Clarifying the Complicated History of Sioux Territorial Sovereignty — or — Why DAPL is NOT a ‘Treaty Lands’ Violation
Amid the controversy surrounding the construction of the Dakota Access Pipeline (DAPL), the Standing Rock Sioux Tribe (SRST) has made frequent mention of “Treaty Lands”. By treaty lands, they mean the territory guaranteed to the Great Sioux Nation in previous treaties, but was subsequently taken away. It is claimed that construction of a project they oppose, within the last freely agreed upon boundaries of their reservation, is an affront to their sovereignty. But what if the SRST were the actual treaty-breakers? It would turn the nationwide debate on its head.
I went on a journey to learn what, if anything, treaty lands had to do with DAPL. What I found was a history of territorial sovereignty not quite like the narrative the SRST likes to spin to the public.
Conventional wisdom assumes that tribes existed pretty much forever, wherever they were found, whenever they were found. The actual, continuous, and exclusive use and occupancy for a “long time” is what’s used to establish aboriginal title. If your tribe is the first or only occupant of a parcel of land for a “long time”, you are legally understood to be the owner of said land. As the owner, you have the right to sell or transfer all or part of the land under jurisdiction of your aboriginal title.
However, contrary to the aforementioned conventional wisdom, Indian migration was very dynamic before pioneers came on the scene. A given tribe may have been encountered for the first time by white settlers in 1830 and only lived there for ten years. It’s quite possible that another tribe had been living in that same space for thousands of years prior, however, without foreknowledge of such a fact, the pioneer would have simply assumed the tribe they encountered had been in that place forever, and entitled to the aboriginal title to that space.
A good example of the foibles of aboriginal title involves the first American treaty with the Lakota (who I will call the Sioux to maintain consistency with the Standing Rock Sioux Nation). When white settlers began arriving on the Great Plains, the Lakota were settled in the Dakotas but prior to that time they had lived in the Great Lakes region. Although the Sioux are considered to be Great Plains Indians, had they been encountered by settlers 150 before they were, we may have called them Great Lakes Indians.
However, in the 17th Century they were pushed westward by the Ojibwa, Cree, and other tribes. Timelines of Sioux history suggest that, after nomading their way westward for a few decades, up to a century, they settled in the Great Plains between 1750-1800. As such, since that’s where white people found them, that’s where white people assumed they’d always been, so when it was treaty time, the treaties guaranteed the Sioux land that they’d really only been on for a few decades to a century.
Although it doesn’t matter much to this article, it should be mentioned that Sioux is not a tribal name. It can refer to any ethnic group within the Great Sioux Nation or to any of the nation’s three major language divisions: the Dakota, Lakota, and Nakota.
It wasn’t until about 1848 that Sioux and white settlers began bumping into each other on a regular basis. In order to prevent conflict and ensure migrant right-of-way, it was suggested that the nearby Indian nations be brought together in council. At a gathering of United States treaty commissioners and representatives of the Cheyenne, Sioux, Arapaho, Crow, Assiniboine, Mandan, Hidatsa, and Arikara nations, the Fort Laramie Treaty of 1851 was signed. The treaty guaranteed (among other things) that, “The territory of the Sioux or Dahcotah Nation, commencing the mouth of the White Earth River, on the Missouri River: thence in a southwesterly direction to the forks of the Platte River: thence up the north fork of the Platte River to a point known as the Red Bute, or where the road leaves the river; thence along the range of mountains known as the Black Hills, to the head-waters of Heart River; thence down Heart River to its mouth; and thence down the Missouri River to the place of beginning.” Thus the boundaries of the Great Sioux Nation were formed.
However, when one scratches the surface, one finds that that Sioux were relatively recent occupants of their treaty lands. In 1823, the Sioux had helped the US Army attack an Arikara village on the Grand River in present-day central South Dakota. From there the Sioux continued pressing north, such that their northern boundary had reached the Heart River of present-day North Dakota in time to sign the 1851 Treaty. Stated another way, the 1851 Treaty granted the Sioux lands they stole from the Arikara only 28 years prior.
