John Locke’s ideas of “life, liberty, and property” clearly spell out the priorities of a eurocentric ideology. In the colonial period, European nations scrambled to claim land in The Americas and Africa, stripping indigenous people of their land and rights. This continued into the nineteenth century, as Manifest Destiny engulfed the American people. The Native Americans of the Great Plains, who earlier had relatively limited contact with Europeans in previous centuries, were now thrust into the struggle for autonomy fought by other Native nations.
The Sioux nation was no exception; it instead provides an excellent case study in the interactions between Native peoples and the United States federal government from the mid-nineteenth century into the late-twentieth century. With the recent clash over the Dakota Access Pipeline, the struggle for control of the sacred Black Hills territory in South Dakota has been thrust back into the media limelight and deserves and demands a reexamination from a historical perspective. The legal battle between the Sioux and the US for the lands of the Black Hills ensued in the mid-nineteenth century and continues today. This clash has taken the form of three major phases: reservations and negotiation, assimilation and survival, and termination and legality.
The influence of the study of history is seen throughout this legal battle. In the early twentieth century, efforts were made to interview Native elders and to preserve their traditions should later generations turn from them. This tied into efforts in the 1930’s to re-establish reservations and communal land traditions. Postcolonial studies in the 1970’s and 1980’s sought to reclaim history lost in European colonial efforts in the Americas, Africa, and Asia and to study the overlooked Native peoples of those continents. This movement occurs alongside and in the wake of the Native Red Power movement, a campaign to reclaim Native autonomy.
More recent historical studies seek to strike a balance between identifying Native autonomy and recognizing Euro-American dominance throughout history. Colin Calloway for example in his recent work, Pen & Ink Witchcraft, studies three broken treaties between the US and Native nations. He shows the Native voices in these treaties as well as the US’s preponderance in breaking the agreements of these treaties.
In order to grasp the legal perspective of the Black Hills, the religious importance of the Black Hills and historical background of US-Indian relations must first be studied. According to Sioux tradition, the Black Hills are inherently sacred to their people and carry vast religious significance and power. Before Manifest Destiny swept the nation, colonial and early American encounters with other Native groups set an important precedent for understanding the prejudice and preoccupation with land acquisition experienced by the Sioux people.
According to the Lakota creation story, the first human was convinced by the gods to live on the earth above them. He entered through a cave in the Black Hills, now known an Wind Cave. He then convinced other humans to join him in the world above and after they arrived, they found themselves unable to return to their previous home. The Black Hills are the birthplace of the Sioux people. In the words of Lakota activist Ruth Hopkins, “[the Black Hills are] not only our traditional homelands, where our ancestors once lived, they’re sacred.” She emphasizes the influence the lands hold on their connection to the natural and spiritual world. Sioux religious rituals follow the patterns of the natural world and the cycles it establishes. Hopkins also says that “there are ceremonies that we must conduct at specific locations within the Black Hills. These ancient ceremonies benefit the whole of humanity.” For the Sioux people, the Black Hills are much more than a territorial claim made to retain power in the Great Plains. It is a land that is historically theirs and holds intense spiritual power. It is a space that their ancestors inhabited and where their history takes place.
Relations between European nations, the US federal government and other Native populations also relate to this battle for the Black Hills. In the earliest colonial encounters, many Europeans relied upon the help of Native peoples to survive. As time progressed, however, Europeans believed that “excess” Native land belonged to them and claimed them accordingly. This misconception came from a fundamental ideological difference that pervades into the foundation of the United States: Europeans saw land in terms of private property and ownership while Native people saw land as a communal resource. Europeans viewed land as wealth and as something you could claim and buy and sell. American Indians on the other hand believed that no one could truly own land and that humans merely used land and resided on it, but that it could not belong to a person.
At the foundation of the United States, Native Americans were a fundamental “issue” in the eyes of many whites. Most believed in assimilation, in integrating Native peoples into white American society, usually by forced implementation of male agriculture, private property ownership, and nuclear family units. This again presents fundamental differences that will flare up down the road. First, in Native society, women farmed and grew food while men hunted whereas in American society, men provided while women tended for their family. The makeup of the family was also different in Native cultures, where lineage was matrilineal and women formed the head of the family and fathers were rarely involved in their children’s lives. Euro-American families were instead a husband, wife, and their children, forming a “traditional” family unit. These family units would ideally be mostly self-sufficient with farming and sustain themselves with their own crops. This history and differences between Euro-American and Native worldviews prove fundamental to a study of the Black Hills struggle.
