Learning from the Treaty

On June 30, 1980, the U.S. Supreme Court decided that the “Sioux Nation” was entitled to $17.1 million for the 1877 taking of the Black Hills from the Great Sioux Reservation in violation of the 1868 Fort Laramie Treaty. In addition, the Court awarded interest on that sum to be paid from the time of the taking of the land. 

According to the treaty, any cession of lands from the Great Sioux Reservation must be agreed to by 75% of the adult male Sioux population. In 1876, the U.S. government obtained signatures from only 10% of that population to an agreement to relinquish the Black Hills, plus two additional land areas stipulated in the treaty, in exchange for subsistence rations. The U.S. took these lands in 1877 by a Congressional Act that implemented the agreement. 

Today, forty years after the Supreme Court’s decision, the Sioux Nation still has not accepted any of the principal sum or the interest. But the Sioux Nation’s lawyers, however, did take a 10% commission from the $102 million settlement.

The 1868 Fort Laramie Treaty contains 17 articles. Article 2 stipulates the boundary of the Great Sioux Reservation. Article 16 specifies an extensive “unceded territory” beyond the south, west and north boundaries of the Great Sioux Reservation, and Article 11 describes “hunting lands” south of the unceded territory.

Article 11 also includes seven agreements by the Sioux Indians, each described in a separate paragraph. The 6th paragraph states:

“They withdraw all pretense of opposition to the construction of the railroad now being built along the Platte River and westward to the Pacific Ocean, and they will not in future object to the construction of railroads, wagon-roads, mail-stations, or other works of utility or necessity, which may be ordered or permitted by the laws of the United States. But should such roads or other works be constructed on the lands of their reservation, the Government will pay the tribe whatever amount of damage may be assessed by three disinterested commissioners to be appointed by the President for that purpose, one of said commissioners to be a chief or head-man of the tribe.”

This is fascinating because the U.S. agreed to pay the Sioux Nation for all constructions in the Great Sioux Reservation. From 1868 to 1877, that reservation included all of what is now western South Dakota, including the Missouri River. Then, from 1877 to 1889, the reservation was reduced by the taking of the Black Hills. In 1889, the Great Sioux Reservation was further reduced and split into five reservations that still exist today: Standing Rock, Cheyenne River, Lower Brule, Rosebud, and Pine Ridge. 

Moreover, the compensation for the constructions is to be determined by three “disinterested” commissioners appointed by the President of the U.S., one of whom was to be a recognized leader of the Sioux Nation. Presumably another of the commissioners was to be a representative of the U.S. and the final member was to be an independent arbitrator. 

Such decision-making equity between representatives of the Sioux Nation and the United States is a far cry from how Indian-White issues are often approached today in South Dakota. 

Take, for example, the reaction of the governor of South Dakota to checkpoints that the Oglala Sioux Tribe and the Cheyenne River Sioux Tribe established on roads in their reservations in an effort to protect their citizens from the COVID-19 virus. Instead of conversation and negotiation, the governor, a White American, unilaterally demanded that the checkpoints be removed and threatened a lawsuit if they remained after 48 hours. It is now over 48 days later; the checkpoints remain and no lawsuit has been filed. 

Or consider the Bennett County Commissioners’ outrageous demands in regard to Sioux Indian lands over which they have no jurisdiction and incur no expenses. There are five commissioners, all White Americans, even though 60% of the county residents are American Indians. The land that is now Bennett County is entirely within the boundaries of the 1868-1889 Great Sioux Reservation, and the Pine Ridge Reservation since then. For over a decade, the Commission has been demanding that the federal government pay the county more than $1 million annually for the Sioux Indian lands that comprise approximately 25% of the county. 

When asked if they saw anything wrong with the Sioux owners of that land not having any representation on the commission, they answered “no.” When asked what they would do with the money if their absurd demand was successful, they answered, “reduce property taxes” on the non-Sioux lands. 

Arrogance, privilege and systemic racism must cease to be a part of contemporary decision-making and policy. Paragraph 6, Article 11 of the 1868 Fort Laramie Treaty is an excellent example of a much more equitable way for non-Indian decision-makers to proceed from now on.

(This article is also published in Lakota Times.)