Appendix H:  Chronology of Historical/Legal Events on Sioux Land Claims.

(Reprinted with Permission from the Author.)

Source - The Politics of Hallowed Ground: WWounded Knee and the Struggle for Indian Sovereignty. Mario Gonzalez and Elizabeth Cook Lynn. Chicago: Univ. of Illinois Press, 1999. Pp. 330-357.

 

EVENTS FROM 1851 TO 1946

 

1851   The Fort Laramie Treaty of September 17, 1851 (11 Stat. 749), was ratified by the U.S. Senate. Article 5 of the treaty recognized title in the "Sioux or Dahcotah Nation" to approximately 60 million acres of land west of the Missouri River (within the present states of North Dakota, South Dakota, Nebraska, Montana and Wyoming).

 

1863   Congress passed an amendment to the Court of Claims' 1855 Enabling Act (10 Stat. 612). The amendment provided that the jurisdiction of the court would not include claims against the United States "growing out of or depending on any treaty stipulation entered into...with Indian tribes."

 

1866   The Sioux bands were engaged at war with the United States in the Powder River country (in the present states of Montana and Wyoming). The United States was attempting to build a road through the 1851 treaty lands, which the Sioux bands considered their best hunting grounds. This road, known as the Bozeman Trail, was intended to protect miners traveling to the Montana goldfields near Bozeman.

 

1867    By the Act of July 20, 1867 (15 Stat. 17), Congress authorized the president to appoint a peace commission with the power to meet with the Indians then waging war against the United States; to ascertain the causes of their acts of hostility; and to enter into treaties with these Indians which would remove the causes of their complaint, establish security along the railroad line to the Pacific and other thoroughfares of travel to the west, and ensure civilization for the Indians and peace and safety for the whites. The commissioners were also instructed to examine and select a district or districts of country to serve as a permanent reservation for all the Indians residing east of the Rocky Mountains. The peace commissioners (according to the preamble of the 1868 treaty) consisted of Lieutenant-General William T. Sherman, General William S. Harney, General Alfred H. Terry, General C.C. Augur, J.B. Henderson, Nathaniel G. Taylor, John B. Sanborn, and Samuel F. Tappan. 

 

On August 16, 1867, General Augur made a statement to the Indian peace commission. He stated that from the military standpoint the Powder River Road was objectionable. The Indians would fight to the death to retain the Powder River country, and the cost in time, money, and lives to defeat them militarily would far exceed the cost of a peaceful solution (Sioux Tribe v. United States, 42 Ind. Cl. Comm. 214 [1978]).

 

1868   The Fort Laramie Treaty of April 29, 1868 (15 Stat. 635), was ratified by Congress. The treaty established peace between the Sioux bands and the United States (art. 1); established a 26 million acre reservation (the Great Sioux Reservation) for the "absolute and undisturbed use and occupation" of the Sioux bands (art. 2); provided that no future cession of the reservation would be valid without the signatures of three-fourths of the adult male population of the Sioux bands (art. 12); provided that the Sioux bands would have hunting rights over their remaining 1851 treaty lands and expanded hunting rights westward to the summits of the Bighorn Mountains and southward to the Republican river so long as the Buffalo ranged in such numbers as to justify a chase (art 11); provided that when agency buildings were constructed by the United States, they would regard the permanent reservation as their permanent home (art 15); and provide that all remaining 1851 treaty lands would remain "unceded Indian territory" (art 16).

 

1874   Lt. Col. George A. Custer led a military expedition into the Black Hills portion of the Great Sioux Reservation. The expedition left from Fort Lincoln (across the Missouri River from present-day Bismarck, North Dakota) and entered the Black Hills from the north. The expedition sent back glowing reports of gold deposits in the black Hills, which resulted in an influx of miners and settlers into the Black Hills. The Sioux people later referred to Custer's route as "the thieves road." The expedition's report of gold deposits caused public pressure on the U.S. government to open the Black Hills for mining and settlement.

 

1875   In a letter dated November 9, 1875, to Brigadier General Alfred H. Terry from General William Tecumseh Sherman, Sherman reported that he had met with President Grant, the secretary of interior, and the secretary of war, and President Grant had decided that the military should make no further resistance to the occupation of the Black Hills by miners, "it being his belief that such resistance only increased their desire and complicated the troubles." These orders were to be enforced "quietly," and the president's decision was to remain "confidential" (United States v. Sioux Nation of Indian, 448 U.S. 371 [1980]).

 

President Grant's 1875 order was in direct violation of article 2 of the 1868 treaty which established the Great Sioux Reservation and provided "the United States now solemnly agrees that no persons except those herein designated and authorized so to do, and except such officers, agents, and employees of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article." In 1875, it was illegal to make a settlement on any lands "belonging, secured, or granted by treaty with the United States to an Indian tribe." See section 11 of the Act of June 30, 1834 (4 Stat. 730, 25 USC 180).

 

With the army's withdrawal from its role as enforcer of the 1868 treaty, the influx of settlers to the Black Hills increased. The secretary of the interior appointed a commission headed by William B. Allison to negotiate an annual rental of the Black Hills for $400,000 or an absolute cession for $6 million. The negotiations broke down (United States v. Sioux Nation of Indians, 448 US 371 [1980]).

 

1876   In the winter of 1875-76, several bands of Sioux were hunting in the unceded territory north of the North Platte River and east of the summits of the Bighorn Mountains in accordance with articles 11 and 16 of the 1868 treaty. The commissioner of Indian affairs sent instructions to the Indians that they would be declared "hostile" if they did not return to the Great Sioux Reservation by January 31, 1876. Given the severity of the winter, compliance with these instructions was impossible. The secretary of the interior, nevertheless, relinquished his jurisdiction over all "hostile" Sioux, including the Sioux Indians legally exercising their treaty-protected hunting rights in the Powder River country, to the War Department.

 

The U.S. Army's campaign against the so-called hostiles in the spring of 1876 resulted in Lt. Col. George A. Custer's attack on an encampment of Sioux Indians (And their Cheyenne Arapaho allies) exercising their article 11 and 16 hunting rights on the Little Bighorn River on June 25, 1876. The attack, often referred to as the "Battle of the Little Bighorn" or "Custer's Last Stand," resulted in the defeat of Custer and his Seventh Cavalry.

 

On August 15, 1876, Congress passed an appropriation act (19 Stat. 176) which provided that no further appropriations would be made for the Sioux bands (as required by the 1868 treaty), unless they first relinquished their rights to the hunting grounds outside the Great Sioux Reservation, ceded the Black Hills portion of the reservation, and reached some accommodation with the U.S. government that would enable them to become self-supporting. This appropriation act is now called the "starve or sell" act. A commission, known as the Manypenny Commission, was established to negotiate the sale of the Black Hills pursuant to the act. The commission, however, could only gather signatures from 10 percent of the adult male population of the different Sioux bands instead of the signatures of three-fourths required by article 12 of the 1868 treaty (United States v. Sioux Nation of Indians, 448 U.S. 371 [1980]).

 

1877   To resolve the “impasse” created by the public’s demand for opening the Black Hills for settlement and the Manypenny Commission’s failure to obtain the requisite number of signatures necessary to make the 1876 agreement legal, Congress enacted the 1876 agreement into law on February 28, 1877 (19 Stat. 254). The 1877 Act had the effect of abrogating article 12 of the 1868 treaty and implementing the terms of the “1876 agreement” on the Sioux bands (United States v. Sioux Nation of Indians, 448 U.S. 371 [1980]).

 

1920   The Sioux bands, after years of lobbying, finally got Congress to pass a special jurisdictional act which provided them with a forum for adjudication of all claims against the United States “under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band or bands thereof” (Act of June 3, 1920 [41 Stat 738]).

