The Fort Laramie treaty between various Sioux bands, the Arapaho, and the United States, while completed on April 29, 1868,133 had actually been under negotiation since late August of 1867 and had been one of the most difficult for the federal government to secure because the Sioux, especially their esteemed leader, Red Cloud, were an imposing military force the likes of which the United States had rarely encountered. Essentially, the treaty accomplished four major objectives: (1) It guaranteed peace between the Lakota and the United States (article I); (2) It established “for the absolute and undisturbed use and occupation of the Indians” the boundaries of the Great Sioux Nation Reservation (article II); (3) It guaranteed that there would be no unauthorized whites allowed within the boundaries of the reservation (article III); and (4) It guaranteed that the recognized Sioux land would never be subject to purchase by treaty with the United States “unless [said treaty was] executed and signed by at least three-fourths of all the adult male Indians, occupying or interested in the same . . . (article XII).” This last treaty provision is virtually identical to a similar provision in the Kiowa, Comanche, and Apache agreement discussed in the Lone Wolf case. It was a common provision in the latter treaties negotiated by the commission.
However, unlike the KCA Indians, whose “guaranteed” land rights were generally protected until the 1890s, the Lakota, within less than a decade, would witness their lands being invaded by gold diggers, silver miners, and unauthorized United States military personnel. Lt. Col. George A. Custer, in direct violation of the 1868 treaty, led an exploratory gold-seeking and fort-building expedition of nearly 1,000 men into the Black Hills of South Dakota in the summer of 1874. By mid-August their search for gold, unfortunately for the Lakota, proved a success. The Black Hills area was soon flooded with miners, speculators, and settlers, all seeking their fortunes in territory that they were illegally trespassing on.
Initially, the federal government tried to fulfill its treaty obligation by having the Army prevent non-Indians from entering the Great Sioux Nation Reservation. But yielding both to the pressure of individual entrepreneurs and to the undercurrent of economic “manifest destiny” that has characterized most government decisions with regard to Indian lands, the United States decided to attempt a purchase of the Black Hills from the Lakota Nation.134 The government sent in a commission, headed by William B. Allison, in an effort to negotiate this cession. The commissioners failed; the Lakota had no interest in ceding an area considered particularly sacred.
In the fall of 1875, a covert and collusive decision was made by President Grant, the secretary of the interior, and the Army’s commanding generals to violate the United States’ treaty promise to protect the Sioux from unauthorized non-Indian interference in their territory. The collusion between the federal officials is plainly revealed in three confidential letters which were finally released to the public in 1974. I cite each letter in full:
[Confidential] Nov. 9th (1875)
My dear Gen. Terry: At a meeting which occurred in Washington on the 3rd of November, at which were present the President of the United States, Secretary of the Interior, the Secretary of War and myself, the President decided that while the orders heretofore issued forbidding the occupation of the Black Hills country by miners, should not be rescinded, still no further resistance by the military should be made to the miners going in; it being his belief that such resistance only increased their desire and complicated the troubles. Will you therefore quietly cause the troops in your Department to assume such attitudes as will meet the views of the President in this respect. Yours truly,
P. H. Sheridan, Lieut. General (emphasis mine)
Chicago, November 13, 1875
My dear Genl Sherman: After my return from the Pacific, I was obliged to go East to see Mr. Chandler about the Black Hills and my report has thus been delayed.
Terry has been sick, but is now better and I am expecting his report daily.
The enclosed copy of Confidential letter to Terry will best explain the present status of the Black Hills. The whole thing has gone along about as I had expected. The Terry letter had best be kept confidential.
Yours truly, P H Sheridan. (emphasis original)
[Headquarter Army of the United States]
St. Louis, Mo., November 20, 1875.
Gen. P. H. Sheridan,
Chicago, Ill.
