A broken treaty haunts the Black Hills

By STEVE YOUNG
Argus Leader  (6/27/01)

RAPID CITY -- Rick Two Dogs leans against his pickup in the forested hills west of Rapid City, lulled by the saw-blade cadence of a tree cutter and the sight of a white ash falling in the distance.

Each spring, the Oglala medicine man travels here to the sacred Paha Sapa, or Black Hills, to harvest tipi poles for his annual July sun dance on the Pine Ridge Reservation. It's like coming home again, Two Dogs says, to what the Lakota believe is the womb of Mother Earth.

"All of our origin stories go back to this place," he says as the tall, slender trees continue to fall nearby. "We have a ... spiritual connection to the Black Hills that can't be sold. I don't think I could face the creator with an open heart if I ever took money for it."

Yet 125 years after the Great White Father broke his treaty promises to the Sioux and illegally confiscated the gold-rich Black Hills, a pot of money now worth $544 million is all that is being offered in return.

Sioux ownership of the land is gone, given away to towns and cities, sprawling commercialism and government-run forests and parks. Now to

drive into the woods and cut down trees --as his ancestors once did freely --Two Dogs needs a permit. While he readily complies, it still doesn't seem right to him.

"I don't believe we ever gave up the land," he says. "Technically, if you look at the treaties, what it reads is that we rented the Black Hills to the whites. We never said we were going to sell it. And we never did."

Few issues in Indian-white relations today are more charged than the taking of the Black Hills. Throughout history, the two sides have shed blood over it. They have paid lawyers to fight over it. They have argued about it before the U.S. Supreme Court.

In fact, on June 30, 1980, after decades of legal wrangling, the high court upheld an award to the Great Sioux Nation of $17.1 million for the illegal taking of the Black Hills, plus $88 million in interest. Since then, that total has multiplied five-fold.

Yet 21 years after that decision, the money remains untapped in the U.S. Treasury as the Sioux hold out for return of the land.

"This is just my opinion, but I believe that the tribes would like to resolve this claim in a fair and honorable manner," says Mario Gonzalez, a tribal attorney for the Oglala Sioux Tribe who worked on the Black Hills claims issue.

"The only way that can be accomplished is through a negotiated political settlement through the U.S. Congress. And any settlement must include land restoration as well as monetary compensation for the denial of the absolute and undisturbed use and occupation of the Black Hills as guaranteed under Article II of the 1868 treaty."

Treaty history

Such usage was promised to the Lakota 133 years ago in return for their agreement to allow safe passage of settlers and travelers through their homelands on the way to gold fields in California, Colorado and Montana.

Until about 1850, white America hadn't shown much interest in what it called the "Great American Desert" on the Northern Plains. Undisturbed Indian occupancy of the area was assumed.

But that view changed with the discovery of gold, the Mormon migration to Utah and the opening of Oregon. When California became a state in 1850, establishing a secure route west became a priority for federal lawmakers.

The government accomplished that in 1851 with the signing of the Fort Laramie Treaty. Some 10,000 Indians representing 12 tribes came to the fort to negotiate. A settlement was reached on Sept. 17 of that year.

In exchange for allowing the government to establish roads and military posts along the Oregon-California Trail, they were promised undisturbed use of the land north and south of the trail.

They also were promised $50,000 in goods a year for 50 years because of previous damage done to their lands --the killing of their game, the using up of their scarce wood supplies and the deadly cholera and smallpox brought by the white man.

But the U.S. Senate trimmed the annuity from 50 to 10 years before ratifying the treaty. That didn't sit well with the Sioux.

Settlers ignored the boundaries of Indian territory, and when gold was discovered in southwestern Montana in 1862, prospectors and settlers started following a route across eastern Wyoming that became known as the Bozeman Trail, bringing the same problems.

The government also built military posts along the trail, and through 1866 and 1867, the forts were under a virtual state of siege by the Indians. Traffic on the trail was in constant danger.

