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The original documents are located in Box 6, folder "Teton Sioux" of the Bradley H.
Patterson Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 6 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
May 29, 1973
To the Traditional Chiefs and Headmen of the Teton Sioux:
Mr. Patterson and the other four White House Representatives who
GERALO FORD LIBRARY
met with you on May 17 and 18 have told me of their conversations
with you and have reported to me the resolutions and proposals which
you have given them.
As we promised, I am responding in writing to each of these resolutions
and proposals.
i. Establishing a Treaty Commission
In 1071, the Congress of the United States passed an Act(16 Stat 566) which
includes language now designated as Title 25 of the United States Code,
Section 71. That language reads:
"No Indian nation or tribe within the territory of the United States
shall be acknowledged or recognized as an independent nation, tribe, or
power with whom the United States may contract by treaty; but no
obligation or any treaty lawfully made and ratified with any such Indian
nation or tribe prior to March 3, 1871, shall be hereby invalidated or
impaired."
What this means is that the days of treaty-making with the American
Indians ended in 1871, 102 years ago. Any changes made in the terms of
tratics or laws relating to Indians have since been made by agre ements
ratified for both Houses of Congress, or by statutes of Congress. Only
Congress can =escind or change in any way statutes enacted since 1871, such
as the Indian Reorganization Act.
There are committees of the Congress which spend a great deal of time
considering the problems and needs of Indian people. One of these com-
mittees, the Senate Interior Subcommittee on Indian Affairs, is going to
be paying a visit to the Pine Ridge Reservation shortly. Insofar as you
wish to propose any specific changes in existing treaties or statutes,
the Congress is, in effect, a Treaty Commission and you should make
sure that your spokesmen appear before the Senate Subcommittee and
present their views as to which treaties or statutes should be amended
and in precisely what way. In fact, I am today writing Subcommittee
Chairman Abourczk and have forwarded to him copies of the resolutions
which you gave to Mr. Patterson during your two days of meetings.
As Mr. Patterson reminded you, the President himself has proposed
additions to and revisions of the old legislation affecting American
Indians. Enclosed is a copy of the President's July 8, 1970 Special
Message to the Congress in which these proposals were first made; they
have been repeated in the years since 1970; they have not yet been enacted
by the Congress; the President still stands by them as embodying the
changes most needed today for the benefit and protection of Indian interests.
The Committees of the Congress most concerned with Indian affairs are
also scheduling hearings on these legislative proposals of the President.
If you support these proposals, or have comments or changes to suggest,
I hope you will arrange to appear before the Committees of the Congress
and present your views.
2. Protecting Mineral and Water Rights
When Mr. Patterson asked you about the areas of concern which your
proposed Treaty Commission would review, you indicated that the pro-
tection of Indians' natural resources rights should be an area of special
attention.
This is likewise an area of special concern to this Administration, and
I would like to tell you some of the specific actions we are taking.
Secretary Morten has established a special Office of Indian Water Rights
within the Bureau of Indian Affairs. That Office has .15 water rights
inventories under way, has assisted in preparing for 14 lawsuits which
have been filed with the courts and is in the process of preparing others.
for filing. The President has proposed that the Congress enact legislation
to create an Indian Trust Counsel Authority to guarantee to Indian people
that there will always bc an unambiguous Executive Branch defense of the
natural resources trust rights of Indian people. The attached Message
describes the importance which the President attaches to this legislation.
Pending the creation of the Trust Counsel Authority, the White House
has initiated an 'arrangement with the Attorney General and the Solicitor
General that whenever Indian trust rights are involved in cases before
any Federal Court, including the Supreme Court, if the government
submits a brief which would, in the Secretary of the Interior's opinion,
damage Indian trust rights, it will at least include in the brief the
argument which sets forth a defense of these rights from the viewpoint
of the Government as a trustee.
In a landmark Indian water rights case, Pyramid Lake, this Administration
has initiated 2 suit directly in the Supreme Court to protect those rights.
The brief we have filed is a statement on Indian water rights, of very
broad applicability, as is evidenced by the following quotation from the
brief:
"No laws authorizing the construction of irrigation projects have
diminished the right to water for maintenance of Pyramid Lake
There
is nothing in the language of the Reclamation Act of 1902 or any of its
amendments that can reasonably be construed to authorize the taking of
waters of the Truckee River. previously reserved for the Pyramid Lake
Indian Reservation, for use on the Newlands Reclamation Project
And we know of no federal legislation that can reasonably be construed
as diminishing the right to the use of water from the Truckee River System
for the maintenance and preservation of Pyramid Lake".
What is needed to assure the protection of Indian natural resources trust
rights is not a "Treaty Commission" but the passage of the Trust Counsel
legislation by the Congress and, hopefully, a favorable Supreme Court
decision in the Pyramid Lake case.
If you know of any specific Indian minerals or water rights matter in the
Teton Sioux area which in your view is not being adequately handled by
the Executive branch, I would appreciate it if you would bring it to my
attention so that we can have the question reviewed.
3. A Referendum Vote
You passed a resolution indicating that it was your wish that a vote or poll
be taken so that it could be ascertained how many of the Teton Sioux people
wanted to go back to the method of Indian government used in 186S, and
amendments can occur only in accordance with the provisions of the
respective articles governing amendment of the documents. In some
cases, such as the Oglala Sioux constitution, this can only come about
either by a valid petition or by a request of the tribal council, as I
explained above.
In others, such as that of the Crow Creck Sioux Tribe, amendments can
be initiated only by a request of the tribal council, while the Cheyenne
River Sioux tribal constitution requires a joint petition and tribal council
resolution.
You recognize that only the Congress can repeal the Indian Reorganization
Act as such, but these three methods exist for determining the wishes of
the Oglala Sioux people.
or these three possibilities, I believe action should be deferred on the third
until it is clearer what the progress and exact timing will be on the first
or second methods. In view of the actual legal effect of the first method
(as compared with the third, which is only an opinion sample and thus
mercly advisory in its effect), and in view of the assurances we have been
given from Pine Ridge, I will recommend to the Secretary of the Interior
that the referendum be one provided in Article XI of the Tribal Constitution.
4. Criminal Jurisdiction
I have carefully reviewed the Resolution which you passed on this subject
and find that in one important part it is factually in error. The cases whi ch
we have been able to identify mentioned in the fourth paragraph of that
Resolution did not occur on Indian Reservation land and are therefore not
matters of federal criminal jurisdiction. In each such case, a State trial
has been held. In each such case a separate inquiry has been made as to
whether any federal statutes were violated and in each such case the finding
has been that they were not. I am sure that the Oglala Sioux people would
prefer to avoid intervening in matters which are now State jurisdiction just
as much as they want the States to avoid intervention in matters exclusively
of Oglala jurisdiction. Adherence to this principle of separation by both parties
would greatly advance efforts to achieve Indian self-determination.
