The Hogs of Rosebud

by Winona LaDuke

On the Rosebud reservation, they don't call them braids, they call them "pig tails," and the intercom at the tribal council offices belts out "Suey, suey, suey" when it's lunch time.

There were a good number of jokes about the Sicangu Lakota and their Kuukuus, their hog farm, but they do not seem so relevant any more.

The U.S. Supreme Court refused in February 2003 to get involved in the Rosebud Sioux Tribe's dispute with the Bell Farm's proposal for the third largest hog farm in the world. In a remarkable spring of justice for Native people, the Supreme Court declined to review an April 2002 appellate court decision overturning a South Dakota federal judge's order that allowed the hog farm to be expanded and operated.

An appeals panel had determined that Bell Farms, a North Dakota company that operates some of the largest industrial hog farms in the country, was without legal standing to get the 1999 federal judge's order that protected its operations.

The district court has now dismissed with prejudice the case Bell Farms had filed to protect its hogs and facilities. The hogs, it seems, will be heading out.

After four years of legal tangles, and years of struggle, the Lakota, thanks to the work of Concerned Rosebud Area Citizens (CRAC), have won, though some legal disputes remain. Closing the farm will require one heck of a clean up, when 48,000 hogs and all of their poop (the first phase of the operation) will have to be moved off the Rosebud Reservation in what is one of the first such industrial farm plant closures in history.

The Promise of Water

The wind blows endlessly on the Rosebud. The faces of the elders, Crazy Horse, Hollow Horn Bull all look up from their resting places and see their people, the Sicangu Lakota, the Burnt Thigh people, are still there.

That is in spite of everything. The assassination of Crazy Horse on September 5, 1877 by the U.S. military accelerated the federal policies to crush the Oglala, Sicangu Minneconju, Yanktonai, Santee and other bands of Lakota and Dakota. The buffalo were obliterated, and the Black Hills Act and subsequent legislation would take 9 million acres of Lakota land. The General Allotment Act would make a policy of the land stealing inside the reservation, dividing the seamless prairie into 80 and 160 acre allotments, the "surplus" to be offered up for homesteading by white farmers. Adding to the theft, Congress enacted a set of laws which would remove additional lands from the Rosebud reservation, largely for the benefit of the non-Native farming population.

Then came the dams. The Pick Sloan project inundated most of the Missouri River Basin tribes, flooding the best bottom lands of the Hunkpapa, Mandana, Hidatsa, Arikara, Yanktonai and all those who had come to reserve land along the Missouri. The project put water where the Creator had not intended, and transformed the buffalo prairie into a land of the plow and till.

All of this combined to crush the Sicangu land tenure systems. By the 1990s, non-Indians held 50 percent of the land within the reservation borders. Ben Blackbear of the Tribal Land Enterprise notes that there were originally around "three million acres of the Rosebud reservation. Today we have 900,000 acres in trust, with about half of the acreage allotted." A significant amount of the land is leased to non-Native ranchers.

Where once the water flowed, now it did not, and would not for 50 years. After the tribes organized to seek their water, including in some cases even for something as basic as piped connections to their homes, the Mni Wiconi Water Project was born.

Congress authorized the project in 1988, for what eventually would be $365 million, intending to supply water to the Lower Brule and Pine Ridge reservations as well as nine southwestern South Dakota counties. The Rosebud reservation would be added later on.

"What Mni Wiconi was supposed to do was bring water for municipal, industrial and rural use" to offset major disparities in access to water, remembers Tony Ironshell, former Rosebud Tribal Planner and Mni Wiconi proponent. "Up in the northern part of the state where all the white guys were getting all of their systems, 86 percent of their allocations were going to be used for cattle [and] only 14 percent for human and consumptive use. And they were trying to restrict the tribe to human consumptive use."

