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Reclaiming the Black Hills

POSITION PAPER ON LAKOTA RIGHT TO THE RECLAIMING OF THE BLACK HILLS
The Lakota Nation: Reclaiming the Black Hills
Introduction
The history of the Lakota Nation of Native Americans, commonly known as the Sioux Nation, is a prime example of the United States’ unjust, ethnocentric, and illegal treatment of Native American Indians. Furthermore, the Lakota* s legal and social crusade to reclaim the Black Hills provides a particularly excellent context in which to discuss the international implications of United States policy toward indigenous peoples and the failure of the United States to value Native American culture. Although the history of the Lakota nation is sadly typical of United States treatment of Native Americans, the seizure of the Black Hills is particularly suspect and telling of the ethnocentric and illegal quality prevalent in United States policy toward its relations with Native Americans. The case presents not only outright violations by the United States of previous treaties with the Lakota Nation but also implicit recognition of those violations and other genocidal behavior by the United States Supreme Court. See generally United States v. Sioux Nation of Indians. 448 U.S. 371 (1980).
The Sioux supposedly ceded the Black Hills to the United States by an “agreement” dated 1876 and effectuated through an Act of Congress, Feb. 18 1877, 19 Stat. 254-64. There is evidence that the Sioux were coerced into this agreement, that they did not fully understand its terms, and that the agreement violated the Treaty of Fort Laramie, Apr. 29, 1868, U.S.-Sioux, 15 Stat. 635^7 (hereinafter “1868 Treaty of Fort Laramie”). The Sioux Nation’s fight to reclaim the Black Hills was litigated in the Supreme Court in 1980. See Sioux Nation of Indians. 448 U.S. 390 (1980). fa Sioux Nation, the Court held that “the 1877 Act effected a taking of tribal property … set aside for the exclusive occupation of the Sioux by the Treaty of Fort Laramie of 1868. That taking implied an obligation on the [United States] to make just compensation.” The Supreme Court awarded the Sioux $105 million, but the Sioux refused to accept the money and demanded the return of their sacred land. See Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly 388-90 (University of California Press, 1994). This money has remained untouched in a trust fund accruing interest since the day it was awarded. Telephone Interview with Marie Lange, Lakota Chief (January 17,2001); see also Edward Lazarus, Black Hills White Justice 403-428 (University of Nebraska Press, 1999). The Sioux, ever defiant, sent a critical message to the United States and the international community that their invaluable, aboriginal homeland was never for sale.
In this context, the following discussion will establish the inherent sovereignty of Lakota Nation. Further, it will show that the Sioux never surrendered their sovereignty to the United States or any other European Nation. This task will include undermining the application to Sioux territory of the European self-serving, ethnocentric concepts constituting the Doctrine of Discovery, created during the 18th century, and expanded in preceding centuries, to justify illegal actions against indigenous native peoples. It will then establish outright violations of international law and the Treaty of Fort Laramie of 1868 by the United States. Through these violations, the United States illegally seized the Black Hills from the Sioux Nation, Finally, this discussion will conclude by establishing that the return of the Black Hills to the Lakota Nation, along with compensatory damages, is the only proper and just remedial action that can be taken by the United States. This will entail examining the Black Hills controversy in light of current international trends toward fuller recognition of the rights of indigenous peoples and the cultural importance of the Black Hills to the Lakota Nation.
I. POSITION PAPER ON LAKOTA RIGHT TO THE RECLAIMING OF THE BLACK HILLS
Section 201 of the Restatement (Third) of the Foreign Relations Law of the United States (1986) (hereinafter “Restatement”) codifies the requirements of a State under customary international law. A State must have (1) defined territory, (2) a permanent population, and (3) be under the control of a government (4) that engages, in or has the capacity to engage in, formal relations with other such entities. Id. The actions of other nations, in terms of their treatment and relations with a particular entity, are relevant to establish the statehood of an entity. Restatement § 201 cmt. a (1986).
During the 17 and 18th centuries, the international community generally treated Native American Indian Tribes as sovereign nations; this fact is apparent in the general practice of European treaty-making relations with the various Native American Indian Tribes before the United States came into being. See Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 Harv. Hum. Rts. J. 57, 93 (Spring 1999); see also Anthony Peirson Xavier Bothwell, We Live on Their Land; Implications of Long-Ago Takings of Native American Indian Property, 6 Ann. Surv. Int’l & Comp. L. 175, 177-183 (Spring 2000); see also Larry EchoHawk, Justice for Native Americans Requires Returning to Our Constitutional Origins, 4 Greenbag 2d 101 (1999). Customary international law requires there to be consent between sovereign nations if an agreement is to become a binding treaty. National Coalition Gov’t v. Unocal 176 F.R.D. 329, 345 n.18 (citing Siderman de Blake v. Argentina. 965 F.2d 699, 714 (9th Cir. 1992); see also John K. Setear, An Iterative Prespective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv. Int’l L.J. 139, 158-59 (1996). Thus, all of the treaties negotiated or formed between Native American Indians and any other European nation assumed a sovereign-to-sovereign relationship. Larry Sager, Rediscovering America: Recognizing the Sovereignty of Native American Indian Nations, 76 U.Det. Mercy L, Rev, 745, 748 (Spring 1999)1. This practice of treaty making with Native American tribes began long before the United States came into being. See Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly 21-22 (University of California Press 1994). Thus, it was established that Native American Indian Tribes were independent sovereign nations before the United States ever entered into its first treaty with a Native American Indian tribe.
Furthermore, contemporary United States Supreme Court opinions have explicitly recognized the inherent sovereignty of Native American Indian tribes that existed before the United States came into being. See Johnson v. Mclntosh, 21 U.S. 543, 545 (1823)(“North America … was held, occupied and possessed, in full sovereignty, by various independent tribes or nations of Indians.); see also Worchester v. Georgia* 31 U.S. 515(1832), This fact of sovereignty remains true, notwithstanding the subsequent development of modern ethnocentric “myths” concerning the extent of Native American culture and civilization. See Anthony Peirson Xavier Bothwell, We Live on Their Land: Implications of Long-Ago Takings of Native American Property, 6 Ann. Surv. Int’l & Comp. L. 175 (Spring, 2000). These ^myths’ have been perpetuated and devised in hindsight and ethnocentric ignorance to justify and ‘legalize’ illegal and genocidal treatment of Native Americans. See Id; Cf. Sager, 76 U. Det. Mercy L, Rev. 745 (Spring 1999). They are not consistent with historical fact or with international law.
This realization is important because the United States has often acted with self-serving duplicity toward Native American Indians; they have treated Indians as States when it served their purposes and, on the other hand, declared them not to be States when statehood, and all the legal rights and duties international law grants States, would frustrate their intentions. It is critical to note, however, that under international law, recognition as a State is not a precondition to statehood. See [1936] 2 Annuaire de rinstirut de Droit Int’l 300 (“The existence of a new State with all the legal consequences attaching to this existence is not affected by the refusal of recognition by one or more States.”). Recognition is merely declaratory. Thus, the fact that the United States may refuse to formally recognize the Sioux Nation as an independent and sovereign state, does not change the fact of its existence; nor does it change the historical facts that establish treatment by the United States of the Sioux Nation as an independent and sovereign state.
The Lakota Nation arguably possessed all the qualities of an independent and sovereign state as early as 1775. See Duone Robinson, A History of the Dakota or Sioux Indians, South Dakota Historical Collections, vol. 2. Pierre, SD, 1904; See generally Bothwell, 6 Ann. Surv. Int’l & Comp. L. 175 (Spring, 2000). Further, the Sioux possessed and maintained all these qualities when the Fort Laramie Treaty of April 26, 1868 was signed with the United States and at least until 1876 when the United States illegally seized the Black Hills in violation of the Fort Laramie Treaty of 1868,
The Lakota (Sioux) Nation
The Lakota Nation, possessing a permanent population and a defined territory, was identifiable by enemies and Europeans alike. See Francis Parkman, France and England in North America, vol. II, 345-347 (Literary Classics of United States, Inc., New York, NY 1983). Furthermore, it is apparent from the structure of Sioux political and social life that a government existed over that population and territory. Finally, the long history of Sioux relations with the United States of America establishes that the Sioux had the capacity to engage in and did, in fact, engage in foreign relations with other states.
