Open Letter to the Lower Brule Sioux Tribal Council on KXL and TransCanada

NOTE: This is an open letter to the Lower Brule Sioux Tribal Council in response to conflicting accounts of whether they oppose the Keystone XL Pipeline. As part of pressuring the Lower Brule Sioux Tribal Council into rescinding their support of TransCanada and the Lower Brule to Witten Power Project, please feel free to use, modify, and/or create your own letter. Here is the letter template: LBSTC KXL LETTER TEMPLATE. Mail physical copies to each individual councilmen at the address below. Please send letters and share this information, even if you are not an enrolled member of the Kul Wicasa Oyate. We need your help! Our land, water, and future are at stake. Pilamayelo! Documents: LBSTC TransCanada Resolution FEIS Programmatic Agreement Appendix J Basin Electric For more information on how to help and support the Kul Wicasa Oyate, contact Lakota George Estes (605 730 0852), Shaylene High Elk (605 730 0651), or Nick Estes ( Map of the Lower Brule to Witten Power Project crossing reservation land: Screen Shot 2014-03-05 at 2.46.06 PM To the Lower Brule Sioux Tribal Council: Chairman Michael Jandreau Vice-Chairman Boyd Gourneau Councilman Red Langdeau Councilman Darrel Middletent Councilman John McCauley Councilman Shawn LaRoche Lower Brule Sioux Tribe P.O. Box 187 Lower Brule, SD 57548-0187 SUBJECT: SAY NO TO THE KEYSTONE XL PIPELINE AND CEASE NEGOTIATIONS WITH TRANSCANADA IN SOLIDARITY WITH THE OYATE AND THE OCETI SAKOWIN It has come to the attention of the public that the Lower Brule Sioux Tribal Council passed Resolution No. 14-0007 on November 12, 2013. This resolution authorized Chairman Michael Jandreau to sign a letter to President Obama and Vice Secretary Kerry “stating Lower Brule Sioux Tribe’s prospective benefits and working relationships with Transcanada [sic].” In spite of having passed this resolution to express support for TransCanada, the construction company contracted to build the Keystone XL pipeline, Lower Brule Sioux Tribal Council members have again and again claimed they oppose the pipeline. Most recently Vice Chairman Boyd Gourneau recently told KSFY News, “We—the Lower Brule Sioux Tribe—are opposed to Keystone XL pipeline.” And Chairman Jandreau reiterated Gourneau’s statement and expressed the following: “It is time that Tribal people come together positively to those activities that are so destructive to our continuation as Lakota’s [sic]!” Where does the Lower Brule Sioux Tribal Council stand on the Keystone XL Pipeline and TransCanada’s ancillary power projects? What has been negotiated and agreed upon? To begin with, Basin Electric Power Cooperative is proposing to construct and manage a 76-mile 230kV power transmission line from the Big Bend Dam to the Witten Substation to provide power to a proposed Keystone XL pipeline pump station. Along with the power transmission line, Basin Electric is planning to construct the Lower Brule Substation near the Big Bend Dam. Both proposed project would be on Lower Brule Tribal Reservation trust lands. The transmission line would also cross individually allotted land, some of which remains fractionated and owned by multiple interests from members of the Lower Brule Sioux Tribe and enrolled members of other tribes. In total, the project requires only 16 acres of land within the Lower Brule Reservation boundaries. In a December 2011 “Routing Report,” TransCanada states:

The need for the [Lower Brule-Witten] Project is driven by two key factors: 1) serve proposed short-term load growth on the 115-kV system between Basin Electric’s Mission and Fort Randall Substations, including electric service demands from pump stations for the proposed TransCanada Keystone XL Pipeline; and 2) provide an additional source of power at the Witten Substation to improve regional system reliability and voltage stability.

