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Re: [Fwd: Re: NOVA]



Jeff Poling wrote:
>   Given the Eighth Circuit Court's interpretation of the law, Supreme Court
>precedence, and the wording of Title 25 which covers Indian trust lands, BHI
>did wrong.  The law and Supreme Court decisions are very clear on the matter
>that sale of anything subject to trust restrictions must be approved by the
>Secretary of the Interior, and if it is not then the sale is null and void.
>It's not a matter of somebody lying about it, those are the facts.
>
>   Personally, in terms of whether I "believe" with the court's opinion of
>the law, I'm on their side.  It's an ugly bit of federal law, but I didn't
>see any opening within either South Dakota law nor Title 25 for BHI to keep
>"Sue."  It may strike people as odd that the court would deem a fossil
>"land," but South Dakota law is very specific in that respect and <shrug>
>it's just something we'll have to live with.      

I beg to differ with your interpretation, Jeff. The BHI did not need
federal permission to buy the fossil from Williams. Judge Battey
ruled that because SUE was still (mostly) in the ground at the
precise moment of sale, she was "real property" and therefore
federal permission was required for the transaction. Presumably,
if the money had been given to Williams a few days later, after
SUE was physically out of the ground, the deal would not have
been voided by Battey.

The legal issue is the question of real vs. private property, and what
constitutes a "severable asset" under the law and precedent. Gold,
minerals, oil, timber, vegetation for grazing. etc. are all considered
"severable assets". If a Native American landowner places their land
in "trust status" (as in the case of SUE) that landowner may still
sell these "severable assets" without federal approval. Items sold
in this fashion are treated as "private property" under the law.
Maurice Williams owned both the property and the mineral rights.
No federal forms needed to be filled out, no federal bureaucrat's
signature was required. Battey was simply wrong.

The ruling by Battey is highly controversial to say the least.
The BHI appealed it to the U.S. Supreme Court, but the court
chose to ignore it. They only hear a small portion of the appeals
referred to them every session.  Unfortunately, there is nothing
more you can do if they decide to ignore an appeal, as they
did in this case.

Sometime in the future, a similar challenge may arise and the
Supreme Court may have to fix this once and for all. Maybe
Battey will rule that somebody's mining lease is void because
the gold was not physically detached from the ground at the
time of the deal. Or maybe some public museums have
illegally acquired "real estate" under similar circumstances
and didn't fill out the forms. All we need is for an overzealous
prosecutor to send dozens of armed agents and the National
Guard into a well known taxpayer funded museum, seize the
illegally acquired "real estate" and file criminal charges against
the museum's fieldworkers and curators. Perhaps the Supreme
Court would choose to hear the appeal under these circumstances...

Donald Wolberg and Patsy Reinard say some pertinent
(and accurate) things about this ruling it in their new book;
Collecting the Natural World,
Geoscience Press, Inc., PO Box 42948, Tucson, AZ 85733-2948
ISBN 0-945005-20-2.

First, about Battey's voiding the contract:

"In short, because Maurice Williams was a Native American,
Judge Battey treated him as incompetent to contract, and voided
his contract with the Larsons as we do minors who may renounce
their contracts made before the age of eighteen. We beg to differ
with Judge Battey. In real estate law, Mr. Williams is not incompetent
to contract merely because he may not have good title. Rather, if he
agrees to sell something he doesn't own, he is obligated to cure the
title or return the money, neither of which Maurice Williams did."

Second, regarding the "SUE is real estate" interpretation by Battey:

"As for Judge Battey, he will remain infamous for his ingenious fiction
that an unexcavated dinosaur is "part of the realty" , unlike other
commodities like timber, crops, or even gold which could be sold
by the owner under trust deed."
---
-Paul