Dear General: Your letter of Nov. 13 with enclosure was duly received, and would have been answered immediately. Only I know that the matter of the Black Hills was settled in all events for this year. In the spring it may result in Collision and trouble. But I think the Sioux Indians are all now so dependent on their rations, that they will have to do whatever they are required to do. My own idea of their Treaty is that settlements may now be made all along up the Western Boundary. And if some go over the Boundary into the Black Hills, I understand that the President and the Interior Department will wink at it for the present. Truly your friend,
W. T. Sherman.135 (emphasis original)
These letters show that the Grant administration was knowingly and secretly violating Article II of the 1868 treaty which had said that the United States would never allow unauthorized persons to “pass over, settle upon, or reside in the territory described. . . .” In fact, the President, his generals, and the secretary of the interior intentionally kept this decision from the Senate and from the House of Representatives.136 By quietly withdrawing the Army from the Black Hills, the government was signaling to interested whites that the Black Hills were open territory. Soon thereafter, the Black Hills were overrun with miners and others anxious to establish their claims in Lakota Territory.
The commissioner of Indian affairs, in an overt effort to challenge and incite the Sioux to a military response, issued a controversial directive in January 1876 which declared that any Sioux found away from their agencies were to be considered “hostile.” Such a declaration meant that the United States military were authorized to use all available means to “suppress” the Indians. It apparently did not matter that the Sioux, who were not even assigned to agencies, were engaged in essential and treaty-recognized hunting activities within their own territory, or that without the ability to hunt they would, in all likelihood, starve to death, since the winter of 1875–1876 was particularly severe. At this point, Lt. Col. Custer was sent with the decorated Seventh Cavalry to engage the allegedly “hostile” Sioux. When Custer located the Indians on the Little Big Horn River on June 26, 1876, he and his command were overwhelmingly defeated by a sizable force of Lakota, led by Sitting Bull.
Congress was incensed and embarrassed at this shattering defeat and attached a rider to the 1876 Appropriation Act which illegally denied the Sioux all further appropriations and treaty-guaranteed annuities (a violation in itself) until and unless they agreed to sell the Black Hills to the United States. This remarkable act has come to be known as the “sell or starve” rider.137 The United States then sent out another treaty commission, this time led by George W. Manypenny and Henry Whipple. They brought with them a proposed agreement for the Lakota to consider.
The commission hoped to obtain the requisite number of signatures—three-fourths of adult males—as required by the 1868 treaty. Although a number of Sioux were starving, because of the fighting and the annuity and appropriation freeze, they still refused to sell their beloved Black Hills.138 The commissioners were able to muster the signatures of only ten percent of the adult Sioux males. The fact that the Congress would go so far as to enact a “sell or starve” provision may have alerted the Sioux that regardless of their commitment to the treaty agreement or refusal to sign the current document, the United States had every intention of securing the Black Hills, notwithstanding the 1868 treaty and the prior agreements (the various Sioux tribes had negotiated seven other treaties with the United States) which had been negotiated between the parties.