The document reveals that the Basin Electric and TransCanada would benefit from the proposed power project, but does not indicate that there will be any benefit the Lower Brule Sioux Tribe. Nonetheless, the project would solicit negotiations with the Lower Brule Sioux Tribe, since it proposes to enter the jurisdictional boundaries of the reservation; and it would require that the Bureau of Indian Affairs approve any right-of-ways for the proposed project that would cross Indian trust lands. A 2013 December document, listed as “unclassified,” also names Chairman Jandreau and Tribal Cultural Resource Officer Claire Green under “Consulting Tribes’ Points of Contact” for “the implementation of the Programmatic Agreement for the Keystone XL Pipeline Project.” The Programmatic Agreement (first drafted in 2010 and then amended in 2013) provides that if culturally sensitive areas affected or discovered during the construction process tribes will be consulted. But signing the Programmatic Agreement also gives evidence that TransCanada has consulted with tribes. Yet this is a violation of the United Nations Declaration on the Rights of Indigenous Peoples’ Article 32, which states:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. [Emphasis added]

As it stands the current Programmatic Agreement does not allow for free and informed consent prior to the approval of the Keystone XL Pipeline and the Lower Brule to Witten Power Project. Nothing in the agreement’s current language allows for the tribes to reject either project, and suggests that through negotiation and consultation implicit agreement has been reached to the projects’ terms and inevitability. However, in September 2011 the Great Plains Tribal Chairman’s Association adopted the “Mother Earth Accord” that calls for “full consultation” under the Declaration’s “free and informed consent prior” to these projects’ approval. The Association further called for a moratorium on oils sands production and urged President Obama to reject the Keystone XL Pipeline’s Presidential Permit. Likewise, the Oglala Lakota Nation, the Sicangu Oyate, traditional treaty councils, and many community organizations have adopted resolutions in opposition to any negotiations with TransCanada and the construction of the Keystone XL Pipeline. In sum, the Oceti Sakowin and the Oyate opposes the Keystone XL Pipeline. Where does this leave the Lower Brule Sioux Tribal Council if they have adopted a resolution to the show support to TransCanada? First, public statements issued in opposition to the pipeline appear moot if the Council continues to negotiate for the Lower Brule to Witten Power Project. Second, the Lower Brule Tribal Council has turned its back on the Oceti Sakowin and enrolled members of its tribe if it allows this power structure to be built within its reservation boundaries, since it will provide an essential source of electricity to one of the pipeline’s pump stations. Not taking a firm stand in opposition to the pipeline places the Lower Brule community at risk as well as the all communities that will be affected by the pipeline’s construction. Access to clean drinking water will also be placed at risk. The proposed route of the Keystone XL Pipeline currently crosses 357 streams and river, namely the Cheyenne River and White River, which are also tributaries to the Missouri River. The pipeline would also cross the Mni Wiconi Rural Water Supply Project, which currently provides fresh drinking water to the Lower Brule Sioux Tribe, the Oglala Lakota Nation, and the Sicangu Oyate. More importantly, the pipeline crosses the Ogllala Aquifer, the one of the world’s largest freshwater aquifers. Contamination of this aquifer would result in catastrophic effects that would impact countless people, animals, and plants that depend on this vital source of water. Given TransCanada’s poor record with spills resulting in faulty construction and poorly maintained pipelines, it would not be a matter of if the pipeline spills but when the pipeline spills. The inevitability of spills, then, would result in the inevitable contamination of fresh water. Successful cleanups of oil sands spills have proven ineffective and these spills often result in near-permanent water contamination. By negotiating with TransCanada and supporting the construction of the Lower to Witten Power Project, the Lower Brule Sioux Tribal Council will not only put the Lower Brule Sioux Tribe’s water at risk for contamination, but also everyone else’s water. As several Oceti Sakowin tribal councils are in the process of drafting a Declaration of War against TransCanada and the Keystone XL Pipeline, it is imperative that the Lower Brule Sioux Tribal Council rescind its support for the TransCanada and the Lower to Witten Power Project and publicly denounce these projects. It is imperative that the Lower Brule Tribal Council refuses further consultation and negotiation with TransCanada. It is imperative that the Lower Brule Tribal Council stands with the Kul Wicasa Oyate’s collective opposition to these projects. It is imperative that the Lower Brule Tribal Council supports the efforts of its enrolled members to put a halt to these projects. It is imperative that the Lower Brule Tribal Council stands with the Oceti Sakowin, other Indigenous Nations, and non-Indigenous communities in the fight against TransCanada and the Keystone XL Pipeline. This is a struggle for life, the future, and the continued survival of the Kul Wicasa Oyate. It is my hope that you take these insights seriously, as a relative and fellow citizen of the Kul Wicasa Oyate. Sincerely, Nick Estes Enrolled member of the Kul Wicasa Oyate PhD Student, University of New Mexico

