RAPID CITY, SOUTH DAKOTA — Paha Sapa (Black Hills), the oldest set of mountains in the United States, has been home to indigenous people for millennia. By the mid 1700’s the Tetonwan Lakota had migrated here and made close spiritual connections to Paha Sapa which became the epicenter for their traditional way of life.
And continues to be; 2010 census figures reveal there are 8,416 American Indians residing in the Rapid City Metropolitan area and the number likely tops more than 10,000 when you include all Black Hills communities.
For nearly a century, Great Plains tribes have waged an ongoing legal battle with the United States Government to have portions of their ancestral hunting and religious grounds returned.
Ed Charging Elk, Director for the Sicangu Lakota Treaty Council believes that tribes who are stakeholders in the 1868 Fort Laramie Treaty have a small “window of opportunity” while the Obama-Biden administration is still in office that must be taken advantage of.
During a 2009 meeting in Lower Brule where several tribal leaders had gathered to discuss their options, a resolution was drafted co-authored by Black Hills Attorney Mario Gonzalez that calls for a resolution to the 158 year struggle for justice on the “Black Hills Claim.”
History of Black Hills ClaimIn the early 1800’s life in and around Paha Sapa was peaceful and the Oyate lived quietly, unmolested by the outside world, until the discovery of gold. An increasing number of miners, emigrant settlers and military forces encroached on their traditional homelands, leading the tribesmen into armed revolts against the intruders. In their desperate quest for that which was not theirs to take, the United States Government crafted a series of peace treaties with Great Plains tribes. The treaties gave the Indians title to all the lands and waters west of the Missouri River which included all of western South Dakota, the Black Hills and portions of Wyoming, Montana and Nebraska. The treaties however were short-lived, as one after another were broken.The most controversial remains the “1868 Fort Laramie Treaty” which promised indigenous people the right to live peacefully in their ancestral homelands and provisions that included annuities, agricultural equipment, physicians, teachers, carpenters, millers, engineers, farmers, blacksmiths, as well as food, clothing and livestock. The treaty also specified that no other treaty would be valid unless it was signed and executed by three fourths of the adult male population who had interest in the treaty. The treaty also promised that no white persons without the consent of the Indians were to pass through their lands. But they came anyway – in their quest for gold. The most notorious was Lieutenant Colonel George Armstrong Custer who led an expedition into the Black Hills in 1874, and announced the discovery of gold near present-day Custer, S.D. The Black Hills Gold Rush ensued in which thousands of prospectors flooded into the Black Hills, sprouting small mining towns including Deadwood which became notorious for lawlessness. This led to a revolt led by Tetowan Lakota Itancan Tantanka Iyotaka (Chief Sitting Bull) and Itancan Tasunka Witko (Chief Crazy Horse) who refused to succumb to the terms of the treaty. They along with thousands the Oyate were camped along the banks of the Little Big Horn River when Custer executed a plan to wipe them out. Custer lost in what became known as the Battle of the Little Big Horn on June 25, 1876 where he along with his Seventh Cavalry were wiped out. That victory was short-lived however. The Lakota’s who survived subsequent battles to surrender to the Army were interned on a reservation, and deprived of their weapons and horses, “leaving them completely dependent for survival on rations provided them by the Government.” In August 1876, Congress enacted a bill cutting off appropriations “made for the subsistence” of the Sioux, unless they ceded the Black Hills to the United States. A commission headed by George Manypenny presented the Oyate with a new treaty and they signed, under threat of starvation. But only a few leaders signed what became known as the “1877 Act of February” and not the 3/4 majority of all Indian males on the reservation as required under the 1868 Fort Laramie Treaty. The Lakota never accepted the legitimacy of the forced deprivation of their Black Hills reservation and in the early 1920’s under tribal lawyer Richard Case the legal battle for the Black Hills began. Case argued that the 1877 Act of February was illegal and that the United States had never made a legitimate purchase of the land. Case was a member of the Cheyenne River Indian