The Bureau of Indian Affairs, with the assistance of the U.S. Marshals Service,
is now upgrading the law enforcement personnel on the Pine Ridge Reservation
through the initiation of appropriate training programs and consideration of
other community services that law enforcement personnel can provide.
5. Civil Jurisdiction
I am very much aware, from the report to me of the White House
Representatives, of your concerns about civil rights enforcement on
the Pinc Ridge Reservation. As Mr. Patterson mentioned to you in
his comments on May 18, this may be a problem on other Indian
Reservations also, and as such it is important to us because the success
of the President's new Indian self-determination policies will depend
on the effectiveness and fairness of Indian tribal governments generally.
The Assistant to the Secretary of the Interior for Indian Affairs,
Mr. Marvin Franklin, has recently spoken in the same vein:
" If we restudy the majority of our tribal governments, we will
find that tribal councils as provided in the constitutions arising from
the Indian Reorganization Act were adequate in those depression days.
But today, the reservations are engaged in multi-million dollar enter-
prises, housing programs, reservation developments, and in contracting
that dictates a need for updating the governing structure. No longer is
the autocratic form adequate to meet the varying needs for assurances
of efficient governmental functions. Many tribes are now revising their
constitutions to provide for those checks and balances between its executive,
legislative and judicial branches with a broader selection for filling those
positions in the hands of the tribal members."
" This is recognized as a key element in the matter of self-deter-
mination and carries a high priority in the Interior Department in working
with tribal governments to make them capable of assuming responsibilities
beyond those now exercised independently."
We have the following responses to your, concern in this area:
a) As referred to in the April 5 Agreement, there has been since
March 26, 1973 a civil rights investigating team active on the Pine Ridge
Reservation. That team's activities are continuing, pursuant to the terms
of the April 5 Agreement. Mr. Patterson introduced some of those officers
to you during your meeting; others will be added and the officer in charge
at the time you receive this letter is Mr. R. Dennis Ickes who can be
contacted in the BLA building in Pine Ridge.
b) Up to this point, this team has received 51 complaints, has investigated
40 of them, with 11 more pending, and has interviewed 356 different
witnesses. In the opinion of the investigating attorneys, only 4 or 5 of
these cases are accompanied by solid enough evidence to warrant
probable Grand Jury action. I urge you, as Mr. Patterson and Mr. Soller
did, to bring any specific complaints you have to the attention of Mr. Ickes
and his special team, so that they can be promptly investigated; but these
complaints must bc supported by hard evidence.
c) To facilitate the presentation of complaints, the civil rights investigating
team tells me that they plan to have a mobile van of lawyers and FBI
personnel visit several arcas of the Pine Ridge Reservation during June 4-8.
These visits will include a visit to Kyle and I am asking Mr. Ickes to
inform you ahead of time of the precise date and time the group will be
at Kyle, so that you and your colleagues can conveniently appear. But
again, I counsel you, you must have specific, hard evidence rather than
merely rumors or allegations.
3) IS view of the national importance of Indian civil rights, the White
House is supporting Assistant Attorney General Pottinger in his decision
to assign attorneys and other staff members of the Department of Justice
to a special Indian Task Force to examine, identify and pursue the special
civil rights problems of American Indians. Indian people must be
guaranteed fair and lawful government, precisely as set forth in the Indian
Civil Rights Act. I am not, in this letter, making any judgments that
any Tribal official at Pine Ridge or any member of any other Tribai Govern-
ment, is in violation of the civil rights statutes; but in fact I am sure
that the elected Tribal Government officials all over the nation support
my statement here and will work with Mr. Pottinger and his staff in
making sure that civil rights guarantees are respected and enforced.
Where investigations are necessary they will be made and follow-up actions
taken.
e) I have spoken to Mr. Franklin and also to the head of the Department
of the Interior's team of lawyers which is drawing up a model code for
the administration of Justice in Indian courts pursuant to 25 USC 1311.
I have asked both of them to accelerate their efforts to design further
guarantees for fairness, for the separation of powers and for effective
civil rights enforcement in Indian arcas, including, but not limited to,
all the Tcton Sioux. reservations.
1) Now present on the Pine Ridge Reservation and actively examining
the financial records of both the Tribal Council and the Bureau of Indian
Affairs is a special team from the independent accounting firm of Touche,
Ross and Company. We expect that their report will be finished by
July 26 and I am assured that their final summary report will bc available
to any member of the Oglala Sioux Tribe who wishes to inspect it. In
our opinion, financial accountability of governmental bodies -- whether
Indian or non-Indian -- to their citizens is as important as the civil
rights guarantees I mentioned carlier.
g) An essential part of civil rights guarantees for minority or dis-
advantaged citizens is access to legal services. I do not know how many
of the Teton Sioux peoples have had the benefits of a legal services program
on their respective Reservations, but I will promise you that as soon as
the new. Legal Services Corporation which the President has recommended
is created by the Congress, I will recommend to the Board of the Corporation
that they consider supporting an effective Indian Legal Services program,
including the Oglala Sioux. My recommendation would not be binding on
the new Corporation, but I feel certain they would give it full consideration.
h) During the meetings of May 17-18, Datterson noted at least one
reference to what he understood as Social Security benefits not being
made available to an allegedly eligible Indian individual. If you will give
us the names and Social Security numbers of any Teton Sioux Indians whem
you claim are improperly being denied social security benefits, we will
be glad to have their cases checked by the proper authorities here.
6. A Second Meeting
You have expressed a desire to have a second meeting with White House
representatives, and have suggested May 30 at Kyle.
Please permit me to make an alternative suggestion: a second meeting
may turn out to be usciul, but first I need to have your comments, in turn,
on the substance of this letter. We need to have them in writing so that the
five White House representatives can consider them and go over them
with our colleagues in the Executive Branch.
-9-
I therefore respectfully suggest that this step be taken first, and that
you, the traditional chiefs and headmen, personally put in writing the
suggestions, questions or comments you have in response to this com-
munication. Then I suggest that we arrange our second meeting within
a few weeks after I receive your comments and I am prepared to set
a definite date for that meeting as soon as your comments have been
received.
