The Northern Pacific Railroad and the Sioux

Almost since the foundation of the United States, the westward expansion of the country was guided by Manifest Destiny, the idea that it was the country’s destiny to span the continent from the Atlantic to the Pacific. By the middle of the nineteenth century, it was clearly evident that the way of westward expansion would have to involve railroads which could then transport raw materials (minerals, timber, cattle, grain) from the west to the east and manufactured goods from the east to the west.

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The Black HIlls, 1950 to 1985

Following World War II, the United States decided that it wanted to sever its relationships with American Indian tribes. In order to do this, it needed to settle all possible legal claims which might arise out of its past dealings with the tribes. Thus, in 1946, Congress created the Indian Claims Commission to adjudicate all claims arising out of fraud, treaty violations, or other wrongs done to the Indians by the government. Under the Indian Claims Commission Act, a tribe could receive full and just compensation for wrongs. It was presumed that most of these claims would deal with land: lands which had been illegally seized from Indian tribes, land which had been purchased from them at less than their true market value, and damages to Indian land by non-Indian intruders.  

In 1950, the Sioux re-filed their claim for the Black Hills, South Dakota with the Indian Claims Commission. Eight tribes were a party to the case: Cheyenne River Sioux Tribe (South Dakota), Crow Creek Sioux Tribe (South Dakota), Lower Brule Sioux Tribe (South Dakota), Oglala Sioux Tribe of the Pine Ridge Reservation (South Dakota and Nebraska), Rosebud Sioux Tribe (South Dakota) Santee Sioux Tribe (Nebraska), Sioux Tribe of the Fort Peck Reservation (Montana), and Standing Rock Sioux Tribe (North Dakota and South Dakota).

Two years later, oral arguments were held regarding the Sioux Black Hills claim before the Indian Claims Commission. The attorney for the Sioux argued that the United States violated its trust obligations as guardian of the Sioux tribes when it acquired the Black Hills.

In 1954, the Indian Claims Commission rejected the Sioux claim on the Black Hills as the Commission did not feel that the United States had acted dishonorably. The Commission felt that

“it was a practical necessity that the lands be acquired by the defendant and made available to white miners.”

The Commission felt that the United States had not only tried its best to keep miners out of the Black Hills, but in addition Congress had generously appropriated funds to support the Sioux even after federal obligation to provide rations had expired. The Commission was either unaware or purposely ignored that fact that President Ulysses S. Grant had ordered the military to make no attempt to deter the miners from entering the Black Hills in 1875.

While the Sioux felt that the findings of the Indian Claims Commission were not correct, in 1956 the Court of Claims affirmed the Indian Claims Commission rejection of the Sioux claims. However, the following year, the Court of Claims vacated prior proceedings in the Sioux Black Hills claim. According to the Court, the claim had been decided on a distorted record in which the attorney for the tribes had made concessions contrary to fact and had failed to conduct significant research in the case.

In 1958, the Court of Claims ordered the Indian Claims Commission to reopen the Sioux claim for the Black Hills on the grounds that the Sioux had been inadequately represented and as a consequence an inadequate record had been presented.

In 1960, the Court of Claims allowed the Sioux to amend their original claim and to substitute two separate petitions: (1) a claim for lands outside of western South Dakota which were ceded under the 1868 Fort Laramie Treaty, and (2) a claim for property confiscated by Congress (the Black Hills). The Black Hills claim included claims for the land, the hunting rights, the placer gold which was removed, and three rights-of-way.

In 1974, the Indian Claims Commission awarded the Sioux $17.5 million for the Black Hills. The opinion of the Commission was that the Black Hills had been taken in violation of the Fifth Amendment and therefore the Sioux were entitled to just compensation. In addition, the Commission awarded the tribes compensation for placer gold which was removed and for the loss of rights-of-way. The total award was $105 million. The finding of the Indian Claims Commission was appealed by the United States.

In 1980, the Supreme Court in United States v. Sioux Nation of Indians affirmed the Court of Claims ruling and awarded the Sioux $106 million for the Black Hills. The monetary award was for the value of the land and minerals at the time of taking in 1877 plus interest. In the decision which clearly ruled that the lands had been taken illegally, Justice Blackmun wrote:

“A more ripe and rank case of illegal dealing will never, in all probability, be found in our history.”

In his dissent, Justice Rehnquist did not even bother to conceal his personal anti-Indian racism with legal arguments and wrote:

“the Indians did not lack their share of villainy either.”

Following the Supreme Court decision, the Court of Claims determined that the only issue remaining on the Sioux land claims for lands ceded in the 1868 Fort Laramie Treaty was the offsets to be allowed.  The government offered to settle the case for $4.2 million in offset costs but the tribes rejected the offer and demanded the return of all federal lands in the area.

In 1980, Mario Gonzalez, the tribal attorney for the Oglala Sioux Tribe, filed suit in U.S. District Court asking for recognition of Sioux title to the Black Hills and $11 billion in damages for denial of the tribe’s use and occupancy of the area. Gonzalez contended that the government had taken the land for the purpose of securing private mining claims rather than for the general public. The District Court dismissed the case claiming that it lacks jurisdiction. The tribe appealed, but also lost the appeal.

