United States v. Sioux Nation with Nick Estes

We'll hear arguments next in United States Against the Sioux Nation of Indiana.

Hey everyone, this is not Leon.

It's Andrew Parsons from Prologue Projects.

I'm filling in for Leon while he's on paternity leave.

This week the hosts are talking about United States v Sioux Nation with host of the Red Nation podcast Nick Estes.

On paper, the case looks like a win for Indigenous folks.

In 1980, the Sioux are granted a cash settlement for land they have the treaty rights to.

But to date, the tribes have refused to claim the funds.

Many folks argue that they don't want money.

They want the land back.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are breaking our civil rights, like Mercury breaking through our thermometers.

I'm Peter.

I am here with Rhiannon.

Hello.

And our friend Nick Estes.

How's it going?

We're thrilled to have on the podcast today Nick Estes with us.

Nick is a member of the Lower Brule Sioux tribe and an assistant professor of American Indian Studies at the University of Minnesota.

He's a journalist, a Lakota historian, and the host of the Red Nation podcast.

He's also an author of Our History is the Future, Standing Rock versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance.

We are here today to talk about how shitty the Supreme Court is on federal Indian law and so thrilled to have Nick with us.

Nick, thanks for being here.

Yeah, thanks for having me.

We've kicked Michael off the podcast for the week.

He's last I checked doing hard drugs in Las Vegas.

Probably.

Yeah.

Today's case, United States v.

Sioux Nation.

This is a case from 1980 about the compensation of the Sioux Nation of Indians for the seizure by the federal government of the Great Sioux Reservation over a century prior.

But this case is a little more complicated.

Despite the legal win, the Sioux people have to date rejected the compensation because they are concerned that accepting it would functionally terminate any claim they had to their actual land.

So this is a unique case for us, I think, as it's less about the correctness or incorrectness of the court's opinion than it is about the inadequacy of the existing law and the unwillingness of the federal government to comprehensively address the imperial colonization of tribal lands.

So we're sort of just using this case as a jumping off point for a discussion about tribal rights in the United States, past and present, and where the tribes generally and the Sioux specifically sit within our legal system and our society more broadly.

So Ree is going to talk a little bit of history, and then I'll talk a little bit of legal background, and then we'll get into the meat of it.

Yeah, I think it's worth clarifying.

You know, some of these terms, like Sioux Nation, is a made-up thing.

It's a kind of a legal fiction in some ways, while also being something that defines our relationship to the United States government.

Because if you take the Sioux in a broader sense, like it actually includes people who are out here in Minneapolis or as far east as Minnesota, because because this is Dakota country.

This is actually where the word Sioux came from, right?

It comes from Nadawasi, which means like little snake or little enemy.

That's a French bastardization of an Ojibwe word for us.

And so that in itself is kind of a misnomer, but it just shows, like even when Rihanna was doing the introduction for me, I'm from the lower Bruel Sioux tribe.

Lower is an English word.

Bruel is a bastardization of Brulee, meaning burnt, which is actually kind of a derivation of Si Chonggu, which is actually the name of our tribe.

Sioux, which is a French bastardization of the Netish Nabe word, and then tribe, right?

Which denotes the kind of contemporary relationship we have with the federal government.

Right.

So jumping into this history, I think we really need to situate ourselves kind of in the framing that this is a history of violent dispossession of native lands by the U.S.

federal government.

This was often effectuated through explicit genocidal policies.

So I think we just need to keep that in mind as we work our way through this history, that genocide, violent dispossession, and displacement of Indigenous people was necessary for U.S.

colonial expansion.

So throughout the 1800s, the U.S.

government would enter into treaties with tribes.

These treaties would outline the terms of the agreement between the U.S.

government and Indian tribes about land, water rights, the political relationship between tribes and the U.S.

government, etc.

But just as soon as treaties were agreed to and signed, the U.S.

government, state actors, and white settlers would basically immediately be disregarding the treaties, right?

This happened with Sioux Nation as well.

In 1868, the Treaty of Fort Laramie was signed, which reserved the Great Sioux Reservation for, quote, absolute and undisturbed use and occupancy by the Sioux Nation.

Pretty clear, unequivocal language.

That's the sort of unequivocal language you can't walk back in the future.