It is requested that in your letter you identify by name and address the
specific traditional chiefs and headmen from the Teton Sioux Reservations
who should be invited to the second meeting. In order to ensure a
businesslike and productive meeting, we would like your guarantee that
the Indian side will be represented by just these named chiefs and head-
men and your counsel, Mr. Robidoux.
7. "Other Wounded Knees"
Mr. Patterson tells me that during your talks, several Indian speakers
referred to the likelihood of other confrontation situations in the future.
Gentlemen, I must repeat to you what Mr. Patterson himself emphasized:
instigation of further civil disturbances and violations of local or federal
law will only bring grief to Indian people themselves. Indians will lose
much of the sympathy and support they now enjoy from this Administration,
from the Congress and from the public. The possible actions I have
indicated in this letter will become much less possible; the passage of
constructive legislation will become less likely. I am confident that
you and Indian leaders throughout the country, being genuninely interested
in meeting the needs of Indian people, want to accomplish this in a positive
way and will reject the false advice of those who would only lead you back-
wards.
I look forward to hearing further from you.
Sincerely,
Accound MarrieoX
Leonard Garment
THE WHITE
WASHINGTON
January 8, 1974
Dear Chief Fools Crow and Matthew King:
On behalf of the President, I want to thank you for your letter of
November 19 to him, and for the specific questions you enclosed in
the Bill of Particulars which Vine DeLoria delivered to Brad Patterson.
We promised to have a detailed response 10 the specific questions, and
the enclosure to this letter, prepared principally by the Department of
Justice, constitutes that response. As you asked, the response avoids
rhetoric and "soothing words" in its answers and confines itself to facts
of history and law, with citations of statutes and Court decisions: By
way of preface, however, I would like to add a personal word.
The Sioux people have been raising questions about the implementation
of the Government's treaties with the Sioux since the 1920's. At that
time, the special place in the judicial branch which the Congress authorized
to review and decide those questions and claims was the U.S. Court of
Claims. Between the 1920's and 1946, the Sioux filed eleven claims cases
before the Court oi Claims.
The eleven cases were resolved in favor of the United States Government,
with the Court of Claims finding that either the United States had fulfilled
its Treaty obligations, or that the Government had paid the Sioux more
than the damages which they had sustained.
In 1946, a new avenue for claims was opened up to Indian people by the
creation of the Indian Claims Commission. As the answer to question four
here indicates, the Western Sioux today have seven pending dockets before
the Indian Claims Commission; there has not yet becn a final decision in
any of these seven.
Your letter therefore comes at a time when some of the very issues of
concern to you are in fact being adjudicated by the special body which the
Congress has established for this purpose. I am avare that the process
of reviewing these seven claims has been lengthy, out at each stage of the
review, certain appeals have been filed by the attorneys for the Sioux--
as is of course their right. The result, however, is a prolonged adjudi-
cation process. But it is still going on and final decisions will eventually
come. If the Sioux win, the compensation awards by the United States
to the Sioux will amount to many millions of dollars.
As the enclosed response indicates, if you have any complaints about
how these suits are proceeding you should contact the attorneys who
have long been retained by the Oglala Sioux people to represent them in
these lawsuits.
You are also aware, of course, that your communication to the President
is not the official position of the Oglala Sioux. That can come only from
the elected Tribal Council and Tribal Officers of the Oglala Sioux. We
respect your right to differ with the Tribal Council and to send us your
views; in fact the five White House representatives who spent two days
with you and your colleagues last May came especially to receive those
views and to hear you and your associates who spoke to them. But, as in
any democratic society where there is contention and differing opinions,
the proper court of last resort is the ballot box. Fortunately, the Oglala
Sioux people are about to have the opportunity to express their views and
to give their governing mandate to candidates of their choice shortly in
an election at the Pine Ridge Reservation. The United States Government
is totally neutral with respect to the outcome of that election, and we look
forward to working closely with whatever Tribal Council and Officers
receive the mandate of the Oglala Sioux electorate.
Meanwhile, I believe that the enclosed answers are as specific, complete
and detailed as possible. This is what you requested and this is what we
have endeavored to do. What these answers say, in sum, is that the
1868 Treaty is still a valid legal document, with its obligations still in
force except insofar as any of them have been changed by the Congress,
by the parties, satisfied by litigation or expired - and that has happened in
several specified instances. I note that you plan to study our response and
reply to us once more. If your understandings on any of these questions
are different from ours, we will welcome that further word from you.
I think these exchanges are more useful than further large meetings at this
time, since they may help to define with greater. precision what it is about
the 1868 Treaty and its implementation that is troubling you and your colleagues.
In closing, I express ti.c hope that both you as Indian people as well as
those of us working in the area of Indian affairs in the Federal Government,
will look ahead and not just backwards. I have no desire or inclination to
defend the past two centuries of treatment of Indian peoples. In many
instances, they were centuries marked by shameful conduct toward
Indians by the Federal Government, The President has broken with that
past and in his Message of July 8, 1970 set an agenda for the future which
is in a fundamentally new direction. I hope you and your associates will
join with us and with the principal nationwide Indian organization in working
for the achievement of that agenda.
It is not enough to curse history to undo or repair historic wrongs. What
is essential is realistic and sustained action using the intelligence and
energy of all those persons and groups in and out of government who under-
stand the legitimacy of Indian grievances and the compelling need to act
on them.
Sincerely yours,
/Innord Sameent
Leonard Garment
Assistant to the President
Chief Frank Fools Crow
Mr. Matthew King, Chairman
Oglala Sioux Treaty Council
Oglala, South Dakota
attachment
Question No. 1
Does the United States of America regard the Treaty
of April 29, 1868, 15 Stat. 635, ratified February 16, 1869,
and proclaimed by the President of said nation on February
24, 1869, as a valid legal document binding the Lakota Nation
and the United States in a legal relationship?
Answer No. 1
Insofar as the 1868 Treaty has not been changed by the
parties, changed by legislation, satisfied by litigation, or.
expired it is binding on the parties to the same extent that
other treaties are binding and is a valid legal document. The
extent of its modifications and of its binding effect on the
parties is developed more fully below.
Question No. 1(a)
If the United States does not regard this treaty as a
valid and legally binding document at what point did the
United States disclaim or deplare invalid such treaty?
Answer No. 1 (a)
To our knowledge, the United States has never disclaimed
or declared invalid the 1868 Treaty as a whole. As noted,
portions have been modified, revoked, superceded, or satis-
fied.
- 2
Question No. 1 (b)
If the United States does not regard this treaty as a
valid and legally binding document, what document does the
United States regard as legally binding upon either party
or both parties?
