Not Without Our Consent Excerpt

Not Without Our Consent Lakota Resistance to Termination, 1950–59 EDWARD CHARLES VALANDRA Foreword by Vine Deloria Jr. Not Without Our Consent Not Without Our Consent Lakota Resistance to Termination, 1950–59 EDWARD CHARLES VALANDRA Foreword by Vine Deloria Jr. UNI V ERSIT Y OF ILLINOIS PRE SS Urbana and Chicago © 2006 by the Board of Trustees of the University of Illinois All rights reserved Manufactured in the United States of America c 5 4 3 2 1 ฀∞ This book is printed on acid-free paper. Library of Congress Cataloguing-in-Publication Data Valandra, Edward Charles, 1955– Not without our consent : Lakota resistance to termination, 1950–59 Edward Charles Valandra ; foreword by Vine Deloria, Jr. p. cm. Includes bibliographical references and index. isbn 0-252-02944-5 (Cloth : alk. paper) 1. Rosebud Sioux Tribe—Legal status, laws, etc. 2. Teton Indians—Legal status, laws, etc. 3. Indians of North America—Legal status, laws, etc.—South Dakota. 4. Indian termination policy—South Dakota—History—20th century. I. Title. kf8228.r67a3 2006 342.7308'72—dc22 2003028179 What is now needed on this reservation are dedicated men and women on the council who have the general welfare of the people at heart. We need council members who will study their constitution and by-laws and the history of the tribe and use this knowledge for the betterment of the people and not against them. Most important, we need leaders who will work towards the restoration of the original right the tribe had as a sovereign nation. —Frank D. Ducheneaux (1903–1976) Cheyenne River Sioux Tribe Lakota Journal Contents List of Tables ix Foreword by Vine Deloria Jr. xi Abbreviations xv Chronology xvii Introduction 1 1. U.S. Termination Policy, 1945–53 17 2. Lakota Termination-Ready Status: Zimmerman Applied 71 3. The 1958 Lakota Referenda 143 Afterword 243 appendixes A. B. C. D. E. F. G. H. Public Law 83-280 257 Senate Bill No. 278 260 House Bill No. 721 262 House Bill No. 892 (as originally introduced) 263 Chapter 319 (House Bill No. 892 as signed into law) 265 Chapter 144 (Senate Bill No. 210) 267 Chapter 464 (House Bill No. 659) 268 Chapter 467 (House Bill No. 791) 270 Bibliography 271 Index 279 Tables 1. Zimmerman’s 1947 group list and non-Zimmerman group list by jurisdictional units and reservations 32 2. Zimmerman’s 1947 grouping and non-Zimmerman grouping by corresponding number of reservations and acreage (in millions) associated with PL 83-280 51 3. Land utilization on Standing Rock Reservation, 1943 81 4. Nonwhite recipients of state public assistance for December 1952 5. Dakota/Lakota reservations affected by PL 83-280, 1953 6. Membership of state House and Senate committees on Indian affairs, 1957 170 99 91 Foreword vine deloria jr. World War Two brought frightening times for American Indians. Wartime budgets drastically reduced domestic spending to support war expenditures and the Bureau of Indian Affairs suffered proportionately. A stirring of the civil rights conscience was felt when it was observed that the German prisoners of war were treated better than were African Americans in the South. German concentration camps became the embarrassment of the civilized world, and South African apartheid and American Indian reservations were considered less extreme instances of negative racial policies. Two waves of reform originated in the immediate postwar world: a desire to reduce the size of government and a determination to resolve racial problems in the United States. The Hoover Commission studied the size of the federal government and recommended a laundry list of suggestions for reform and reduction. But the commission went far beyond its mandate by offering gratuitous advice regarding Indians. Failing to understand the centuries-old relationship between Indians and the national government, the commission suggested that the states could provide many of the services that lowed from the federal relationship. Such a move would place rural Indian communities in great jeopardy because the social programs that the Indians needed were virtually nonexistent in the various states. The fast-escalating movement toward African Americans receiving full citizenship rights threatened to swallow Indians in a society determined to assimilate them. Indians appeared to be old fashioned and reactionary when they expressed a desire to live apart from the rest of American society in their rural communities. xii . fore word The authorization of the Indian Claims Commission in 1946 gave tribes permission to sue the United States for loss of lands and for unfair compensation for lands lost in treaties and agreements. That tribes could receive multimillion dollar settlements as a result of their claims litigation irritated some congressional representatives, and they sought to be rid of the Indian issue as quickly as possible. Some Indians, returning from war and having seen the world outside the reservations, chafed