Sioux Nation of Indians v. United States

Decision Date13 June 1979
Docket NumberNo. 148-78.,148-78.
Citation601 F.2d 1157
CourtU.S. Claims Court


Arthur Lazarus, Jr., Washington, D.C., attorney of record, for plaintiff; Marvin J. Sonosky, Sonosky, Chambers & Sachse, and William Howard Payne, Washington, D.C., of counsel.

Craig A. Decker, Washington, D.C., with whom was Asst. Atty. Gen. James W. Moorman, Washington, D.C., for defendant.

Before FRIEDMAN, Chief Judge, COWEN, Senior Judge, DAVIS, NICHOLS, KUNZIG, BENNETT and SMITH, Judges en banc.


FRIEDMAN, Chief Judge.

The issue in this case, here on appeal from the Indian Claims Commission under a special jurisdictional statute described below, is whether the Commission correctly held that an 1877 statute under which the United States acquired certain lands from the Sioux Indians constituted a taking of those lands for which the United States was required to pay just compensation under the fifth amendment. The Commission found the fair market value of the land and other interests in it that the government thus acquired was $17,553,484.1 The government has not challenged that determination or contested its obligation to pay that amount.

The sole question before us is whether that acquisition constituted a taking in violation of the fifth amendment. The significance of that issue is that if it were such a taking, the government would be liable not only for the value of the property taken but also for interest from the date of taking. Shoshone Tribe of Indians v. United States, 299 U.S. 476, 497, 57 S.Ct. 244, 81 L.Ed. 360 (1937); United States v. Klamath and Moadoc Tribes of Indians, 304 U.S. 119, 123, 58 S.Ct. 799, 82 L.Ed. 1219 (1938). Because the acquisition in this case occurred a century ago, the amount of such interest would be many times the value of the property taken. The total interest the plaintiffs would recover if a taking occurred has been estimated at between $90 million and $115 million.

For the reasons given below, we conclude that the 1877 Act was a taking of the Black Hills portion of the Sioux Reservation and of rights-of-way across other Sioux land, but that the United States did not take the gold the miners removed from the Black Hills prior to the 1877 statute.


This is the third time this case has been before the court on the question whether the United States' acquisition of the particular property in 1877 constituted a taking. Under a special jurisdictional Act, Pub.L. No. 237, 41 Stat. 738 (1920), the Sioux filed in this court a petition seeking just compensation for the alleged taking in 1877 of their lands and rights therein. In 1942 the court held that under that Act the Sioux were "not entitled to recover from the United States as for a `taking' or `for the misappropriations of any lands of said tribe.'" Sioux Tribe of Indians v. United States, 97 Ct.Cl. 613, 666 (1942), cert. denied, 318 U.S. 789, 63 S.Ct. 992, 87 L.Ed. 1155 (1943).

Following the enactment of the Indian Claims Commission Act in 1946 (25 U.S.C. § 70 et seq.), the Sioux submitted the same claim to the Commission. Initially the Indians contended only that the government's acquisition of their property was made for an unconscionable consideration and did not constitute fair and honorable dealings — grounds upon which the Commission could award damages under 25 U.S.C. § 70a(3) and (5). The Sioux, with our authorization, amended their petition to reassert the fifth amendment taking. See Sioux Tribe of Indians v. United States, 182 Ct.Cl. 912 (1968) (summary of proceedings).

After extensive proceedings, the Indian Claims Commission, in the decision now under review, held in 1974 that the government's acquisition of the Sioux lands and interest therein constituted a taking for which the Sioux were entitled to just compensation, including simple interest at 5 percent. Sioux Nation v. United States, 33 Ind.Cl.Comm. 151, 362-63 (1974). On appeal, this court affirmed the award of $17,553,484 under the dishonorable dealings provision of the Indian Claims Commission Act, but reversed the Commission's finding of a taking. The court held that its 1942 decision was res judicata on the taking question. United States v. Sioux Nation, 518 F.2d 1298, 207 Ct.Cl. 234 (1975), cert. denied, 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387.

