One of the first actions taken by President Biden back in January was issuing an executive memorandum on tribal consultation and strengthening Nation-to-Nation relationships. This memorandum was a reaffirmation of a similar memorandum from President Obama in 2009. Obama’s memorandum was an affirmation of President Clinton’s Executive Order (EO) 13175 from November 2000, which, according to Biden’s January memorandum, “charges all executive departments and agencies with engaging in regular, meaningful, and robust consultation with Tribal officials in the development of Federal policies that have Tribal implications. Tribal consultation under this order strengthens the Nation-to-Nation relationship between the United States and Tribal Nations.”
Biden’s memorandum prompted an ambitious letter, dated June 28, 2021, from a group calling itself the Oceti Sakowin Oyate, a letter signed by eight prominent Lakota leaders and elders: Rodney Bordeaux, President, Rosebud Sioux Tribe; Fremont Fallis, Chairman, Sicangu Treaty Council; Kevin Killer, President, Oglala Sioux Tribe; Bill Means, Chairman, Black Hills Sioux Nation Council; Mike Faith, President, Standing Rock Sioux Tribe; Cedric Good House, Chairman, Hunkpapa Lakota Treaty Council; Harald Frazier, Chairman, Cheyenne River Sioux Tribe; and Harry Little Thunder, Chairman, Nacha Treaty Council.
The letter rejects the “U.S. claim of ownership of our territory, lands, waters, and resources, and its claim of authority and domination over our nations and peoples.” The letter then requests from President Biden, “…a Nation to Nation meeting with you and the Oceti Sakowin Oyate at the center of our sacred He Sapa (Black Hills) at a place we know as Phesla (Old Baldy).” Challenged in the letter, are the verities of the “doctrine of discovery,” the trust relationship with the federal government, and the “plenary power doctrine.” Supreme Court cases are cited, for purposes of revisiting those decisions for “candid discussion.” However, the 1903 case which cemented plenary power in place, Lone Wolf v Hitchcock, is not mentioned, indicating those that prepared the letter may not grasp the full implications of the issues they raised.
On January 5, 1455, 37 years before Columbus reached the New World, Pope Nicholas V issued the papa bull Romanus Pontifex, which extended to Catholic nations, dominion over discovered lands during the Age of Discovery, empowering them to “invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever…and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit.”
This established the Doctrine of Discovery, as applied to the aboriginal peoples of North and South America, more specifically, as applied by the United States, in all dealings with tribal nations. While treaties are ostensibly signed between sovereign nations, the U.S. never intended for any treaty to be outside the remit of the Doctrine of Discovery. Plenary power is the final arbiter in this process, which allows Congress to alter or abrogate any treaty for whatever purpose they deem necessary. Although the Black Hills Act is a textbook example of plenary power applied, Lone Wolf v Hitchcock carved it in stone a quarter century later.
The Oceti Sakowin Oyate letter to Biden identified this history and requested “a fundamental revisiting” of this unequal relationship, where on one hand a tribe signs a treaty with the understanding and assurance it is an agreement between sovereign equals, but the policy then pursued and applied by the U.S. is not based on the treaty, but on the Doctrine of Discovery backed by the cudgel of plenary power.
Accompanying the three-page letter was a 14-page white paper, not only detailing the concerns mentioned in the letter, but outlining an ambitious plan to have the public lands within historical treaty boundaries returned, including compensation for resources taken. This compensation, totaling in the tens of billions of dollars, would finance the tribal takeover. In addition, the white paper requests the federal government train the tribal personnel required to manage such a vast responsibility.
While the white paper talks about traditional tribal society and government and spirituality, it does not explain how these can be transformed into a government capable of not only managing the public lands but of creating an interactive economy with the rest of the nation and the world. The end of the trust relationship with the federal government, and treaty obligated compensation, whether directly promised or indirectly implied, would mean tribes would have to fend for themselves, and with the treaty obligated spigot cutoff, will tribes manage the resources they need to survive better than tribal governments presently manage the resources they presently have?
Sources tell NSNT that the white paper draft was written by water rights expert Andy Reid, and although it purports to speak for the entire Oceti Sakowin, all the signatories to the letter to Biden are from only one of the council fires, the Tetonwon, People on the Plains, or the Lakota Oyate. Missing is any input form the other six council fires: the Mdewakaton, Dwellers by the Sacred Lake; the Wahpekute, Shooters Among the Leaves; the Sisitonwan, People of the Marsh; the Wahpetonwan, Dwellers Among the Leaves; the Ihanktown, People of the End; and the Ihanktowana, People of the Little End.
The driving force behind the Oceti Sakowin Oyate group appears to be the Sicangu Lakota Treaty Council (SLTC), headed up by Phil Two Eagle. The SLTC co-hosted the first ever Oceti Sakowin Treaty Conference back in December of 2018. At that conference Two Eagle said, “We feel that we can only move forward together as the Oceti Sakowin Oyate on all matters that affect our treaty rights and lands. You have to remember that old saying you can break a single arrow easily but you can’t break a handful of arrows.”
While this rhetoric holds true in principle, eighty-six percent of the Oceti Sakowin, six of the seven council fires, have not been participating and did not sign the letter to President Biden.
Two Eagle wants the tribe to return to a traditional form of government, and in a 2018 article in the NSNT by Richie Richards he said, “Our tribe adopted the IRA Constitution, as did all of our Oceti Sakowin Oyate. It literally ripped our Oyate in half,”
But Two Eagle, according to Linked In, also has a degree in Business Administration, and he points out in the same article that business must be done with outside groups, such as the federal government: “I look at the IRA as a business card, as a way to do business with the federal government.”
Which government will rule over all the public lands the letter asks for? The traditional Tokala Akicita Okolakiciye? Or the business minded IRA model? Even the detailed white paper lacks a structured proposal, offering no economic projections or feasibility studies, nothing on policy, procedures, procurements. This leaves the government room to dismiss the letter as unrealistic, aspirational rhetoric lacking the expert input of lawyers, economists, and other essential professionals.
Historically, presidents do not respond to such letters, and it is unlikely Biden will respond to this one. The scope of the letter, and the attached white paper, are both all-encompassing, all the cards were laid face up on the table. An opening consultation might have been easier to secure if limited to a specific concern, such as return of the Black Hills. The letter cajoles, invites, accuses, and condemns at the same time. The Biden Administration cannot but be concerned that by graciously responding to the letter, they validate the accusations and condemnations.
(Contact James Giago Davies at firstname.lastname@example.org)
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