The Keystone XL Pipeline: Coming to Terms and Demanding the Impossible

La Jicarita


As the mass demonstrations and opposition to the construction of TransCanadas 1,200-mile Keystone XL (KXL) pipeline project mount, key concern has been paid to the serious environmental and social risks the KXL pipeline poses. The recent State Department publication of the Final Supplemental Environmental Impact Statement for the Keystone XL Project (EIS) has raised important objections as to the validity and potential outcomes of the construction or non-construction of KXL. But what is at stake? More importantly, what does the EIS say about the current and future world of oil-dependence? If we take look a close look at the EIS, we can begin to understand that much more than construction of pipelines is at stake if we are to begin to imagine an oil-free future.

Proposed KXL route The proposed KXL Pipeline’s 1,200-mile route would connect Hardisty, Alberta to Steele City, NE. This graphic shows the only…

View original post 2,350 more words

Why Chamberlain, SX is Indefensible

NOTE: Unless cited, I use “X” in place of “Dakota” in “South Dakota” or “SD” to show respect for the Dakota people and reclaim the name from anti-Indian state governments and institutions. Dakota means “ally” and WoDakota means “peace and harmony.” Neither of these two meanings reflect the beliefs and attitudes of state governments towards Dakota people.

Chamberlain Must Go!

“The racist town of Chamberlain should be erased from the map!” Elizabeth Cook-Lynn declared to a standing-room only crowd of Natives and non-Natives who erupted into applause, cheers, and high pitched LE-LE-LE-LEs this summer at the Ite Sni symposium held at School of Mines campus. The elder Native stateswoman spoke about her life growing up in Crow Creek during the 30s, 40s, and 50s and the profound anti-Indian sentiment she experienced in the towns of Chamberlain and Oacoma. She made reference to the fact that anti-Indianism in Chamberlain has a long history and tradition; and the school board’s continued battle to fight the singing of a D/Lakota honor song at a high school commencement ceremony is testament to this tradition. So we shouldn’t be surprised. We shouldn’t be mad, angry Indians, because we should just expect Chamberlain to behave the way Chamberlain does.

What was most surprising was that everyone had a common sense about Chamberlain being a racist town, even, ironically, non-Native members of the Rapid City community! But what is Chamberlain’s historic anti-Indian common sense and why is it so productive in protecting its whiteness? Before this question can be adequately answered, we should turn to the history of Chamberlain.

Anti-Indian History

When the infamous Lewis and Clark expedition began to navigate through “hostile” Sioux territory in late September 1804, they camped on sandbars and tried to avoid the Teton Sioux nation whom the explorers described as “vilest miscreants of the savage race.” Soon the “miscreants” discovered the explorers and a tense three day stand-off took place at what is now the Big Bend of the Lower Brule Sioux Reservation. Lewis and Clark did not want to pay passage for their trespassing and soon kidnapped the son of a chief to guarantee their safe travel. This transgression set the precedent of Lakota-U.S. relations in the area. The behavior of succeeding settlers in the area changed little.

After Lewis and Clark came trappers and traders that began to settle near the Whetstone Agency, which was south of present-day Oacoma. Fleeing for their lives from the murderous, total war campaign waged by Colonel Henry Sibley to round up and exterminate the refugees of the 1862 U.S.-Dakota War, Dakota relatives took shelter in the bluffs along the Missouri River at present-day Chamberlain. Thousands of Dakota men, women, and children were killed for scalp bounties for their participation in the 1862 uprising. Lakota relatives pitied the Dakota who fled the war and helped hide them among their camps. The place where they hid became known as Tipi Maka Oyanke, or Cave Dwellers Camp.

Chamberlain was formally founded as a railroad town in 1881 and served as the gateway for gold miners seeking fortunes in the opening of the Black Hills in 1877. Richard H. Pratt, head of the Carlisle Indian School in Pennsylvania, attempted to coax the Oyate (the Great Sioux Nation) into opening up the “Great Sioux Reservation” in 1888. This became known as the Pratt Commission. Anti-Indian sentiment in “Dakota Territory” fueled indignation towards the Oyate’s refusal to capitulate with the Pratt Commission, thus the measure failed. Leaders in Dakota Territory then pressured Congress to pass a bill of force sale to open up the the “Great Sioux Reservation.”

