The Treaty of Fort Laramie
by
Shebby Lee
On June 13, 1979, the United States Court of Claims awarded nine
Sioux tribes the sum of $17.5 million as compensation for the 106 by 52 miles
area known as the Black Hills, plus five percent interest yearly since 1877, the
date Congress abrogated the treaty of 1868 which promised this land to the
Indians.
The court cited violation of Indians' constitutional rights as
the basis for the decision, and government representatives declined further
appeal. After nearly 60 years of litigation, the issue of the Black Hills
claim appeared to have finally been justly settled. Newspapers throughout
the nation sported front-page features on the historic decision - the second
largest in the history of the claims court - proclaiming the end of a sordid
chapter in American cultural history.
But the announcement came prematurely, for this decision has
blown up a whirlwind of controversy among the tribes involved, the
imbroglio seems far from resolved.
The claim for the Black Hills is based on the Treaty of Fort
Laramie signed in April of 1868 at the fort in Wyoming. It was the second
such treaty signed there, and the Indians were negotiating from a position of
strength. The treaty was a direct result of Red Cloud's War, which wreaked
havoc on the forts along the Bozeman Trail, and which the United States
government finally conceded - the only extended conflict ever won by the
Indians.
The treaty called for closing the Bozeman Trail and the
withdrawal of all troops (which actually occurred) and recognized the rights of
the Sioux to hunt in the Powder River area of Wyoming.
Had the various clauses been honored by the U.S. government, the
Sioux would today own the entire western half of what is now South Dakota (plus
the adjacent lands in the future states of North Dakota, Montana, Wyoming and
Nebraska) and benefit from its vast store of resources. But, as was so
often the case when the white and red cultures clashed, the rights and wishes of
the Indians were set aside in favor of the doctrines of manifest destiny.
Two factors contributed to the complete repudiation of this
treaty less than 10 years from its creation. First was the discovery of
gold by former Civil War General and then Colonel George Armstrong Custer.
The traces found in French Creek near present-day Custer during the summer of
1874, instigated a flood of get-rich-quick farmers, clerks, teachers - you name
it - but few trained miners.
The Indians knew that his soft metal was too pliable to be of
any use as tools or utensils and were astounded that these white interlopers
placed such a high value on the useless yellow stuff.
European greed was a formidable foe, but the clincher was the
Battle of the Little Big Horn, fought in June of 1876. Custer's 7th
Cavalry was entirely wiped out at the hands of Crazy Horse, Chief Gall, et. al.;
and non-Indian America set up a howl of protest which was silenced only with the
confrontation at Wounded Knee some 14 years later. A casualty along the
way was the Indian right to the Black Hills.
The claim for the return of the Black Hills first went before a
federal court in 1920. It was presented by nine Sioux tribes: seven in
South Dakota (Standing Rock, Cheyenne River, Lower Brule, Crow Creek, Rosebud,
Pine Ridge, and Yankton), one in Montana (Fort Peck), and one in Nebraska (Ponca
Santee). [Standing Rock actually straddles the border between North and
South Dakota.]
In order to understand the fate of the claim and subsequent
court decisions, it is important to recognize the moral and political climates
in which they took place. In 1920 American Indians had yet to attain
United States citizenship. This didn't come about until 1924 when Congress
could no longer ignore the conspicuous acts of heroism performed by tribal
members during World War I. This citizenship however, did not include the
right to vote.
Non-Indian Americans had become cautious about granting voting
privileges to a largely illiterate segment of the population after the excesses
brought about by post-Civil War emancipation. Indeed white (highly
literate) women had enjoyed the franchise for only one short year at this time.
In 1920, post-war inflation was turning into widespread
prosperity. Prohibition had created an entirely new (and incredibly
lucrative) industry, and Warren G. Harding was riding high in the White House.
Morals were said to be lax and social consciousness was not a popular cause. The
plight of starving Indians who had had every means of self-support removed from
them was of interest to almost no one but the sufferers themselves.
It is not hard to understand why the claim of 1920 was given
little consideration.
In a 1942 decision, the court ruled that the Sioux were not
entitled to compensation. Later, the government tried to reduce the size
of the claim itself by deducting $43 million spent on food and other provisions
between 1847 and 1942. Congress passed legislation preventing this but
still no decision was made.