The Lakota Nation consists of the Teton group of Sioux, the westernmost and largest of the groups that comprised the Sioux’s Oceti Sakowin, the Seven Council Fires. See Edward Lazarus, Black Hills White Justice 3-5 (University of Nebraska Press. 1991). The Teton. in turn, were divided into seven bands: the Oglala, Brule, Hunkpapa, Miniconjous, Sans Arc, Two Kettle, and the blackfoot. Id These are the Native American Indians associated with well-known historical figures such as Red Cloud, Sitting Bull, and Crazy Horse. Id Far to the east of the Teton lived their relatives, the four Santee groups: the Sisseton, Wahpeton, Wahpekute, and Mdewakanton. Id. In between the Teton and the Santee camped the two remaining groups, the Yankton and Yanktonai. Id The Teton, Santee, and Yankton called themselves Lakota, Dakota, and Nakota respectively, a reflection of their distinct dialects. Id [Their eastern enemies, the Chippewa, who lived much closer to the European settlements, had a different name for them, the nadoueissvw, or snakes, which the French shortened to the name Sioux. Id.
Around the 1770s, Standing Bull led the Teton west from their woodland homes at the head of the Mississippi River to the Great Plains and Paha Sapa, the Black Hills. Id The next generation of Sioux secured the Black Hills, expelling the Kiowa in 1814. Id A few years later the Sioux expanded their western border even further, taking the Powder River country (eastern Wyoming and part of Montana) from the Crow. Id At this point, and at all times after until the United States seized the Black Hills, the Sioux maintain permanent control over this defined territory. The Black Hills became the center of the Sioux “Empire” and acquired special meaning. Id The Hills were a source of fresh mountain streams, timber, and medicine plants that healed the tribe. Id The Hills became a holy place, a home to Wakan Tanka, the Great Spirit, the sum of all that was powerful, sacred, and full of mystery. Id When the first white Americans explored west, they found the Sioux in this homeland, spending every winter near the Hills, hunting on the Great Plains, and feared by every enemy. Id ] (this section is unacceptable according to Chief Richard Grass, as it is untrue that tribal nations were “divided” as reported erroneously by “white” historians. See the John Grass book for the “Indian” version of this history.)
Customary international law is clear that States need not have fixed or definite borders to meet the requirements of statehood. See Restatement § 201, cmt. b (1986). The requirement of defined territory simply means: “a State cannot be a disembodied spirit.” 3 U.N. S.C.O.R., 383 Mtg., Dec. 2, 1948, No. 128 pp. 8-12. The identifiable and recognizable domain of the Sioux clearly fits this requirement. Furthermore, the boundaries of the Lakota Nation were affirmatively set by subsequent treaty with the United States. See Treaty of Fort Laramie of 1868, 15 Stat. 635, art. 2.
Furthermore, the fact that the Lakota did not build permanent shelters but instead roamed their land does not change the permanence of their population. At all times since arriving in the Great Plains around the Black Hills the extent of the Lakota Nation’s population remained within this identifiable domain. See generally Robinson, A History of the Dakota or Sioux Indians, South Dakota Historical Collections, vol. 2. Pierre, SD, 1904. In the technical sense of the word, i.e., a group of individuals who were linked to the relevant territory by their way of life, the Lakota clearly had a permanent population. Thus, although divided into bands and freely roaming, their population was nonetheless permanent and their boundaries known to exist.
Sioux life on the Great Plains also denoted social organization and political control. The Sioux had designated camp police, the Akicita, patrolling to keep order. See Edward Lazarus, Black Hills White Justice 3-5 (University of Nebraska Press. 1991). The Sioux had classes of warrior societies with selective membership based on merit, each of which possessed various levels of political and social clout. Id Moreover, there were clearly designated chiefs, or representatives of particular bands, who maintained order and authority over those they represented. These chiefs met together in councils to discuss and decide major issues. Granted, the Sioux may not have governed themselves as centrally as Europeans; however, as noted by many modern historians, Native American culture in general can be argued to have been much more socially advanced and politically enlightened than its European counterpart. See Larry Sager, Rediscovering America: Recognizing the Sovereignty of Native American Indian Nations, 76 U. Det. Mercy L. Rev, 745, 748 (Spring 1999)(“Before Columbus arrived in the Americas, Indian Nations had organized democratic traditions: women had universal suffrage, and chiefs were treated as “servants of the people,” not their “masters”)(citing Felix Cohen, Americanizing the White Man, 21 Am. Scholar 177, 179 (1952)). In any respect, it is clear Sioux organized themselves and had a system that governed relations among themselves and others. This is enough to establish a government. Cf. Francis Anthony Boyle, Restoration of the Independent Nation State of Hawaii Under International Law, 1 St. Thomas L. Rev. 723, 725 (Summer, 1995).
Perhaps the most convincing evidence of the Lakota Nation’s statehood, and capable government, is its undeniable history of engaging in foreign relations with the United States of America. Under customary international law, whether an entity is a state can be inferred from the practice of other States. See Restatement § 201, cmt. a, (1986). The United States signed and ratified numerous treaties with the Sioux using practices indistinguishable from those used for treaties with other foreign nations. See Wiessner, American Indian Treaties and Modern Constitutional Law, 1 St. Thomas L. Rev. 567, 569-80 (1995).2 Notably, the Treaty Clause of the United States Constitution does not distinguish treaties made with Indian Nations from treaties made with any other categories of nations. “Therefore .,. the Framers and ratifiers of the Constitution understood the clause to apply to Indian nations exactly as it applied to other nations .. . [and] the consistent practice of the young United States [is clear evidence of this.]” Bothwell, 6 Ann. Surv. Int’l & Comp. L. 175, 199.
These treaties were negotiated with Sioux chiefs and other headmen, who possessed and exercised authority to make such agreements. It is sufficient for immediate purposes (of establishing Lakota sovereignty) simply to note that these treaties generally established peaceful relations between the United States and the Sioux. See e.g. 15 Stat. 635, art. 1; 7 Stat. 125-127, art. 2; 7 Stat 143, art. 2; 11 Stat. 749n, reprintedm Kappler, vol. 4,1065, art. 1 (“Aforesaid nations, parties to this treaty, having assembled forme purpose of establishing and confirming peaceful relations .. .”)(emphasis added). Declaring war and peace are traditionally exercises of sovereign power. See generally Oppenhiem, International Law, vol. II (7th ed. Lauterpacht, 1952). Furthermore, the Treaty of Fort Laramie of 1868 provided for the extradition of criminals found in Sioux territory. See 15 Stat. 635, art. 1. The 1868 Treaty also included a promise by the United States to protect and respect the territorial integrity of the Sioux Nation as established by the 1868 Treaty. See 15 Stat. 636, art. 2. These provisions seem to show a respect for the territorial sovereignty of the Sioux—a right and capacity traditionally reserved for States under customary international law. See_ Restatement § 206(a) (1986). These recognitions of Sioux statehood clearly suggest a capacity to engage in foreign relations and in fact establish such engagements.
United States and Lakota (Sioux) Relations
The Lakota Nation never surrendered its sovereignty to the United States. Legally and factually, the Lakota Nation remained a sovereign state at least, until 1877. Although the United States included language in treaties with the Sioux that might have suggested otherwise by European standards, the Sioux never considered themselves less 3 See fii. 2. than an independent and sovereign nation. Furthermore, and contrary to modern United States Supreme Court cases, the European ‘Doctrine of Discovery’ had no realistic, and should have had no legal, bearing on Lakota territorial sovereignty. See generally Bothwell, 6 Ann. Surv. Int’l & Comp. L. 175; see also Hugo Grotius, The Law of War And Peace 550 (Classics of International Law ed. 1925). Over time, the doctrine has been irrationally and unrealistically expanded from its original meaning and application to justify violations of international treaties and illegal treatment of Native Americans. See generally Nell Jessup Newton, At the Whim of the Sovereign: Aboriginal Title Reconsidered, 31 Hastings L, J. 1215 (July 1980); see also Milner S. Ball, John Marshall and Indian Nations in the Beginning and Now, 33 J. Marshall L. Rev, 1183 (Summer 2000).
