On April 2nd, 2009, A jury returned a decision stating that Ward Churchill had been wrongfully fired from his position as a tenured professor at Colorado University. The cause stemmed from the publication of his now infamous essay ‘The Ghosts of 9-1-1: Reflections on History, Justice and Roosting Chickens’. After its initial publication, three years passed until a section of the essay entitled ‘Some People Push Back’ was brought to light by a college newspaper reporter that the essay came under public criticism and caused the circumstances under which Churchill was subsequently fired.
In the full text, Churchill contends that the events of September 11th, 2001 were made inevitable by a foreign policy that puts the rights of corporations inexorably in front of the rights of people, histories or environments, and that the systemic amnesia engendered and perpetuated within the system is its own form of culpability.
Citing the failures of popular movements to cease the sanctions in Iraq during the 1990s, abolish the WTO or its colluding powers at the IMF/World Bank, he charges the left with acquiescing to state powers in deference to that which is comfortable and secure. The phrase, ‘Little Eichmans’ is largely credited for having drawn attention to the essay, a curious objection as the phrase itself was borrowed from a John Zerzan article, published in 1997.
The jury found for Churchill’s suit and held CU liable for the costs of his legal team and an additional one dollar.
The proceedings come at a time of increased scrutinity of college professors. From Norman Finkelstein’s being denied tenure, to Dr. Cornell West’s somewhat fiery departure from Harvard for Princeton, the high halls of academia have held witness to more power struggles than usual of late. The common thread underlying them all though would seem to be a charge of anti-zionism leveled at all the actors involved here. Finkelstein wrote ‘Beyond Ghutspa: On the Misuse of Anti-Semitism and the Abuse of History’ and West chose to leave Harvard after a public row with Larry Summers, a man who equates Anti-Zionism, the refusal of the State of Israel to exist, and Anti-Semitism, the racist bigotry towards a Jewish person. All three, Churchill, Finkelstein and West are all outspoken critics of US Foreign policy, vis-a-vis Palestine. All three have faced massive scrutiny that others in their fields are hardly ever subject to.
The case in point, Churchill was a tenured professor, but was abruptly demonized at the hint of equivalency of complicity of those who oversaw speculative investing and those who who punched tickets for Auschwitz victims. To be sure, there is a very real difference between the two, but what of those who ran the books for the SS? What of those who currently oversee the World Bank funding of dams that have flooded out perhaps 60 million people in India. Tens of thousands of these were farmers who have now committed suicide. What of the one million farmers displaced by US agribusiness in Mexico in the last 8 years who have no choice but to leave their villages and either enter a sweatshop or take the uncertain road north? The US does not send any of these people to be incinerated, but what level of collusion is acceptably equivalent? At what point will the American or even the progressive voices in America cease being voices and become actions in solidarity against such practices? Until Americans, and in particular those Americans who know something is wrong, answer this question, there will continue to be rhetoric, but no response, and the chickens are still out in the field, waiting to come home.
For Churchill, he has been proved triumphant against the school system that fired him. Unrelenting, he is now seeking the school to either reinstate him or award him one million dollars in damages. A Denver District Court Judge will decide within 30 days of the ruling whether additional damages will be awarded.
The (Former) Governor
Takes the Stand
by J. Robert Brown
Former Governor Bill Owens was on the stand for a couple of hours. Not long after the 9/11 essay surfaced, the Governor called on CU to fire Churchill.
David Lane’s main point was to show that the Governor, with line item veto authority over the University of Colorado, applied pressure to get the University to fire Ward Churchill.
The jury heard the former president of CU, Betsy Hoffman, describe a conversation with the Governor where she said he told her to fire Ward Churchill “tomorrow,” that his tone was “threatening,” and that if she didn’t he would “unleash his plan.”
Governor Owens did not specifically recall the conversation but doubted that it was not “in that tenor” and that he did not have a “plan.”
Later, when a partial transcript of an interview on the O’Reilly Factor was put up on the screen, Lane pointed to an exchange where Owens denied he had the authority to fire Churchill but then admitted: “I do have some budget authority over the budget.” Owens declined to admit that this was a threat, noting that its a true statement and repeated over and over that he had actually raised the CU budget during his administration.
On recross, Lane asked whether in fact Governor Owens had a “strategy” for CU if Churchill wasn’t fired. He answered in the negative. Lane then pointed to this exchange on the O’Reilly transcript:
- O’REILLY: One more question for you. You have basically a strategy, and I want to get this right. You’re not going to pay him off, so he’s not going to get the big bucks. You’re going to go through the lengthy process to prove that he did something that you can legitimately fire him [for], and then he goes — “See you.”
- OWENS: That’s exactly right. That’s exactly right. That process is starting. I think it will ultimately result in him being fired.
The quick denial followed by the reference in the O’Reilly Factor caused a slight stir in the courtroom. Governor Owens then repeated that he didn’t have a strategy and that he was merely acknowledging that based on the evidence that he knew, there was sufficient basis to fire Churchill.
Governor Owens did acknowledge in his testimony that he was glad the University had not heeded his advice and fired Churchill immediately after the 9/11 essay surface.
Right Wing Attempting to Bankrupt Ward Churchill
Protect your First Amendment Rights! CLICK TO DONATE TODAY!
Professor Churchill was fired after a 30 month long “investigation” by the University of Colorado where they dug into all 4,000 pages of his published works and combed through his over 12,000 footnotes! In the end, the investigation finds 7 alleged errors and/or plagiarism.
Since his firing, Ward has mounted a full-scale lawsuit against the Board of Regents of the University of Colorado and now his coffers are nearly empty. PROTECT YOUR FIRST AMENDMENT RIGHTS!
Detailed Chronology of Events:
Sept. 12, 2001 Prof. Churchill writes an op-ed piece published online by Dark Night Field Notes, giving a “gut reaction” to possible causes of the Sept. 11 attacks. This is later expanded and published as On the Justice of Roosting Chickens: Reflections on the Consequences of U.S. Imperial Arrogance and Criminality (AK Press, 2003). Neither receives much public attention.
January 26, 2005 A Syracuse, NY newspaper discusses Prof. Churchill’s scheduled lecture at Hamilton College sponsored by the Kirkland Project for the Study of Gender, Society and Culture. The Kirkland Project had already been targeted by various rightwing organizations, including Lynne Cheney’s American Council of Trustees and Alumni (ACTA) and David Horowitz’ Center for the Study of Popular Culture and its spin-off, Students for Academic Freedom. A well-coordinated campaign at Hamilton had recently succeeded in forcing cancellation of a class which was to have been taught by former political prisoner Susan Rosenberg (who was to speak on a panel with Prof. Churchill).
Within a few days the story, which focused on two words (“little Eichmanns”) taken out of context from the 2001 op-ed piece, had been picked up by AP, newspapers around the country, and highlighted by Fox News’ Bill O’Reilly, who urged viewers to contact Hamilton College. Both Ward Churchill and Hamilton College soon received thousands of calls, letters and e-mails, including threats of violence and death.
Despite initial vows to protect freedom of speech, Hamilton College President Joan Hinde Stewart cancels the program on January 31. She attributes it to security concerns, but it later becomes clear that threats from alumni to withdraw financial support play a major role in the decision. The director of the Kirkland Project is soon removed and the Project threatened with de-funding.
