RAPID CITY— Over the last half century history has been rewritten to reflect a change in tribal sentiment over the Black Hills. The Black Hills are not for sale. That is what most tribal members say, and most news stories reflect that sentiment and ignore the actual history.
An April 28, 1980 Washington Post article appeared just three months before the landmark Black Hills Settlement of June, 1980.
In that article Fred Barbash reported that the “Sioux Tribe of Indians, trying to get repayment for the US government’s taking of the Black Hills of South Dakota, filed suit in 1922.” The article does an excellent job of framing the difficulties faced by the original attorney, Ralph Case, and his successors over the next fifty-eight years. Case was 42 when the case began and died at 77, case still unresolved. In 1946, the Indian Claims Commission was formed, and it had only one option, to provide monetary compensation, no return of land.
This can be argued for the reason why the tribes only wanted the money for much of the next thirty years but it does not explain the previous history. The 1868 Treaty was supposed to have settled everything forever. According to that treaty the Black Hills would belong to the Lakota forever but forever lasted a mere nine years. Most people erroneously believe that the government is bound to a treaty by their own laws. The reality is plenary power gives Congress the power to amend or break any treaty for any reason and no reason. This they did in 1877, and the Black hills was taken.
Before the taking the government offered the Lakota $6 million dollars for the Black Hills, but those willing to respond to that offer, asked for $70 million. “There is gold and silver and a great many minerals in that country,” Chief Little Wolf is reported to have said to the government commission. “If the Great Father gets that for the whites, they will live on it and become rich. We want him to make us rich also.”
Nothing came of these talks, no money was paid out. The Hills were just taken. But from 1922 to 1946, no tribe asked for the land back. They all wanted the money. When a tribal member was looking to pay a debt they would often say, “Doksa, Black Hills money.”
After 1946, with the Indian Claims Commission created, they could only ask monetary compensation. After Case passed on, Arthur Lazarus became the attorney handling the case for the Lakota tribes. He spent a quarter century and a couple million dollars attempting to win a settlement. Throughout the 1960’s and 1970’s Indian activism grew. People had their eye on that activism. It was in all the papers. Celebrities flocked to the AIM cause and made celebrities out of their leadership, Russell Means, and Dennis Banks.
The contribution of AIM to the history was both real and fanciful. On the one hand, Means was one of the first two people to openly advocate for the return of the land, but he also said this of AIM: “Man, we took a ride across this country. We put Indians and Indian rights smack dab in the middle of the public consciousness for the first time since the so-called Indian wars.”
But AIM actually did nothing to stop the Black Hills from being sold. They had no day in court. They had no knowledge of law and had no law degrees and they had no plan on what to do even if they had had those things.
That task fell upon the other man that was calling for the return of the land, Oglala Lakota Mario Gonzalez, who was also a tribal attorney. When the settlement was announced in June, 1980, and Lazarus won his case, and got his $10 million cut, from the $17 million award with $100 million interest, not only were lots of people happy, tribes considered it a victory. But Gonzalez had three things that AIM did not have: a law degree, a deep understanding of Indian Law, and a plan to stop the pay out for the Black Hills, because once that pay out was distributed, the land was lost forever. The problem was, the payout could be distributed at any time, and so Gonzalez had to move on his plan, which was to file an injunction in the Eighth Circuit in Rapid City to stop payment to the Oglala Sioux Tribe (OST). If the injunction worked, all payout would be stopped, by law.
Gonzalez reasoned OST had to get out of the settlement, and that meant Lazarus could not be their attorney. As it turns out Lazarus had not renewed his contract with OST so he was in fact not their attorney. This was the basis of the injunction, and it prevailed. The award, when added to a subsequent Docket 74 settlement of $40 million, has grown to $2 billion dollars. The OST injunction is all that saved the Black Hills from being lost and there would be no injunction if Gonzalez had not thought up the idea, found the pretext, and won in court. Yet he is not hailed as the savior of the Black Hills. Malicious rumors still abound that Gonzalez profited greatly from the settlement and has been trying to sell the Black Hills ever since, for as much as a $36 million cut.
Two realities are overlooked. The Black Hills have already been sold, so no one can sell them. They were sold in June, 1980. Only the payout was stopped by the OST injunction. It also takes an Act of Congress to overturn the 1980 settlement, and why would Congress overturn that settlement to sell the Hills when they have already been sold?
Had the injunction failed back in 1980, tribal members would have received about $500 apiece, that is if any tribe even bothered with per capita payments. Today, because of two court battles fought by Gonzalez on behalf of the tribes, with most of the tribes opposing his efforts at the time, tribal members would receive about $10,000 apiece. As the years go by, compound interest will continue to increase that award, and temptation to collect that money will surely grow.
Then Standing Rock Chairman Frank Lawrence said back in the 1980 Washington Post article that, “We used to joke about it, about how long it took. But now a lot of people don’t want the money. They want the land.” That was when the money was $500 and a lot of people was still not most people. After stopping payment, Gonzalez was stopped by an elderly woman in a Pine Ridge grocery store and berated for having stopped the tribe from getting the money she had been waiting for her whole life.
The US Claims Commission summed up the taking of the Black Hills best when it declared: “A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history.”
Since that time, the malicious gossip and ignorance of that actual history has been equally as ripe and rank. By the end of the decade the award amount will be such, a family will be looking at a combined amount of about $100,000, and the sentiment in Lakota Country may dramatically shift once again.