 

1923   The Sioux bands hired Washington, D.C., attorney Ralph Case to file their treaty claims under the 1920 special jurisdictional statute. The claims were filed in the Court of Claims as Docket C-531.

 

1934   Ralph Case amended the original Docket C-531 petition by filing twenty-four separate, amended petitions. The amended petitions were described in a report to the Sioux bands:

 

Offices of

The Attorneys for the Sioux Nattion

1002-1004 National Press Buildiing

Washington D.C.

 p;

Report to the Sioux Nation>

June 11th, 1934

 p;

To the Chairmen and Secretariess of the

Tribal Councils and to the Membbers of

The Sioux Nation

 

The Attorneys for the Sioux Nation call attention to the date of June 11th, 1934, as thereon we filed in the Court of Claims the separated amended petitions covering all of the band claims included in the original Sioux Petition. Previously and on May 7th, 1934, we filed the separated Tribal Claims. The Tribal Claims are numbered 1 to 11 inclusive, and the Band Claims are numbered 12 to 24 inclusive.

     We will shortly send to the President and Secretary of each Tribal Council and as well to the several Superintendents, copies of these 24 separated petitions. It will be impossible for us to supply all of the people of the Sioux Nation with copies of all the Petitions. It has required much time and effort to prepare these separated Petitions, be we are convinced that this effort and as well the expense of printing is justified by the advantage we obtain in presenting the issues separately to the Court. We cannot give you here the detail of each one of the separated Amended Petitions, but we do include an outline as comprehensive as possible in this Report.

 

A. Tribal Claims

(Separated Amended Petitions 1 to 11 inclusive)

 

Petition No. 1-Education: This petition deals with the failure of the United States to furnish the school houses, teachers, and supplies to comply with the Treaty of 1868 as extended by the Act of March 2, 1889. We are willing to give credit to the Government for what it expended, but we are asking for payment of money for the failure of the government to provide the education facilities under the Treaty of 1868.

Petition No. 2 - Clothing: This Petition covers the failure of the Government to provide the clothing guaranteed by article 10 of the treaty of 1868.

Petition No. 3-Annuities: This Petition covers the failure of the Government to make the appropriation and its failure to disburse. The government was required to pay the Sioux Tribe an annuity of $100.00 per capita for all people roaming and hunting, and $20.00 per capita to all people engaged in farming. We now have proof showing the number of Sioux Indians who were engaged in farming from year to year and we are certain that the Government has failed to make the appropriation to discharge this obligation.

Petition No. 4-Rations: This Petition covers the claim for rations provided by the Treaty of 1868. Under that Treaty, rations were to be provided for four years in specified quantities of foodstuff. During the four-year period the Government failed to furnish all the food guaranteed by the Treaty and we have made claim for the amount of the shortage.

Petition No. 5-Cows and Oxen: This Petition covers the 1868 Treaty obligation to provide a definite number of cows and oxen for the members of the Sioux Tribe. The Government did purchase and deliver a limited number of animals, but did not fulfill the obligation of the Treaty of 1868, and, therefore we are claiming the

shortage as now due.

Petition No. 6-Seeds and Implements: This Petition covers the failure of the Government to provide the seeds and agricultural implements promised to the Sioux people under Article 8 of the Treaty of 1868. This is not a large claim, but the United States disregarded almost entirely its obligation to furnish the seeds and implements required by the Treaty and, therefore, we have made claim for the full amount which should have been expended there under.

Petition No. 7-Black Hills: This Petition is the most important of all of the separated Amended Petitions and covers the taking of land by the United States in 1874 to 1877 inclusive. The land areas finally taken fro the Sioux people are of three classes:

Class A. The area taken from the 1868 Treaty Reservation lying between the 43rd and 46th standard parallel to 144th Meridian of the west; on the east the 103rd Meridian and the forks of the Cheyenne River. There are 7,345,157 acres in the area. It is from this area that not less than 400,000,000 dollars in gold has been extracted by white citizens of the United States.

Class B. This area includes all of thee land outside of the boundaries of the Treaty Reservation of 1868, but inside the boundary agreed to by the Treaty of 1851. The area of this class is nearly 26,000,000 acres, to which the Sioux Tribe had the absolute right of use and occupation.

Class C. The remaining area claimed unnder this Petition are those lands which by the Treaty of 1851 and the Treaty of 1868 are held and regarded as unceded Indian lands over which the Sioux Tribe had the right to roam and hunt. This area includes 40,500,000 acres of land.

This Claim is based upon the contention that the Sioux Nation has never been compensated for the taking of this vast area of land and we believe that the United States should pay to the Sioux Nation the fair value of the land, together with interest thereon, and against this there may be credited the expenditures made by the United States strictly for the benefit of the people of the Sioux Nation.

 

Petition No. 8-Lands Added to the 1868 Reservation: This Petition covers the takiing of land by the United States from the Sioux Nation, which lands were added to the 1868 Reservation by Executive Order under the terms of the 1868 Treaty. These are the lands east of the Missouri River and west of the 99th Meridian, (exclusive of the Crow Creek Reservation). This area of land was added to the 1868 Treaty Reservation to provide homes for members of the Tribe living on the easterly side of the Missouri River. Without justification and excuse; in the year 1879 the Indians living east of the Missouri River were removed to the

westerly side of the river and theses lands were thrown open to settlement and sale and homestead entry. Once these lands were added to the 1868 Treaty Reservation as they were by Executive Order, these lands could not be taken away from the Sioux people without just compensation being paid therefore. We have,

therefore, asked the Court of Claims to enter judgment in your favor for the value of these lands, which actually belong to the Tribe, but which were taken from them by Executive Order.

Petition No. 9-Wood: This Petition covers the claim for cutting and taking of wood on the 1868 Reservation. We know that the Government cut and used many thousands of cords of wood, either for the uses of the Government or as fuel for steam boats. It is contended that this wood was the private property of the Sioux Nation and we are now asking that the Government pay for the wood which was cut and used, either by the Government or for the benefit of the steamboat lines on the Upper Missouri River.

Petition No. 10-Game: This petition covers the slaughter of the buffalo and other game animals on the lands of the Sioux Nation owned under the Treaty of 1851 and 1868. The game animals were, as all of us know, the principal food, clothing and housing supply of the Sioux people. The United States guaranteed to the Sioux Nation that the white citizens of the United States should not be permitted to go in and on the Sioux Reservation and take and kill game animals, but, nevertheless, they did so and the buffalo and other animals were slaughtered in numbers running up into the millions. No less than fifteen million animals were slaughtered for their hides only. This wanton destruction of property should be paid for by the United States and we are now asking that the government properly compensate the Sioux Nation for the destruction of the

game animals.

Petition No. 11-Land Cession of 1889: This Petition covers the second most important claim of the Sioux Nation and includes the claim for payment of lands ceded by the Act of March 2, 1889. We now have the full information covering the exact amount of land open to settlement and entry under this Act of Congress. On

March 2, 1889, the Sioux Nation still held title to that portion of Dakota Territory lying west of the boundary of the Crow Creek Indian Reservation and the east bank of the Missouri River; lying north of the 43rd standard parallel,and also including the land north of the Kehapaha and the Niobrara Rivers; lying south of the 4th standard parallel, and likewise including the lands south of the Cannon Ball River; lying east of the 103rd Meridian and the north and south forks of the Cheyenne River.