The Hogs Move In

Soon after the Mni Wiconi project was approved, Bell Farms brought its hog farm proposal to South Dakota, almost as if the corporation could smell a water allocation moving towards the trough. The timing could not have been more perfect for Bell Farms. The company had some Colorado hog farm operations, but environmental laws were tightening, and new operations would have to be elsewhere. Tribal sovereignty over environmental laws seemed to offer an escape. The corporation first made an offer to the Winnebago Tribe of Nebraska, which rejected its overtures. In 1988, South Dakota enacted an anti-corporate farming law as a response to efforts to place mega hog farms in the state. However, a few months later, the Rosebud Sioux Tribal Council agreed to accept the Rosebud Pork Production Facility, a $105 million hog factory, on tribal lands.

The hog facility, once complete, would suck 1.7 million gallons of water from the Ogalalla Aquifer daily, more than the needs of the state of South Dakota

"Where they put in the Wiconi project, the pig farm was already on it. Millions of dollars worth of infrastructure, and at the end of each pipe was a proposed pig farm," explains Carter Camp, from Concerned Rosebud Area Citizens.

"The tribe's total commercial water allocation went to the hog farm," Sicangu artist and activist Rosalie Little Thunder says.

Things moved pretty quickly. The Rosebud Tribal Council was wooed by the pig farmers, and then signed confidentiality agreements with the corporation. The contract required Bell Farms to finance facility construction and operation. The tribe would offer the protection of its sovereignty for the operation, as well as access to water.

One additional small point: "When the hog farmers went to the tribe, they also added a condition. There would be no environmental impact statement," explains CRAC attorney Jim Dougherty. That turned out to be the project's undoing.

The farm, if it had been fully realized, would have been the third largest hog farm in the world, putting out 859,000 hogs a year in 200 steel rooted barns from the reservation. The hogs were destined for the Hormel Foods facility in Austin, Minnesota. The project was largely represented as an economic development and employment opportunity for the tribe, with an estimated 150 jobs during construction and 230 permanent jobs for tribal members, with wages represented to range from $16,000 to $50,000 a year. In exchange for their sovereignty, environmental exemptions, and use of their water, a profit-sharing arrangement was to land the Rosebud tribe 25 percent of the projected $1,168,000 a year in profits. And, the lease stipulated that at the end of the 15 years of operations on the farm, the Rosebud Sioux Tribe would buy out the facility at 50 percent of its original cost -- or an estimated $50 million.

There were a few loopholes in the agreement, attorney Jim Dougherty notes. For instance, Bell Farms was able to deduct its directors' salaries, fees paid to the Minneapolis-based law firm Dorsey and Whitney and other questionable expenses from the tribes' profits. As well, no one, it seemed, informed the tribe that the life expectancy of the hog farm facility was 10 to 12 years -- meaning the facility would have largely expired prior to the tribe's ability to purchase it.

Sixteen members of Rosebud Tribal Council supported and subsequently passed the hog farm proposal, largely on the grounds that it would provide jobs for the community. They had, however, not reckoned with Oleta Woodenknife Mednansky and Eva Iyotte.

Resistance

Eva and Oleta had just been battling some other economic development proposals for the reservation, a land with 85 percent unemployment, and a deep structural poverty based on displacement of people and the taking of their assets. They had just defeated a 6,000-acre toxic waste dump proposed for the reservation, and a huge chicken farm.

"What I can say about those women, Oleta and Eva, is persistence, consistency and commitment," says fellow Sicangu activist Rosalie Little Thunder with admiration. "They were there at every tribal council meeting, they worked really hard on this issue and were consistent. That made a huge difference."

As well, leadership by elders like Neola Spotted Tail challenged the decision of the tribal council saying, "Yes the people need jobs, but what kind of job is that for Lakota men? How long will they last? They won't be able to stand the smell and they won't treat the animals that way."