Yeah, you would think, right?

So, the reservation, the land itself, encompassed the western half of what is South Dakota today, including the Black Hills.

The Black Hills is a mountain range in South Dakota and Wyoming.

If you don't live around here or you don't know this history, you might be familiar with Mount Rushmore,

one of several U.S.

national parks that have been established in or around the Black Hills Mountains on stolen Sioux land.

So the treaty reserves all of this land for the Sioux, but the U.S.

government immediately, I mean immediately, does a terrible job of enforcing the treaty and keeping white settlers off the land.

Just a couple of years later, the U.S.

Army does an exploratory expedition into the Black Hills, during which the U.S.

Army finds gold, confirms that there is gold on this land.

Treaty canceled.

Treaty canceled.

Right.

No more treaty anymore, right?

Burn that shit.

At that point, the U.S.

government is not just like not enforcing the treaty, but actively disregarding it in favor of white settlers who are flooding the area to extract all of these natural resources.

Basically, as soon as the...

homing pigeon could arrive in Washington, D.C.

from the Black Hills saying that there was a treaty, the president's like, nope, send one back saying look for gold.

Exactly right.

In the mid-1870s, again, this is just a few years after the treaty was signed to begin with, President Grant's administration starts trying to strike a deal with Sioux Nation for the U.S.

to buy the Black Hills from the tribes.

So Sioux Nation refuses all of these offers from the U.S.

government, and the government starts to employ sell or starve tactics.

Again, this is explicit genocidal policy, right?

There was a military expedition led by General Custer to forcibly remove the Sioux from the land.

That culminated in what people know as the Battle of Little Bighorn, in which Custer got his ass beat, actually.

Smoke.

Yeah, he got wrecked.

But after the Battle of Little Bighorn, the U.S.

government is like, okay, we kind of lost that, but how about we just fucking starve them, right?

So native survivors of the Battle of Little Bighorn were interned on the Great Sioux Reservation.

They were cut off from resources by the federal government.

Their movement was restricted.

They were punished for hunting on traditional lands.

Their food rations that were provided by the federal government, those were insufficient in and of themselves.

Because, like, for example, the federal government was sending like tiny amounts of flour, which wasn't enough, but also the Sioux didn't even know how to cook with flour.

But then, as the Sioux continued to resist the pressure to sell their land, even those appropriations were completely cut off by an act of Congress in the late 1870s.

Again, we are 10 years from the signing of a treaty.

So, even though the federal government has cut off all appropriations, interned them on this land, has pressured them constantly with military force to sell the land and to leave, they won't budge.

And so, what does Congress do?

Congress passes a law that takes large portions of the Great Sioux Reservation, including the Black Hills, right?

The treaty is in the trash to Congress.

They just go go ahead and pass the law and say, you know what, it's just our land.

We don't care if you buy it from us or not, right?

But that treaty of 1868 required that any change to the reservation lands had to be agreed to by three-fourths of the adult male Indians on the reservation.

So in passing this law, the federal government utterly disregarded that, coerced something like 10% of the adult male Indians on the Great Sioux Reservation into signing.

They quit caring about even attempting to get more signatures.

And they say, like, yeah, that's all we need, actually.

The Black Hills belongs to us now.

The federal government to this day gets a sort of sexual thrill from violating a treaty, from what I can gather.

You really?

Yeah.

The vigor with which they effectuate their treaty trashing.

Yeah.

You'd think that if you were going to violate it that aggressively, you wouldn't get any signatures, right?

But they were like, no, it's more fun.

It's more exciting to get a few.

Right.

Let's make this incredibly insulting, right?

So let's talk about the legal background of the case and we can start big picture because it's sort of unclear where the tribes fit into our legal system now, and it was unclear when the country was founded.

The Constitution mentions the tribes just a couple of times and mostly in passing, but seems to treat them as a separate sovereign entity of some type.

For example, the Commerce Clause gives Congress the power to regulate commerce with the tribes just as they would other nations.

What really, quote-unquote, clarifies tribal sovereignty law is the so-called Marshall Trilogy, a set of three Supreme Court cases in the 1820s and 30s.

In those cases, the court functionally subjugated the claims that tribes had to land to the claims of the federal government.

