Are the contracts permanent?  United States vs. Sioux Nation
Are the contracts permanent? United States vs. Sioux Nation
Native Americans, edited by Professor Jace Weaver.

For the past four years I have had the privilege of teaching a course in American Indian history in a double enrollment group. While I enjoy teaching this course, it can be difficult to find original sources. This year I had the opportunity to use Ashbrook’s Basic Papers. Native Americans, edited by Jace Weaver. This edition contains concise documents that provide useful contextual information. One of the documents from this collection that I used this year was Document 42.United States vs. Sioux NationJudge Harry Blackman, Judge William Rehnquist, June 30, 1980

An important condition for teaching American Indian history is the emphasis on the language of treaties. These documents form the legal basis for interaction between sovereign Indian peoples and the government of the United States of America. These agreements were often used by indigenous peoples in an attempt to obtain rights and lands codified and enshrined as law in the Constitution (Article II, Section 2). Too often, the United States government has broken the promises made in these documents.

Supreme Court decision in United States vs. Sioux Nation, presents students with a case that demonstrates the legitimacy of treaties in federal courts. This is a relatively recent decision that goes back to the history of westward expansion and the efforts of the indigenous people to preserve their sacred sites. The treaty at the heart of the case is the Treaty of Fort Laramie of 1868. This treaty reflects the strong position of the Lakota and their Cheyenne and Arapaho allies at the conclusion of the Red Cloud War. This conflict was known for U.S. Army defeats such as the Battle of Fetterman, a battle that killed 81 soldiers and made a name for a young Oglala warrior named Crazy Horse. The United States was forced to sue for peace, and as a result of the treaty, the Great Sioux Reservation was created, which included the sacred Black Hills.

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View of the Black Hills, National Park Service.

The terms of the Fort Laramie treaty were generally favorable to the Lakota and their allies. It is important for students to understand how the American Indian peoples resisted westward expansion and how they were notably successful in Red Cloud’s War. The United States agreed to remove several forts from the Bozeman Trail, and the Great Sioux Reservation effectively represented all of present-day South Dakota. The inclusion of the Black Hills was critical from a Lakota perspective. The Black Hills were a sacred place and they were determined to uphold it. Article XII of the treaty states: “No treaty for the assignment of any part or part of the clause herein described, which may be general, shall have any validity or effect with respect to the said Indians unless signed and signed by at least three – a quarter of all adult male Indians employed or interested in the same. This provision provided protection against an alternative minority-brokered deal with the government, as had happened among the Cherokee decades before. The Treaty of Fort Laramie of 1868, negotiated from a position of strength, provided the Lakota with lands that preserved their people for the future.

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Sitting Bull. Dix and Meade Bailey (1882). National Portrait Gallery, Smithsonian Institution

Circumstances had changed by 1877, when new agreement was enshrined in law between the Lakota and the United States. General George Custer led a military expedition to the Black Hills in 1874 and discovered gold. A wave of illegal miners flooded the Great Sioux reservation, prompting the Lakota to defend their land. The Battle of the Little Bighorn in 1876, in which General George Custer met his ignominious end, hardened American attitudes towards Indian bands living off the reservations. Subsequent U.S. military campaigns against the Lakota and Cheyenne greatly reduced indigenous autonomy, saw Sitting Bull flee to Canada, and the killing of Crazy Horse at Fort Robinson, Nebraska. This was the context in which the US Congress modified the terms of the previous 1868 Treaty of Fort Laramie and took the Black Hills from the Lakota, greatly reducing the land base of the Great Sioux Reservation. Only ten percent of adult males agreed to these new terms, a violation of the original contract, which required three-quarters of adult males to agree to any change.

The Lakota never agreed to the “forcible confiscation” of the Black Hills, their sacred site, in 1877. They sought redress in Congress and launched a series of lawsuits that eventually led to a Supreme Court decision in 1980.

