MINNEAPOLIS – Thousands of people want to be counted as Mdewakanton Dakota and to hold the federal government accountable for a breach of trust.
A lawsuit, Wolfchild v. United States, is intended to bring justice and a sense of belonging to thousands of potential Mdewakanton Dakota who want to be counted part of a community.
In 1862, many Dakota people pledged loyalty to the federal government during a conflict that erupted into a near-war with other Dakotas, settlers and the military. In return, the Mdewakanton who remained loyal received land as a reward in 1886 under a contract.
Wolfchild alleges that the federal government breached the trust responsibility of that 1886 contract when Congress acted in 1980 to turn over control of land to three Mdewakanton communities in Minnesota. That move breached the trust responsibility inherent in the 1886 contract, the suit further alleges.
A recent ruling from Judge Charles Lettow of the Federal Court of Claims brought the Shakopee Mdewakanton Sioux Community and the Prairie Island Sioux Community into the lawsuit because they acted as agents of the federal government in the management of the land.
Lettow ruled that the government violated the trust with the 1980 act that transferred control of the property to the communities. That land was, according to the plaintiffs, to be held in trust for the Loyalist Mdewakanton.
“The communities thus have acted as agents of the Department of the Interior. Because the Prairie Island and Shakopee Communities were acting as arms of the federal government and not as independent sovereigns, tribal immunity does not apply,” Lettow wrote.
Limited sovereign immunity does not prevent the communities from lawsuit in this case, Lettow ruled.
The government argued in court that the communities do enjoy sovereign immunity, and insisted in its arguments that tribal sovereignty comes from the federal common law and is set into law as found within the commerce clause of the U.S. Constitution.
The government also asserted that because the tribe had control over its members before incorporation of their territories into the United States, it possessed sovereign immunity against litigation.
“Here the United States Court is taking steps to fix a problem the Department of Interior created because it was lazy, and the communities made the matter worse by taking advantage of the lazy sovereign,” said Erik Kaardal, of Mohrman and Kaardal of Minneapolis, attorney for the plaintiffs.
Shakopee and Prairie Island were not considered tribes before the 1934 Indian Reorganization Act. In 1938 the solicitor of the United States stated that neither were tribes but were being organized based on their residence upon reserved land.
Because Shakopee and Prairie Island were not historical tribes they may have powers that relate to ownership of land and the carrying out of business, the court documents state.
Shakopee and Prairie Island were permitted to refer to themselves as communities and not tribes based on the Powers of Indian Tribes as allowed by the Indian Reorganization Act of Oct. 25, 1934.
In a previous court ruling, Lettow stated that because income, profits and proceeds arising from the 1886 lands to individuals who are not lineal descendants, “the United States has allegedly breached its contractual duty to the plaintiffs.”
Approximately 7,000 trust beneficiaries are represented by Kaardal, and another 10,000 represented by attorneys in North and South Dakota and Nebraska.
Criticism has arisen about the number of alleged beneficiaries and their possible lineal connection to the 1886 roles. Kaardal said his clients have passed all the criteria for lineal descent.
Anthropologist Barbara Feezor Buttes, Mdewakanton, is compiling a base role which, should the lawsuit ultimately favor the plaintiffs, even considering the appeal process, would be used to determine tribal membership.
The most important outcome would be to return the rightful members to the Mdewakanton Tribe and to identify with the land, Buttes said, earlier.
The original contract written in 1886 was signed by John Bluestone, Butte’s great-grandfather. It included 258 acres of land now used by the Shakopee, 600 acres now used by the Lower Sioux Community and 120 acres now occupied by Prairie Island.
The Lower Sioux Community filed a complaint to intervene as a plaintiff.
“It’s the same old story; we keeping losing our home, the land is confiscated. The Mdewakanton have never had a home, no land, never the right procedures in place to ensure everyone can come home.
“Shakopee was founded with the wrong group of Indians,” Kaardal said.
The Shakopee Sioux Community has donated or loaned more than $70 million to other or sister tribes throughout the Great Lakes and Plains regions. Tribal Vice Chairman Glynn Crooks said they give because it is the Dakota way, and they want to help as many people as possible through their philanthropy.
A 2004 federal income tax form 1099 filed in the Minnesota Court of Appeals indicated that members of the Shakopee community received approximately $84,000 in per capita payments. The Shakopee community would not confirm that figure.
That amount, according to Kaardal, would provide $10,000 per year for each member of the Loyalist descendants.
“So many people are not allowed in, they are losing something as Native Americans. What’s bound us together is the notion that it is our land, not their land. I have never come across a case where so few have benefited so much at the expense of so many,” Kaardal said.
“The tribe is studying the decision, and the tribe is considering its options. It will likely file a motion opposing the summons,” said William Hardacker, attorney for the Shakopee Mdewakanton Sioux Community.
A statement issued by the Prairie Island Indian Community reads as follows:
“The Prairie Island Indian Community is a federally recognized Indian tribe. Our ancestors have resided along the banks of the Mississippi near Red Wing, Minnesota for centuries, and remained there following the Dakota Conflict of 1862.
“We strongly believe that our Community has no interest or interests that are subject to the proceedings before the Court in the Wolfchild lawsuit. The Court’s decision to summons our Community to participate in the lawsuit is contrary to well-settled federal Indian law and long-established legal principles regarding our Community’s sovereignty and immunity from suit.
“The Court of Federal Claims only has limited jurisdiction to consider claims for monetary damages against the United States of America. The Court of Federal Claims does not have jurisdiction to award money damages against the Community or to determine membership issues of federally recognized Indian tribes.”