Congress then enacted Pub.L. No. 95-243, 92 Stat. 153 (1978), which directed that this court, upon filing of a timely application, should

review on the merits, without regard to the defense of res judicata or collateral estoppel, that portion of the determination of the Indian Claims Commission entered February 15, 1974, adjudging that the Act of February 28, 1877 (19 Stat. 254), effected a taking of the Black Hills portion of the Great Sioux Reservation in violation of the fifth amendment, and shall enter judgment accordingly. In conducting such review, the Court shall receive and consider any additional evidence, including oral testimony, that either party may wish to provide on the issue of a fifth amendment taking and shall determine that issue de novo.

The Sioux Nation filed an appropriate application for review pursuant to that statute. Neither party has submitted any additional evidence, so we decide the case on the record in our 1942 case and the record before the Commission in this proceeding.


The factual background for this issue begins with the Treaty of April 29, 1868 between the United States and the Sioux Indians (15 Stat. 635). In that treaty the United States, among other things, (1) established "for the absolute and undisturbed use and occupation of the Indians" certain land in South Dakota, including more than 7 million acres in the Black Hills area (article II); (2) agreed that no unauthorized persons "shall ever be permitted to pass over, settle upon, or reside in that territory" (id.); (3) undertook to supply for 4 years certain food to all Indians who settled permanently on the reservation and complied with the treaty (article X); and (4) gave the Indians hunting rights in designated areas outside the reservation (articles XI and XV). The treaty further provided that no cession of any reservation lands of the Sioux "shall be of any validity or force" unless executed and signed by at least three-fourths of the adult male Indians occupying or interested in those lands (article XII).

In accordance with the treaty obligation, the United States appropriated more than $5 million to supply food to the Indians for the 4 years following the treaty. Although the government's treaty obligation was discharged by the appropriation for fiscal year 1874, the government continued to make food appropriations for the fiscal years 1875 and 1876, which totaled $2,350,000.

Both before and when the treaty was executed, the Indians knew that the Black Hills contained gold, but the government had no reason to think that the amount located there was sufficient to be valuable. In the summer of 1874, however, an expedition commanded by Lt. Col. Custer explored the Black Hills portion of the reservation, and discovered gold there in paying quantity. News of this discovery was made public in late August of that year. A large number of prospectors, miners, and settlers then entered the area without the consent of the Indians, and public pressure to open the Black Hills developed and increased.

United States military forces in the area attempted to exclude and remove these unauthorized persons from the area, but their endeavors were largely unsuccessful. In November 1875, President Grant secretly ordered the Army to stop attempting to prevent the miners from entering the area. Although President Grant did not rescind prior orders forbidding the miners from occupying the Black Hills area, those earlier orders ceased to be effective. The government apparently believed that the Sioux's needs for the rations the government had been supplying them would prevent the Indians from making trouble.

By 1875 the government apparently had concluded that the only permanent solution to the hostilities that had developed between the Indians and the settlers in the Black Hills and among the settlers themselves was for the government to acquire the Black Hills portion of the reservation and for the Indians to give up their hunting rights outside the reservation. Preliminary attempts to induce the Indians to take those steps through negotiations with the Sioux that were held both in Washington and in the reservation area were unsuccessful. In December 1875, the government ordered all Sioux to return to the reservation by January 31, 1876, or be treated as hostile. The Indians who were outside the reservation were hunting with the permission of their agents and could not return by the deadline. The Army then commenced military operations against them. The climax of the campaign against the Sioux was the famous defeat of General Custer at the Little Big Horn on June 25, 1876.

Congress responded by attaching a rider to the Indian Appropriations Act of 1876 which cut off all rations for the Sioux until they terminated hostilities and ceded the Black Hills to the United States. The rider also provided that no further appropriations for the Sioux would be made until the Indians had entered into an agreement with the President "which is calculated and designed to enable said Indians to become self-supporting." Act of Aug. 15, 1876, 19 Stat. 176, 192.

In August 1876, at the request of Congress, the President appointed another commission (1876 Commission) to negotiate with the Sioux for the cession of the Black Hills and the termination of the Indians' off-reservation hunting rights.

The 1876 Commission negotiated an agreement with the chiefs and head men of the Sioux tribes. The agreement stated it was made "pursuant to" the 1876 Appropriations Act. In the agreement, the Sioux ceded to the United States the Black Hills portion of their...

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