But the Arikara weren’t the only ones feeling shortchanged. The 1851 Treaty gave the Sioux exclusive treaty rights to the Black Hills, which didn’t sit well with the Cheyenne and Arapaho. A Cheyenne historian stated in 1969 that, “the Sioux were given right to the Black Hills and other country that the Northern Cheyennes claimed. [The Cheyenne] home country was the Black Hills.” Likewise, in 1875, Arapaho Chief Black Coal complained,“I have never got anything yet for my land [the Black Hills]. It is part mine, and part the Sioux … they came from the Missouri River and reached this place, and now they have got up this far, and they claim all this land.”
What’s this? It sounds as if the Sioux were making out like bandits. The 1851 Treaty gave them lands they had recently conquered from the Arikara, lands that belonged to the Cheyenne prior to the treaty, and lands the Arapahoe were supposed to receive compensation for, but didn’t. Chief Black Coal suggested the Sioux hadn’t even been there very long (arrived in his lifetime, perhaps), had come from the Missouri River valley (central South Dakota), and even then hadn’t been in the Dakotas, much less the Black Hills, for long.
It sounds a lot like all three tribes (Sioux, Cheyenne, Arapaho) felt they had a claim to the Black Hills, which in some sense they did, because they all arrived about the same time! All three tribes were originally located in the Great Lakes region. During the 17th century, the Cheyenne had been driven by the Assiniboine (Hóheeheo’o — ″wrapped ones or swaddled″, adaptive from the Lakota/Dakota word Hóhe, meaning “rebels”) from the Great Lakes region to present-day Minnesota and North Dakota. By 1730, the Cheyenne were reported to have been in the Black Hills. The Cheyenne introduced the horse to Lakota (i.e., Sioux) bands, but probably felt pretty slighted about doing so when conflict with migrating Lakota and Ojibwe people forced the Cheyenne further west. The Cheyenne, being pushed westward, pushed the Kiowa to the south in turn. The story of the Arapaho is a little easier to untangle in that the ancestors of the Arapaho entered the Great Plains from the western Great Lakes region sometime before 1700 and then generally drifted south from Saskatchewan and Manitoba until they found themselves in the Dakotas, forming an alliance with the Cheyenne in 1811.
WHAT DOES ALL THIS HAVE TO DO WITH DAPL?
Understanding the history of territorial sovereignty provides us with a better understanding of present day controversies with regard to controversial subjects like DAPL. Even tho DAPL’s route does not cross the current boundary of the Standing Rock Sioux Reservation, it does cut between the Heart and Cannonball Rivers on the west side of the Missouri River. In 1851, that was well within the legally-recognized and freely agreed upon borders of the Sioux Reservation. With these boundaries in mind, it seems reasonable that the Standing Rock Sioux might see DAPL as an encroachment on their ancestral treaty-established lands. From that perspective, it makes sense that they might be sore about a project they disagreed with being built on land that was stolen from them, and feel as if they still have some standing to assert their rights to that land.
If that were all there were to this debate, I would consider the SRST’s opposition to DAPL to be a reasonable — if dubious— objection. However, there are a few additional wrinkles to this debate.
In 1868, following Red Cloud’s War, a new treaty was established with the Sioux. Under this treaty, the boundaries of the Sioux Nation were modified. Although the prevailing view is that Indians were constantly losing land to encroaching white settlers and colonialist aggression, the Sioux did remarkably well on these transactions. Although the origin of Red Cloud’s War is vague, the result was not. Red Cloud led a remarkably successful campaign against the Americans, killing twice as many Soldiers, as Soldiers killed Braves. With the US Army fighting a losing battle against the Sioux, it was desirable to both parties to end the conflict. Therefore, the belligerents met and the 1868 Fort Laramie Treaty was signed, forming the Great Sioux Reservation. It included many of the same boundaries as the 1851 Treaty, in addition to the ancestral lands of the Ponca. The Sioux, who now claimed the Ponca’s land as their own under US law, forced the US to evict the Ponca from their ancestral home to Oklahoma.