 

By the agreement of March 2, 1889, the several separate Reservations were set apart and described. All other lands then owned by the Sioux Nation were ceded to the United States. The United States agreed to put up and did put up three million dollars, which from then on has been known as the Great Sioux Fund. This

was to pay in part for the lands. However, the Government never did pay any additional money into the Great Sioux Fund, except for a very small number of dollars. We are now asking that the Government pay to the Sioux Nation what is justly due and owning for the lands ceded to the Government by the Act of March 2, 1889. On March 2, 1889, the Sioux people did not own the lands which were taken previously by the Government on February 28th, 1877 (Black Hills Claim). The Sioux Nation ceded to the Government under the Act of March 2, 1889, only the lands which they, at that time, still owned an controlled, but this area

itself which was ceded to the Government included more than ten million acres of land, all of which the Government should have paid for, but which it has never done.

 

B. Band Claims

(Separated Amended Petitions 122-24 Inclusive)

 

In addition to the foregoing tribal claims, we now have filed petitions, which are the Separated Band Claims. These band claims are the separate property of the Sioux people on the several reservations. You will understand that in regard to the band claims the entire Sioux Nation is bringing the suit, but that the

proceeds of the band claims belong to the bands and not to the Sioux Nation. From this point on in the Petitions the claims which are asserted by the people of one reservation belong to those people and the people of another reservation are not interested except that the entire Nation desires to stand together in the suit. The Sioux Nation therefore is prosecuting the claims of the several bands to recover the money which is due to each band.

Petition No. 12-The Santee Offset: This Petition covers the offset made by the United States in a previous Court of Claims case wherein the Santee people have been charged with all of the money expended under the Treaty of 1868. The ’68 Treaty guaranteed to the Santee people certain definite rights and it was the obligation of the United States to make certain disbursements under the Treaty to the Santee people. All of these disbursements up to the time of the decision of the Court of Claims in the Santee case brought under the Act of March 4, 1917, have been charged back against the Santee annuities. This should not have been done and the Santee people are entitled to the amount of money charged against them in the case mentioned which was brought under the act of March 4, 1917.

Petition No. 13-First Taking of Santee Lands by Executive Order: This Petition covers the taking of lands from the Santee people from the reservation set apart for the Santee’s by Executive Order. There is no justification for the taking of these lands without just compensation and, therefore, we have filed this separate action.

Petition No. 14-Second taking of Santee Lands by Executive Order: This Petition covers the second taking of lands belonging to the Santee people by Executive Order of February 9th, 1885, and this Order took from the Santee people all of the remainder of their lands in Nebraska and the United States should compensate the Santee people for these lands.

Petition No. 15-Sale of Santee Lands in Minnesota, 1861: This Petition covers the sale of 320,000 acres of land in Minnesota at thirteen cents an acre. It may be possible to question the price, but we are asking for an accounting from the Government to show us what was done with the $96,000.00 derived from the sale of

these lands.

Petition No. 16-Sale of Santee Land sin in Minnesota, 1863: This Petition covers the sale of lands in the lower agency in Minnesota under he Act of March 3, 1863.

Petition No. 17-Rosebud-Gregory County Funds: This Petition calls for an acccounting for the sale and disposition of lands in Gregory County.

Petition No. 18-Rosebud-Tripp County Fund: This Petition calls for an acccounting of the disposition of the moneys derived from the sale of lands in Tripp County.

Petition No. 19-Rosebud-Mellette County Fund: This Petition calls for an acccounting of moneys received by the United States for sale of lands in Mellette County.

Petition No. 20-Pine Ridge-Bennett County: This Petition calls for an acccounting by the United States covering the moneys received from the sale of lands in Bennett County.

Petition No. 21-Crow Creek Four Percent Fund: This Petition covers the accoounting for the fund which was appropriated by the United States to compensate the people of Crow Creek Reservation for the shortage of land imposed upon them by the Act of March 2, 1889.

Petition No. 22-Lower Brule Land Opening: This Petition covers the claim of the Lower Brule people for lands taken from them under the Act of April 21, 1906. Under this Act a portion of the Lower Brule lands was opened to sale and entry, and also under this Act a re-survey of the Reservation was made. This re-survey established the southern boundary some several miles north of the true boundary of the Reservation. The true boundary is the 44th standard parallel, but the actual survey was run three or more miles north of the true boundary of the Reservation. These lands between the survey and the 44th standard parallel were sold or disposed of by the United States, but the title of the Lower Brule people has never been extinguished. Your attorneys are, therefore, asking that the Government pay for these lands and we are asking that payment shall be made of the value of the lands on the date of filing of the original Sioux Petition, May 7th, 1923. We are also asking for an accounting of the disposition of the moneys derived from the sale of lands opened under the Act of April 21, 1906.

Petition No. 23-Cheyenne River Land Opening: This Petition covers an accouunting for sale and disposition of lands opened under the Act of 1908, and covering the northerly and westerly portion of the original Cheyenne River Reservation.

Petition No. 24-Standing Rock Land Opening: This Petition covers an accouunting for the sale and disposition of lands in the original Standing Rock Reservation opened to sale and entry under the Acts of Congress of 1908 and 1913.

 

C. In General

 

It should be stated that in filing the Separated Amended Petitions Numbers 1 to 24 inclusive, described briefly above, we have not included any matter or claim already included in the original petition filed May 7th, 1923. We are now completing the proof on the tribal claims. It is our purpose to urge some of them for trial when the Court of Claims reconvenes in October 1934. This case throughout its entire progress has been delayed by the slowness of the Government in making and filing it's accounting. Even up to the date of writing this Report, the United States has not filed in the Court of Claims the accounting made by the Comptroller General. The Comptroller's report was furnished in April 1932. The work on this Report was begun January 1, 1925. We have told you many times about this Report and many of your people have seen some of the eight volumes which were prepared by the Comptroller General's office.

 

We shall now urge that the United States complete whatever proof it has to offer. On our side we are ready to go ahead with the twenty-four cases. We shall make every effort that we can to bring the Tribal Claims to trial in the Fall of this year. All of our time and all of our effort will be given to this end during the coming Summer…

 

The Attorneys for the Sioux Nattion

Ralph H. Case, Kingman Brewsterr

James S.Y Ivins, C.C. Calhoun

Rice Hooe

>

 

On June 18, 1934, Congress passed the Indian Reorganization Act (48 Stat. 984). Section 16 of the act allowed one or more tribes or bands residing on the same reservation to consolidate and reorganize as a single "tribe" by adopting constitutions and bylaws.

 

In 1934, four historic Sioux bands were residing on the Cheyenne River Sioux Reservation in South Dakota, the Minneconjou, Blackfeet, Two Kettle, and No Bows. These four historic Sioux bands consolidated and reorganized under section 16 of the IRA as the "Cheyenne River Sioux Tribe."

 

In 1934, the historic Oglala band was residing on the Pine Ridge Reservation. The band also consisted of members from other Sioux bands who were incorporated into the tribe (such as Chief Lip's band, whose members were Hunkpapa and Brule Sioux). The historic Oglala band and the members of other Sioux bands residing on the Pine Ridge Reservation consolidated and reorganized under section 16 of the IRA as the "Oglala Sioux Tribe."

 

1942   The Black Hills Claim (Docket C-531 [7]) was dismissed by the Court of Claims on the basis that the court was not authorized by the 1920 special jurisdictional act to question whether the compensation afforded the Sioux by Congress in 1877 was an adequate price for the Black Hills, and that the Sioux claim in this regard was moral claim not protected by the Just Compensation Clause of the Fifth Amendment (Sioux Nation v. United States, 97 Ct. Cl. 613 [1942]).

 

1943   The U.S. Supreme Court refused to hear the Court of Claims dismissal of the Black Hills claim under the 1920 jurisdictional statute by denying the Sioux bands' petition for a writ of certiorari (Sioux Tribe v. United States, 318 U.S. 789 [1943]).