The Sioux did not want money for the Black Hills: they wanted this sacred land returned to them. They refused to take the money which had been awarded in their case and in 1982 the Committee for the Return of the Black Hills was formed. The Committee had one representative from each of the Sioux tribes who had been involved in the suit.

In 1985, Senator Bill Bradley (Democrat, New Jersey) introduced a bill in the U.S. Senate which would return the federally owned land in the Black Hills in South Dakota to the Sioux. Under his proposed bill, private ranches and businesses as well as Mount Rushmore would remain untouched. The bill was opposed by non-Indians in South Dakota and was defeated in 1987.

The Open Hills Association was formed by Senator Tom Dashle (Democrat, South Dakota) in 1990. The new association was dedicated to fighting all attempts by the Sioux to regain the Black Hills.

The reparation payment is currently being held in trust for the Sioux tribes. With interest it has grown to nearly $600 million. A large majority of Sioux tribal members, in spite of the poverty that is found on most of their reservations, continue to affirm that the Black Hills are not for sale and support attempts to regain the sacred area.

The Fight for the Black Hills, 1910 to 1943

The Black Hills in South Dakota is an area which is sacred to several tribes, including the Sioux, Cheyenne, and Arapaho. Geologically, the Black Hills are the site of an ancient upheaval that pushed the rocky strata far above the surrounding plains. The resulting peaks trapped the clouds and gave the region its own climate. During the summers, this was an area which was often used for ceremonies-sweat lodges, vision quests, and Sun Dances-and for gathering medicinal plants.  

In 1851, the United States, in the Treaty of Fort Laramie, assigned the Black Hills to the Sioux in spite of claims to this area by the Cheyenne and Arapaho. By 1875, there were at least 1,200 American miners in the area in direct violation of the treaty. Instead of following the law and protecting Indian rights, the United States ordered the Sioux to stay away from the region and then engaged in a military campaign against them in an attempt to acquire title to the area. In 1877, the Sioux were forced to relinquish their rights to the Black Hills. The new agreement ignored the provision in the 1868 treaty which required three-fourths of adult Sioux males to sign any land cession agreement. Instead, the chiefs and two head men from each tribe signed. At this time, neither Congress nor the American public was in a mood to be bound by legal technicalities.

By the first part of the twentieth century, the Sioux began a new battle, this time in the American courts, to regain the Black Hills. In 1910, a Sioux delegation from the Standing Rock Reservation in South Dakota travelled to Washington, D.C. where they met with attorney Z. Lewis Dalby to discuss the Black Hills situation. Dalby studied the matter and concluded that a successful claim would be doubtful. In spite of this negative report, the following year the Black Hills Treaty Council was organized on the Cheyenne River Sioux Reservation to prepare a suit in the U.S. Court of Claims.

In 1913, Sioux historian Bad Heart Bull (also known as Amos Bad Heart Buffalo and Amos Bad Heart Bull) died at the age of 74. In 1890 he had begun a project of recording tribal history based on what the elders had taught him. The history was done in a pictorial (Winter Count) format and consisted of more than 400 pictures. Among the pictures is a map of the Black Hills which emphasizes its sacred sites.

Fighting to regain the Black Hills in the American legal system costs money. In 1914, the Sioux began to stage “singings” at reservation dance halls as a way of raising money to pay for legal representation and related costs in their fight to regain the Black Hills. The agents on the reservation opposed this fight and therefore responded by prohibiting the “singings.” In addition, the Indian Bureau refused to release any tribal money for pursuing their claim.

In 1917, a traditional Lakota chief, encouraged by the Lakota physician Charles Eastman, requested a council to discuss the Black Hills claim. The superintendent of the Rosebud Reservation recommended that the council be denied as the young men in such a council would not be likely to oppose the opinions of the elders. Consequently the Commissioner of Indian Affairs denied permission for the council.

Finally, in 1920, the Sioux were able to file a claim in the Court of Claims regarding the taking of the Black Hills in South Dakota.

In 1930, a Sioux delegation from the Pine Ridge Reservation in South Dakota, including Iron White Man, George Little Wound, Emil Afraid of Hawk, and Henry Standing Bear, travelled to Washington, D.C. where they met with the Commission of Indian Affairs to discuss their Black Hills Claim.

More than a decade after the case had been filed, the Court of Claims heard oral arguments on the Sioux claim for the Black Hills in 1941. There appears to be no record of this hearing and it is unclear as to whether or not any Sioux tribal leaders were actually present. In 1942, the Court of Claims rejected the Sioux claims for the Black Hills. Legal historians describe Judge Benjamin Littleton’s decision as a “masterpiece of judicial obfuscation.”

As the courts are rejecting the Sioux claims, the misinformation which was being fed to the general public increases. In 1942, Hollywood presented another picture of the Sioux in They Died With Their Boots On, a story of Lt. Col. George Custer’s defeat in the 1876 Battle of the Greasy Grass (Little Bighorn). Not only is Custer elevated to the rank of General, but he is also portrayed as the noble friend of the Indians, a man dedicated to protecting the Black Hills for the Sioux. Crazy Horse, on the other hand, appears to be inarticulate, immature, and perhaps somewhat insane.

In 1943, the Supreme Court refused to review the Court of Claims decision regarding the Sioux claim for the Black Hills. At this point it looked as if the Sioux battle for justice in the American legal system had been defeated.