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CLAIMING THE BLACK HILLS: THE ROLE OF NARRATIVE
IN DISPUTE FORMATION
by Kirsten Matoy Carlson
In 1980, the Supreme Court decided United States v. Sioux
Nation, the largest land claim ever lodged against the United
States government in favor of the Lakota people. This article
seeks to understand how the dispute underlying this case developed into a legal claim. It considers the role of narrative in the
sociolegal process of dispute emergence and argues that narratives facilitate the blaming, naming, and claiming stages of
dispute creation. The article uses literature to provide a narrative lens into the creation of the Lakota’s claim to the Black Hills.
American Indian Stories by Zitkla-sa presents a narrative of
Lakota life around the time of the claims emergence. It provides
insights into how and why the Lakota claim to the Black Hills
emerged into a legal dispute by contextualizing and humanizing
the claim.
INTRODUCTION
In 1980, the United States Supreme Court reviewed the
largest land claim in American history.1 For over a century,
the Lakota people, or Sioux Nation,2 had contended that the
United States government had breached the 1868 Treaty of
United States v. Sioux Nation, 448 U.S. 371, 371 (1980).
I use the terms Lakota people or Sioux Nation to describe generally the
descendants of the bands that were signatories to the Fort Laramie Treaty of
1868: the Cheyenne River, Crow Creek, Lower Brule, Rosebud, Standing Rock,
Santee, and Fort Peck Tribes. See Fort Laramie Treaty of Apr. 29, 1868, 15 Stat.
635, 640-47.
1
2
1
Fort Laramie by illegally stealing the Black Hills in 1877.3
They had continuously pursued their legal claim before the
Court of Claims, the Indian Claims Commission, and Congress since the 1920s.4 In 1980, the Supreme Court decided
to review the Court of Claims’ 1979 decision,5 finding that
the government had taken the Black Hills without just compensation, in violation of the Fifth Amendment.6 The
Supreme Court affirmed the Court of Claims’ findings and
awarding of $17.5 million plus five percent interest to the
Lakota for a total of $122.5 million.7 The Lakota had finally
won. Or had they?
The Lakota did not think so. Even before the courts
found for the Lakota and awarded them compensation,
hints existed that the Lakota did not want money, they
wanted the return of their sacred Paha Sapa, or Black Hills.8
Shortly after the Supreme Court handed down its opinion
finding for the Lakota people and compensating them for
the illegal taking of the Black Hills, the Lakota refused to
accept the compensatory award.9 Subsequently, Lakota
have occupied portions of the Black Hills, 10 filed suit in
federal courts against the U.S. government asking for the
return of the Black Hills,11 and worked ardently with Con448 U.S. at 374.
Id. at 384-85.
5 220 Ct. Cl. 442, 601 (1979).
6 448 U.S. at 389.
7 Id. at 423-24.
8 Frank Pommersheim, Making All the Difference: Native American Testimony and the Black Hills, 69 N. DAK. L. REV. 337, 347 (1993).
9 Marc Goldstein, Sioux Agonize Over Taking Money or Regaining Black Hills,
THE NEW YORK TIMES, July 16, 1984, at A17.
10 See, e.g., Sioux Protesters Leave One Site in Black Hills, THE NEW YORK
TIMES, September 9, 1981 at A22; David F. Salisbury, Indians Claim the Land Under
1868 Treaty and Set Up Camp; US Replies with Lawsuit but Both Sides Avoiding
Violence, CHRISTIAN SCIENCE MONITOR, September 11, 1981 at 12; David F. Salisbury, Small Sioux band still 'occupying' Black Hills area, CHRISTIAN SCIENCE
MONITOR, March 2, 1982 at 9.
11 See, e.g., Ed Bruske, Black Hills Suit -- A Will Of Its Own; New Sioux Leaders Press Claim For Return of Tribes' Sacred Land, WASHINGTON POST, August 19,
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gressmen to secure passage of legislation returning land in
the Black Hills to them.12 Unfortunately, none of these endeavors has been successful. Over twenty five years after
their “victory” in the Supreme Court, the Lakota continue to
claim that money is not just compensation; they seek the
return of the sacred Black Hills.13
The Lakota claim to the Black Hills, while technically
resolved by the Indian Claims Commission and affirmed by
the Court of Claims and the United States Supreme Court,
remains one of the largest unresolved claims against the
United States government. The size of the claim—more
recent estimates of the award suggest it is now close to $400
million—and its longevity are astounding. The historical
persistence of this claim suggests a need for a deeper understanding of what it is about, how it arose, and why it has
continued.
For over two decades, law and society scholars have
sought to understand the genesis of legal claims.14 Felstiner,
et al. maintain that not all human experiences that could
develop into legal claims do in fact become legal claims.15
They suggest that disputes emerge through a series of
1980 at A9; Around the nation; Appeals Court Rejects Suit, By Indians Over Black
Hills, THE NEW YORK TIMES, June 3, 1981 at A18; Tribe Files Suit for $11 Billion Over
Black Hills, THE NEW YORK TIMES, July 19, 1980 at section 1, page 5; Marc Goldstein, Sioux Agonize Over Taking Money or Regaining the Black Hills, THE NEW YORK
TIMES, July 16, 1984 at A17; Linda Greenhouse, Sioux Lose Fight for Land in Dakota,
THE NEW YORK TIMES, January 19, 1982 at A14.
12 See, e.g., Indian land claims; Gold in the Hills, THE ECONOMIST, July 23, 1994
at 28; Marc Goldstein, Sioux Agonize Over Taking Money or Regaining the Black
Hills, THE NEW YORK TIMES, July 16, 1984 at A17; Jim Schachter, Sioux Get Boost in
Fight Over Territory, THE GUARDIAN (London), December 29, 1987.
