Law | Opinion

Mario Gonzalez: Clearing up misunderstanding in Black Hills case

Tuesday, April 12, 2016

Mario Gonzales. Courtesy photo

What is the difference between the Black Hills Sioux Nation Council and the Black Hills Sioux Nation Treaty Council?
Clearing up the misunderstanding
By Mario Gonzalez, Esq.
www.nsweekly.com

The 1946 Indian Claims Commission Act required Indian tribes to file their land claims in the Indian Claims Commission ("ICC") within five years for monetary compensation.

The Sioux tribes filed their Docket 74 land claims in the ICC in 1951. In 1960, the ICC separated Docket 74 into two claims.

Docket 74-A was based on a “cession” of 34 million acres of 1851 Treaty land west of the Missouri River and 14 million acres of aboriginal title, non-treaty land east of the Missouri River. The Docket 74 Sioux tribes and their claims attorneys asserted that the language in Article II of the 1868 Treaty, which provided in part that "henceforth they will and do hereby relinquish all claims or right in and to any portion of the United States or Territories . . . .", constituted a cession of 48 million acres of land for which they were entitled to compensation. Docket 74-A was later changed back to Docket 74.

Docket 74-B was not based on a cession under the 1868 Treaty, but was instead based on a unconstitutional "taking" of 7.3 million acres of Black Hills territory 1877 in violation of the Just Compensation Clause of the Fifth Amendment. Docket 74-B was dismissed by the Court of Claims in 1975, and refiled in the Court of Claims as Docket 148-78 under a 1978 Special Jurisdictional Act. The Supreme Court affirmed the Court of Claims' award of $102 million for the Black Hills in 1980.

The $102 million award for Docket 148-78 in 1980 and a $44 million award for Docket 74 in 1989 (minus 10% attorney's fees) have now grown with interest to approximately $1.3 billion. The Tribal Treasurer of each of the Docket 74 Sioux tribes receive periodic financial reports from the BIA for both dockets.

Establishment of the Black Hills Sioux Nation Council
Prior to the 1934 Indian Reorganization Act ("IRA"), all the Sioux reservations had traditional forms of government. These governments had limited self-determination and were dominated to a large extent by the Agency Superintendent.

There were two secretarial elections under the IRA. The first was to adopt the benefits of the IRA. All the Sioux tribes voted to accept the benefits, which included continuing the trust period on allotted lands, which could have been lost through county tax foreclosures if the lands went out of trust status and the allottee was issued a fee patent.

The second secretarial election was to adopt IRA constitutions and bylaws. All of the Sioux tribes, except Standing Rock, Crow Creek and Yankton, adopted IRA constitutions and bylaws.

The 1937 Constitution and Bylaws of the Oglala Sioux Tribe provided that "[t]he tribal council may appoint delegates to represent the Oglala Sioux Tribe in National Sioux Councils." Around 1953, an organization called the Black Hills Sioux Nation Council (“BHSNC”) was established to advise the Oglala Sioux Tribal Council, and other tribal councils, on the Docket 74 land claims. Under its constitution, membership in the BHSNC consisted of one delegate and two alternates appointed by each Docket 74 Tribes.

Attending a BHSNC meeting in 1970: In the summer of 1970, between my first and second years of law school, I worked for Oglala Sioux Legal Services. One day, Tribal President Gerald One Feather asked me if I would be willing to travel to Washington, D.C. with Charles Under Baggage, David Long and Moses Two Bulls, the Tribe's BHSNC delegates and alternatives. He said they were going to Washington, D.C. to meet on the Black Hills Claim and it would be a good experience for me to go with them.

Read the rest of the story on the all new Native Sun News website: What is the difference between the Black Hills Sioux Nation Council and the Black Hills Sioux Nation Treaty Council?

(Mario Gonzalez has worked as the attorney for the Oglala Sioux Tribe and other tribal entities for more than 30 years. He can be reached at gnzlaw@aol.com)