Tribes ask for Nation to Nation consultation to review fraudulent 1868 land cession

THE STANDING ROCK SIOUX TRIBE AND OGLALA SIOUX TRIBE HAVE JOINED FORCES IN ASKING THE BIDEN-HARRIS ADMINISTRATION FOR NATION-TO-NATION CONSULTATIONS TO ESTABLISH A 15-MEMBER BI-PARTISAN TASK FORCE TO REVIEW FRAUDULENT LAND CESSION SNUCK INTO ARTICLE 2 OF THE 1868 FORT LARAMIE TREATY BY THE UNITED STATES’ TREATY NEGOTIATORS AFTER IT WAS SIGNED BY THE SIOUX CHIEFS

FORT YATES, ND – The Standing Rock Sioux Tribal Council passed a resolution on November 16, 2023 to join the Oglala Sioux Tribal Council in requesting the Biden-Harris Administration for nation-to-nation consultations to appoint a 15-member, non-partisan Task Force to review Article 2 of the 1868 Fort Laramie Treaty that established a reservation (called the “Great Sioux Reservation”) for the “absolute and undisturbed use and occupation” of the signatory tribes. The Oglala Sioux Tribal Council previously passed Ordinance No. 23-43 on September 6, 2023, requesting the Standing Rock Sioux Tribe to join it in co-sponsoring the consultations.

Article 2 of the Treaty, however, also contained the following language after the legal description of the Great Sioux Reservation:

[A]nd henceforth they will and do hereby relinquish all claims or right in and to any portion of the United States or Territories, except such as is embraced within the limits [of the Great Sioux Reservation] aforesaid…

The “relinquishment” language referred to 48 million acres of 1851 Treaty and non-treaty territory outside of and surrounding the Great Sioux Reservation –which the Standing Rock and Oglala Sioux tribes point out was fraudulently snuck into Article 2 of the treaty by the United States’ treaty commissioners after it was signed by the Sioux chiefs. (See attached map showing Docket 74 land area)

The tribes’ position is corroborated by findings of the Indian Claims Commission’s opinions in Docket 74 which, after examining the history of the 1868 Treaty, found that:

The Indian Peace Commission presented the proposed treaty to the Sioux bands in a series of councils held in the spring of 1868 * * * At the councils, after hearing an explanation of the terms of the treaties, the Sioux generally voiced these sentiments… 2. They were unwilling to cede any of their lands. [Emphasis supplied] See Sioux Nation v. United States, 42 Ind. Cl. Comm. 214, 224 (1978).

From this recitation, it is clear that, based on the presentation of the United States negotiators, the Indians cannot have regarded the 1868 Treaty as a treaty cession. Nowhere in the history leading up to the treaty or the negotiations themselves is there any indication that the United States was seeking a land cession or that the Sioux were willing to consent to one. On the contrary the evidence is overwhelming that the Sioux would never have signed the treaty had they thought they were ceding any land to the United States. [Emphasis supplied] Id., at 226.

The Indian Claims Commission then concluded as follows:

The history of this case makes it clear that the treaty was an attempt by the United States to obtain peace on the best terms possible. Ironically, this document, promising harmonious relations, effectuated a vast cession of land contrary to the understating and intent of the Sioux.… [Emphasis supplied] Id., at 226.

The Government’s treaty negotiators included Civil War General Lieutenant-General William T. Sherman, General William S. Harney, General Alfred H. Terry, and General C. C. Augur, who sneaked the “relinquishment” language in Article 2 of the 1868 Treaty after it was signed by the Sioux Chiefs to end the Powder River War of 1866-1868 (sometimes called “Red Cloud’s War). The 1868 Treaty provided for peace and a mutual demobilization without terms of surrender on either side.

In 1983 and 1984, the Oglala Sioux Tribal Council passed two resolutions to withdraw from Docket 74 because it did not want to be a party to the U.S. Claims Court’s perpetuation of fraud on its own tribal members. (Resolutions Nos. 83-160 and 84-47).