13 John P. LaVelle, Rescuing Paha Sapa: Achieving Environmental Justice by
Restoring the Great Grasslands and Returning the Sacred Black Hills to the Great Sioux
Nation, 5 GREAT PLAINS NAT. RESOURCES J. 40, 42 (2001).
14 William L.F. Felstiner, et al., The Emergence and Transformation of Disputes: Naming, Claiming, Blaming . . . , 15 LAW & SOC. REV. 631, 633 (1980-81).
OTHERS?
15 Felstiner, et al., supra note , at 633.
3
events, which transform human experiences into legal
claims. Their work poses an interesting question about the
Lakota claims to the Black Hills: How did the experiences of
the Lakota turn into the largest land claim ever filed against
the United States government?
I build on the work of law and society scholars by using
their process for understanding the formation of legal disputes to show how taking a closer look at the formation of
the Black Hills claim over a hundred years ago deepens our
understanding of the Lakota claim. Further, I maintain that
adding a narrative lens to the claims creation process increases our knowledge about disputes and their emergence.
Narratives contextualize claims, and highlight the role that
the cultural differences and understandings of a grievance
play in dispute formation. They provide insights into our
understanding of historical claims.
I illustrate how useful a narrative lens is to the claims
creation process by taking a closer look at the formation of
the Black Hills claim over a hundred years ago. I contend
that the stories of Zitkla-sa, a Lakota writer, inject some
aspects of the experiences of the Lakota people into our
understanding of the claim and how it developed. Zitklasa’s stories present a narrative of the events and every day
experiences of the Lakota people around the inception of the
Black Hills claim as a legal claim. Her autobiographical
stories contextualize the claim, and make it real.16 They
suggest how the Lakota grievance over the loss of their
sacred lands developed into one of the largest and longest
land claims ever filed against the United States government.
In Part I, I describe Felstiner, et al.’s framework for the
creation of legal disputes, and discuss the role of narrative in
16 Legal scholars have noted the importance of contextualization in Indian
law. Kristin A. Carpenter ; Nell Jessup Newton, Indian Claims in the Courts of the
Conqueror, 41 AM. U. L. REV. 753, 761 (1991-92) (“These stories illustrate better
than any dry legal exgesis that Indian tribes’ grievances against the Government,
whether based on ancient happenings or present day affairs, are very real.”).
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dispute formation. I argue that the narrative lens enhances
our understanding of the dispute creation process. In Part
II, I argue that American Indian Stories by Zitkla-sa illustrates
how Lakota beliefs about the Black Hills informed the creation of their legal claim to the Black Hills.
These
autobiographical short stories serve to contextualize the
claim by describing the living conditions and experiences of
Lakota people around the time of the filing of the Black Hills
claim. They suggest how these conditions contributed to the
emergence of the lawsuit against the United States. I conclude that dispute narratives can provide valuable insights
into dispute creation within the U.S. legal system.
I. Narratives in Dispute Formation
In this part, I argue that looking at dispute formation
through a narrative lens provides valuable insights into how
parties understand disputes. I maintain that narratives may
increase our understanding of dispute formation by suggesting why legal claims emerged out of specific sets of events.
The idea of narratives about the law, or legal narratives,
is not new.17 Laws develop within cultures, and the creation
of legal meaning “takes place through an essentially cultural
medium.”18 In giving law meaning, the culture—and often
the various communities within it—develops a narrative
surrounding the law and its political and social significance.
These narratives provide the community (and other communities) with a way to understand the meaning of law and
its social and political context.19 Narratives “do not simply
17 As Robert Cover pointed out over twenty years ago, “No set of legal institutions or prescriptions exists apart from the narratives that locate it and give
it meaning.” Robert Cover, Nomos and Narrative, YALE L. J. 4. See also Jane B.
Baron & Julia Epstein, Is Law Narrative?, 45 BUFF. L. REV. 141 (1997).
18 Cover, supra note , at 11.
19 Id. at 4-5.
5
recount happenings; they give them shape, give them a
point, argue their import, [and] proclaim their results.”20
Narratives help us to understand this system of meaning by
providing a way of ordering discourse.21
Narratives may be useful not only in understanding the
law and the legal system in general but also in understanding disputes. By dispute, I mean “an assertion of a right,
claim, or demand on one side, met by contrary claims or
allegations on the other.”22 As conflicts or controversies,
disputes fuel the legal system, which is designed to process
and resolve them. Disputes, like laws, “are social constructs.”23 Disputes develop over time, and depend upon
the meanings given to them by those involved in them. As
Felstiner et al. point out, “a significant portion of any dispute exists only in the minds of the disputants.”24
While disputes emerge out of human experiences, not
all experiences that could materialize into disputes do in fact
become disputes.25 Rather, disputes depend upon human
identification of the experience as a dispute. 26 This process
of human identification leads to dispute formation or emergence. Narratives about personal experiences may influence
this process and whether a potential dispute emerges into an
actual dispute. To uncover the role narratives may play in
dispute formation, it is useful to look more closely at the
process of dispute emergence and transformation.
Felstiner, et al. provide a three step framework for describing and understanding the emergence and
transformation of disputes.27 The first step, or transforPeter Brooks, Narrativity of Law, 14 CARDOZO STUD. L. & LIT. 1, 4 (2002).
Peter Brooks, The Rhetoric of Constitutional Narratives: A Response to Elaine
Scarry, YALE J. L. HUM. 129, 129 (1990).
22 BLACK’S LAW DICTIONARY 424 (5th ed. 1979).
23 Felstiner, et al., supra note, at 631.
24 Id. at 632.
25 Id. at 633.
26 Id.
27 Felstiner, et al., supra note , at 632.
20
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mation, they call naming. Naming occurs when an individual or group of individuals realizes that “a particular
experience has been injurious.”28 A dispute will not arise
unless one party identifies the experience as injuring him or
her. Consider a simple example: when leaving the crowded
Wal-mart parking lot on a Saturday afternoon, another car
bumps the rear fender of my brand new just bought off the
lot burnt orange BMW convertible. If the bump doesn’t
scratch or dent my convertible, I may not perceive the experience as injurious and no dispute will develop. Conversely,
if the car smashes my left tail light, I will feel injured by the
damage to my newly minted convertible and name the
experience as such.
