Setting record straight on the Black Hills Claim
By Petra Wilson There is a lot of online misinformation about the Black Hills Claim by Joye Braun, Ann-Erica White Bird, James Swan, and others who show an almost total lack of knowledge about the history of the claim. The misinformation has now reached hundreds of uninformed people, who are now also misinformed. I felt it necessary to respond with more accurate information. There are three Black Hills Claim cases. The first case (Docket C-531 (7)) was dismissed by the Court of Claims in 1942. The second case (Docket 75-B) was dismissed by the Indian Claims Commission (“ICC”) in 1975. My focus is on the third case (Docket 148-78) filed in the Court of Claims in 1978. Chronological History of Third Black Hills Case
• 1974 -- The ICC awarded $102 million in Docket 74-B. The Government appealed to the Court of Claims.
• 1975 -- The Court of Claims dismissed Docket 74-B on the basis that it already decided the Black Hills Claim in 1942.
• 1978 (March 13th) -- Congress passed an Act that allowed the tribes to file the Black Hills Claim de novo (as a new case) in the Court of Claims.
• 1979 – The Court of Claims heard the Black Hills Claim de novo as Docket 148-78, and awarded the tribes $102 million, the same amount as the ICC awarded in 1974. • 1980 (June 30th) --The Supreme Court affirmed the 1979 Court of Claims award in Docket 148-78.
• 1980 (July 6th -- 8th ) – OST Attorney Mario Gonzalez stopped by the Indian Law Resource Center in Washington, D.C. to visit attorneys Robert Coulter and Steven Tullberg. They told him that the Oglala Sioux Tribe’s (“OST”) claims attorney argued in the Supreme Court that the Government had the power to abrogate the 1868 Treaty, take the Black Hills and give them to non-Indian miners, and all the constitution required is that the Sioux be paid compensation. This is how the history books will read unless the Sioux tribes act to correct the record. After the meeting, Mr. Gonzalez made a decision to file an OST federal quiet title case for the Black Hills. He asked his friend Russell Barsh to serve as co-counsel.
• 1980 (July 10th) – Mr. Gonzalez got the OST Executive Committee to pass Resolution No. 80-31XB, which read as follows:
THEREFORE BE IT RESOLVED that Mario Gonzalez take whatever legal action is necessary in the Black Hills case . . . and to file any additional proceedings necessary in United States District Court to protect the interests of the Oglala Sioux Tribe . . .
• 1980 (July 16th) – Mr. Gonzalez got the OST Council to pass Resolution No. 80-62 to affirm Resolution No. 80-31XB.
• 1980 (July 18th) – Mr. Gonzalez filed an OST quiet title case in federal court at Rapid City. He also asked for $11 billion in damages for denying the OST the use of the Black Hills for over 100 years. In a National Public Radio interview he said for the first time that “The Black Hills Are Not for Sale.”
A little background on the 1980 OST case:
a. The District Court granted Mr. Gonzalez’ motion to disqualify all S.D. judges and transferred the case to Judge Schatz in Omaha Nebraska.
b. The District Court also granted Mr. Gonzalez’ motion for a temporary restraining order (TRO) to enjoin the Government from paying the Docket 148-78 award the OST. He didn’t want to give the Government a chance to argue that the OST’s title to the Black Hills was extinguished if the OST got paid in Docket 148-78.
c. Mr. Gonzalez alleged that the OST could reject the Docket 148-78 award and sue for quiet title because it was not a party to Docket 148-78. He alleged that the OST’s claims attorney contract expired in 1975 and was never renewed, and the OST never gave him permission to include it as a party. The OST could therefore ask the court to judicially review and declare the 1877 Black Hills Act unconstitutional under the Due Process and Public Purposes Clauses of the Fifth Amendment
d. The other Sioux tribes did not intervene in the OST case and were paid for the Black Hills in 1980 when the award was wire transferred to the Secretary of the Interior and placed in their trust account a few days after the OST case was filed.
e. Judge Schatz eventually dismissed the OST case on the basis that the court lacked jurisdiction to return land to Indian tribes, and that OST’s exclusive remedy was the ICC. The [Eighth Circuit Court of Appeals affirmed his decision.
• 1982 -- The Supreme Court refused to hear the Eighth Circuit’s affirmance of Judge Schatz’s dismissal of the OST case.
• 1982-1883 – Mr. Gonzalez drafted and got the OST Council to pass an ordinance establishing the Black Hills Steering Committee to lobby a bill in Congress. He also drafted a proposed bill to return federally held lands in the Black Hills to the Sioux tribes, with input from Mike Her Many Horses and Fred “Budger” Brewer.
• 1984-1985 – The Black Hills Steering Committee held several meetings and made some revisions to the proposed bill. Mike Her Many Horses got Senator Bill Bradley of New Jersey to introduce it in Congress since the S.D. senators and congressman opposed it. In fact, Senator Tom Daschle even formed “The Open Hills Association” to oppose it.