at the idea of keeping themselves and their property in the hands of ignorant or callous federal bureaucrats. In 1950 a massive study was done of the state of Indian affairs and pressure began to build for the government to get out of the Indian business. Dillon Myer, the Indian commissioner and former superintendent of Japanese internment camps, sent out a letter requiring Indian agents on the reservation to prepare the tribes for a termination of their federal beneits and protections. In 1953 a congressional resolution declared that Indians would be “freed” from the federal government as quickly as possible. With a Republican majority in control of Congress, it was not long before hearings were held to determine which tribes could be separated from their federal relationship and how quickly. With little forethought, bills to terminate the Klamath, Menominee, Ute, Grand Ronde, Siletz, and Texas tribes were presented to the joint committee, which promptly approved the bills and sent them to the loor of Congress for passage. The National Congress of American Indians held emergency meetings to slow the movement for termination, and tribes pressured their congressional representatives to protect them from the actions of the committee. The Osage of Oklahoma, certain to be placed on the list of most capable tribes, chartered an airplane and hastened to Washington to ensure that their delegation exempted them from the tidal wave of terminal legislation then coming from the committee. A number of bills did become law, and by the late 1950s the government was cutting loose tribes that had been nearly self-supporting with minimal government aid. Even more radical schemes were proposed when the movement began to lag under protests from the Indians. Glen Emmons, the commissioner of Indian affairs, suggested that all the Indian land be appraised and purchased by the United States and the funds distributed on a per-capita basis to all federally enrolled Indians. Everyone ridiculed the idea. Graham Holmes, the superintendent of the Rosebud Sioux Reservation in South Dakota, was driving into Washington, D.C., with an old councilman and suggested that the councilman propose the plan to the commissioner. The fore word · xiii councilman looked at Graham for a minute and then said: “Why, he’d think I was crazy to suggest something like that!!!” For the most part, the Sioux tribes of North and South Dakota escaped the immediate threat against their rights, but it was not simply the formal severing of ties that worried them. A program, which was called “Relocation,” to move Indians from reservations to cities siphoned off some of the best and most substantial families who tried to enter the American economic mainstream. Local institutions and traditional customs were severely damaged by this program, which sought to terminate the tribe family by family. For most people, relocation did not work, and it was not until a decade later, with the development of the poverty programs, that progress was made in stabilizing and educating rural families and enrolling younger people in colleges or vocational schools. Finally, with the development of tribal colleges, reservations began to become the homelands that they were intended to be. This book is the story of one People—the Lakota Nation—during those perilous times. Abbreviations AAIA ADC ALR BIA BIAM CCST CCSTC CRST CRSTC EHWC FST FSTC HB HCIA HCR No. H.R. H. Rpt. HUAC ICRA ITF IRA KLLA LBST LBSTC LJC LRC Association on American Indian Affairs Aid to Dependent Children Arizona Law Review Bureau of Indian Affairs (U.S.) Bureau of Indian Affairs Manual Crow Creek Sioux Tribe Crow Creek Sioux Tribal Council Cheyenne River Sioux Tribe Cheyenne River Sioux Tribal Council Education, Health, and Welfare Committee (S.D.) Flandreau Sioux Tribe Flandreau Sioux Tribal Council House Bill (S.D. Legislature) House Committee on Indian Affairs (S.D.) House Concurrent Resolution Number (U.S. Congress) House of Representatives bill (U.S. Congress) House Report (U.S. Congress) House on Un-American Activities Committee (U.S.) Indian Civil Rights Act (U.S., 1968) Indian Task Force (U.S., Hoover Commission’s) Indian Reorganization Act (U.S., 1934) Kyle Livestock and Landowners Association Lower Brule Sioux Tribe Lower Brule Sioux Tribal Council Lakota Jurisdiction Collection Legislative Research Council (S.D.) MSGAPRR OAA OST OSTC RST RSTC S. SB S.D. SDBA S. Rpt. SDSGA SRST SRSTC SWST SWSTC TLE U.S. USD YST YSTC Merchants & Stock Growers Association of the Pine Ridge Reservation Old Age Assistance Oglala Sioux Tribe Oglala Sioux Tribal Council Rosebud Sioux Tribe Rosebud Sioux Tribal Council Senate bill (U.S. Congress) Senate Bill (S.D. Legislature) South Dakota South Dakota Bar Association Senate Report (U.S. Congress) South Dakota Stockgrowers Association Standing Rock Sioux Tribe Standing Rock Sioux Tribal Council Sisseton-Wahpeton Sioux Tribe Sisseton-Wahpeton Sioux