Black Hills Settlement attorney dies

RAPID CITY— Last week noted Washington attorney Arthur Lazarus, Jr., passed away at the age of 92 from heart and kidney complications. From 1956 until 1980, Lazarus was a partner in the Fried, Frank, Harris, Shriver and Kampelman law firm who served as lead attorney in the battle for just compensation over the taking of the Black Hills from the Sioux tribes.

Following the $102 million award by the Indian Claims Commission (ICC) on June 30, 1980, the Oglala Sioux Tribe (OST) authorized tribal attorney Mario Gonzalez to file a lawsuit for an injunction in U.S. District Court in Rapid City to stop the payment of the award to the Oglala Sioux Tribe to preserve the Tribe’s rights to the Black Hills. Payment of the award would constitute an extinguishment of the Tribe’s treaty title to the hills.

In an exclusive interview with Native Sun News Today, Gonzalez discussed his relationship with Lazarus, the 1980 Black Hills Supreme Court case, and the Oglala Sioux Tribe’s subsequent efforts to blocked block the $102 million payout (now ballooned to nearly over $1.5 billion due to compound interest).

NSNT: What’s your feelings about the death of Arthur Lazarus, Jr?

Gonzalez: Saddened, Arthur was a good, decent man, highly respected, and a very good attorney. I wish his family my sincere, heart-felt condolences.

Richard Trudell came up with the idea that it would be a good experience for Indian law students to work in Washington, D.C. during the summer of 1971, and even arranged for nighttime Indian law classes at Catholic University. So, I got a job as a law clerk at Arthur’s law firm for the summer and attended two Indian law classes at Catholic University. I was assigned various tasks, like researching and drafting the eminent domain argument for Defendant’s brief in Seneca Constitutional Rights Organization v. George, and benefited from my experience with the firm.

(Gonzalez received an August 13 17, 1971 letter from Lazarus which read: “I did want you to know how much we enjoyed having you here, and I hope you feel the experience was worthwhile.”).

NSNT: To what extent were you involved in the 1980 Black Hills Claim?

Gonzalez: I was never involved in Black Hills litigation before the ICC, Court of Claims or Supreme Court. Those cases were handled by the tribal claims attorneys, Marvin J. Sonosky, Arthur Lazarus, Jr. and William Howard Payne.

My only involvement in the Black Hills Claim prior to 1980 was drafting Frank Fools Crow’s September 9, 1976 testimony opposing a bill that later became the 1978 Special Jurisdictional Act to allow the claim attorneys to refile the claim de novo in the Court of Claims. Larry Red Shirt and Louie Bad Wound asked me to assist with the testimony, so I traveled to Washington, D.C. with Fools Crow, Red Shirt and others.  On the morning of September 9^th, Larry and I went to Vine Deloria’s Institute for the Development of Indian Law where I drafted and typed out Fools Crow’s testimony in about an hour and a half, while Red Shirt was looking over one shoulder and attorney Roger Finzel was looking over the other, and while Fools Crow and Senate Committee Staff were waiting for it on Capitol Hill.

Also, I attended a Black Hills Sioux Nation Council (BHSNC) meeting in Washington, D.C. with Oglala Sioux delegates David Long, Charles Under Baggage and Moses Two Bulls in the summer of 1970. The BHSNC is an advisory council to the Sioux tribal councils on Sioux land claims. Edwin Red Door, the Chairman of the BHSNC from Ft. Peck, appointed me as acting Secretary for that meeting.

NSNT: How did you feel about the $102 million award Lazarus won for the tribes in 1980?

Gonzalez: First, you have to understand that all tribes and their federal government approved claims attorneys were locked into a system called the Indian Claims Commission (“ICC”) in 1946, which mandated that the tribes file their claims within five years, by August 13, 1951, or lose them. The ICC, however, could only award the tribes money, not land.

The Sioux tribes authorized attorney Ralph Case, who had represented them in previous Court of Claims land claims litigation, to refile the Black Hills Claim as Docket 74 in the ICC. In 1956, the tribes replaced Case with attorneys Sonosky, Lazarus and Payne. So, the Sioux tribes can’t be blamed for authorizing the Black Hills Claim to be litigated in the ICC and federal courts for money because they felt, at that time, that they had no choice but to file the claim for monetary compensation or lose it. In 1980, I recall that there were many tribal leaders and members who were jubilant over the $102 million Supreme Court award.

So, Mr. Lazarus likewise should not be blamed for not seeking land restoration in the 1980 Black Hills Supreme Court case. He was hired by the Sioux tribes to replace Ralph Case in Docket 74 in 1956 and did what the Sioux tribes wanted him to do, win a money judgment for the illegal confiscation of the Black Hills under the Just Compensation Clause of the Fifth Amendment.

NSNT: Do you know what Mr. Lazarus’ reaction was when you filed the Oglala Sioux Tribe’s 1980 case.

Gonzalez: Yes, attorney Rick West told me that I “ruffled his feathers” and he wasn’t happy with the Oglala case.

NSNT: What has been the result of the Oglala Sioux Tribe’s 1980 case?

Gonzalez: A paradigm shift occurred as a result of the Oglala case; a shift from “Toksa Black Hills money” to “the Black Hills are not for sale.”

I grew in Eagle Nest District and can remember hearing people say: “Can I borrow some money, toksha when I get my Black Hills money, I will pay you back.” In those days, and up to the time the Oglala Sioux Tribe’s case was filed in 1980, no one believed that Black Hills land could ever be returned to the Sioux tribes.

As a tribal member and attorney, I also had no choice but to file the Oglala case to stop the payment for the Black Hills in 1980. Payment would have constituted an extinguishment of the Tribe’s treaty claim to the Black Hills. The Tribe has never ceded a single acre of land in any treaty or agreement with the United States, and fought the 1866-1868 Powder River War with the United States that cumulated in the 1868 Peace Treaty which provided for a mutual demobilization without terms of surrender on either side. The Tribe could not allow the Black Hills, the spiritual center of the Sioux people, to be sold for money through the ICC.

The Oglala case resulted in an injunction to stop the payment of the Black Hills to the Oglala Sioux Tribe and ultimately prevented the distribution of the award to all the Sioux tribes, which along with another land claim, now amounts to nearly $1.5 billion with interest. The Sioux tribes are now postured in the best position they have been in since 1877 to resolve the Black Hills Claim in a more fair and honorable manner through Congressional legislation.

(After nearly forty years, the Sioux tribes can call for consultation with the US Government to resolve the Black Hills Claim. pursuant to President Clinton’s Executive Order 13175. As the award continues to grow over the next decade, pressure to accept the money will increase. A window of opportunity to resolve the claim still exists because a watershed moment and turning point occurred in July, 1980 when the OST demanded fidelity to Sioux treaties, and stopped the payment and distribution of the Black Hills award to the tribes, thereby preventing a great injustice from occurring by forcing he tribes to accept money for their religious lands through the ICC. Its time for tribal leaders to grab the reins and resolve the Black Hills claim for present and future generations of the people).

(James Giago Davies is an enrolled member of the Oglala Lakota tribe. He can be reached at skindiesel@msn.com)

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