The commission returned to Washington with the agreement containing the signatures of only ten percent of the a
dult Sioux males but “claimed that since their [Lakota] Chiefs sometimes represented their bands politically,” that they in fact “represented” three-quarters of the adult males. Congress, on February 28, 1877,139 simply attached a preamble to this alleged “agreement” and declared it law. It was, in fact, a unilateral, illegal taking of 7.7 million acres of Lakota territory in direct violation of the treaty provision requiring the consent of three-fourths of all adult Sioux males.140
The Sioux, under the agreement, received no monetary settlement. Their only “compensation” for the loss of over 7 million acres of land, interestingly enough, was a continuation of the previously secured annuities, and the promise of schools and instruction in mechanical and agricultural arts. The government also promised to provide heads of households with additional “subsistence” in the form of small amounts of beef, flour, corn, coffee, sugar, and beans. These rations were to continue until the Indians could “support themselves.” The only lasting benefit secured through the agreement was that the head of a family was entitled “to a comfortable house” after he or she had selected an allotment of land. This was an amazing deal for the United States. The federal government had just “legally” sanctioned an illegal agreement which gave the United States title to nearly 7.7 million acres of Sioux land in exchange for (1) another promise to meet its 1868 treaty pledge to provide annuities; (2) a meager amount of subsistence rations (beef, flour, and corn); and (3) the promise of a home once an allotment was selected. But, as Deloria has argued:
Even if one were to follow the argument of the United States and argue that the 1876 agreement was legal (and this sentence is in no way to be construed as indicating that the agreement was a legal act) even then the United States did not fulfill its promises. The 1876 agreement promised that the government would build comfortable houses for every Indian who would agree to take an allotment. Needless to say the government never did anything of the kind. Rather, the 1876 agreement’s terms were forgotten as soon as the area was secured to the United States.141
The succeeding five decades—the 1880s through the 1920s—were arguably the darkest years for the Lakota people. Under the so-called Crook Treaty in 1889, the Sioux lost an additional 11 million acres of land in the breakup of the Great Sioux Reservation and had the remainder subdivided into six smaller reservations. And Bureau of Indian Affairs policies aimed at dominating virtually every phase of the lives of the Lakota resulted in the effective disempowerment of traditional tribal leadership.142
GENESIS OF THE SIOUX NATION’S JUDICIAL EFFORTS
By 1915 a number of business councils had formed on the separate Sioux reservations. While not vested with substantive political authority, since they were largely controlled by Indian agents and superintendents and were usually convened only by the government agent, they nevertheless began to give voice to the Lakota feeling of betrayal by the federal government regarding their lands.143 These Sioux had never accepted the loss of the Black Hills, but although they were vocal in their protestations, for many years they had virtually no legal or even political means of seeking redress.
Their first opportunity for a measure of justice arrived in 1920 when Congress authorized the Sioux to bring their claim against the United States before the Court of Claims.144 The eight bands of the Great Sioux Nation,145 through their lead attorney, Ralph Case, on May 7, 1923, filed the Black Hills claim, Sioux C-531. This petition was actually divided into twenty-four separate claim petitions, which contained all the allegations set forth in the original petition,146 asserting that the United States had illegally taken the Black Hills and had generally failed to fulfill its treaty and trust obligations to the Sioux bands, which they maintained was a violation of the Fifth Amendment to the United States Constitution. On May 7, 1934, on the eleventh anniversary of Case’s original filing, the Sioux lawyers submitted twenty-four “Separate Amended Petitions” to the Claims Court on behalf of the Sioux Tribe.
Bound in a single volume of more than three hundred pages, each amended petition detailed a single Sioux claim, for the first time defining in legal terms the many grievances vaguely alluded to back in 1923. The Indians brought suit for nearly $1 billion. This included $40 million plus 5 percent interest for the misappropriation of funds pursuant to the 1889 land cession, $14 million for undelivered annuities, $12 million for deficient education programs, and $8 million for insufficient rations and clothing.147
The Sioux’s major claim was the Black Hills claim, C-531-7, which entailed the value of over 73 million acres of land that the Sioux alleged had been illegally taken under the 1851 and 1868 treaties. They sought compensation in the amount of $189,368,531.05 for their land loss, since by law they were not entitled to seek the actual return of land.