Answer No. (b)
The extent to which provisions of the 1868 Treaty have
since been modified and the extent to which they have not
been modified, and thereby remain as active treaty commit-
ments, are shown below.
Question No. 1 (c)
If the United States does not regard this treaty as
valid and legally binding upon it, what is the basis for the
claim by the United States that it has any jurisdiction over
the people of the Lakota Nation, at all?
Answer No. (c)
As noted in Answer No. 1, above, the United States does
regard the 1868 Treaty as valid and as binding as other
treaties to the extent its provisions have not been changed
or satisfied.
Even in the absence of jurisdictions conferred by treaty,
it is well established that the United States has general
jurisdiction over Indian tribes. See Stephens V. Cherokee
Nation, 174 U.S. 445, 478 (1899) ; Lone Wolf V. Hitchcock, 187
U.S. 553, 565-566 (1903) ; Choate " Trapp, 224 U.S. 665
(1912); Shoshone Tribe V. United States, 299 U.S. 476 (1937)
Sioux Tribe V. United States, 97 Ct. Cl. 613 (1942). In
Federal Indian Law, G.P.O. 1958, page 21 (and the cases cited
LIBRAT
- 3 -
in support thereof), it is, said:
At the outset we wish to emphasize the
fact that the exercise of these plenary
constitutional powers, which emanate from
the people, cannot be limited by treaties
so as to prevent later repeal, modification,
or adjustment of the treaty provisions by
Congress in the exercise of its constitu-
tional powers, insofar as they are operative
as law within the United States and its
possessions. The plenary power of Congress
over the Indian tribes, as long as they
continue to exist as such, and their tribal
property, cannot have been rendered in-
/
effectual by any Indian treaty.
Plainly the law gives Congress jurisdiction over the
Sioux tribes, the same as is provided over all other Indian
tribes in the United States.
Question No. 2
What is the current status of the 1868 Treaty?
Answer No. 2
The obl gations assumed under the 1868 Treaty remain
obligatory upon the parties to the same extent that other
treaty obligations are obligatory insofar as they have not
been satisfied or changed.
Question No. 2 (a)
What articles of this treaty does the United States
regard as binding upon it?
Question No. 2(b)
What articles of this treaty does the United States
believe that it has fulfilled?
4
Answer Nos. 2 (a), 2(b)
Standing alone the questions are rather broad. Many of
them, however, are answered below as part of the specific
answers to later questions. Additional answers can be made
if additional specific questions are posed.
Question No. 2(c)
What articles of this treaty does the United States
admit having not yet fulfilled?
Answer No. 2 (c)
None, in the sense that the United States has failed either
to perform or satisfy the obligations assumed. See generally
Sioux Tribe V. United States. 95 Ct. CI. 72. 81 (1941):
Plaintiffs' suit therefore is based
primarily on the alleged violations of
the treaty of 1868, or failure to ful-
fill its obligations.
*
The Court concluded:
We hold that the obligations of the
treaty of 1868 have been complied with
both in fact and in effect.
Also see with respect to general annuities, Sioux Tribe V.
United States, 85 Ct. C1. 181, 195 (1937), cert. den. 302
U.S. 717:
This amended petition presents the
claim of the Sioux Tribe of Indians for
damages sustained by the alleged failure
- 5 -
of the United States to fulfill its obliga-
tions with reference to annuities promised
to be paid to the Sioux Indians in the form
of property or money by the treaty of April
29, 1868.
The Court concluded:
Under our construction of the
language used in the treaty, it is clear
that plaintiff cannot recover.
For additional details of the United States' performance
of its 1868 Treaty obligations, see answers below.
Question No. 3
With respect to Article I of said treaty, we regard the
dispatch of federal marshals to the Pine Ridge Indian Reserva-
tion last winter as a violation of said article in that such
behavior violates the provision and promise of Article I that
the United States "desires peace, and they now pledge their
honor to maintain it. " How does the United States justify its
invasion of the lands of the Oglala Band of the Lakota Nation
by federal marshals last winter?
Answer No. 3
We are unable to see how dispatching the Federal marshals
to the Pine Ridge Indian Reservation violates the United States
1868 pledge to try to maintain peace. This would appear to us
to be a performance of the pledge rather than a violation
thereof. One of the purposes of sending United States marshals
to the reservation was to preserve the peace as promised in
Article I of the treaty.
- 6
With respect to the conduct of those marshals and the
other Federal law enforcement officers last year, a distin-
guished Indian author and critic has written:
The federal government proved to be in-
credibly patient with the AIM militants. It
was apparent that several federal laws had
been broken, and the conservative Indians
demanded that the government use force to
remove the armed occupants of Wounded Knee.
The administration felt, however, that the
saving of lives was more important than
enforcing the law in a rigid manner. To
prevent bloodshed, it conducted prolonged
negotiations with the embattled Indian
protesters, thereby winning the gratitude
and confidence of the great majority of
Indians whose strongest concern was to
prevent any loss of life.
It is clear, however, that a new stage in
Indian affairs has arrived which can only be
solved by fundamental changes in the status
and policies of tribal governments. Such
basic changes cannot be settled either by the
Indians or the federal administration. Under
the U.S. Constitution, only the Congress can
legislate new policy in the field of Indian
affairs; so future solutions will have to wait
on the cumbersome process of legislation,
preceded by the hard work of intelligent and
informed persuasion of a majority of the
Congress. [Footnote: From "The New Activism"
in DIALOGUE, 1973, Vol. 6, # 2, edited by USIA,
pages 11-12.]
7
Question No. 4
With respect to Article II of said treaty, we regard
the building of dams on the Missouri River as a violation
of the treaty which continues until the present in that the
United States has unilaterally and unconstitutionally deprived
the Lakota people of their rights to use all of said Missouri
River, the totality of said river laying within the boundaries
of the Lakota Nation. What position does the United States
take with respect to this violation?
Answer No. 4
The descendant tribes of the ancestral Sioux groups who
entered into the 1868 Treaty are presently suing the United
States under the provisions of the Indian Claims Commission
Act of August 13, 1946, 60 Stat. 1049, 25 U.S.C. sec. 70.