January 27, 2005 With total disregard for the CU’s written policies on academic freedom, Interim Chancellor Philip DiStefano immediately denounces Prof. Churchill’s statements as “abhorrent” and “repugnant.” Two days later Colorado Congressman Bob Beauprez demands Prof. Churchill’s resignation. Beauprez later boasts on the radio that he has discussed the Churchill case with President Bush on Air Force One. Within the week Gov. Bill Owens demands that Prof. Churchill be fired, and both chambers of the Colorado legislature pass resolutions condemning Prof. Churchill and threatening to withhold funds from CU.
February 3, 2005 The CU Board of Regents convenes an emergency meeting. Although billed as a “public meeting,” an undergraduate is immediately arrested for attempting to read a brief statement on behalf of the students. His charges were eventually dropped, but community activist Shareef Aleem faces a sixteen-year prison term for allegedly assaulting officers who attempted to forcibly eject him when he asked why the students were not being allowed to speak.
The Regents issue a blanket “apology” to the entire country for Prof. Churchill’s statements, and accept Chancellor DiStefano’s proposal that he, CU Law dean David Getches, and Arts & Sciences dean Todd Gleeson convene an “ad hoc” committee to determine within 30 days whether any of Prof. Churchill’s public writing or speeches “crossed” some undefined boundary of protected speech. The Regents’ own rules on academic freedom and CU’s internal faculty procedures – to say nothing of the First Amendment – are completely disregarded. CU posts DiStefano’s statements prominently on its website.
February 8, 2005 CU-Boulder students sponsor a speech by Ward Churchill on campus. Interim Chancellor DiStefano attempts to cancel it at the last minute, citing “security” concerns, but the possibility of a federal court injunction persuades him otherwise. More than 1500 people attend; they are orderly and extremely supportive of Prof. Churchill.
Despite on-going efforts by Bill O’Reilly, David Horowitz and his “Students for Academic Freedom,” and even personal communiqués from Governor Bill Owens to College Republican around the country to have his speeches cancelled, during the spring Ward Churchill speaks to large and overwhelmingly supportive audiences at the University of Hawai’i, the University of Wisconsin-Whitewater, the University of California-Berkeley, Reed College, Pitzer College, the University of California-Monterey Bay, and at numerous public events in Denver and the San Francisco Bay area. President Jordan of Eastern Washington University, then vying for a job in Denver, cancels a talk; he is unanimously rebuked by his faculty and his students bring Ward Churchill to speak anyway. Ironically, only the very “liberal” Antioch College and Wayne Morse Center for Law and Politics at the University of Oregon actually cancel scheduled appearances.
February 25, 2005 Nearly 200 tenured faculty members at UC-Boulder take out an ad “demanding that school officials halt their investigation of Ward Churchill’s work. On March 22 this is followed by a full-page open letter endorsed by hundreds of scholars across the country, demanding that the Regents’ and administration’s “utterly gratuitous and inappropriate action[s]” be reversed. During this period thousands of individuals sign petitions supporting Prof. Churchill and hundreds write letters of protest to CU officials.
March 3, 2005 CU President Elizabeth Hoffman warns an emergency session of the Boulder Faculty Assembly of a “new McCarthyism,” pointing out that there is “no question that there’s a real danger that the group of people [who] went after Churchill now feel empowered.” Within 5 days she announces her resignation.
Mid-March 2005 Having bought time with its “ad hoc” investigation of his every word, the University negotiates with Prof. Churchill. He is willing to take early retirement for nominal compensation, but only on the condition that the Regents formally and publicly affirm the University’s processes of academic review and their own rules on academic freedom. They refuse.
March 24, 2005 Interim Chancellor DiStefano, who has never consulted Ward Churchill or even officially informed him of the investigation, publicly announces the findings of the “ad hoc” committee. The Interim Chancellor has discovered, apparently to his surprise, that all of Prof. Churchill’s writings and speeches are protected by the First Amendment. But in the meantime, he states, other allegations have surfaced which require further investigation.
Spring 2005 Beginning in late January the “Churchill controversy” is highlighted by O’Reilly, Sean Hannity, Rush Limbaugh, Joe Scarborough, and other neoconservative media personalities; a Denver Clear Channel radio station (closely aligned with Fox News) begins devoting 6-8 hours a day to disparaging Ward Churchill, and The O’Reilly Factor highlights Professor Churchill in over 40 segments. The two major Denver newspapers as well as the two Boulder dailies (three of the four now owned by Scripps-Howard) engage in uniformly negative coverage, running 400 stories in the next two months.
This “news” coverage rapidly turns into an all-out attempt at character assassination. The opinions of an ex-wife, former in-laws, and long-term political adversaries are highlighted. Ward Churchill’s driving record, credit history, employment and military record, high school football team, and even baby pictures are scrutinized. One week the theme is vague accounts of heretofore unreported “intimidation” supposedly occurring a decade or two earlier; then supposed misrepresentations of his academic credentials; then claims that he attempted to incite violence. As each set of claims was proven false, reporters simply moved on to another.
The Interim Chancellor now decides to invoke existing faculty procedures and refers numerous allegations culled from this media barrage to CU’s Standing Committee on Research Misconduct (SCRM). One set of allegations concerns Prof. Churchill’s interpretation of the U.S. Army’s participation in the spreading of smallpox to Indians and about the implementation of “blood quantum” requirements pursuant to the 1887 General Allotment Act and the Indian Arts and Crafts Act. A second set is widely characterized as “plagiarism,” although it is primarily devolves from a claim that Prof. Churchill wrote material published under someone else’s name. In addition, Chancellor DiStefano instructs SCRM to investigate Prof. Churchill’s American Indian identity. Disregarding the University’s own rules on confidentiality, the allegations are released to the press even before Prof. Churchill receives them.
Prof. Churchill protests the investigation as pretextual punishment of protected speech and contests the convening of a racial purity board, but provides SCRM with evidence countering each allegation, including evidence that he meets three standard federal definitions of “American Indian.”
April 25, 2005 Predictably the media feeding frenzy (as well as organized rightwing writing campaigns) has resulted in a barrage of e-mails, telephone calls and letters to Prof. Churchill and the Department of Ethnic Studies. For several weeks the Department cannot otherwise function. While many express support, Prof. Churchill and the Department each receive several thousand hostile and usually virulently racist e-mails. Students of color on the Boulder campus experience a heightened level of racist hostility. Prof. Churchill receives a steady stream of death threats and his home is vandalized. The University ignores all of this; the racist attacks are not condemned and the Department receives no additional support or security. The Ethnic Studies faculty finally sends an Open Letter to the Regents and all of the relevant University administrators, requesting support and attaching excerpts of e-mails which are racist, homophobic and threaten violence. Interim Chancellor DiStefano apparently finds these neither “abhorrent” nor “repugnant.” The Department never receives acknowledgment of its Open Letter from any University official.
May 17-19, 2005 The office of the Keetowah Band of Cherokee Indians in Tahlequah, Oklahoma is overwhelmed by media inquiries concerning Prof. Churchill’s status. On May 17 Prof. Churchill learns that, in the face of this pressure, the Band has issued a statement falsely asserting that he was never on the band rolls. Prof. Churchill issues a response documenting his May 1994 enrollment as an Associate Member; on May 19 the Band confirms this fact.
Summer 2005 Having taught an overload during the spring semester, Prof. Churchill also teaches a Maymester course. He wins a 2005 teaching award, voted on by students, but its sponsor (the CU alumni association) withholds the award “pending the outcome of the investigation,” despite the fact that the allegations have nothing to do with teaching.
