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Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

William L. Kovacs

July 2020

Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

Mr. President, in your July 3rd Mount Rushmore speech, in the Black Hills of South Dakota, you exclaimed we are “…the most just and exceptional nation ever to exist on earth.” You have an opportunity to prove it. Honor the 1868 Treaty to re-establish a Sioux Nation Reservation (“Sioux”) on the sacred lands taken from them by military force.

President Obama supported this effort. You have a chance to close, perhaps the largest real estate deal in history.

Your speech was heavy on exceptionalism but avoided mention of the illegal seizure of Sioux lands 143 years ago, a fact recognized by the U.S. Supreme Court in 1980.

The talk about “witnessing a merciless campaign [by protesters] to wipe out our history, defame our heroes, erase our values, …, and unleash a wave of violent crime in our cities, was expected. You called the protestors the “…very definition of totalitarianism,” proposing ten years in jail for anyone damaging national monuments. You made your point, but please do not forget the violence the U.S. inflicted on the Sioux when it wanted their land for passage, gold, timber, and cattle grazing.

As Paul Harvey said – “And now the rest of the story.”

To end the Indian Wars, the federal government and the Sioux negotiated the Treaty of Fort Laramie (1868), pledging to cease the war between the parties forever. The U.S. pledged that the Sioux Nation (parts of North Dakota, South Dakota, Wyoming, Nebraska, and Montana) would be set apart for the absolute and undisturbed use and occupation of the Indians.

The Indians pledged safe travel through their territory, peace and that if any “bad men among the Indians shall commit a wrong or depredation upon the person or property… subject to the authority of the U.S., the Indians shall deliver the wrongdoer to the U.S.”

After ratification, gold was discovered in the Black Hills. Americans demanded to open the territory for settlement. Additionally, the final construction of the Union Pacific Railroad increased travel through the territory.

More settlers and travelers led to clashes between tribes, leading to open hostilities. In 1876, President Grant secretly allowed settlers to move into Indian territory. Grant unilaterally ordered the removal of certain tribes from the territory. In 1877, open war broke out, and the U.S. government annexed the lands protected by the treaty.

From 1877 to 1980, Congress offered money to settle with the Indians, but the Sioux Nation never accepted being forcibly deprived of their lands.

In 1923 the Sioux filed suit in the Court of Claims, but the case was dismissed in 1942. Between 1946 and 1958, Indian claims commissions attempted to determine compensation, and the Court of Claims finally awarded $17. 5 million to the Sioux Nation but without interest from the date of seizure in 1877. The Sioux refused the money.

Litigation continued until 1980 when the Supreme Court ruled since there was a taking of tribal property, there was an “… implied an obligation on the government’s part to make just compensation to the Sioux.” The Supreme Court held that obligation consisted of the $17.5 million Court of Claims damage award, plus interest from the taking date, about $1.5 billion today. The Sioux again refused the money.

Throughout a century of proceedings, the U.S. viewed the taking as an eminent domain proceeding to be settled by money. The Sioux Nation, never relinquished claim to the territory, considering the seizure as a violation of U.S. treaty obligations.

This stalemate is untenable in a democratic society. While the Fifth Amendment of our Constitution requires “just compensation” for the taking of property; it also requires that before the property can be taken, the owners must be extended due process. The Sioux never received due process before the U.S. seizing its property.

The U.S. alternative would be to claim the territory under the right of conquest, extinguishing all Indian rights. This doctrine would merely confirm what happened. The right of conquest was legal in 1868, but presently, it is illegal and perhaps a war crime under Nuremberg Principles. Not a good political move.

President Trump, you can prove the U.S. is still exceptional by abandoning ownership claims to Sioux territory. Most of the land is still sparsely inhabited. Moreover, since the U.S. owns 47% of the west, other adjoining lands may substitute for highly populated areas in the territory.

Resolving this dispute with the Sioux may be the largest real estate deal in history. It will also right a tremendous wrong.

This article was first published in medium.com