Two years later, on February 22, 1985, the U.S. Claims Court entered an order denying the Oglala Sioux Tribe and Rosebud Sioux Tribes’ Motion For Relief From Judgment and implemented the United States’ settlement offer of $39,749,000 as its final judgement, and terminated Docket 74. See Sioux Tribe of Indians v. United States, 8 Cl. Ct. 80 (1985).

In a subsequent appeal, the Federal Circuit Court of Appeals affirmed the judgment award, with one judge (Judge Newman) dissenting as follows:

The entry of judgment is surely not a routine ‘evidentiary stipulation’ such as is encountered in day-to-day trial management: not only because the stipulation disposes of some 3.7 million dollars in moneys previously adjudged to be due the Sioux Indians; but because counsel for both sides knew that since at least 1979 tribes representing the majority of Sioux Indians had given instructions contrary to the settlement. The record contains two resolutions of the Oglala Sioux Tribal Council informing counsel that it no longer sought money damages, but wanted to pursue legal and legislative strategies to gain return of ancestral lands. These resolutions also directed counsel to have the Oglala Sioux Tribe dismissed from this litigation . . . .

A lawyer cannot be authorized by a court to make a settlement and bind the client contrary to the client’s wishes. Nor can either the court or the United States ignore the tribes’ several attempts to discontinue Mr. Lazarus’ representation. The court does not discuss the asserted violation of 25 U.S.C. 81.

In light of this extended history, the Claims Court’s acceptance of the Stipulation of Facts and the grant of the Joint Motion to Enter Judgment [filed by Government attorneys and tribal claims attorneys Lazarus, Sonosky and Payne] is incongruous; and its denial of appellants’ motion for relief [from judgment] under Rule 60 (b) is in plain error, in light of the undisputed assertion that they were given no prior notice of the settlement. Id. [Emphasis supplied]. See Oglala Sioux Tribe and Rosebud Sioux Tribe v. United States, 862 F2d 275 (Fed. Cir 1988).

In regards to the two tribes’ request for nation-to-nation consultations to review the land “relinquishment” language snuck into Article 2 of the 1868 Treaty by the United States’ treaty negotiators, Oglala Sioux Tribal President Frank Star Comes Out stated that:

“Isn’t it ironic that the Oglala Sioux, the tribe of Red Cloud and Crazy Horse, are joining forces with the Hunkpapa Sioux, the tribe of Sitting Bull and Gall, to hold the United States’ accountable for the fraud their treaty negotiators perpetuated upon the Sioux tribes 155 years by inserting fraudulent land cession language in Article 2 of the 1868 Treaty?”

President Star Comes Out also pointed out that tribes and the government need to find innovative ways and solutions to resolve the fraud issues in Docket 74 so a win-win result can be accomplished without the tribes having to agree to sell out 48 million acres of their homeland.

Standing Rock Sioux Chairwoman Janet Alkire also emphasized that the Docket 74 consultations do not involve the Black Hills Claim (Ct. Cl. Docket 148-78) which involves territory within the Great Sioux Reservation. Docket 74 on the other hand involves 48 million acres of territory outside of and surrounding the Great Sioux Reservation. She said that “This is about correcting an injustice” and “the Black Hills are NOT for sale.”

The Standing Rock Sioux and Oglala Sioux Tribes will jointly sponsor the nation-to-nation, in-person consultations between Secretary Debra Haaland and Assistant Secretary of Interior for Indian Affairs, and are requesting that all Docket 74 tribes participate in the consultations.

STANDING ROCK SIOUX TRIBE

Tim Mentz Sr.

Communications Director

Email: timothy.mentzsr@standingrock.org

Phone: 701-301-1019

OGLALA SIOUX TRIBE

Stephanie Star

President’s Administrative Assistant

Email: stephanie.s@oglala.org

Phone: 605-899-8030

Donna Salomon

President’s Administrative Assistant