And in one of those cases, the court expressly held that the tribes were not independent nations, but instead were, quote, dependent nations, making them necessarily lesser in their rights than the colonizing government.

So that's the legacy of the Marshall Trilogy.

The history of this case starts in the early 1920s, when the Sioux Nation brings a case saying that under the Constitution's Takings Clause in the Fifth Amendment, they need to be fairly compensated for the land that was taken from them.

That case bounces around for about 20 years before it is dismissed.

Then in the 1940s, the government creates the Indian Claims Commission, which allows the Sioux to pursue this case again.

It again bounces around for many years, but eventually the Sioux win, and after much haggling over the amount that they are due, the number lands at just over $100 million.

That gets appealed up to the Supreme Court, and here we are.

Note that this case is in 1980.

Right.

So we're talking about a case that essentially started in the early 1920s and gets quote unquote resolved 60 years later.

Right.

And as we will discuss, a lot happens in that 60 years.

So let's quickly talk about the opinion itself.

It's written by Harry Blackman, and it basically goes through much of the relevant history and says that Congress has a duty and an obligation to compensate the Sioux for the full value of the land with interest.

The only dissent is by our old buddy, William Rehnquist, who just cannot pass up on the opportunity to do just a little bit of racism.

That's right.

So he has some boring procedural complaints, but then the heart of his dissent is really just him pushing back on some of the majority's characterizations of like what happened to the tribes in the 19th century.

Yeah, basically accusing the majority of like agreeing with like a false history, right?

Right.

He says, quote, there were undoubtedly greed, cupidity, and other less than admirable tactics employed by the government during the Black Hills episode in the settlement of the West, but the Indians did not lack their share of villainy either.

It seems to me quite unfair to judge by the light of revisionist historians or the Moors of another era actions that were taken under pressure of time more than a century ago.

Basically, this sort of like, well, they were warring amongst themselves too, right?

He's essentially providing a moral defense of the treatment of the Sioux, while the case itself is not really raising a moral question, right?

This is a very transactional case.

This is about financial compensation for land.

Right.

Rehnquist grew up thinking that Manifest Destiny was truly a good and just thing, and only recently in his mind has that narrative been challenged by wayward communist academics or however he perceived it.

I'm not entirely sure.

Right.

Right.

But not particularly focused in my mind on the case itself, but on the narrative, on this idea that the Sioux were treated poorly here or that we did something morally wrong.

Right.

And maybe Rehnquist is doing like a little bit of implicit legal realism here because he's sort of acknowledging almost explicitly that the court has a role in like which historical narratives prevail.

Yeah.

Yes.

And, you know, he's embracing a very specific narrative

about what happened in the 1800s between the government and the Sioux.

Yes.

I would agree with the sentiment behind Rehnquist's decision.

I don't agree with him at all.

I think he's like a horrible racist, but he's like pulling back the curtain on Oz.

It's like saying, actually, these judges, me, myself, we're not objective.

We're products of the social whims and the social movements and whatever's transforming at society.

The court doesn't sit above society, right?

Right.

Because what what was happening in the 1980s, like we're coming out of a period of militancy and activism from indigenous communities.

The previous administration under

Nixon was actually giving land back to tribes, right?

Because of protests and because of lobbying and pressure being put on.

There was a Senate hearing about whether or not the wounded knee massacre was actually a massacre, right?

So there was a level of consciousness.

To me, that suggests that, yes, these courts are not immune to political persuasion and whatever movements are happening at that time period.

Yeah, that's a really good point.

I think we talk about that on this podcast a lot, which is that like the Supreme Court is not outside of a political system.

They are absolutely a part of it and they are influenced by popular politics of the time period, right?

And so we talk a lot on this podcast about sort of dueling narratives about whose narrative quote unquote wins, right?

Whose side is victorious because the Supreme Court accepted a narrative from one side over another side.

And I think what you have here in federal Indian law and in this case is these same tensions between control over a narrative, between what tribes identify as their history versus the Supreme Court and Congress talking about U.S.

history.

I think there's kind of a common tendency within U.S.

history to sort of frame U.S.

history as central.

Obviously, it's called U.S.

history.