Their case alleging claims based on the 1858 Treaty is docketed
as No. 74, before the Indian Claims Commission. Docket No. 74-1
embraces their claims based on the Acp of February 28, 1677,
and Docket Nos. 115-119 request accountings by the United State:
for failing to perform treaty obligations. These suits may
embrace, at least In part, the complaint set forth in Question
No. 4, above. However, to make sure that the complaints
contemplated under Question No. 4 are intended to be included
in the Indian Claims Commission litigation, we recommend that
Messrs. Foolscrow and King contact the Sioux attorneys handling
the litigation. They are:
Marvin J. Sonosky, Esquire
2030 I.I Street, N. W.
Washington, D. C. 20036
Arthur Lazarus, Jr., Esquire
600 New Hampshire Avenue, N. W.
Washington, D. C. 20037
William Howard Payne, Esquire
1086 National Press Building
Washington, D. C. 20004
to 8 -
These Sioux attorneys should also be contacted for confirma-
tion of, or exceptions to, the other answers set forth in
this memorandum which relate to the claims, or possible
claims, presented under the Indian Claims Commission Act.
Question No. 5
With respect to Article III of said treaty, we regard
the acts of the United States consequent to the Treaty of
1868 as violations of this article in that we are unaware of
any effort by the United States to determine the amount of
arable land suitable for the people of the Lakota Nation.
Does the United States maintain that it has fulfilled this
article of the treaty? If so, when? And how?
Answer No. 5
Article 3 of the 1868 Treaty provided:
If it should appear from actual survey. or
other satisfactory examination of said tract
of land that it contains less than one hundred
and sixty acres of tillable land for each person
who, at the time, may be authorized to reside
on it under the provisions of this treaty, and.
2 very considerable number of such persons
shall be disposed to commence cultivating the
soil as farmers, the United States agrees to
set apart, for the use of said Indians, as
herein provided, such additional quantity of
arable land, adjoining to said reservation,
or as near to the same as it can be obtained,
as may be required to provide the necessary
amount.
It appears that not "a very considerable number" of Sioux
were "disposed to commence cultivating the soil as farmers"
in the years following the 1868 Treaty. In fact, very few
were. See Sioux Tribe V. United States, 86 Ct. C1. 299 (1938)
cert. den. 306 U.S. 642, and Sioux Tribe V. United States,
so 9
89 Ct. Cl. 31 (1939), discussed below, Accordingly, in the
absence of a specific showing to the contrary, the United
States maintains that it has fulfilled Article 3 of the treaty.
Question No. 6
With respect to Article V of the treaty, we maintain that
the United States has failed to enforce the provisions of this
article to the benefit of the Lakota people and that far from
keeping the agent's office open to investigate cases nf depre-
dation on person and property the agent and his successor the
superintendent have aided and abetted such depredations and
that their actions led directly to the confrontation at Wounded
Knee. If the United States feels that it has performed Its
dutics under this article in good faith, can if 11st its efforts
to perform its duties and their results?
Answer No. 6
Article 5 of the 1868 treaty provides 28 follows:
The United States agrees that the agent
for said Indians shall in the future make
his home at the agency-building; that he
shall reside among them, and keep an office
open at all times for the purpose. of prompt
and diligent inquiry into such matters af
complaint by and against the Indians as may
be presented for investigation under the
provisions of their treaty stipulations,
as also for the faithful discharge of other
duties enjoined on him by law. In all cases
of depredation on person or property he
shall cause the evidence to be taken in
writing and forwarded, together with his
findings, to the Commissioner of Indian
Affairs, whose decision, subject to the
revision of the Secretary of the Interior,
shall be binding on the parties to this
treaty.
- 10 -
Since the signing of the treaty and the establishment
6£ the original agency, the Sioux people have continuously
had a resident agent. With the subsequent establishment of
separate agencies for the Sioux groups, each has had its own
agent (superintendent). Most recently, a separate agency has
been established for each of the successor groups on the
Lower Brule and Crow Creck nation reservations.
The Pine Ridge agency alone--for the Oglala Sioux--is
staffed by some 400 employees, far more than anticipated by:
the treaty.
All these agencies are administering programs for the
benefit of the Sioux people considerably in excess of what is
called for under the treaty. The grand total made available
through the BIA during 1973 to carry out programs for the
benefit of those Sioux people whose ancestors signed the 1868
Treaty, and to maintain the agencies, was approximately $23
million. This is an increase of some $17 million over the
amount extended during 1967, only five years earlier. Federal
agencies other than the Indian Bureau are programming funds
equal to, if not surpassing, those expended by the Bureau.
We can contend, therefore, that the Government has complied
with its responsibility that its agent faithfully discharged
the duties enjoined on him by law.
The respective agencies are open to all Sioux people.
Many complaints have been received and are acted upon daily.
With respect to "depredation claims" either by or against
Indians, our records do not disclose that any such claims have
been filed under the Treaty of, 1868. Should you be aware of
any such cases and would advise us of specifics, we will revie:
them and furnish you with a report.
If, by "depredations," Chief Foolscrow means the allega-
tions which he and his associates have raised concerning recent
civil rights violations, the actions of the United States have
been diligent and full. Some fifty complaints were brought to
the Government's attention. The Civil Rights Division of the
Department of Justice and the Federal Burcau of Investigation
investigated all of them. They interviewed over 170 witnesses
FORD
M 11 -
None of these investigations has yet turned up anything
substantial enough to give the United States a prosecutable
case. If by "depredations, Chief Foolscrow means allegations
about funds being misused by the Oglala Tribal Council or by
the Bureau of Indian Affairs at Pine Ridge, the United States
again responded promptly last Spring, and contracted for an
outside firm (Touche, Ross) to do a complete audit in both
places. The results of the audit reveal that although there
has been some sloppy bookkeeping for years by both government
and Indian offices, there was no basis for criminal charges
in either place.
Question No. 7
With respect to Article VI of the treaty, we maintain
that the procedures described in this article were the ONLY
means open to either the Lakota people or the United States to
allot the lands of the Lakotas. We maintain that the United
States, in fraudulently allotting the lands of the Lakotas has
violated this article of the treaty, Does the United States
claim that it has either fulfilled or followed the procedures
described in this article in making allotments of the Lands
of the Lakotas? If SQ, how?
Answer No. 7
The first two paragraphs of Article 6 of the 1868 Treaty
provided:
If any individual belonging to said tribes
of Indians, or legally incorporated with them,
being the head of a family, shall desire to
commence farming, he shall have the privilege
to select, in the presence and with the assist-
ance of the agent then in charge, a tract of
land within said reservation, not exceeding
three hundred and twenty acres in extent, which
tract, when so selected, certified, and recorded
in the land book' as herein directed, shall
cease to be held in common, but the same may be
occupied and hold in the exclusive possession
of the person selecting it, and of his family,
so long as he or they may continue to cultivate
it..