This bill became known as the “Sioux bill” of 1888 and resulted in the forced sale of over 9 million acres of land to be opened for homesteading. Some of the land was purchased at less than a dollar an acre. Some was “given away free” to white settlers. It remains as one the largest mass, illegal dispossessions of Native land in U.S. history.

In To Have This Land, historian Philip S. Hall recounts:

Citizens throughout the territory, particularly those in the Black Hills and along the Missouri River, were overjoyed. Many held formal celebrations with bonfires, speeches and parades. Chamberlain held a grand inaugural reservation ball. Partygoers there were entertained by young [white] men dressed and painted as Indians galloping their horses through the streets and staging war dances on the corners. The citizens held a mock sitting of the Pratt Commission as an expression of their contempt for the men who had failed to open the reservation.

In 1898, the Bureau of Indian Affairs founded Chamberlain Indian School on the land that is now St. Joseph’s Indian School and was once Crow Creek trust land all the way to American Creek. That same year, the Canton Asylum for Insane Indians was built in Canton, SX. Many D/Lakota children and adults from the Lower Brule and Crow Creek agencies were forced to attend these institutions, which functioned to domesticate, often violently and sometimes resulting in death, young children, “sexually deviant” adults, and medicine people. What this meant, in some cases, was the lobotomization of those deemed sexually or behaviorally immoral, or those that were winkte or “talked to spirits.”  Boarding school children were violently disciplined to adhere to the moral standards of white settler society. To say these institutions served as places for just assimilation is an act of violence. These were institutions of genocide intent on stripping Native people from any semblance of themselves.

In 1909, the Chamberlain Indian School closed its doors, but the boarding school model was re-established on the former BIA school’s lands by Roman Catholic Priest Henry Hogebach. Canton Asylum remained open until 1934, taking in hundreds of Native peoples from around the U.S.—nine of ten died at the asylum. The remaining trust lands north of American Creek eventually became incorporated into Chamberlain’s jurisdiction.

In 1944, Congress passed the Pick-Sloan Act, which channeled federal dollars towards damming the Missouri River. Nine sites were designated for dams, most of which were on Sioux Indian reservations. Facing the dual threats of federal termination policy and the inundation of agency buildings in the early 1950s, Crow Creek and Lower Brule were forced to negotiate with local communities about possible sites for relocating their vital infrastructure. South X congressmen E. Y. Berry and Francis Case advocated for relocating the agencies and reservation services to Chamberlain. In response to proposed move and possibility of integrating the white community with the two tribal agencies, the Brule County Commissioners issued the following in 1951:

[The Brule County Commissioners] hereby expresses its firm belief that if such [agency] offices are moved within Brule County that as a result of such move Brule County would necessarily be forced to provide the necessaries of life for a considerable number of reservation members moving into the county, and this would place an intolerable financial burden on Brule County, South Dakota.

In 1954, the Mayor of Chamberlain Hershel V. Melcher echoed the Commissioners plea with a more threatening tone:

Lately the Indian Offices at Fort Thompson, S.D. say they want to move into Chamberlain, S.D., [and it] seems they want to come whether we like it or not. Some of the boys in the Community Club seem to favor it but the people in town are most all against it. If they come in here, it will be necessary to declare open season on Indians and Government Agents, we do not feel that we are entitled to this kind of abuse from the government and we do not intend to take it peacefully… The people of Brule County do not feel we should be saddled with a relief load for Indians, that is the job of the Federal Government, and we do not intend to let an Indian light around here at all. We do not want to live with them, we don’t want them in our schools… [W]e advise you that if it come in [sic], we will then do everything we can to get rid of it and to make them wish they were not here. We do not intend to even be gentlemen about it, this is an unjust imposition on us any way you look at it.

The City Commissioners also passed the following resolution:

BE IT THEREFORE RESOLVED by the City Commission of the City of Chamberlain, Brule County, South Dakota, that we are opposed to the moving of the Indian Offices from Ft. Thompson, S.D., to the City of Chamberlain, S.D., for all the above reasons and for the further reasons that [it] creates an extra police problem as to drunks and petty larceny. That we therefore strongly oppose any such move to the City of Chamberlain.