Reservation and a Yankton College graduate. He had joined the US Army and gained the rank of Major. He served several years in public office and then studied law in Washington D.C. After which he was admitted into the bar association in Maryland and South Dakota. In 1911, Case returned to South Dakota and met with the Black Hills Council. The tribal elders asked him to assist in prosecuting for reimbursement for the illegal taking of the Black Hills, which are sacred to the tribes of the Sioux Nation. Case eagerly accepted the assignment. However, Congress assigned attorneys to represent Indian tribes and named Charles Evans Hughes as Sioux tribal attorney. Hughes resigned after President Harding named him Secretary of State. Case remained in contact with the Sioux tribes and traveled to the Rosebud Reservation in September 1921. After the Commissioner of Indian Affairs allowed Indian tribes to elect attorneys, all eight Sioux reservations elected Case, along with attorney C.C. Calhoun. These two attorneys signed a contract with the Sioux Nation on December 22, 1922. In 1923, Case began litigation by filing the first Sioux petition under the U.S. Court of Claims, which had been established in 1855. The Claims Court dismissed the case in 1942, holding that the Court could not second guess whether their compensation under the 1877 Manypenny treaty was adequate. In 1943, the Supreme Court denied certiorari in the Black Hills Claim thus upholding the decision of the Court of Claims that it did not have jurisdiction. The claim was at a standstill. In 1946, Congress established the Indian Claims Commission under which the Black Hills Claim could be re-filed. The Indian Claims Commission was “conceived as way to thank Native America for its unprecedented service in WWII and as a way to relieve the anxiety and resentment caused by America’s history of colonization of indigenous peoples” to hear and determine their grievances including the Sioux claim. Case remained under the employment of the eight Sioux tribes and he re-filed the claim in August 1950. The Sioux lost their first hearing before the Indian Claims Commission “due to the failings of their former counsel,” but on appeal to the U S Claims Court, the Court directed the Commission to take new evidence, which it did in 1958 when the Sioux turned to Marvin Sonosky and his colleague Arthur Lazarus. Sonosky and Lazarus spent 24 years fighting the case in various courts, Congress, and even the White House. Legislative reform was necessary for their victory, and they helped change the Indian Claims Commission Act of 1946 as well as bring about passage of the Indian Civil Rights Act of 1968. In 1972 the Commission ruled in favor of the Sioux, awarding damages for the deprivation of the land, but not interest. On appeal the Government did not contest the Commission’s holding that it had “acquired the Black Hills through a course of unfair and dishonorable dealing for which the Sioux were entitled to damages.” In effect the Government was disputing only whether the Sioux could collect 100 years’ worth of interest. The Claims Court ruled that its previous 1942 dismissal of the Sioux Fifth Amendment taking case was “res judicata” (a thing already decided), “whether rightly or wrongly,” thus denying the opportunity to seek 100 years’ worth of interest. In the meantime, in 1978 Sioux lobbyists persuaded Congress to pass yet another law conferring authority on the Claims Court to hear the Sioux case, this time without regard to res judicata. That meant the Sioux could re-litigate the claim as a Fifth Amendment taking, to collect 100 years’ worth of interest. Finally, under its new authorizing statute, the Claims Court held the Sioux had a suffered a taking cognizable under the Fifth Amendment, and were entitled to the value of the land as of the 1877 taking which was $17.1 million, the value of gold prospectors illegally took out of the land computed at $450,000, and 100 years’ worth of interest at 5% per year which would be an additional $88 million. In more recent proceedings the U.S. Courts have seen that the some of the monies associated with the claim have been expended and, as such, claim that the agreement is valid. In fact, several thousand tribal members have filed for and are awaiting for a final decision by the Court to decide to issue the resources to tribal members. Further court proceedings have developed since the tribal members have filed for their portion of the claim (OCT 10’). (Editors note: Next week Black Hills Attorney Mario Gonalez explains why tribes should not accept Black Hills Monies)
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