But during this time period that you just described, where there was a lot of war and fighting and westward expansion, the narrative within the Ocheti Shakohi, or the Lakota, Dakota, and Nakota-speaking people, didn't really think of the United States as central to their own history.

But by and large, in the 19th century, the world of the Ocheti Shakoi, and especially the world of the Titoa or the Lakota people is largely intact and largely functioning and holding space in what we know as Hexapa, which is a region.

It's not just the Black Hills.

Looking at it from the east to the west, the Black Ridge also includes what are known as the Bighorn Mountains.

This is what's called the Powder River country, which is sort of prime.

area where you know Teo Yate, the Buffalo Nation, you know, roams and where the plains tribes, tribes, not just the Lakota nation, keep their sort of relationship with the land intact.

And in fact, what is known as the Black Hills is sacred to or has a central kind of role within the cosmology of more than 50 different indigenous nations.

We just happen to be the last sort of,

I guess, caretakers of the land.

Right.

We actually cannot.

fully imagine or comprehend the devastation of U.S.

settler colonialism.

Like, well, the United States brought civilization and order to a place that somehow lacked it, right?

And that to me is a fundamental kind of like purposeful misunderstanding and erasure.

Sure, there's the kind of physical and cultural erasure of people from a landscape, but there's also this kind of intellectual erasure to say that these were not complex systems of governance that held laws, customary laws, et cetera.

And that these people, although they may have been in conflict with each other, their conflict never resulted in systems like introducing things such as chattel slavery, free labor force for a capitalist system,

or committing acts of genocide in a systematic way to the point where it became policy, right?

And even when we think about the law, while yeah, settler colonialism is about eliminating Native people from the landscape, their governance structures, their claims to land, it's also about eliminating a form of

relationship to that particular place.

What was happening in that latter 19th century moment, you had the end of Reconstruction or the United States trying to get out of Reconstruction and removing federal troops from the South after the Civil War.

Well, there's an ensuing kind of economic crisis, right?

And there's an attempt to build a transcontinental railroad system, right?

And so these railroad systems actually create inroads, like literally and figuratively, into this region where people are investing, you know, literally investing money.

Like, so the taking of the Black Hills was key in that particular imperialist project for this capitalist machine and these investors to literally return profit, right?

And we were standing in the way of that profit.

So I think we have to talk about the law in that context and what it's actually upholding in terms of attempting to strip us of our relationship to that particular land base.

Right.

Lastly, I'll just say that the U.S.

system is based on relationships about property, right?

So when somebody owns something, that ownership is not about the relationship between that person and that thing.

It's actually...

the exclusion of others to that thing, right?

Whereas our system of governance is how do we fundamentally relate to this land with others, including what could be considered like non-human relations.

And I know that that might sound a little woo-wee-woo-wee, but there is a sort of grounded materialist practice, right?

So if you have a good relationship with the Buffalo Nation who's in the Powder River country, you are ensuring the survival of your people from generation to generation, right?

That is not some kind of like avatar, you know, plug my braid into a tree, you know, navi kind of thing.

It's not purely spiritual.

There's a material component.

Right, right.

And that relationship to property point that you just made is why, for example, there is a takings clause in the Fifth Amendment, right?

Exactly.

Which is exactly the sort of limited legal question here.

Good transition.

Yeah, this slick transition into the takings clause.

So, Nick, there's a question that I wasn't sure it was worth asking, honestly, because it's sort of like a bad faith reactionary position in my mind.

But, you know, there's a sort of conservative argument that this is all just how history works, that to the victors go the spoils and history is riddled with wars, and we are all sort of the product of that history.

And that's what happened to the tribes, right?

That this is no more unjust than what has happened throughout history.

And I imagine you've sort of heard that argument in its many iterations, and I'm sort of wondering what your reaction is to it.

Yeah, there's two sort of examples that I like to use, especially when teaching teaching students.

The first, there's a book called The Underdevelopment of Africa written by Walter Rodney, a preeminent pan-Africanist historian.

And he talks about the same kind of argument.

Well, the tribes in Eastern Africa were warring with each other.

So what difference did it make that the Europeans introduced a transatlantic slave trade because they were already enslaving each other to begin with?

Well, tens of millions of people, there was a mass depopulation, first of all, that literally collapsed entire civilizations, right?