Referee Blackman wrote an 8-1 majority decision. Blackman was quick to point out that the case involved the Black Hills and the establishment of the Great Sioux Reservation under the terms of the 1868 Fort Laramie treaty. Blackman then demonstrated that the 1877 law had “the effect of repealing the earlier treaty of Fort Laramie. Blackmun reached this conclusion based on the wording of the original treaty, specifically Article XII, which stated that three-quarters of all adult Indians had to agree to any cession of land. Blackmun’s writing in this part of the majority is clear and concise. It is based on treaty language and effectively illustrates the historical grievances of the Lakota people.

Blackmun and colleagues also concluded that the 1877 Act did not result in “a simple change in the form of investment in Indian tribal property.” Rather, the Act effected a “seizure of tribal property” that had been set aside for the “exclusive occupation of the Sioux under the Treaty of Fort Laramie, 1868.” The court ruled that the United States government must pay just compensation, including compound interest, to the Lakota people for the capture of the Black Hills.

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Collection of the Supreme Court. Rehnquist Court (1990–1991). Seated, left to right: Judges Harry Blackmun and Byron R. White, Chief Justice William H. Rehnquist, and Judges Thurgood Marshall and John Paul Stevens. Standing, left to right: Anthony M. Kennedy, Sandra Day O’Connor, Antonin Scalia, and David H. Sauter.

In his dissent, Justice Rehnquist argued that Congress in 1978 overstepped its constitutional limits when it passed legislation allowing a new trial in the midst of the Lakota Nation’s litigation against the U.S. government. According to Rehnquist, this was “nothing other than the exercise of the judicial power enshrined in Art. III courts which cannot be exercised by the Legislature. While Rehnquist’s point is noteworthy, he continued: “It seems unfair to me to judge in the light of ‘revisionist’ historians or the mores of another age the actions that were taken under the pressure of time more than a century ago.” actions in 1877. This opinion is contrary to the recognition of the legitimacy of treaties. Moreover, it shows a lack of sympathy for the real situation of the Lakota people at the present time. The Black Hills has become a major tourist destination thanks to the construction of Mount Rushmore. The fact that such a structure is a desecration of a shrine is only part of the story. Reservations such as Pine Ridge, Rosebud, and Standing Rock, where the Lakota live, are among the poorest places in the United States. The claim that “revisionist historians” had somehow misinterpreted the wording of the Fort Laramie treaty struck my students as disingenuous and further evidence that obtaining treaty rights from the government would be an uphill battle.

United States vs. Sioux Nation is an important case to study. The Black Hills are sacred to the Lakota, but they’ve become kitschy Americana, with motorcycle rallies and a stone building dedicated to the men who helped take over the native land. In upholding the validity of the Fort Laramie treaty, the Supreme Court in United States vs. Sioux Nation confirmed the importance of treaties and their place in American Indian studies. The language of the 1868 Fort Laramie treaty and the lands of the Great Sioux Reservation continue to matter, as the protests over the North Dakota Access Pipeline have shown. Ultimately, the fact that some of the poorest Americans continue to refuse fiscal compensation for taking over the Black Hills, now valued at more than $2 billion, illustrates the centrality of the land and the spiritual power of the Black Hills to the Lakota people.

Reed Benson Offers Honest Report and Encouraging Questions on US History

Reed Benson is a 2018 MAHG Graduate and teacher at Cass Lake Ben High School in Cass Lake, Minnesota.

Recommendations for further reading:

Blackhawk, Ned and Means, Geoffrey D. “The Dark History of Mount Rushmore.”

Hamalainen, Pekka. Lakota America: A New History of Indigenous Power. New Haven, CT: Yale University Press, 2019. 273–286.

Smithsonian Institution: National Museum of the American Indian, “Treaties of the Northern Plains: Should the Treaty Be Perpetual?”

Faithful, David. Heartbeat of a Wounded Knee: Native America 1890 to the Present. New York, NY: Riverhead Books, 2019. 151–161.