Native Sun News Today: A long history of stealing Lakota land

Monday, April 8, 2019  

RAPID CITY— From the corner window of his downtown law office, Oglala Sioux tribal attorney Mario Gonzalez can look out across a bustling cityscape, at dark, pine mantled ridgelines that run fifty miles west to the Wyoming border, and tower to 7,244 feet, the highest point east of the Rocky Mountains.

Called Paha Sapa by the Lakota people, Gonzalez has spent most of his life battling to maintain his tribe’s claim to an ancient mountain range they consider the sacred heart of their world. That world stretched from northern Colorado to central North Dakota, from central Wyoming to eastern South Dakota. It is debatable when the Oglala first established dominion over this vast territory, but that dominion was well established before the United States became a country.

Throughout that half century legal struggle, challenges have come from many fronts and in many forms, but Gonzalez has held to one overarching assertion— “The Oglala Sioux Tribe has not ceded one acre of land.” This assertion can be defended by reviewing the chronology of land lost to the government, and by the finding of the Indian Claims Commission (ICC) itself concerning the 1868 Treaty: “… the evidence is overwhelming that the Sioux would never have signed the treaty if they thought they were ceding any land to the United States.”

France laid claim to much of the American heartland, but relinquished that claim to the United States in 1803, via the Louisiana Purchase. This purchase would eventually be processed through a system of interaction, between invading European powers, and the aboriginal inhabitants of the invaded land, called the Doctrine of Discovery. The technical aspects of that relationship were laid down in 1823 by Chief justice John Marshall in Johnson v McIntosh.

According to Gonzalez, “All Indian land was regarded as aboriginal title land, and a tribe had to show they used the land ‘for a long time’ (ICC wording) before they could establish aboriginal title. To get recognized title you had to enter into a treaty with the United States where the United States recognized the title, or an Act of Congress recognized it, and once recognized, it came under the protection of the Fifth Amendment. Aboriginal title is not protected by the Fifth Amendment, but— recognized title, is.”

“Under the Doctrine of Discovery,” Gonzalez explains, “a European nation that ‘discovers’ a new territory, has the right to extend their dominion over that territory, and that includes their own laws and regulations over that territory. But according to Johnson v McIntosh, the Indians right of occupation was just as sacred as the fee simple of the Whiteman, so you couldn’t just disregard it. Under the Doctrine of Discovery, the discovering nation could not get fee simple title to the land without extinguishing the underlying aboriginal title of the natives. The United States bought the right to extinguish aboriginal title from France, and the United States got the right to extend dominion over the area, but they also got the right to extinguish aboriginal title. They didn’t actually get possession of the land.”

That reality necessitated treaty based relationships with tribes, most capable of formidable hostile reaction if they perceived a threat, the Oglala being a textbook example. In 1825, the tribe sat down with government representatives.

“That was our first treaty,” Gonzalez said, “that recognized our relationship with the United States.”

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Hundreds gathered for a historical four-day event in April 2018 to commemorate the 150th anniversary of the signing of the Fort Laramie Treaty of 1868.

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Nine years later, in 1834, a Congressional Act stated: “No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” 

This Act reiterated the Doctrine of Discovery, that aboriginal title became recognized title, protected by the Fifth Amendment, through treaties.

The thing to keep in mind about the Doctrine of Discovery is it was just rationale, and in this case, a method whereby the Louisiana Purchase could be unreservedly transformed from aboriginal title to recognized title, to land ceded, from tribe to government, through the signing of treaties. To that end, the United States had a long term plan, and the next stage was the 1851 Reservation Policy Appropriation Act. Gonzalez: “The goal was to create Indian reservations and reduce tribal land holding to make more room for non-Indian settlement, and to turn tribes like the Sioux from a hunting culture into a farming culture. To make them farmers.”

To begin transforming vast tracts of aboriginal territory into the United States proper, the government needed a treaty. The 1851 Fort Laramie Treaty, given 20/20 hindsight, was the beginning of the end for the traditional Oglala. The territory of the Lakota and their Yankton cousins, had to be better defined. The 1851 stipulated territory was still vast, at 60-million acres, but boundaries had now clearly been drawn, boundaries that could be addressed, and most importantly, reduced, by subsequent treaty machinations, more so than mutually understood agreements.

One can only speculate what the next step would have been had not the bloodiest war in United States history put the entire plan on indefinite hold. The Civil War ended in 1865, and settlers and miners began moving up the Bozeman trail in great numbers, disturbing the bison haunts of the Powder River country west of the Black Hills. Red Cloud protested, the government did nothing, so the Oglala and their allies went on the warpath.

Unlike many previous Indian wars, the United States had taken hold of a tiger tail, and did not hand the Lakota and their allies a single defeat. Not surprising, then, Red Cloud went to the Fort Laramie peace treaty negotiations in 1868 figuring he was in a pretty good bargaining position. As with the 1851 Treaty, the Oglala had zero intention of ceding a single acre, and according to the Indian Claims Commission findings, at no time during these negotiations, did they ever do so. There were 34 million acres outside the 26 million acre Great Sioux Reservation, established by the 1868 Treaty, but the Lakota did not agree to ceding a single acre of that land.

It was their understanding this was a peace treaty, to end the Powder River War, because they had no Indian Law lawyers to inform them that a deadly threat loomed in the form of the Doctrine of Discovery, and that the entire intent of treaties was not to make peace, or establish respected boundaries, or mutually beneficial relationships, but to transform aboriginal title to recognized title, and then transform recognized title into land for the Whiteman and cubby hole reservations for what remained of the Indian.

Forced to the bargaining table by a tribe they could not readily defeat militarily, the United States was laying in the negotiation weeds, and once they got the tribes to the peace treaty table, they got them to sign a document, a document which became a different document with altered language.

James Giago Davies is an enrolled member of the Oglala Lakota tribe. He can be reached at skindiesel@msn.com

Copyright permission Native Sun News Today