That led to centuries of plunder, not just of labor, but of resources in that region.

He's like, of course, there was conflict within these societies.

They're human societies.

Like there was no utopic past that we can return to.

But what happened was those societies, because of the transatlantic slave trade and the plundering of their resources were literally knocked off their development path.

And so we can't even imagine that history has been taken from them, right?

So even if there were kingdoms that did awful things or there were tribes that did awful things, it didn't deserve that kind of, you know, mass enslavement and depopulation.

The other sort of corollary to that would be like, imagine that the USSR didn't push back the Nazis in Eastern Germany.

Would we just kind of consign the Holocaust and the genocide and the Eastern expansion of Nazi Germany into that region as just something like, oh, it's just natural like the wind?

Because that's the tendency and that's the sort of attitude.

Oh, well, you know, these rebellions, the fighting that happens amongst these primitive or tribal people is just as natural as a hurricane, right?

So imagine consigning the immense amount of human suffering caused by Nazi Germany to just something that's like, oh, it's just a, you know, nobody would do that.

Nobody should do that, right?

Right.

Okay, let's take a break and then we'll come back.

Okay, we are back.

Let's talk about this case and the issue of taking or not taking the compensation for the Black Hills.

Because it seems to me like the Sioux are put into a tough position where they have to choose between working within a system that's being imposed upon them by taking the compensation and sort of like implicitly accepting that the Constitution applies to them, etc.

or rejecting that system and in turn not getting the compensation.

So the money has not been accepted by the Sioux at this point.

It's sitting in an account somewhere, presumably, accumulating interest.

Rumor has it, it's now over a billion dollars.

So

why,

from the position of the Sioux, do you hold out here and not take the money?

You know, there isn't like an official, you know, Gallup poll on this, but from my understanding, like even approaching the subject of like whether or not we're going to accept that money, it just gets shot down.

It's so divisive that you can't even have that conversation and it's a non-starter.

So I think the only option here is through a legislative or policy approach.

This is going to require a form of advocacy that requires grassroots and tribal governments coming together and pushing for a plan.

And if there's one thing that has divided us, it is the question of the money.

But if there's one thing that has united us, it's the eventual return.

of the Black Hills.

The other part of that is consensus, this kind of perceived consensus or I guess lack of protest protest that these lawyers were moving forward with this case on behalf of the entire Sioux nation, you know, that became contentious.

And I do believe, I honestly believe that Mario Gonzalez, the Ogwala attorney for this case, believes in land back.

And I think he believes it to this day.

But some of the attorneys were like, well, we need to get paid because we've been working on this case for decades, you know.

So that created a lot of friction.

But then also it created this idea that somehow by accepting that money, we were accepting the taking of the land itself.

And therefore, we'd essentially be selling it, even though it's not technically selling it.

That became the slogan of the Black Hills are not for sale.

You know, sadly, it's going to have to take an act of Congress or an executive order from the presidential administration to actually implement land back because

the Supreme Court and the federal court system simply is not a mechanism.

for enforcing treaty rights.

As we know from previous history, Supreme Court decisions such as Lone Wolf, which basically upholds Congress as the final kind of authority that can extinguish treaty rights, that can alter treaties with Native nations.

So it leaves us kind of in this imperial bind where it's like, we can't elect judges, but they seem to be deciding the very kind of nature of our relationship with the federal government.

We don't elect congressional people unless they're within our district.

We don't even elect Deb Holland, God bless her.

She's just appointed, but yet she has the final say on a lot of things in determining, you know, who we are as Indigenous people in our relationship to the federal government.

And so, what do you call that?

It's just fundamentally colonial at the end of the day.

So, when we say something like the Black Hills are not for sale, it's kind of a rebuke of that entire system.

Right, right.

So, I think you're touching on a point that is made so clear by this case, which is like the limitations of the law, of American law, right?

In addressing or reaching like actual just solutions.

So, what do you think?

I mean, with respect to the Supreme Court, we're a podcast about the Supreme Court.

What do you think are the big failures of the Supreme Court with regards to federal Indian law?

And do you think, you've touched on this already.

I think I know your answer.

Will the Supreme Court ever be a just arbiter of claims regarding tribal sovereignty?