The first official contact between the Sioux Nation and the United States occurred in August of 1804, when Merriwether Lewis and William Clark’s well-known expedition passed through Sioux country. See Edward Lazarus, Black Hills White Justice 9-10 (University of Nebraska Press, 1991), One of the purposes of the Lewis and Clark expedition was to announce to the Sioux that the United States was their new “sovereign,” by the Treaty of Cession of Louisiana, Apr. 30, 1803, U.S.-Fr., 8 Stat, 200-206(1803). See Lazurus, Black Hills White Justice 9-10. This claim of sovereignty by the United States was completely baseless. First, the Sioux may not have understood European concepts such as “sovereignty” and “kingdoms,” but it was obvious to them that they were the masters of the Great Plains including the Black Hills. Id. This announcement meant little to the Sioux and cannot realistically be given any legal effect. Furthermore, Lewis and Clark’s assertion of United States sovereignty was entirely erroneous both in terms of customary international law and historical reality; the Louisiana Purchase afforded the United States no power against the Sioux over Sioux lands.
It is so fundamental to the law of property that it almost does not need saying: a seller of land can only transfer title to the extent he possesses it. In other words, a seller can only transfer what he owns and a subsequent buyer’s title exists only to the extent that the seller previously possessed it. This fundamental maxim of property law is so common that it clearly qualifies as a general principle of international law because it is common to the majority of organized systems of law in the world. Indeed, it is a general principle that is virtually universal.
The extent of the United States’ boundaries prior to the Louisiana Purchase clearly ended at the Mississippi River. See Treaty of Friendship, Limits, and Navigation between Spain and the United States, Oct. 27, 1795, U.S.-Sp., http://www.vale.edu/lawweb/avalort/dipolmacv/spl795.htm (setting the southern border of the United States at the 31 degree latitude North and the western border of the United States in the middle of the Mississippi River). Thus, any rights to lands west of the Mississippi must have been transferred to the United States; indeed, the Louisiana Purchase was the basis relied upon by Lewis and Clark in their visit to Sioux Country. See Edward Lazarus, Black Hills White Justice 9-10. Ultimately, the French must have previously possessed whatever title over Sioux lands that the Louisiana Purchase purported to transfer to the United States.
The territory of Louisiana, as it was envisioned at the time of the Louisiana Purchase, was clearly much greater than the modern-day state of Louisiana. The exact extent of its envisioned boundaries, however, is difficult to determine—i.e. Louisiana’s boundaries are not defined by the Louisiana Purchase nor any of the other treaties purporting to transfer Louisiana between France and Spain. See Treaty of San Ildefonso. Oct. 1, 1800, Fr.-Sp.. hup://www.vale.edu/lawweb/avalort/;ildefens.htm (retransferring Louisiana from Spain to France). The Louisiana Purchase merely defines the territory by citing the Treaty of San Ildefonso, “the colony or province of Louisiana with the same extent that it has in the hands of Spain, and that it had when France possessed it.” and nirther stating, “the said territory with all its rights and appurtenances as fully and in the same manner as they have been acquired by the French Republic.” See Treaty of Cession between the United States and the French Republic, Apr. 30, 1803, U.S.-Fr., 8 Stat. 200-206, art. 1. Thus, we must rely upon other historical evidence to determine the extent of France’s title west of the Mississippi.
The French claimed the entire area of North America (save Mexico and Florida which were claimed by Spain) through the European “Doctrine of Discovery”. In other words, the French claimed to have been the first European nation to arrive in the territory and claim sovereignty.4 The Doctrine of Discovery, has been described as an “… inequitable [and] self-serving rationalization by Whites who subscribed to the supremacist ideas … prevalent in the era of discovery [which allowed Whites to justify the taking Native American land].” Bothwell, 6 Ann. Surv. lnt’1 &Comp. L. 175,185-86. The doctrine, as prevalent in the time of imperialism and discovery, was based on the idea that because Native Americans had no concept of individual land ownership their land was not “owned” by anyone. Id. Thus, it was thought that the first European nation to “discover” land occupied only by Native Americans could assert sovereignty over that territory. This self-serving conclusion, however, was actually a manipulation of the principals of customary international law that had developed before the discovery of the New World and should not have been applied to territories occupied by Native Americans. See Grotius, The Law of War And Peace 550 (Classics of International Law ed. 1925)(“Discovery [only] applies to those things that belong to no one.”). The Doctrine of Discovery only applies to terra nullis—land owned by no one—which the lands of North America definitely were not. Id. Subsequent and modern discussions of the doctrine of discovery by authoritative international sources have clarified this distinction.
In the Western Sahara Case, 1975 I.CJ. 12, the International Court of Justice ruled that land claimed by Spain was not subject to the doctrine of discovery because it was not terra nullis\ nomads who possessed a degree of social and political organization inhabited the territory. The Court said that it was clear, at least since the 19th century, that the ordinary method of obtaining sovereignty over lands that were not terra nullis was not by mere “occupation” but through agreements negotiated with the native inhabitants. Furthermore, the Island of Palmas Case, 2 U.N. Rep. Int’l Arb. Awards (1928), in Henkin et al, International Law: Cases and Materials 149 (3rd ed., 1980), stated that at least since the 19th century the prevalent view was that a discoverer’s claim was not valid unless subsequently consummated by actual occupation of the land by the discoverer’s people. When these principles are applied to the territory of the Black Hills, historical and legal analysis suggests that France’s claim to North America and consequently its claim to sovereignty over Sioux Territory was invalid and completely erroneous. The territory at issue was possessed and inhabited by the Sioux or by other Native American Indian Nations; thus, it was not terra nullis and, therefore, not subject to the doctrine of discovery. Furthermore, any claim the French may have had was certainly never consummated through occupation; as discussed previously, the Sioux were the masters of the Great Plains and the Black Hills. The French never occupied any Sioux lands; the extent of French settlement in North America was centered near the St. Lawrence River in Quebec, a small spattering of forts and trading posts across the Ohio River valley, a colony at New Orleans on the mouth of the Mississippi, and a small settlement near modern-day St. Louis in Illinois. See Parkman, vol. HI. Thus, the Louisiana Purchase could not effect a transfer of Sioux land to the United States when France had no legal claim to Sioux land.
Moreover, even if the French might have had some claim to Sioux territory through temporary manipulation of international law, a close examination of the United States case law of the Marshall Court, which established the federal Doctrine of Discovery, reveals that the doctrine was actually a limit on European nations “with little real consequence for indigenous American nations.” Ball, 33 J. Marshall L, Rev. 1183, 1193. By misguided and irrational judicial activism, later United States Courts have further manipulated customary international law and the Doctrine of Discovery, disfiguring and eviscerating the Marshall Court’s original case law. See generally Nell Jessup Newton. At the Whim of the Sovereign: Aboriginal Title Reconsidered, 31 Hastings L. J. 1215 (July 1980); see also Milner S. Ball. John Marshall and Indian Nations in the Beginning and Now, 33 J. Marshall L. Rev. 1183 (Summer 2000). A closer examination of the Marshall Court’s jurisprudence dealing with the doctrine and Native American land rights shows that the only interest the French could possibly have transferred to the United States through the Louisiana Purchase was a bare claim opposable against other European nations.
In Fletcher v. Peck. 10 U.S. 87 (1810), a purchaser of land, who traced back his title to a grant of land from Georgia, sued for breach of covenants in his deed. The Court dealt with Indian title only tangentially because one of the covenants represented that Georgia was seized in fee at the time of the grant See_ 10 U.S. 139-40. The Court, faced with the question of whether Georgia could grant lands that were occupied by Indians, stated, “[Indian title,] which is certainly to be respected by all courts, until it be legitimately extinguished, is not absolutely repugnant to seisin in fee on the part of the state.” Id. at 142-43. “The opinion failed to delineate, however, the rights, if any, attaching to Indian title, including the effect of the grant.” Newton, 31 Hastings L, J. 1215,1221. J. Johnson dissenting opinion, however, sheds light on the parameters of the Doctrine of Discovery and the nature of a discoverer’s title; J. Johnson argued that Georgia’s interest could not be seisin in fee because the state’s was “a mere possibility,” 10 U.S. at 146, while the Indians had “absolute proprietorship of their soil.” Id. at 146. “This approach, though legally sound, presented an obstacle for the Court [and the Government]… If the Indians interest… was that of an absolute proprietor, all the grants of aboriginal land … by the United States government would be void.” Newton, 31 Hastings L. J. 1215, 1221.
