The Oceti Sakowin (Great Sioux Nation) Territory

What “#LandBack” Leaves Out of Focus

“A return to an earlier or normal condition” is one definition of the word “back.” In relation to land and Native nations or peoples, the word “back” is often expressed as, “they should give the land back to the Indians.” “#LandBack” has now become a popular meme among some activists.

A question arises: From where should the land be “returned”? Or, stated differently, the activists are advocating a “return of the land back from what location”? It is accurate to point out that the word “back” does not contemplate a physical movement of the land. The word “back” is meant to be figurative or metaphorical. It’s as if the land the land were being physically “moved” when in point of fact the land itself will not have move one inch.

We’re talking about three different conceptions. The first conceives of an earlier time when the original nation or people had possession of the land. The second conceives of the invaders and colonizers as having obtained possession of the land. And the third conceives of possession of the land being returned to the original nation or people. In other words, the #Landback activists are advocating for “a return” of the land (or some portion of it) back into the possession of, and therefore under the control of, the original nations and peoples.

However, talking about the dominating society “giving land back” is problematic for a Native nation that has never ceded, relinquished, or surrendered its lands or territory to the United States by treaty or by any other document. Use of the word “back” assumes, for example, that the land and territory of a particular Native nation are now in the possession of the United States, while providing no explanation as to how those lands supposedly got into the possession of the United States.

Because of the dominating society’s viewpoint that “possession is 9/10ths of the law,” conceding to the idea that the United States have actual possession of the land, would appear to concede to a presumption that the United States have 9/10ths of “the law” backing them.

It can thus be argued that using the word “back” in that context concedes to the idea that the United States government has 9/10ths of “the law” on its side. And this is an easy assumption to fall into when looking at it from the viewpoint of the U.S. government’s system of “law.”

Or take the Black Hills of the Oceti Sakowin as another example. Use of the word “back” in the phrase “Give the Black Hills back,” concedes to the idea that the United States has “possession” of the Black Hills and, therefore, 9/10ths of “U.S. law” is on the side of the United States.

There is another potential argument that has not been adequately expressed: The United States is not “in possession” of the territory of the Oceti Sakowin (“the Great Sioux Nation”); it is illegally occupying the territory of the Oceti Sakowin in violation of the fundamental organic law of the United States.

The 1861 congressional act establishing the Territory of Dakota says very specifically that no Indian land (e.g., the Oceti Sakowin territory) shall become part of any state or territory until the Indians consent for that to happen in a treaty with the United States. To this day that consent has never been obtained in a treaty with the United States.

In his Second Annual Address to the legislature of the Territory of Dakota, which he delivered in December of 1867, territorial governor A. J. Faulk, gave thanks to his “God,” whom he called “the Giver of all good,” for the healthy climate of the Oceti Sakowin lands he called “Dakota.” His remarks are recorded in part as follows:

“Our first duty should be to give expression to our feelings of gratitude to the Giver of all good for the favorable circumstances which surround us. The blessings of health, to a degree almost unknown in other parts of the Union, have been vouchsafed to us during the whole of the past year; while the season of crops has been more than usually favorable. Immigration has added largely to our numbers, and the most favorable evidences of prosperity and increase are springing up everywhere within our borders. I have heretofore expressed unbounded confidence in our natural advantages; and in the salubrity of the climate, and the inexhaustible fertility of the soil of Dakota.”

Governor Faulk’s claim, on behalf of the Territory of Dakota, to “the inexhaustible fertility of the soil” of the Oceti Sakowin, which he was claiming as “the soil of Dakota,” provides clear evidence of the U.S. system of domination that was being imposed on the Oceti Sakowin Nation within its own territory. Faulk delivered these words one year prior to the 1868 Treaty of Fort Laramie, a treaty which did not cede or relinquish the territory of the Oceti Sakowin to the United States. In the following passage, Governor Faulk admits that the Indian title to the Black Hills had not been extinguished:

“Like most of the region north and west of the Yankton cession, the Indian title had never been extinguished to this locality, and strictly speaking, we had no right to occupy or use it until, by suitable treaty or treaties with the Indian tribes in possession, we had obtained their consent. [emphasis added] But blame does not justly attach to us for this omission [of obtaining the consent of the Indians].”

What did Faulk mean by “strictly speaking”? In this context, “strictly” means “in a way that involves rigid enforcement or that demands obedience.” But enforcement of what, and obedience to what? The answer is enforcement of and duties imposed upon the U.S. Congress by passing legislation called “the Organic Act” that established the Territory of Dakota. Upon his return from a lengthy leave of absence, Faulk stated to the assembled Dakota territorial legislature: “After the lapse of a year you again have met to discharge the duties imposed upon you by the Organic Act” of 1861, which reads in part:

“Provided, that nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory, which, by treaty with any Indian tribe, is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries and constitute no part of the Territory of Dakota, until said tribe shall signify their assent to the President of the United States to be included within the said territory. . .”

Let us now repeat what Governor Faulk stated in 1867:

“Like most of the region north and west of the Yankton cession, the Indian title had never been extinguished to this locality, and strictly speaking, we had no right to occupy or use it until, by suitable treaty or treaties with the Indian tribes in possession, we had obtained their consent [emphasis added]. But blame does not justly attach to us for this omission [of obtaining the consent of the Indians].”

