In 1868, Two Nations Made a Treaty. The U.S. Broke It, and Plains Indian Tribes Are Still Seeking Justice

The American Indian Museum puts the 150-year-old Fort Laramie Treaty on view in its “Nation to Nation” exhibition

Treaty of 1868
In the five generations since the treaty was signed and broken, the Sioux Nations have steadily lost reservation lands to white development. Paul Morigi, AP Images for NMAI

The pages of American history are littered with broken treaties. Some of the earliest are still being contested today. The Fort Laramie Treaty of 1868 remains at the center of a land dispute that brings into question the very meaning of international agreements and who has the right to adjudicate them when they break down.

In 1868, the United States entered into the treaty with a collective of Native American bands historically known as the Sioux (Dakota, Lakota and Nakota) and Arapaho. The treaty established the Great Sioux Reservation, a large swath of lands west of the Missouri River. It also designated the Black Hills as “unceded Indian Territory” for the exclusive use of native peoples. But when gold was found in the Black Hills, the United States reneged on the agreement, redrawing the boundaries of the treaty, and confining the Sioux people—traditionally nomadic hunters—to a farming lifestyle on the reservation. It was a blatant abrogation that has been at the center of legal debate ever since.

In 1980, the U.S. Supreme Court ruled that the U.S. had illegally appropriated the Black Hills and awarded more than $100 million in reparations. The Sioux Nation refused the money (which is now worth over a billion dollars), stating that the land was never for sale.

“We’d like to see that land back,” says Chief John Spotted Tail, who works for the president of the Rosebud Sioux Tribe. He was speaking at the unveiling of the Fort Laramie Treaty of 1868, parts of which are now on display at the National Museum of the American Indian. On loan from the National Archives, the treaty is one of a series that are being rotated into the exhibition “Nation to Nation: Treaties between the United States and American Indian Nations” on view through 2021. Most of the 16 pages of the Fort Laramie Treaty on display are signature pages. They feature the names of U.S. Government representatives and roughly 130 tribal leaders.

Delegates from the Sioux and Northern Arapaho Nations came to the museum to participate in the unveiling. During a small, private event in the exhibition hall on October 26, tribal delegates performed a Chanunpa or sacred pipe ceremony thanking and honoring the treaty’s signers and praying for the peace and welfare of their people and the United States. Among the delegates and roughly two dozen guests were direct descendants of the original signers, including Spotted Tail whose great-great-grandfather was a signatory.

Chief John Spotted Tail
“We’d like to see that land back,” says Chief John Spotted Tail (above left), whose great-great-grandfather was a signatory. Paul Morigi, AP Images for NMAI

“It is an honor to see what he did, and it is my wish that the United States government would honor this treaty,” Spotted Tail says. To him and the other delegates who spoke, the treaty represents a hard-won victory meant to ensure the survival of their people, but it hasn’t worked out as intended.

In the five generations since the treaty was signed and broken, the Sioux Nations have steadily lost reservation lands to white development. They now live in small reservations scattered throughout the region. “From the time we signed it, we were put into poverty and to this day our people are still in poverty,” Spotted Tail says. “We’re a third world country out there. The United States does not honor this treaty and continues to break it, but as Lakota people we honor it every day.”

Victory Over the United States

The Fort Laramie Treaty of 1868 was forged to put an end to a two-year campaign of raids and ambushes along the Bozeman trail, a shortcut that thousands of white migrants were using to reach the gold mines in Montana Territory. Opened in 1862, the trail cut through Sioux and Arapahoe hunting territory (as established by the first Fort Laramie Treaty in 1851). Red Cloud, a leader of the Oglala Lakota people viewed the wagon trains, and the forts that were built to protect them, as an invasive force. He and his allies, the Northern Cheyenne and Arapaho people, fought hard to shut down the trail. And they won.

“This treaty is significant because it really marks the high watermark for Sioux tribal power in the Great Plains,” says Mark Hirsch, a historian at the museum. “The Native Americans were wielding a kind of military power and presence in the plains that forced President Grant to realize a military solution to the conflict wasn’t working.”

The terms of the treaty not only closed the Bozeman trail and promised the demolition of the forts along it, but guaranteed exclusive tribal occupation of extensive reservation lands, including the Black Hills. White settlers were barred from tribal hunting rights on adjoining “unceded” territories. Remarkably, the treaty stated that the future ceding of lands was prohibited unless approval was met from 75 percent of the male adult tribal members. It was a resounding victory for the tribes.

Although some of the tribal leaders signed it in April 1868, Red Cloud refused to sign on promises alone. He waited until the forts had been burned to the ground. Seven months after the treaty was drawn, Red Cloud’s war finally ended when he placed his mark next to his name, on November 6, 1868.

The Fort Laramie National Historic Site and 150th Anniversary of the 1868 Treaty of Fort Laramie

Promises at Odds

Speaking at the ceremony, Devin Oldman, delegate from the Northern Arapaho Tribe says “This treaty is a promise of a way of life. It represents freedom, and that’s what I came to see.” For Oldman, freedom means sovereignty and the right to their traditional beliefs and structures of governance.