In Johnson v. Mclntosh, 21 U.S. 543 (1823), the Marshall Court had the issue of Indian title directly in front of it. The case presented a dispute between non-Indian successors to the original grantees of Indian land. “The case turned on the narrow issue of whether grants of land in 1773 and 1775 by the Illinois and Piankeshaw Nations to private persons superseded a later sale by the same tribes to the United States.” Newton, 31 Hastings L. J. 1215, 1222. C.J. Marshall, writing for the Court, discussed how a nation discovering and taking possession of new territory acquires certain rights in the territory and stated, “Discovery gave title to the Government by whose subjects, or by whose authority, it was made, against all other European nations, which title might be consummated by possession.” 21 U.S. at 573 (emphasis added), Marshall went on to delineate the rights of both the discoverer and Native American Indians. The discovering nation had the exclusive right as “sovereign” to acquire Indian title. This did not, however, extinguish all Indian rights to the territory. To the contrary, until the discoverer exercised its right either “by purchase or conquest,” id at 587 (emphasis added), the Indians were recognized as tcthe rightful occupants of the soil, with a legal as well as just claim to retain possession of it.” Id. at 574 (emphasis added). The Court later referred to the Indian right of occupancy as “as sacred as fee simple of the Whites. Mitchell v. United States. 34 U.S. 711, 746 (1835). Further, discovery gave the sovereign only an “ultimate reversion in fee,” id_ at 756, subject to the tribe’s “perpetual right of occupancy.” Id at 746.). Thus, in Mitchell, the Court recognized “simultaneous interests in the territory . .. [or] the co-existence of two land tenure systems.” Newton, 31 Hastings L. J. 1215, 1222. This is apparent because the Court noted that if the tribe were to annul the original grant (as had happened in Johnson}, the individual purchaser could seek redress under Tribal laws. 21 U,S. at 593.
The Marshall Court further discussed the nature of Indian land rights and the Doctrine of Discovery in Worchester v. Georgia. 31 U.S. 515 (1832). In Dorchester, Georgia argued it could exercise sovereign authority over lands occupied by the Cherokee because the Cherokee had lost all property rights by virtue of the Doctrine of Discovery. The Marshall Court rejected this argument noting: (1) the Cherokee still inhabited their aboriginal homeland and, thus, continued to exercise sovereignty over it, jtf at 559-60, and (2) the United States had dealt with the Cherokee nation as a limited sovereign nation further evidencing the Cherokee’s sovereignty over their territory. Id at 555-56. Most importantly, referring to the Doctrine of Discovery, Marshall stated that a sovereign grant of Indian land, in and of itself, was not sufficient to extinguish Indian title. To the contrary, until the sovereign extinguished Indian title, a grant “asserted title against Europeans only and [was] considered as blank paper so far as the natives were concerned.” Id at 546. Marshall also discussed extinguishment of Indian title by conquest noting that the power was only justifiable after a confrontation in which the Indians had been the aggressors. Id at 545-47.
Thus, the Louisiana Purchase gave no “sovereign” power to the United States over and against the Sioux in regard to the territory of the Sioux Nation. The only possible claim the United States could have acquired was a claim opposable against other European nations to acquire Indian title either through purchase or conquest. Thus, any claim by the United States to supremacy over Sioux lands must come from some other, subsequent source beyond the Louisiana Purchase, and, as shall be established, the United States never did properly extinguished Sioux title.
By the end of the first two decades of the 1800s, United States’ trading companies had established very profitable ventures in the upper Missouri region. See Edward Lazarus, Black Hills White Justice 9-11. In 1825, to protect the nation’s burgeoning interest in the region, the United States organized the Yellowstone expedition under General Henry Atkinson and Major Benjamin O’Fallon, which concluded a series of agreements with various Native American Tribes in the region. 7 Stats. 252-57. In late June and early July, the Atkinson-O’Fallon mission concluded three separate treaties with Teton bands of Sioux. Id. These treaties, however legally or factually erroneous, reemphasized the supremacy of the United States over Sioux lands- The Sioux accepted a pledge by the United States to protect the Sioux, their property and to prosecute wrongdoers. Further, the United States reserved the right to regulate all trade and intercourse with the Sioux. The treaties also contained provisions for the extradition of criminals from Sioux territory. Furthermore, the United States agreed to “receive [the Sioux] into their friendship’ and confer upon the Sioux ‘such benefits and acts of kindness as may be convenient in the eyes of the President.5
The United States Supreme Court has admitted that it is fair to interpret treaties with Indian Tribes only as the Indians would have understood them. See McClanahan v. Arizona State Tax Commission. 411 U.S. 173-75 (1973). Thus, any provision in these treaties declaring the “sovereignty” of the United States over Sioux lands should not be viewed in a vacuum as evidencing or establishing a surrender of Sioux sovereignty to the United States. Instead, those provisions need to be viewed in the overall context of history, including the nature of the negotiations and the existence of the Sioux Nation as an independent and sovereign state. The Sioux Nation, as outsiders, non-U.S. citizens, had organized their leaders, responding to the call of United States’ foreign relations protocol, to broker an understanding between two politically and socially separate entities. Furthermore, these negotiations took place in the shadow of a large show of military force by the United States. See Lazarus, Black Hills White Justice 10-11. The Sioux arguably sought peaceful relations and continued trade and it can rationally be understood that, if it took recognizing the obvious strength of the United States Army, the Sioux would gladly accepted the technical provisions of the agreements. It is established by customary international law that any acceptance of the protection of a more powerful nation, or the relinquishment of certain aspects of foreign relations by one State to another, does not thwart the ultimate sovereignty of the more dependent or militarily weak State. See Restatement § 201 cmt. e (1986). In light of this historical context, the intention of the 1825 treaties between the United States and the Sioux was the establishment of peaceful relations. This is the only understanding of those treaties that can be imparted upon the Sioux. The fact that those peaceful relations were contingent upon the Sioux Nation dealing solely with the United States in terms of trade or strategic alliance does not change their basic nature.
In 1825, convinced that the Great Plains, including all of Sioux territory, could not support agricultural settlements, the United States declared the entire territory Indian Country. See Lazarus, Black Hills White Justice 11-12. However, the eventual migration of white settlers across the Great Plains to booming Oregon and the California Gold Rush of 1849 created for the United States a pressing interest in establishing safe and reliable passage between the now settled Missouri and the west coast. Id. at 13-16. The large scale negotiations that took place at Fort Laramie with the Sioux, Crow, Shoshone, Arapahoe, and other Indian tribes of the Plains resulted in the comprehensive Treaty of Fort Laramie of 1851. fa at 16-20.
The 1851 Treaty of Fort Laramie was ratified by the United States Congress, 11 Stat. 749n, and pledged to establish a “lasting peace among all nations assembled.” The Sioux granted the United States Government the right to build roads and military bases within the territories of the Indians. In return, the United States pledged to protect the Indians against the marauding frontiersmen and to compensate the Indians for the disruption of their lives by paying $50,000 per yeap Jp the Indians for 50 years. See Lazarus, Black Hills White Justice 17. The agreement went even further and, for the purpose of ensuring peace between the Indian tribes, the treaty approved boundary lines for the land of each tribes there assembled. Although, the agreement recognized over sixty million acres of land—from the Missouri River in the east to beyond the Black Hills and from the Platte River north to the Heart River—as Sioux land, it gave the Powder River country, Sioux land since 1822, back to the hated Crow and designated Sioux hunting grounds south of the Platte as belonging to the Kiowa. See Lazarus, Black Hills White Justice 18. The Sioux adamantly opposed the designation of their lands during the negotiations. Id But the Government commissioners said the treaty only established guidelines and, technically, the Sioux were not surrendering any land. Id The Sioux did not understand these legal niceties; they simply ignored those provisions of the treaty soon after the negotiations and drove the Crow out of Powder, River country. Id
On a similar note, when the United States Senate ratified the treaty it unilaterally shortened the length of the annuity to ten years, with an additional five years to be added at the discretion of the President, Id. Although, these actions by the United States might impliedly suggest a lack of respect for the sanctity of the treaty-making process with Indian tribes and for the sovereignty of the Sioux in particular, they prove too much. The United States still ratified, if unilaterally amended, the overall product of negotiations with the Sioux. Furthermore, the fact that the Sioux did not consider the boundaries purported to be established by the treaty to be binding, and their dissent during negotiations, shows a clear Sioux capacity to engage in foreign relations and respect by the Sioux only for true, mutually-agreed-upon contracts.6
Unsurprisingly, the Treaty of Fort Laramie of 18 51 failed to achieve the lofty goals it attempted. Furthermore, soon after the treaty went into effect, outright hostilities between the Government and the Sioux broke out within Sioux territory. See Lazarus, Black Hills White Justice 21-23. In 1856, Colonel William Harney negotiated a peace treaty with the Sioux, which was never ratified by the Senate. Id. The United States, however, never informed the Sioux. Id, The Sioux quickly learned through experience, however, that the Harney Treaty’s promises to limit the extent of white traffic through Sioux territory were not being fulfilled by the United States. Id. The Colorado and Montana gold rushes that followed brought not only trespassers but also permanent white settlers onto Sioux lands. Id. at 25-26.