Once a party has named the injury, the second step,
blaming, may take place. According to Felstiner, et al.,
blaming “is the transformation of a perceived injurious
experience into a grievance.”29 This transformation has
three aspects. First, blaming only occurs “when a person
attributes an injury to the fault of another individual or
social entity.”30 Second, blaming requires that the injured
person have a complaint against someone in particular.31
Finally, for blaming to occur, “the injured person must feel
wronged and believe that something might be done in response to the injury, however politically or sociologically
improbably a response might be.”32 To illustrate the blaming process using the hypothetical car accident described
above, I would attribute the damage to my tail light to the
other driver, and thus, have a specific complaint against a
Id. at 635.
Id.
30 Id.
31 Id. (“A grievance must be distinguished from a complaint against no one
in particular (about the weather, or perhaps inflation) and from a mere wish
unaccompanied by a sense of injury for which another is held responsible (I
might like to be more attractive.”).
32 Felstiner et al., supra note , at 635.
28
29
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particular individual. Further, I would expect the other
driver to fix the damage to my convertible, most likely by
replacing the tail light. The dispute, however, still would
not have fully developed. For a dispute to develop, a third
transformation has to happen.
The third and final transformation, claiming, “occurs
when someone with a grievance voices it to the person or
entity believed to be responsible and asks for some remedy.”33 This would happen when I stopped my convertible,
got out, and confronted the other driver with the damage by
asking him or her to replace the tail light. My claim to a
new tail light would be transformed into a dispute when the
other driver rejected the claim in whole or in part.34 In my
imagined car accident, the driver could simply refuse to take
responsibility or argue that the accident was my fault. Either way, a dispute would emerge between the two of us
over the accident, who was at fault, and responsible for the
damage. Unless we could come to some agreement as to
who was at fault, which is unlikely at this point, the dispute
would enter into some kind of dispute processing, such as
the U.S. legal system. I would probably file a complaint,
alleging that the other party hit my convertible and caused
damage to my tail light. In turn, the other party would
respond with an answer or a counterclaim, and the process
of formal, legal adjudication would begin.
Disputes, however, normally only enter into processing
if the parties conceive of the experience as a dispute. If I
never felt injured, attributed my injury to the actions of the
other party, expected him or her to remedy the problem,
and had my claim rejected by him or her, then no dispute
would exist. There would be no reason to seek dispute
processing.
Id.
Id. at 636 (“A claim is transformed into a dispute when it is rejected in
whole or in part.”).
33
34
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Narratives enable us to understand disputes more completely as socially constructed by the participants involved.
By narrative, I mean the “broader enterprise that encompasses the recounting (production) and receiving (reception)
of stories.”35 Narratives are created through a process of
storytelling.36 Narrative creation is an interactive process
that involves the storyteller asserting a story, creating the
glue to combine the incidents, events, and texts together in a
meaningful way and the responses and reactions of the
listener as she receives the story.37 To continue with the
example above, I am recounting a story, and creating a
narrative about my experience in the Wal-mart parking lot
each time I retell the story of the car accident. I reassert my
claim against the other driver as part of the story because I
perceive the experience as a dispute. My story reflects how I
see my experience and translate it to others. It, however, is
only one narrative about the dispute. The other driver, who
counters that I caused the accident, has his own narrative.
Narratives describe the experiences of the people involved in the dispute, and may suggest why those
experiences contributed to the emergence of a legal dispute.
They provide insights into how the claimants see the claim,
and why it emerged from an experience to a dispute. These
insights may help to explain why certain kinds of experiences produce legal disputes. Certain kinds of narratives may
be more likely to lead to disputes. Others may inhibit dispute emergence or transformation or push these processes
in one direction or another. In this way, narratives may play
an influential role in dispute development.
Baron & Epstein, supra note , at 147.
Peter Brooks, Narrativity of Law, supra note , at 2 (“[N]arrative can be
thought not only as a set of contents but also as a form and a procedure.”)
37 Id. at 3.
35
36
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II. The Emergence of the Lakota Claim to the Black Hills
In this Part, I explore the emergence of the Lakota claim
to the Black Hills, using the stories of Zitkla-sa as a narrative
lens. Zitkla-sa’s stories present a narrative about Lakota life
around the time of the emergence of the Black Hills claim.
This narrative helps us to understand how the Black Hills
claim developed out of the experiences of the Lakota people.
First, I explore Lakota beliefs about the Black Hills because
they form the basis of the Black Hills claim and are central to
Zitkla-sa’s stories and description of the Lakota world.
Second, I use the stories of Zitkla-sa to illustrate how these
beliefs and the experiences of the Lakota people in the late
nineteenth and early twentieth centuries emerged into the
largest land claim ever filed against the United States government.
A. What It’s All About: Lakota Beliefs about the Black Hills
In its simplest terms, the Black Hills claim is about seven
million acres of land.38 These seven million acres, however,
compose no ordinary lands. From a historical economic
standpoint, the Black Hills represent some of the most valuable land in the U.S. The Home Stake gold mine was
situated within their boundaries and yielded more than $1
billion to its non-Indian owners during its lengthy existence.39 Long before fortune seekers discovered golds in the
Black Hills, they belonged to the Lakota people.
The United States government recognized Lakota possession of the Black Hills. They were part of the Great Sioux
Reservation, which was ''set apart for the absolute and undisturbed use and occupation of the Indians'' under the Fort
Fred Barbash, 58 Years Later, Sioux Legal Claim Still in Court, WASHINGApril 28, 1980 at A2.