Early June 2005 The Rocky Mountain News, having put at least 5 reporters on “special assignment” for several weeks, runs a 5-part, multi-page series with its conclusions on each allegation being investigated by the SCRM in its purportedly “confidential” process. The University spokesperson says that only allegations from individual complainants, not news reports, can be investigated. Immediately thereafter, Interim Chancellor DiStefano, as complainant, sends 59 pages of stories downloaded off the Rocky Mountain News website to the SCRM, which forwards the entire package to Prof. Churchill with instructions to answer “any new allegations.”
Late June 2005 Prof. Churchill files a formal grievance with the faculty Privilege and Tenure (P&T) Committee concerning the pretextual nature of the investigations against him and the University’s violations of his academic freedom, First Amendment, and due process rights. He subsequently files additional grievances concerning the University’s persistent violations of confidentiality and its refusal to grant him a sabbatical. He is eventually informed that the P&T Committee will only consider the grievances about the investigative process after the process has been completed.
August 19, 2005 The SCRM completes its “inquiry” phase. It drops or disregards numerous allegations, including the charge of “ethnic fraud,” but forwards seven allegations for “investigation.” These involve matters of historical interpretation (Prof. Churchill’s attribution of intentionality with respect to two smallpox epidemics and his characterization of the blood quantum requirements of the 1887 General Allotment Act and the 1990 Indian Arts and Crafts Act) and questions of attribution of authorship regarding three articles (one he never claimed authorship of; another a pamphlet which a long-defunct political organization had asked him to use; the third a piece which he readily acknowledged to have ghostwritten).
Late August, 2005 Denver newspapers report that Prof. Churchill is scheduled for a sabbatical in the spring semester of 2006. Interim Provost Susan Avery immediately announces that although Prof. Churchill’s sabbatical had been approved by Dean Todd Gleeson almost a year earlier, she had never forwarded it to the Regents for approval. Prof. Churchill files a grievance and, pending its outcome, announces his intent to “un-bank” two of the six overload courses which he had already taught and for which he was owed the equivalent of “comp time.” In October Dean Gleeson refuses to allow Prof. Churchill to un-bank more than one course in the spring. He states that this is because Prof. Churchill needs to be present on campus, but then contradicts himself by suggesting that Prof. Churchill take an unpaid leave. After Prof. Churchill notifies University officials that he will file suit, they concede that he can un-bank courses in the spring and fall of 2006.
Fall-Winter 2005 The SCRM appoints the investigative committee. Because of the poisoned atmosphere within the University, Prof. Churchill requests an entirely external committee including experts in his field of American Indian Studies. Given the prior actions of law dean David Getches, Prof. Churchill specifically objects to the inclusion of CU law faculty. SCRM chair Joseph Rosse appoints a committee dominated by 3 CU insiders and chaired by a CU law professor. The two outside members include an American Indian Studies expert and a native professor of federal Indian law. Local media pundits immediately begin bashing the two outsiders for having previously made general statements acknowledging the importance of Prof. Churchill’s work. Within 48 hours the two outside members resign, leaving the committee without an expert in the field and without any persons of color. Two additional members are eventually appointed, a white federal Indian law scholar and a Chicano anthropologist. The committee proceeds without any American Indian scholars or experts in American Indian studies.
Winter-Spring 2006 Prof. Churchill submits voluminous responses to and meets with the investigative committee. Because of the committee’s lack of knowledge of the field, much of his time is devoted to basic questions of history and methodology. Four American Indian scholars appear as witnesses to confirm his interpretation of historical matters, as well as the methodology and standards employed in American Indian Studies and in native oral traditions. The committee refuses Prof. Churchill’s repeated requests for extensions of time to submit responses, and only allows him to question witnesses – even his own – by typing questions and e-mailing them.
May 16, 2006 The investigative committee issues an obtuse 124-page report which, despite its many concessions to the flaws in the process, concludes that Prof. Churchill did engage in research misconduct on the seven allegations. Contradicting the evidence presented by all of the American Indian witnesses, the entirely non-Indian committee accuses Prof. Churchill of “disrespecting” American Indian oral traditions. The committee concludes that these are offenses for which a tenured faculty member can be fired, and the members recommend that Prof. Churchill be terminated or suspended for several years. The severity of recommended sanctions appears to be a result of what the report describes as Prof. Churchill’s “bad attitude.” The report was immediately criticized on many grounds, substantive and procedural. (Click here for problems with the report.)
June 16, 2006 Interim Chancellor DiStefano, who has thus far publicly condemned Prof. Churchill, convened an inquiry into “every word” he has published or publicly uttered, solicited allegations and then forwarded them to the SCRM as “complainant,” now serves as sentencing judge, sanctioning the investigative committee’s report and recommending that Prof. Churchill be fired. DiStefano, too, cites Prof. Churchill’s “attitude.”
Prof. Churchill files an internal appeal with the Privilege & Tenure Committee.
April 11, 2007 A review panel convened by CU’s Privilege & Tenure (P&T) Committee concludes that but for the “controversy” over Ward Churchill’s statements regarding 9/11 the investigation would not have occurred. It also finds that the SCRM Investigative Committee “exceeded its charge” in a number of cases, and that the University failed to meet its burden of proof on others, including the claims about misrepresenting the blood quantum requirements of the General Allotment Act of 1887 and the 1990 Indian Arts and Craft Act.
Nonetheless, the P&T Panel concludes that Prof. Churchill engaged in research misconduct on some specifics concerning the 1837 smallpox epidemic, and failed to comply with (unspecified) standards concerning author attribution. The majority of the Panel recommends a 1-year suspension.
May 10, 2007 Research misconduct complaint against the SCRM Investigative Committee filed by 11 professors, including 2 experts in American Indian Studies alleging deliberate falsification and fabrication in their Report. (Never investigated by CU.)
May 28, 2007 Another set of research misconduct allegations filed against the SCRM Committee by 5 professors and 2 attorneys. (Never investigated by CU.)
June 7, 2007 CU President Hank Brown refuses to recuse himself from Ward Churchill case despite his longstanding ties to ACTA. He then overrides the P&T Panel to recommend to the Regents that they fire Ward Churchill.
July 10, 2007 A P&T review panel belatedly addresses a grievance filed by Ward Churchill in September 2005 regarding the University’s violations of its own rules on confidentiality. The panel concludes that “the actions by the University regarding the SCRM process and press releases/conferences violated Churchill’s confidentiality. In addition, the panel finds that further harm to Churchill’s reputation was done by the delay in hearing his grievance by the Privilege and Tenure Committee.”
July 10, 2007 Churchill fired by Board of Regents
This finding, of course, comes too late to redress any of the harm caused by these breaches of University rules.
July 12, 18, and 19, 2007 Still more research misconduct complaints are filed against the SCRM Investigative Committee. (Never investigated.)
July 24, 2007 The Regents of the University of Colorado vote 8-1 to fire Ward Churchill. Only Regent Cindy Carlisle votes to accept the P&T Panel’s findings.
July 25, 2007 David Lane immediately files suit to vindicate Ward Churchill’s rights under the First Amendment.
March 9-27, 2009: Churchill v. University of Colorado scheduled for trial in Denver State Court.
“First they ignore you, then they laugh at you, then they fight you, then you win.”
“We are working towards complete freedom in a lawful, non-violent, non-aggressive way.”
