Black Hills Knowledge Netowork

May 30, 2013

Legal Analysis of OST Move to Take Wounded Knee Land Via Eminent Domain

Attorney opinions differ on tribe's chance at success in blocking the sale of two tracts of historically and culturally significant land, now privately owned by a non-tribal member.

By Brandon Ecoffey

Native Sun News Managing Editor


RAPID CITY—  When James Czywczynski first announced that he was selling the two forty acre tracts 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 non-member, 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.

Eminent Domain is the power of a government to seize the private property of an individual or group of people for use by the state. The most common examples are when city, state, or federal governments seize lands for the construction of civil infrastructure.

Article 4 of the Oglala Sioux tribal constitution grants the tribe the authority to “purchase under condemnation proceedings in courts of competent jurisdiction, land or property needed for public purpose”. The right of the tribe to acquire land for public use is further supported within the OST Bill of Rights which states that the tribe cannot, “Take any private property for public use without compensation”.

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 DC 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,” they 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.

The tribe changed their legal code in 1993 establishing implied consent as the legal standard for jurisdiction over non-members. Prior to 1993 non-Natives owning land or operating a businesses on the reservation submitted to tribal jurisdiction through expressed consent, meaning verbally or through written agreement.

Legal standards over land disputes on the northern plains however are far from set in stone and are extremely complicated when dealing with land on the reservation.

“The whole issue over tribal jurisdiction over deeded land is in flux. If you talk to any lawyer in this area it is a nightmare right now,” said Rosebud Sioux Tribal member and practicing attorney Terry Pechota.

“Tribes do have the authority to use Eminent Domain but it is undetermined as far as to what it covers.

Is it barred by local legislation? Does it only apply to trust land? These are all questions that come up and another big factor is where it will be filed at.”

Pechota would go on to say that the land owner would most likely lean on the fact that he is not a tribal member.

“Obviously the land owner would say he is a non-Indian so tribal law does not apply to him. He would say that it is not tribal land it is deeded land and that under Supreme Court precedence the tribe has no authority to take it from him.”

Prior to seizing property under Eminent Domain the tribe would first be required to enter in to condemnation proceedings over the land to determine what is just compensation. This would be determined in a court of law. The owner of the property would have the option to challenge the right of the tribe to seize the land. The tribe would then bear the burden of proving that there seizure of the land for public use is justified.

"Just compensation is a matter of interpretation. The amount that he is asking for the land is unreasonable and is worth much more to the tribe in terms of its cultural value. You cannot put a dollar value on historical, cultural and traditional value of the tribe. Mr. Czywczynski is attempting to capitalize on the tribe's cultural interest in the land including the place-name which has much more value to the tribe than it does to outsiders,” said Patrick Lee. “The tribal courts are courts of competent jurisdiction because its decisions are recognized all over the United States including the federal government.

The tribe could assign its own monetary value on the land by having it appraised not for its cultural significance, but for its agricultural or grazing value that would apply to a non-Indian, and purchase it for that amount which would, in my opinion, be reasonable compensation.”

The historical significance of the site however extends beyond the tribe. Both the massacre of 300 Mnicoujou and Hunkpapa Lakota there in 1890 and the takeover by the American Indian Movement at Wounded Knee in 1973 are recognized as significant events in mainstream American history. A fact the Czywczynski is quick to note.

“It is very hard to put a price on history. The events that took place there raise the monetary value of the land,” said Czywczynski. “There were two events that happened at Wounded Knee that the whole world knows took place, they were unfortunate events but they happened.”

Determining what exactly just compensation is for the land would be another major sticking point for the tribe. American courts have held the measure of just compensation is fair market value.

Although the land has been appraised as only being worth $7,000, current Supreme Court case law  has determined fair market value to be what a an unpressured buyer would pay for a designated property voluntarily. In addition the courts have taken into account what would be the most profitable use the property being seized regardless of its current use or distinction.

NSN has viewed documents showing that Czywczynski currently has multiple buyers prepared to pay the $4.9 million asking price for the land.

“There are huge investment opportunities for the tribe or whoever else may buy the property at Wounded Knee,” said Czywczynski. “It could create jobs and it could be done in a respectful way, I don’t understand how the tribe cannot see this,” he added.

Czwczynski said that he had not been notified of any legal action taken by the tribe and was proceeding with negotiations.

“This will most likely end up in federal court if nothing is worked out,” said Terry Pechota.

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