Black Hills Land Claim
- 1 Background
- 2 History
- 3 Land rights and treaties
- 4 Late 1970s and early 1980s
- 5 Contemporary issues and controversies
- 6 References
- 7 External links
The Black Hills, the United States oldest mountain range, is 125 miles (201 km) long and 65 miles (105 km) wide stretching across South Dakota and Wyoming. The Black Hills derived its name from the black image that is produced by the “thick forest of pine and spruce trees” that covers the hills and was given the name by the Native Americans belonging to the Lakota (Sioux). The Lakota Sioux settled the area in about 1765 after being pushed out out of Wisconsin and Minnesota by European settlers and Iroquois tribes. The tribe quickly adapted to plains-life, with the bison at the center of their culture.
The land of the Black Hills has a United States Federal Government presence where it is home to six national parks: Mount Rushmore National Memorial, Badlands National Park, Devils Tower National Monument, Jewel Cave National Monument, Wind Cave National Park and Minuteman Missile National Historic Site. Black Elk Peak is the highest summit of the Black Hills at 7,242 feet (2,207 m) and is located within the 1,247,209 acres (5,047.28 km2) of the Black Hills National Forest. Black Elk Peak is a Lakota religious landmark and a popular hiking destination.
The presence of Native Americans in the Black Hills is represented by the Crazy Horse Memorial, which is a carved sculpture in the mountains of the martyred Lakota leader, Crazy Horse. The sculpture is designed to symbolize the culture, tradition and living heritage of North American Indians.
Religion and the Black Hills
Today, Lakota people believe that the Black Hills are sacred and should be returned for that reason. Conversely, Historian David Miller in “Historian’s View of S.705: The Sioux Nation Black Hills Bill” states that people who oppose the return of the Black Hills believe that, since the traditional religious ceremonies are held outside of the Black Hills, the land is not needed to perform the ceremonies.
Additionally, many believe that the Lakota want their land returned for the land’s resources and minerals. Others believe that the Sioux did not willingly choose to inhabit the Black Hills but were forced on to the land by military conquest of other tribes, proving that the Black Hills were not originally inhabited by the Sioux. Nonetheless, the Lakotas, Cheyennes, Arapahos, Kiowas and Kiowa-Apaches believe the land to be sacred.
From unrecorded history to first recorded history, the Lakota Sioux camped in the winter in the Black Hills, following the bison migration from Canada to Mexico, and did not come across a United States governmental spokesperson until the Lewis and Clark Expedition in 1804 near the Missouri River. The two men refrained from entering the Black Hills because they lacked governmental jurisdiction and feared the deadly consequences of entering sacred land. Moreover, the Teton Sioux first embraced Lewis and Clark with gifts and food and in return, Lewis and Clark notified the Indians that the United States controlled much of the Sioux lands under the newly obtained Louisiana Territory by distributing medals to symbolize peace and American citizenship.
The Lewis and Clark expedition led to the formation of the Missouri and American fur companies in 1808. As a result, the United States regulated trade outside of the Black Hills. To maintain peace, the United States government offered the Sioux full protection from harm and of property as well as gave the Sioux permission to hand over intruders to the United States government for further punishment. The sacredness of the Black Hills kept intruders out until Jedediah Smith’s expedition of 15 traders into the Black Hills in 1823.
Origin of the land claim
In 1849 the Californian Gold Rush attracted prospectors to the Black Hills, who were often killed by the Lakota as result of encroaching on the sacred grounds. As a result, the Treaty of Fort Laramie (1851) was formed to establish land rights and maintain peace between travelling miners and the Sioux. Under this treaty, the formation of reservations began where pieces of allotted land were distributed to several tribes.
The treaty recognized the Sioux territory of the Black Hills which were located between the North Platte River and Yellowstone River and obligated the government to pay $50,000 annually. However, a United States military war against Red Cloud proved to be a victory for the Sioux, which resulted in the Treaty of Fort Laramie (1868). This treaty ultimately protected the Black Hills from white settlement.