The legal battle over the Black Hills territory takes the form of three phases: reservations and negotiation (1850-1870), allotment and survival (1871-1933), and termination and legality (1934-present). The clash began as the Sioux saw the United States closing in on the Great Plains as territory for American pioneers to inhabit.
In 1851, the first Treaty of Fort Laramie was signed. It was a document signed between the US, the Sioux and other Native nations, among them the Arapahoes, the Mandans, and the Cheyennes. It stipulated the boundaries of these nations and specifically mentions land that they retain. For the Sioux, this included the Black Hills (Appendix A, Image A.1). This treaty also included terms which made the Native nations agree to peace among them. They also agreed to allow the US to build railroads, roads, and forts within their territory and that they would allow travelers to pass through their land. Although the Sioux sent representatives to sign the treaty, they normally made decisions on a communal consensus basis and therefore many Sioux did not agree to this treaty.
Tensions continued to rise in spite of the treaty. As gold was found in Montana and Colorado, droves of Americans passed through Sioux territory on their way westward. The US government therefore created the Bozeman Trail which passed directly through the territory held by the Sioux. US military posts were also created on or near Sioux land. Respected Lakota leader Red Cloud opposed all of these intrusions, which lead to the second Treaty of Fort Laramie.
In 1868 another treaty was signed at Fort Laramie, this one establishing the Great Sioux reservation. In addition to maintaining the same land boundaries established in the 1851 treaty, this treaty also laid out instructions for the administration of the reservation (Appendix A, Image A-2). First, a government agent would be assigned to each reservation to oversee the management of it. The government would also provide physicians, teachers, and other public workers for the reservation. Assimilation policy again rears its head when the treaty stipulates male agriculture and provides 160 acres for each household to farm upon. An allotment of supplies, such as clothing, would also be given to each Indian every year and $50,000 would be given to the tribe as a whole every year for ten years. Jurisdiction over criminal cases was also given to the United States, whether the perpetrator or criminal were American or Indian. In exchange, the federal government agreed to shut down the Bozeman Trail and evacuate their military outposts.
Although the second Treaty of Fort Laramie tamed the tensions momentarily, as the Sioux were forced into reservation life against their will, the relationship between the Sioux and the US grew more strained. With the Indian Appropriations Act of 1871, the federal government ceased to recognize the independence of any Native nations. The act however did reinforce previously signed treaties, such as the ones at Fort Laramie, and stated that the government would continue to recognize and abide by them. This act marks the end of this period of reservations and negotiations and begins the transition to assimilation and survival for the Sioux people.
In 1874, George Custer led an expedition to explore the Black Hills and investigate the rumor that the area contained gold deposits. On August 15, he wrote to the Secretary of the Interior that there was “no doubt” that there was gold in the Black Hills. As Americans who were hoping to get rich quick entered the sacred territory, the US army did nothing to stop them. The discovery of gold marks a clear shift in attitudes and feelings about the Black Hills and the Sioux people. For the United States, the economic potential of gold and the vast number of settlers that it could send westward were worth far more than their treaty obligations to the Sioux people. In their eyes, the claim that the Black Hills was sacred was founded on myth and legend and the gold that was found was fact.
Because the Black Hills were invaded by miners, many Sioux left the reservation in protest and joined leaders such as Sitting Bull and Crazy Horse outside the reservation. Therefore, bands of Sioux were being pursued to be forced onto the Great Sioux Reservation. In June of 1876, General Custer and his 7th Cavalry were among the soldiers rounding up Sioux people. Because several Sioux bands had missed the deadline to join a reservation, the federal government had unleashed soldiers to bring them to the Great Sioux Reservation. When they had their eye on a group of Lakota Sioux, they severely underestimated the Lakota numbers at the Battle of Little Bighorn. With Custer’s now infamous “last stand,” the US government now had a more personal and tangible vendetta against the Sioux nation.
In August 1876, Congress passed a Statute that restated the administration of the reservation. It also included a clause now known as the “Sell or Starve Act,” which said that Native peoples would not receive the money allocated to them unless they agreed to sell their “excess” land outside the reservation, including the Black Hills. The Statute stipulates that “hereafter there shall be no appropriation made for the subsistence of [the Sioux] Indians, unless they shall first agree to relinquish all right and claim to any country outside the boundaries of the permanent reservation established by the treaty of eighteen hundred and sixty-eight for said Indians.” Clearly the phrasing of the statute is designed to confuse. Technically, the “permanent reservation” in the 1868 treaty did not include the Black Hills and therefore the Black Hills had to be sold in order to receive any rations or provisions.