Congress, caught up in the costs of Civil War reconstruction and battling a debilitating recession along the eastern seaboard, attempted to pursue a "policy of peace."

That meant providing for a concentration of the Plains Indians in two large reserves. The Northern Plains tribes would be concentrated north of the North Platte Valley. The Southern Plains tribes would occupy the area south of the Arkansas River. The Black Hills were conceded to the Sioux as part of the northern reserve. And the Bozeman Trail and the forts along it would be abandoned.

Numerous attempts were made to push the idea in councils with the tribes at Fort Laramie. But Red Cloud and others refused to participate until the forts and the Bozeman Trail were removed.

In April 1868, the treaty commission made one more attempt. Again, few Indians showed up. But Spotted Tail and a few other Brule leaders did eventually come to the fort and "touch their pens" to the original draft. That became the 1868 Treaty of Fort Laramie.

In addition to promising protection from intrusion from non-Indians and provisions such as clothing, food and health care, the government guaranteed the Sioux absolute and undisturbed use of present-day western South Dakota, including the Black Hills.

It also agreed that no part of the Great Sioux Reservation could be ceded away unless three-fourths of all adult males consented. In return, the Sioux would give up the right to occupy land outside the reservation, though they could still hunt buffalo in eastern Wyoming and Montana, and would allow construction of railroads.

In many ways, it was a flawed agreement. For one thing, the treaty leaves the impression that the Oglala, Minneconjou, Hunkpapa and Blackfeet bands of Lakota all signed the document when Spotted Tail did. Some Oglala eventually did sign. But many of those represented on the treaty did not.

According to David Miller, a former history professor at Black Hills State University, the treaty was taken to Chicago from Fort Laramie for Gen. Phil Sheridan, commander of Military Division of the Missouri, to review.

Concerned it would limit military operations -- and convinced a showdown was inevitable -- Sheridan had an addition made, Miller has written. Called "the Chicago rewrite," the new language stipulated that the Sioux would not oppose the "construction of railroads, wagon trains, mail stations or other works of utility or necessity which may be ordered or permitted by the laws of the U.S."

Miller wrote there is no evidence that the bands of Indians who signed onto the treaty ever knew that language was added. But years later, the Army argued that the "works of necessity" clause justified Lt. Col. George Custer's expedition into the Black Hills in 1874 looking for sites for a military post, Miller says.

On top of all that, because the tribal leaders involved in the treaty negotiations were illiterate, they were dependent on the spoken word of interpreters for their understanding of the treaty.

"Chances that all the bands of Indians influenced by the 1868 treaty had the same understanding of the document are not very great," Miller wrote. "Therefore, it could be argued that almost from its inception, the Fort Laramie Treaty of 1868 was misunderstood and never provided a valid point of departure for ethical and moral questions concerning the taking of the Black Hills."

The U.S. Senate ratified the treaty on Feb. 16, 1869. But peace would be short-lived.

Gold in the Hills

In July 1874, Custer was ordered out of Fort Abraham Lincoln near Bismarck with 1,200 men on a 60-day reconnaissance of the Black Hills for potential military fort sites. It would be the first major violation of the 1868 treaty.

On July 30, 1874, two miners found placer gold in French Creek. The rush to western Dakota Territory was on. For the next 17 months, the military fought a constant battle trying to keep miners out of the hills --and trying to prevent the Lakota from attacking those that got through.

Miners poured in by the hundreds. Those who were caught were escorted out by the soldiers. Few were ever prosecuted.

White America seemed to have little regard for the Sioux's claim to the land. Editors at newspapers from Sioux City, Iowa, to Sidney, Neb. -- including the Sioux Falls Independent -- saw the financial possibilities of their cities becoming the jumping-off point for the gold fields. So they promoted the possibility.

Growing frustration

Gen. Sheridan complained about the double duty of protecting settlements from raids by hostile Indians while dealing with the illegal occupation of the Black Hills by miners.