39 Fred Barbash, 58 Years Later, Sioux Legal Claim Still in Court, WASHINGTON POST, April 28, 1980 at A2.
38
TON POST,
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Laramie Treaty of 1868.40 Less than a decade later, prospectors found gold in the Black Hills, and Congress unilaterally
ceded the Black Hills to the United States government in
1877.41
Since 1877, the Lakota have asserted that the Black Hills
were stolen from them. By the 1880s, they started organizing around this assertion.42 Lakota have been continually
pursuing the claim legally and politically since then.43 The
long duration of the claim begs the question: Why did Lakota grievances over the loss of their land turn into a legal
dispute?
Lakota beliefs and stories about the Black Hills are central to the emergence of the Lakota claim to the Black Hills.
These beliefs frame the events that led to the Lakota’s long
pursuit to have their land returned to them, and provide
insights into how and why their legal claim to the Black
Hills developed. Lakota views on the Black Hills can be
identified in statements made by Lakota about the Black
Hills and the Black Hills claim.44
Over time, the Lakota have told many stories about the
Black Hills. They tell stories about how the Lakota people
were created in the Black Hills, how the Black Hills are
sacred to their way of life, and how the land was illegitimately alienated by the U.S. government and white settlers.
40
A1.
$105 Million Award to Sioux Upheld, THE NEW YORK TIMES, July 1, 1980 at
United States v. Sioux Nation, 448 U.S. at 371.
EDWARD LAZARUS, BLACK HILLS/WHITE JUSTICE: THE SIOUX NATION VERSUS THE UNITED STATES, 1775 TO THE PRESENT (1991).
43 Id. at ; For a chronology of the claim’s history, see MARIO GONZALEZ &
ELIZABETH COOK LYNN, THE POLITICS OF HALLOWED GROUND: WOUNDED KNEE AND
THE STRUGGLE FOR INDIAN SOVEREIGNTY Appendix H (1999).
44 I rely on public statements made by Lakota about the claim and their relationship with the Black Hills and scholarly works on the Black Hills claim and
Lakota beliefs to develop what I identify as the Lakota dispute narrative. I
supplement this with evidence from the autobiographies of ordinary Lakota
women.
41
42
11
These stories come together in the creation and perpetuation
of their legal claim to the Black Hills.
Several stories compose Lakota beliefs about the Blacks
Hills and underlie their claim to them. First, and most importantly, the Black Hills are sacred to the Lakota. The
sacred status of the Black Hills suggests that their religious
and cultural importance to the Lakota transcends any economic value that could be assigned to them. Second, the
Lakota see their relationship with the Black Hills as ongoing.
The Black Hill sustain them culturally, spiritually, and physically. These core beliefs fueled the deep sense of loss that
Lakota felt at the alienation of the Black Hills in the late
nineteenth century and the legal claims that developed out
of this grievance.
The Black Hills are the center of the Lakota universe.
The Lakota have an ongoing relationship with the Black
Hills, which they believe to be sacred. Professor New Holy
explains,
Lakota oral history teaches that the Ikce Wicasa
(Lakota) are the descendants of the Pte Oyate
(Buffalo People) who emerged on to the surface
of the earth from Wind Cave in the Black Hills.
Since that time, the Lakota have lived in and
around the Hills, depending on buffalo, deer and
sheep. Before their confinement on reservations,
Lakota freely entered Paha Sapa for physical, social, and spiritual reasons.45
New Holy suggests that the Black Hills are central to ongoing Lakota spirituality. She mentions one of the oldest
Lakota stories about the Black Hills, namely their location as
45 Alexandra New Holy, The Heart of Everything That Is: Paha Sapa, Treaties,
and Lakota Identity, 23 OKLA. CITY U.L. REV. 317, 322-23 (1998).
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the place of origin of the Lakota people.46 The centrality of
the Black Hills to Lakota creation suggests how important
they are to the Lakota people, their spirituality, and way of
life.
This spiritual importance, however, is not only historical. It is continuous. The Lakota continue their relationship
with the sacred Black Hills,47 and today, the Black Hills
constitute a central aspect of Lakota cultural identity.48 As
Professor John La Velle explains,
The Black Hills land is of primary importance because of its sacredness, its nexus to the cultural
well being of Lakota people, and its role as mediator in their relationship with all other living
things . . . Land is inherent to Lakota people. It
is their cultural centerpiece—the fulcrum of material and spiritual well being. Without it, there
is neither balance nor center. The Black Hills are
a central part of this ‘sacred text’ and constitute
its prophetic core[.]49
LaVelle, like New Holy, suggests that the sacred nature of
the Black Hills is central to Lakota beliefs about the Black
Hills. The sacredness of the Black Hills to the Lakota is
46 Lakota beliefs about their creation in the Black Hills are widely known
and have been reported about in the media. See, e.g., Indian land claims; Gold in
the Hills, THE ECONOMIST, July 23, 1994 at 28; Linda Kanamine, Money vs. promised
land // Sioux tribes spurn cash for sacred Black Hills, USA TODAY, November 30,
1992 at 7A.
47 See, e.g., Linda Kanamine, Money vs. promised land // Sioux tribes spurn
cash for sacred Black Hills, USA TODAY, November 30, 1992 at 7A (“Children and
adults often visit the scenic mountains for recreation and religious ceremonies.”).
48 LaVelle, supra note , at 67 (“For the Lakota, Dakota, and Nakota people,
Paha Sapa is ‘constitutive of cultural identity.’”).
49 La Velle, supra note, at 66.
13
widely documented,50 and repeatedly asserted by Lakota
leaders.51
The Lakota were not only created in the Black Hills; the
Black Hills continue to sustain them physically, spiritually
and culturally. The Lakota have and continue to use the
Black Hills for religious and physical sustenance.52 The
Lakota pass down more than just stories about the Black
Hills. They share their sense of the sacredness of the Paha
Sapa, the place of their creation, renewal and sustenance.