The treaty was violated when gold was discovered in Montana in 1874. However, the Sioux did not face intruders until Brevet Major General George Armstrong Custer and his army entered the Black Hills in 1874 and publicly announced their discovery of gold. By 1875 the announcement led to the establishment of large mining towns, such as Deadwood, Central City and Lead within the Black Hills. Accordingly, the United States unilaterally imposed the Manypenny Agreement, claimed the land, and officially removed the Black Hills from the Sioux Reservation by passing the Congressional Act of February 28, 1877. (19 Stat., 254)
Land rights and treaties
1851 Fort Laramie Treaty
Congress passed an appropriations bill in February 1851 to allow Commissioner of Indian Affairs Luke Lea to negotiate with the Native Americans living on the Black Hills. The Fort Laramie Treaty was developed to prevent further harm of the natural resources in the Black Hills that were damaged by miners travelling to California. The treaty also developed boundaries for the Sioux and promoted peace between white settlers and plain Indians. Consequently, the treaty favoured United States expansionism when the Sioux agreed to the development of railroads and trails within their territory.
In contrast, the treaty did prove beneficial to the Sioux nation, where the government agreed to pay the tribe $50,000 each year for 50 years and recognized land rights of the Sioux and their right to self-governance within their boundaries. However, the United States violated the treaty a year later on May 24, 1852 when the United States Senate decreased the payment of $50,000 for fifty years to ten years.
1868 Fort Laramie Treaty
On December 21, 1866 a supply train, travelling on Bozeman Trail was attacked by Sioux Indians. Soldiers under the command of Lieutenant Colonel William Fetterman at Fort Kearny retaliated but were all killed by a small Sioux army led by Red Cloud.
United States Congress responded on July 20, 1867 by passing a bill for an Indian peace commission. The peace expedition was led by Lieutenant General William Tecumseh Sherman. While negotiating, Sioux Indian Spotted Tail, representing the Indians of Powder River stated “We object to the Powder River road. The country which we live in is cut up by white men, who drive away all the game. That is the cause of our troubles.”  General Sherman responded by saying that the government would not close down the trail but would compensate the Indians for any damages travellers may have caused to the land. Red Cloud hesitated to sign the treaty, but eventually agreed to the terms on November 6, 1868.
In relation to the Black Hills land claim, Article 2 established the Great Sioux Reservation and placed restrictions on hunting lands. Article 11 of the treaty states that “parties to this agreement hereby stipulate that they will relinquish all right to occupy permanently the territory outside their reservation as herein defined, but yet reserve the right to hunt on any lands north of North Platte and on the Republican Fork of the Smoky Hill River.” 
Shortly after the signing of the treaty, two tribes residing near Republican Fork killed several white settlers which resulted in another violation of the treaty where the United States removed Sioux land rights to the Republic Fork.
"Sell or Starve" and the Act of 1877
After the defeat at the Battle of the Little Bighorn in June 1876, Congress responded by attaching what the Sioux call the "sell or starve" rider (19 Stat. 192) to the Indian Appropriations Act of 1876 (19 Stat. 176, enacted August 15, 1876) which cut off all rations for the Sioux until they terminated hostilities and ceded the Black Hills to the United States.
The Agreement of 1877, also known as the Act of February 28, 1877 (19 Stat. 254), is the most controversial treaty regarding the Black Hills land claims. The treaty officially took away Sioux land, and permanently established Indian reservations. Article 1 of the act modifies the boundaries of reservations stated in the 1868 Fort Laramie Treaty, while Article 2 allows the United States government to establish roads for settlers to travel upon when crossing the territory. Also, article 7 states that only full blood Indians residing on the reservation are allowed to the agreements and benefits from this act as well as past treaties. The controversies around this act state that the government purchased the land from the reservation but there is no valid record of this transaction.
Late 1970s and early 1980s
The legal struggle for the Black Hills land claim began in the early 1920s under tribal lawyer Richard Case where he argued that the 1877 Act of February was illegal and that the United States never made a legitimate purchase of the land. Tribal Lawyers Marvin Sonosky and Arthur Lazarus took over the case in 1956 until they won in 1980.