In addition to their newfound gains at the expense of the Ponca, some Sioux land was designated “unceded Indian territory”. According to Article 16 of the 1868 Treaty, “The United States hereby agrees and stipulates that the country north of the North Platte River and east of the summits of the Bighorn Mountains shall be held and considered to be unceded Indian territory, and also stipulates and agrees that no white person or persons shall be permitted to settle upon or occupy any portion of the same; or without the consent of the Indians first had and obtained, to pass through the same.” According to the Indian Claims Commission, the new map of Sioux territory looked like the following. Once again, the Sioux made out like bandits.
Although the precise boundaries of “unceded Indian territory” are a little fuzzy in the 1868 Treaty, it’s safe to say that DAPL respects the “treaty lands” criterion that the #NoDAPL opposition claims it does not. DAPL’s route runs through the area between the Cannonball and Heart Rivers, and not the reservation proper. In so doing, it would be permissible under the terms of Article XI, Part 6, of the 1868 Treaty, which states in part, “[the Sioux] will not in future object to the construction of railroads, wagon-roads, mail-stations, OR OTHER WORKS OF UTILITY OR NECESSITY, which may be ordered or permitted by the laws of the United States.”
Well, isn’t that a stinker? Looks like the Sioux were cool with the United States building infrastructure on their land after all.
- The Standing Rock Sioux Tribe claims that DAPL violates their treaty lands and sovereignty. However, the construction of DAPL — as a utility — is well within the terms their tribe freely agreed to in Article XI, Part 6, of the 1868 Fort Laramie Treaty.
- The Standing Rock Sioux Tribe claims that DAPL may destroy sacred sites in the area between the Cannonball and Heart Rivers. They seem to forget that they stole that land from the Arikara in the 1830s and were only granted title to it by the 1851 Fort Laramie Treaty. Even tho they’ve been nomads from centuries, they seem to think now that they should be forever enjoined to land they were on for all of maybe a century when the treaty was signed. In reality, they only had title to the land that DAPL crosses for about 25 years before it was annexed by the federal government, following the surrender of the Sioux in the Great Sioux War of 1876.
Based on historical analysis of their relations with neighbors and the treaties they use to define their “treaty lands”, the Standing Rock Sioux Tribe’s opposition to DAPL could best be described as uninformed. Take note of the map below:
- There is no “treaty land” violation here. Article XI, Part 6, of the 1868 Fort Laramie Treaty, specifically states, “[the Sioux] will not in future object to the construction of railroads, wagon-roads, mail-stations, OR OTHER WORKS OF UTILITY OR NECESSITY, which may be ordered or permitted by the laws of the United States.” DAPL fits that criterion. Case closed.
- As mentioned in my previous article explaining why every argument (except this ‘treaty lands’ claim) against DAPL is just plain wrong, there are no sacred sites in the path of DAPL. The Sioux were on the land where DAPL’s being placed for all of a few decades. In 1860, there were roughly 16,000 Sioux spread out over half of western South Dakota and adjoining States. The likelihood they decided to conduct enough sacred activity to make any difference, in the northernmost corner, of their reservation is very low.
On that note, let’s have a little chat about sanctity. I can’t define what’s sacred to you, but according to court document this project was held up for months because the Sioux’s description of “sacred sites” revolved around burn pits and pottery fragments. If that’s what you consider sacred, we gotta talk.
If you’re willing to destroy your watershed to host a six-month-long Burning Man in your backyard just so you won’t disturb someone’s ancient campfire, you’re insane; you’re not eccentric, you’re not spiritual, you’re barking mad. There’s no way to sugar coat it. Your religion isn’t so important that you get to ruin the lives of everyone in the region, forcing them to unnecessarily spend tens of millions hosting your rabble, just because you think every blade of grass and drop of dew should be left undisturbed. You’re not protecting the sacred, you’re polluting your water and hurting people. STOP IT. I’ve had just about enough of people who shit in their own water fretting over a pipeline across the same.
Seriously people, it’s a pipe. They put it in the ground, you never see it again, you’ll forget it’s there, it won’t leak, and even if it does, you don’t seem to mind the human waste runoff from 5,000 campers surrounding your water source, so I assure you … you won’t have a problem with DAPL. Let them put it in the ground already and go home.