Treaty of Fort Laramie with the SiouxThe 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.