The United States Court of Claims on June 13, 1979, in a 5-2 majority, decided that the 1877 Act that seized the Black Hills from the Sioux was a violation of the Fifth Amendment.
On July 31, 1979 the Sioux were awarded $17.5 million with 5 percent interest totaling $105 million. However, the victory was short lived. The Indians residing in the Black Hills feared the notion that if they accept the award their land would be officially sold. This led many Sioux to believe that they would lose their land, culture and identity.
Furthermore, the two lawyers continued to work with the government to provide the tribe with just compensation for violating the 1868 Fort Laramie Treaty. In September 1979, Sonosky and Lazarus offered the tribe $44 million as a settlement for the violation in 1868, but were met with hostility.
On October 17, 1979 Solicitor General Wade McCree of the Justice Department sent an appeal to the United States Supreme Court over the initial ruling by the Court of Claims and on November 21, 1979 the Supreme Court set a date to review the claim and on December 10, the appeal was granted.
The Supreme Court case United States v. Sioux Nation of Indians was argued on March 24, 1980. On June 30, 1980 the United States Supreme Court ruled in an 8-1 majority to uphold the United States Court of Claims’ initial ruling, awarding the Sioux nation $106 million, which resulted in the largest sum ever given to an Indian tribe for illegally seized territory.
However, a complaint was filed to the United States District Court on July 1, 1980 by a member of the Sioux tribe asking the United States Supreme Court to prevent Arthur Lazarus from accepting any compensation that was awarded on behalf of the tribe. The tribe stated that they did not sign a legal contract with Lazarus, and that he did not represent their view.
On July 9, 1980 in a unanimous decision, the Sioux tribal council refused to accept $106 million award to them. The tribal council argued that “the Supreme Court decision should be vacated on the grounds that the Tribe was not represented in those proceedings.”
On July 18, 1981, Mario Gonzalez filed a lawsuit asking for 7,300,000 acres (30,000 km2) of the Black Hills in South Dakota and $11 billion in damages. The claim was that $1 billion would go to aid the poor standard of living from the seizure of the land while the other $10 billion would be used to remove “nonrenewable resources from the Hills.” 
A New York Times article “Around the Nation: Appeal Court Rejects Suit, By Indians Over Black Hills” on June 3, 1981 stated that a United States Federal appeals court denied the terms of the lawsuit and ruled that the Indian Claims Commission was the only mechanism Congress has authorized for hearing land cases of this type, and it was now terminated.
On October 6, Arthur Lazarus filed for attorney fees for himself and the two other lawyers, Howard Payne and Marvin J. Sonosky, who participated in the United States v. Sioux Nation of Indians but were never paid. On May 21, 1981, the United States Court of Claims granted the three lawyers with 10 percent of the $106 million awarded, which totaled $10.6 million. However, many Sioux Indians disagreed with the awarded fees and believed that the lawyers deserved nothing because the tribes did not want money as a form of compensation.
The issue of land over money as compensation continued through 1981. In April, 40 Indians constructed a camp in Yellow Camp, located in the Black Hills to protest the United States Forest Service’s removal of all Indians living on that territory by September 8 of that year; however, they did not succeed.
The appeal brought by Pine Ridge Indian Reservation, in 1981 for 7,300,000 acres (3.0×1010 m2) of South Dakota Black Hills land and $11 billion was denied by the United States Supreme Court and resulted in the involvement of the United Nations which was investigating if this denial breached international law.
After several denials of appeals brought by tribal lawyer Mario Gonzalez, the Black Hills Steering Committee was formed. The committee drafted a bill for Congress that asked for the 7,300,000 acres (30,000 km2) of the Black Hills in South Dakota. At the time, the committee’s coordinator stated that “the bill would give the Sioux all Federal land in the area, roughly two million acres.” Under the bill, the Black Hills Steering Committee promised to keep all federal employees that worked on the Black Hills.