 

EVENTS FROM 1946 TO 1960

 

1946   Congress passed the Indian Claims Commission Act of August 13, 1946 (60 Stat. 1952). Section 2 of the act provided that:

 

The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska: (1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States was subject to suit; (3) claims which would result if the treaties, contracts, and agreements between the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or of fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking of the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant; and (5) claims based on fair and honorable dealings that are not recognized by any existing rule of law or equity. No claim accruing after [August x3, 1946] the date of the approval of this Act shall be considered by the Commission. (6o Stat. 1050, section 2)

 

Sections 10, 12, 15, and 22 of the act further provided that:

 

Any claim within the provisions of this Act may be presented to the Commission by any member of an Indian tribe, band, or other identifiable group of Indians as the representative of all its members; but wherever any tribal organization exists, recognized by the Secretary of the Interior as having authority to represent such tribe, band, or group, such organization shall be accorded the exclusive privilege of representing such Indians, unless fraud, collusion, or laches on the part of such organization be shown to the satisfaction of the Commission. (6o Stat. 1052, section 10)

 

The Commission shall receive claims for a period of five years after [August 13, 1946] the date of the approval of this Act and no claim existing before such date but not presented within such period may thereafter be submitted to any court or administrative agency for consideration, nor will such claim thereafter be entertained by the Congress. (60 Stat. 1052, section 12)

 

Each such tribe, band, or other identifiable group of Indians may retain to represent its interests in the presentation of claims before the Commission an attorney or attorneys at law, of its own selection, whose practice before the Commission shall be regulated by its adopted procedures. The fees of such attorney or attorneys for all services rendered in prosecuting the claim in question, whether before the Commission or otherwise, shall, unless the amount of such fees is stipulated in the approved contract between the attorney or attorneys and the claimant, be fixed by the Commission at such amount as the Commission, in accordance with standards obtaining for prosecuting similar contingent claims in courts of law, finds to be adequate compensation for services rendered and results obtained, considering the contingent nature of the case, plus reasonable expenses incurred in the prosecution of the claim; but the amount so fixed by the Commission, exclusive of reimbursement for actual expenses, shall not exceed 10 per centum of the amount recovered in any case .... (60 Stat. 1052, section 15)

 

The payment of any claim, after its determination in accordance with this Act, shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy. (60 Stat. 1052, section 22)

 

1950   Attorney Ralph Case filed the Sioux tribes' original petition in the Indian Claims Commission on August 15,1950. The case was docketed as "Docket 74.”

 

The following Sioux tribes occupying eight reservations in Montana, North Dakota, South Dakota, and Nebraska were parties to Docket 74:

  1. Cheyenne River Sioux Tribe of the Cheyenne River Reservation (South Dakota)

  2. Crow Creek Sioux Tribe of the Crow Creek Reservation (South Dakota)

  3. Lower Brule Sioux Tribe of the Lower Brule Reservation (South Dakota)

  4. Oglala Sioux Tribe of the Pine Ridge Reservation (South Dakota and Nebraska)

  5. Rosebud Sioux Tribe of the Rosebud Reservation (South Dakota)

  6. Santee Sioux Tribe of Nebraska (Nebraska)

  7. Sioux Tribe of the Fort Peck Reservation (Montana)

  8. Standing Rock Sioux Tribe of the Standing Rock Reservation (North Dakota and South Dakota)

 

1954       On April 5, 1954, the Indian Claims Commission dismissed Docket 74 (Sioux Tribe v. United States, 2 Ind. Cl. Comm. 646 [1954]).

 

1956       On November 7,1956, the Court of Claims affirmed the Indian Claims Commission's dismissal of Docket 74 (Sioux Tribe of Indians v. United States, 146 F.Supp. 229 [Ct. Cl. 1956]). This resulted in a quandary for elected leaders of the Sioux tribes because their attorney Ralph Case informed them that he intended to appeal the case to the U.S. Supreme Court by filing a petition for a writ of certiorari. Sioux Indian leaders, including Robert Burnette of the Rosebud Sioux Tribe and Helen Peterson of the Oglala Sioux Tribe, questioned Case's litigation strategy when they found out that he failed to make an adequate record before the Indian Claims Commission, and that if the Sioux tribes appealed the case to the Supreme Court, they would lose. The Sioux leaders decided to ask Mr. Case to resign and hire new attorneys to prosecute the case, but the situation was delicate because Mr. Case was extremely popular on the various Sioux reservations and terminating his contract could have caused a backlash among traditional leaders who supported him.

 

Helen Peterson was selected to confer with Mr. Case and request his resignation. She was very diplomatic and convinced Case to resign. New attorneys, Arthur Lazarus, Ir., Marvin J. Sonosky, and William Howard Payne, were then sought out and hired to represent the tribes.

 

1957       On October 4, 1957, before they actually signed their claims attorney contracts, the Lazarus/Sonosky/Payne legal team assisted the eight Sioux tribes in filing a pro se motion before the Court of Claims to vacate its 1956 affirmation of the Indian Claims Commission's dismissal of Docket 74 on the basis that Docket 74 had been decided on a distorted and empty record, that Mr. Case agreed with the Government not to press two claims, made concessions which were contrary to fact, and had failed to conduct significant research in the case. See Sioux Tribe v. United States, 500 F.2d 458 (Ct. Cl. 1974).

 

On November 5, 1957, the Court of Claims remanded Docket 74 to the Indian Claims Commission for a determination as to: "(1) whether the claimant Indian tribes are entitled on the basis of statements made in support of the above motions to have the proof in this case reopened, and (2) if so, to receive the additional proof sought to be offered and on the basis thereof, together with the record already made, reconsider its prior decision in this matter" (Sioux Tribes v. United States, 182 Ct. Cl. 912 [Ct. Cl. 1957]).

 

1958   On November 15,1958, the Court of Claims granted the Sioux tribes' request to reopen Docket 74 and remanded the case to the Indian Claims Commission for a full hearing and to receive additional evidence. See Sioux Tribe v. United States, 182 Ct. Cl. 912 (1968) (Summary of Proceedings).

 

On November 19,1958, the Indian Claims Commission reopened Docket 74 and announced it would reconsider its prior judgment on the merits (United States v. Sioux Nation of Indians, 448 U.S. 371 [1980]; also see summary of proceedings in Sioux Tribe v. United States, 182 Ct. Cl. 912 [1968]).

 

1960       On November 4, 1960, the Indian Claims Commission agreed to allow the Sioux tribes to amend their original Docket 74 petition by substituting two separate petitions to be designated as Docket 74-A and 74-B.

 

Docket 74-A involved claims for Sioux property outside of western South Dakota that was, according to the United States, voluntarily "ceded" by the Sioux bands under article 2 of the 1868 Fort Laramie Treaty! Docket 74-A consisted of the following claims

1. A recognized title claim for 34 million acres of Sioux lands located west of the Missouri River (outside of western South Dakota) in the states of Montana, Wyoming, North Dakota, and Nebraska; and

2. An aboriginal title claim for 14 million acres of Sioux lands located east of the Missouri River (in the states of North Dakota and South Dakota).

 

Docket 74-B involved claims for Sioux property confiscated by Congress under the 1877 act in violation of the Just Compensation Clause of the Fifth Amendment. Docket 74-B consisted of the following claims:

1. A claim for 7.3 million acres of the Great Sioux Reservation (the Black Hills) confiscated under article 1 of the 1877 act;

2. A claim for article 11 hunting rights confiscated under article 1 of the 1877 act;

3. A claim for placer (surface) gold removed by trespassing gold miners with U.S. government connivance prior to 1877; and

4. A claim for three rights-of-way confiscated under article 2 of the 1877 act.

 

DOCKET 74-A (1868 TREATY CLAIMS) FROM 1960 TO 1998

 

1962   After the Sioux tribes succeeded in reopening Docket 74 in 1960, they attempted three times to amend their petition to allege a wrongful taking under the 1868 treaty. All three amendments were denied by the ICC on May 11,1960, February 28, 1962, and October 29,1968 (Sioux Tribe v. United States, 500 F.2d 458 [Ct. Cl. 1974]).