- 12 -
Any person over eighteen years of age, not
being the head of a family, may in like manner
select and cause to be certified to him or her,
for purposes of cultivation, a quantity of land
not exceeding eighty acres in extent, and there-
upon be entitled to the exclusive possession of
the same as above directed.
Since the record shows that but a relatively few Sioux were
inclined 1:0 farm following the 1868 Treaty, it appears that
the benefits of this sixth article were utilized by the Sioux
only to a. minor degree. In Sioux Tribe V. United States, 86
Ct. C1. 299, 302-303 (1938), cert. den. 306 U.S. 642, this
account of the post-1858 conditions is set forth:
In the years immediately following the treaty
of 1868 there was little change in the mode of
life of the Sioux Indians. Only a few of them
complied with the provisions of the treaty and
settled at the various agencies along the Missouri
River. The great bulk continued to roam as before
over their vast reservation.
The Court also noted in the same case that (p. 305) :
The facts [as of 1886] do not show the
nature or extent of farming operations by
each of the families shown in the Commis-
sioner's report as being engaged in agri-
culture, but a division of the total number
of acres reported as being cultivated at the
various agencies on the reservation by the
number of families reported as 'engaged in
agriculture' at such agencies, shows that
the families at the Cheyenne River Agency
cultivated 2.16 acres: at Crow Creek and
Lower Brule, 4.71 acres: at Pine Ridge,
2.11 acres: at Rosebud, 3.74 acres; at
Standing Rock, 2.95 acres; at Fort Peck,
1.39 acres; and at the Santce and Flandreau
Agency, 20.30 acres, or an average at all
the agencies of 3.58 acres. * * *
- 13 -
See, to the same effect, Sioux Tribe V. United States, 89
Ct. C1. 31 (1939). From the above, it would appear that
there was but a small demand for allotments under Article S
and that it violation of the provision by the United States
was improbable.
Moreover, with the enactment of the Act of February 28,
1877, 19 Stat. 254, and the Act of March 21, 1889, 25 Stat.
888, these allotment previsions no longer applied to the Black
Hills tract and other substantial portions of the Great Sioux
Reservation. With respect to these latter lands and any others
that were subsequently excluded from the reservations, the
United States was free to allot the same to non-Indians to the
extent that the law provided.
On the above record, we submit that the United States
fulfilled the obligations of Article 6. Moreover, since the
obligation endured for no more than a reasonable time after
the 1868 Treaty (Cf. Sioux Tribe V. United States, 86 Ct. C1.
299, 306-3.07 (1938), cert. den. 306 U.S. 642), the obligations
under the article expired many years ago.
Question No. 8
With respect to Article VII of the treaty, we maintain
that this article provides for a special and ongoing educa-
tional program for the Lakota people. We maintain that the
United States has not fulfilled the provisions of this article
and remains liable to the Lakota people in the field of
education. Does the United States maintain that it has ful-
filled this article of the treaty? If so, how?
- 14
Answer No. 3
Article 7 of the 1868 Treaty provides as follows:
In order to insure the civilization of
the Indians entering into this treaty, the
necessity of education is admitted, especially
of such of them as are or may be settled on
said gricultural reservations, and they
therefore pledge themselves to compel their
children, male and female, between the ages
of six and sixteen years, to attend school;
and it is hereby made the duty of the agent
for said Indians to SCC that this stipulation
is strictly complied with; and the United
States agrees that for every thirty children
between said ages who can be induced or
compelled to attend school, a house shall
be provided and a teacher competent to teach
the elementary branches of an English
education shall be furnished, who will reside
among said Indians, and faithfully discharge
his or her duties as a teacher. The pro-
visions of this article to continue for not'
less than twenty years.
The Sioux have already sued the United States upon this article
of the 1868 Treaty. The decision is reported, Sioux Tribe V.
United States, 84 Ct. C1. 16 (1936), with the Supreme Court
denying certiorari at 302 U.S. 740 (1937). The Sioux claim
was described by the Court of Claims as follows (p.!25)
This Indian case now before the court
is predicated upon an alleged failure of the
Government to comply with a treaty obligation
and an act of Congress respecting the educa-
tion of the children of the Sioux Tribe of
Indians between the ages of six and sixteen
years.
The Court went on to explain that the obligation involved
was Article 7 of the 1863 Treaty, as quoted above, and that
the act involved was that of March 2, 1889, 25 Stat. 888,
with section 17 reading as follows:
That it is hereby enacted that the seventh
article of the said treaty of April twenty-
ninth, eighteen hundred and sixty-eight,
securing to said Indians the benefits of educa-
tion, subject to such modifications as Congress
shall deem most effective to secure to said
Indians equivalent benefits of such education,
shall continue in force for twenty years from
and after the time this act shall take effect;
The Court pointed out (84 Ct. C1. at 26):
The record establishes that for a long
period of time the Government did not strictly
observe the provisions of the seventh article
of the treaty of 1868 or Section 16 [should be
17] of the act of 1889 with respect to furnish-
ing the educational facilities provided therein.
The Court, however, thereafter explained that there were
good reasons why the United States did not strictly observe
the provisions as written. On pages 27-28 it noted:
The plaintiffs say that the Government is at
fault if a sufficient number of Indian children
could not be compelled or induced to attend
available Indian schools, because the seventh
article of the treaty of 1863 'made iL the July
- 16 -
of the agent for said Indians to see that
this stipulation is strictly complied with.
Again it is contended that the Covernment's
failure in adopt the mancatory principles of
compulsory education places it in a position
where no benefit may accrue to a wrongdoer.
The Court then held (p. 28):
The contention is, we think, without merit.
The Indian parents pledged themselves to compel
attendance. The parents, not an Indian agent,
possessed the authority to enforce obedience.
True, the agent could induce attendance, but
for him to seek to compel, as some of them did,
was but to invite the demonstration of serious
hostility, which actually occurred. Aside from
this, however, the duty mentioned was to see to
it that, when the status quo mentioned in the
treaty obtained, the treaty provisions with
respect to schoolhouses and teachers would be
strictly adhered to, The burden of proof rests
upon the plaintiffs to sustain their case.
The Court went on to state that (p. 35) :
The Government was under no treaty 061:84-
tions to furnish schoolhouses and teachers If
pupils could not be compelled or induced to
attend school. Assuredly the treaty provisions
were not intended to obligate the Government to
do a useless thing, and from this record iL is
impossible to find that, in the early history of
the treaty relationships obtaining, anything like
5,785 Indian children of the designated ages were
annually available for schooling.