Maybe we should limit it to biggest failures rather than big failures.

There's a long list.

I think the biggest one is just going back to the Marshall Trilogy.

And just as a reminder for listeners, the Marshall Trilogy were those cases from the 1820s and 1830s where the Supreme Court basically held that the tribes were not independent nations and sort of subjugated their claims to land in America to those of the federal government.

Yeah.

And, you know, there's a lot of disagreement on this.

And, you know, I'm on one side of it.

So there are people who do federal Indian law who thinks that this is like one of the greatest things.

And it, you know, it's it's the definition of tribal sovereignty and it puts us within this kind of constitutional framework.

But I don't believe that because I actually think the reading, if we look at somebody like Justice Gorsuch and he's, you know, an originalist and a textualist, like, yeah, let's actually get into the minds of the founding fathers and those who drafted the Constitution.

And like, let's actually think about what they had in mind for Indigenous people.

They didn't have a future in mind at all.

Yeah, we're in the Constitution, but if you read like people like Alexander Hamilton, who was not a rapper, he was a slave owner, right?

He was not an immigrant.

Like, come on, guys.

Are you kidding me with this, with this crap?

A fellow Hamilton hater.

Thank God.

I know.

It's so weird to even have to make that point.

So bad.

Anyways, yes.

But he was like one of the biggest Indian haters there was.

And he was like, we need a strong, you know, federal.

government solely for the purposes of raising a centralized army to fight Spain, to fight Great Britain, and to fight the savage Indians on our western frontier.

Like that was his argument for creating the modern military system.

And his argument actually proved correct because the Shawnee Confederacy actually wiped out

the Continental Army in 1791, right?

It was a bigger defeat than Custer.

Right.

Almost to a man wiped out the standing Continental Army.

And so they recognized that threat.

These founders did.

And then the other part of that, that's the trick.

And then the treaty is somebody like Madison who believed that, okay, we might have to exterminate some Indians every now and then with the army, but we have to do it in a legal way.

So we have to give them the option, right?

So we have to create a thing called a treaty system, right?

And this treaty system, you know, we're just going to make treaties so that we can get land concessions.

And if they don't give us land concessions, we can go to war with them.

That was basically...

what the founders had in mind when they created the Constitution and the future of Indigenous people was ceding land and extermination, right?

Those are the fundamental two things.

And I have yet to see Neil Gorsuch actually be serious about history and read these things.

And people think he's like this, I don't know.

Protector of federal Indian law and tribal rights.

Yeah.

Yeah.

I'm so glad to hear you say this because the praise he gets on the left for his tribal rights opinions is extensive.

But I think you're pointing out a sort of interesting tension in his work, which is that the very express project of the early republic involved the intentional westward expansion, which necessarily involved the genocide of native peoples and southward expansion, I should say, at that point.

And I think you're right that Gorsuch doesn't really reckon with that at all.

He has this very almost romantic view of the entire situation.

Yeah, and I don't want to get too into the weeds on this, but like when we get to 1868, you know, that treaty is like more robust.

Look at the initial treaties.

Most of them are military alliances and like one-time payments.

It's like, here's 100 bucks.

Like, get out of our way.

Like, stop coming to Washington.

We're tired of hearing you guys.

Right.

The way that treaty making kind of evolves in that time period, the founders weren't like this kind of like, you know, oh, forward-thinking people.

They were just like, we have to create treaties to like resolve the Indian issue.

Like, right?

So everything is going back.

to the Marshall decision.

And I don't think we're going to be in a place in decades under the current kind of political climate of this country to ever implement laws that actually repudiate something like the doctrine of discovery.

Man, it took the Pope like centuries to do it.

And even though it's repudiated, it still stands on the books.

The only way to do that is to like renegotiate a relationship with Indigenous nations.

And that's not going to happen in the Supreme Court.

And in fact, the Supreme Court holds us back because we have to spend so much time and energy.

fighting these frivolous challenges to things such as the Indian Child Removal Act.

And so that's why I have no respect for somebody like Gorsuch or even somebody like Ruth Bader Ginsburg, who had some really racist things to say about Indigenous sovereignty.

And also the vast majority of Native people don't even live on Indian reservations.