- Russell Means
The Lakotah’s 158 Year Long Struggle for Justice
In December of 2007, the Republic of Lakotah was formed by the formal withdrawal from its Treaties of 1851 and 1868. This was the latest step in the longest running legal battle in the history of the World.
This was not a “cessation” from the United States, but a completely lawful “unilateral withdrawal” from the Treaties as permitted under the 1969 Vienna Convention on the Law of Treaties, of which, the United States is a signatory.
The purpose of the Republic of Lakotah is to follow the Instructions given by the Elders at the first International Indian Treaty Council in 1974. The Council held a “Western Hemisphere” Conference at Wakpala on the Standing Rock Sioux Indian Reservation. Over 5000 delegates of 97 Indigenous Peoples from the Americas gathered. The “manifesto” that was created on that occasion supports the rights of all Indigenous Peoples to live free and take whatever actions are necessary to uphold our sovereignty. This was the largest gathering of Indian People in the 20th Century where Indians paid their own way.
It was here that the Declaration of Continuing Independence was created. The conference was attended by numerous elders, including Chief Frank Fools Crow, pictured left. These were not your ordinary elders; most of them were born in the 1800’s to parents who had been born free, they had never been to schools. The majority spoke no English, and the rest spoke broken English. Russell Means was made a permanent trustee of the International Indian Treaty Council by the elders and the conference.
These Elders Gave the Conference and the Newly Formed International Treaty Council Two Mandates:
1. The first mandate was to become recognized by the International Communities. On September 2007, when the United Nations passed the Declaration of Indigenous Rights, that mandate was fulfilled.
2. We were to remember the words of Noble Red Man (Matthew King, pictured below), “We must always remember that we were once a free People, if we don’t, we shall cease to be Lakotah.” This second mandate is to return to our original status as free and Independent Nations. On December 17, 2007, the Lakotah Freedom Delegation presented to the Department of State of the United States of America, we are unilaterally withdrawing from all Treaties and Agreements entered into between the United States of America and Lakotah.
Leading up to the 2007 Unilateral Treaty Withdrawal, Russell traveled all over the five state area meeting with key people over a seven month period. Now in his seventieth winter, he is working on achieving better conditions for the Indian people for over forty years. Russell was appointed by the conference and the elders as a permanent trustee of the Indian Treaty Council.
The 1868 Fort Laramie Treaty was considered by some commentators to have been a complete victory for Red Cloud and the Sioux. In 1904 it was described as “the only instance in the history of the United States where the government has gone to war and afterwards negotiated a peace conceding everything demanded by the enemy and exacting nothing in return.”
As a result of the long running litigation between the Lakotah and the United States, the U.S. has made some telling statements:
“A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history,…” U.S. Court of Claims, 1975
“ It 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 Indian Claims Commission, 1978
“Here, there is no doubt that the Black Hills were “taken” from the Sioux in a way that wholly deprived them of their property rights to that land. The question presented is whether Congress was acting under circumstances in which that “taking” implied an obligation to pay just compensation, or whether it was acting pursuant to its unique powers to manage and control tribal property as the guardian of Indian welfare, in which event the Just Compensation Clause would not apply.” U.S. Supreme Court, UNITED STATES v. SIOUX NATION OF INDIANS, 1980
The court also remarked upon President Grant’s duplicity in breaching the Government’s treaty obligation to keep trespassers out of the Black Hills, and the pattern of duress practiced by the Government on the starving Sioux to get them to agree to the sale of the Black Hills.
“That there was tragedy, deception, barbarity, and virtually every other vice known to man in the 300-year history of the expansion of the original 13 Colonies into a Nation which now embraces more than three million square miles and 50 States cannot be denied. But in a court opinion, as a historical and not a legal matter, both settler and Indian are entitled to the benefit of the Biblical adjuration: ‘Judge not, that ye be not judged.’” Hearing before the committee on Indian affairs, united states senate session on Tribal Sovereign Immunity 9-24, 1996
The Historical Facts that Form the Basis of the Lakotah’s Claim to Sovereignty
1824 – Indian Service Department (BIA) created in the War Department.
1849 - Indian Service Department (BIA) transferred to the Department of the Interior.
1851 – Treaty of Fort Laramie marks turning point in U.S.-Indian relations on the northern plains creating the Great Lakotah (Sioux) Nation
1853-56 – The United States acquires 174 million acres of Indian lands in a series of 52 treaties, all of which are subsequently broken by the U.S. Government
1854 - U.S. Indian Affairs commissioner calls for end of Indian removal policy – IGNORED
1862-63 – Santee Sioux uprising in Minnesota under Chief Little Crow ends with the hanging of 38 Santees on Dec. 26, 1863, the largest mass execution in U.S. history was ordered by President Lincoln without a hearing just two days after he signed the Emancipation Proclamation.
1864 - Nov. 29, Army Colonel (and United Methodist Reverend) John M. Chivington’s hastily assembled volunteers massacre more than 300 Cheyenne men, women and children peacefully camped at Sand Creek.
1866 – U.S. Congress appropriates Indian lands (without consultation or consent as required by the Treaty of 1851) as right-of-way for construction of transcontinental railroad
1866-68 – U.S. TREATY VIOLATION: In direct violation of the Treaty of 1851, the U.S. government allowed the Bozeman trail to go through the Heart of the Lakotah Nation as a short-cut to the gold fields in Montana. Soon, the Army began, in another gross violation of the 1851 Treaty, to construct and man a string of forts along the Bozeman Trail. Cheyenne, Lakotah and Arapaho forces led by Chief Red Cloud soundly defeat the U.S. Army on the field of battle. The war ended when the U.S. sued for peace and made the promises documented in the Treaty of 1868. This will remain the only full-scale “Indian War” won by the Indians, a victory formalized in the 1868 Fort Laramie Treaty
1868 - The United States pledged that the Great Sioux Reservation, including the Black Hills, would be “set apart for the absolute and undisturbed use and occupation of the Indians herein named.”
The Fort Laramie Treaty included several agreements central to the issues presented in this case. First, it established the Great Sioux Reservation. The United States “solemnly agree[d]” that no unauthorized persons “shall ever be permitted to pass over, settle upon, or reside in [this] territory.”
Second, the United States permitted members of the Sioux tribes to select lands within the reservation for cultivation. Id., at 637. In order to assist the Sioux in becoming civilized farmers, the Government promised to provide them with the necessary services and materials, and with subsistence rations for four years.
Third, the U.S. Government fraudulently claims, that in exchange for the benefits conferred by the treaty, the Sioux agreed to relinquish their rights under the Treaty of September 17, 1851, to occupy territories outside the reservation, while reserving their “right to hunt on any lands north of North Platte, and on the Republican Fork of the Smoky Hill river, so long as the buffalo may range thereon in such numbers as to justify the chase.” The Indians also, allegedly, expressly agreed to withdraw all opposition to the building of railroads that did not pass over their reservation lands, not to engage in attacks on settlers, and to withdraw their opposition to the military posts and roads that had been established south of the North Platte River.
Fourth, Art. XII of the treaty provided: “No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult male Indians, occupying or interested in the same.”
1868 - The U.S.A. Treaty Commission, upon returning to Washington, D.C., stopped in Chicago and altered the text of the Treaty to eliminate all land now used by the State of Nebraska.
1869 - Transcontinental railroad completed. Among other uses, this transported large numbers of hunters to kill off the Buffalo herds.