In fact, it was those Indian hostilities, caused in large part by white incursions into the Black Hills, that helped to fuel the animosities that exploded on the battlefield at the Little Bighorn on June 25, 1876.

President Ulysses S. Grant apparently shared Sheridan's frustrations. In a Nov. 3, 1875, meeting with Sheridan and several cabinet leaders in Washington, D.C., the president made a decision that ultimately figured heavily in the Supreme Court's 1980 ruling that the Black Hills were taken illegally.

"... the President decided that while the orders heretofore issued forbidding the occupation of the Black Hills country by miners should not be rescinded, still no further resistance by the military should be made to the miners going in; it being his belief that such resistance ... complicated the troubles," Sheridan wrote in a confidential memo to Gen. Alfred Terry afterward.

In other words, the government admitted it was going to violate the 1868 treaty, says Mark Leutbecker, a researcher with Nicklason Research Associates in Arlington, Va., who helped the Sioux in their case. "The Sheridan letter resulted in proof of a ... taking, the only time that happened in the history of the Indian Claims Commission," Leutbecker says. "It really exposes an incredible government conspiracy."

Call off your men, Grant told Sheridan. And get the Sioux and Cheyenne to sell their rights to the Black Hills. To assist in the cause, Congress passed the Sioux Appropriation Bill in August 1876 that said, basically, either the Sioux signed away their claim to the Black Hills and Powder River country or they would lose promises of food and other provisions forever.

Hungry and malnourished, many Sioux did sign. But tribal lawyer Gonzalez says it fell far short of the three-fourths of adult males required, and probably numbered closer to 10 percent.

By the fall of 1876, the government had all the signatures it was going to collect. Congress made the taking of the Black Hills official on Feb. 28, 1877.

What followed was decades of legal wrangling over the issue. In 1920, Congress passed an act allowing the Sioux to submit claims before the Court of Claims specifying that the Black Hills were illegally taken. The Sioux did so in 1923, but in 1942, the Court of Claims dismissed their grievance, saying it didn't have jurisdiction.

In 1946, Congress established the Indian Claims Commission to hear Indian complaints about property improperly taken. It allowed the Sioux to resubmit their claim, but stressed that they could only sue for monetary compensation, not for the land.

Three decades of legal maneuvering followed until 1974, when the Indian Claims Commission decided the Sioux were entitled to $17.1 million for reimbursement and interest of 5 percent from the time the land was taken.

In 1979, that decision was affirmed by the Court of Claims, and the U.S. Supreme Court confirmed it on June 30, 1980.

Land, not money

The trouble is, the Sioux don't want the money. In fact because so much time has passed, Gonzalez says Congress would have to reauthorize the payment now if the Sioux decided to take it.

Which they have no intention of doing, says Johnson Holy Rock, an 83-year-old Oglala elder whose father, Jonas, survived the Battle of the Little Bighorn.

"It's a healing place, a nurturing place, for us," Holy Rock, of Pine Ridge, says. "Red Cloud used to say, 'A man almost on the verge of death could go into those hills in the fall and not come out all winter, and when he did finally come out, he'd be fat and robust and saved from starvation and totally healthy.'

"It's always been that way. That's why the buffalo would go into the hills in the fall. And that's what we want returned."

Sen. Bill Bradley proposed in a 1985 bill that the government return 1.3 million acres --about one-fifth of the Black Hills --to the Sioux, along with monetary compensation. It wasn't the towns Bradley intended to give back, but the land held through the parks, forest service and Bureau of Land Management.

"We're not interested in taking people's homes," says Oliver Red Cloud of Pine Ridge, great-grandson of Chief Red Cloud. "The only thing that changes is instead of the taxes and fees being paid to the government for the minerals and forest, that will go to the tribes."

It also would have meant that any use of the Black Hills would have been based on Lakota respect for the earth. That means sacred areas like Bear Butte and Harney Peak could have been temporarily closed for Lakota religious or ceremonial activities.