The Sioux wars began in 1862 with the “semi-civilized” Santee in Minnesota. Id. The Government troops routed the poorly armed Santee, taking most of the tribe prisoner. Id. The remainder fled into Teton territory and the Government pursued. Id. The Teton, who were facing an invasion of their territory by hostile Government forces (who recognized little distinction between the Santee and other Sioux), joined their eastern cousins in battle against the United States troops. Id. This widespread and terrible war had a drastic effect on the welfare of the Sioux population. Id. at 32. Scattered and hungry, their hunting patterns disrupted from fleeing Government troops, the Sioux population split into bands of refugees seeking peace and, located to the east in the Black Hills and Powder River country, hostile bands led by the great Sioux chief Red Cloud and, also well-known, chief Spotted Tail. Id.
The hostiles under Red Cloud and Spotted Tail numbered about 20,000. See Lazarus, Black Hills White Justice 33. These Sioux took no part in “sham” peace agreements signed by refugee Sioux, which, in 1863, the governor of Dakota Territory, Newton Edmunds, attempted to represent as treaties with the entire Sioux nation. Id_ at 33. For obvious reasons, the United States sought true peace negotiations with Red Cloud, Spotted Tail, and the other Sioux chieftains who truly had the power of the Sioux Nation behind them. Id. at 33-34. These negotiations produced mixed results, with the majority of the Sioux following Red Cloud’s lead and leaving when the United States commissioners did not present terms he found acceptable. Id. Like Newton Edmunds before him, however, E.B. Taylor, the Government’s principle negotiator, trumpeted the success of the subsequent treaty that was signed by only a few peaceful and war weary Sioux chiefs, including Spotted Tail. Id. Continued war and slaughter revealed this deceit and, after humanitarian movements and efficiency-driven bureaucrats convinced the United States of the impropriety of the war with the Sioux, United States renewed efforts to obtain true peace on the Great Plains. Id. at 38-44.
On July 20, 1867, both houses of Congress authorized a new commission to negotiate peace in the west. Id. The commission was to remove the causes of war, while safeguarding the frontier settlements and ensuring the rights-of-way for the transcontinental railroad. Id. The peace commission soon learned that a condition of peace with the Sioux was the removal of white settlers and soldiers from Sioux territory. Id. at 46-47. The Sioux meant to protect their territorial sovereignty and integrity from encroaching white civilization. Id. Although, directly opposed to the hopes of white expansionists and the war hungry army, the peace commissioners returned to Sioux country in April of 1868 with a draft treaty which yielded everything Red Cloud and the other hostile Sioux had demanded. Mat 47. For the Sioux, the Treaty of Fort Laramie of 1868 was a peace made on the victor’s terms – Sioux terms. Id. at 50.
Article 1 of the Treaty of Fort Laramie expressed the desire of both sides for a lasting peace. See 15 Stat 635, art. 1 (“From this day forward all war between the parties to this agreement shall cease.”). The Government of the United States explicitly pledged “by its honor” to keep that peace. Id. Article 1 went on to require extradition and punishment of criminals from Sioux and United States lands. Id.
Article 2 of the Treaty of Fort Laramie of 1868, 15 Stat. 636, established the Great Sioux Reservation, as it became known, setting aside all of present-day South Dakota west of the Missouri River, including the Black Hills, “for the absolute and undisturbed use and occupancy of the Sioux.” Article 16 of the treaty also designated the contested Powder River country, “north of the North Platte River and east of the summits of the Big Horn Mountains”, as^’unceded Indian territory,” where no white man could tread without the consent of the Sioux. Further, to the south and west of the Great Sioux Reservation, where white settlements had already encroached, article 11 of the treaty granted the Sioux hunting rights along the Republican River and above the Platte River in Nebraska and Wyoming for “as long as the buffalo may range there to justify the chase.” It is also important to note that article 12 of the treaty provided that no future land sales of Sioux land would be valid unless three-fourths of all adult Sioux males assented by signature. The United States also agreed to feed the Sioux for four years and to equip them for agricultural life. In return, the Sioux agreed to peace, to make their permanent homes inside the Great Sioux Reservation, to withdraw their opposition to the railroads, and to stop attacking emigrants.
A clearer statement of Sioux sovereignty could not be imagined from the perspective of the Sioux. The United States, however self-serving or condescending its ulterior motives, agreed to the terms of the Sioux Nation. The fact that Sioux territory was designated a “reservation” in the treaty by the United States does not alter the legality of Sioux sovereignty over its domain. The hostilities of preceding years may have somewhat fragmented the Sioux Nation, Also, there were strong humanitarian, yet nonetheless ethnocentric, philosophies prevalent in the United States at that time may have encouraged a popular view that the Sioux were hopelessly dependent on the United States. But this cannot alter the undeniable fact that an undeniably tenacious segment of the Sioux Nation fought to maintain sovereignty over its territory, remained an identifiable, organized, and successfully negotiated with the United States, by the clear. provisions of the Treaty of Fort Laramie of 1868, for peaceful foreign relations and the establishment of Sioux international borders.
II. UNITED STATES VIOLATIONS OF INTERNATIONAL LAW: THE FORT LARAMIE TREATY OF 1868
It has been established that the Sioux Nation of Indians was an independent and sovereign nation at the time the Fort Laramie Treaty of April 26, 1868. Thus, this solemn agreement between the United States and the Sioux Nation, two sovereign nations of the international community, should have been governed and executed in accordance with contemporary principles of customary international law. See Wiessner, 7 St. Thomas L. Rev. 567, 593. The customary international law of treaties was codified in the Vienna Convention on the Law of Treaties (hereinafter ‘Vienna Convention’). 1155 U.N.T.S. 331 (entered into force Jan, 27,1980). Although Art. 4 of the Vienna Convention states that it does not govern treaties between states that were executed before it was entered into force, the Vienna Convention is largely a codification of pre-existing principles of customary international law. Furthermore, the United States has accepted the provisions of the Vienna Convention as accurately reflecting the customary law of treaties. S. Exec. Doc. L., 92nd Cong. 1st sess. (1971) p. 1. Thus, the actions of the United States in relation to the Treaty of Fort Laramie should be judged according to the principles set forth in the Vienna Convention.
That the Treaty of Fort Laramie of 1868 was, in fact, an international treaty intended to have binding effect on the parties thereto could not be seriously be refuted. Red Cloud and all other Sioux Chiefs with the power to bind the Sioux Nation agreed to the treaty by signature. See Vienna Convention, part II, § 1, art. 12(c). They exercised the capacity of the Sioux Nation to enter into an international treaty according to the practice of Sioux-
United States relations. See Vienna Convention, part. II, § 1, art. 6-7. As mentioned previously, the United States entered into the Fort Laramie Treaty of 1868 by implementing the procedures outlined in the United States Constitution—the President’s commissioners negotiated the treaty and the Senate ratified it by a two-thirds vote; these procedures are indistinguishable from those used by the United States for entering into treaties with other foreign nations and suggest an intention to create a binding international treaty. See Vienna Convention, partt. I, art. 2(b); Id* part II, § 1, art. 11; Id* part II, § 1, art. 14. Thus, under customary international law the United States undertook a duty to perform its obligations under the treaty in good faith and not to defeat the purpose of the treaty, i.e. the duty ofpacta sunt servanda—treaties are binding agreements that must be upheld and respected in good faith. See Id. part III, § 1, art. 26. This is a principle of customary international law that undoubtedly pre-dated the establishment of the United States. Further, it is the foundation of all international agreements. As such, it undoubtedly binds the United States to perform obligations that the United States voluntarily gives its word to perform.