Signed: Mayor Hershel V. Melcher, Commissioner C. L. McDonald, Commissioner Frank C. Knippling, Commissioner Willard Wristen, Commissioner Gerrit Brink, and Commissioner Edward C. Martin [then Democrat Candidate for Governor of South Dakota]

Unhappy by the lack of the response, Melcher went on the offensive again:

As I advised you [Congressmen] before, we have no intention of making an Indian comfortable around here, especially an official. We have a few dollar diplomats that have been making a lot of noise and trying to get everyone they possibly could to write you people in Washington that they wanted the Indians in here but the fact is that 90% of the people are strongly opposed to it and will get much more so if this thing come in [sic]. Anybody who rents them any property will have to change his address and I would not want the insurance on his building. We do not feel that this town should be ruined by a mess like this and we do not intend to take this lying down irregardless [sic] of what some official in Washington may think.

These deep-seated anti-Indian sentiments resulted in the relocation of the agencies to Oacoma and eventually back to their respective tribes. But the incident and the culminating history was not forgotten nor lost on the D/Lakota.

Following a string of sex abuses scandals at St. Joseph’s Indian School that have come to light in recent years, a class action law suit was building against the owners of the boarding school, the Congregation of Priests of the Sacred Heart. Former Native students of the school came forward and testified about the physical and sexual abuse they endured from priests and staff. In 2011, Steven Smith of Chamberlain, and lawyer for Sacred Heart, wrote and submitted a “constituent bill” to the SX state legislature. The bill (HB 1104) “flew through the legislature” and set the statute of limitations for sexual abuse victims to file civil suits against institutions after the age of forty. Under this law plaintiffs over age 40 may file for damages only from individual perpetrators of childhood sexual abuse. They may not, however, collect damages from institutions such as the Sacred Heart or the religious organizations that hired and supervised the alleged perpetrators. Smith told the Argus Leader in 2010 “nobody knew I was doing this.”

Many have commented on the state’s complicity to cover-up the sexual abuse of Native children at religious boarding schools. Attorney for the Native plaintiffs told the Huffington Post in 2011 that “The South Dakota legislators are on record as passing this bill to get rid of hard-to-defend Native cases.”

This historical survey is one small slice of a larger history of anti-Indian sentiment and behavior. To go into further detail would require a full-length book.


How is it that a town of about 2100 people can have so many “bad apples”? We cannot chalk up the history of the anti-Indianism in Chamberlain to a select few individuals, but it is a history that is endemic to the mentality and common sense of its institutions and white population. The recent controversies of whether or not a D/Lakota honor song appropriately reflects Chamberlain’s “tradition” represents just one instance in a long line of instances in which the vitriolic Indian hating comes to a head.

Board members Rebecca Reimer (President), Jay Blum, Casey Hutmacher, Leann Larson, Dallas Thompson, and Ted Petrak will join the ranks of Chamberlain’s 132 year history of Indian haters for voting against the honor song in May 2013. But these individuals represent an institution, which is supposed to represent the values of the populations it serves. That institution represents the standards of the town and its people.

The Chamberlain school district has caused injury, but it is not an exceptional nor isolated sentiment. It follows the tradition of Chamberlain’s Indian hating. Whenever I tell people where I was born and raised, if they’ve heard of it, their face contorts. “Really? Chamberlain?” they ask. It is personal recognition and repugnance that this small town harbors so much infamy for being racist. But racist is too polite a term.

I have written academic and informal pieces about Chamberlain in the past. As a result, I have also received threats of bodily harm from former white classmates and friends. I ask them, what are you defending? Are you defending and condoning this behavior? Or are you defending your whiteness? The last question usually ends the conversation. What I am talking about concerns whiteness and a very old school kind of racism. But it’s more than that. It is a deep-seated common sense that somehow recognizing or conceding anything to Native people will destroy the core values of Chamberlain. It is a community founded on violent colonial dispossession. Talking about that will put a target on your back and, in my case, cause threats of violence. But I refuse to be silent.

But can you refute history? Can you change it? Chamberlain and its people have yet (beside a small minority) to show themselves worthy of being neighbors and cohabiters along the Missouri. Saying that history is in the past only reproduces violence and anti-Indianism in the present. It removes it from the reality many Native people face today because of that history. It makes our stories less worthy, and thus makes us less worthy.

