By Ernestine Chasing Hawk, Native Sun News Managing Editor
RAPID CITY — When Attorney Mario Gonzalez was asked why S.D. Congressional leaders have said the “Black Hills Claim” issue is moot because it has already been settled he replied, “It’s not settled – until we say it’s settled.”
In 2008, during a campaign stop in Sioux Falls then Sen. Barak Obama gave Great Plains Indian tribes a ray of hope on the outcome of the century’s long legal battle over “theft of 48 million acres of their homeland.”
“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. 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.”
However one of the key elements to resolving the issue is “bringing together all the different parties” and with each passing day their “window of opportunity” shrinks as time ticks away for the Obama-Biden administration.
A. Gay Kingman-Wapato, executive director of the Great Plains Tribal Chairmen’s Association explained that shortly after Obama was elected, a meeting was held on the Standing Rock Indian Reservation where several chairmen brought forth tribal resolutions that dealt with how litigation on dockets 74-A and 74-B should proceed.
Because tribes need to come to a consensus and present a unified voice before the Obama administration, the GPTCA formed the Great Sioux Nation He Sapa Reparation Alliance whose role will be to “facilitate” the creation of a “Plan of Action – Position Paper” to hold the United States Government accountable for its violations of the 1868 Ft. Laramie Treaty.
It was decided that the alliance must proceed in a spiritual way and have their first meeting where the Sacred Bundle brought by Pte San Win (the White Buffalo Calf Woman) is kept.
“When this goes forward we felt that it needed to be with the pipe and in a spiritual way, otherwise we felt it would get derailed,” Kingman-Wapato said. “So the first meeting was at Green Grass and it was just wonderful.”
She said elders present were allowed to dream about the return of He Sapa (Black Hills) land and how they would build a Cultural Center and Museum where they would teach about who they were as Lakota people and where their priceless artifacts would be preserved for future generations.
Since then, most of the Great Plains Sioux Tribes have hosted meetings, but because it’s been more than 30 years since the Black Hills Claim was on the table, tribal members had to be re-educated, which has delayed the project.
Plans are currently underway to meet with the remaining Sioux tribes which include Spirit Lake and Fort Peck as well as Sioux tribes in Minnesota.
Kingman-Wapato said that they hope to craft legislation similar to the Martinez Bill. In 1990 H.R. 5680 was introduced to the 101st Congress by Democratic Rep. Matthew Martinez from California. The bill asks for no specific amount of money but calls for a blue ribbon panel to review the claims of the Sioux and advise Congress on fair and just compensation to resolve the Black Hills issue.
The legal battle over what has been referred to as Docket 74-A which began in 1922 is based on the argument that the Sioux never gave up any land and that the 1868 Fort Laramie Treaty was treaty of peace, not a treaty of cession.
The 1851 Fort Laramie Treaty gave the Sioux 60 million acres of land west of the Missouri. Gonzalez points out that the Sioux were never militarily defeated by the U.S. and would never have signed the 1868 Treaty had they thought they were ceding any land to the U.S.
History supports the Sioux as this excerpt about Red Clouds War from the Ft. Laramie website at nps.gov confirms.
“Accordingly, an Act of July, 1867 set up a new Commission to make peace, once and for all.
Arriving at Fort Laramie via Cheyenne in November, the Commission under General W. T. Sherman was dismayed to find no Sioux to parley with as planned.
Red Cloud refused to come in until the garrisons at Forts Reno, Phil Kearny and C. F. Smith were withdrawn. The Commission acceded and in March, 1868 the President ordered their abandonment.
However, it was not until the hated forts were totally evacuated in August, and then burned to the ground by the implacable Red Cloud, that he came in to Fort Laramie to affix the final Indian signature.”
“Mah-pi-ah-lu-ta” (Red Cloud) X mark appears on the Fort Laramie documents dated November 6, 1868.
However Gonzalez points out the Peace Commission snuck in “cession” language which was “contrary to the understanding of the Sioux” signers of the treaty.
Another argument the Sioux overcame in litigation was that the “various bands of the Sioux Nation held aboriginal title to the Black Hills based on use and occupation of the area for a long time.”
Sioux attorneys accomplished this by using a map which can be found in the book titled “Brief History of South Dakota” by Doane Robinson.
In later part of the 1600’s French fur trapper Charles Pierre Le Sueur’s traveled into the Louisiana Territory. Upon his return to France he furnished the information from which geographer De I’Isle made a map of the central portion of North America including eastern portions of South Dakota which showed it was occupied by various bands of the Sioux.
