Treaty history and the long Black Hills lawsuit driving today’s Landback strategy

PIERRE – Just as all nine federally recognized South Dakota tribes officially voted to advance federal legislation to return federal public lands in the Black Hills to the Great Sioux Nation, renowned Oglala Lakota tribal attorney Mario Gonzalez clarified the tangled history of the Black Hills land dispute during a presentation at the State Historical Society, breaking down the 150-year legal saga into three distinct historical and jurisdictional claims.

The South Dakota State Historical Society hosted the 2026 Annual History Conference in early June in Fort Pierre. In a press release, the Society that this year’s theme “Grit and Glory: America’s 250th” serves as the states opening academic and public event marking the national celebration, bringing together historians, educators, and citizens to examine the enduring legacy of the Declaration and how “South Dakotans have shaped these founding American principles through regional history.”

The multi-day conference included a presentation by Gonzalez (Oglala Lakota/Mexican) who served as the Oglala Sioux Tribal Attorney for 40 years and continues to serve as special counsel and is widely considered one of the foremost leading experts on the legal, political, and cultural history of the Black Hills land claims. He is an expert on the 1851 and 1868 Fort Laramie Treaties, and is the definitive voice for explaining the complex, century-long battle over the Black Hills. His presentation was scheduled alongside related academic and constitutional sessions, such as Patrick M. Garry’s talk on the South Dakota Constitution and Frank Pommersheim’s session on U.S. Constitutional Law & American Indian Rights.

There is a lot of history to be told across America as the nation approaches 250 years since the signing of the Declaration of Independence. The Semiquincentennial coincides with the 150th anniversary of the Homestake gold claim and the settlement of the Black Hills towns of Lead, Spearfish, and Rapid City. However, none of these stories – from the East Coast settlement to Western expansion and settlement – can be told without also telling the story of the Battle of Greasy Grass and the events that led to the battle, which was a direct consequence of the U.S. violating the Treaty of Fort Laramie (1868). However, these details have been heavily obscured, mistold, and politically recreated for well over a century.

By the nation’s bicentennial in 1976, the dominant narrative of this pivotal event was being challenged by Native scholars and historians, yet it was still called the Battle of the Little Bighorn and was still widely romanticized, with George Armstrong Custer cast as a tragic hero who sacrificed everything.

The narrative has shifted. A search of state-level America250 commissions include Native perspectives, including in South Dakota. T

Gonzalez’s session titled “Meanwhile in the Black Hills…the Founding Principles To Live On” explored how Lakota perspectives interact with foundational constitutional principles.

Gonzalez says historical misunderstandings about treaty rights continue to shape contemporary disputes over land and compensation. He says it’s impossible to understand current claims without first getting treaty history – and the parties to those treaties- right.

The two foundational documents, the 1851 Treaty and the 1868 Treaty are often referenced together in litigation and public debate, but they involved different tribal signatories and produced different sets of rights. Gonzalez explains the 1851 Treaty involved seven Teton bands along with the Yankton Sioux. The 1868 Treaty, by contrast, did not include the Yankton, but instead brought in the Teon, the Yanktonai, and the Santee. The

The Santee’s presence in the 1868 agreement, Gonzalez noted, is sometimes mischaracterized or overlooked. Originally based in Minnesota and parts of present-day South Dakota, Santee communities were later removed from Minnesota to Fort Thompson. After that forced relocation, they became signatories to the 1868 treaty.

He said when a tribe signs a treaty, it acquires identifiable rights and interests in land and resources. In this context, those rights extend directly into the Black Hills.

By signing the 1868 treaty, the Santee, Crow Creek, and related communities obtained legal footholds that tie them to the Black Hills claim. Those rights form part of the legal foundation for the current series of cases—along with the contemplated fourth action aimed at halting a payment the advocate believes is inconsistent with the treaty based distribution framework.

While this is a dispute over the same piece of land it has been separated into three distinct court cases that began after 1920.

The period from 1851 to 1877 is a period of creating treaties and then breaking them and eventually seizing the Black Hills without tribal consent.

The legal battle didn’t really begin until 1920 when Congress passed the Jurisdictional Act a onetime piece of legislation allowing the Sioux to sue the United States. The Sioux formally filed a lawsuit on 1923 which the court dismissed saying that it lacked the authority to overturn an act of Congress.

In 1946, the Indian Claims Commission Act was passed, and this allowed all tribes to sue for things not covered under the 1920 Act such as “unconscionable consideration.”

This Act established new legal grounds allowing the Sioux to resurrect the 1923 case. In 1951, the Sioux submitted a brand-new petition, which became Docket 74 and started the second legal case phase that eventually went to the Supreme Court. Because tribal council had failed to utilize the broad new legal grounds allowed in the 1946 Act, the Indian Claims Commission dismissed Docket 74 in 1954, agreeing with the federal government’s defense ruling that the 1942 dismissal of their original 1923 lawsuit had already been decided and could not be tried again.

New tribal attorneys changed tactics, filed a motion for the hearing, and argued that the previous counsel had provided inadequate representation and failed to separate the unconstitutional taking of the Black Hills from other treaty cessions. This was a turning point. The newly appointed legal team successfully overturned the 1954 dismissal of Docket 74 by arguing mismanagement by the previous counsel. By 1960, they took the crucial step of splitting the massive claim, isolating the sacred Black Hills under Docket 74-B, which rescued the litigation and created a direct procedural path to the landmark 1980 Supreme Court victory. Gonzalez stresses it’s important to understand the split – Docket 74-A represents forty-eight million acres outside the boundaries of the Great Sioux Reservation and Docket 74-B pertains to the 7.3 million acres forming the sacred heart of the Black Hills.

As tribes in the region plan and gather for this year’s Greasy Grass anniversary, Francis Whitebird, a member of the Board of Trustees for the South Dakota State Historical Society, told Native Sun News Today that the Lakota don’t have a lot to celebrate when it comes to America250. He said he’s proud of his own tribe, the Rosebud Sioux Tribe, for focusing instead on their own milestone — the 150th Annual Rosebud Fair, Wacipi, and Rodeo in August, celebrating more than a century of Rosebud history.

Whitebird said he was impressed by the speakers and their presentations at the history conference. He described Gonzalez’s talk as exceptionally strong:

“It was just one of the most thorough and comprehensive presentation I’ve ever heard about the Black Hills,” he said.

The Black Hills lawsuit is considered one of the longest-running of its kind because of the federal government’s documented misconduct and the refusal by tribal leaders to accept payment in lieu of land. In 1975, the Indian Claims Commission concluded that “a more ripe and rank case of dishonorable dealings will never in all probability be found in our history.”

That unresolved injustice now underpins the modern Landback movement in the Black Hills — the same history Gonzalez unpacked at the Fort Pierre conference. In a recent news release, NDN Collective said that at the grassroots level, tribal nations and allied organizations are working to develop legislation to protect drinking water, preserve sacred sites, revitalize culture and land, strengthen sovereignty, bolster community wellbeing, and support jobs and economic development.

“Right now, there are 8,800 active mining claims in South Dakota — about 17 percent of the entire Black Hills. This legal strategy would protect the Black Hills from all extractive activities and preserve clean drinking water for all peoples and Mother Earth.”

(Contact Marnie Cook at cookm8715@gmail.com)

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