Tribal Council Tribal Land Enterprise (RST) United States University of South Dakota Yankton Sioux Tribe Yankton Sioux Tribal Council Chronology 1830 1831 1832, Feb. 28 1863, Jan. 1 1868 1878 1882 1885 1886 1887 1889 Indian Removal Act ordered the forced removal of all Native Peoples living east of the Mississippi River to the west of the river Cherokee Nation v. Georgia: U.S. Supreme Court (Marshall) described the sovereign Cherokee Nation as a “domestic, dependent nation” and introduced “ward” status as an analogy Worcester v. Georgia elaborated “dependent nation” status, essentially as colonization Homestead Act of 1862 became law, stealing vast Native lands and giving them to white settlers Fort Laramie Treaty between the Great Sioux Nation and the United States Episcopal missions established on Lakota reservations United States v. McBratney: U.S. Supreme Court ruled that a state’s criminal jurisdiction applied only to non-Indians on a reservation Major Crimes Act subjected Native Peoples to U.S. criminal jurisprudence Catholic missions established on Lakota reservations General Allotment Act (Dawes) broke up reservations into individual allotments; Atkins, commissioner of Indian affairs, required that only English be used in government-run Indian schools Great Sioux Nation was rearranged into six separate reservations; the remaining portion was declared surplus land, opened for white settlement, and is now considered “former” Indian Country xviii . chronology 1889, Feb. 1889, Nov. 2 1890, Dec. 29 1896 1898 1901 1903 1904–19 1906 1910 1917 1924 1929 1934 1935, Dec. 14 1938, Apr. 15 1939–45 1943 1944 U.S. Congress passed Enabling Act requiring states to disclaim all right and title to Indian lands as a condition for joining the Union South Dakota became a state and was accepted into the Union on the condition that its constitution included the “Compact with the United States,” whereby its citizens forever abandoned any intention to claim Lakota lands Wounded Knee massacre Plessy v. Ferguson: U.S. Supreme Court’s “separate but equal” decision S.D. citizens approved a constitutional amendment giving them the powers of the initiative and the referendum Chapter 106: South Dakota ceded jurisdiction on reservations to the United States United States accepted the jurisdiction that South Dakota relinquished Unallotted reservation lands were declared to be “surplus” and “opened” to white homesteaders Burke Act amended the 1887 allotment law by giving the Interior Department free rein in determining a Native’s competence for receiving a patent-in-fee; Peano v. Brennan: S.D. Supreme Court ampliied the state’s constitutional disclaimer Congress gave the Interior Department wide discretionary authority to lease Native allotments Sells’s policy to link white blood quantum to decisions on Native land-tenure, forcing fee-patents on Natives Indian Citizenship Act imposed U.S. citizenship on Natives without their consent S.D. amended Chapter 106 to reserve concurrent criminal jurisdiction on reservations (Chapter 158) Wheeler-Howard (Indian Reorganization) Act (IRA) imposed American model of government on Native Nations Oglala Lakota electorate adopted a constitution, which the Interior Secretary approved 15 Jan. 1936 Administration of submarginal lands transferred to Interior Department to be of beneit to Indians World War II Tribal Land Enterprise (TLE) incorporated to stop the increasing loss of the RST’s land base Interior Department’s ten-year development program report documented severe poverty on reservations throughout the U.S. chronology 1944, Dec. 22 · xix Flood Control Act enacted; Pick-Sloan Missouri Basin Program directed the Army Corps of Engineers to build multiple dams on the Missouri River 1947, Feb. Senate Committee on the Post Ofice and Civil Service held hearing on cutting costs by reducing the number of federal employees; William Zimmerman, Jr. testiied and outlined reservation Groups I-III 1948–63 Oahe Dam built on the Missouri River, looding Dakota/Lakota reservations; CRST’s Rehabilitation Program developed to help displaced Lakota families 1948 1903 statute accepting the jurisdiction that South Dakota relinquished (1901) removed from U.S. federal code 1948, June 4 S. Rpt. No. 1489 recommended the transfer of criminal jurisdiction over Haudenosaunee territory to New York State 1948, Oct. ITF report to the Hoover Commission: “law and order on reservations is unsatisfactory” 1948, Oct. 15 Interior Department–sponsored report on the Standing Rock Reservation documented how whites had acquired large tracts of Lakota land for ranching 1949, Mar. Hoover Commission’s report on reorganizing the executive branch of the U.S. government; ITF proposed a Native policy of pre-termination 1949, Apr. 22 OST “Grazing” Resolution 34-49 (amended in Apr. 1950) levied a nominal tax on nonmembers’ use of reservation land 1950 PL 80-881, an early termination law affecting Native populations in