In 1980 Supreme Court said the Sioux were entitled to a mere $40 million dollars (Docket 74-A) for the “ceded land’ and na-cu the government wanted money back for the rations and other annuities they gave the Sioux in the 1800’s. This government action attests to the origin of the cliché, “Indian givers.”
In 1980, the Supreme Court also awarded the tribe $106 million dollars (Docket 74-B) on the ground the U.S. had taken the Black Hills and paid no just compensation in violation of the Constitution’s Fifth Amendment. As a result, the tribe realized almost none of the vast mineral wealth yielded by their stolen land.
The government then “ordered” the Sioux to act on the offer.
The Sioux refused and were outraged because the Claims Commission went behind their backs and without approval of all the Sioux Tribes implemented the governments offer as its final judgment and terminated docket 74-A. The attorneys signed a stipulated settlement and gave away 48 million acres of land and $3 million, all without the knowledge or approval of the Sioux.
Not a settlement
In the end the Sioux have refused the money and government officials continue to say the issue is moot.
Senator John Thune (R-SD) recently stated the Supreme Court decision resolved the issue. And according to Edward Lazarus during his last days in office, Democratic “Senate Majority Leader Tom Daschle did a neat little favor for one of his corporate constituents. As a rider to the defense appropriation bill, he attached a provision granting absolute immunity to the Barrick Gold Company of Toronto for any liability arising from the 125-year operation of its Homestake Mine, a gold-bearing gash in the Black Hills of South Dakota.”
Understanding the complicated court documents of the “Black Hills Claim” seems simple to Gonzalez who has been litigating the case for most his life. He offers a few words of wisdom to those who might call the 1980 U.S Court of Claims action “a settlement.”
“It is not a settlement. When you say that all you’re doing is adding to the white point of view. What it is, is being litigated, not settled. It will be settled when the Sioux Tribes agree to a settlement. That’s when it is going to be settled, it doesn’t matter what anybody else says,” Gonzalez said.
“Just because Daschle says it’s settled and just because Thune says it is settled doesn’t mean it’s settled. They are not our representatives; they are the enemy in this,” he continued. “Even Obama acknowledges it is settled when both governments agree. We are not lumped together with these non-Indians. You can’t be saying our congressional leaders. They don’t represent the Indians in these issues.”
A recent class action lawsuit brought by Kenneth Different Horse, Crow Creek Sioux Tribe, Miranda Rae Different Horse, Cheyenne River Sioux Tribe, Jennifer Lee Grassrope, Standing Rock Sioux Tribe, Geneva Watlemath, Lower Brule Sioux Tribe, Joe Bone Club, Standing Rock Sioux Tribe, Monica Bear Face, Standing Rock Sioux Tribe, Donald Weinberger, Fort Peck Sioux Tribe, Debra Boyd, Fort Peck Sioux Tribe, Larry Henry, Santee Sioux Tribe, Melissa Moore Ammon, Santee Sioux Tribe, Winona Henry Schultz, Santee Sioux Tribe, Ida Guerre, Rosebud Sioux Tribe, Chester Herman, Rosebud Sioux Tribe, Colin Campbell, Cheyenne River Sioux Tribe, Matthew Lamont, Cheyenne River Sioux Tribe, Sandra Harmon, Crow Creek Sioux Tribe, Kevin Sargeant, Crow Creek Sioux Tribe, Gaylene Long Stump, Oglala Sioux Tribe, Patrick Jack Long Stump, Oglala Sioux Tribe was filed on April 15, 2009.
The suit seeks to force the Sioux to take the money which according to sources has grown to nearly one billion dollars.
Gonzalez believes that is not a danger during the Obama administration because of the campaign statement made by Obama and that he does not see a judge ordering the Sioux to take the money.
He also said it was his understanding that when a June 1989 deadline passed that tried to force the tribes to submit a secretarial plan to congress, new legislation would have to be passed to provide for the use of the funds.
“It is my understanding that it takes a secretarial plan and there is no secretarial plan in place right now,” Gonzalez said.
In 2000 according to the census bureau there were approximately 150,000 people who identified themselves as Sioux Indians. As it stands right now there are probably approximately 200,000 lineal heirs to the Black Hills Claim, dockets 74-A and 74-B. With 20 percent set aside for tribal government and 10 percent attorney fees, each lineal decedent would receive approximately $3,500 if they were forced to take the money.
“To agree with the award at this time would be a slap in the face to all of our relatives who fought and died for our homelands in the Nineteenth Century,” Gonzalez said.
(Ernestine Chasing Hawk can be reached at firstname.lastname@example.org.)