It is not the job of Native people to bear the unfair burden of living with this history. It is incumbent upon white settlers to learn and help undo inequalities of the present. The world is watching Chamberlain. The Oceti Sakowin is watching and waiting as well. We will continue to move forward, even if Chamberlain chooses not to.

As the school board tables the honor song for the spring 2014 graduation, let us not forget the injuries that have been done. For a just resolution to the problem Chamberlain presents, it may require a radical departure from the past. It may require white settlers and the institutions that defend whiteness to recognize themselves as perpetrators of historical and ongoing human rights violations against Native peoples. It may require understanding that white settlers are occupying and benefiting from stolen land. It may, as Waziyatawin notes, require solutions “just short of breaking camp.”

Hecutu Welo!

Wounded Knee: Settler Colonial Property Regimes and Indigenous Liberation

Here is a link (below) to my recent publication in Capitalism Nature Socialism Journal based out of the UK. The theme of the journal is bridging socialist and Indigenous perspectives. Check out the entire contents of the special edition if you have access to the journal via academic libraries. Unfortunately, UNM does not currently carry CNS.

With that said, there are some minor grammar errors and one glaring error on page 193. The date of the Battle of Little Bighorn should read “1876” not “1976”. All the errors and oversights are my own. Please comment and share.


Estes CNS Article – Wounded Knee 2013

Special thanks to David Correia for giving me the opportunity to publish in CNS. Check out his new book Properties of Violence: Law and Land Grant Struggle in Northern New Mexico.

“The Black Hills are for sale!”: Decolonizing U.S. Settler Colonial Property Regimes


The Lakota saying goes that when someone owes you money and you know they cannot pay you back, you say, “Toksa He Sapa!”, that is, “Goodbye Black Hills!” The cruel pessimism in this phrase speaks to the larger issue of the Black Hills land claim as an outstanding debt owed to the Native people of North America and Indigenous people across the globe. It speaks to the inability of liberal democratic states to address how endemic land and the commodification of land is to the broader framework of settler colonialism. The market economy and the parceling of land into units of private property play an integral role in how the U.S. settler colonial state manifests itself into being, as well as maintaining colonial property regimes in the present to further dispossess Native people.

The Black Hills—or He Sapa—are an internationally recognized symbol of Native and Indigenous peoples’ outstanding claims to ongoing injustices perpetuated by the U.S. and other settler colonial nations across the globe. More recently, the private sale of a 1,940-acre tract of land of what is known to the Nation of the Seven Council Fires—or the Oceti Sakowin Oyate—as Pe’ Sla and Reynold’s Prairie by U. S. colonizers became a mobilizing issue that sparked a renewed interest in the Oyate’s claim to He Sapa. What sets the private sale of Pe’ Sla apart from the more than 160 years of legal and historical claims to He Sapa and designated treaty territory is the $9 million purchase of private land by the Oyate directly implicates Native people in the commodification of land as a resource that can be bought and sold.[1] Property, as it relates to the commodification of land within U.S. settler imperialism, is dependent on the dispossession of Native title. Paradoxically, however, in the 1980 United States v. Sioux Nation of Indians case, the U.S. Supreme Court ruled that the U.S. illegally seized He Sapa and awarded the claimant tribes a monetary settlement of $106 million, which was subsequently refused in the spirit of the moniker “The Black Hills are Not for Sale!” Thus, the purchase of a sacred site within territory that has been ruled as illegally seized by the U.S. raises many questions to the validity of colonial property regimes and land purchases by tribes. Inherent within these exchanges is the notion that the U.S., as a colonizing settler state, endorses the elimination of Native title to land, while maintaining that in doing so it abrogates its own legal protection of Native title. But it is the intent of U.S. settler colonial capitalism to incorporate He Sapa into the national political economy in spite of its illegal claim. Therefore, the contradictions of property as it relates the claims of Native title to illegally seized territory in the claims of He Sapa and Pe’ Sla, as defined through the interpretations of the U.S. Supreme Court, warrants a re-examination of U.S. settler colonial logics of property and the political economy of U.S. settler colonialism in He Sapa.

