Barack Obama is a strong believer in tribal sovereignty. He does not believe courts or the federal government should force Sioux tribes to take settlement money for the Black Hills. He believes the tribes are best suited to decide how to handle the monetary award themselves. Obama would not be opposed to bringing together all the different parties through government-to-government negotiations to explore innovative solutions to this long-standing issue.The following are some of the suggestions I made to the GPTCA members: • Both Docket 74-A and 74-B land claims be resolved in the negotiations, which must include restoration of federally held lands, and compensation for the denial of the “exclusive use and occupation” of the Black Hills as guaranteed by Article 2 of the 1868 Treaty. The tribes need to develop innovative solutions so they can be compensated without having to sell out their homelands, i.e., equivalent rent and royalties for the use of the Black Hills and its natural resources by non-Indians; • The Tribal Council and treaty councils must unite and develop a realistic settlement plan to present to the Obama-Biden Administration and Congress; • Benefits guaranteed in Articles 5, 8 and 9 of the 1877 Black Hills Act must also be included in the negotiations and settlement to ensure that they will continue for the next seven generations; and • That all the tribes of the Great Sioux Nation should be allowed to participate in the negotiations since the non-Docket 74 tribes used the Black Hills for religious and other purposes and their interests should also be addressed and protected. WHAT ARE DOCKETS 74-A AND 74-B?
The Sioux tribes filed their Docket 74 land claim in the Indian Claims Commission (ICC) in 1950. In 1960, the ICC separated Docket 74 into two Claims. Claims for compensation based on a voluntary “cession” of Sioux territory under Article 2 of the 1868 Ft. Laramie Treaty were designated by the ICC as Docket 74-A. Claims based on a taking of Sioux territory in violation of the Fifth Amendment were designated as Docket 74-B. Only Docket 74-A is discussed in this essay. WHAT TERRITORIES ARE INVOLVED IN DOCKET 74-A?
Two territories are involved in Docket 74-A land claim, a 34 million acre treaty territory and a 14 million acre non-treaty territory, (for a total of 48 million acres). The Treaty Territory: Article 5 of the 1851 Ft. Laramie Treaty recognized 60 million acres located west of the Missouri River as the territory of the Sioux or Dahcotah Nation (territory of the Tetons and Yankton Sioux). The later 1868 Treaty carved a 26 million acre reservation out of the 60 million acre area. This reservation, encompassing all of South Dakota west of the Missouri River, is often referred to as “Great Sioux Reservation.” Docket 74-A involves a claim for only the remaining 34 million acres of 1851 Treaty territory outside of western South Dakota. The non-treaty, aboriginal title territory. When Indian tribes claim territory not recognized by a treaty, they have to prove that they used and occupied the area “for a long time” to establish their “aboriginal Indian title.” The Docket 74 Sioux (Tetons and Yanktonai) proved in the ICC that they used and occupied 14 million acres east of the Missouri River in ND and SD “for a long time.” The ICC found that the 34 million acre area had a value of $20 million and the 14 million acre area had a value of $24 million. In the mid-1980’s, the majority of the Sioux tribes rejected the $44 million award. HOW DOES 1868 TREATY RELATE TO DOCKET 74-A?
The Sioux were never militarily defeated by the U.S. during the Powder River War of 1866-68. The war culminated in the signing of the 1868 Peace Treaty. Article 2 of the Treaty created the “Great Sioux Reservation” and provided that “henceforth [the Sioux bands] will and do hereby relinquish all claims or right in and to any portion of the United States or Territories, except such as is embraced within the limits [of the Great Sioux Reservation] aforesaid . . .” It is clear that the Peace Commission snuck this “cession” language in the 1868 Treaty as found by the ICC when considering Government off-sets to the Docket 74-A award. “Nowhere in the history leading up to the treaty or in the treaty negotiations themselves is there any indication that the United States was seeking a land cession, or that the Sioux were willing to consent to one. On the contrary, the evidence is overwhelming that the Sioux would never have signed the treaty had they thought they were ceding any land to the United States. We conclude as a matter of law that goods and services promised under the 1868 Treaty . . . were not intended . . . to be consideration for any Sioux land." Ironically, this document, promising harmonious relations, effectuated a vast cession of land contrary to the understanding and intent of the Sioux. This ICC finding has outraged the Sioux tribes (except Ft. Peck) who see this ICC ruling as nothing more than legalized theft of 48 million acres of their homeland. Especially when one considers a contrary 1922 Court of Claim’s ruling involving the Santee Sioux Tribe that the 1868 Treaty did not effectuate a cession of Sioux territory, and that Indian treaties are suppose to be interpreted as understood by the tribes. ADDING INSULT TO INJURY
Docket 74-A was remanded to the trial division (Claims Court) of the Court of Claims after the life of the ICC ended in 1978. In the late 1970’s, the Sioux tribes began to regard the ICC as a sham designed to legitimize the confiscation of Sioux territory illegal acquired by the U.S. in the Nineteenth Century, and rejected the ICC awards for Docket 74-A and 74-B. This view was substantiated by the forced “cram down” of the Docket 74-A award by the Federal Circuit and Claims Court. In 1983, the Claims Court ordered the Tribes’ claims attorneys (Larzarus, Sonosky and Payne) to present a Government’s offer to settle Docket 74-A for $44 million to the tribes, and ordered the Tribes to act on the offer. The tribes rejected it. In 1985, the Claims Court never-the-less implemented the Government’s offer as its final judgment and terminated Docket 74-A. The Oglala Sioux Tribe appealed the Claims Court’s decision to the Federal Circuit, which reversed and vacated the judgment. The Federal Circuit, however, made the following suggestion to the Sioux tribes’ claims attorneys:
The parties may be able to stipulate the total dollar amount of various categories of offset to which the government is entitled. If the parties can so stipulate, this may be action that the counsel for the Sioux Tribe can take as part of the normal conduct of litigation without the necessity of obtaining the approval of their clients.The claims attorneys did just that! Behind the backs of the Sioux tribes and without their knowledge and consent, they signed a stipulated settlement in with the Government attorneys in which they gave away 48 million acres of Sioux territory for $40,245,807.02! They also gave away $3.7 million of the claims award as a Government off-set! The claims attorneys also signed a joint motion with the Government attorneys “to enter Judgment in accordance with the Stipulation of Facts” all without the knowledge and approval of their clients. A final Judgment was, accordingly, entered on July 30, 1987. The Oglala Sioux Tribe and Rosebud Sioux Tribe filed a motion for relief from judgment from the claims attorney’s stipulated settlement. The Claims Court denied the motion and the tribes appealed. On appeal, the Federal Circuit affirmed the denial of the motion, with Judge Newman dissenting:
The entry of judgment is surely not a routine ‘evidentiary stipulation such as is encountered in day-to-day trial management; not only because the stipulation disposes of some 3.7 million dollars in moneys previously adjudged to be due the Sioux Indians; but because counsel for both sides knew that since at least 1979 tribes representing the majority of Sioux Indians had given instruction contrary to the settlement. The record contains two resolutions of the Oglala Sioux Tribal Council informing counsel that it no longer sought money damages, but wanted to pursue legal and legislative strategies to gain return of ancestral lands. These resolutions also directed to have the Oglala Sioux tribe dismissed from this litigation . . . A lawyer cannot be authorized by a court to make a settlement and bind the client contrary to the client’s wishes. Nor can either the court or the United States ignore the tribes’ several attempts to discontinue Mr. Lazarus’ representation. In light of this extended history, the Claims Court’s acceptance of the Stipulation of Facts and the grant of the Joint Motion to Enter Judgment is incongruous; and its denial of appellants’ motion for relief [from judgment] . . . is in plain error, in light of the undisputed assertion that they were given no prior notice of the settlement.CURRENT STATUS OF DOCKET 74-A
On October 10, 1989, the BIA issued a report entitled “Results of Research Report of Judgment Funds, that contained the following language:
The Act of October 17, 1973, as amended, requires that we submit a Secretarial Plan to Congress within one year from the date of appropriations of the funds ... In this case, the Secretarial Plan must be submitted to Congress on or before June 4, 1990. Following a 60-day Congressional review period, the Secretarial Plan will become effective, if a joint resolution of disapproval is not passed by Congress. The funds will then become available to the beneficiary entities. If we do not meet the December deadline and if we do not submit a Secretarial Plan within the specified One Year period, as has occurred in the case of Docket 74-B, legislation will be required to provide for the use of the funds.[emphasis added].Since no plan was adopted by the Sioux bands prior to the June 4, 1990, deadline, the funds cannot be distributed without new legislation authorizing the distribution of funds. In the meantime, the $40 million award (minus 10 percent attorney fees) has been deposited in interest bearing accounts by the secretary of the interior. CONCLUSION
The tribes must oppose the efforts of the Ft. Peck Sioux Tribe, and the individuals and their attorneys who filed the Different Horse lawsuit, to have the Docket 74-A award distributed in per capita payments to tribal members. To agree to the award at this time would be a slap in the face to all of relatives who fought and died for our homelands in the Nineteenth Century. The U.S. Government’s use of its courts and legislature to extinguish title to Indian lands has become an “art,” the art of legalized theft of Native lands. As recently as 1971, the Government “acquired” 320 million out of 360 million acres of Alaskan Natives’ lands under the so-called “Alaskan Native Claims Settle Act,” over the objections of Alaskan Natives. The Sioux tribes must not allow the Government to get by with the legalized theft of 48 million acres of our homelands by accepting the Docket 74-A award, which is based on an underhanded insertion of cession language in the 1868 Treaty and an outrageous stipulation between the Government and tribal claims attorneys. The Obama-Biden Administration has presented the Sioux tribes with a unique window of opportunity to settle Dockets 74-A and 74-B in manner that will protect and benefit both the present and future generations of our people. I challenge the Tribal Chairman to step forward and personally lead the Tribes in government-to-government negotiations with the Obama-Biden Administration. I also challenge the Ft. Peck Sioux Tribe join in this effort. I also challenge Chief Oliver Red Cloud and members of the traditional treaty councils to put aside their differences and unify and work with the Tribal Chairman. The Treaty Councils can play an important role in settling the land claims. Mario Gonzalez is an enrolled member of the Oglala Sioux Tribe and presently serves as legal counsel to several Sioux tribes. He is the first recipient of the Distinguished Aboriginal Lawyer Achievement Award (1995) given by the Native Law Centre of Canada, University of Saskatchewan, Saskatoon, Sask. He is also co-author of The Politics of Hallowed Ground: Wounded Knee and the Struggle for Indian Sovereignty (1999). He can be reached at mario@mariogonzalezlaw.com. Part I:
Native Sun News: 1868 Fort Laramie Treaty tribes urged to unite (3/2)
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