In Sioux Nation of Indians, the United States Supreme Court summarized and accepted the factual findings made by the Court of Claims in earlier proceedings below, Id at 374-384, 417-424. The case came to the Supreme Court after approximately a century of litigation; the facts had been fully and fairly litigated and affirmatively stated
by two other federal courts of competent jurisdiction. Thus, the historical facts recognized and detailed in Sioux Nation of Indians by the United States Supreme Court not only amount to a party admission by the United States but should also be given considerable deference as true and accurate. These historical facts accepted by the United States Supreme Court clearly establish United States violations of the general principle pacta sunt servanda. They are also relevant to a discussion of any possible justification customary international law might have provided the United States. Again, it must be stressed that the United States is bound by these facts and these facts are not in dispute. There are party admissions by the United States of America. In Sioux Nation of Indians, the Court found:
“For over a century now the Sioux Nation has claimed that the United States unlawfully abrogated the Fort Laramie Treaty of April 29, 1868, 15 Stat. 635, in Art. II of which the United States pledged that the Great Sioux Reservation, including that Black Hills, would be ‘set apart for the absolute and undisturbed use and occupation of the [Sioux Nation]. Id* at 636. The Fort Laramie Treaty was concluded at the culmination of the Powder River War of 1866-1867, a series of military engagements in which the Sioux, led by their great chief, Red Cloud, fought to protect the integrity of earlier recognized treaty lands from the incursion of white settlers.’ [The Court in footnote 1 cited D. Robinson, A History of the Dakota or Sioux Indians 356-381 (1904), reprinted in 2 South Dakota Historical Collections (1904) for a detailed description of the Powder River War.
“The Fort Laramie Treaty … established the Great Sioux Reservation, a tract of land [including the Black Hills]. The United States ‘solemnly agreed’ that no unauthorized persons ‘shall ever be permitted to pass over, settle upon, or reside in [this] territory.’ Ibid Second, the United States permitted members of the Sioux tribes to select land within the reservation for cultivation. Id.* at 637. In order to assist the Sioux in becoming civilized farmers, the Government promised to provide them with the necessary services and materials, and with subsistence rations for four years. Id, at 639. [In footnote 3 of the opinion the Court stated,] [t]he treaty called for the construction of schools and the provision of teachers for the education of [Sioux] children …
“Third, in exchange … the Sioux agreed to relinquish their rights under the Treaty of September 17,1851, to occupy territories outside the reservation, while reserving their ‘right to hunt [on those lands] so long as the buffalo may range thereon in such numbers as to justify the chase.’ (1980)(“The dissent fails to identify which materials quoted herein or relied upon by the Commission and the Court of Claims fit that description … we are unaware that any such historian exists … No one, including the Government, has ever suggested that the factual findings of the Indian Claims Commission and the Court of Claims [are clearly erroneous].”).
“Fourth, Art, XII of the treaty provided, ‘No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the [Sioux Nation], unless executed and signed by at least three fourths of all the adult male [Sioux], occupying or interested in the same.’ Ibid.
“[In footnote 4 the Court’s stated,] The Fort Laramie Treaty was considered by some commentators to have been a complete victory for Red Cloud and the Sioux. In 1904 it was described as ‘the only instance in the history of the United States where the government had gone to war and afterwards negotiated a peace conceding everything demanded by the enemy and exacting nothing in return.’ Robinson, supra n. 1. at 387.
“The years following the treaty brought relative peace to the [Sioux Nation], an era of tranquility that was disturbed, however, by renewed speculation that the Black Hills, which were included in the Great Sioux Reservation, contained vast quantities of gold and silver. [In footnote 5 the Court cited D. Jackson, Caster’s Gold 3-7 (1966) for the history of speculation concerning the presence of gold in the Black Hills, dating from early explorations by prospectors in the 1830s.]
“In 1874 the [United States] Army planned and undertook an exploratory expedition into the [Black] Hills, both for the purpose of establishing a military outpost from which to control those Sioux who had not accepted the terms of the Fort Laramie Treaty, and for the purpose of investigating ‘the country about which dreamy stories have been told.” D. Jackson, Caster’s Gold 14 (1966)(quoting the 1874 annual report of Lieutenant General Philip H. Sheridan, as Commander of the Military Division of the Missouri, to the Secretary of War). Lieutenant Colonel George Armstrong Custer led the expedition of close to 1,000 soldiers and teamsters, and a substantial number of military and civilian aides … by mid-August [Custer’s expedition] had confirmed the presence of gold in [the Black Hills]. The discovery of gold was widely reported in newspapers across the country. [In footnote 5 the court cited H. Krause & G. Olson, Prelude to Glory (1974) for a modern study of the extensive contemporary coverage of Custer’s expedition.]
‘Custer’s florid descriptions of the mineral and timber resources of the Black Hills, and the land’s suitability for grazing and cultivation, also received wide circulation, and had the effect of creating demand for the ‘opening’ of the Black Hills for settlement.
“[In footnote 7, the Court cited Robinson, supra n. 1 at 408-410; A. Tallent The Black Hills 130 (1975 reprint of 1899 ed.); and J. Vaughn, The Reynolds Campaign on Powder River 3-4 (1961) and noted,] The Sioux regarded Custer’s expedition in itself to be a violation of the Fort Laramie Treaty. In later negotiations for the cession of the Black Hills, Custer’s trail through the Black Hills was referred to by [a Sioux chief, Fast Bear,] as ‘that thieves’ road.’ Jackson, supra n. 5 at 24. Chroniclers of the expedition, at least to an extent, have agreed. See id, at 120; G. Manypenny, Our Indian Wards xxix, 296-297 (1972 reprint of 1880 ed.).
“Having promised the Sioux that the Black Hills were reserved to them, the United States Army was placed in the position of having to threaten military force, and occasionally to use it, to prevent prospectors and settlers from trespassing on lands reserved to the [Sioux]…
“Eventually, however, the Executive Branch of the Government decided to abandon the [United States’] treaty obligation to preserve the integrity of the Sioux Territory. In a letter dated November 9, 1875, to [Brigadier General Alfred H. Terry, Commander of the Department of Dakota, at Saint Paul], Sheridan reported that he had met with President Grant, the Secretary of the Interior, and War the Secretary of War, and that the President had decided that the military should make no further resistance to the occupation of the Black Hills by miners, ‘it being his belief that such resistance only increased their desire and complicated the troubles.’ Id., at 59. These orders were to be enforced ‘quietly,’ ibid, and the President’s decision was to remain ‘confidential.’ Id, at 59-60 (letter from Sheridan to [General William Tecumseh] Sherman [Commanding General of the Army]).
“With the Army’s withdrawal from its role as enforcer of the Fort Laramie Treaty, the influx of settlers into the Black Hills increased. The Government concluded that the only practical course was to secure to the citizens of the United States the right to mine the Black Hills for gold. Toward that end, the Secretary of the Interior, in the spring of 1875, appointed a commission to negotiate with the Sioux .. . The tribal leaders of the Sioux were aware of the mineral value of the Black Hills and refuse to sell for a price less than $70 million … The negotiations broke down.
“In the winter of 1875-1876, many of the Sioux were hunting in the unceded territory north of the North Platte River, reserved to them for that purpose in the Fort Laramie Treaty. On December 6, 1875, for reasons that are not entirely clear, the Commissioner of Indian Affairs sent instructions to the Indian agents on the reservation to notify those hunters that if they did not return to the reservation agencies by January 31,1876, they would be treated as ‘hostiles.’ Given the severity of the winter, compliance with these instructions was impossible.
“On February 1, the Secretary of the Interior nonetheless relinquished jurisdiction over all ‘hostile’ Sioux, including those [Sioux] exercising their treaty-protected hunting rights, to the War Department. The Army’s campaign against the ‘hostiles’ led to Sitting Bull’s notable victory over Custer’s forces at the battle of Little Big Horn on June 25, That victory, of course, was short-lived, and those [Sioux] that surrendered to the Army were returned to the reservation, and deprived of their weapons and horses, leaving them completely dependant for survival on the rations provided by the Government.,.