The following February, Congress passes the Agreement of 1877, which reaffirmed the Sioux reservation and all the provisions made for its administration and management. This agreement specifically prohibits the removal of the Sioux people, but denies them the Black Hill territory. The 1877 act fully implemented the 1876 Statute, which was only passed by 10% of Sioux men. It lays out the new reservation boundaries which now did not include the Black Hills, only the areas explicitly set aside for reservation life. Article 8 says that the 1868 treaty would be upheld except for the parts that had been changed in this treaty. The 1877 act became the first official breach of the Treaty of Fort Laramie of 1868. The Act was passed in Congress on February 28, 1877 and was also signed by Sioux headmen, many of whom likely did not full realize the land they were signing away.
Over the next ten years, the strained relationship remained steady, but the passage of the Dawes Act in 1887 again altered the relationship between the Sioux and the federal government. The Dawes act shifted official Indian policy from reservations to allotment. According to the Act, the reservation lands that Indians were currently living on would be divided up and each allocated to male heads of households. This Act laid the first tangible foundation for the assimilation that many American had desired for decades. The new allotment policy enforced a Euro-American idea of land ownership upon Native Americans as well as agricultural-based living and a nuclear family structure.
In resistance efforts and a way to retain cultural identity, the Ghost Dance movement soon spread among the Sioux. The movement supported a coming world devoid of white people in which the Indians would flourish and this world could be brought about by practicing the dance. Word soon spread to government official about the meaning behind the dance, which of course made reservation agents nervous. In 1890, the 7th Cavalry were disarming a group of Lakota dancers and an outburst arose and the military killed 150+ men, women, and children. This skirmish marked the end of the wars between the US and the Sioux in this period of assimilation and survival.
Going into the twentieth century, life continued in the (new) normal way under allotment. As more of their rights were encroached upon, the Sioux soon seemed to lose the will to fight. Paradoxically, as the federal government terminated its relationship with Native nations, legal precedents were being challenged in favor of Native rights.
The Indian Reorganization Act or the “Indian New Deal” of 1934 re-established communal land ownership by converting Native land back to reservations, reversing the Dawes Act of 1887. Instead of supporting the popular policy of assimilation and integration into white society, the Indian New Deal supported the preservation of Native cultures and lifestyles. It also made funds available to tribes to purchase any of their land lost in the Dawes Act of 1887. The Reorganization Act also expanded US citizenship to include Native Americans, creating mixed reactions on the reservations.
After the retirement of John Collier, the Indian Commissioner behind the Indian New Deal, US policy shifted to that of termination. Beginning in the 1940’s following the Second World War, the federal government terminated their relationship with Native nations and passed the jurisdiction over the reservations to the states, a direct violation of the Supreme Court decision of Worcester v. Georgia (1832). Although Public Law 280 was not initially directly applied to Native reservations in the Dakotas, the implication was that it was only a matter of time before the Sioux nation’s relationship with the federal government would be terminated as well, thus also ending any federal aid received by the nation.
In 1956, the Indian Relocation act was passed in Congress, which allocated funds to individual Indians for their relocation from a reservation to an urban center. This Act was designed to support the process of immediate assimilation and integration into white American society and its capitalist economy.
During the 1960’s the Red Power movement emerged with Native activists fighting for recognition of their nations and their autonomy as sovereign nations. In 1969, a group of advocates began an occupation of Alcatraz, a former prison island that had been retired from permanent use by the federal government. The group based their stake on the island upon the right of discovery, that Indians had found the island long before the US had, and earlier treaties stating that any land not in use by the federal government would revert back to the Native people. The occupation ended with the forcible removal of the protestors and Nixon again shifting federal policy towards Natives to self-determination, allowing Native nations to dictate for themselves their interactions with the US.
While all of this was happening, a legal battle was also happening behind the scenes for control of the Black Hills. When the Indian Claims Commission was founded in 1946, Native nations could apply for fund to be paid to them for the compensation of land lost since the Dawes act in 1887. The Sioux had already started a claims court case ni the Court of Claims for damages resulting in the loss of the Black Hills and other land outside their reservation. In 1942, the Court had found that the Sioux nation was owed $17.5 million without interest. When the Sioux tried to get the interest owed to them, their claim was shut down on the basis of res judicata. In 1980, however, the Supreme Court reversed this decision, upholding the 1942 case findings and decided that the Sioux were owed for interest as well as the payment for the land. The Supreme Court opinion said that the 1877 Agreement “effected a taking of tribal property which had been set aside by the Fort Laramie Treaty for the Sioux’ exclusive occupation, which taking implied an obligation on the Government’s part to make just compensation to the Sioux.” The amount owed included the payment for the land, payment for damages, and interest on those payments.