 

1965   The Indian Claims Commission ruled that the 1851 treaty recognized title in the "Sioux or Dahcotah Nation" to approximately 60 million acres of territory situated east of the Missouri River in what is now the states of North Dakota, South Dakota, Nebraska, Wyoming, and Montana (Sioux Tribe v. United States, 15 Ind. Cl. Comm. 577 [1965]).

 

1969   On December 17, 1969, the Indian Claims Commission allowed the Docket 74 Sioux Tribes to intervene in the suit with the Yankton Sioux (Docket 332-C) and include their claims for aboriginal title lands located east of the Missouri River. It also allowed the Yankton Sioux, for the first time, to assert a recognized title claim west and north of the Missouri River on the basis that it was a party to the 1851 Fort Laramie Treaty (Sioux Tribe v. United States, 500 Fed 458 [Ct. Cl. 1974]).

 

1970   Docket 74-A involved an aboriginal title claim by the Teton and Yanktonai divisions to a tract of land largely between the James River and Missouri River consisting of approximately 14 million acres (Sioux Nation v. United States, 23 Ind. Cl. Comm. [1970]). The United States contended that while the Sioux exclusively used and occupied much of the 14 million acre aboriginal title area, they did not do so either from time immemorial or for a long time prior to the United States sovereignty over the area. The ICC rejected this contention in 1970, finding that:

 

"it is clear since the Court of Claims opinion in Sac and Fox v. United States...that the Sioux need not have exclusively occupied the subject lands for a long time prior to United States sovereignty over the area involved. The boundaries of the tribe's aboriginal holdings were not frozen as of the date of United States sovereignty...It is sufficient that the lands were exclusively used and occupied for a long time prior to the treaty of cession to turn them into domestic territory of the Sioux... That a "long time" ran during the period of United States sovereignty over the area involved rather than during the period of French and Spanish sovereignty is irrelevant insofar as the perfecting of Indian title is concerned. (Sioux Nation v. United States, 23 Ind. Cl. Comm. 419 [1970]. See also Turtle Mountain Band v. United States, 23 Ind. Cl. Comm. 315 [1970] [exclusive use and occupation "for a long time" by a tribe is sufficient to give aboriginal title])."

 

After finding that the Teton and Yanktonai divisions possessed aboriginal title to the 14 million acre area, the ICC determined that "By the Treaty of April 29, 1868, 15 Stat. 635, which was proclaimed on February 24, 1869, the subject lands of the Tetons and Yanktonai were ceded to the United States... The valuation date for these lands is February 24, 1869, the date of the proclamation of the 1868 Treaty" (Sioux Nation v. United States, 23 Ind. Cl. Comm. 419 [1970]). The boundary of the aboriginal title area is described at 23 Ind. Cl. Comm. 424-25.

 

The Indian Claims Commission also made the following supplemental findings of fact to its August 17, 1969, decision (15 Ind. Cl. Comm. 577) regarding the 34 million acre; 1851 treaty recognized title area involved in Docket 74-A:

 

14. The Treaty of Fort Laramie of 1851 (11 Stat. 749) was entered into by the United States and "the Chiefs, headmen, and braves of the following Indian Nations, residing south of the Missouri River, east of the Rocky Mountains, and north of the lines of Texas and New Mexico, viz: the Sioux or Dahcotahs, Cheyennes, Arapahoes, Crows, Assiniboines, Gros Ventre, Mandans and Arickaras." By Article 5 of the treaty the United States recognized title in the "Sioux or Dahcotah Nation" (as that term was used in the treaty) to a designated tract of land (hereinafter "Sioux Indian Land"). six Sioux Chiefs signed the treaty; their tribal or band affiliation was not specified. These signers have been identified as five chiefs of the Teton division of Sioux-four of the Brule Band, one of the Two Kettle Band-and one chief of the Yankton division. None of the signers have been identified as being a chief of the Yanktonais division of Sioux.

 

15. The Treaty of Fort Laramie was amended by the Senate and ratified, subject to acceptance of the amendment by the tribal parties. The amendment was accepted separately by the "Sioux of the Platte" and by the "Sioux of the Missouri." Five signatures appear on behalf of the "Sioux of the Missouri." Although the consent does not indicate tribal affiliation, three of the signers have been identified as being Yankton Sioux and two as being Teton Sioux-one of the Minneconjou Band, one of the Sans Arc Band. Ten signatures appear on behalf of the "Sioux of the Platte." No tribal affiliation was specified on the consent, but these signers have been identified as Teton Sioux-five of the Brule Band, and five of the Oglala Band. None of the signers of either of these consents have been identified as Yanktonais.

 

16. The term "Sioux or Dahcotah Nation" as used in the Treaty of Fort Laramie is ambiguous. In its broadest context, the Sioux Nation is composed of seven divisions: (1) Medawakantons; (2) Sissetons; (3) Wahpakootas; (4) Wahpetons; (5) Yanktons; (6) Yanktonais; and (7) Tetons. The first four of these divisions are collectively referred to as the "Sioux of the Mississippi"; the latter three as the "Sioux of the Missouri." The Sioux of the Mississippi were not part of the Sioux or Dahcotah Nation treated with at Fort Laramie.

 

34. The "Sioux or Dahcotah Nation" with which the United States negotiated at Fort Laramie and in which title was recognized by the Treaty of September 17, 1851, included the Teton and Yankton divisions of Sioux. Neither the Yanktonais division, nor any of the four eastern divisions were included in the term "Sioux or Dahcotah Nation" [emphasis added]. (Sioux Nation v. United States, 24 Ind. Cl. Comm. 147 [1970]).

 

It should be noted that, in the context of Docket 74, the Court of Claims recognized that there is no legal entity called the "Sioux Nation," and that the court "adopted such terminology in the interests of clarity for purposes of a complex case." See Sioux Nation v. United States, 8 Ct. Cl. 80 (1985), [Appendix C at 20 n. 2]

 

The ICC found that the Yanktonais division of Sioux were not parties to the 1851 treaty because "The Yanktonai, because they resided generally north and east of the Missouri [River] and because they were far removed from either of the roads which the treaty was designated to protect, were not intended to be parties to the treaty" (Sioux Nation v. United States, 24 Ind. Cl. Comm. 147 [1970]).

 

1974   The Court of Claims ruled that the ICC did not err in excluding the Yanktonai from the 1851 treaty recognized title claim (Sioux Tribe v. United States, 500 F.2d 458 [1974]).

 

1976  The Indian Claims Commission determined that, as of February 24, 1869, the fair market value of both the recognized title claim (34 million acres) and the aboriginal title claim (14 million acres) in Docket 74-A was $45,685,000.00. This valuation was broken down as follows:

 

                                East of Missouri                   West of Missouri

Agricultural           $11,135,000                            $ 3,790,000

Grazing   $ 9,760,000                             $21,000,000

Total                       $20,896,000                            $24,790,000

See Sioux Tribe v. United States, 38 Ind. Cl. Comm. 485 (1976).

 

1978   The Indian Claims Commission rendered its final decision on the merits, land valuation, and offsets. The matter came before the ICC on a motion filed by the Sioux Tribes for "an order that no offsets, either payments on the claim or gratuities, be deducted" from the award in Docket 74-A (Sioux Nation v. United States, 42 Ind. Cl. Comm. 214 [1978]).

