Priceless Property

• Citation: Vol. 29 No. 3
• Publication year: 2013

Priceless Property

Kirsten Matoy Carlson

PRICELESS PROPERTY

Kirsten Matoy Carlson^*

Abstract

In 2011, the poorest American Indians in the United States refused to accept over one billion dollars from the United States government. They reiterated their long-held belief that money—even $1.3 billion—could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless property by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation. It illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claim's emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps

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to explain why the Black Hills remain priceless property to the Sioux Nation today. The article concludes with a suggestion for successful resolution of the Black Hills claim based on acceptance of the Black Hills as priceless property to the Sioux Nation.

Table of Contents

Introduction.................................................................................687

I. ANew Approach: Narratives In Dispute Formation...........691

II. The Emergence Of The Sioux Claim To The Black Hills ...697

A. Priceless Property: The Sioux And The Black Hills............698
B. From Grievance To Lawsuit: The Communal Narrative Fueling The Black Hills Claim...........................................706

Conclusion....................................................................................724

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Introduction

The people of the Sioux Nation¹ rank among the most economically impoverished in the United States. As Diane Sawyer revealed in a recent episode of 20/20,² the reality for Oglala Sioux living on their traditional lands is especially devastating: eighty percent unemployment, over sixty-one percent of children living below the poverty line, an infant mortality rate five times higher than the national average, and a teen suicide rate of over fifteen percent.³ Their living conditions are marginal at best; thirteen percent of the residents of the Pine Ridge Reservation lack complete plumbing facilities.⁴

Despite this unbelievable poverty, the Sioux Nation has refused to accept 1.3 billion dollars from the United States government.⁵ While 1.3 billion dollars would bring incredible monetary riches to the Nation and its people, the Sioux insist that they cannot accept the money in return for the taking of their beloved Black Hills.⁶ To them, the Black Hills are priceless property. They cannot be replaced. The Sioux cannot accept money for land that was never for sale.⁷

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Accordingly, for the past thirty years, this money has sat— untouched—in the United States Treasury.⁸

To understand why the poorest Indian nations in the United States absolutely refuse to accept over $1 billion requires a closer look at their claim to the Black Hills and how it formed into the largest, still unresolved land claim in United States history.⁹

For over a century, the Lakota, Dakota, and Nakota peoples, collectively known as the Sioux Nation, have contended that the United States government breached the Fort Laramie Treaty of 1868 by illegally expropriating the Black Hills in 1877.¹⁰ They have continuously pursued their legal claim before the Court of Claims, the Indian Claims Commission, and Congress.¹¹ In 1980, the Supreme Court decided to review the Court of Claims' 1979 decision,¹² finding that the United States government had taken the Black Hills without just compensation, in violation of the Fifth Amendment.¹³ The Supreme Court affirmed the Court of Claims' findings and award of $17.5 million plus five percent interest to the Sioux Nation for a total of $122.5 million.¹⁴ The Sioux had finally won. Or had they?

The Sioux did not think so. Even before the courts found for them and awarded them compensation, hints existed that the Sioux did not want money; they wanted the return of their sacred Paha Sapa—the Black Hills.¹⁵ Shortly after the Supreme Court handed down its opinion finding for the Sioux people and compensating them for the illegal taking of the Black Hills, the Sioux refused to accept the compensatory award.¹⁶ Subsequently, Sioux have occupied portions

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of the Black Hills,¹⁷ filed suit in federal courts against the United States government asking for the return of the Black Hills,¹⁸ and worked ardently with Congressmen to secure passage of legislation returning land in the Black Hills to them.¹⁹ None of these endeavors have been successful.²⁰ Over thirty years after their "victory" in the Supreme Court, the Sioux continue to claim that money is not just compensation; they seek the return of the sacred Black Hills.²¹

The Sioux claim to the Black Hills remains one of the largest unresolved claims against the United States government.²² The size of the claim—recent estimates of the award plus interest suggest it is now $1.3 billion²³ —and its longevity are astounding. These facts are made even more amazing by the marginalized living conditions faced by the Sioux people.²⁴ The persistence of this claim suggests a need for a deeper understanding of what it is about, how it arose, and why the Sioux, despite abject poverty, refuse to accept money in lieu of the Black Hills.

This Article provides a more complete understanding of the Black Hills claim, including its genesis and persistence, by combining

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narrative analysis²⁵ with the sociolegal framework²⁶ for understanding the emergence of legal disputes. In Part I, I construct a new approach to understanding dispute formation that combines the sociolegal framework for the creation of legal disputes (dispute formation framework) with narrative analysis.²⁷ I argue that combining the dispute formation framework with narrative analysis greatly enhances our understanding of the dispute formation process.²⁸

In Part II, I demonstrate how useful narrative analysis is to the claims formation process by taking a closer look at the formation of the Black Hills claim at the beginning of the twentieth century.²⁹ First, I set the stage for the Sioux claim by discussing Sioux beliefs that the Black Hills are priceless property.³⁰ By priceless property, I refer to how Sioux beliefs about the Black Hills describe them as so central to Sioux cultural and spiritual identity that they cannot be replaced and are of a value beyond all price.³¹ Then, I use the stories of Zitkala-Sa, a Dakota writer, as a narrative for understanding how the shared dispossession of these sacred lands affected the everyday

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lives of the Sioux people.³² This analysis contextualizes the claim³³ and provides a fuller understanding of why the Sioux perceive the Black Hills to be priceless property.³⁴ The Article concludes with a suggestion for successful resolution of the Black Hills claim based on acceptance of the Black Hills as priceless property and informed by emerging international law.

I. A New Approach: Narratives In Dispute Formation

In this Part, I argue that combining narrative analysis with the sociolegal dispute formation framework provides valuable insights into how parties understand disputes. I maintain that narratives may increase our understanding of dispute formation by suggesting why legal claims emerge out of specific sets of events.

The idea of narratives about the law, or legal narratives, is not new.³⁵ Laws develop within cultures, and the creation of legal meaning "takes place . . . through an essentially cultural medium."³⁶ In giving law meaning, the culture—and often the various communities within it—develops a narrative surrounding the law and its political and social significance.³⁷ These narratives provide the community (and other communities) with a way to understand the meaning of law and its social and political context.³⁸ They "do not

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simply recount happenings; they give them shape, give them a point, argue their import, [and] proclaim their results."³⁹ Narratives help us to understand this system of meaning by providing a way of ordering discourse.⁴⁰

Narratives may be useful not only in understanding the law and the legal system in general but also in understanding disputes. By dispute, I mean "an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other."⁴¹ As conflicts or controversies, disputes fuel the legal system, which is designed to process and resolve them.⁴² Disputes, like laws, "are social constructs."⁴³ Disputes develop over time, and depend upon the meanings given to them by those involved in them. As law and society scholars point out, "a significant portion of any dispute exists only in the minds of the disputants."⁴⁴

While disputes emerge out of human experiences, not all encounters that could materialize into disputes do in fact become disputes.⁴⁵ Rather, disputes depend upon human identification of the event as a dispute.⁴⁶ This process of human identification leads to dispute formation or emergence.⁴⁷ Narratives about personal and collective experiences reflect how individuals and communities perceive what happens to them.⁴⁸ They provide clues as to the meanings assigned to events...