This ongoing relationship between the Lakota and the Black
Hills is central to Lakota beliefs about the Black Hills.
The ongoing relationship that the Lakota have with their
sacred Black Hills informs not only how the Lakota perceive
the Black Hills, but how they experienced the alienation of
their land at the end of the nineteenth century. The Lakota
resisted the intrusion of white settlers and their technology
into their lands. In the 1860s, they opposed the development of a road through their best hunting grounds in the
50 See, e.g., David F. Salisbury, Indians Claim the Land Under 1868 Treaty and
Set Up Camp; US Replies with Lawsuit but Both Sides Avoiding Violence, CHRISTIAN
SCIENCE MONITOR, September 11, 1981 at 12 (“Few argue with the Sioux contention that during the centuries they lived in the area, the Blacks Hills were
considered a holy place. Ranging widely throughout the Great Plains during the
winter, the tribes would return to Paha Sapa each spring to spend the summer in
the cool hills and to conduct a number of religious ceremonies.”). See also Alix
Sharkey, A five-star hotel and casino. Well thanks, Kevin, THE INDEPENDENT (London), May 20, 1995 at 31 (““Standing at the centre of a six-state area once known
to white settlers as ‘Indian country’, the Black Hills, or Paha Sapa, are sacred to
the Sioux. These were their burial grounds and holy lands, where they came on
‘vision quests’, and held their annual Sundance rituals.”).
51 Several Lakota leaders have publicly mentioned the sacred nature of the
Black Hills. For instance, in 1980, “Russell Means of the American Indian
Movement called the land 'our graveyard, our church, the center of our universe
and the birthplace of our people.’'' $105 Million Award to Sioux Upheld, THE NEW
YORK TIMES, July 1, 1980 at A1.
52 See, e.g., Linda Kanamine, Money vs. promised land // Sioux tribes spurn
cash for sacred Black Hills, USA TODAY, November 30, 1992 at 7A (“'We claim all
the Hills; they are our church,' says Sam Loudhawk, an Oglala Sioux who is
chairman of a multi-nation lands committee. 'They are our origins and some of
our burial grounds.').
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Power River Country. After a series armed engagements,
the United States and the Lakota entered into treaty negotiations. These negotiations resulted in the Treaty of Fort
Laramie in 1868. The Treaty
established peace between the Sioux bands and the United
States (art. 1); established a 26 million acre reservation (the
Great Sioux Reservation) for the "absolute and undisturbed
use and occupation" of the Sioux bands (art. 2); provided
that no future cession of the reservation would be valid
without the signatures of three-fourths of the adult male
population of the Sioux bands (art. 12); provided that the
Sioux bands would have hunting rights over their remaining 1851 treaty lands and expanded hunting rights
westward to the summits of the Bighorn Mountains and
southward to the Republican river so long as the Buffalo
ranged in such numbers as to justify a chase (art 11); provided that when agency buildings were constructed by the
United States, they would regard the permanent reservation as their permanent home (art 15); and provide that all
remaining 1851 treaty lands would remain "unceded Indian territory" (art 16).53
The Treaty, however, did not end white encroachments onto
Lakota lands. In 1874, Lt. Col. George Armstrong Custer led
a military expedition into the Black Hills. He sent back
reports of gold in the Black Hills, and speculators and fortune seekers flocked to the Hills in mass. Hostilities soon
broke out as Lakota tried to defend their lands from the
encroachments. The United States government refused to
protect Lakota lands or prevent further incursions into
them. Instead, in 1877, Congress ignored the promises it
had made to the Lakota in the Treaty of Fort Laramie and
passed legislation exerting ownership over the Black Hills.54
GONZALEZ & LYNN, supra note , at Appendix H.
Sioux Nation, 448 U.S. at 383 (“The passage of the 1877 Act legitimized
the settlers' invasion of the Black Hills, but throughout the years it has been
regarded by the Sioux as a breach of this Nation's solemn obligation to reserve
the Hills in perpetuity for occupation by the Indians.”).
53
54
15
Ever since, Lakota have condemned this act as the theft of
their lands and felt a deep sense of cultural, spiritual, and
economic loss due to the alienation of their sacred land.
Due to the ongoing, sacred relationship that the Lakota
have with the Black Hills, the loss of these lands devastated
them. Many of the public and autobiographical statements
made by Lakota and newspaper reports on the Lakota’s loss
of their land highlights how the alienation of these lands
affected the Lakota spiritually, culturally, and economically.
One newspaper emphasized the spiritual degradation experienced by the Lakota, reporting,
The loss of the Black Hills was the worst part.
The Sioux call them ‘wamaka ognaka onakizin’,:
the sanctuary of everything that is. They believe
that the first Sioux was put on earth there. Asking a Sioux to give up the Black Hills, one wrote,
is like asking a Christian to reject Christ as the
Son of God.55
This statement illustrates how Lakota beliefs about the Black
Hills, their sacred view of the land and their ongoing relationship with the Black Hills, contributed to how Lakota
reacted to the 1877 Act confiscating their lands. These beliefs informed Lakota understandings of their experiences,
and fueled the grievance they felt at the loss of the land.56
Indian land claims; Gold in the Hills, THE ECONOMIST, July 23, 1994 at 28.
This sense of loss continues as Lakota feel slighted when they must pay
user fees to go on their lands and deal with tourists in their sacred sites. Marc
Goldstein, Sioux Agonize Over Taking Money or Regaining the Black Hills, THE NEW
YORK TIMES, July 16, 1984 at A17. Goldstein explains,
55
56
Most important, the Indians view this land as sacred. Their ancestors once ranged across the northern Plains, praying, fasting and
seeking visions in the Black Hills. Now the Sioux say they must
pay user fees and endure tourists in
their holy places.