 

The tribes' position on offsets was that the 1868 treaty "was primarily a treaty of peace rather than a treaty of cession; that the Sioux were unaware that under the treaty the United States was acquiring land; that payments promised by the United States under the treaty were in exchange for peace and other promises made the Sioux; and that therefore, those payments cannot be offset as payments on Plaintiffs' claim for compensation for their lands." The Sioux Tribes also asserted that "the nature of the claim and the course of dealings between the parties are such that the Commission should not allow the set off of any gratuitous expenditures by the defendant" (42 Ind. Cl. Comm. 214-215).

 

The ICC then indicated that "in determining whether certain payments made by the United States are consideration for Indian lands the Commission must look to see what the parties agreed to" (42 Ind. Cl. Comm. at 216).  In regard to the 1868 treaty, the ICC found that: "In short, the Commission is unable to determine from the language of the treaty whether the payments and benefits promised by the United States were in exchange for peace or other promises, as contended by the plaintiffs, or were in exchange for the cession of Sioux Lands, as urged by the defendant. It is therefore necessary to examine the history and negotiations leading up to the treaty in an attempt to ascertain the intent of the parties" (Sioux Nation v. United States, 42 Ind. Cl. Comm. 214 [1978]).

 

After examining the history behind the Sioux Claim, the ICC 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 these 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 added]….

     [I]t is clear that, based on the representations of the United States negotiators, the Indians cannot have regarded the 1868 Treaty as a treaty of cession. Nowhere in the history leading up to the treaty negotiations themselves is there any indication that the United States was seeking a land cession or that the Sioux were unwilling 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. (Sioux Tribe v. United States, 42 Ind. Cl. Comm. 214 [1978])

 

The ICC then concluded as follows:

 

We conclude as a matter of law that the goods and services promised by the United States under the 1868 treaty were not intended by the Sioux (or by the government negotiators) to be consideration for any Sioux Lands. The history of this case makes it clear that this 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 understanding and intent of the Sioux. Therefore, no consideration for the cession of Sioux lands under the 1868 Treaty has been promised or paid and the defendant may not offset any part of the cost of these goods and services as payments on plaintiffs claim for compensation [emphasis added]. (Sioux Tribe v. United States, 42 Ind. Cl. Comm. 214 [1978])

 

Note: The findings of the ICC that article 2 of the 1868 treaty effectuated a "cession" of 48 million acres of Sioux territory as a matter of law even though the Sioux did not intend to cede any land is outrageous. The findings are also contrary to the rule of statutory construction that "Indian treaties are to be interpreted in the sense in which they would naturally be understood by the Indians and any ambiguity is to be resolved to their favor" (Choctaw Nation v. Oklahoma, 397 US 620 [1970]; Winters v. United States, 207 US [1908]; also see Worcester v. Georgia, 32 US 515 [1832]; United States v. Winans, 198 US 371 [1905]; and United States v. Shoshone Tribe of Indians, 304 US 111 [1938]).  The findings are also contrary to a previous ruling of the Court of Claims involving the Santee Sioux that the 1868 Fort Laramie Treaty did not effectuate a cession of Sioux Territory (Mdewakanton and Wahpakoota Bands of Sioux Indians v. United States, 57 Ct. Cl. 357 [1922]).

The Indian Claims Commission also found in 1978 that the Yankton division had a 7 percent interest in the 1851 Treaty territory and awarded them compensation for their interest in Docket 332-C. The ICC further found that the Teton division, consisting of the Oglala, Brule, Hunkpapa, Minneconjou, No Bows, Two Kettles, and Blackfeet, owned the remaining 93 percent of the 1851 treaty territory (Sioux Nation v. United States, 42 Ind. Cl. Comm. 214 [1978]); also see Sioux Nation v. United States, 41 Ind. Cl. Comm. 160 [1977], aff'd., 616 F.2d 485 [Ct. Cl. 1980]).

 

1980       The Court of Claims remanded Docket 74-A to its trial division (United States Claims Court), since the life of the Indian Claims Commission terminated in 1978 and all pending cases in the ICC were transferred to the Court of Claims. The Claims Court determined on remand that the only issue remaining in the case concerned the amount of offsets to be allowed against the $43,949,700 land valuation award.  The United States made an offer to the tribal claims attorneys (Lazarus/Sonosky/Payne) in 1978 to settle the offset issue in docket 74-A for $4,200,000. The attorneys accepted the offer with conditions. The conditions were rejected by the United States, but the original offer was left open. The claims attorneys subsequently recommended acceptance of the offer to the Sioux tribes. See Cheyenne River Sioux Tribe v. United States, 806 F.2d 1046 (Fed. Cir. 1986). The Sioux tribes rejected the offer and demanded (among other things) the return of all federal lands to the 48 million acre area.

 

1983       The United States renewed its offer to settle the offset issue in Docket 74-A. The Sioux tribes refused to consider the offer. The Claims Court then ordered the Sioux Tribes' counsel (Lazarus/Sonosky/Payne) to formally present the settlement offer to the tribes, and further directed the tribes, through their governing bodies, to consider and act upon the offer (Sioux Tribe of Indians v. United States, 3 Cl. Ct. 536 [1983]).

 

Two Sioux tribes accepted the settlement offer and four Sioux tribes rejected it (Sioux Tribe of Indians v. United States, 8 Ct. Cl. 80 [1985]).

 

The parties subsequently filed six motions for summary judgment in regards to offsets. Prior to rendering its order to terminate Docket 74-A, the Claims Court ruled on the following three motions:

 

Summary Judgment Opinion 1 - Payments on the Claims offsets. The court denied the Sioux tribes’ request to disapprove these offsets (Sioux Tribe v. United States, Sioux Tribe of Indians v. United States, 6 Ct. Cl. 91 [1984]).

 

Summary Judgement Opinion II - gratuitous offsets. The court granted the Sioux tribes’ request to disapprove these offsets (Sioux Tribe of Indians v. United States, 7 Ct. Cl. 468 [1985]).

 

Summary Judgement Opinion III - Land Adjustment offsets. The court granted the United States’ request to allow these offsets (Sioux Tribe of Indians v. United States, 7 Cl. Ct. 481 [1985]).

 

The United States claimed approximately $65 million in offsets (Sioux Tribe of Indians v. United States, 8 Cl. Ct. 80 [1985]).

 

1985       On February 22, 1985, the Claims Court, without considering the remaining three motions for summary judgement, entered an order implementing the government’s settlement offer of $39,749,000 as its final judgement and terminated Docket 74-A (Sioux Tribe of Indians v. United States, 8 Cl. Ct. 80 [1985]). The court concluded that Docket 74-A had become “an uncontrolled quagmire” and that “[t]he simple fact that four of the reservation tribes are refusing to accept any settlement or award of this court, which does not include the return of their land, is indicative of the plaintiffs [sic] refusal to comprehend, after 35 years of litigation, that this Court can only award money judgements” (ibid).

 

On April 23, 1985, the Oglala Sioux Tribe (by and through its attorney Mario Gonzalez) and Cheyenne River Sioux Tribe (by and through its attorney John Peebles) appealed the Claims Court’s February 22, 1985 Decision terminating Docket 74-A to the US Court of Appeals for the Federal Circuit. The remaining Sioux Tribes and the United States filed cross-appeals. The Bureau of Indian Affairs, however, disapproved the Cheyenne River Sioux Tribe’s contract with Mr. Peebles on the basis that the Cheyenne River Sioux Tribe already had a contract with counsel for the Sioux Tribe of Indians. Thus, although the appeal was captioned Cheyenne River Sioux Tribe v. United States, the Cheyenne River Sioux Tribe did not file a brief or present oral argument in the appeal.