“In August 1876, Congress enacted an appropriations bill providing that ‘hereafter there shall be no appropriations made for subsistence’ of the Sioux, unless they first relinquish their rights to the hunting grounds outside the reservation, ceded the Black Hills to the United States, and reached some accommodation with the Government that would be calculated to enable them to become self-supporting. Act of Aug. 15, 1876, 19 Stat. 176, 192. Toward this end, Congress appointed another commission to negotiate with the Sioux for the cession of the Black Hills …
“[Arriving in Sioux Country,] the commissioners brought with them the text of a treaty that had been prepared in advance. The principal provisions of this treaty were that the Sioux relinquish their rights to the Black Hills and other lands … in exchange for subsistence rations for as long as they would be needed to ensure the Sioux survival. In setting out to obtain the treaty, the commission ignored the stipulation of the Fort Laramie Treaty that any cession of lands contained within the Great Sioux Reservation would have to be joined in by three-fourths of the adult males … It was signed by only 10% of the adult male Sioux population.
“Congress resolved this impasse by enacting the 1876 ‘agreement’ into law as the Act of Feb. 28, 1877 (1877 Act), 19 Stat. 254. The Act had the effect of abrogating the earlier Fort Laramie Treaty, and of implementing the terms of the Manypenny Commission’s ‘agreement’ with Sioux leaders, [hi footnote 14 the Court noted,] [i]t altered the Boundaries of the Great Sioux Reservation by some 900,000 acres of land . . .while carving out [land] . . . including the Black Hills, an area of well over 7 million acres … In exchange the Government reaffirmed its obligation to provide all annuities called for by the Fort Laramie Treaty, and to provide [subsistence rations and other farming materials]. . . The provision of rations was conditioned, however, on the attendance at school by [Sioux] children, and on labor of those who resided on lands suitable for farming.
“The passage of the 1877 Act legitimized the settlers’ invasion of the Black Hills, but throughout the years it has been regarded by the Sioux as a breach of [the United States’] solemn obligation to reserve the [Black] Hills in perpetuity for the occupation by the [Sioux Nation] . ..”
448 U.S. 371, 374-383 (1980).
These facts clearly establish that the United States Government ignored its obligations set out in the 1868 Treaty of Fort Laramie, 15 Stat. 635, covertly subverted the very principles the treaty was intended to uphold, and intentionally abrogated the treaty’s clear and unambiguous terms. The United States violated the territorial integrity of the Sioux Nation for the purpose of confirming speculations about gold in the Black Hills. Once confirmed, the United States intentionally provoked war with the Sioux by denying them the hunting rights that the Treaty of Fort Laramie of 1868 had secured for the Sioux Nation. Then, after invading Sioux territory, massacring Sioux women, children, and men, and destroying the Sioux Nation’s ability to survive on its own, the United States Congress illegally coerced the Sioux to agree to sell the Black Hills by threatening starvation. Cf. Vienna Convention, art. 52. The United States undertook these actions in order to steal and possess, what it could not legally purchase or obtain by conquest—i.e. the Sioux Nation’s Black Hills. Finally, when faced with Sioux protest that three-fourths of adult males had not signed the agreement, as required by Article XII of the Treaty of Fort Laramie, the United States ignored the Sioux Nation’s territorial integrity, and established rights to their land, and illegally usurped the Black Hills by unilateral act of Congress, hi sum, these actions clearly constitute violations of the international law of treaties. See Vienna Convention, art. 26 (“Pacta Sunt Servanda”); art. 31 (“A treaty shall be interpreted in good faith .. .”). Furthermore, these actions quite possibly constitute Genocide by contemporary standards. See generally Convention on the Prevention and Punishment of Genocide, 78 U.N.T.S. 277 (entered into force for U.S. Feb. 23, 1989),
The United States has no justification for these actions under international law. The United States cannot argue any provisions of its internal law as excuse for failure to perform the treaty. See Vienna Convention, art. 27. Thus, any shift in United States policy regarding Indian tribes in general, or any argument that Congress has power to abrogate every treaty, does not relieve the United States of its obligation under international law. Likewise, the United States cannot argue any supervening impossibility of performance—either due to increased emigration of settlers into Sioux territory or hostilities with the Sioux—because the United States caused these circumstances through its own breach of the 1868 Treaty. See Vienna Convention, art. 61. Further, any fundamental change in circumstances between the time of the Treaty of Fort Laramie of 1868 and United States actions that ultimately resulted in the theft of the Black Hills are of no avail to the United States because its own conduct contributed to bringing about any such changes into existence. Id., art. 62. Ouster’s expedition, President Grant’s duplicity, and the outright provocation of war in the winter of 1875-1876 suggest the United States clearly had a hand in manipulating circumstances to produce a hostile and volatile situation in order to ultimately steal the Black Hills.
Not only did this intentional provocation of war violate the 1868 Treaty, but also directly violates the War Powers Clause of the United States Constitution. See Constitution of the United States, art. I, § 8, H 11.
Finally, the “agreement” of 1876 between the United States and the Sioux cannot be valid as superseding the 1868 Treaty. First, the “sell or starve” agreement was clearly forced upon the Sioux Nation without their free and voluntary consent and, thus, cannot be considered a binding agreement, contract or treaty. See Vienna Convention, art. 52. In this same regard it cannot be considered a termination of the 1868 Treaty. See Vienna Convention, art. 54. The 1876 “agreement,” executed by the 1877 Act of Congress, was merely a unilateral order of the United States attempting to formalize and legalize its illegal treatment of the Sioux Nation.
III. RETURNING THE BLACK HILLS TO THE LAKOTA (SIOUX) NATION
In light of the extensive violations of international law by the United States and the proximate effects of those violations, it is clear that a considerable and equitable remedy is due the Sioux Nation of Indians—the only just remedy in such situations is restitution. See Chorzow Factory Case. 1927 P.C.L.J., Ser. A, No. 9, at 21 (“The breach of an international agreement involves an obligation to make reparation in an adequate form.”). The United States has an obligation to return the Sioux Nation to the state it was in before it blatant breach of the 1868 Treaty. Cf. Boyle, 7 St. Thomas L. Rev 723, 733. This means returning the Black Hills to their rightful owners and paying damages for all the natural resources the United States has stripped from Sioux land.
As previously mentioned, the United States Supreme Court in Sioux Nation of Indians awarded the Sioux Nation $105 million plus interest for the taking of the Black Hills and other lands in violation of the 5th Amendment of the United States Constitution effected by the Act of 1877. 448 U.S. 371, 424 (1980). The Sioux Nation rejected this award of money and it has remained in a trust fund accruing interests since the day it was awarded. Telephone Interview with Marie Lange, Lakota Chief (January 17, 2001); see also Edward Lazarus, Black Hills White Justice 403-428 (University of Nebraska Press, 1999), This reward of money is totally inadequate. The Sioux Nation’s land was not for sale. It was taken from them in violation of international law and in abrogation of their property rights. It needs to be restored to their possession.
Furthermore, recent international trends in the recognition of human rights of indigenous peoples sheds much light on the cultural considerations and disparities that must be accounted for in any just and proper remedy in such a situation. The cultural importance of the Black Hills and their sacred nature to the Sioux people reveal the complete inadequateness of mere compensatory damages. See generally Geoffrey Robert Schiveley, Negotiation and Native Title: Why Common Law Courts Are Not Proper Fora for Determining Native Land Title Issues, 33 Vand. J. Transnat’l L. 427 (March 2000), Notably, respect for the cultural, social, and political rights of indigenous people has become an emerging norm of international law. See Raidza Torres Wick, 25 Yale J. Int’l L. 291 (Summer 2000); see also Weissner, 12 Harv. Hum. Rts. J. 57, 100-108. On December 10,1992, in addition to reaffirming the principles contained in the Charter of the United Nations, 59 Stat. 1031 (ratified by the United States, Aug. 8,1945), and the Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3rd Sess., Pt. I, Resloutions, at 71, UN Doc. A/810 (1948), the United Nations declared 1993 as the International Year of the World’s Indigenous Peoples. See Vienna Declaration and Programme of Action, U.N. Doc. A/CONF. 157/24 at 20-46 (1993), reprinted in 32 I.L.M. 1661 (1993). The ”year” was expanded to the “decade” by the United Nations General Assembly. Wick, 25 Yale J. Int’l L. 291, 293. The main objective of the International Decade of the World’s Indigenous Populations is adoption of a declaration of indigenous rights. See Secretary-General Notes “Centuries of Adversity” Suffered by World’s Indigenous Peoples, Seeks Global Pledge That Future Will Be Different, Press Release, at 1, U.N. Doc. SG/SM/7081 OBV/107 (1999). In 1993, the U.N. Working Group on Indigenous Populations agreed on a draft declaration on indigenous rights. Working Group on Indigenous Populations, Report of the Working Group on Indigenous Populations on Its Eleventh Session, U.N. Commission on Human Rights, Sub-commission on the Prevention of Discrimination and Protection of Minorities, 45th Sess., Annex L Agenda Item 14, at 50-51, U.N. Doc. E/CN.4/Sub.2/l 993/29 (1993), reprinted in 9 St, Thomas L. Rev. 212 (1996)(hereinafter “U.N. Draft Declaration), This trend is spreading and “states are modifying their behavior vis-a-vis indigenous populations in response.” See Wick, 25 Yale J. Int’l L. 291, 293-5.
