Kirsten Carlson’s “Priceless Property”

Kirsten Matoy Carlson recently published “Priceless Property” in the Georgia State Law Review.

Here is the 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 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.


Atlantic Monthly Article: Why the Sioux Nation Says No to $1 Billion

Here is the article.

An excerpt:

MARIO GONZALEZ IS Oglala Sioux and Mexican and walks like he was once a linebacker. A tribal lawyer for the Sioux, Gonzalez has devoted much of his career to the convoluted fight for the Black Hills of South Dakota—a fight that has already lasted a century. More than 30 years ago, the federal Indian Claims Commission awarded the Sioux what amounted to $102 million for the taking of the Black Hills. But the Sioux didn’t want the money; they wanted their land back. So the money has lingered in trust accounts, accumulating interest. Today, in the name of some of the poorest people in the country, about $1 billion waits untouched in accounts at the U.S. Department of the Treasury.

In his office in Rapid City, Gonzalez told me that he’s hopeful these days; during his campaign, Barack Obama indicated that he would be open to innovative solutions to the Black Hills case. Gonzalez is working with a group of Sioux to put a proposal in front of the president. I’d like to believe something could shift: in my time working in Indian Affairs at the Department of the Interior, from 2005 to 2007, no issue seemed more agonizing.

The struggle of the Sioux on the 17 reservations scattered from Montana through the Dakotas to Minnesota is written in abysmal statistics. More than 80 percent of residents of the Oglala Sioux Pine Ridge reservation are unemployed. Rape is pandemic. According to Oglala President John Yellow Bird Steele, almost half of Oglala Sioux over 40 have diabetes, and in the Western Hemisphere, few countries have shorter life expectancies (for men it is 48; for women, 52).

Tribe members insist that the 1877 act of Congress that moved the Sioux from their sacred Black Hills is not valid: it wasn’t agreed to by enough tribe members, and the land was never for sale in the first place. When the Supreme Court in 1980 affirmed the original award of $102 million, Gonzalez told me, “there was some jubilation among some of the tribal members. But there were a lot of younger people, including me, who felt that the Indian Claims Commission process, as it applied to the Sioux land claims, was a sham, and we should not participate.”

After all, if the land was never for sale, how can you ever accept money for it? Yet the federal courts consider the ownership question to be settled. The ICC had no authority to return land to the Sioux—just to give them restitution in the form of money. “The courthouse doors have been slammed in our face,” Gonzalez says. “Congress and the president are the only viable branches of government that can really resolve these issues.”

Some Sioux want to take the money now, Gonzalez says. “We tell them, ‘Our grandfathers and great-grandparents spilled a lot of blood so future generations could have a homeland that included the Black Hills.’” If the tribes accept the settlement, he adds, “and the money is all gone three years from now, that’s when the Sioux will become a defeated people. That’s when you will see them walking around in shame with their heads hanging.”


Could President Obama Settle the Black Hills Question?

From the Argus-Leader:

A campaign conversation with the man who would become president of the United States has some Sioux leaders thinking they might finally get part of their sacred Black Hills back. And they’re working on a plan to achieve that.

In a May 2008 campaign stop in Sioux Falls, candidate Barack Obama told a gathering of tribal leaders he was open to discussing the Black Hills with them.

In fact, those tribal leaders say, the Obama campaign gave them a proposal that read in part: “Barack Obama is a strong believer in tribal sovereignty. He does not believe courts or the federal government should force Sioux tribes to take settlement money for the Black Hills. … Obama would not be opposed to bringing together all the different parties through government-to-government negotiations to explore innovative solutions to this long-standing issue.”

The promise of such negotiations has Sioux leaders revisiting ideas last considered in the mid-1980s, when New Jersey Sen. Bill Bradley, like Obama a Democrat, proposed that the U.S. government return 1.3 million acres of federal forests and unoccupied park lands in the Black Hills.

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Complaint in Blacks Hills Judgment Case

Here is the complaint in Different Horse v. Salazar — different-horse-v-salazar-complaint — referenced here.

If I were the government, I’d file a Rule 19 motion to dismiss, naming the eight tribes as indispensable sovereigns. 🙂

Black Hills Case Reopened

From the NYTs:

A band of Sioux whose ancestors were driven from the majestic Black Hills more than 130 years ago is seeking hundreds of millions of dollars in compensation, upsetting other tribal members who say taking money for the sacred land would be legitimizing the theft.

A lawsuit filed last week asks a federal judge to release as much as $900 million in compensation and interest that eight Sioux tribes refused decades ago. The tribes insisted instead on return of the rugged land in southwestern South Dakota they lost in military battles that included Custer’s Last Stand.

The dispute has split the tribes. Some 5,000 tribal members have signed up for the class-action lawsuit, but just 19 plaintiffs are listed because many others live on reservations and fear retribution, said lawyer Wanda L. Howey-Fox of Yankton.

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