However, the Sioux maintain that the Black Hills are not for sale and they refuse to accept the payment, which has now grown to $1.3 billion, which includes payment for the land, damages, and interest. An ongoing debate is taking place among the Sioux as to accept it or to continue to refuse the money. Younger generations are in support of accepting it as a temporary solution to the difficult living conditions and poverty experienced on the reservation, but elders agree that the land is not for sale and demand the restoration of their sacred lands. Former Oglala Sioux president Theresa Two Bulls stated that “It really saddens me that we’ve got some tribal members that want to accept the money and they don’t realize the harm they’re going to do; they don’t really understand why we say the Black Hills are sacred.”
The Dakota Access Pipeline is scheduled to cross into lands retained by the Sioux according to the 1851 Treaty of Fort Laramie, lands that were not ceded in the 1868 treaty. The Standing Rock Sioux also argue that the pipeline would violate treaties by interrupting the nation’s access to clean water. The Sioux present a very compelling argument on the basis of treaty rights, rather than its infringement upon cultural and grave sites.
When Barack Obama was elected president, he emphasized that he was open to negotiating and settling this issue with the Sioux people. However, some Lakota opposed the negotiations because of the representative rather than communal decision making and therefore negotiations were halted. With Trump now in office, there has not yet been any proposals made to begin discussion on the Black Hills debate.
Because of the unique relationship between sovereign nations claiming the same land, the legal battle between the Sioux and the United States over the Black Hills territory is a case study that must be examined through the lens of political and legal history. The methodology of studying this legal clash in three distinct phases, reservations and negotiation, allotment and survival, and termination and legality, provides a framework for understanding the battle of the Black Hills.
BIBLIOGRAPHY
Primary Sources:
Custer, George Armstrong, Letter of August 15, 1874. Quoted in “Black Hills Gold Rush,” The Black Hills. http://www.theblackhills.com/black-hills-gold-rush/
Treaty of Fort Laramie with the Sioux, etc,. 1851. From Oklahoma State University. Indian Affairs: Laws and Treaties, vol 2, 594-6.
Treaty of Fort Laramie: 1868. From Yale Law School. The Avalon Project: Documents in Law, History, and Diplomacy.
“Lakota Creation Story.” Cheyenne River Sioux Tribe. http://sioux.org/lakota-creation-story.html
Indian Appropriations Act, 19 Stat 176. https://www.loc.gov/law/help/statutes-at-large/44th-congress/session-2/c44s2ch72.pdf
19 Stat. 192. https://www.loc.gov/law/help/statutes-at-large/44th-congress/session-1/c44s1ch289.pdf
United States v. Sioux Nation of Indians, 488 U.S. 371 (1980). https://supreme.justia.com/cases/federal/us/448/371/
Dawes Act of 1887. https://www.ourdocuments.gov/doc.php?flash=true&doc=50
Public Law 280. http://dot.ca.gov/hq/tpp/offices/ocp/nalb/Images/PublicLaw280.pdf
Secondary Sources:
Calloway, Colin G. Pen and Ink Witchcraft : Treaties and Treaty Making in American Indian History. New York: Oxford University Press, 2013.
Cook, Tom. “If They’re Not For Sale, What Are They?” Indian Country Media Network. https://indiancountrymedianetwork.com/news/opinions/if-theyre-not-for-sale-what-are-the-black-hills-for/
Hopkins, Ruth. “Reclaiming the Sacred Black Hills,” Indian Country Media Network. https://indiancountrymedianetwork.com/news/opinions/reclaiming-the-sacred-black-hills/
Ostler, Jeffrey, The Lakotas and the Black Hills: The Struggle for Sacred Ground. New York: Penguin Group, 2010.
Ostler, Jeffrey and Nick Estes, “‘The Supreme Law of the Land’: Standing Rock and the Dakota Access Pipeline, Indian Country Media Network. https://indiancountrymedianetwork.com/news/opinions/supreme-law-land-standing-rock-dakota-access-pipeline/
Black Hills and Bloodshed: The U.S. Army and the Invasion of Lakota Land, 1868–1876 http://www.jstor.org/stable/24416238
“Why The Sioux are Refusing $1.3 Billion,” PBS Newshour. https://www.pbs.org/newshour/arts/north_america-july-dec11-blackhills_08-23
MaryBeth Ames 