1871 – Congress ratifies last of 372 treaties made with Indian tribes since 1778; later accords will not have treaty status, which recognizes tribes as sovereign nations – General Sheridan issues orders forbidding western Indians to leave reservations without permission – White hunters in Unites States begin wholesale killing of buffalo
1874 – U.S. TREATY VIOLATION: Lieutenant Colonel George Armstrong Custer led the expedition of close to 1,000 soldiers and teamsters, and a substantial number of military and civilian aides. By the end of JULY, they had reached the Black Hills, and by mid-August had confirmed the presence of gold fields in that region. The discovery of gold was widely reported in newspapers across the country. Custer’s florid descriptions of the mineral and timber resources of the Black Hills, and the land’s suitability for grazing and cultivation, also received wide circulation, and had the effect of creating an intense popular demand for the “opening” of the Hills for settlement. The only obstacle to “progress” was the Fort Laramie Treaty that reserved occupancy of the Hills to the Sioux.
In an interview with a correspondent from the Bismarck Tribune, published September 2, 1874, Custer recognized the military’s obligation to keep all trespassers off the reservation lands, but stated that he would recommend to Congress “the extinguishment of the Indian title at the earliest moment practicable for military reasons.”
Quoting the 1874 annual report of Lieutenant General Philip H. Sheridan, as Commander of the Military Division of the Missouri, to the Secretary of War: “Having promised the Sioux that the Black Hills were reserved to them, the United States Army was placed in the position of having to threaten military force, and occasionally to use it, to prevent prospectors and settlers from trespassing on lands reserved to the Indians.”
For example, in September 1874, General Sheridan sent instructions to Brigadier General Alfred H. Terry, Commander of the Department of Dakota, at Saint Paul, directing him to use force to prevent companies of prospectors from trespassing on the Sioux Reservation. At the same time, Sheridan let it be known that he would “give a cordial support to the settlement of the Black Hills,” should Congress decide to “open up the country for settlement, by extinguishing the treaty rights of the Indians.”
Sheridan’s instructions were published in local newspapers. Eventually, however, the Executive Branch of the Government decided to abandon the Nation’s treaty obligation to preserve the integrity of the Sioux territory. In a letter dated November 9, 1875, to Terry, Sheridan reported that he had met with President Grant, the Secretary of the Interior, and the Secretary of War, and that the President 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.” (letter from Sheridan to Sherman). With the Army’s withdrawal from its role as enforcer of the Fort Laramie Treaty, the influx of settlers into the Black Hills increased. The Government concluded that the only practical course was to secure to the citizens of the United States the right to mine the Black Hills for gold. Toward that end, the Secretary of the Interior, in the spring of 1875, appointed a commission to negotiate with the Sioux. The commission was headed by William B. Allison. The tribal leaders of the Sioux were aware of the mineral value of the Black Hills and refused to sell the land for a price less than $70 million. The commission offered the Indians an annual rental of $400,000, or payment of $6 million for absolute relinquishment of the Black Hills. The negotiations broke down.
Winter of 1875-1876 – Many of the Sioux were hunting in the unceded territory north of the North Platte River, reserved to them for that purpose in the Fort Laramie Treaty. On December 6, 1875, with blatantly hostile intentions, the Commissioner of Indian Affairs sent instructions to the Indian agents on the reservation to notify those hunters that if they did not return to the reservation agencies by January 31, 1876, they would be treated as “hostiles.”
Given the severity of the winter, compliance with these instructions was impossible. On February 1, the Secretary of the Interior nonetheless relinquished jurisdiction over all hostile Sioux, including those Indians exercising their treaty-protected hunting rights, to the War Department.
1876 – Sioux War for the Black Hills waged by Sioux, Cheyenne, and Arapaho forces under Sitting Bull and Crazy Horse. On June 25, 1876, Custer’s 7th Cavalry is crushed at Battle of the Little Bighorn while on the way to ambush a Lakotah village. That victory, of course, was short-lived, and those Indians who surrendered to the Army were returned to the reservation, and deprived of their weapons and horses, leaving them completely dependent for survival on rations provided them by the Government. Sitting Bull and followers seek refuge in Canada.
1876 – U.S. TREATY VIOLATION: “GIVE UP THE LAND OR STARVE CAMPAIGN”: August, Congress enacted an appropriations bill providing that “hereafter there shall be no appropriation made for the subsistence” of the Sioux, unless they first relinquished their rights to the hunting grounds outside the reservation, ceded the Black Hills to the United States.
A commission, headed by George Manypenny, arrived in the Sioux country in early September and commenced meetings with the head men of the various tribes. The members of the commission impressed upon the Indians that the United States no longer had any obligation to provide them with subsistence rations. The commissioners brought with them the text of a treaty that had been prepared in advance. The principal provisions of this treaty were that the Sioux would relinquish their rights to the Black Hills and other lands west of the one hundred and third meridian, and their rights to hunt in the unceded territories to the north, in exchange for subsistence rations for as long as they would be needed to ensure the Sioux’ survival.
Hagan, The Reservation Policy: Too Little and Too Late, in Indian-White Relations: A Persistent Paradox 157-169 (J. Smith & R. Kvasnicka, eds., 1976). In words applicable to conditions on the Sioux Reservation during the years in question, Professor Hagan stated: “The idea had been to supplement the food the Indians obtained by hunting until they could subsist completely by farming. Clauses in the treaties permitted hunting outside the strict boundaries of the reservations, but the inevitable clashes between off-reservation hunting parties and whites led this privilege to be first restricted and then eliminated. The Indians became dependent upon government rations more quickly than had been anticipated, while their conversion to agriculture lagged behind schedule. The quantity of food supplied by the government was never sufficient for a full ration, and the quality was frequently poor. But in view of the fact that most treaties carried no provision for rations at all, and for others they were limited to four years, the members of Congress tended to look upon rations as a gratuity that should be terminated as quickly as possible. The Indian Service and military personnel generally agreed that it was better to feed than to fight, but to the typical late nineteenth-century member of Congress, not yet exposed to doctrines of social welfare, there was something obscene about grown men and women drawing free rations. Appropriations for subsistence consequently fell below the levels requested by the secretary of the interior….That starvation and near-starvation conditions were present on some of the sixty-odd reservations every year for the quarter century after the Civil War is manifest.” The Government’s “sell or starve policy” was not effective.
According to the terms of the one-sided Manypenny arrangement, the Sioux were to surrender claims to the Black Hills region, which stretched across five states and covered 47 million acres of land stuffed with gold and other resources that would enrich American industrialists and financiers while impoverish the indigenous people who lived there.
In setting out to obtain the tribes’ agreement to this treaty, the commission ignored the stipulation of the Fort Laramie Treaty that any cession of the lands contained within the Great Sioux Reservation would have to be joined in by three-fourths of the adult males. Instead, the treaty was presented just to Sioux chiefs and their leading men. It was signed by only 10% of the adult male Sioux population.
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.
Three years after the agreement that bore his name was ratified, George Manypenny wrote a book entitled Our Indian Wards. There he wrote that:
It can not be denied, that from the period when the first infant settlements were made upon the Atlantic sea-board by European colonies, until the present time, there have been constant, persistent, and unceasing efforts on the part of the white man to drive the Indian from his hunting ground and his home.