This essay examines the complicity of the Oyate to participate in the market economy to buy back Pe’ Sla that challenges the effectiveness of international and national legal channels to productively ameliorate the material conditions of settler colonialism as it relates to outstanding Native land claims. The hollow legal and political definitions of “sovereignty” and the “rights” of Native peoples, for example, carry little weight in the context of the legal rights to property as exerted by U.S. colonial dominance. Given the logics of the U.S. settler colonial state that specify certain entitlements to individual property ownership as defined by law, the power invested in Native institutions to participate in market economies of land exchange presents a unique paradigm of decolonization that has immediacies in the present state of property regimes and ongoing land dispossession. The private purchase of Pe’ Sla by the Oyate demonstrates the inability of cultural and spiritual claims to He Sapa to effectively materialize land return. Instead, by participating in the market economy of land purchase, the Pe’ Sla becomes an iconic moment for the Oyate because no court ruling or moral appeal has effectively returned any portion or the whole of He Sapa.

As significant stakeholders in territorial claims for land that is continually seized and reordered into market economies, the Oyate’s presence within these territorial contestations are what Patrick Wolfe describes as a key feature of settler colonialism: “contests for land can be—indeed, often are—contests for life.”[2] The deeper issue of land and the material resources it provides for the continuance of life for both the Oyate and settler society depends on a nuanced understanding of the legitimacies of property regimes as contestations for life.

Colonial Property Regimes

The colonial history of He Sapa, indeed, represents a violent contestation for life. Beginning in 1874 with George A. Custer’s illegal entry into He Sapa and what was designated “Sioux Territory” by the 1868 Fort Laramie Treaty, the prospects of gold prompted an invasion of white prospectors into what is now known as the Black Hills in the western half of South Dakota. In a series of ongoing battles between the Oyate and the U.S. Calvary, the violence of conquest centered on He Sapa as material resource and the securing of a market economy of land in the U.S’s western frontier. Eliminating Native presence depended on not only the outright physical extermination of the Oyate, but also the over-determinacy that He Sapa would be opened up for settlement and incorporated into settler colonial property regimes. In 1876 homesteader Joseph Reynolds laid claim to the Pe’ Sla site and represented the current of settler claims that arose in and around He Sapa. Driven by the desire for territorial acquisition of individual properties and the capital they guaranteed, U. S. settlers within the Dakota Territory recognized the political and economic significance of He Sapa as not only sustaining the Oyate’s continued resistance to the U.S., but also the future incorporation of Oyate territory into the U. S. political economy to establish settler colonial regimes of property.[3] Therefore extinguishing the Oyate’s claim to He Sapa was historically contingent upon the futurity of U. S. expansion and the establishment of capitalistic settler colonial property regimes.

The historical conquest of Oyate treaty land is an international phenomenon that implicates indigenous people within the colonial and imperial logics of property as they relate to the notions of dominance as expressed by both the Doctrine of Discovery and the Framework of Dominance, key concepts in international and domestic law both past and present. Inherent within U.S. federal Indian law is the reification of the theological Christian underpinnings of the Framework of Dominance and the expressed right of sovereign Christian nations of dominion over discovered land and people, rendering both as property of their Christian discoverers. The European Old World understanding of property, for example, originates from the Latin term dominium, which means absolute ownership. The infamous 1832 U.S. Supreme Court case Johnson v. M’Intosh ruled that the U.S. retained rights of conquest and discovery as inherited from prior European colonial powers, thus legally condoning settler transgressions into Native held territory.[4] The legal foundations and articulation of Native title, therefore, will always be subject to the understandings of property law as the right of absolute ownership over Native land and people. Sustaining settler colonial property regimes, then, is contingent up the continued dispossession of Native territory and title as self-perpetuating system of capital accumulation.