On page 36 it had this to say:
What the record does establish is the fact
that in 1868 and for many years thereafter the
unsettled and chaotic condition of the Sioux
Tribe of Indians was such that strict complience
with the treaty of 1868 was an impossibility.
- 17 -
And the Court denied liability concluding that (p. 41):
we believe the Government furnished in
the early history of the treaty school facil-
ities in excess of the demand for them from
the Indians themselves.
In view of the above holding, we answer Question No. 8 in
the affirmative: Yes, the United States has fulfilled its
obligation under Article 7 of the 1868 Treaty. Moreover, since
the Article 7 provision (as extended by the 1889 Act) expired
at the end of 40 years, it is no longer an active provision of
the 1868 Treaty having expired over 60 years ago.
Nonetheless, the Bureau of Indian Affairs of course con-
tinues to provide educational services to the Sioux people. On
the Oglala Reservation, for instance, the Fiscal Year 1974 educ
tional services budget totals $4,878,000 and involves education
services to 2,907 Oglala children and 155 adults, from pre-scho
to college scholarships, and adult training. As far as we kno:
no Oglala child is today denied schooling because of any lack
schoolhouses or teachers, and 200 young Oglala men and women
receiving post-secondary scholarship assistance.
Question No. 9
With respect to Article VIII of this treaty, we demand an
accounting of the fulfillment by the United States of the pro-
visions of this treaty.
Answer No. 9
Article 8 of the 1868 Treaty provided:
When the head of a family or lodge shall
have selected lands and received his certificate
as above directed, and the agent shall bc satis-
fied that he intends in good faith to commence
cultivating the soil for a living, he shall be
entitled to receive seeds and agricultural imple-
ments for the first year, not exceeding in value
one hundred dollars, and for each succeeding year
he shall continue to farm, for a period of three
years more, he shall be entitled to receive seeds
and implements as aforesaid, not exceeding in value
twenty-five dollars
The Sioux have heretofore sued the United States on its
failure to perform these Article 8 provisions. Sioux Tribe V.
- 18 -
United States, 89 Ct. C1. 31. (1939). The Court there
described the claim as follows (p. 31):
Plaintiff tribe seeks to recover $782,545.54
for the alleged failure of the United States
to fulfill its alleged obligation under Art. 8
of a treaty entered into in 1868 to furnish
seeds and agricultural implements to 4,549
heads of families alleged to have been right-
fully entitled to such articles of the value
of $175 each. From the amount of $796,075
thus obtained plaintiff deducts $13,529.46
actually expended by the defendant for seeds
and agricultural implements, and the balance
of $782,545.54 is sought to be recovered in
this suit.
The Court went on to show that there was very little demand
by. the Sioux for seeds and agricultural implements at that
time (pp. 33-37) and concluded (p. 38):
Art. 3 of the treaty was not a continuing
obligation of the Government, and we think a
period of ten years over which the Secretary
of the Interior held the appropriation, total-
ing $94,000 made by Congress, for the purpose
of / purchasing selected lands and in good faith
commenced farming for a living was a reasonable
period of time.
In view of the above, our answer to Question No. 9 is
that the United States has already accounted to the Sioux for
Article 8 obligations.
Question No. 10
With respect to Article X of this treaty, we demand an
accounting of the fulfillment by the United States of the
provisions of this treaty.
- 19 -
Answer No. 1)
Article 10 of the 1863 Treaty provided:
And it is hereby expressly stipulated
that each Indian over the age of four years,
who shall have removed to and settled per-
manently upon said reservation and complied
with the stipulations of this treaty, shall
be entitled to receive from the United States,
for the period of four years after he shall
have. settled upon said reservation, one pound
of meat and one pound of flour per day, provided
the Indians cannot furnish their own subsistence
at an earlier date. And it is further stipulated
that the United States will furnish and deliver
to each lodge of Indians or family of persons
legally incorporated with them, who shall remove
to the reservation herein described and commence
farming, one good American cow, and one good
well-broken pair of American oxen within sixty
days after such ledge or family shall have so
settled upon said reservation.
In the case of Sioux Tribe V. United States, 86 Ct. C1.
299 (1938), cert. den. 306 U.S. 642, the Sioux Tribe sued on
this provision of the treaty with the Court of Claims describing
their claims in these words (p. 306) :
It is the position of the plaintiff that under
the stipulation of Art. 10 of the 1868 Treaty
with the Sioux Tribe of Indians the United States
was obligated to furnish one COW and a pair of
oxen to each and every family in the Sioux Tribe
which removed to the reservation at any time and
which, at any time, thereafter, commenced to
farm. On this basis it is contended that the
Covernment incurred an obligation under Art. 10
of the treaty of $210 a family, or $955,290.
After deducting the amount of $126,000 expended
by the Government for the purposes mentioned
under Art. 10, plaintiff seeks judgment for
$829,290.
20
The Court then noted the United States' contentions
in this fashion (pp. 306-307) :
Defendant contends that the primary purpose
of the Treaty of 1863, and particularly the
stipulation of Art. 10, with reference to
furnicking each family who commenced farming
with one COD and two oxen was an added induce-
ment to the tribe to abandon its nomadic life,
settle upon the rese vation, and at least make
a start toward becoming self-sustaining; that
the offer was open for acceptance by such
families of the tribe as were already on the
reservation or those who removed thereto, within
a reasonable time and who commenced to farm
within a reasonable time. It is further con-
tended that it was obviously not the intention
of the treaty makers that this offer under Art.
10 was to remain open for acceptance at the whim
of the Indians at any time in the future, but
only within a reasonable time after ratification
of the treaty; that the plain intention of the
treaty was that removal to the reservation and
commencement of farming should be practically
coincident; that the stipulation was so under-
stood and interpreted by the Government, and
that this interpretation is justified and
sustained when other provisions of the treaty
relating to the same subject matter are considered.
Finally it is contended by defendant that the
record fails to show that the amount of $126,000
appropriated in July 1870 and expended by the
Secretary of the Interior between that date and
1880 was not sufficient to supply such families
with the animals agreed to be furnished as had,
in good faith, accepted the offer contained in
Art. 10 and had commenced farming within the
meaning of the treaty.
The Court thereafter agreed with the contentions made by the
United States (pp. 307-311) and dismissed the petition (p. 311)
Here again, WC believe it clear that the United States
has already accounted to the Sioux under Article 10 and that
no further accounting should be necessary.
Question No. 11
With respect to Article XI of this treaty, we declare
that WC, the Lakota Nation, have fulfilled this provision.
Does the United States maintain that it has fulfilled the
provisions of this article of the treaty? If so, when? and
How?
