Jul 26, 2013 - Are Treaties the Supreme Law of the Land? -Franklin Avalos
Why Won’t the US Honor the Fort Laramie Treaty of 1868?
The United States and the indigenous tribes of America have a long history of broken treaties. I always heard about, as you probably have, that the Black Hills were taken from the Lakota by the US breaking the Fort Laramie Treaty of 1868. I found myself not being able to explain this to my fellow Americans during discussions when they pressed me for specifics. We usually ended our discussions with both sides being heated and neither side understanding more. These experiences pressed me to research for myself what exactly is our land claim to the Black Hills and why it wasn’t being honored.
I began by reading the Constitution. The Constitution, written so plainly and simply to be understood by all, has gone to a place of manipulated interpretations and bending of words in order to justify actions. Like the Constitution, the Fort Laramie Treaty of 1868 was written plainly and easy to understand. My research led me to something astonishing, under Article VI Claus 2 which reads “This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.”
Wow, there it is in plain English. Treaties are the supreme law of the land. We just need to show this to someone and then we can get the Black Hills back, right? Well, I couldn’t find someone and while I was searching found out that the Black Hills Treaty Council already knows this information. So I thought I would try to spread this knowledge by starting a Facebook group called Rightful Return of the Black Hills dedicated to the study of our legal claim to the Black Hills. I will refer to the Sioux in this article because we are referenced as such in the Treaty even though I do not like the word.
The actual Act that took the Black Hills was the Congressional Act of February 28th 1877. According to the Fort Laramie Treaty, Congress needed a 3/4 adult male Indian vote to cede any of the territory that was laid out for the Sioux. Although some Sioux leaders did sign the document, a 3/4s male vote was not achieved. Immediately after the passing of the Congressional Act the Sioux tried to challenge the Act using the Fort Laramie Treaty requirement. The US Government supposedly did not have a process to review the challenge. We finally lobbied Congress enough where they looked at our case in 1923 and dismissed it by 1942. At some point during the court process the claim was presented as “not receiving just compensation” and about interest payment for all those years. By 1980 the Supreme Court ruled that the United States did not justly compensate the Sioux Nation of Indians when the US seized the Black Hills under the rules of Eminent Domain (5th Amendment). The United States does not have Eminent Domain power over our land as stated previously that a 3/4s male vote is needed to cede any territory laid out in the Fort Laramie Treaty. I researched Article VI and this is what it basically means. The Acts of Congress and Treaties are the supreme law of the land. It is generally understood that if there is a conflict between an Act and a Treaty which ever was passed most recently will take precedent as it is viewed as the will of the people. And it is this issue we need to fight.
We have a solid and legal claim to the Black Hills. We have support of the United Nations through James Anaya. We need to spread the word to the people of the United States. The guaranteed way for the Government to act is by the people. It’s what the United States was founded on and it is still the only power that the people have. The citizens of the US have effectively stopped the Vietnam War, fought for civil liberties, and secured women’s suffrage. Our efforts should not only be on a government to government basis, but to the people as well. If we get the people of the United States to back us, the government will have no choice but to act. Now when I talk to my US friends, family, and colleagues they say “oh… well, that’s not right.”
Note: There are greater details to the court process we went through. I mainly wanted to point out Article VI and the interpretation of it, and what the Supreme Court actually ruled on in United States v. Sioux Nation of Indians.
Treaty of Fort Laramie (1868)
Congressional Act of February 28th, 1877
Constitution of the United States
United States v. Sioux Nation of Indians
California Prentice Hall Magruder’s American Government by William A. McClenaghan