New York, was enacted 1950, Nov. 1– Three-year period covered by OST grazing resolution for leases 1953, 31 Oct. and grazing privileges 1950, Dec. 1 MSGAPRR proposed to S.D. governor that state assume jurisdiction over reservations 1951, Feb. 10 SB No. 278, a confused and confusing jumble of termination options, was introduced in the S.D. state senate 1951, Feb. 24 Having passed the senate, SB No. 278 passed the all-white house unanimously and was signed by the governor three days later 1952, Jan. Chamberlain’s city oficials unanimously adopted a resolution opposing the relocation of the BIA agency to Chamberlain due to looding from Fort Randall Dam, which was dislocating Dakota families on the Crow Creek Reservation 1952, Nov. Iron Crow v. Ogallala Sioux Tribe: Farrar iled a complaint with the U.S. District Court of South Dakota on behalf of Iron Crow (and white stock growers) against the OST land-use tax xx . chronology 1952, Dec. 1953, Jan. 6 1953, Jan. 7 1953, Jan. 8 1953, May 27 1953, June 9 1953, June 12 1953, Aug. 1 1953, Aug. 12 1953, Aug. 15 1953, Nov. 1 1955 1955, Feb. 18 1955, Feb. 24 1955, May 16 1955, June 7 1956 1956 1956, Feb. 20 1956, Mar. 6 1956, July H. Rpt. No. 2503 released: a voluminous investigation of the Bureau of Indian Affairs that recommended gradual termination of federal services to Native Peoples H.R. 1063 (termination bill that became PL 83-280) introduced in U.S. House of Representatives Berry introduced H.R. 1220 to amend the Navajo and Hopi Rehabilitation Act seeking to gain federal funds for South Dakota OST passed a revised grazing resolution 1-53 to cover the next iveyear period Sixty-second SDSGA annual convention HCR No. 108 introduced to U.S. House of Representatives stating termination policy; irst meeting of the Oglala Lakota, the BIA, and members of the SDSGA in Pierre, S.D., to discuss the OST’s grazing resolution OST’s closing date for sale of grazing privileges Having passed the house, HCR No. 108 passed the senate unanimously Interior Department news release outlined BIA’s position on grazing resolution controversy H.R. 1063 signed into law as PL 83-280 Beginning of new ive-year grazing period under OST’s 1953 grazing resolution O. A. Hodson case of range unit trespassing State of North Dakota v. Lohnes: N.D. Supreme Court required the state as a section 6 state to modify the disclaimer language in its constitution before seeking jurisdiction over Native lands Iron Crow ruling: Judge Mickelson upheld Oglala Lakota’s authority to levy taxes LRC established committees and assigned the “Indian Problem” to the EHWC Institute of Indian Studies, University of South Dakota, began a series of conferences on Indian affairs Fort Randall Dam (Missouri River) completed The AAIA released a study, “The American Indian Relocation Program,” that documented pervasive poverty on reservations Lakota and state oficials attended a highly charged “fact-inding” meeting of LRC’s EHWC Iron Crow: U.S. Eighth Circuit Court of Appeals afirmed Mickelson’s ruling supporting OST’s sovereign authority to tax SDBA’s Committee on Criminal Law issued a report recommending state jurisdiction chronology 1956, Sept. 7 · xxi SDBA’s membership approved recommendation of S.D. state jurisdiction over reservations at their twenty-fourth annual meeting 1956, Sept. 19 LRC’s EHWC issued a report recommending state jurisdiction on racist grounds 1956, Nov. 8 Oglala Sioux Tribe v. Barta: Mickelson ruled again in the OST’s favor; the OST had the legal authority to assess taxes and could use the federal courts to sue for delinquent taxes 1957, Jan. 14 The “four-states bill” (S. 574) proposed race-related federal subsidies to Midwestern states 1957, Feb. 6 LBSTC passed Resolution No. 56-109 requesting that South Dakota enact a law to assume criminal jurisdiction over the Lower Brule Reservation; this resolution became the basis for HB No. 892 1957, Feb. 12 HB No. 721 and HB No. 892 were both introduced 1957, Feb. 18, 20 HCIA hearings on HB No. 721 only; no hearings set for HB No. 892 1957, Feb. 26–28 Amendments added to HB No. 892, one of which was a referendum clause requiring Lakota consent 1957, Mar. 9 Having passed the house, HB No. 892 passed the senate, but after the legislative session had oficially ended (coat over the clock) 1957, Mar. 18 HB No. 892 signed by Governor Foss (but not effective for ninety days) 1957, Spring Clinton Richards’s South Dakota Law Review article, “Federal Jurisdiction over Criminal Matters Involving Indians” 1957, Apr. 23 High Pine and Woman Dress arrested 1957, Apr. 26 In S.D. Circuit Court, Judge Lampert granted writ of habeas corpus to High Pine and Woman Dress 1957, May RST President Burnette suggested to Berry that the RST purchase submarginal lands; Berry complied by drafting two bills: for the RST, H.R. 7626; for the OST, H.R. 7631 1957, June KLLA, a group of Native ranchers, organized 1957, June At SDSGA’s sixty-sixth annual convention, the