 

1986       On December 5, 1986, the US Court of Appeals for the Federal Circuit held that the claims court improperly imposed upon the parties a settlement offer to which they had not consented, vacated the $39,749,700 award, and remanded the case to the Claims Court “for further proceedings in accordance with this opinion” (Cheyenne River Sioux Tribe v. United States, 806 F.2d 1046 [Fed.Cir. 1986]). The Federal Circuit made a suggestion to the U.S. attorney and claims attorneys (Lazarus/Sonosky/Payne) on how to bring closure to Docket 74-A:

"In vacating the judgment of the Claims Court and remanding for further proceedings, we are not suggesting that a complete trial on all of the offset issues will be required ...[T]he parties may be able to stipulate the total dollar amount of various categories of offsets to which the government is entitled. If the parties can so stipulate, this may be action that counsel for the Sioux Tribe can take as part of the normal conduct of litigation without the necessity for obtaining the approval of their clients [emphasis added]. (ibid)

 

1987       On March 5, 1987, Claims Court Judge Robert Yock held a conference with claims attorneys Arthur Lazarus Jr., Marvin J. Sonosky, and William Howard Payne to discuss how to resolve the remaining three summary judgment motions on government offsets.

 

On March 5, 1987, the Oglala Sioux Tribe (by and through its attorney Mario Gonzalez) filed a petition for a Writ of Certiorari with the United States Supreme Court to review the final decision of the Federal Circuit. Even though the Oglala Sioux Tribe prevailed in getting the Federal Circuit to vacate the Claims Court's February 22, 1985 decision, the tribe requested the Supreme Court to review the Claims Court's holding that Article 2 of the 1868 treaty effectuated a cession of Sioux Territory. The U.S. Supreme Court denied the Oglala Sioux Tribe's petition (Oglala Sioux Tribe v. United States, 107 S.Ct 3184 [1987]).

 

On July 29, 1987 (after the Supreme Court denied the Oglala Sioux Tribe's Petition for Writ of Certiorari), the attorneys for the US government and the Sioux Tribes (Lazarus/Sonosky/Payne) filed a stipulation of facts "regarding the offsets of the government in this case" and a joint motion "to enter Judgment in accordance with the Stipulation of Facts."  The attorneys stipulated to $3,703,892.98 in government offsets, and further stipulated that upon approval of the stipulation by the court, "A final judgment may be entered in the Sum of $40,245,807.02." Both the stipulation and joint motion were signed by Arthur Lazarus Jr., on behalf of the Sioux tribes (Oglala Sioux Tribe and Rosebud Sioux Tribe v. United States, 862 F2d 275 [Fed.Cir 1988]).

 

On July 30, 1987, the Claims Court entered a final judgment that "plaintiff [Sioux tribe] recover of and from the United States the sum of $43,949,700 less stipulated offsets of $3,703,892.98 for a net amount of $40,245,807.02" (Oglala Sioux Tribe and Rosebud Sioux Tribe v. United States, 862 F2d 275 [Fed. Cir. 1988]).

 

On September 28, 1987, the Oglala Sioux Tribe and Rosebud Sioux Tribe filed a motion for relief from judgment on the basis that "the attorneys who appeared on behalf of the plaintiffs and agreed to the stipulation and entry of judgment took these actions without notice to or approval of plaintiffs as required by law."  The Claims Court denied the motion (Oglala Sioux Tribe and Rosebud Sioux Tribe v. United States, 862 F2d 275 [Fed. Cir. 1988]).

 

1988       On November 23, 1988, the U.S. Court of Appeals for the Federal Circuit affirmed the Claims Court's denial of the Oglala Sioux Tribe's and Rosebud Sioux Tribe's motion for relief from judgment (Oglala Sioux Tribe and Rosebud Sioux Tribe v. United States, 862 F2d 275, [Fed. Cir. 1988]). In a dissenting opinion, Judge Newman stated that:

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 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. (ibid.)

 

1989       On October 10, 1989, Eddie Brown, assistant secretary of the interior for Indian Affairs, issued a report entitled "Results of Research Report of Judgment Funds to the Sioux Tribe of Indians in Docket 74 before the United States Claims Court" to the two BIA area offices serving the Docket 74 Sioux tribes.

 

The "Results of Research Report" for Docket 74-A contained the following language regarding distribution of the $40,245,807.02 award:

The Act of October 17, 1973, as amended, requires that we submit a Secretarial Plan to Congress within one year from the dateof appropriations of the funds...In  this case, the Secretarial Plan must be submitted to Congress on or before June 4, 1990. Following a 60-day Congressional review period, the Secretarial Plan will become effective, if a joint resolution of disapproval is not passed by Congress. The funds will then become available to the beneficiary entities. If we do not meet the December deadline and if we do not submit a Secretarial Plan within the specified One Year period, as has occurred in the case of Docket 74-B, legislation will be required to provide for the use of the funds.[emphasis added].

 

Since no plan was adopted by the Sioux bands prior to the June 4, 1990, deadline, the funds cannot be distributed without new legislation authorizing the distribution of funds. In the meantime, the $40,245,807.02 award (minus 10 percent attorney fees) has been deposited in interest bearing accounts by the secretary of the interior.

 

DOCKET 74-B (BLACK HILLS CLAIM) FROM 1960 TO 1998.

 

1974       The Indian Claims Commission ruled that the 1877 act constituted an unconstitutional taking of the Black Hills and three rights of way under the Just Compensation Clause of the Fifth Amendment; that the Congress acted pursuant to its power of eminent domain and was required to pay Just Compensation to the Docket 74 Sioux. The ICC then awarded the Docket 74 Sioux $17.1 million for the 7.3 million acres of Black Hills land that the United States confiscated, plus 5 percent simple interest from the time of the taking. The ICC also awarded the Docket 74 Sioux compensation for placer (surface) gold removed by trespassing miners prior to 1877, and for the three rights of way across the reduced Great Sioux Reservation (Sioux Nation v. United States, 33 Ind. Cl. Comm. 151 [1974]). The total award in Docket 74-B was $105 million.

 

1975       On appeal, the Court of Claims, without deciding the merits, dismissed the Indian Claims Commission's 1974 final judgment on the basis that the appeal was barred by res judicata since the Black Hills Claim had been previously decided against the Sioux in 1942. The Docket 74 Sioux argued that the earlier dismissal was for lack of jurisdiction, not a dismissal on the merits of their claims (United States v. Sioux Nation, 207 Ct.Cl 234, 518 F2d 1298 [1975]). The Supreme Court subsequently denied a petition for a Writ of Certiorari filed by the Docket 74 Sioux (Sioux Nation v. United States, 423 U.S. 1016 [1975]).

 

1978       On March 13, 1978, Congress passed a special jurisdictional statute allowing the Court of Claims to review the Indian Claims Commission's 1974 judgment de novo (Act of March 13, 1978 [92 Stat. 153]). The Black Hills Claim (Docket 74-B) was refiled in the Court of Claims under the 1978 jurisdidictional statute as 148-78. The parties to Docket 148-78 thereafter stipulated that the Indian Claims Commission's record in Docket 74-B could be used by the Court of Claims to decide the merits of the Black Hills Claim.

 

1979       The Court of Claims heard the merits of the Black Hills Claim de novo, and affirmed the Indian Claims Commission's 1974 judgment (United States v. Sioux Nation of Indians, 220 Ct. Cl. 442, 601 F2d 1157 [1979]).

 

1980       On June 20, 1980, the Supreme Court affirmed the 1979 judgment of the Court of Claims (United States v. Sioux Nation of Indians, 488 US 371 [1980]). The Docket 74 Sioux were awarded $102 million for Black Hills land ($17.1 million in principle and $85 million in simple interest from 1877 to 1980), and $3 million for the placer gold and three rights of ways. (Note: The Court of Claims subsequently awarded the claims attorneys [Lazarus/Sonosky/Payne] 10 percent of the final $105 million judgment as attorney's fees.)

