United States v. Sioux Nation of Indians

No. 79-639. Argued March 24, 1980. Decided June 30, 1980. 448 U.S. 371.

[Footnotes Continued:]

12. The chronology of the enactment of this bill does not necessarily support the view that it was passed in reaction to Custer's defeat at the Battle of the Little Big Horn on June 25, 1876, although some historians have taken a contrary view. See Jackson, supra, n. 5, at 119.

13. The commission's negotiations with the chiefs and head men is described by Robinson, supra, n. 1, at 439-442. He states:

"As will be readily understood, the making of a treaty was a forced put, so far as the Indians were concerned. Defeated, disarmed, dismounted, they were at the mercy of a superior power and there was no alternative but to accept the conditions imposed upon them. This they did with as good grace as possible under all of the conditions existing" Id. at 442.

Another early chronicler of the Black Hills region wrote of the treaty's provisions in the following chauvinistic terms:

"It will be seen by studying the provisions of this treaty that, by its terms, the Indians, from a material standpoint, lost much and gained but little.

"By the first article, they lose all rights to the unceded Indian territory in Wyoming from which white settlers had then before been altogether excluded;

"by the second they relinquish all right to the Black Hills and the fertile valley of the Belle Fourche in Dakota, without additional material compensation;

"by the third, conceding the right of way over the unceded portions of their reservation;

"by the fourth, they receive such supplies only as were provided by the treaty of 1868, restricted as to the points for receiving them. The only real gain to the Indians seems to be embodied in the

"fifth article of the treaty [Government's obligation to provide subsistence rations]. The Indians, doubtless, realized that the Black Hills was destined soon to slip out of their grasp, regardless of their claims, and therefore thought it best to yield to the inevitable and accept whatever was offered them.

"They were assured of a continuance of their regular daily rations, and certain annuities in clothing each year, guaranteed by the treaty of 1868, and what more could they ask or desire than that a living be provided for themselves, their wives, their children, and all their relations, including squaw men, indirectly, thus leaving them free to live their wild, careless, unrestrained life, exempt from all the burdens and responsibilities of civilized existence? In view of the fact that there are thousands who are obliged to earn their bread and butter by the sweat of their brows, and that have hard work to keep the wolf from the door, they should be satisfied" Tallent, supra, n. 7, at 133-134.

14. The 1877 Act "ratified and confirmed" the agreement reached by the Manypenny Commission with the Sioux tribes. 19 Stat. 254. It altered the boundaries of the Great Sioux Reservation by adding some 900,000 acres of land to the north, while carving out virtually all that portion of the reservation between the one hundred and third and one hundred and fourth meridians, including the Black Hills, an area of well over 7 million acres.

The Indians also relinquished their rights to hunt in the unceded lands recognized by the Fort Laramie Treaty, and agreed that three wagon roads could be cut through their reservation. Id. at 255. In exchange, the Government reaffirmed its obligation to provide all annuities called for by the Fort Laramie Treaty, and

"to provide all necessary aid to assist the said Indians in the work of civilization; to furnish to them schools and instruction in mechanical and agricultural arts, as provided for by the treaty of 1868" Id. at 256.

In addition, every individual was to receive fixed quantities of beef or bacon and flour, and other foodstuffs, in the discretion of the Commissioner of Indian Affairs, which "shall be continued until the Indians are able to support themselves." Ibid. The provision of rations was to be conditioned, however, on the attendance at school by Indian children, and on the labor of those who resided on lands suitable for farming.

The Government also promised to assist the Sioux in finding markets for their crops and in obtaining employment in the performance of Government work on the reservation. Ibid. Later congressional actions having the effect of further reducing the domain of the Great Sioux Reservation are described in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 589 (1977).

15. See § 9 of the Act of Mar. 3, 1863, 12 Stat. 767; § 1 of the Tucker Act of Mar. 3, 1887, 24 Stat. 505.

16. The Commission determined that the fair market value of the Black Hills as of February 28, 1877, was $17.1 million. In addition, the United States was held liable for gold removed by trespassing prospectors prior to that date, with a fair market value in the ground of $450,000. The Commission determined that the Government should receive a credit for all amounts it had paid to the Indians over the years in compliance with its obligations under the 1877 Act. These amounts were to be credited against the fair market value of the lands and gold taken, and interest as it accrued.

The Commission decided that further proceedings would be necessary to compute the amounts to be credited and the value of the rights-of-way across the reservation that the Government also had acquired through the 1877 Act.

Chairman Kuykendall dissented in part from the Commission's judgment, arguing that the Sioux' taking claim was barred by the res judicata effect of the 1942 Court of Claims decision.

17. See United States v. Tillamooks, 341 U.S. 48, 49 (1951) (recognizing that the "traditional rule" is that interest is not to be awarded on claims against the United States absent an express statutory provision to the contrary, and that the "only exception arises when the taking entitles the claimant to just compensation under the Fifth Amendment"). In United States v. Klamath Indians, 304 U.S. 119, 123 (1938), the Court stated:

"The established rule is that the taking of property by the United States in the exertion of its power of eminent domain implies a promise to pay just compensation, i.e., value at the time of the taking plus an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking."

The Court of Claims also noted that, subsequent to the Indian Claims Commission's judgment, Congress had enacted an amendment to 25 U.S.C. § 70a providing generally that expenditures made by the Government "for food, rations, or provisions shall not be deemed payments on the claim." Act of Oct. 27, 1974, § 2, 88 Stat. 1499. Thus, the Government would no longer be entitled to an offset from any judgment eventually awarded the Sioux based on its appropriations for subsistence rations in the years following the passage of the 1877 Act. 207 Ct.Cl. at 240, 518 F.2d at 1301. See n. 16, supra.

18. Judge Davis dissented with respect to the court's holding on res judicata, arguing that the Sioux had not had the opportunity to present their claim fully in 1942. 207 Ct.Cl. at 249, 518 F.2d at 1306.

19. While affirming the Indian Claims Commission's determination that the acquisition of the Black Hills and the rights-of-way across the reservation constituted takings, the court reversed the Commission's determination that the mining of gold from the Black Hills by prospectors prior to 1877 also constituted a taking. The value of the gold, therefore, could not be considered as part of the principal on which interest would be paid to the Sioux. 220 Ct.Cl. at 466-467, 601 F.2d at 1171-1172.

20. The Lone Wolf decision itself involved an action by tribal leaders to enjoin the enforcement of a statute that had the effect of abrogating the provisions of an earlier-enacted treaty with an Indian tribe. See Part IV-B infra.

21. Judge Nichols concurred in the result, and all of the court's opinion except that portion distinguishing Lone Wolf. He would have held Lone Wolf's principles inapplicable to this case because Congress had not created a record showing that it had considered the compensation afforded the Sioux under the 1877 Act to be adequate consideration for the Black Hills. He did not believe that Lone Wolf could be distinguished on the ground that it involved an action for injunctive relief, rather than a claim for just compensation. 220 Ct.Cl. at 474-475, 601 F.2d at 1175-1176. Judge Bennett, joined by Judge Kunzig, dissented. The dissenters would have read Lone Wolf broadly to hold that it was within Congress' constitutional power to dispose of tribal property without regard to good faith or the amount of compensation given.

"The law we should apply is that, once Congress has, through negotiation or statute, recognized the Indian tribes' rights in the property, has disposed of it, and has given value to the Indians for it, that is the end of the matter" 220 Ct.Cl. at 486, 601 F.2d at 1182.

22. In response to a question from the bench, Government counsel stated: "I think Congress is entitled to say, 'You may have another opportunity to litigate your lawsuit.'" Tr. of Oral Arg. 20.

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