membership denounced both sale of submarginal lands to the Lakota and CRST’s Rehabilitation Program 1957, June Farber’s study on the law-and-order “Indian Problem” concluded for the Government Research Bureau of the University of South Dakota 1957, June 6 HB No. 892 went into effect contingent on the fulillment of conditions, notably “Lakota consent” 1957, June 14 LBST’s “town hall” meeting voted to accept state jurisdiction xxii . chronology 1957, June 16–17 Institute of Indian Studies’ third annual conference on Indian affairs (USD) 1957, Oct. 1– Legally prescribed timeframe for Lakota’s reservation-wide 1958, Oct. 1 referenda 1957, Nov. 21 Petition of Matthew High Pine et al: Lampert issued a court order releasing High Pine and Woman Dress from their initial sentence of incarceration 1957, Nov. 28 The state appealed High Pine to the S.D. Supreme Court 1957, Dec. 15 Ducheneaux’s rebuttal to white ranchers’ attacks on CRST’s Rehabilitation Program 1958, Jan. 7 RST referendum rejected state jurisdiction 1958, Sept. 2 CRST referendum rejected state jurisdiction 1958, Sept. 6 SRST referendum rejected state jurisdiction 1958, Sept. 10 OST referendum rejected state jurisdiction 1958, Sept. 18 On a radio program, Interior Secretary Seaton publicly supported Native consent as a prerequisite for state jurisdiction 1958, Mar.– SRST, CCST, Lake Traverse Reservation, and FST held referenda Sept. rejecting state jurisdiction 1958, Oct. 15 Barta: Eighth Circuit Court upheld Mickelson’s decision afirming the OST’s sovereignty 1958, Nov. Senator Watkins (rabid terminationist and Berry’s cohort) defeated in his reelection bid 1959, Jan. 12 Williams v. Lee: U.S. Supreme Court decision upheld Native selfgovernance 1959, Jan. 15 Hanley, the counsel for High Pine and Woman Dress, countered the state’s appeal 1959, Jan. 30 SB No. 210 was introduced (later passed), claiming for the state concurrent jurisdiction over reservation highways 1959, Feb. Robert Burnette of RST testiied in Washington, D.C., before House Interior and Insular Affairs’ subcommittee on Indian affairs about pervasive racism in South Dakota 1959, May SDSGA president Louis Beckwith advocated state jurisdiction 1959, Nov. 2 High Pine: S.D. Supreme Court rejected the state’s appeal and ruled against state jurisdiction over Lakota lands 1961, Jan. 19 HB No. 659 introduced to extend state jurisdiction, to cover some costs, but to require a federal subsidy for most costs 1961, Mar. 9 Governor Gubbrud signed HB No. 659 into law 1961, Mar. 23 Interior Department news release stated that the U.S. would not inance a would-be state responsibility 1961, Mar. 27 Gubbrud notiied commissioner of Indian affairs that, lacking federal funding, HB No. 659 would not go into effect chronology 1962, Aug. 1962, Aug. 4 1962, Oct. 22 1962, Nov. 15 1962, Dec. 7 1963, Feb. 8 1963, Mar. 2 1963, Mar. 3 1963, Mar. 15 1963, June 4 1964, Jan. 30 1964, Nov. 3 1966 1966 1968, Apr. · xxiii Interim Investigating Committee report released that recommended state civil and criminal jurisdiction over Lakota lands based on racial proiling of welfare recipients Julia Hankins arrested and released LRC report, Jurisdiction over Indian Country in South Dakota, released Conference by state commission on Indian affairs Judge Lampert upheld Hankins’s writ of habeas corpus HB No. 791 introduced: the ultimate, all-out state termination bill; no requirement of federal subsidy and no Lakota consent provision The state appealed Lampert’s writ of habeas corpus ruling HB No. 791 adopted Governor Gubbrud signed HB No. 791 into law Lakota gathered 20,231 signatures to petition for statewide referendum on HB No. 791 South Dakota v. Hankins: S.D. Supreme Court upheld Lampert’s ruling, declared HB No. 659 invalid, and named South Dakota as a section 6 state Statewide referendum rejected HB No. 791 by an overwhelming margin U.S. Supreme Court Miranda ruling, afirming legal rights for those arrested Brophy’s lengthy report, The Indian, America’s Unfinished Business, issued, giving Native justice systems a positive verdict Indian Civil Rights Act (ICRA) amended PL 83-280 to require Native consent Not Without Our Consent Introduction In October 1985, as a newly elected tribal council representative from Rosebud Reservation’s St. Francis community,1 I recall that modern Sicangu Lakota governance had just undergone substantive and exciting political changes in constitutional reform. One experimental reform included amending the long-standing two-year term to a four-year term of service on the tribal council.2 It was during this four-year period of my term, from November 1985 to November 1989, that I became interested in documenting how the Lakota in the 1950s resisted PL 83-280 (appendix A), the infamous federal law that in many states terminated tribal governance and replaced it with state jurisdiction. From the beginning to the end of my term, the Rosebud Sioux Tribal Council (RSTC) as well as eight