By committing acts of domination through the illegal occupation of the lands of the Oceti Sakowin, without obtaining the consent of the Lakota people, “the Territory of Dakota” violated the Organic Law and the Organic Act establishing the Territory of Dakota. Governor Faulk admitted that, “strictly speaking,” this had indeed happened. But he then said that blame for a violation of the Organic Act and Organic Law of the Territory of Dakota “does not justly attach” to the Legislature of the Territory of Dakota. What Governor Faulk failed to acknowledge, however, is that any and all acts committed by the White people in violation of the Organic Act and the Organic Law of Dakota are arguably null and void.

In a speech that Governor Newton Edmunds delivered to the Third Annual Session of the Dakota Legislature ten years earlier, in 1863, he made the following statement in which he calls Oceti Sakowin Territory, “our own Territory,” and argued for an invasion of the Black Hills. He spoke about what he called the “Route to the Gold Mines”:

“The importance of opening a direct route to these mines through our own Territory, and turning the tide of emigration this way, cannot well be over-estimated, either to the emigrant, or to the interests of our [White] people. To the emigrant, as a means of shortening his long and tedious marches, by reducing the distance over six hundred miles, and by saving from three to four weeks time—to our own citizens, by affording to our farmers a ready market for all the surplus food at their own doors, thus saving the necessity of cartage and necessary absence from the fields of their labor, and to our merchants and business men, from the increased demands made upon their stocks and business occasioned by the emigrant flowing constantly past their doors, making it necessary for them to establish large and extensive depots of supplies in the way of mining implements, provisions and other articles necessary to supply the wants of a people about to engage in such business. The shortest, best, and most practicable route to the gold fields of Idaho, from any of the Northwestern States, is undoubtedly through the settled portion of our Territory [of Dakota], to the mouth of the Niobrara river or Fort Randall; from thence along the divide between the Niobrara and White rivers; thence under the base of the Black Hills, passing the sources of the Yellow Stone to the forks of the Missouri. . .”

Governor Edmunds continued by acknowledging that the course of action he was proposing would be done without the consent of the Indians:

“This matter is also of vast and vital importance in another point of view, from the fact that this [proposed] route would pass through the very heart of the Indian country, and its effect, in my opinion would be in a very short time, to satisfy the Indians of the folly of their efforts to exterminate the whites, and would soon cause them to come forward, make treaties of peace and amity, and at no very distant day, lead them to locate upon reservations, and by judicious management case them to abandon their present [free and independent] mode of life and turn their attention to agriculture and the arts, ultimately civilize [dominate] and enlighten them, and finally become, as they are undoubtedly capable of becoming, in the course of time, respected and esteemed citizens—no longer . . . a barrier to the advancement of settlement and civilization [the U.S. system of domination].”

Governor Newton appears to be advocating for a policy of encouraging “white settlers to move onto [invade] Indian lands.” Later they could lie to the Indians by telling them that “the government could not remove the whites and so they had better cede the lands or be wiped out.”

A decade later, and most interestingly, in the First Biennial Address, which he delivered during the Eleventh Session of the Legislative Assembly of the Dakota Territory (1874-75), Governor John L. Pennington made a highly principled statement regarding the Black Hills:

“The reported presence of precious metals in the Black Hills by the officers commanding and persons accompanying the military expedition made by order of the government of the United States, to that section of this Territory during the past summer, has created a good deal of excitement, not only in Dakota but throughout the country, and a great desire has been manifested to have it opened up to immigration and settlement.”

“By reference to U.S statutes at large, vol. 15, page 635, it will be seen that all that part of the country known as the Black Hills, which lies in Dakota, is embraced in the Sioux Indian Reservation, and that the government of the United States is bound by the sacred obligations of this treaty to protect those tribes of Indians to whom the cession was made, in the peaceful possession of their reservation. While this treaty is of force, any citizen who enters upon the reservation is a violator of the law, and subject to be arrested, tried, and punished for such infraction; and I admonish all citizens of Dakota not to be tempted, even by the fabulous reports concerning gold in the Black Hills, to subject themselves to punishment for a violation of the laws of their country.”

“Your honorable body might with propriety made known the wishes of the people you represent, relative to the opening of the Black Hills, by a memorial to Congress; but while the treaty remains, I advise all citizens of this Territory to keep off the forbidden ground. The law will be enforced, the dignity of the government will be maintained, and all expeditions in that direction, in violation of law, will come to grief.”

Pennington’s statement demonstrates how the Oceti Sakowin Nation and Territory were to have been dealt with based on the Organic Act of Dakota, the Organic Law of Dakota, and the 1851 and 1868 treaties of Fort Laramie. However, he failed to express a key point. The territory described in the 1868 Treaty of Fort Laramie did not involve a “cession from” the United States to the Oceti Sakowin. It involved a “retention” by the free and independent Oceti Sakowin Nation of that vast part of its overall territory.

Furthermore, all Indian land was declared by Congress to be “excepted out of” and shall “constitute no part of” the Territory of Dakota until the Indians consented for that to happen in a treaty with the United States. If and when that happens, the President of the United States is supposed to make an official proclamation stating that Indian title has been extinguished by treaty to that area. To this day, the territory of the Oceti Sakowin forms a massive geographical hole in the United States, which is traced to the original free and independent existence of the Oceti Sakowin.—Steven Newcomb