• 1985 (July 17th) – Senator Bill Bradley introduced the proposed bill in Congress as S. 1453. It became known as the “Bradley Bill.”
• 1986 (July 16th) -- A Senate Select Committee hearing was held on S. 1435.
• 1987 (March 10th) – Senator Bill Bradley reintroduced S. 1453 in Congress as S. 503.
• 1990 (September 19th) – Congressman Matthew Martinez of California introduced an amended version of the Bradley Bill in Congress as H.R. 5680. This bill was drafted by Mr. Gonzalez for the Standing Rock, Cheyenne River, Rosebud and Pine Ridge chapters of the Grey Eagle Society. Recent events to resolve the Black Hills Claim
• 2008 – President Barack Obama issued the following offer to the Sioux tribes:
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.
• 2009 -- OST President Theresa Two Bulls started a spiritual movement at Green Grass to respond to President Obama’s offer. The Great Plains Tribal Chairman’s Association formed a He Sapa Respirations Committee to set up the negotiations.
• 2013 – The OST Council directed President Brewer to negotiate a contract with the number one rated, boutique law firm in the U.S. to assist the OST respond to President Obama’s offer to negotiate before he becomes a lame duck president. The law firm told President Brewer it would consider assisting the OST subject to the firm’s approval, but only if there is complete unity among the tribes.
• 2013 - The law firm sent a proposed, confidential attorney’s contract to President Brewer, which had to be reviewed by the tribe’s in-house attorney before the OST Council approved it. Unfortunately, the contract was never reviewed by in-house counsel or considered by the OST Council. According to a December 2, 2013 email from the Tribal Secretary’s office, here’s what happened:
Let’s be very clear about something; the packet [with the law firm’s contract] wasn’t taken from the Secretary’s Office . . . I know that a copy was made by Jake Little taken from the (cubby) of [council member] Craig Dillon’s seat. This information was treated with discretion and only given to Tribal Council members, so to say that it was taken from our office isn’t true.Mr. Little is the Coordinator for the OST Economic & Business Development Committee. After obtaining the confidential contract, Mr. Little reportedly informed President Brewer that it was not in the OST’s best interest to approve the contract, and then violated confidentiality by releasing it to the general public. Little’s actions are a good example of the “blind leading the blind.” President Brewer then issued the following November 13, 2013 press release regarding the proposed resolution to approve the contract to the Rapid City Journal and Native Sun News:
I will not support any resolution that promotes our tribe receiving any of the money from the Black Hills without the input from the other tribes of the Great Sioux Nation and from our Treaty Council. Our tribal members have passionately said over and over again, the Black Hills are not for sale. I fully support our tribal members.The law firm withdrew its proposed contract the same day as the Rapid City Journal’s article came out. And then came the online editorials and comments from Ms. Braun, Ms. White Bird, Mr. Swan and others, accusing the OST, Mr. Gonzalez, and even President Brewer, as wanting to sell the Black Hills. What they fail to understand is that all the Sioux tribes except the OST were “paid” for the Black Hills in July, 1980, when the $102 million award was transferred to their trust accounts. The OST notified the Government in its 1980 case that it wasn’t a party to Docket 148-78 because its claims attorney did not have a contract or authorization to include it in the case. A court can’t coerce someone to be a party in a case it didn’t authorize. Based on this position, the OST has passed numerous resolutions over the years informing the Government that the Black Hills are not for sale. Sale or distribution of land claims awards?
The Government has been waiting to distribute, not pay out, the Dockets 148-78 and 74 awards to all the tribes for the past 34 years as indicated in the BIA’s 1989 Results of Research Reports for Docket 74:
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. * * * Since no plan was adopted by the Sioux bands prior to the . . . deadline, the funds cannot be distributed without new legislation authorizing the distribution of funds.Why is new legislation needed? The OST’s cases in the 1980s prevented distribution of the awards past the one year deadline. If Mr. Gonzalez did not file the OST case the awards would have been distributed in per capita payments to all the Sioux tribes in 1981. Ms. Little, Ms. Braun, Ms. White Bird, Mr. Swan seems to think that negotiating with President Obama is somehow selling the Black Hills. They should educate themselves on the claims instead of casting the OST Council and Mr. Gonzalez in a false light and destroying a historic opportunity to settle the land claims. As a tribal member, I urge the OST Council to act responsibility and take the lead in responding to President Obama’s offer while there’s still time to do so. Surely, the tribes can work together and find innovative solutions to resolve the land claims without relinquishing the Sioux homeland. Any agreement reached will still have to be approved by nine tribal councils and Congress. I also cannot stress enough that the OST stand up for a man who has devoted a life time to the tribe and not allow those to shed a negative light and slander a man who has been worthy of the name given to him, Nantan Hinapan, “Comes Out Charging."
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