The Black Hills Are Not for Sale

Image by Shepard Fairey and Aaron Huey.  More information about the print at the bottom of this article.

Image by Shepard Fairey and Aaron Huey. More information about the print at the bottom of this article.

Today is Wednesday, November 20, 2013.

When President Obama took office, one of his priorities was to improve the lives of Native Americans.  His administration has done a number of things that will hopefully translate into improved conditions for Natives in the United States, even though there is always more that he could do.  Unfortunately, politicians can never seem to deliver on all of their promises, no matter how sincere they were when they made them.  That’s one of the  major disadvantages of a system of government that has two major, diametrically opposed parties that dominate the national discourse.  But that’s the subject of another blog entry.

Today I want to talk about the Black Hills.  This mountain range got its name from the Lakota Sioux language: Pahá Sápa means “Black Hills,” probably because the mountains do look black when viewed from the surrounding prairie, due to the dense forests on the mountains. (From space, the Black Hills look like a large, circular dark range surrounded by brown plains.)

First, a little background information:  After the Homestead Act was signed in 1862, various tribes were being resettled in the west.  A treaty signed in 1868 set aside the Black Hills of western South Dakota, as well as other land, for the Sioux tribes.  Unfortunately, when gold was discovered in the Black Hills, Congress passed a law in 1877 seizing the land.   The Dawes Act was passed in 1887 to break up the Indian land into smaller, individual family holdings.  Then in 1889, just before North and South Dakota joined the Union as states, another act was passed, dividing the Great Sioux Reservation into five smaller reservations for the Sioux Indians: the Standing Rock Reservation, Cheyenne River Reservation, Lower Brule Reservation, Upper Brule/Rosebud Reservation, and Pine Ridge Reservation.  Once the land was allotted to households, the “leftover” land was appropriated by the U.S. government, declared “surplus,” and sold to non-Native homesteaders.

The Great Sioux Reservation and other Indian Lands.

The Great Sioux Reservation and other Indian Lands.

Unfortunately, poor farming methods created the famous “dust bowl” conditions of the 1930s, and many farmers abandoned their land.  In addition, the government appropriated more land for water control projects such as construction of Lake Oahe and other reservoirs on the Missouri River as part of the Pick-Sloan Missouri Basin Program.  As a result, the land area of the reservations was diminishing, little by little.  The Rosebud Reservation, for example, covered four whole counties and part of a fifth.  By the 1960s, it had been reduced to a single county. Rather than re-assigning the abandoned land back to the Sioux, the federal government transferred the land to the National Park Service and the Bureau of Land Management.

The Black Hills is now home to no fewer than six national parks: Mount Rushmore National Memorial, Badlands National Park, Devil’s Tower National Monument, Jewel Cave National Monument, Wind Cave National Park, and Minuteman Missile National Historic Site.  In addition, the Black Hills includes the Black Hills National Forest, within which is Harney Peak (called Hinhan Kaga Paha in the Lakota language, meaning “sacred scary owl of the mountain.”   This mountain is the highest peak in the state of South Dakota.  One other mountain, located in Wyoming, called Inyan Kara Mountain, is also sacred to the Lakota.  Inyan Kara means “rock gatherer.”

Nowadays, the only public presence of Native Americans in the Black Hills is the Crazy Horse Memorial, which was begun by a white sculptor and which was not finished at the time of the sculptor’s death.  Tourists can buy small-scale models of what the finished monument is supposed to look like, but the proceeds don’t benefit the Natives at all.

Current  Sioux Reservations in South Dakota in dark brown.  Notice how little of the original land is currently in the hands of the tribes.

Current Sioux Reservations in South Dakota in dark brown. Notice how little of the original land is currently in the hands of the tribes.

In the 1920s, tribal lawyer Richard Case argued that the Dawes act in 1877 was illegal, and that the United States had never purchased the land legitimately.  In 1956, tribal lawyers Marvin Sonosky and Arthur Lazarus took over the case, finally presenting their argument to the U.S. Supreme Court in March 2980.  They won the case, and the federal government reached a settlement with nine tribes for $102 million.  However, the Lakota had been arguing for the return of the land, not for money!  They refused to accept the settlement, reasoning that if they did this, then it was tantamount to agreeing to sell the land to the government.  Their position has always been that the Black Hills are not for sale.

Starting in 1978, a lot of other land settlement agreements were made with a number of tribes, who agreed to take the monetary settlements offered by the government.  The Sioux were the only holdouts.  The land is now believed to be valued at approximately $1.4 billion, if you count interest accumulated over 33 years.

President Obama’s agenda with respect to Native Americans was warmly welcomed at the start of his administration, and there have been some sterling achievements, such as increased support for tribal colleges and universities, expanded health care options for Native Americans, streamlined regulations intended to put more power in the hands of the tribes, and an amendment to the Stafford Act that gives tribes the option to directly request Federal emergency assistance when natural disasters strike their homelands. In March, the president signed the Violence Against Women Reauthorization Act, which recognizes tribal courts’ power to convict and sentence certain perpetrators of domestic violence, regardless of whether they are Indian or non-Indian.  In addition, this past June, the president established the White House Tribal Council on Native American Affairs, tasked with promoting and sustaining prosperous and resilient Native American communities and generally strengthening “nation to nation” relationships.

