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Law360 (May 17, 2021, 5:40 PM EDT ) The state of South Dakota's legal battle with the U.S. Department of the Interior over a July Fourth fireworks display at Mount Rushmore heated up over the weekend, as the Cheyenne River Sioux fought against Gov. Kristi Noem's efforts to exclude them in federal court.
The state's opposition to the tribe's motion to intervene in the lawsuit "misstates the facts and the law that govern this dispute," Steve Vance, the ranking historic preservation official for both the Cheyenne River Sioux and the state, said Sunday.
Vance argued the "fireworks permit will substantially burden the tribe's and Mr. Vance's free exercise of religion." The event would also interfere with an ongoing survey of traditional cultural properties of the Black Hills, he said.
In a motion to intervene filed May 13, the Cheyenne River Sioux told a judge that fireworks displays in the middle of their treaty land presents an "extreme risk" to the Lakota people, citing wildfire risks as well as spiritual, cultural and moral injury.
"The fact that this event could be forced upon us in our sacred lands despite our clear opposition to the event traumatizes us as a people and inflicts grief upon us," Vance told the court Thursday. "To us, allowing this event to occur again is a colonial attack on one of our most sacred places."
"The event itself is also offensive because of the history of the presidents depicted on the [statue] and their killing of Natives."
Noem filed an opposition the next day, arguing the tribe has no legal standing or pressing interest in this "state-federal dispute." Contrary to the tribe's claims, Noem said, the celebration doesn't interfere with any religious or expressive rights, nor violate the National Historic Preservation Act.
Furthermore, the Cheyenne River Sioux Tribe, or CRST, "cannot show that the [DOI] will inadequately represent CRST's interests if intervention is denied, as Rule 24(a)(2) also requires," according to the governor's brief.
Noem sued DOI Secretary Deb Haaland in April, saying the agency "reneged" on a 2019 agreement to bring back the traditional fireworks show in violation of the Administrative Procedures Act. She also accused Congress of unconstitutionally delegating legislative power to the National Park Service, which denied the state's application for a fireworks permit.
In the complaint, Noem claims the tribe was consulted prior to the 2020 event.
Vance disputed this in his Thursday motion to intervene, saying the tribe was not consulted before the 2020 event, which featured the first fireworks show at the monument in over a decade.
The Independence Day celebration pokes at a conflict going back to at least 1876, when a small number of Sioux men agreed to give the Black Hills to the U.S. in exchange for subsistence food — against terms of the Ft. Laramie Treaty of 1868, which required the consent of 75% of the tribe's adult male population for any such waiver of rights.
Congress went on to authorize the side-deal through what Vance referred to in his motion as the "sell or starve act" of 1877, "which leveraged the lives of our tribal members against our leaders in order to force an invalid sale of the Black Hills."
After 60 years of litigation, the U.S. Supreme Court acknowledged the U.S. had wrongfully taken the Black Hills, and decided to compensate the tribe with money.
Noem declined to comment on the ongoing litigation.
Cheyenne River Sioux Attorney General Tracey Zephier did not immediately reply to requests for comment.
Noem is represented by Jeffrey M. Harris, Bryan K. Weir and James F. Hasson of Consovoy McCarthy PLLC.
Vance and the Cheyenne River Sioux Tribe are represented by Nicole E. Ducheneaux, Rose M. Weckenmann, Calandra S. McCool and Amber E. Holland of the Big Fire Law and Policy Group LLP.
Deb Haaland is represented by Diana J. Ryan of the U.S. Attorney's Office in Sioux Falls, South Dakota.
The case is Noem et al. v. Haaland, case number 3:21-cv-03009, in U.S. District Court for the District of South Dakota, Central Division.
--Additional reporting by Andrew Westney. Editing by Marygrace Murphy.
For a reprint of this article, please contact reprints@law360.com.