“The Sioux nation was sovereign before white men came,” says Hirsch, “and these treaties recognize and acknowledge that.” But in reading the 36-page document, it is clear the United States had an agenda that wasn’t fully consistent with the concept of self-determination for the Native American people.

Nine of the treaty’s 17 articles focus on integration of native peoples into the white man’s way of life. They commit the U.S. to building schools, blacksmith shops and mills. They include provisions of seeds and farm implements for tribal members who settle on the reservation including, “a good suit of substantial woolen clothing” for men over 14, and flannel shirts, fabric and woolen stockings for women.

“This treaty is chockfull of incentives to encourage the Indians to adopt what was considered a proper Jeffersonian American way of life,” says Hirsh. Given the disparity between cultural norms of white men and native people, and the use of many interpreters, it seems unlikely that expectations were uniformly understood by all parties.

The Sioux tribal members who agreed to settle on reservations resisted pressure to adopt farming and came to resent the lousy U.S. Government food rations. Many did not participate in assimilation programs and left the reservations to hunt buffalo on lands west of the Black Hills, as they had done for generations. The treaty allowed for that, but the specter of "wild" Indians living off-reservation deeply unsettled U.S. policy makers and army officers.

And then came the gold. In June 1874 General George Custer led an expedition to search for gold in the Black Hills. By 1875, some 800 miners and fortune-seekers had flooded into the Hills to pan for gold on land that had been reserved by the treaty exclusively for the Indians.

Lakota and Cheyenne warriors responded by attacking the prospectors, which led the U.S. to pass a decree confining all Lakotas, Cheyennes and Arapahos to the reservation under threat of military action. That decree not only violated the Fort Laramie Treaty of 1868, but it flew in the face of tribal ideas of freedom and threatened to destroy the way of life for the Northern Plains Indians.

The conflict set the stage for the famous "Battle of the Little Bighorn" in 1876 where Custer made his last stand and the Sioux Nations were victorious—their last military victory. The following year, Congress passed an act that redrew the lines of the Fort Laramie Treaty, seizing the Black Hills, forcing the Indians onto permanent reservations and allowing the U.S. to build roads through reservation lands. In the years that followed, the Great Sioux Reservation continued to lose territory as white settlers encroached on their land and the expansion of the United States marched steadily on.

“This is a classic broken treaty,” says Hirsch. “It is such a naked example of a treaty abrogated by the United States in which the U.S. shows profound lack of honor and truthfulness.”

With no official means to seek redress, the Sioux had to petition the courts for the right to argue their case. They won that right in 1920 but the legal battle continued until the 1980 Supreme Court ruling which stated that the land had been acquired by false means and the Sioux were due just compensation. In refusing the payment, the Sioux maintain that the land is theirs by sovereign right, and they aren’t interested in selling it.

One Nation to Another

The financial award could help lift the Sioux Nation tribes from poverty and provide services to address the problems of domestic violence and substance abuse—problems that have followed the breakdown of their traditional societal structure at the hands of the United States. But money alone won’t give the people of the Sioux Nation what they are looking for. As important as the sacred land itself, it is the sovereign right they seek—acknowledgement that just five generations ago, representatives of the U.S. Government met representatives of the tribal nations on a level playing field in the Northern Plains, where one nation made a promise to another.

It would be easy to think of this 150-year-old document as an artifact of America’s uncomfortable past, says Darrell Drapeau, a member of the Yankton Sioux Tribal council who teaches American Indian studies at the Ihanktowan Community College. But it is important to remember, he says, that the U.S. Constitution—a document that governs daily life in America—was signed almost four generations earlier, 231 years ago.

“We have a viewpoint of this treaty as a living treaty being the supreme law of the land and protecting our rights in our own homelands,” says Mark Von Norman, attorney for the Cheyenne River an Great Plains Tribal Chairman Association. “We don’t always think that the courts are the right forum for us, because it’s really nation to nation, and it shouldn’t be a United States court telling our Sioux Nation tribes what the treaty means. It’s based on the principal of mutual consent.”

A 2012 UN report on the condition of indigenous people in America seems to support that stance in spirit. It noted that U.S. courts approach the inherent sovereignty of tribes as an implicitly diminished form of sovereignty, and that monetary compensation can reflect an outdated “assimilationist frame of thinking.” The report specifically cited initiatives to transfer management of national parklands in the Black Hills to the Oglalal Sioux Tribe as examples of a more equitable and modern approach to justice.

“One thing I know about Indians, they don’t give up, and I suspect that this issue will continue into the future,” says museum director Kevin Gover, who is a member of the Pawnee tribe. “And I really do believe that one day something at least resembling justice will be done with regard to the Sioux nation’s right to the Black Hills.”

The Fort Laramie Treaty of 1868 is on view in the exhibition “Nation to Nation: Treaties Between the United States and American Indian Nations,” at the National Museum of the American Indian in Washington, D.C. through March 2019. The entire 36-page agreement can be seen online.

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