Bradley's bill made little headway in Congress, in large part because of opposition from South Dakota's congressional delegation. A similar bill introduced by Rep. Mathew Martinez of California in 1990 also went nowhere. No further legislation has been introduced.

There have been, however, more radical efforts by the Lakota to reclaim their land.

On April 4, 1981, the Dakota American Indian Movement established a settlement called Yellow Thunder, 12 miles southwest of Rapid City, to dramatize their demand.

The 800-acre site was supposed to become a permanent Indian religious, cultural and educational community. But it was framed in controversy, including an incident in July 1982 when a Rapid City resident was shot to death by an alleged camp member. Ultimately, the U.S. Supreme Court refused to hear an appeal from the Lakota, who were denied a special-use Forest Service permit for the camp.

The same summer that Yellow Thunder was established, 1981, a group of 100 Oglala Sioux --many of them elderly -- set up a camp on the north edge of Wind Cave National Park to dramatize their claim to the area.

This time the group was granted a 14-day camping permit from the National Park Service. And the occupation went peacefully.

What next?

How reasonable is it to think the Lakota might ever get all or part of the land back? In September 1993, a poll by Political/Media Research of Washington, D.C., found that 26 percent of South Dakotans favored returning unoccupied federal lands in the Black Hills to the Sioux people; 58 percent opposed it and 10 percent were undecided. Tribal officials viewed those numbers with optimism.

"I am very pleased with the poll because it indicates that we are making progress," Gonzalez said at the time. "If the same poll was taken in 1980, my guess is that only 1 or 2 percent ... would have favored returning federally held lands."

Even now, many Lakota see promise in the attitudes of their white brethren. For example, discussions are going on among state Game, Fish and Parks officials, lawmakers and tribal people about the use of Bear Butte near Sturgis and land around it.

For decades, GF&P officials have looked at purchasing land around Bear Butte as a buffer against commercialization. Such a buffer would preserve the site's tranquility for tribal people who practice traditional religious rites there, says Webster Two Hawk, commissioner of the state Tribal Government Relations office.

The GF&P officials also are looking at other options including asking the public to limit use of the hiking trail at Bear Butte in June, a peak month for religious use, and directing hikers to an educational program abut religious use at Bear Butte.

To many Lakota people, that's a start. But it is only a raindrop in the vast and complex sea of issues enveloping the Black Hills.

Teaching the young

Perhaps one of the great challenges facing the Lakota today and tomorrow is connecting their future generations to the significance of the past of the Paha Sapa.

For if they can't, will the lure of millions, maybe even billions of dollars in the U.S. Treasury override any attachment their parents and grandparents had to the land?

"You can only speculate about future generations," Gonzalez says. "Over time, people die and new generations come into existence, and it's the long-term plan of the U.S. government that ties to the old ways will eventually diminish upon the passing of several generations.

"What they hope is that at some point in the future, the ties to the old ways will only be a remembrance. And thereafter, new generations will have more loyalty to the U.S. government than the Sioux government. At that point, the 'conquest' will be completed."

It's up to the Sioux people to determine whether that happens or not. The education process is occurring, says Faith Taken Alive of McLaughlin, who works with Standing Rock Reservation's schools to teach students about the treaties and the old ways.

"The Black Hills is not just the Rushmore Mall in Rapid City to our young people," Taken Alive says. "It's not the shrine of hypocrisy at Mount Rushmore. It's not Crazy Horse Mountain.

"We tell our young people that. They understand the meaning of what the Black Hills is once they've been to Bear Butte."

They understand it is a sacred place, a land rich, nurturing and sustaining, Rick Two Dogs says. And that lesson is learned as simply as cutting down a white ash tree in the forest outside of Rapid City to be used as a tipi pole in a sun dance.

"When we visit sacred sites, or do things like this, we're part of that same spiritual journey that our forefathers did long ago," Two Dogs says. "Accepting money for the land is like giving all of that away. How could we do that? How could we ever do it?"

Reach reporter Steve Young at: syoung@argusleader.com