We're subject to other jurisdictions.

And so this is the fundamental, I think, hypocrisy and contradiction within the Supreme Court system is that, especially those who are seen as like friends of the Indians, is that it fundamentally narrows our relationship to the federal government based on like the thoughts and the words of dead white men that didn't have relevance in the time that they were written and still don't have relevance today.

Yeah.

So the relationship between the U.S.

government and tribes, like you said, is sort of artificially constructed to be narrow, quite reductive.

And then you have really the construct of Sioux Nation, right?

As being a construct of the federal government that treats Sioux Nation as a monolith, right?

You know, multiple times over the course of this litigation between 1920 and 1980, Sioux Nation said the lawyers representing us in this case didn't have the authority to enter into the agreements they did or didn't have the authority to agree to a settlement offer that they did.

And so there's also the question of representation of tribal interests in U.S.

courts, right?

Are the lawyers actually there representing the broader tribal interests or Or are there other motivations?

At that time, we didn't have the authority to select our own lawyers.

So sometimes we would have lawyers who were representing us who also had interests in the other side.

And I'll give you an example.

Like when we were negotiating the settlement for the flooding of our lands because of the Big Bend and Fort Randall dams that flooded the lower Brittle Sioux Reservation bottom lands, our lawyer had to be approved by the Bureau of Indian Affairs.

And that lawyer was the former governor of South Dakota who actually negotiated for the Army Corps of Engineers to build the dams on our land.

And actually, they named the reservoir that flooded our land after him.

It's called Lake Sharp, right?

So, as they're kind of taking this case, especially the Black Hills case, through the court system, they have a payout in mind.

If you think about the lawyers that represented tribes that ended up getting successful, like gaming ventures, there's a payout, you know, and so their interests sometimes don't align with

the best interests of the tribe.

Right.

Nick, I think we have kind of one more question for you.

And that is,

what does organizing and sort of reservation-based resistance look like, both in terms of Black Hills, right, and Sioux Nation's claim to this land, but also in the face of sort of continued diminishing of what's called tribal sovereignty in the law?

So there's several avenues that Gray Sioux Nation has tried to pursue in the past.

It's been anywhere from, you know, I mean, just to be honest, been anywhere from armed resistance to legislation and Congress, you know, after Wounded Knee, like that was also about land back for the Black Hills.

There was also an occupation that resulted in the killing of, I think it was a white rancher in the Black Hills.

It's called Yellow Thunder Camp.

There's an attempt to like.

sort of reclaim the Black Hills like through a reoccupation.

I also mentioned the, you know, the Black Hills Alliance.

There's been like massive mobilization.

There's been recent history with the protests of Mount Rushmore.

And this has led to retaliation by the state.

You know, Dusty Johnson, who's a representative, and Congress tried to introduce a bill to kind of make Mount Rushmore like a heritage site or something like that to prevent like the inevitable, which is land back, right?

Back to the Great Sioux Nation.

In terms of like what tribes are doing, there's a lot happening, a lot more happening than I've seen in the past.

And I think...

a missed opportunity that people are sort of now coming around to is what was called the Bradley Bill, which is something that was introduced in the 1980s, which essentially kind of designated federal lands within the Black Hills that would be returned.

So it'd be like a partial return.

And I think people dismissed it because it was like, it's all or nothing kind of thing.

And I'm totally sympathetic with that sentiment.

But I think people are re-evaluating that to say, like, well, actually, we should create legislation, even if it fails, like that sort of revives the Bradley Bill to co-management with whether it's the Forest Service or the National Park Service, and then move into potential like reclamation.

There's also efforts to rehabitate the Black Hills.

There's more kind of pressures now on reintroducing new forms of gold mining and resource extraction in the Black Hills.

If anyone pays attention to South Dakota politics, I do.

I don't live there anymore, but it's fascinating because there's a lot going on.

The

Public Utilities Commission in South Dakota is trying to like build like carbon pipelines and like white ranchers are like mad because of like eminent domain laws.

And they're like, how is this possible?

And it's like, yeah, join the club, dude.

Like we've been fighting this stuff for like, you know, decades.

Right.

And now you have like people in the Black Hills, these predominantly white communities in the Black Hills who have been, you know, they're getting priced out because, you know, real estate's going up.

