“The Black Hills are for sale!”: Decolonizing U.S. Settler Colonial Property Regimes

Introduction

The Lakota saying goes that when someone owes you money and you know they cannot pay you back, you say, “Toksa He Sapa!”, that is, “Goodbye Black Hills!” The cruel pessimism in this phrase speaks to the larger issue of the Black Hills land claim as an outstanding debt owed to the Native people of North America and Indigenous people across the globe. It speaks to the inability of liberal democratic states to address how endemic land and the commodification of land is to the broader framework of settler colonialism. The market economy and the parceling of land into units of private property play an integral role in how the U.S. settler colonial state manifests itself into being, as well as maintaining colonial property regimes in the present to further dispossess Native people.

The Black Hills—or He Sapa—are an internationally recognized symbol of Native and Indigenous peoples’ outstanding claims to ongoing injustices perpetuated by the U.S. and other settler colonial nations across the globe. More recently, the private sale of a 1,940-acre tract of land of what is known to the Nation of the Seven Council Fires—or the Oceti Sakowin Oyate—as Pe’ Sla and Reynold’s Prairie by U. S. colonizers became a mobilizing issue that sparked a renewed interest in the Oyate’s claim to He Sapa. What sets the private sale of Pe’ Sla apart from the more than 160 years of legal and historical claims to He Sapa and designated treaty territory is the $9 million purchase of private land by the Oyate directly implicates Native people in the commodification of land as a resource that can be bought and sold.[1] Property, as it relates to the commodification of land within U.S. settler imperialism, is dependent on the dispossession of Native title. Paradoxically, however, in the 1980 United States v. Sioux Nation of Indians case, the U.S. Supreme Court ruled that the U.S. illegally seized He Sapa and awarded the claimant tribes a monetary settlement of $106 million, which was subsequently refused in the spirit of the moniker “The Black Hills are Not for Sale!” Thus, the purchase of a sacred site within territory that has been ruled as illegally seized by the U.S. raises many questions to the validity of colonial property regimes and land purchases by tribes. Inherent within these exchanges is the notion that the U.S., as a colonizing settler state, endorses the elimination of Native title to land, while maintaining that in doing so it abrogates its own legal protection of Native title. But it is the intent of U.S. settler colonial capitalism to incorporate He Sapa into the national political economy in spite of its illegal claim. Therefore, the contradictions of property as it relates the claims of Native title to illegally seized territory in the claims of He Sapa and Pe’ Sla, as defined through the interpretations of the U.S. Supreme Court, warrants a re-examination of U.S. settler colonial logics of property and the political economy of U.S. settler colonialism in He Sapa.

This essay examines the complicity of the Oyate to participate in the market economy to buy back Pe’ Sla that challenges the effectiveness of international and national legal channels to productively ameliorate the material conditions of settler colonialism as it relates to outstanding Native land claims. The hollow legal and political definitions of “sovereignty” and the “rights” of Native peoples, for example, carry little weight in the context of the legal rights to property as exerted by U.S. colonial dominance. Given the logics of the U.S. settler colonial state that specify certain entitlements to individual property ownership as defined by law, the power invested in Native institutions to participate in market economies of land exchange presents a unique paradigm of decolonization that has immediacies in the present state of property regimes and ongoing land dispossession. The private purchase of Pe’ Sla by the Oyate demonstrates the inability of cultural and spiritual claims to He Sapa to effectively materialize land return. Instead, by participating in the market economy of land purchase, the Pe’ Sla becomes an iconic moment for the Oyate because no court ruling or moral appeal has effectively returned any portion or the whole of He Sapa.

As significant stakeholders in territorial claims for land that is continually seized and reordered into market economies, the Oyate’s presence within these territorial contestations are what Patrick Wolfe describes as a key feature of settler colonialism: “contests for land can be—indeed, often are—contests for life.”[2] The deeper issue of land and the material resources it provides for the continuance of life for both the Oyate and settler society depends on a nuanced understanding of the legitimacies of property regimes as contestations for life.