The overwhelming majority of lesser Sioux claims were dismissed by the Court of Claims. Although in several cases the Sioux were awarded judgments, the Court of Claims determined after an accounting that the amount of allowable offsets exceeded the amount of the award and the petitions were dismissed.148
On June 1, 1942, the Court of Claims rendered its harshest blow to the Sioux in the Black Hills claim, the largest of the twenty-four suits. In Sioux Tribe of Indians v. United States, the Court dismissed the Sioux petition on the grounds that the Black Hills claim was essentially a moral claim not protected by the Fifth Amendment and therefore fell outside the jurisdiction conferred by the 1920 act.149 This decision prompted a plethora of litigation that would culminate in the decision under discussion.150
When Congress established the Indian Claims Commission (ICC) in 1946, the Sioux received another opportunity to file their claim. On August 15, 1950, the Sioux counsel resubmitted the tribes’ claim. In 1954, the ICC entered what it termed a “final judgment” and dismissed the tribes’ plea on the basis that the Sioux had “failed to prove their case.”151 Interestingly, the commission “disposed of this large and complex litigation after a hearing which lasted two hours and twenty minutes.”152 The Sioux appealed to the Court of Claims, which affirmed the dismissal.153 The Sioux Nation then hired new attorneys and petitioned the Court of Claims with a motion to vacate their affirmation because the ICC’s decision had been reached “on the basis of an incomplete record due to inadequate representation by former Sioux counsel and that respondents’ [Sioux Tribe] rights should not be prejudiced by his erroneous factual concessions.”154 The Claims Court granted this motion and in 1958 ordered the ICC to reconsider its judgment.
Some sixteen years after the initial refiling, and after a complicated and time-consuming series of hearings, pleadings, and petitions, the ICC rendered its “principal decision,” which totaled 212 pages. The Commission held (1) that the Black Hills land and precious minerals, mainly gold, had a fair market value on February 28, 1877, of 17.1 million dollars; (2) that the 1877 agreement did, in fact, constitute a “taking” of Sioux land and rights for which just compensation was due under the Fifth Amendment; (3) that the United States had effectively waived the res judicata defense; (4) that 2,250,000 dollars in gold had been illegally removed from the Black Hills by trespassing miners before the 1877 agreement, and that this gold had an in-ground value of 450,000 dollars, for which the United States was liable; and (5) that the United States should be credited for the food and other rations (the amount to be later determined) it had furnished to the Sioux under the 1877 agreement.155
The federal government immediately appealed this decision, arguing that the Sioux’s Fifth Amendment claim should have been barred by res judicata156 or, in the alternative, that the 1877 act did not constitute a “taking” for which just compensation was due. Even as the government’s appeal was pending, Congress enacted a law157 in 1974 aimed at addressing the ICC’s determination of offset costs that the United States had paid out to the Sioux. The Senate Committee on Interior and Insular Affairs was flabbergasted that the government would attempt to offset the cost of supplies and rations it had expended on behalf of the Sioux against whatever settlement was reached.
As the Senate report stated:
Having violated the 1868 Treaty and having reduced the Indians to starvation, the United States should not now be in the position of saying that the rations it furnished constituted payment for the land which it took. In short, the Government committed two wrongs: First, it deprived the Sioux of their livelihood; secondly, it deprived the Sioux of their land. What the United States gave back in rations should not be stretched to cover both wrongs.158
In 1975, the Court of Claims, in a majority ruling but without reaching the merits of the case, held that its 1942 opinion, whether “rightly or wrongly” decided, gave rise to a valid res judicata defense to the Sioux’s claim for just compensation under the Fifth Amendment.159 The Supreme Court again denied certiorari.160 What the Claims Court decision meant was that the Sioux’s 17.5 million award, plus interest, had been lost. However, the ICC had also stated that the federal government had taken the Black Hills using dishonorable and unfair procedures. The Lakota, therefore, were entitled to damages of at least 17.5 million, without interest, under section 2 of the ICC Act, and for the value of the gold taken by trespassing prospectors before the 1877 act.
When the case returned to the ICC from the Court of Claims, the value of the rights-of-way obtained by the United States under the 1877 act was determined to be $3,484 dollars. In addition, the ICC ruled that the government had not made any payments that could be considered offsets. Then, on October 15, 1976, the government moved for the commission to enter a final award in favor of the Sioux Nation for the amount of $17,553,484. They concluded, however, that the final judgment should be deferred because of pending congressional legislation. The matter lay in abeyance until Congress enacted legislation on March 13, 1978,161 authorizing the Court of Claims to review the merits of the case.
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