 

On July 18, 1980, the Oglala Sioux Tribe (by and through its attorney Mario Gonzalez) filed an independent class action in U.S. district court in Rapid City, South Dakota, against the United States, several cities and towns, and individuals to quiet title to the entire Black Hills taking area and for $11 billion in damages for the denial of the absolute and undisturbed use and occupation of the Black Hills for 103 years. The Oglala Sioux Tribe argued that it was not a party to the 1980 Supreme Court Case because it had not authorized attorney Lazarus to refile the Black Hills case de novo under the 1978 jurisdictional statute; that it had allowed its claims attorney contract with Lazarus to expire by its own terms in 1977, and decided to seek land restoration in the Black Hills, in addition to compensation. The Oglala Sioux Tribe also argued that the 1877 act was unconstitutional, not only under the just compensation clause of the Fifth Amerndment but also under the public purpose and due process clauses of the Fifth Amendment.

 

On September 11, 1980, the U.S. District Court dismissed the case for lack of subject matter jurisdiction (Oglala Sioux Tribe v. United States, Civil No. 80-5062 [D.S.D. 1980]).

 

1981       The Court of Claims awarded the Docket 74 claims attorneys (Lazarus/Sonosky/Payne) 10 percent of the Black Hills (Docket 74-B) award for attorney's fees (Sioux Nation v. United States, 650 F2d 244 [Ct.Cl.1981]).

 

The United States Court of Appeals for the Eighth Circuit, located in St. Louis, Missouri, affirmed the district court's dismissal of the Oglala Sioux Tribe's quiet title/damages case on the basis that the Indian Claims Commission (whose jurisdiction was limited to awards of monetary compensation only) was the Oglala Sioux Tribe's "exclusive remedy" for litigating the claim (Oglala Sioux Tribe v. United States, 650 F2d 140 [8th Cir. 1981]).

 

1982       The US Supreme Court refused to hear the Eighth Circuit's affirmation of the US District Court's dismissal of the Oglala Sioux Tribe's quiet title/damages case for the Black Hills (Oglala Sioux Tribe v. United States, 455 US 907 [1982]).

 

1983       Another case filed by the Oglala Sioux Tribe (by and through its attorney Mario Gonzalez) against Homestake Mining Company was also dismissed for lack of jurisdiction on the basis that the United States was an indispensable party to the case, and since the United States could not be sued, neither could Homestake Mining Company (Oglala Sioux Tribe v. Homestake Mining Co., 722 F2d 1407, [8th Cir. 1983]). Homestake Mining Company operates the largest gold and silver mine in North America, located in the Black Hills at Lead, South Dakota.

 

1985       On July 17, 1985, Senator Bill Bradley of New Jersey introduced "The Sioux Nation Black Hills Act" (S. 1453) in the Ninety Ninth Congress. This bill became known as "the Bradley Bill."  A companion bill, H.R. 3651, was introduced in the US of Representatives by Congressman James Howard of New Jersey, on October 30, 1985.

 

1986       On July 16, 1986, a hearing was held on S. 1453 before the Senate Select Committee on Indian Affairs in Washington DC.

 

1987       On March 10, 1987, Senator Bradley reintroduced the "Bradley Bill" as S. 705 in the One Hundredth Congress. A Companion bill H.R. 1506, was introduced in the U.S. House of Representatives by Congressman James Howard of New Jersey.

 

The Sponsors and cosponsors of S. 705and HR 1506,

as of June 24, 1988, were all DDemocrats and included:

 

United States Senate>

Chief Sponsor - Senator Bill Bradley (D-NJ);

Senator Daniel Inouye (D-HI);

Senator Claiborne Pell (D-RI)

 

United States House of Represenntatives

Chief Sponsor - Representative James Howard (D-NJ); RRep. Morris Udall (D-AZ); Rep. George Miller (D-CA); Rep. William Lipinski (D-IL); Rep. Walter Fauntroy (D-DC); Rep. Stephen Solarz (D-NY); Rep. Major Owens (D-NY); Rep. John Lewis (D-GA); Norman Mineta (D-CA); Rep. Robert Garcia (D-NY); Rep. Matthew Martinez (D-CA); Rep. David Bonior (D-MI); Rep. Edolphus Towns (D-NY); Rep. George Brown Jr (D-CA); Rep Claude Pepper (D-FL)

Note: Representative Howard died after H.R. 1506 was introduced in the House of Representatives. No hearings were held on S. 705 or HR 1506.

 

1990     On September 19, 1990, Congressman Matthew Martinez of California introduced the Black Hills Bill (HR 5680) developed by the Grey Eagle Society in the One Hundred and First Congress. The bill was an amended version of the Bradley Bill, S. 705. The bill was referred to the committee on Interior and Insular Affairs. No hearing was held on the bill. Congressman Martinez was also one of the cosponsors of the House version of the Bradley Bill (HR 1506) in 1987.

 

DOCKETS 74-A AND 74-B FROM 1990 TO 1998

 

1996     On June 6, 1996, Congressman Bill Barrett of Nebraska introduced HR 3595 in the US House of Representatives. The bill proposed to pay out the Santee Sioux Tribe of Nebraska's "proportionate share" of Docket 74-A.

 

A Hearing was held on HR 3595 on August 1, 1996, before the Resources Subcommittee on Native American and Insular Affairs. Congressman Barrett and Santee Sioux Tribal Chairman Arthur "Butch" Denny submitted written testimony in support of the bill. Deborah J. Maddox, director of the Office of Tribal Services, US Department of the Interior, submitted written testimony indicating that the Interior Department had no position on the bill "because it affected eight other tribes."

 

Johnson Holy Rock of the Oglala Sioux Tribe submitted written testimony on behalf of the Oglala Sioux Tribe opposing the bill, and testified against the bill at the hearing. Others testifying at the hearing against the bill were John Yellowbird Steele, President of the Oglala Sioux Tribe, Greg Bourland, Chairman of the Cheyenne River Sioux Tribe; and William Kindle, President of the Rosebud Sioux Tribe. The bill died in Committee.

 

1998       Docket 74-A: The larger Sioux tribes continue to reject the cram down of the final $40,245,807.02 judgment in Docket 74-A, demanding instead that the United States return all federal lands to the Sioux tribes in the 48 million acre area.

 

Docket 74-B: The Anti Indian forces in South Dakota (such as the Open hills Association organized by Senator Tom Daschle) still continue to oppose land restoration proposals to settle Docket 74-B.

 

On the other hand, as of April 8, 1998, the total award for both the 1868 Treaty claim (Docket 74-A) and the Black Hills Claim (Docket 74-B, aka Docket 148-78), according to the US Department of Interior's Division of Trust Fund Services, is as follows:

==============================

1. Docket 74-A...........           $67,073,267.88

2. Docket 148-78...........        $473,161,163.29

Total.........................              $540,234,431.17

==============================

See Indian Country Today, Apr. 27-Mar 4, 1998, p.1.

 

Although some of the Sioux tribes, like the Fort Peck Sioux Tribe of Montana, continue to request their "proportionate share" of the Docket 74-A award, the larger tribes, the Cheyenne River Sioux Tribe, the Oglala Sioux Tribe, the Rosebud Sioux Tribe, and the Standing Rock Sioux Tribe, continue to remain steadfast in the rejection of both the Docket 74-A and Docket 74-B awards, demanding instead the restoration of federal lands in both claims areas.

 

The Oglala Sioux Tribe also continues to demand a fair and honorable settlement for Black Hills lands held by private parties consistent with Lakota religious beliefs, since the Black Hills are religious property that cannot be sold for any amount of money.