Letters: A Good Report
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A Good Report
As a member of the ABA Board of Governors and ABA member for over 40 years, I want to commend the Journal for the content and relevance of the articles in the August-September issue, as has been the case for the past few years. The “Law & Order: Legacy” article (page 34) was a return to binge-watching. And the article on lawyer-moms, “Bearing the Brunt” (page 54), revealed the many challenges brought on by COVID-19. The report from Governmental Affairs (page 69) noted the invaluable advocacy of the ABA on behalf of our profession as the national voice of lawyers. All in all, the information provided is evidence of the value of ABA membership and why investment in the ABA is sound and prudent.
William K. Weisenberg
Highland Heights, Ohio
More to the Sioux story
I recently read Allen Pusey’s “Congress Passes the ‘Sell or Starve’ Act” (August-September, page 72) about the “taking” of the sacred Black Hills of the Great Sioux Nation by the United States in 1877 with great interest. A great interest that soon dissolved into major disappointment.
In the limited space available, I want to make three basic points:
1. In the Fort Laramie Treaty of 1868, the United States did not “cede” the Black Hills, as asserted by Mr. Pusey, for the “undisturbed use and occupation” of the Great Sioux Nation. This land was not the United States’ to cede, but rather, as recognized in Article II of the treaty, it was owned by the Great Sioux Nation and not owned by the United States. This error by Mr. Pusey distorts all that follows in his piece.
2. Similarly, the “Sell or Starve’”Act, which was an appropriations bill, was not about the Great Sioux Nation relinquishing its “claim” to the Black Hills as Mr. Pusey asserts, but about pressuring the Great Sioux into “ceding the Black Hills to the United States.” Congress recognized in this legislation that the Great Sioux Nation owned the Black Hills. It was theirs to “cede.” It was not a mere “claim” for the United States to evaluate. In sum, the United States always recognized that the Great Sioux Nation owned the Black Hills. After the 1874 discovery of gold in the Black Hills by an exploratory expedition led by Lt. Col. George Armstrong Custer, efforts by the United States to seek transfer of the Black Hills intensified. After the failure of both the Allison Commission and the Manypenny Commission (not mentioned by Mr. Pusey) to obtain approval of three-fourths of the adult male Indians as required by Article XII of the Fort Laramie Treaty of 1868, the United States went rogue. It enacted legislation in 1877 that took the Black Hills without the payment of any compensation. The U.S. Supreme Court decided 103 years later that this was an illegal taking without just compensation that violated the Fifth Amendment of the Constitution. It ordered the United States to pay just compensation of $17.5 million with 5% interest running from 1877.
3. Last, in my opinion, it is a major oversight not to point out that the Great Sioux Nation has never accepted the money judgment awarded by the Supreme Court in 1980, and it continues to advocate for a broader solution that would include some form of land return.
Frank Pommersheim
University of South Dakota School of Law
Professor emeritus