Answer No. 11
Other than the road and construction provisions of the
sixth clause, the United States did not assume any obligations
in Article 11. The sixth clause reads as follows:
They [the Sioux] withdraw all pretence of
opposition to the construction of the railroad
now being built along the Platte river and
westward to the Pacific ocean, and they 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. But should such roads
or other works be constructed on the lands
of their reservation, the Government will
pay the tribe whatever amount of damage may
be assessed by three disinterested commis-
sioners to be appointed by the President for
that purpose, one of said commissioners to
be a chief or headman of the tribe.
Insofar as we know, the substance of this provision
(i.c., to fairly pay for any reservation lands taken for
public purposes) has been obligatory on the United States,
ither under the treaty or under the provisions of general
CW, from 1868 to the present time, and no doubt many works
eve beer constructed on the Sion: reservations during this
22 -
period lie assume any lands taken in connection therewith
have in accord with the legal and equitable requirements
cotaining. II Messus. Foolserow and King feel any such
takings 07 questi enable, they should identi fy same and set
forth their reasons. A further answer could be made at that
time.
Question No. 12
With respect (i) Article XII of this treaty, we maintain;
that the ratification by Congress of this treaty forcelosed
the use by the United States of America ANY OTHER POSSIBLE MEANS
of gaining additional land cessions from the Lakota Nation.
Does the United States feel that it has fulfilled the provisions
of this article of the treaty? If so, when? and How?
Answer No. 12
Article 12 of the 1868 Treaty provides:
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, occupy-
ing or interested in the same; and no cession
by the tribe shall be understood or construed
in such manner as to deprive, without his
consent, any individual member of the tribe
of his rights to any tract of land selected
by him, as provided in article VI of this
treaty.
Insofar as we can presently ascertain, this provision has not
been repealed and accordingly is applicable to transfers made
of the Sioux reservation lands. However, the treaty provision
does not bar the United States from taking such lands without
consent, the same as it takes lands from non-Indian owners
without their consent, i.e., under its powers of eminent
GERALD LIBRARY
as 23 -
The treaty also does not bar Congress from taking Indian lands
under its plenary powers to manage Indian affairs. The opinion
in Sious Tribe V. United States, 97 Ct. C1. 613 (1942), goes
to great length in explaining the distinction between these
two exceptions to consensual land transfers. Note particularly
these words from pages 668-669:
There was inherent in the treaty of: 1868,
as one of the necessarily implied conditions
thereof, the undeniable right of Congress, if
jt deemed the intere ts of the Indians as well
as those of the Government and the existing
circumstances dictated or required, to legis-
late under the act of 1871 in whatever way it
might choose with reference to the management
and control of the property and affairs of the -
Indians, even though such action should be in
conflict with some treaty provision and against
the desire of the Indians.
The Court went on to show the reason for the rule as also its
limitations (pp. 669-689) and concluded that, under the facts
and laws pertaining thereto, the Sioux were not entitled to
further recovery for the 1877 transfers of the Black Hills
and the Sioux hunting rights. See also the cases cited in
Answer No. 1(c), above.
This claim, of course, is one of those which the Sioux
have brought to the Indian Claims Commission, and is one of
the pending dockets before that Commission.
We conclude that the provisions of Article 12 of the 1868
Treaty are still applicable and that except for eminent domain
takings or transfers made under the plenary powers of Congress,
Sioux reservation lands cannot be transferred without the
consent of three-fourths of the adult male Indians.
Question No. 13
With respect to Article XV of this treaty, we maintain
that when the Lakota people accepted the reservation outlined
in this treaty as a permanent home such acceptance thereby
foreclosed any cession of jurisdiction by the United States
over the Lakota Nation. How dees the United States interpret
the Physecology "permenant nome!!?
- 24 -
Answer No. 1)
Article 15 of the 1868 Treaty provides as follows:
The Indians herein named agree that when i
the agency-house or other buildings shall
be constructed on the reservation named,
they will regard said reservation their
permanent home, and they will make no per-
manent settlement elsewhere; but they shall
have the right, subject to the conditions
and modifications of this treaty, to hunt,
as stipulated in Article 11 hereof.
With respect to the "permanent home" concept, Article 2
should also be considered:
The United States agrees that the follow-
ing district * * * shall be, and the same
is, set apart for the absolute and undisturbed
use of the Indians herein named * * * and the
United States now solemnly agrees that no
persons except those herein designated and
authorized so to do * * shall ever be
permitted to pass over, settle upon, or
reside in the territory described * *
Conveyances of land in the United States may be made for a
period of time or may be permanent transfers of the land.
Parties to a permanent transfer may select such words as they
choose to show the permanency. Other choices, besides those
used in Article 2 and 15 above, would include the term "fee
simple, "heirs and assignees forever," etc. Regardless,
however, of the words used to designate the permanency of the
transfer, one should keep in mind that the permanency as there-
in stated is always subject to the United States' right to
take such lands under its power of eminent domain or under the
plenary powers of Congress (see Answer No. 12, above), as well
as subject to subsequent voluntary transfers made by the owners
thereof.
- 25 -
Question No. 14
With, respect to Article XVI, how does the United States
interpret the phrase "unceded Indian territory"?
Answer No. 14
The meaning of this phrase and the rights of the tribe
under it are in litigation in Docket No. 74-B before the Indian
Claims Commission. The matter is complicated and we do not
feel that :t would be proper for us to express an opinion on
the meaning of this provision at this time. The tribe is
represented by competent attorneys, and we feel that under the
circumstances we should await the decisión of the Commission
before expressing any opinion.
Question No. 15
With respect to Article XVII of this treaty, how docs the
United States interpret this article insofar as it only abro-
gates those portions of previous treaties and agreements that
obligate the United States to provide money, clothing, or other
articles of property?
Answer No. 15
Article XVII reads as follows:
It is hereby expressly understood and
agreed by and between the respective parties
to this treaty that the execution of this
treaty and its ratification by the United
States Senate shall have the effect, and
shall be construed as abrogating and annul-
ling all treaties and agreements heretofore
entered into between the respective parties
hereto, so far as such treaties and agree-
ments obligate the United States to furnish
and provide money, clothing, or other articles
of property such Indians and bands of
Indi
is to this treatly,
but no further.
- 26 -
As tions MC read the provision it abrogates United States' obliga-
of prior treaties and agreements only insofar as
obligations of money, clothing, and other property are
concerned. Other provisions, to the extent they were not
otherwise changed or satisfied, would continue past the
1868 Treaty.