1877 – Feb. 28, – Congress “resolves” the “3/4 of adult males” problem by enacting the 1876 “agreement” into law as the Act of(1877 Act), 19 Stat. 254. The Act had the effect of abrogating the earlier Fort Laramie Treaty, and of implementing the terms of the Manypenny Commission’s “agreement” with the Sioux leaders. The passage of the 1877 Act legitimized the settlers’ invasion of the Black Hills, but throughout the years it has been regarded by the Sioux as a breach of this Nation’s solemn obligation to reserve the Hills in perpetuity for occupation by the Indians secured by the Sacred document of the white man and the Constitution of the United Sates of America!
1877 – Crazy Horse is killed while in custody after he surrenders.
1881 – Sitting Bull and 187 followers surrender to U.S. officials at Fort Buford, North Dakota
1885 – The last great herd of buffalo in the United States (at one time 60,000,000) is exterminated. In this chapter of history eliminated from the history books, the government took sixty years to accomplish this most damning genocidal policy!
1887 - Congress passes the General Allotment Act (the Dawes Act), which ends communal ownership of reservation lands, distributing 160-acre “allotments” to individual Indians and disposing of the surplus. Tribes lose millions of acres. (Much of this land is now in the hands of white ranchers.)
1888 – Congress begins the outlawing of the entire Indian Way of Life and our Spiritual and Prayer Ceremonies.
1890-1910 – U.S. Indian population reaches low point: less than 250,000. The population of the Indigenous People prior to the invasion in 1492, has been estimated at 14,000,000 in the contiguous 48 states!
1890 – On Dec. 15, 1890, Sitting Bull is killed at the Standing Rock Reservation, South Dakota, increasing tensions there.
1890 - Dec. 28, U.S. troops massacre more than 300 Sioux prisoners of war at what is now known as Wounded Knee who were traveling to to visit Red Cloud. After disarming the Indians, the U.S. Army used for small arms and four of their newest weapons, the Hotchkiss revolving canon which fired 1.25 inch exploding shells. This “battle” as it’s recorded in the U.S. history books resulted in the awarding of twenty Congressional Medals of Honor for Valor which were bestowed on the 7th Calvary. To this day, this day, this is the most Medals of Honor EVER awarded for a battle. More than any of the atrocious battles in the Pacific during World War II.
1891 – Indian Education. A Congressional Act authorized the Commissioner of Indian Affairs “to make and enforce by proper means” rules and regulations to ensure that Indian children attended schools designed and administered by non-Indians. Children were literally ripped from their parents’ arms and sent to federal and missionary boarding schools all over the West. This genocidal campaign continues to this day as children are unlawfully and manipulatively taken from their parents all over the U.S. under the 1978 “Indian Child Welfare Act.”
1891 – Amendment to the Dawes Act. This amendment modified the amount of land to be allotted and set conditions for leasing allotments.
1891 – Congress authorizes the leasing by whites of allotted Indian lands
1893 - Indian Education. This Congressional Act made school attendance for Indian children compulsory and authorized the BIA to withhold rations and government annuities to parents who did not send their children to school.
1898 – Curtis Act. This Congressional Act ended tribal governments practice of refusing allotments and mandated the allotment of tribal lands in Indian Territory – including the lands of the Cherokee, Creek, Choctaw, Chickasaw, and Seminole nations.
1898 – TREATY VIOLATION: Curtis Act seeks to extend allotment policy to “Five Civilized Tribes” by dissolving tribal governments, requiring abolished Indian nations to submit to allotment, and instituting civil government in Indian Territory
1903 - Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903) Supreme Court decision. The Kiowas and Comanches sued the Secretary of the Interior to stop the transfer of their lands without consent of tribal members which violated the promises made in the 1867 Treaty of Medicine Lodge. The Court ruled that the trust relationship served as a source of power for Congress to take action on tribal land held under the terms of a treaty. Thus, Congress could, by statute, abrogate the provisions of an Indian treaty. Further, Congress had a plenary – or absolute – power over tribal relations.
1906 - Antiquities Act. This Congressional Act declared that Indian bones and objects found on federal land were the property of the United States. This unleashed a flood of of anthropologists and archaeologists as well as ghoulish profiteers to rob our graves with impunity.
1906 – Burke Act. This act amended the Dawes Act to give the secretary of War the power to remove allotments from trust before the time set by the Dawes Act, by declaring that the holders had “adopted the habits of civilized life.” This act also changed the point at which the government would award citizenship from the granting of the allotment to the granting of the title.
1908 – TREATY VIOLATION: Supreme Court defines rights of the federal government to reserve water for the use of Indian tribes
1910 – TREATY VIOLATION: Federal government forbids the Sun Dance among the Plains Indians, giving the use of self-torture as the reason.
1923 - The Lakotah, after years of lobbying, succeeded in obtaining from Congress the passage of a special jurisdictional Act which provided them 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.” Pursuant to this statute, the Sioux, in 1923, filed a petition with the Court of Claims alleging that the Government had taken the Black Hills without just compensation, in violation of the Fifth Amendment. This claim was dismissed by that court in 1942. The case was re-filed after the establishment of the Indian Court of Claims in 1946. Subsequently, the case went to the Supreme Court three times, before finally being ruled on in 1980, thus making the “Black Hills Claim” the longest running litigation in U.S. history, 58 years. As the money awarded has still not been accepted by the Lakotah, one could say that the claim is yet unresolved. The Lakotah asked for the return of all lands according to the treaties and the Constitution. However, once the lawyers go to Washington, D.C., they violated the Lakotah’s instructions and and sought not the return of the land, but “just compensation.”
1924 – The Indian Citizenship Act, also known as the Snyder Act, was proposed by Representative Homer P. Snyder of New York and granted full U.S. citizenship to America’s indigenous peoples, called “Indians” in this Act. (The Fourteenth Amendment guarantees citizenship to persons born in the U.S., but only if “subject to the jurisdiction thereof”; this latter clause excludes certain indigenous.) The act was signed into law by President Calvin Coolidge on June 2. However, to this day, Indians are not granted the protections granted all other citizens under the Bill of Rights. This was done without the consent of Indians!
1927 – Grand Council of American Indians:
The white people, who are trying to make us over into their image, they want us to be what they call “assimilated,” bringing the Indians into the mainstream and destroying our own way of life and our own cultural patterns. They believe we should be contented like those whose concept of happiness is materialistic and greedy, which is very different from our way.
We want freedom from the white man rather than to be integrated. We don’t want any part of the establishment, we want to be free to raise our children in our religion, in our ways, to be able to hunt and fish and live in peace. We don’t want power, we don’t want to be congressmen, or bankers….we want to be ourselves. We want to have our heritage, because we are the owners of this land and because we belong here.
The white man says, there is freedom and justice for all. We have had ‘freedom and justice,’ and that is why we have been almost exterminated. We shall not forget this.
1930’s – Adolph Hitler patterns his genocidal techniques after the American Indian Policy of the U.S. Government. “Adolf Hitler”, John Toland, Publisher: Doubleday & Company, Inc., Garden City, New York 1976.
“Hitler’s concept of concentration camps as well as the practicality of genocide owed much, so he claimed, to his studies of English and United States history. He admired the camps for Boer prisoners in South Africa and for the Indians in the wild West; and often praised to his inner circle the efficiency of America’s extermination-by starvation and uneven combat-of the red savages who could not be tamed by captivity.” Pg 702
1934 – TREATY VIOLATION: U.S. Indian Reorganization Act (IRA) reverses U.S. policy of allotment, providing for tribal self-government and landholding and launching an Indian credit program.