Colonial Property Regimes

The colonial history of He Sapa, indeed, represents a violent contestation for life. Beginning in 1874 with George A. Custer’s illegal entry into He Sapa and what was designated “Sioux Territory” by the 1868 Fort Laramie Treaty, the prospects of gold prompted an invasion of white prospectors into what is now known as the Black Hills in the western half of South Dakota. In a series of ongoing battles between the Oyate and the U.S. Calvary, the violence of conquest centered on He Sapa as material resource and the securing of a market economy of land in the U.S’s western frontier. Eliminating Native presence depended on not only the outright physical extermination of the Oyate, but also the over-determinacy that He Sapa would be opened up for settlement and incorporated into settler colonial property regimes. In 1876 homesteader Joseph Reynolds laid claim to the Pe’ Sla site and represented the current of settler claims that arose in and around He Sapa. Driven by the desire for territorial acquisition of individual properties and the capital they guaranteed, U. S. settlers within the Dakota Territory recognized the political and economic significance of He Sapa as not only sustaining the Oyate’s continued resistance to the U.S., but also the future incorporation of Oyate territory into the U. S. political economy to establish settler colonial regimes of property.[3] Therefore extinguishing the Oyate’s claim to He Sapa was historically contingent upon the futurity of U. S. expansion and the establishment of capitalistic settler colonial property regimes.

The historical conquest of Oyate treaty land is an international phenomenon that implicates indigenous people within the colonial and imperial logics of property as they relate to the notions of dominance as expressed by both the Doctrine of Discovery and the Framework of Dominance, key concepts in international and domestic law both past and present. Inherent within U.S. federal Indian law is the reification of the theological Christian underpinnings of the Framework of Dominance and the expressed right of sovereign Christian nations of dominion over discovered land and people, rendering both as property of their Christian discoverers. The European Old World understanding of property, for example, originates from the Latin term dominium, which means absolute ownership. The infamous 1832 U.S. Supreme Court case Johnson v. M’Intosh ruled that the U.S. retained rights of conquest and discovery as inherited from prior European colonial powers, thus legally condoning settler transgressions into Native held territory.[4] The legal foundations and articulation of Native title, therefore, will always be subject to the understandings of property law as the right of absolute ownership over Native land and people. Sustaining settler colonial property regimes, then, is contingent up the continued dispossession of Native territory and title as self-perpetuating system of capital accumulation.

Today, the political economic futurity of He Sapa is seen in similar terms. Although the prospects of gold no longer sustains the territorial market economy, political economies of uranium and the prospects of oil drilling sustain the future political economies of the settler colonialism in South Dakota and the Great Plains region. The territorial presence of the Native territorial contestations at key sites such as Pe’ Sla do, however, pose serious challenges to the future capitalistic resource development. For example, the Pe’ Sla dispute originated in 2005 when Pennington County received a $9 million federal earmark to pave a road that ran directly through the Pe’ Sla site. In 2008 the Federal Highway Administration determined that development of a roadway was a national priority and would directly benefit the timber and tourist economies. Despite the Oyate’s recent purchase of Pe’ Sla, the site still remains subject to the building of the road to benefit the tourist and timber industries. But, as property owners of Pe’ Sla, the Oyate put itself in the position to protest the proposed highway development.[5]

Unsettling Colonial Property Regimes

On 12 August 2012 the Rosebud Sioux Tribal Council issued a press release stating it would “act as the conduit to the unite all the Oceti Sakowin… in this struggle to maintain its deeply rooted traditions” at Pe’ Sla and He Sapa.[6] Also, within this press release the Rosebud Sioux Tribal Council articulates a moral and spiritual right to Pe’ Sla as being intrinsic to the livelihood of the Oyate. These immaterial claims of moral and spiritual rights run counter to the logics of property ownership within U.S. settler colonialism, and likewise have no legal bearing or precedent in any U.S. law. They do, however, position a spiritual and moral obligation of the Oyate to protect land that, though illegally seized, is not outside the power of reincorporating Pe’ Sla within the territorial boundaries of tribal property. Moreover, the Oyate’s legal right to purchase land in private auction can be seen as an exercise of the sovereign right to purchase private property. This commercial exchange of land falls into the rights bestowed upon Native nations by U.S. federal law to participate in the market economy of land.[7]