In 1946 an Indian Claims Court was established specifically to
hear grievances relating to broken treaties. The Black Hills claim was
resubmitted.
In 1974 the Claims Court ruled that the Sioux were entitled to
$17.5 million for land taken in violation of the Indians' constitutional rights.
Of course, in 1877 when Congress abrogated the treaty, and in
1920, when the claim first came before the court, the Indians had no
constitutional rights! But the court of 1979 was viewing constitutional
law in the light of three decades of civil rights legislation resulting from an
internal nation crisis. Montgomer; Watts; Chicago; My Lei; Alcatraz; and
Wounded Knee II had burned the issue of human rights into the American
consciousness. The decision was therefore just as much a moral one as a
constitutional one. We had come full circle.
However, the 1979 decision does have a sound constitutional
basis even if it is viewed in today's contemporary light.
In Article I, Section 8 of the United States Constitution which
was adopted on September 17, 1789, the United States government was given the
power to regulate commerce with Indian tribes and to treat such peoples as
sovereign nations. Thus was the legal precedent established, although
treaties had been negotiated between whites and Indians in the New World since
1643.
The 1979 Claims Court decision was an attempt to right some of
the wrongs perpetrated by the broken treaty.
The issue might be more easily settled if it were simply a
matter of paying for stolen goods. But the "goods" in this case are not
just property to the Indians but sacred grounds. This places the issue
beyond facts and into the realm of emotion.
Now that the award has been won, many tribal leaders feel that
the victory is in name only, and that it must be refused because the sacred
Black Hills are not for sale.
For some the moral victory is enough. Others feel that the
people are entitled to the money and the Black Hills are lost to the Sioux
anyway. Some say the reward is ridiculously low in light of the revenues
generated for the past 125 years from tourism, forestry, industry, and the
mining of gold and other valuable minerals.
Still another viewpoint is that the Sioux must hold out for
nothing less than the return of the Black Hills. Since 85 percent, or
one-and-a-half million acres in the Black Hills are national forest areas
administered by the federal government, it would be a simple matter to transfer
ownership to the tribal governments. Or so the argument goes.
The government side is even more convoluted. While Indians
used land for living and hunting on, whites had to own it, plant it, build on
it, and dig precious minerals out of it. In their view, any people who
were not likewise utilizing it did not deserve to have it.
The issue is further complicated by the fact that the treaty of
1868 was abrogated by the Congress and therefore only Congress can reinstate it.
The role of the courts in this instance is unclear. Further legal
questions arise from the signature requirement on the original treaty. Did
these signers actually represent the will of the people and were there enough of
them to validate the treaty?
The environmental impact of this issue is perhaps the most
important and least understood. In simplest terms, by accepting the
settlement, the tribes would be giving clear title to the Black Hills to the
government, thus opening the way to massive mining of uranium and other valuable
energy resources. Because of the urgency of the energy crisis, the effects
of such mining to the environment is likely to be given short shrift.
By refusing the settlement, title to the Black Hills remains
cloudy, making it more difficult, if not impossible, for the uranium interests
to obtain mineral rights from the federal government. Many Indians see
this as the only way to prevent the "rape" of their sacred Paha Sapa.
It is obvious that these widely divergent opinions are not
likely to be reconciled easily or soon. The decision has led to turmoil
among the nine tribes involved. Another award ($43.9 million for all of
western South Dakota except the Black Hills has been made, but has
received very little publicity.
In the meantime, the original $17.5 million award for the Black
Hills has been accumulating 5% interest since 1979 with no end in sight to the
haggling.
Should the U.S. government be required to compensate the tribes
for the true value of the Black Hills, the amount would be staggering, and
payment, in any case, impossible. The government knows this, the U.S.
taxpayers know this - but what is the solution? Where will it all end?
The money is can reasonably be construed as a symbolic attempt
by non-Indian America to make amends for past injustices. But the Indians
are not sure what effect its acceptance would have on them.
For the past 300 years the native inhabitants of this continent
have undergone a cultural upheaval unmatched in world history. What
happened to them was not their doing, but what happens today is. They are
understandably wary and protective of their culture against a society they don't
trust. But they are also of that society, and with the Claims Court
decision are striving to make the very best choices for their future and the
perpetuation of their embattled culture.
