Indigenous Peoples and Human Rights

March 8, 2009

Black Hills Treaty Fishing: Galvanizing Sovereignty and Law


By Natalie Hand
Censored News

PINE RIDGE, S.D. -- What began as an attempt to exercise sovereignty at Sheridan Lake in the Black Hills last summer, now has Russell Means in deep water with South Dakota law enforcement.

On Tuesday, March 3, 2009, a Pennington County judge issued a bench warrant for Means arrest after he failed to appear in court for a charge of fishing without a license.

“I do not understand why the State is continuing to press for a major court trial when they know I have petitioned to have this case heard in federal court. This is a constitutional issue, which means that local courts have no jurisdiction and they know this," Means said.

However, South Dakota Attorney General Larry Long disagrees. In a telephone interview, Long contended, “There is no distinction between a Native American and a non-native in this State. If either is breaking our laws in the Black Hills, they will be arrested. The State does have jurisdiction over Indians here.”

“Furthermore, why are they bringing in a magistrate from Pierre to hear this case?” questioned Means.

“I would speculate that all the Pennington County judges have disqualified themselves because they all live in the Black Hills. For that reason I would suspect that they appointed someone from outside the Circuit," Long said.

When asked whether or not Means had a valid argument to move his case to a federal court based on constitutional rights violation, Long replied, “Mr. Means ‘claims’ that the Black Hills is treaty territory and that South Dakota has no jurisdiction over him. I don’t believe that he has any rights to fish without a license under the U.S. Constitution.”

Means reference to the U.S. Constitution pertains to Article VI, which states: “ . . . This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby . . .”

In his application to move his case to federal court, Means contends that he is within his inherent rights under the 1868 Ft. Laramie Treaty.

“I have never even read the Ft. Laramie Treaty," Long admitted.

“Russell is within his rights under the 1868 Ft. Laramie Treaty. He Sapa, the sacred Black Hills, is within our treaty territory. That treaty is a living document. We have a Nation-to-Nation agreement with the U.S. More of us Lakota need to exert our sovereign power. The U.S. has violated the Treaty, which they authored. They have offered us compensation. We have refused it. We will never sell the Black Hills. It is what defines us," stated Floyd Hand, an Oglala Lakota and delegate to the Black Hills Sioux Nation Treaty Council.

A Federal Court clerk confirmed that Means filed a complaint in October, 2008 to move the case to Federal Court. The State filed for a continuance on January 12th and it was granted the next day.

Long concluded, “I suspect that Mr. Means’ application is unique. I would assume that someone has written a response not to touch this.”

To date, no hearing date has been scheduled. There is no deadline for a federal judge to rule on Means’ petition.


Anonymous said...

There is nothing unique or extra-ordinary about this. Russell is simply asserting existing and long established treaty rights as a separately sovereign people (who were) in treaty with the United States, and article 6 assures us any treaty (and hence treaty granted rights) are the supreme law of the land. At the very least, it is clearly a federal matter, not a state one.

If on the other hand we instead conclude that treaty between Lakota and the United States has been effectively terminated in 2007, then Russell is also free to fish on Lakota land as a free citizen of a sovereign Lakota nation, and any such questions become fully nation-to-nation; again they do not belong in a state court.

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Anonymous said...

Bourland, U.S. S. Ct.:

"Congress has the power to abrogate Indians' treaty rights, see, e. g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 594 (1977), though we usually insist that Congress clearly express its intent to do so. See Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-413 (1968); United States v. Dion, 476 U.S. 734, 738 (1986). See also County of Yakima v. Yakima Indian Nation, 502 U. S. ___, ___ (1992) (slip op., at 17) (" `statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit' ") (citations omitted). Our reading of the relevant statutes persuades us that Congress has abrogated the Tribe's rights under the Fort Laramie Treaty to regulate hunting and fishing by non Indians in the area taken for the Oahe Dam and Reservoir Project."