They're the descendants, you know, and children.

And some of them are retired miners, right?

That industry is no longer there.

And the new kind of forms of extraction don't require hiring people anymore.

They don't require miners anymore.

So they're now like a redundant kind of labor force.

And the only thing that's there is tourism and nobody wants to work.

And, you know, that's a low-paying job.

So it's like the things that you would see in Appalachia, right, are happening here in the heart of the Black Hills.

And so these communities are now kind of sort of waking up again to saying like, we're going to lose our livelihoods.

You know, it's like, well, you know.

Welcome to the club.

We lost ours too.

You know, that's the best form of political alliance in some instances is a shared grievance and injury, but it has to both organically and through guidance develop into a broader conscience about like land back and what it means, not just for Indigenous people, but for the future of the Black Hills, for people who live there who are not Indigenous.

These conversations and these plans and strategies have to develop over decades.

You know, we may not see that in our lifetime.

I hope we do.

I think we're closer to it today than we were like a decade ago.

And I'm really really excited to be a part of those conversations and to be having this conversation.

I'm a free ass Lakota.

I learned that from Madonna Thunderhack.

She says, I'm a free ass Lakota.

I go wherever I want.

It's like, yeah, and we should.

And the treaty itself actually allows for the expansion of our reservation.

I think we think of these things.

as like kind of ever-diminishing.

But in fact, we do have legal precedent within our own agreements with the United States government that allow us to expand our reservation.

But this stuff only happens through struggle.

The law only changes through struggle.

It's not nine unelected judges sitting in Washington, D.C.

who change the world.

It's people, everyday people on the ground who change the world.

That's amazing.

I think that's a good place to end our conversation.

But I do want to say that your writings on this subject, I have made so many connections to the liberation movement for Palestinians, right?

As a Palestinian, you know, we talk about in the Palestinian movement for liberation, we talk about the right of return, right?

I don't want money for the land you stole from me.

I want the land that you stole from me, right?

And how that is like an actual recognition of sovereignty, right?

It's the land and the connection to the land, not a remedy at a legal system I don't even recognize is, you know, compensation or what have you.

And those same connections to struggle and to imagining a future where there is justice and autonomy and land control by the people who have just claims to that land.

Yeah.

I just can't exit the episode without saying that Mount Rushmore is just the worst fucking monument in the country.

It's so stupid and ugly.

Mount Rushmore.

The guy was literally a card-carrying clan member.

Before he did Mount Rushmore, he created a monument, just Google Stone Mountain.

It was the altar upon which the clan reformed itself.

Like, that's not even a metaphor.

That's like literally what happened.

Oh, God.

just every layer of history every detail there's something very bleak about reading the sort of story of the black hills and the genocide and removal of the people who lived there and sort of knowing that that was in service of a series of mining concerns and the ugliest sculpture you've ever seen.

There's just something bleak about it.

Right.

Nick, where can people find your work or, you know, learn more about Indigenous resistance?

Where can we direct people to?

Check out our podcasts, Red Nation Podcasts.

We have two kind of series.

You know, you have the regular Red Nation podcasts.

We also have Red Power Hour, which is more news and commentary.

We have Red Media Press.

If you want to support us on Patreon, we 100% subscriber funded right now.

So that's how we're working on several books too by elder native activists and some other works.

So yeah, just come check it out.

And we'd love to have you on the show sometime too to talk about some Supreme Court shit or Palestinian shit, you know, like we like to throw down.

Hell yeah.

So, yeah.

Oh, I'm definitely down.

That would be amazing.

I'm a longtime listener and Patreon supporter.

Right on.

Yeah.

Very cool.

Thanks for coming, man.

We appreciate it.

Amazing.

Well, thanks so much for having me on here.

Thank you so much for being here, Nick.

Really appreciate it.

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Where does that money actually sit?

Because I haven't been able to find it.

So, when we say it's over a billion dollars, that's speculation, right?

And so, I think it's worth, you know, somebody who's a researcher out there actually finding out what account this sits in and how much is in it, because it has to be sitting somewhere.

So, if we have some, you know, people who listen to this podcast who are from the Treasury Department who want to like maybe do some research,

that would be nice.

Look into it.