Every year of his administration, the president has convened a White House Tribal Nations Conference, to which each of the 566 federally-recognized tribes is invited to send a representative.  The fifth annual White House Tribal Nations Conference was held on November 13.  The event is well-attended every year, and although the Natives have expressed a great deal of admiration for the president for what he has already accomplished, they are not shy about reminding him of what still needs to be done.

When President Obama took office in 2009, his administration offered to restart the land negotiations, but the tribes ignored the invitation.  Unfortunately, I believe that the Obama Administration’s offer shows that the president and his administration – and the government, in general, simply don’t understand or concur with the Native American’s position that the Black Hills are not for sale.

Recently, Oglala Sioux Tribal President Bryan Brewer and Mario Gonzalez, an attorney representing the tribe, re-opened the question of entering into negotiations with the federal government.  Gonzalez said he didn’t want to legitimize the government’s seizure of the Black Hills by accepting money, but he pointed out that Obama’s offer could open the door to the return of unoccupied federally owned land. He referred to a deal that President Richard Nixon reached in 1970, when he returned 48,000 acres of national forest in New Mexico to the Pueblo.  The hope was that the Obama Administration might actually agree to the return of the Black Hills to the Sioux Tribe.

Brewer and Gonzalez promised that any negotiations – or the acceptance of any offer – would have to involve all nine tribes involved in the original Black Hills land dispute. Besides the Oglala Sioux Tribe, the other eight tribes involved in the Black Hills land case were the Cheyenne River Sioux Tribe, Crow Creek Sioux Tribe, Flandreau Sioux Tribe, Fort Peck Sioux Tribe of Montana, Lower Brule Sioux Tribe, Rosebud Sioux Tribe, Santee Sioux Tribe of Nebraska and Standing Rock Sioux Tribe.

In September an Oglala Lakota delegation met with a Texas-based law firm at its Washington, D.C. office to discuss the possibility of a court case.  The law firm stipulated that it would require a $20 million flat contingent fee, and 20 percent of any settlement, including a 20 percent interest on any land that might be returned.  In other words, if land were returned to the Natives, it would be partially owned by a Texas law firm!  In addition, the firm wants $50,000 due upon signing the agreement, with the ability to request another $50,000 with 30-day notice.  They also want $250,000 for expenses, with the ability to request another $250,000 with a 30-day notice. If the tribe defaults on payments for over 30 days, the law firm will withdraw as council.

Another red flag: The firm gives itself the right to represent anyone who decides to sue any of the Lakota, Dakota or Nakota Nations at any point during the course of the contract.  Surely this is conflict of interest! 

But the point that is most distressing to the Natives is that the attorneys clearly intend for the Oglala Sioux Tribe to take the Black Hills money.  This is exactly what they do not want to do, because they do not want to sell the Black Hills.  They want the land returned to them.

On November 17, a formal discussion was held among the nine tribes to see what the consensus was on the matter, hosted by Lakota Advocates, a grassroots organization consisting mainly of elders who are ex-chairmen, ex-council representatives, lay advocates, and activists.  Over 75 members from all nations of the Oceti Sakowin (the People of the Seven Council Fires, a traditional name for the entire Great Sioux nation) traveled to the Cheyenne River Reservation to take a stand against taking any portion of the monetary settlement of the Black Hills claim.

Their consensus: The Black Hills are not for sale!  At the meeting, Darrell Marcus Kills In Sight, from the Rosebud Reservation, challenged Oglala President Bryan Brewer to visit every reservation and explain himself regarding this Black Hills issue.  Perhaps he will do this, but at this point, it sounds very much like he will not succeed in getting the majority to agree to the deal.  Certainly, if they ever negotiated with the federal government, the tribes could do a lot better than asking some greedy law firm to negotiate for them.  Given that there are so many tourist attractions in the area, I wonder how the National Park Service would feel about possibly giving up control of the national parks in the Black Hills.  I suspect that there would be a great deal of resistance on their part to simply giving the land back to the tribes.

Meanwhile, President Obama has promised a first-ever visit from a sitting president to “Indian Country” sometime in 2014.  I wonder if this will really happen, and I wonder exactly where in “Indian  Country” he will visit.  And will his visit give him any greater understanding of the Native American position on the question of ownership of the Black Hills?  :-/


This image was created by contemporary street artist Shepard Fairey in collaboration with National Geographic Photographer Aaron Huey in support of and their efforts to educate the public about Native American Treaty rights.   This is their third project together. The poster came directly from a larger mural, which you can see here.   Proceeds from the sale of this print go to fund the “Honor The Treaties” awareness campaign.

You can see more of Aaron Huey’s documentary of the Pine Ridge Indian Reservation in the cover story of National Geographic magazine for August 2012.  You can also read an extended  essay on his website and listen to a TED Talk given by Huey in 2010.


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