Abstract

Excerpted From: Hannah Friedle, Treaties as a Tool for Native American Land Reparations, 21 Northwestern Journal of Human Rights 239 (Summer, 2023) (354 Footnotes) (Full Document)

Land is sacred to indigenous peoples. “It is the focal point of indigenous identity, religious and cultural beliefs.” Extrinsically, land secures cultural integrity, self-determination, and self-sufficiency through hunting, fishing, ranching, accessing natural resources, clean water, and suitable housing. Intrinsically, land holds value beyond the colonizer's perspective.

Take Mount Rushmore. Two million people per year visit four Presidents carved into stone, a sight celebrated as “a symbol of freedom and hope for people from all cultures and backgrounds.” The sculpture sits on indigenous land guaranteed to member tribes of the Great Sioux Nation by treaty--later illegally taken by the same party who signed the treaty, the United States.

Mount Rushmore is carved into a holy mountain that the Lakota Sioux called “Tunkasila Sakpe,” the Six Grandfathers. It is engulfed by the Black Hills--sacred to the Great Sioux Nation. In Oglala Lakota cosmology, the ancestors descended from sky spirits, and the Black Hills contain natural features that correspond with these constellations, a “terrestrial mirror of the heavens.” The land itself is sacred. Lakota Sioux must conduct certain ceremonies in the Black Hills, so “[n]o, we aren't talking about dirt protected by ‘No Trespassing’ signs.”

After years of war between the Sioux Nation and the United States military, the Fort Laramie Treaty of 1851 set aside the Black Hills “for the absolute and undisturbed use” of the Sioux Nation. From 1774 to 1871, indigenous tribes negotiated a total of 368 treaties with the United States. These treaties were violated; the Fort Laramie Treaty was no exception. It only took six years for the Sioux Nation's right to “absolute and undisturbed use” of the Black Hills to yield to gold prospectors. It took fifty-three more years to memorialize the broken Fort Laramie Treaty with dynamite, drills, and the faces of four U.S. Presidents.

Land reparations, to be clear, are merely a tool to access tribal sovereignty and justice. “Reparations are, therefore, a limited category of response to harm,” and are “one part of the process of restoring justice for ... land theft.” Land restitution is not a solution in itself--especially if indigenous tribes lack sovereignty over the returned land. Still, “[r]eturning our land is the first step towards reparations.”

This article explores land reparations for federally recognized Indian title through the lens of treaty violations. Using treaties as tools, there are multiple potential routes for land reparations in the United States. First, Congress can pass a comprehensive land reparations statute using its plenary power. Second, treaties could bind the Secretary of Interior's discretion over whether to place land into trust for indigenous tribes. Third, treaty rights can be honored using international standards for indigenous land rights if adopted into United States domestic law.

This article intentionally focuses on actions Congress could take instead of how federal courts could aid in land reparations. Previously, the United States Supreme Court and lower federal courts have recognized treaty rights, upheld treaty rights, and even awarded compensation for treaty violations. After the 2021-2022 Supreme Court term, however, it seems doubtful the Court will continue with this trend. In 2023, the Supreme Court may obstruct treaty rights by introducing new limits on Congress's power to pass land reparations legislation.

Part I of this article provides an abridged overview on how the federal government seized land from indigenous tribes and followed up with inadequate remedial action. Part II explores congressional and judicial areas that should be bolstered to support land reparations. Part III introduces background principles of indigenous treaty rights, describes instances where federal courts have upheld or declined to uphold treaty rights, and explains courts' broader impact on land reparations. Part IV explains how treaties can buttress administrative fee-to-trust land acquisitions. Part V discusses examples of how, if adopted into domestic legislation, international legal frameworks provide a structure for land reparations.

[. . .]

This article ends with uncertainty. The Supreme Court is currently shifting Federal Indian Law jurisprudence, and only time will tell whether it buttresses or wrecks Congress's ability to provide land reparations to Indigenous Americans. This article discussed how treaties can be a tool for tribes in their pursuit of land reparations and ways that Congress can strengthen treaties' effectiveness. Some of the methods explored fall short of full land restitution, but one must keep in mind that land restitution is the paramount goal for indigenous land reparations, especially when advocating for lesser forms of reparations. As the Sioux Nation elucidated, money is not a comparable substitute for land.

Another important caveat: “[f]or Native peoples, the discussion about reparations is not an intellectual exercise. It is a discussion for how the past, present, and future are cojoined and interdependent.” This article joins the flurry of intellectual exercises about Indigenous Americans across law school journals. It provides just a sliver of suggestions within the narrow legal framework Native Americans must navigate to claim what has been taken from them. Such a framework should not be so narrow; such navigation should not be riddled with legal hurdles.

The United States was built on stolen land. This is a past, present, and future injustice. Congress, local governments, federal courts, the Secretary of the Interior, and states owe it to tribes and Native peoples to remove legal hurdles and restore their land.