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 ).
1946 - Indian Court of Claims established by the US. creating a new forum to hear and determine all tribal grievances that had arisen previously.
1950 – Counsel for the Sioux resubmit the Black Hills claim to the Indian Claims Commission. The Commission initially ruled that the Sioux had failed to prove their case. The Sioux filed a motion with the Court of Claims to vacate its judgment of affirmance alleging that the Commission’s decision had been based on a record that was inadequate, due to the failings of the Sioux’ former counsel. This motion was granted and the Court of Claims directed the Commission to consider whether the case should be reopened for the presentation of additional evidence.
1954 – Indian Claims Commission dismissed Docket 74, a part of the Black Hills claim.
1958 – Indian Claims Commission entered an order reopening the case and announcing that it would reconsider its prior judgment on the merits of the Sioux claim. Following the Sioux’ filing of an amended petition, claiming again that the 1877 Act constituted a taking of the Black Hills for which just compensation had not been paid, there ensued a lengthy period of procedural sparring between the Indians and the Government.
1960 – 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.
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.
1964 – South Africa copies the U.S. Reservation Scheme: The Bantu Laws Amendment Act of 1964 gave the government complete authority to banish blacks from any urban area and from white agricultural areas. During the 1970′s, the government stripped thousands of blacks of their South African citizenship when it granted nominal independence to their homelands. Most of the homelands had few natural resources, were not economically viable, and being both small and fragmented, lacked the autonomy of independent states.
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.
1969 – Indian Claims Commission allows 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.
1969 – American Indian activists occupy Alcatraz Island in San Francisco Bay to call attention to the plight of contemporary Indians. The occupation lasts until 1971.
1969 – Vienna Convention on Treaties:
Scope of the present Convention: The present Convention applies to treaties between States.
Article 49- Fraud
If a State has been induced to conclude a treaty by the fraudulent conduct govern questions not regulated by the provisions of the present Convention, Have agreed as follows:
Use of terms
1. For the purposes of the present Convention:
(a) ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;
(b) ‘ratification’, ‘acceptance’, ‘approval’ and ‘accession’ mean in each case the
international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;
(c) ‘full powers’ means a document emanating from the competent authority of a
State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;
(d) ‘reservation’ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State;
(e) ‘negotiating State’ means a State which took part in the drawing up and adoption of the text of the treaty;
(f) ‘contracting State’ means a State which has consented to be bound by the
treaty, whether or not the treaty has entered into force;
(g) ‘party’ means a State which has consented to be bound by the treaty and for which the treaty is in force;
(h) ‘third State’ means a State not a party to the treaty;
(i) ‘international organization’ means an intergovernmental organization.
Termination or suspension of the operation of a treaty as a consequence of its breach:
1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as aground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the
operation of the treaty in whole or in part in the relations between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.
5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.
1970 – Nixon’s “Special Message on Indian Affairs.” President Nixon delivered a speech to Congress which denounced past federal policies, formally ended the termination policy, and called for a new era of self-determination for Indian peoples.
1972 – Trail of Broken Treaties. Over 500 Indian activists traveled across the United States to Washington, DC where they planned to meet with BIA officials and to deliver a 20-point proposal for revamping the BIA and establishing a government commission to review treaty violations. When guards at the BIA informed the tribal members that Bureau officials would not meet with them and threatened forcible removal from the premises, the activists began a week-long siege of the BIA building. The BIA finally agreed to review the 20 demands and to provide funds to transport the activists back to their home. Shortly thereafter, the FBI classified AIM as “an extremist organization” and added the names of its leaders to the list of “key extremists” in the US.
1972 – White vigilantes beat Raymond Yellow Thunder to death in Gorden, Neb. A ruling of death by suicide causes protests by more than 1,000 Sioux from Pine Ridge Reservation. Officials, forced to perform an autopsy, change their finding to manslaughter; two of the killers are subsequently tried and convicted
1973 – Members of AIM and about 200 armed Oglala Sioux occupy site of the Wounded Knee Massacre on Pine Ridge Reservation in South Dakota for 71 days.
1974 – In Minnesota, the first trial stemming from the occupation of Wounded Knew takes place. In 1975 AIM leaders Dennis Banks and Russell Means are convicted on assault and riot charges. In 1978 Gov. Jerry Brown gives Banks sanctuary in California
1974 - By a 4-to-1 vote, the Commission reached a preliminary decision on the 1968 questions it posed. The Commission first held that the 1942 Court of Claims decision did not bar the Sioux’ Fifth Amendment taking claim through application of the doctrine of res judicata. The Commission concluded that the Court of Claims had dismissed the earlier suit for lack of jurisdiction, and that it had not determined the merits of the Black Hills claim. The Commission then went on to find that Congress, in 1877, had made no effort to give the Sioux full value for the ceded reservation lands. The only new obligation assumed by the Government in exchange for the Black Hills was its promise to provide the Sioux with subsistence rations, an obligation that was subject to several limiting conditions. Under these circumstances, the Commission concluded that the consideration given the Indians in the 1877 Act had no relationship to the value of the property acquired. Moreover, there was no indication in the record that Congress ever attempted to relate the value of the rations to the value of the Black Hills. The Commission concluded that Congress had acted pursuant to its power of eminent domain when it passed the 1877 Act, rather than as a trustee for the Sioux, and that the Government must pay the Indians just compensation for the taking of the Black Hills.
1974 – 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 ). The total award in Docket 74-B was $105 million.
1975 – Shoot-out on Pine Ridge Reservation between AIM members and FBI agents results in the death of two agents. Leonard Peltier is later convicted, a verdict that remains controversial.
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.
1975 - The court’s majority recognized that the practical impact of the question presented was limited to a determination of whether or not an award of interest would be available to the Indians. This followed from the Government’s failure to appeal the Commission’s holding that it had acquired the Black Hills through a course of unfair and dishonorable dealing for which the Sioux were entitled to damages, without interest, under §2 of the Indian Claims Commission Act, 60 Stat. 1050, 25 U.S.C. §70a(5). Only if the acquisition of the Black Hills amounted to an unconstitutional taking would the Sioux be entitled to interest. 207 Ct.Cl., at 237, 518 F.2d, at 1299. The court affirmed the Commission’s holding that a want of fair and honorable dealings in this case was evidenced, and held that the Sioux thus would be entitled to an award of at least $17.5 million for the lands surrendered and for the gold taken by trespassing prospectors prior to passage of the 1877 Act.
The court also remarked upon President Grant’s duplicity in breaching the Government’s treaty obligation to keep trespassers out of the Black Hills, and the pattern of duress practiced by the Government on the starving Sioux to get them to agree to the sale of the Black Hills. The court concluded: “A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe.”
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).
1977 - Senate Committee on Indian Affairs (SCIA). This Senate resolution re-established the SCIA. The Committee was originally created in the early nineteenth century, but disbanded in 1946 when Indian affairs legislative and oversight jurisdiction was vested in subcommittees of the Interior and Insular Affairs Commission of the House and Senate. The Committee became permanent in 1984. Its jurisdiction includes studying the unique issues related to Indian and Hawaiian peoples and proposing legislation to deal with such issues – issues which include but are not limited to Indian education, economic development, trust responsibilities, land management, health care, and claims against the US. government.
