiction” added Lee.
Eminent Domain and a Horse Slaughterhouse at Wounded Knee?

By Vincent SchillingAs the sale of the historic Wounded Knee site looms with several offers on the table for owner James Czywczynski, the Oglala Sioux Tribe has moved to seize the land using eminent domain, according to a report by Brandon Ecoffey, the managing editor of Native Sun News.

In addition to this development, a petition on a Care2 website claims that one of the parties interested in purchasing the site wants to build a horse slaughtering plant and has garnered more than 38,000 signatures.

According to Denise Mesteth, Tribal Land Office Director, the tribe is intending to seek recovery of the Wounded Knee site through eminent domain, however the claims that the tribe would allow a horse slaughterhouse to be built on or near Wounded Knee were false.

“That isn't right; it is definitely a misleading petition. It is amazing how rumors get around. This may have been an effort to hinder the eminent domain move,” said Mesteth.
Comment:  If the Oglala Sioux tried but failed to seize the land via eminent domain, it still would raise awareness of the issue. The sale of Wounded Knee would become an even bigger story than it is now.

For more on Wounded Knee, see Holocaust Museum at Wounded Knee? and Wounded Knee Sale Delayed.


dmarks said...

Such a seizure would likely become a huge event, and would draw "Idle no More" and similar protesters from all over.

Rob said...

For more on the subject, see:

The sale of the land at Wounded Knee and why everyone took the bait

By Steven Lewis Simpson

As the deadline loomed I started emailing many people in the tribal administration on Pine Ridge from the President and Vice President to others in political and influential life there that they should go on the offensive with an eminent domain action to see if that could get traction but also and perhaps more decisively with a proclamation that no business licenses would be issued to anyone for that land, thus rendering the land valueless and making any purchase, pointless.

Interestingly a few days later reports start appearing in the media that both actions were being pursued. I have no idea if this is as a response to my correspondence or just coincidence but what is most important is that the tribe started enforcing its sovereignty more around the issue.

I think at the end of the day it is interesting to see how people got swept up so much in the rumor (a horse slaughterhouse being put there was one) and not just looking at the bare facts and motivations. The land under his ownership has laid there unmolested for 40 years. To think it would have millions of dollars of value in the open market when unused by him through this time would be preposterous. I am sure this will probably just slip away as a little footnote of a man trying to grab the headlines and manipulate truly sacred land.