While the dispute escalated on the reservation, a parallel legal process was unfolding. On November 23, 1998, CRAC, the Prairie Hills Audubon Society, the South Dakota Peace and Justice Center and the Humane Farming Association filed suit in Washington, D.C., charging that the Bureau of Indian Affairs had neglected to follow the National Environmental Protection Act -- which requires preparation of an environmental impact statement before commencing major projects under federal authority -- in authorizing the lease. The Environmental Protection Agency has identified manure concentrations from pig farms to be among "the greatest threats to our nation's waters and drinking water supplies." Large pig operations typically have lagoons of liquid manure containing up to 400 volatile organic compounds, including hydrogen sulfide, ammonia and methane, as well as pesticides and potentially disease-causing microbes.

The Rosebud Sioux Tribal Council was still at that time in support of the operations, and sued the BIA in federal court for subsequently stopping the project.

Federal Judge Charles Kornman then issued the first in a series of injunctions against Concerned Rosebud Area Citizens (CRAC) and their allies, and consequently allowed the contested facility to begin construction, and to begin moving hogs onto the Rosebud.

CRAC intensified its organizing effort at the tribal council, making the hog farm one of the top issues in the tribal election. In the 2000 tribal election, there were 15 seats up, and "all of the ones who voted for the pig farm lost their seats in the election and the whole new Council got in. The new Council knew fully that they got in on the pig farm issue," Rosalie Little Thunder remembers. William Kindle, present chair of the Rosebud Sioux Tribe, acknowledges the hog farm issue as an important issue, "at least within the top three of the past election."

A Spring of Justice

Although the tribe now opposed the facility, Judge Kornman's injunctions meant the hogs kept moving onto the reservation. By March 2000, with the first of the project's proposed 13 sites completed (24 buildings with 2,000 hogs in each), five tribal members were employed at the facility, most of them at lower level jobs. Bell Farms offered the first "profit sharing check" to the tribe: a whopping $11,000. The tribe, with a new council in place, turned it down. But the facility continued to operate.

And litigation proceeded. In April 2002, the appeals court issued a ruling for CRAC and its allies, overturning Judge Kornman of the lower court. The appellate court held that Bell Farms had no standing to challenge the Bureau of Indian Affairs ruling that the hog farm violated the National Environmental Protection Act. Bell Farms then appealed to the Supreme Court.

In the meantime, the Mni Wiconi Water Project, hard fought for by the Lakota, has brought both water to the reservation, but also some new concerns. "The pipelines were laid to the reservation, but they put meters on the pipelines," Rosalie Little Thunder observed. "People were thinking there could possibly come a day when they will be charged for the water. Then everyone will be dependent upon it. There is a lot of skepticism among Indian people about creating a dependence on something they won't be able to afford. Besides, they are pushing these tribes to quantify their water rights. For tribal people that is a lot like quantifying your oxygen needs for the future."

But whatever else is uncertain about the water, it seems pretty clear that it will not be allocated to the world's third largest hog farm.

The Supreme Court's decision not to review the earlier decision of the appellate court leaves the Rosebud Sioux Tribal Government free to cancel the lease with Bell Farms. This ruling, and a subsequent district court decision, requires the dissolution of the injunctions that Bell Farms had obtained against the Rosebud Sioux Tribe, the Bureau of Indian Affairs and other opponents.

Assuming the ruling survives the final stage of legal challenge, next will come one of the first forced closure of an industrial hog farm. It promises to be significant in setting the stage for future tribal environmental justice struggles as well, as major corporations will no longer be able to take for granted the tribal sovereignty protection, and the kind of behind-closed-door deals that insured the initial proposal for the hog farm.

What's going to happen with the hogs already on the Rosebud, and all that land and infrastructure, if and when the Rosebud Sioux do finally prevail? "I can't tell you what we're going to do with the site out there. Some people say raise fish, others say tear the buildings down and restore the land. All I know," says Tribal Chair William Kindle, "is that we sure would like to see them out of here, but there's a lot of attorneys between now and then."

In an outstanding suit, Bell Farms argues that federal and tribal agencies should be liable for any monies it loses from closure of its factory farm.