The Black Hills Land Claim::

The Legal War

No mechanisms were open to the Sioux to litigate claims against the US until 1920, when legislation authorised the Lakota to sue the government "under treaties, or agreements, or laws of Congress, on the misappropriation of any funds or lands of said tribe or band, or bands thereof". The Sioux subsequently sued the US for having taken the Black Hills without just compensation, and in violation of the Fifth Amendment. When, in 1923, the Lakota entered their suit with the US Court of Claims, the US were clearly not expecting a refusal of monetary compensation in lieu of the Black Hills because they stalled their decision for nineteen years, entertaining motions and counter-motions, professing they were 'studying' the matter.

By 1942 it seemed the US had finally realised that the Lakota were not going to accept monetary compensation in lieu of land because the court simply dismissed the case, claiming the situation was a 'moral issue' rather than a constitutional one. They upheld previous Court of Claim findings that the Black Hills annexation had not violated the Fifth Amendment; that the taking was not unconstitutional because the US has merely exercising its plenary power; and that the 1877 Act had provided sufficient compensation to the Sioux in the form of 900,000 acres of grazing lands and $43 million worth of rations. The claims court decision was refused review by the US Supreme Court in 1943.

On 13 August 1946, the Indian Claims Commission Act was passed. The act defined bases upon which Indians could sue the government for lost lands, one of which included:

"Claims which would result if the treaties, contracts and agreements between the claimant and 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 recognizable by the court of inquiry."

The Lakota refiled their original case with the Claims Commission in 1950. The Commission, however, decided that the case had been retired at the original 1942 Court of Claims dismissal and subsequent Supreme Court denial of certiorari. The case was dismissed again in 1954. On appeal from the Lakota to the Court of Claims in 1954, the commissions' decision was upheld.

Undeterred, a second appeal was entered by the Lakota, and this time, in 1958, the Court of Claims ordered the Indian Claims Commission to reopen the case on the grounds that the Sioux had previously received inadequate counsel.

In 1974 the commission entered a preliminary opinion that, in 1877, Congress had been exercising its "power of eminent domain" to take the Black Hills from the Lakota, and although, it had been thus justified in its actions, it was obligated to pay the Lakota "just compensation" for their loss. The Commission arrived at an award of $17.1 million without interest for the entire Black Hills and for gold extracted by trespassers prior to the 1877 Act. Against this award the government sought to 'offset' $3,484 in rations issued to the Lakota in 1877.

Both the Lakota and federal government objected strongly to the opinion, though for very different reasons. In 1975, the government appealed to the Court of Claims, securing a res judicata prohibition against the Claims Commission's proposed Lakota compensation package. The Court noted that the Sioux would be entitled to interest only if the acquisition of the Hills amounted to an unconstitutional taking.

The Supreme Court once again refused to consider a Lakota appeal to this. Invoking Article 12 of the 1868 Treaty, the Lakota then conducted their own grass-roots referendum. The result was a resounding rejection of the relinquishment of title to the Black Hills. This put the government in yet another embarrassing dilemma and, in 1978, Congress passed a bill enabling the Court of Claims to review the compensation package.

The Court revised the proposed award to $17.1 million, with a 5% simple interest calculated annually since 1877. This brought the total compensation package to $122.5 million. The Justice Department filed again in protest at the amount of compensation, but in 1980 the Supreme Court upheld the Claims Court's award of interest. The Supreme Court did, however, reject the argument that Congress had been acting in good faith and with good intentions in passing the 1877 Act which had appropriated the Hills, and it found that rations had been used to coerce the Sioux in to giving up their land. It recognised that the taking had deprived the Sioux of all means of livelihood and that it had violated the 1868 Treaty. The Court stated that the US must at last and finally be obligated to make a just compensation to the Sioux. The verdict proved to be the most strongly worded opinion to date in the Sioux case and was scathing in its assessment of US action. But it was not scathing enough.

In 1979, another grass-roots poll was conducted among reservations which showed that people still refused to accept the new compensation package in lieu of the Black Hills. The Lakota were back in court on July 18th, 1980, when the Oglala Sioux Tribe entered a claim in the US District Court seeking not only recovery of the actual land, but also $11 billion in damages. They argued that the taking of the Hills had been unconstitutional because the United States' exercise of eminent domain had been utilised for private rather than public purposes. The court dismissed the case because, they said, "the issue at hand has already been resolved". In 1981, the US Eighth Circuit Court of Appeals affirmed the District Court's decision, and, in 1982, the Supreme Court declined once again to hear the Lakota's resultant appeal. The Court of Claims finalised its award of monetary compensation for the Black Hills and further recourse to US courts were extinguished for the claim.

However, all was not in vain for the Sioux Nation. The US legal system had both crushed and inspired Lakota hopes for their land. The rulings no doubt went against any progress toward regaining the Black Hills through the US court system, but at the same time this very same system had enabled the Lakota to keep the fight alive, and maintain a sense of unity and pride that might have been lost in the post-reservation days. Moreover, years of litigation had forced an admission from the Supreme Court that the whole affair had been a "national disgrace", and that, "[a] more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history".

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