Likewise, utilizing the “sovereignty” as a moral right fails to fully grasp the material conditions in which property and dominance are exerted upon Native nations as subjects of U.S. empire. For Lenape scholar Joanne Barker, sovereignty is historically contingent upon definitions designed by U.S. federal policy. Within the legal frameworks espoused by colonial states on behalf of Native nations, “Sovereignty carries the horrible stench of colonialism. It is incomplete, inaccurate, and troubled.”[8] Purchasing Pe’ Sla as an sovereign act on behalf of the Oyate does directly implicate tribes within the settler colonial framework of land exchange, but it also reflects a certain kind of immediacy posed by the ongoing threat of colonial property regimes to further dispossess Native title. Where federal and domestic legal remediation of outstanding land claims fails to provide the material benefits of redistributing and relinquishing of land guaranteed to the Oyate under the 1868 Fort Laramie Treaty, the purchase of land to further halt development and deterioration of Pe’ Sla is a politically strategic move that does not easily fit within the frameworks of sovereignty as a moral right. Instead, it is a legally exercised right that can be viewed as both accommodating the modes of self-determination and self-government as bestowed upon tribes by the federal colonial regime of the U.S., while maintaining a position that is in direct opposition to the logics of property regimes. Dakota scholar Elizabeth Cook-Lynn writes that “Federal Indian law has curtailed the values of the Sioux Nation, the Ocheti Shakowan [sic], by outlawing traditional ways of behaving and replacing them with something formal and foreign.”[9]

So what are ways of addressing the wrongdoings of federal Indian law as it relates to colonial property regimes? Many commentators argue that Pe’ Sla and the He Sapa land claim on behalf of the Oyate would be a focal point for the material application of the United Nations Declaration of the Rights of Indigenous People (UNDRIP). Four months prior to the proclamation issued by the Rosebud Sioux Tribal Council, UN human rights Special Rapporteur James Anaya visited He Sapa and met with various Native communities around South Dakota and North Dakota to listen to their concerns about various issues that affected the everyday existence of the Oyate living within the material conditions of settler colonialism. Among many of Anaya’s findings, land, namely He Sapa, is central to the Oyate’s demands on the international governing body for resolving the 150 years of occupation of treaty-specified territory.[10] In fact, one of the primary movers for an international redress for outstanding Indigenous land claims originated in 1974 with the First International Indian Treaty Council at Standing Rock that was organized around the outstanding land claims of the 1868 Fort Laramie Treaty and the illegal occupation of He Sapa.[11] The International Indian Treaty Council went on to be foundational in creating a permanent forum for Indigenous issues at the United Nations, which was also foundational in creating the framework for UNDRIP.[12]

Yet many scholars, Anaya included, express serious reservations as to the effectiveness of UNDRIP for effectively ameliorating these demands for land return to the Native nations for two important reasons: 1) UNDRIP is not a legally binding document;[13] and 2) UNDRIP primarily emphasizes Indigenous “collective” rights as individuals and not as “nations.” Cook-Lynn argues that the implication of “nation” through the use of the word “collective” is not enough. Obfuscating Native nationhood within UNDRIP and not providing legal mechanism for redress, the Oyate treaty councils that directly opposed the very mechanisms of colonial property regimes since 1890 find that the only remedy is to return to treaties made between the U.S. and Native nations.[14] Given the long history of outstanding Indigenous land claims both internationally and within the U.S. setter colonial context, there still remains no material application of UNDRIP as effecting land return to Indigenous people.

(Im)Possibilities of Colonial Property Regimes

The lack of effective legal recourse that faces the Oyate to seek redress for the historic and ongoing dispossession of treaty-specified lands creates a seemingly impossible double bind. On one hand, the Oyate’s land base is continually under threat from being completely folded into  larger colonial property regimes. While on the other hand, the Oyate participates directly in the commodification of land through its participation in the private real estate economy. Opposition on part of the Oyate is not enough because until Native nations act outside the confines of federal authority, they will inevitably accommodate and replicate the very colonial means by which they are repressed. For example, Barker and Cook-Lynn both argue that sexually othered (namely, non-male) Native people experience the worst kinds of colonial violence. Both scholars see the accommodation of normative values of Christianity and liberalism as infecting tribal communities and governments. This reification of the normative values of the liberal democratic U.S. colonial state serves to validate the dominance of settler colonialism within Native communities and tribal law.[15]

Without directly implicating Native nations in the continued commercial commodification and exchange of land, then, how is it possible for the Oyate not to fall into the trappings of the colonial property regimes with the recent purchase of Pe’ Sla? Perhaps this question cannot be addressed in the appropriate manner without expressing the notion that property, as it is understood in a larger theoretical framework, does not imply permanent ownership. Although Pe’ Sla was privately owned by a white settler family for 136 years, it has now become the shared property of the Oyate. But, this, too, does not guarantee a permanent fix to the eventual recovery of He Sapa. Tribal property is also subject to change ownership, given how the entire history Native-Colonizer relations can be summed up as one violent real estate exchange—one that solely benefits and is intrinsic to the vitality of the U.S. settler state.