Furthermore, the U.N. Draft Declaration contains numerous provisions recognizing the importance of aboriginal homeland and sacred sites to indigenous peoples. For example, Article 12 of the U.N. Draft Declaration provides, “Indigenous peoples have the right to practice and revitalize their cultural traditions and customs . . . [including inter alia] the right to restitution of cultural… and spiritual property taken without their free and informed consent…” 9 St. Thomas L. Rev. 209, 216-17. Further, Article 27 explicitly grants indigenous peoples “the right to restitution of lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent Where this is not possible, they have the right to just and fair compensation .. .[which unless otherwise agreed upon by the peoples] shall take the form of lands, territories and resources equal in quality, size and legal status.” Id at 220. Finally, Article 36 requires “recognition, observance and enforcement of treaties … concluded with States … according to their original spirit and intent.. . and to have States honor and respect such treaties.” Id at 223.
International law and these provisions in the U.N. Draft Declaration make the just and proper course of action for the United States clear. The United States should take a progressive approach and encourage the positive development of customary international law in the protection of indigenous peoples’ rights. See Bothwell, 6 Ann. Surv. Int’l & Comp. L. 175, 208-209 (“The United States should give consideration to taking a positive approach toward [other] international law instruments that support the right of indigenous peoples.”) (citing the various relevant international instruments). Returning the Black Hills to the Sioux Nation would serve as a positive example to the world, would go far toward healing the wounds that exist between the Sioux people and the United States, and would underscore and reaffirm the United States’ commitment to the protection of human rights and the principles of the United States Constitution.
This action must take place; it is the only proper remedy. The words of United States District Court Judge Urbom in United States v. Consolidated Wounded Knee Cases, 389 F.Supp 235 (1973), epitomizes the current state of affairs and makes a plea for action:
“The Sioux people were once a fully sovereign nation. They are not now and have not been for a long time … It cannot be denied that official policy of the United States at least until the late 19th century was impelled by a resolute will to control substantial territory for its westward-moving people. Whatever obstructed that movement, including the Indians, was to be—and was—shoved aside, dominated, or destroyed. Wars, disease, treaties packed with duplicity, and decimation of the buffalo by whites drove the Sioux to reservations, shriveled their population and disembodied their corporate body. They were left a people unwillingly dependent. ,. upon the United States.
It is an ugly history. White Americans may retch at the recollection of it. They may also ask themselves questions … What precisely do we do now? Shall we pretend that history never was?”
Mat 236, 238-39.
The plight of the Sioux Nation is a glaring rust spot, forever eating away at the historical heart of the United States of America. It matters little that many Americans view the United States, in terms of sociopolitical philosophy, as the world’s protector of human rights and equality under law. It matters even less that the United States government selectively and lackadaisically raises its hand in pseudo-defense of human rights internationally; thus, allowing it to self-righteously champion itself, to its own people and the international community, as one among the vanguard of enlightened, human rights-conscious nations of the world. The history of Sioux Nation, and Native American Indians generally, as first occupants and rightful owners of much of North America, stands as the true example of United States policy. Until that history is internationally acknowledged and until those injustices and wrongs have been truly and fairly remedied, the history of the Sioux and United States relations will always be an undeniable and ugly eyesore communicating to the world the real United States of America; a hypocritical nation that takes what it wants, when it wants, without a care for those it tramples upon.
Off the fat and milk of the Land, You Pigs of the East
Have forged a dull sword
And a shield of propaganda;
You’ve built walls of capital
Around castles of wealth and greed.
Now you wave your wand,
In threatening fashion,
Against any argument—
Disbanding the Truly Moral
And quieting the Spiritual.
I will wield your weapon against you,
Sharpened by my mind,
And held in the Hand of Truth —
From the heart of your raped and stolen land —
A Great War Cry (truth) will shake your foundations,
And blow after blow will sever
The tyrant’s ugly head.
–BW
From a Student of Professor Francis A. Boyle, International Lawyer for the L.D.N. Nation,
submitted for upper level writing requirement
1. Although there were no formal treaties made between European Sovereigns and the Lakota Nation in particular, the fact that formal treaties were made with other more eastern Native American Indian tribes, such as the Iroquois Nation and the Huron, provides evidence for the general proposition that European nations considered Native American tribes to be sovereign nations capable of entering treaty relations. The Lakota Nation was simply located too far west to be of much direct use to the French or English in their conflict for control for North America east of the Mississippi. See generally Francis Parkman, France and England in North America, vol. MI (Literary Classics, Inc, New York, NY 1983). The French, however, did have an informal understanding of friendship with the Sioux in order to capitalize on the fur trade originating from Sioux territory. IA, vol. II, at 345.
2. These treaties between the United States and the tribes composing the Sioux Nation include: Treaties of Peace and Friendship at Portage des Sioux, July 19, 1815, 7 Stat. 125-27; Treaty of Peace and Friendship at St. Louis, June 1, 1816, 7 Stat. 143; Treaties at Fort Lookout and Teton River, June 22, 1825,7 Stat. 250-54; Treaties at Prairie du Chien, Apr. 19, 1825, 7 Stat. 272-77; Treaty of Fort Laramie, Sept. 17, 1851, 11 Stat. 749n, reprinted in Kappler, Indian Affairs: Laws & Treaties, vol. 4, 1065-1067; Treaties of Fort Laramie, Apr. 29, 1868, 15 Stat. 635-47.
4. The French claim to all of North America was based upon the early voyage of one Verrazzano in 1524, see Demandes de !a France. 1723 (Archives des Affaires Etrangeres), and, over Sioux lands in particular, the explorations of La Salle in 1682 and by the consent of the natives. See Parkman, vol. I, 928. As the noted historian. Parkman. notes, however, the former claim ignores the earlier British discovery of Newfoundland, id, vol II, 608, and the latter is a complete farce. Id, vol I, 928. Jn any event, further discussion of the Doctrine of Discovery, infra, will reveal the futility of either of these French claims.
5. As noted above, such provisions are entirely consistent with Sioux sovereignty Mid statehood. See Restatement § 206.
6. Application of the International Law of Treaties to the 1851 Treaty of Fort Laramie would suggest that Congress’ unilateral modification of certain provisions, and the Sioux’s disregard for the suggested boundary provisions, effectively invalidated the treaty because their was no meeting of the minds. This does not, however, affect the overarching standpoint and thrust of this paper. First, it is clear that the United States and Sioux both promised peaceful relations in the 1851 treaty, 11 Stat. 749n, art. 1, and this is the only provision of the 1851 Treaty upon which the paper directly relies. Further, the subsequent 1868 Treaty of Fort Laramie explicitly established the boundaries of die Sioux Nation, see 15 Stat. 635, art. 2., and, thus, direct reliance on the provisions of 1851 Treaty is unnecessary.
7. Although Justice Rehnquist dissented from the majority in Sioux Nation of Indians on the grounds that the Court’s factual findings were based on a “revisionist” view of history, the Court pointed out the glaring lack of support the dissent had for this statement and noted that even the government did not contest the factual findings of the Indian Claims Commission or the Court of Claims. Id. 448 U.S. 371, 422 n. 32
Just how do we, as a unified, sovereign nation
RECLAIM THE BLACK HILLS NOW? It is fairly simple…
Please read the following:
Read the reflections and wisdom found and reprinted in 2013 from the papers of Chief Richard Grass – Charging Bear – His words are even more true today. Click here to read Is There Anyone Left to Trust?
See also article by Bunny Sings Wolf posted December 2012 “PeSla and What Money Cannot Buy”
Then please read, print and distribute
Open Letter to Authentic Traditional Spiritual Elders Chiefs Who Remain of OCETI SACOWIN