'It's like someone taking a church or synagogue and giving it to
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Not all grievances, however, turn into legal claims, and
the identification of Lakota beliefs about the Black Hills does
not provide any insights into how the alienation of the Black
Hills turned into a land claim against the United States. To
understand how Lakota beliefs collectively contributed to
the transformation of Lakota grievances into a legal claim
against the United States requires a closer look at the experiences of every day Lakota from the late 1870s to around the
time of the original filing of the Black Hills claim in the
Court of Claims in 1923.57
B. Making a Claim: The Emergence of the Black Hills Dispute
In this section, I demonstrate how Lakota beliefs about
the Black Hills combined with their experiences after the
1877 Act alienating their land and informed the emergence
of the Black Hills claim. I use American Indian Stories, which
was written around the time of the claim’s emergence and
refers extensively to Lakota beliefs about the Black Hills, to
provide insights into the formation of the Black Hills claim.
I argue that American Indian Stories illustrates how Lakota
beliefs about the Black Hills informed the naming, blaming,
and claiming process that transformed Lakota grievances
about the loss of their land into the largest land claim ever
filed against the U.S. government. Lakota engaged in the
process of naming, blaming and claiming that underlies
some private people,' said Mr. Gonzalez, the tribal lawyer. 'It
would be outrageous to Jews or Christians, but for Indians it's
O.K.’ The Indians say they must save the Black Hills from 'rape'
by developers who would reduce its pine forests and granite
bluffs to strip mines, gravel pits and nuclear waste dumps.
Id.
57
Sioux Nation, 448 U.S. at
17
dispute formation as they sought to deal with the loss of
their land and formulate a legally viable claim for its return.
Lakota beliefs about the Black Hills emerge in the autobiographical stories of Zitkla-sa.58 Zitkla-sa’s American
Indian Stories highlight the importance of land, and the Black
Hills in particular, in everyday Lakota life and culture. It
shows how these beliefs weaved together with the experiences of the Lakota in the late nineteenth and early
twentieth centuries and prompted Lakota people to seek
legal redress for the alienation of their land.
Zitkla-sa wrote her autobiographical American Indian
Stories in the first few decades of the twentieth century, at
the commencement of collective Lakota strategies for claiming the Black Hills legally and politically. During this time,
the Lakota lobbied Congress for an act waiving the U.S.
government’s sovereign immunity and permitting a Lakota
suit based on the unilateral usurpation of the Black Hills.59
In 1920, after decades of lobbying efforts, the Lakota finally
succeeded in convincing Congress to pass a special jurisdictional act allowing them to file suit against the U.S.
government for claims “under any treaties, agreements, or
laws of Congress, or for the misappropriation of any of the
funds or lands of said tribe or band or bands thereof.”60 The
Lakota then hired counsel, and by 1923, their new lawyer,
58 I do not mean to suggest that other works do not also illustrate the
importance of Lakota beliefs in the emergence of the Black Hills claim. I chose
this autobiography because it is one of the earliest literary accounts written by a
Lakota woman around the origin of the claim. It focuses not on the claim per se,
but depicts the experiences of ordinary Lakota, and thus presents a more universal narrative of Lakota life at the time. Zitkla-sa was not an influential leader of
the Lakota, but represents the experience of many Lakota at that time. She was
born to a common family, grew up without a father, was sent to boarding school
for an education, and returned to serve Indian people and work towards Lakota
survival.
59 LAZARUS, supra note , at ; GONZALEZ & COOK, supra note , at Appendix H.
60 Act of June 3, 1920 [41 Stat 738].
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Ralph Case had filed the Lakota’s treaty claims in the U.S.
Court of Claims.61
While she played a role in the hiring of the attorneys to
represent the claim in 1920, Zitkla-sa does not directly discuss the claim in American Indian Stories.62 Her work depicts
the experiences of ordinary Lakota around the time of the
emergence of the claim. It presents a narrative of Lakota life
at the time, and provides insights into the early stages of the
creation of the claim. Her stories refer to the Lakota beliefs
about the Black Hills and their experiences after the alienation of their sacred lands in 1877. Many recount individual
factual situations remarkably similar to what happened
collectively to the Lakota as they lost their land and struggled to regain it through the U.S. legal system. The
narrative constructed by American Indian Stories helps us to
understand how Lakota living conditions and beliefs facilitated the emergence of the Black Hills claim. A close
reading of her stories suggests how ordinary Lakota may
have experienced the naming, blaming, and claiming process underlying the development of the legal claim.
American Indian Stories presents a narrative about how
Lakota experienced the loss of the Black Hills. It contextualizes Lakota beliefs about the Black Hills and the impact of
their loss on Lakota in the decades following their alienation.
In this way, Zitkla-sa’s narrative enhances
understandings of the Black Hills claim and how it emerged
from the raw feelings of dispossession and despair felt by
Lakota shortly after the United States took the land. Her
stories document the sacred, ongoing relationship that Lakota have with the land and the trauma that they suffered as a
result of its loss. Throughout the book, she highlights the
61
62
GONZALEZ & COOK, supra note , at Appendix H.
LAZARUS, supra note , at 138-39.
19
deep spiritual connection that Lakota have with the land,63
how that influenced the deep psychological, economic, and
cultural trauma of dispossession, and the struggles the
Lakota faced in their quest for justice. From the very first
story that Zitkla-sa tells about a girl getting water from the
river with her mother,64 she indicates the sense of loss that
the Lakota felt due to the alienation of their land.65 She
describes how the loss of land affected the Lakota economically, culturally, and spiritually as they attempted to adjust
to the laws and ways of the white man. Her stories suggest
a growing skepticism of white people among Lakota and a
genuine resentment of whites for the taking of Lakota land.
Zitkla-sa’s stories about Lakota experiences at the turn
of the century as they are attempting to deal with the alienation of their land show how the Lakota sense of loss
stemming from dispossession emerged into a legal claim.