Without detailing the intricacies of how Native nations must put purchased or reacquired land into trust with the federal government (a colonial process inherently paternalistic), Pe’ Sla will still have to be federally trusted back to the Oyate through the Bureau of Indian Affairs. One needs only to look at the recent 2009 7,100-acre seizure of Crow Creek Sioux Tribe land by the IRS to understand the instability of tribal property and the paternalistic nature of the federal government. Eventually the Crow Creek Sioux Tribe, which is located in Buffalo County, SD, the poorest county in the United States, bought the purchased the land back from the IRS with the help of the Oyate. Although the case received extensive coverage by regional newspapers, the issue, like most outrages against the criminal behavior of the U.S. colonial state, fell silent after the land was returned.[16]

Conclusion

What is at stake in the private purchase of Pe’ Sla and any future private purchases of land by the Oyate, is the possibility that the land will somehow be reclaimed or incorporated back into colonial property regimes because property ownership is not permanent. This creates the opportunity and possibility of tribes to purchase land as an act of reacquiring territory. But because the Oyate remains financially and materially restricted by federal oversight, this cannot be a sustainable venture. A radical departure from the political and legal practices of tribes reifying normative values of the U.S. liberal democratic state has to take place first and foremost. This would mean abandoning these values as they pertain to the empty promises of self-determination, “sovereignty,” social Native exceptionalism (authenticity) and the exclusion of non-normative people, and, finally, a re-articulation of the fundamental legal precedents of treaty law.

Although the U.S. like many settler colonial state would like to create historically amnesic gap between the eliminationist policies of a colonial past to the continued eliminationist policies of the present, the continued existence and threat of the private exchange of land has on the Oyate is an enduring reality of the colonial present. For example, like all federal eliminationist policies of the past that have been subsequently rescinded or abandoned, the 1888 Dawes Act’s detrimental effect on Native land and title continues to be an enduring colonial feature of the present.

The primitive accumulation of land and the establishment of settler colonial property regimes, in effect, create the material conditions of possibility to simultaneously legitimize settler status through the protection of property rights within liberal democratic institutions of law and politics and roots of capital as a formulaic enterprise of Native territorial dispossession. Effectively addressing the current material conditions in place that are intrinsic to the settler colonial property regimes remain to be challenged. Pe’ Sla and outstanding contestations of He Sapa represent unique opportunities for the Oyate to unsettle these colonial property regimes. What must be taken into account, however, is that, if left unchallenged, settler colonialism and imperial demands for territorial and capitalistic expansion will continue. The importance of Pe’ Sla in the global context is that U.S. federal Indian law has historically been adapted by settler colonial regimes across the globe. The implementation of property regimes and the legitimation of dominance and discovery, for example, have been taken up by New Zealand, Australia, Canada, and more recently Israel as legal precedents for the legitimating the historic and continued existence of settler colonial states.[17]

Pressing the U.S. settler state to live up to its moral obligations to respect and provide recourse for Native nations as moral right does not have a legal bearing or precedent. To successfully unsettle colonial property regimes, there must exist an effective legal mechanism that addresses “reconciliation” and “decolonization” as a material redistribution of power. For Native nations, the realization of material power is the very existence of Native nations as property-owning nations that have real physical, material boundaries. Therefore, before any amelioration of the continued material subjugation of Native people can begin at an international or domestic level, land and the right to land must be acknowledged first and foremost. It is land, as mentioned by Wolfe, that settler colonialism creates life for itself. It is land for the Oyate that has sustained its existence. This would mean that the treaties between Native nations and colonizing states not merely be acknowledged or “honored,” but put into material practice.