1977 – Report of the American Indian Policy Review Commission. The Commission, established in 1975, issued its report in which it called for a firm rejection of assimilationist policies, increased financial assistance to the tribes, and a reaffirmation of the tribes’ status as permanent, self-governing institutions.
1978 – 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 ).
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 – Indian Child Welfare Act. This Congressional Act addressed the widespread practice of transferring the care and custody of Indian children to non-Indians. It recognized the authority of tribal courts to hear the adoption and guardianship cases of Indian children and established a strict set of statutory guidelines for those cases heard in state court. (As of 2009, coerced and forced adoptions of Indian children are rampent)
1978 – American Indian Religious Freedom Act. This Congressional Act promised to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise” traditional religions, “including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites.” Although the enactment seemed to recognize the importance of traditional Indian religious practices, it contained no enforcement provisions.
1978 - US v. Wheeler, Supreme Court decision. The Court considered the question of whether the power to punish tribal offenders is “part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress.” He concluded: “The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.” In short, Indian nations were sovereign, but such sovereignty was limited and subject to Congressional whim.
1978 – Congress passesa 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 jurisdictional 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 - Court of Claims hearsthe 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)-
1980 – 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.
1980 – Supreme Court affirms the 1979 judgment of the Court of Claims (United States v. Sioux Nation of Indians, 488 US 371 ). 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.)
The Supreme Court of the United States agreed that the “sale” of the Black Hills had not been conducted legally. It refused, however, to return the land to the Lakota people and ordered them to accept belated financial compensation instead.
The Committee observed: “The facts are, as the Commission found, that the United States disarmed the Sioux and denied them their traditional hunting areas in an effort to force the sale of the Black Hills. Having violated the 1868 Treaty and having reduced the Indians to starvation, the United States should not now be in the position of saying that the rations it furnished constituted payment for the land which it took. In short, the Government committed two wrongs: first, it deprived the Sioux of their livelihood; secondly, it deprived the Sioux of their land. What the United States gave back in rations should not be stretched to cover both wrongs.”
The dissenting opinion suggests, post, at 2750-2751, that the factual findings of the Indian Claims Commission, the Court of Claims, and now this Court, are based upon a “revisionist” view of history. The dissent fails to identify which materials quoted herein or relied upon by the Commission and the Court of Claims fit that description. The dissent’s allusion to historians “writing for the purpose of having their conclusions or observations inserted in the reports of congressional committees,” post, at 2750, is also puzzling because, with respect to this case, we are unaware that any such historian exists.
A further word seems to be in order. The dissenting opinion does not identify a single author, nonrevisionist, neorevisionist, or otherwise, who takes the view of the history of the cession of the Black Hills that the dissent prefers to adopt, largely, one assumes, as an article of faith. Rather, the dissent relies on the historical findings contained in the decision rendered by the Court of Claims in 1942. That decision, and those findings, are not before this Court today. Moreover, the holding of the Court of Claims in 1942, to the extent the decision can be read as reaching the merits of the Sioux’ taking claim, was based largely on the conclusive presumption of good faith toward the Indians which that court afforded to Congress’ actions of 1877.
1980 – Bradley Bill (Senator Bill Bradley, D-NJ). The prime mover behind the Bill was a young Lakota man named Gerald Clifford. Unfortunately, a non-Indian named Phil Stevens (a retired millionaire) claiming to be Sioux from California attempted to introduce a Bill of his own and muddied the waters enough that Bradley withdrew his sponsorship and the Bradley Bill died a quiet death. Under the Bradley Bill the tribes of the Great Sioux Nation would get 1.3 million acres of the 7.5 million acres returned to them. The 1.3 million acres would be strictly U. S. National Forest Service land. No municipalities, no state owned land, no private land or no federal monument lands would have been threatened. Of course, the local media played it to the hilt. “Sioux seek return of the Black Hills” was a common headline. This frightened a lot of non-Indians even though the headline was clearly wrong. Sentiment did turn against the Indians.
In the meantime, South Dakota’s elected officials and the federal government itself believes that all claims to the land were extinguished when the money was awarded. In a way its like telling the Indians, “Here is money for your house and whether you want to sell it or not, here is the money and the house is now ours.”
1982 – Congress abolishes the Indian Court of Claims.
1983 – Dennis Banks, the AIM leader, still under indictment in South Dakota for 1973 Wounded Knee occupation, takes refuge on the Onondaga Reservation in New York State. In 1984 Banks surrenders to officials in South Dakota; he is sentenced to three years in prison
1985 – On February 22, 1985, the Claims Court, without considering the remaining three motions for summary judgment, entered an order implementing the government’s settlement offer of $39,749,000 as its final judgment and terminated Docket 74-A (Sioux Tribe of Indians v. United States, 8 Cl. Ct. 80 ). 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 judgments.”
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. No hearings were held on S. 705 or HR 1506.
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.
1994 – President Clinton invites leaders of all 547 federally recognized American Indian and Alaska native tribes to the White House, the first-ever meeting of its kind. Tribal leaders and U.S. officials identify issues for follow-up conferences.
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.
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
U.S. Code Cong. & Admin. News 1974, p. 6115. See also R. Billington, Introduction, in National Park Service, Soldier and Brave xiv (1963):
The Indians suffered the humiliating defeats that forced them to walk the white man’s road toward civilization. Few conquered people in the history of mankind have paid so dearly for their defense of a way of life that the march of progress had outmoded . . . In three tragic decades, between 1860 and 1890, the Indians suffered the humiliating defeats that forced them to walk the white man’s road toward civilization. Few conquered people in the history of mankind have paid so dearly for their defense of a way of life that the march of progress had outmoded. This epic struggle left its landmarks behind, as monuments to the brave men, Indian and white, who fought and died that their manner of living might endure.
2000 – Head of the Bureau of Indian Affairs admits to crimes, “Remarks of Kevin Gover, Assistant Secretary–Indian Affairs, Department of the Interior, at the Ceremony Acknowledging the 175th Anniversary of the Establishment of the Bureau of Indian Affairs.” Full text at Web site: http://eric.ed.gov/ERICWebPortal/custom/portlets/recordDetails/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED445851&ERICExtSearch_SearchType_0=no&accno=ED445851
“Immediately upon its establishment in 1824, the Office of Indian Affairs was an instrument by which the United States enforced its ambition against the Indian nations. As the nation expanded West, the agency participated in the ethnic cleansing that befell the western tribes. War begets tragedy, but the deliberate spread of disease, the decimation of the bison herds, the use of alcohol to destroy mind and body, and the cowardly killing of women and children made for tragedy on a scale so ghastly that it cannot be dismissed as merely the inevitable consequence of the clash of competing ways of life. After the devastation of tribal economies, the BIA set out to destroy all things Indian by forbidding the speaking of Indian languages, prohibiting traditional religious activities, outlawing traditional government, and making Indians ashamed of who they were. Worst of all, the BIA committed these acts against the children entrusted to its boarding schools. The trauma of shame, fear, and anger has passed from one generation to the next, and manifests itself in the rampant alcoholism, drug abuse, and domestic violence that plague Indian country. The BIA expresses its profound sorrow for these wrongs, extends this formal apology to Indian people for its historical conduct, and makes promises for its future conduct. (TD)
2007 – Unilateral withdrawal of the Lakotah from the Treaties of 1851 and 1868 as permitted under the 1969 Vienna Convention on the Law of Treaties, of which, the United States is a signatory.