Recall that disputes emerge through a three step process.66
In the first step, naming, an individual or group of individuals identify a particular experience as injuring them.67 In
American Indian Stories, Zitkla-sa recounts the bitterness that
her mother and other Lakota felt about the dispossession of
their land.68 The characters in her stories feel injured by the
loss of their land, which is accompanied by loss of livelihood
and culture.69 They perceive the root of their injury as the
loss of their land,70 and are bitter about and hurt by the loss.
63
(1921).
See, e.g., ZITKALA-SA, AMERICAN INDIAN STORIES 7-11, 97, 101-07, 159-82
Id. at 7-11 (1921).
Id. at 9 (“If the paleface does not take away from us the river we
drink.”).
66 Felstiner, et al., supra note , at 631.
67 Id. at 635.
68 See, e.g., ZITKLA-SA, supra note , at 10 (“the paleface has stolen our lands
and driven us hither”).
69 Id. at 10-11 (loss of livelihood and relatives), 44-45 (loss of culture
through education), 165-66 (impoverishment due to loss of land).
70 Id. at 10-11, 44-45.
64
65
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These strong feelings of anger, bereavement, and injury
stem in part from their beliefs about the sacredness of the
land and their spiritual connection to it. Central to their
bitterness is a claim—white men stole their land.71 This
claim is a recurring theme in American Indian Stories. Her
work suggests that from very early on, the Lakota were
naming the wrong against them—the stealing of their
land—and felt severely injured by it.
Zitkla-sa’s American Indian Stories also suggest the role
that Lakota beliefs and experiences played in the second
stage of claim formation, blaming. Blaming occurs as a
perceived injurious experience is transformed into a grievance with the expectation that something can be done to
remedy the injury.72 Repeatedly, Zitkla-sa identifies the
parties responsible for the injury experienced by the Lakota
through the alienation of their land.73 The responsible party
is often described generically as the palefaces,74 who are
described as heartless and deceitful.75
Some of the stories, however, indicate that the white
man’s government is to blame for the problems faced by the
dispossessed Lakota.76 These stories imply an expectation
that the government could remedy the situation by highlighting the failure of the government to do anything to
assist the Lakota. Many suggest that justice cannot be obtained from the government in Washington. In the story
entitled “A Trip Westward,” the mother blames the Great
Id.
Felstiner et al., supra note , at 635.
73 See, e.g., ZITKLA-SA, supra note , at 10, 44 (“The palefaces, who owe us a
large debt for stolen lands . . . “).
74 Id.
75 Id. at 11, 41, 76, 93, 95-96.
76 The two stories that most clearly identify the government as responsible
for the alienation of Lakota land are “An Indian Teacher Among Indians” and
“The Widespread Enigma of Blue-Star Woman.” Id. at 90-92, 159-82.
71
72
21
Father in Washington for her son’s lack of employment.77
As the story continues, the mother explains that the son lost
his job because he tried to secure justice for the tribe in a
small matter relating to some white robbers.78 She candidly
states, “The Indian cannot complain to the Great Father in
Washington without suffering outrage for it here.”79 This
passage identifies the government as part of the problem
and to blame for the problems experienced by the Lakota. It
implies that the government should and could do something
to right wrongs against the Lakota but it will not. Zitkla-sa
identifies the U.S. government more explicitly as the party
to blame for the dispossession of Lakota lands in the very
last story in the book.80 In this story, the government contributes to the continued alienation of Lakota tribal land
through shady dealings.81
The narrative presented by Zitkla-sa in these two stories
mirrors the experiences of Lakota in the 1870s and thus,
suggests that the U.S. government was to blame for their
dispossession, poverty, and loss of culture. The first story
about the woman’s son and how Lakota cannot trust the
government to provide them with justice reflects Lakota
experiences with the Treaty of Fort Laramie. Lakota chiefs
entered into the Treaty of Fort Laramie with the United
States in 1868 to secure ownership over their lands and
prevent further encroachment by whites. Yet white prospectors invaded their lands shortly thereafter. Instead of
protecting their lands, the government soon condoned the
actions of the settlers, and provided the ultimate sanction for
their incursions onto Lakota lands by taking these lands
77 Id. at 90-91 (“’Dawee! Oh, has he not told you that the Great Father at
Washington sent a white son to take your brother’s pen from him? Since then
Dawee has not be able to make use of the education the Eastern school has given
him.”)
78 See, e.g., ZITKLA-SA, supra note , at 91.
79 Id.
80 Id. at 181-82.
81 Id. at 159-82.
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through the 1877 Act. In Zitkla-sa’s story as in real life, the
government denied justice to Lakota people.
The second story about the shady land dealings also
parallels how the U.S. government treated Lakota and their
lands in the 1870s, and blames the government for this
treatment. Much as the U.S. government confirmed the
confiscation of Lakota land by encroaching settlers through
the 1877 Act, in this story the government facilitates the loss
of Lakota land by sanctioning shady land dealings. While
Zitkla-sa relays these stories on an individual level rather
than a collective one, the similarities between her stories and
the experiences of Lakota in the 1870s suggest that her narrative may allude to more than the problems faced by
individual Lakota. Her stories identify an expectation that
the wrongs against the Lakota could be remedied and indicate that Lakota felt that the U.S. government could not be
trusted and was to blame for the alienation of Lakota land.
Perhaps, the clearest statement that Zitkla-sa makes on
who is to blame for Lakota dispossession is in her essay,
“America’s Indian Problem,” which follows the stories in
American Indian Stories. In her essay, Zitkla-sa alleges that
the government has mismanaged Indian lands and treated
Indian people unequally.82 She states, “The many treaties
made in good faith with the Indian by our government we
would like to see equitably settled.”83 Her statements, both
in the essay and the stories, identify a particular party (the
U.S. government) as responsible for the injury to the Lakota.