Addendum: Owasicu owe waste sni (The way of the fat-taker is no good)

Yesterday (6 February 2013), Native Sun News announced that the Wounded Knee site on the Pine Ridge Indian Reservation is up for private sale at $3.9 million. Wounded Knee is the site where over 300 Lakota men, women, and children of Hehaka Gleska (pejoratively named “Big Foot” by whites because the shoes he was rationed were too small for his feet) band of Mincounjou were massacred at the hands of Custer’s former regiment—the Seventh Cavalry. Eighteen Medals of Honor—the United State’s highest military honor—were awarded to cavalrymen who participated in this massacre of mostly unarmed Mnicounjou. It was also the largest per capita awarding of the Medals of Honor for any conflict or war in U.S. history. Wounded Knee was also the site for the 73-day standoff between the American Indian Movement and the U.S. Marshalls and FBI. For the Oyate, the Wounded Knee Massacre and the AIM occupation represent dark, violent periods in our national history, as well as a site of refusal and rejection of wasicu occupation. It is a site that is considered by many as hallowed ground. But, more importantly, it is an historic testament to how the U.S. settler colonial regime refuses forgiveness and pardon for the Oyate’s centuries of resistance to colonial occupation.

James A. Czywcynski, the current white owner of the 40 acre site, put the land up for auction and stated, “We would really like to see the land returned to the Lakota people and that is why I am giving them an opportunity to purchase the land before I open it up to others for sale.” In a statement for the reasons why he put a $3.9 million price tag on the site, Czywcynski reasoned, “I was never repaid for the property losses I had as a result of what happened there in 1973 [during the AIM occupation]. The price that I have placed on the land is an attempt for me to reclaim my losses, and an attempt to get fair market value for the land.”[18] These statements alone are testament to how continued struggles over land are also struggles over life. For the U.S. settler state, as clearly expressed by Czywcynski, the debt of Native life and land is still being paid as damages for merely surviving and continuing to live with the violences of colonial property regimes. This debt is not just a land-based economy, but an economy of suffering and an economy of mourning that is continually commodified as marketable and exploitable.

Hecetu Welo!


[1] Mario Gonzalez and Elizabeth Cook-Lynn, The Politics of Hallowed Ground: Wounded Knee and the Struggle for Indian Sovereignty (Chicago: University of Illinois Press, 1999), 331-357.

[2] Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research (December, 2006), 387.

[3] Jeffrey Ostler, The Lakotas and the Black Hills: The Struggle for Sacred Ground (New York: Viking Press, 2010), 68-69.

[4] Permanent Forum on Indigenous Issues, Preliminary Study of the Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery (New York: United Nations Economic and Social Council, 2010), 4n.2.

[5] Steve Young, “Tribes Concerned About Sale of Property Near Deer Lake,” Rapid City Journal, 18 August 2012: http://rapidcityjournal.com/news/tribes-concerned-about-sale-of-property-near-deerfield-lake/article_28dd8422-49a6-59d5-a58f-911780af26b4.html

[6] Rosebud Sioux Tribe Press Release, “Rosebud Sioux Tribe to Take Lead on Protecting Sacred Site,” 12 August 2012.

[7] Felix S. Cohen, On the Drafting of Tribal Constitutions (Norman: University of Oklahoma Press, 2006), 60.

[8] Joanne Barker, “For Whom Sovereignty Matters,” in Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, ed. Joanne Barker (Lincoln: University of Nebraska Press, 2005), 26.

[9] Cook-Lynn, A Separate Country: Postcoloniality and American Indian Nations (Lubbock: Texas Tech University Press, 2012), 73.

[10] U.N. General Assembly, 21st Session, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, 30 Augus 2012, (A/HRC/21/47/Add. 1), 7, 17, 18, 20, 37-40.

[11] Roxanne Dunbar-Ortiz, The Great Sioux Nation Sitting in Judgment on America: An Oral History of the Sioux Nation and Its Struggle for Sovereignty (New York: The American Indian Treaty Council Information Center, 1977), 201.

[12] Alyosha Goldstein, Poverty in Common: The Politics of Community Action During the American Century (Durham: Duke University Press, 2012), 236-40.

[13] U.N. General Assembly, 21st Session, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, 19.

[14] Cook-Lynn, A Separate Country, 188.

[15] Cook-Lynn, A Separate Country, 96-102; Barker, Native Acts: Law, Recognition, and Cultural Authenticity (Durham: Duke University Press, 2011), 98-145, 189-216.

[16] Affiliated Press, “Crow Creek Sioux Tribe Fails to Block IRS Land Auction,” Sioux Falls Argus Leader, 3 December 2009: http://64.38.12.138/News/2009/017624.asp

[17] Permanent Forum on Indigenous Issues, Preliminary Study of the Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery, 19-20.

[18] Brandon Ecoffey, “Wounded Knee Site put up for Sale at $3.9M,” Native Sun News, 6 February 2013: http://www.indianz.com/News/2013/008419.asp

 



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