other Lakota/Dakota tribal councils experienced how the state of South Dakota tried unilaterally to compromise the political reality of self-governance throughout Lakota Country.3 On 10 December 1985 Newton Cummings, the president of the Oglala Sioux Tribe (OST), received a letter from Mark Meierhenry, South Dakota’s attorney general, which stated that South Dakota would “not recognize nor authorize the Oglala Sioux Tribe to license vehicles of its tribal members.”4 In concluding his letter to Cummings, Meierhenry noted in passing that, according to a 1959 state law,5 South Dakota had assumed jurisdiction over all reservation highways. In other words, any Lakota licensing of vehicles owned by Lakota individuals would be—within and without the boundaries of any Lakota homeland—legally “ineffective.” Evidently, South Dakota’s late-twentieth-century Native policy construed any acts of Lakota self-determination 2 . introduc tion as a hostile threat to the state’s political integrity and would respond to such threats, perceived or otherwise, accordingly. As a member of the Rosebud Sioux Tribal Council who participated in the protracted political ight that followed, I remember that the tribal council’s irst response to Meierhenry’s state-instigated challenge of Lakota governance was to enact a January 1986 resolution supporting the Oglala Lakota’s political efforts to resolve the licensing matter with South Dakota.6 Notwithstanding the Oglala Lakota’s earlier efforts to resolve this contentious jurisdictional matter, state oficials remained adamant in asserting jurisdiction. As a result, the Rosebud Sioux Tribe (RST) witnessed with growing apprehension an alarming trend toward state-initiated jurisdiction that involved South Dakota’s juridical community. From January 1986 through May 1987,7 South Dakota’s ifth and sixth circuit courts were inching unequivocally toward the position Meierhenry took in his 10 December 1985 letter to OST President Cummings: a unilateral assumption of state criminal and civil jurisdiction over portions of Lakota Country. Of course, the crux of this particular political ight was not about who could or could not issue license plates but about who had jurisdiction over Lakota territory: the Oglala Sioux Tribe and any of the other eight Lakota governments or the state of South Dakota. This debate inally culminated in the U.S. Eighth Circuit Court of Appeals’ 1990 decision, which rejected South Dakota’s claims to jurisdiction over Lakota territory. According to the federal court, South Dakota could not brazenly assert criminal or civil jurisdiction in our homelands without ever securing our political consent for them to do so.8 Indeed, several months prior to the circuit court of appeals’ decision, numerous events were forcing the Lakota toward an eventual political confrontation with South Dakota. First, on 14 May 1986 the Rosebud Sioux Tribe’s legal counsel of Finch, Viken, Viken, and Pechota iled an injunction in the federal district court of South Dakota to restrain South Dakota “from exercising jurisdiction over Indians on highways within the Rosebud Sioux Reservation.”9 On 31 March 1989, almost three years from the date of iling the suit, federal judge Donald J. Porter issued a thirty-four-page memorandum declaring that the parties shared a concurrent rather than an exclusive, separate jurisdiction over reservation highways.10 As I remember, Porter’s decision of concurrent jurisdiction not only stunned tribal councils throughout Lakota Country but also apparently gave South Dakota’s white community the oficial legal encouragement it desperately wanted either to leverage its way into the internal affairs of the Lakota community or to resist introduc tion · 3 Lakota governance altogether.11 While Porter’s presumably Solomon-like opinion encouraged the state to alter its behavior toward the Lakota community, it immediately ignited political resistance throughout the Cheyenne River, Crow Creek, Flandreau, Lower Brule, Pine Ridge, Rosebud, Sisseton, Standing Rock, and Yankton reservations. Second, the most memorable and perhaps galvanizing moment of Lakota political resistance to South Dakota’s aggressive encroachment came on 17 April 1989. Despite Porter’s ruling, the RST president, the late Alex Lunderman Sr., issued Executive Order 89-01, which banned S.D. Highway Patrol, the state’s primary law enforcement agency, from the Rosebud Sioux Reservation.12 Since Porter’s decision extended to all Lakota homelands, the next immediate step was to nationalize the RST’s ban throughout Lakota Country. In nationalizing the ban, each of the eight other tribal councils would have to enact legislation “to take any and all action necessary to prevent South Dakota from exercising civil and criminal jurisdiction on all highways.”13 By 9 June 1989, eight of nine tribal councils supported the RST’s efforts, and six passed legislation against South Dakota’s highway jurisdiction.14 