Contemporary issues and controversies
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Today, the Obama Administration has talked about settling the Black Hills land claim dispute. In a press statement, President Barack Obama gave hope of government negotiations and Native American self-determination. A tribal analysis stated that President Obama “is a strong believer in tribal sovereignty. He does not believe court or the federal government should force Sioux tribes to take settlement money for the Black Hills. He believes that tribes are best suited to decide how to handle the monetary award themselves.”
The Sioux are re-emerging with new faith and are ready to start working with President Barack Obama where they have publicly announced their eagerness for “government to government negotiations to explore innovative solutions to resolve the long-standing dispute over the sacred Black Hills in a fair and honourable manner.“
There is no current government activity on the Black Hills. However, on November 5, 2009 President Obama stated to the Native American population that "You deserve to have a voice,” and “You will not be forgotten as long as I'm in this White House." This statement occurred after President Obama’s signature on a bill allowing agencies to submit paperwork in regards to methods and efforts of allowing Native American tribes to participate in and influence decisions in United States policies regarding tribal life.
On April 27, 2009, the Native Times article "Lawsuit Would Let Sioux Take Money for Black Hills" wrote that the Sioux still have not received the money that was awarded to them in 1980. However, today, the notion of land over money for compensation has begun to fade for some. One lawyer for 19 tribal members who reside on the reservations and have filed a suit says they want to receive money and not the land as compensation. They claim that 5,000 tribal members have signed on with the lawsuit but don't want to be named.
As a result, two problems have emerged regarding money as just compensation. First, the Sioux do not know how they want the money to be distributed. Lawyer Wanda L. Howey-Fox argues that the money should be given to each individual member of the tribe. Second, many tribal members feel as if they cannot come forward and share their view of accepting the money without being reprimanded by tribal officials as well as other Native Americans in the community. Consequently, statements by tribal members, such as Charlotte Black Elk of the Pine Ridge Reservation, state that "tribal members who agree to take the money would be giving up their identities as Indians. Anyone who wants money for the Black Hills should not live on the reservations."
President Theresa Two Bulls has stated that the people must "stress the sacredness of the Black Hills so our youth are engaged in keeping our culture intact and always growing towards the future."
On June 30, 2009, the Rosebud Sioux and Oglala Sioux tribes called for a meeting to discuss the split issues regarding just compensation for the Black Hills.
Conflicts between the Sioux Nation and the United States Government
Today, the Black Hills land claim case is still an ongoing issue. Native American lawyer Wanda L. Howey-Fox statements in April 2009 explain the modern issues regarding the Black Hills. She states, “There is no selling to be done because the court determined it was an improper taking and all the court can give as far as remedy is money.” In the present day, the government has recognized that the seizure of land in 1877 was illegal but is still unwilling to return the Black Hills.
Additionally, Lawyer Howey-Fox has currently brought a lawsuit demanding the release of $900 million in Sioux trust funds. As of now, the case is still pending.
United Nations recommendation
|This article needs to be updated. (May 2015)|
In 2012, United Nations Special Rapporteur James Anaya conducted a 12-day tour of Native Americans land, to determine how the United States is faring on the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by the administration of President Barack Obama in 2010. Mr. Anaya met with tribes in seven states on reservations and in urban areas, as well as with members of the Obama administration and the Senate Committee on Indian Affairs. Mr. Anaya tentatively recommended the return of lands to some tribes, including the Black Hills to the Sioux. His full official report with recommendations was released in mid-2012.
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- Afraid of Bear-Cook, Loretta. "Pine Ridge Indian Reservation Community and District Hearings to Appoint Representatives of the Oglala Sioux Tribe to Meet with President Barack Obama on Black Hill’s Land Claim Issues and Reaffirm that the Black Hills Are Not For Sale, Following an Historic Gathering of Oglala Lakota Nation." Online. October 20, 2009.
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- BBC News - UN official calls for US return of native land
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- Could the U.S. give up Mount Rushmore? Iconic site is on list of 'sacred land' UN says must be returned to Native Americans. Daily Mail.
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