They illustrate how the Lakota came to blame the government rather than white people in general for the loss of their
land. Further they suggest an expectation that the government could remedy the land alienation problem but that it
would not.
82
83
ZITKLA-SA, supra note , at 190-92.
Id. at 187.
23
American Indian Stories also discusses the difficulties
Lakota faced in the third stage of dispute formation, claiming. Claiming occurs when the party with the grievance
voices it to the person believed to be responsible, asks for
some remedy, and is denied.84 In the final story, Zitkla-sa
illustrates the several difficulties that arose when Indians
tried to make land claims, including issues over who should
be on the tribal lands and deserving of land,85 the role of
clever white lawyers in the claims process,86 and the dispossession of more land as a result of engaging in the process.87
She suggests that successful claims can only be made
through the white man’s system with the help of whites or
their agents, who cannot be trusted.88 Further, she hints that
the government is more interested in obtaining more land
fraudulently than in assisting Indians in protecting their
land.89 This suggests that the government denies all wrong
doing towards the Lakota and does not see land alienation
as a problem. Even in the rare circumstances that a claim
could be made, it is denied by the government.
Zitkla-sa may leave the reader with this impression
because it reflected what had happened and was happening
to the Lakota at the time. They had sought to secure their
land from alienation through the Treaty of Fort Laramie.
Their efforts failed when the U.S. government violated the
treaty by unilaterally passing the 1877 Act. The government
appeared more interested in acquiring additional land for
white settlement than protecting sacred Lakota lands. Further, the U.S. legal system continually foiled Lakota efforts
to remedy this injustice. At the time that Zitkla-sa wrote
American Indian Stories, Lakota had been collectively seeking
Felstiner et al., supra note , at 635.
ZITKLA-SA, supra note , at 161.
86 Id. at 169.
87 Id. at 181-82.
88 Id. at 169.
89 Id. at 171-175.
84
85
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the return of the Black Hills for close to forty years.90 They
could not seek redress in U.S. courts without specific congressional authorization, and were actively pursuing a
jurisdictional act from Congress which would allow them to
make a treaty based claim for their beloved Black Hills. 91 In
the early decades of the twentieth century, even getting the
Black Hills claim into court must have seemed elusive as it
took decades for the Lakota to persuade Congress to pass a
statute waiving sovereign immunity and permitting the
claim.92
American Indian Stories presents a narrative of how the
dispossession of Lakota land in 1877 emerged into the largest land claim ever adjudicated against the United States. It
illustrates how Lakota beliefs and experiences informed the
creation of the Black Hills claim. The Lakota’s sacred ongoing relationship with their land, particularly the Black Hills,
informed how they dealt with the experience of dispossession and their ability to transform this experience into a
legal claim. The stories vividly describe how Lakota deeply
felt the injury of dispossession as they suffered economically, culturally, and spiritually as their land was alienated.
This sense of loss helped Lakota to identify their injury and
name it as the dispossession of their land. The acuteness of
this injury spurred their growing skepticism of white people
and genuine resentment towards whites and the U.S. government for stealing their land. They blamed whites for
Sioux Nation, 448 U.S. at 383-84 ("The Sioux thus affected have not gotten over talking about that treaty yet, and during the last few years they have
maintained an organization called the Black Hills Treaty Association, which
holds meetings each year at the various agencies for the purpose of studying the
treaty with the intention of presenting a claim against the government for
additional reimbursements for the territory ceded under it. Some think that
Uncle Sam owes them about $ 9,000,000 on the deal, but it will probably be a
hard matter to prove it.") (citing F. Fiske, The Taming of the Sioux 132 (1917)).
91 LARAZUS, supra note , at .
92 Id. at
90
25
their injury and over time, determined that the government
in particular was to blame because it failed to live up to its
promises. When Lakota made claims against the government, these claims were denied or ignored as if no wrong
had occurred. Zitkla-sa’s stories illuminate the process of
naming, blaming, and claiming that the Lakota were going
through as they identified the injury caused by the U.S. and
fought to transform it into a legal claim cognizable in a U.S.
court. Further, her narrative contextualizes and personalizes the Lakota claim to the Black Hills by describing how
dispossession affected ordinary Lakota in the late nineteenth
and early twentieth centuries.
The process of naming, blaming, and claiming illustrates
how Lakota grievances about the loss of their land transformed into a legal claim. If the Lakota had not felt injured
and could not attribute that injury to the government, the
Black Hills claim would not have developed. The ability of
the Lakota to feel the injury and identify the responsible
party was related to their beliefs about and relationship to
the Black Hills. The sacred nature of the land heightened
the sense of loss or injury felt by the Lakota. American Indian
Stories illustrates this link. It also shows how the experiences of Lakota in the late nineteenth and early twentieth
centuries contributed to the formation of the Black Hills
claim.
CONCLUSION
Applying a narrative lens to the process of dispute
formation augments understandings of how human experiences transform into legal disputes. The narrative lens
provides useful insights into how disputes emerge by highlighting how parties’ subjective beliefs and understandings
of their experiences inform the process of dispute formation.
Because not all human experiences develop into legal dis26
DRAFT 3/8/2016
putes, the parties’ understanding of their experiences may
help to explain why some incidents develop into legal
claims while others never do.
In the case of the Black Hills claim, the narrative in
Zitkla-sa’s American Indian Stories suggests how Lakota
beliefs about the Black Hills combined with their experiences in the late nineteenth century led to the formation of their
legal claims against the United States government. The
Black Hills claim emerged as a legal dispute largely because
the Lakota believe the Black Hills to be sacred and felt a
deep sense of cultural, spiritual, and economic loss when the
government took these lands from them. As American Indian
Stories shows, the Lakota perceived the loss of their land as
an acute injury that needed to be rectified by the U.S. government, who was primarily responsible for the alienation
of their land. This understanding of their dispossession
became the basis of the Black Hills claim.
27