Instead of having to contend with the thirty-nine-member Rosebud Sioux Tribal Council,15 South Dakota found itself facing a Lakota-uniied political front forged among the more than one hundred tribal council members, who together represented a substantial portion of the Lakota Nation. As a counterresponse, South Dakota engaged in politico-economic extortion against the Lakota People by halting a major highway construction project on the Rosebud Sioux Reservation, opposing the RST’s business licensure of white enterprises that conducted trade and commerce on the reservation, and objecting to the RST’s law that provided employment and contract preferences for the Lakota labor force. As the late Lakota Elder Marvin Thin Elk’s spring 1989 appeal to the Sicangu Lakota shows, the whites and the Lakota were spiraling toward a confrontation that included the specter of political violence: This appeal goes out to all Lakota [P]eople of this Nation. Our Tribal Sovereignty is being threatened by the State of South Dakota. Now is the time to make a stand as Lakota [P]eople. There is no tomorrow. We must stand as one on this issue [of Lakota sovereignty]. . . . A great majority of us, have volunteered to ight for our Country [the United States] and all that it stands for. Now, we must ight again; against the same Country we fought for—to enjoy our right to be Indian and live in peace amongst ourselves. . . . In closing, once again as Lakota [P]eople, let’s ight the good ight as one people. Lay everything aside and let’s stand together as our Forefathers [the Lakota of Little Big Horn fame] did and we will win.16 4 . introduc tion Undeniably, our highly charged act of Lakota national solidarity in banning South Dakota’s primary law enforcement agency entailed personal and political risks. At worst, the personal risks included the possibility that the tribal council oficials would be cited for being in contempt of a federal court order, which would have resulted in incarceration or ines or both. Political risks included the possible negative reactions of the federal judges at the Eighth Circuit Court of Appeals to the Lakota’s increasing acts of political unrest.17 South Dakota indeed fanned a public perception of the Lakota leadership’s political behavior as subversive. In the State of South Dakota’s 1989 reply brief to the circuit court, the state charged that Lakota institutions had little regard for the federal court rulings: “Given the lack of respect for the rulings of the federal courts by the tribal courts and tribal councils, the conclusion follows quite easily that the protections to be afforded by those institutions will be ‘erratic.’”18 If South Dakota had been successful in promoting its spin on Lakota political behavior as being acutely subversive to the Euroamerican legal process, the consequence might have been an extremely adverse ruling by the appeals court. Fortunately, that did not happen. Regardless of the real or imagined confrontational politics involved, the circuit court of appeals reversed Porter’s ruling, afirming the Lakota argument that, without any evidence of Lakota consent, South Dakota had no criminal or civil jurisdiction over any portion of Lakota Country. When South Dakota oficials chose to ignore this all-important and long-established principle of political consent, the Lakota community and the state’s white community found themselves locked in a heated emotional struggle that brought out the bitter feelings and ill-will that the whites bore toward the Indians. At this point, one might ask: What does this 1980s story that I lived through as a tribal council member have to do with the earlier story of the 1950s and 1960s—the story that concerns this book? During the controversial time I experienced, I came across various Lakota political and legal documents, such as tribal council resolutions and court briefs, that often cited a November 1964 statewide referendum. In that referendum, both peoples—the Lakota and the whites—rejected a law that granted South Dakota criminal and civil jurisdiction over Lakota territory. Indeed, the referendum’s vote against state jurisdiction is impressive: 201,389 voters rejected any state assumption, while only 58,289 voters voted for it. If the 1964 referendum’s outcome was as deinitive as it was impressive, why, then, did it have little, if any, post-1964 political impact or legal bearing on Lakota–South Dakota relations? Why did the mid-1980s Lakota–South introduc tion · 5 Dakota jurisdiction conlict happen at all? Moreover, if this referendum vote is acknowledged by both the politico-legal community and the Lakota as an authoritative foundation for contemporary Lakota-white relations, why is so little known about this historic, relations-altering event? Asking such questions, of course, led me to discover another seminal event that has been largely unknown and was quite startling: a referendum on the same issue was held six years before the one held in 1964. My discovery of a previous referendum opened many more questions. Naturally, I wanted to know about the 1958 and 1964 referenda themselves. But in a larger sense, I also wondered what it was about the state jurisdiction question that made it possible to hold two referenda on the same issue with virtually the same outcome six years apart? Who were the players, and what were the forces—the motives, strategies, factors, and goals—shaping the processes? Moreover, while the 1958 and 1964 outcomes were the same, the processes leading to them were vastly different. In 1958, for example, only the Lakota were allowed to vote on the question of state jurisdiction; the white community was excluded. In 1964, both communities voted. Of course, allowing only the Lakota to vote in one referendum and then allowing both communities to participate in another raised my interest considerably about what happened in the irst referendum. With so many questions and with only a supericial knowledge of the 1964 referendum, I was embarrassed to admit that I had known absolutely nothing about the 1958 referenda.19 Granted, because I knew so little of these two previous and much more intensely fought political battles over jurisdiction during the late 1950s and early 1960s, it did not occur to me until much later when I began this project that the late 1980s highway jurisdiction ight with South Dakota was a direct descendent of those earlier battles. Vine Deloria Jr., perhaps more than most people, understands the need to know Native history during the twentieth century in order to frame current events within historical patterns. As I witnessed on the tribal council, a long-familiar pattern of political struggle between the Lakota and South Dakota was repeating itself, but at the time, I lacked the full appreciation of the Lakota–South Dakota jurisdiction history. Deloria’s 1974 comment on the importance of Native history also pointed to the cause of the recurring patterns of conlict, namely, the longstanding problem that whites have with Native Peoples: It is imperative that Indian history move immediately into this century [the twentieth], . . . We are fast approaching the inal decades of this century, and 6 . introduc tion we have been without any discernible Indian policy since 1958, when termination was practically abandoned by the Interior Department. Since that time, both Congress and the executive branch have operated on an ad-hoc, let’sput-out-the-ire, basis which has served neither the federal government nor the Indians but has only postponed the solution of longstanding problems. When one gets a good perspective on the twentieth century, then the nature of these problems is illuminated so that the problems which plague Indians are seen as indications of a long process of change of cultural and economic forms which repeat basic patterns over and over again.20 My lack of knowledge about this speciic period of Lakota political history can, therefore, be explained in part by the simple fact that, while much has been written about Native Peoples, most of what has been written has focused on pre-twentieth-century Native North America. Though a generation of scholars has since matured under Deloria’s 1974 disconcerting exposé and redirected considerable energies toward the study of twentieth-century Native North America, my inability to answer the many questions I had surrounding both the 1958 and 1964 referenda stemmed from a deiciency in contemporary Native North American literature. The scholarship suffers not from any lack of detail but from where the scholarship has focused. Today, there are several hundred books, studies, and articles written about the Termination Era; they are informative, but I still ind them wanting. For one thing, the Termination Era literature includes very few written materials on the Lakota response to Public Law 83-280. But more than that, Steven Schulte’s article about congressman E. Y. Berry’s role throughout the Termination Era identiies more precisely why the literature on termination remains inadequate: “Unfortunately, scholars have tended to overlook the importance of termination politicians’ backgrounds and possible economic motivations by concentrating on the actual formulation of the policy. While this approach is important and fruitful, it is time to move beyond discussions of when or why the termination issue evolved to an analysis of its proponents’ motivations.”21 Not knowing at the state level who the leading proponents and opponents of termination were or their motivations leaves tremendous gaps in understanding the Lakota’s 1958 and 1964 responses to Public Law 83-280. Not surprisingly, many people suffer from this socially constructed but entirely curable form of historical amnesia, which, as of the time of this writing, often derails any meaningful solutions to the long-standing Lakota–South Dakota jurisdiction debate.