Today, the political economic futurity of He Sapa is seen in similar terms. Although the prospects of gold no longer sustains the territorial market economy, political economies of uranium and the prospects of oil drilling sustain the future political economies of the settler colonialism in South Dakota and the Great Plains region. The territorial presence of the Native territorial contestations at key sites such as Pe’ Sla do, however, pose serious challenges to the future capitalistic resource development. For example, the Pe’ Sla dispute originated in 2005 when Pennington County received a $9 million federal earmark to pave a road that ran directly through the Pe’ Sla site. In 2008 the Federal Highway Administration determined that development of a roadway was a national priority and would directly benefit the timber and tourist economies. Despite the Oyate’s recent purchase of Pe’ Sla, the site still remains subject to the building of the road to benefit the tourist and timber industries. But, as property owners of Pe’ Sla, the Oyate put itself in the position to protest the proposed highway development.[5]

Unsettling Colonial Property Regimes

On 12 August 2012 the Rosebud Sioux Tribal Council issued a press release stating it would “act as the conduit to the unite all the Oceti Sakowin… in this struggle to maintain its deeply rooted traditions” at Pe’ Sla and He Sapa.[6] Also, within this press release the Rosebud Sioux Tribal Council articulates a moral and spiritual right to Pe’ Sla as being intrinsic to the livelihood of the Oyate. These immaterial claims of moral and spiritual rights run counter to the logics of property ownership within U.S. settler colonialism, and likewise have no legal bearing or precedent in any U.S. law. They do, however, position a spiritual and moral obligation of the Oyate to protect land that, though illegally seized, is not outside the power of reincorporating Pe’ Sla within the territorial boundaries of tribal property. Moreover, the Oyate’s legal right to purchase land in private auction can be seen as an exercise of the sovereign right to purchase private property. This commercial exchange of land falls into the rights bestowed upon Native nations by U.S. federal law to participate in the market economy of land.[7]

Likewise, utilizing the “sovereignty” as a moral right fails to fully grasp the material conditions in which property and dominance are exerted upon Native nations as subjects of U.S. empire. For Lenape scholar Joanne Barker, sovereignty is historically contingent upon definitions designed by U.S. federal policy. Within the legal frameworks espoused by colonial states on behalf of Native nations, “Sovereignty carries the horrible stench of colonialism. It is incomplete, inaccurate, and troubled.”[8] Purchasing Pe’ Sla as an sovereign act on behalf of the Oyate does directly implicate tribes within the settler colonial framework of land exchange, but it also reflects a certain kind of immediacy posed by the ongoing threat of colonial property regimes to further dispossess Native title. Where federal and domestic legal remediation of outstanding land claims fails to provide the material benefits of redistributing and relinquishing of land guaranteed to the Oyate under the 1868 Fort Laramie Treaty, the purchase of land to further halt development and deterioration of Pe’ Sla is a politically strategic move that does not easily fit within the frameworks of sovereignty as a moral right. Instead, it is a legally exercised right that can be viewed as both accommodating the modes of self-determination and self-government as bestowed upon tribes by the federal colonial regime of the U.S., while maintaining a position that is in direct opposition to the logics of property regimes. Dakota scholar Elizabeth Cook-Lynn writes that “Federal Indian law has curtailed the values of the Sioux Nation, the Ocheti Shakowan [sic], by outlawing traditional ways of behaving and replacing them with something formal and foreign.”[9]

So what are ways of addressing the wrongdoings of federal Indian law as it relates to colonial property regimes? Many commentators argue that Pe’ Sla and the He Sapa land claim on behalf of the Oyate would be a focal point for the material application of the United Nations Declaration of the Rights of Indigenous People (UNDRIP). Four months prior to the proclamation issued by the Rosebud Sioux Tribal Council, UN human rights Special Rapporteur James Anaya visited He Sapa and met with various Native communities around South Dakota and North Dakota to listen to their concerns about various issues that affected the everyday existence of the Oyate living within the material conditions of settler colonialism. Among many of Anaya’s findings, land, namely He Sapa, is central to the Oyate’s demands on the international governing body for resolving the 150 years of occupation of treaty-specified territory.[10] In fact, one of the primary movers for an international redress for outstanding Indigenous land claims originated in 1974 with the First International Indian Treaty Council at Standing Rock that was organized around the outstanding land claims of the 1868 Fort Laramie Treaty and the illegal occupation of He Sapa.[11] The International Indian Treaty Council went on to be foundational in creating a permanent forum for Indigenous issues at the United Nations, which was also foundational in creating the framework for UNDRIP.[12]

Yet many scholars, Anaya included, express serious reservations as to the effectiveness of UNDRIP for effectively ameliorating these demands for land return to the Native nations for two important reasons: 1) UNDRIP is not a legally binding document;[13] and 2) UNDRIP primarily emphasizes Indigenous “collective” rights as individuals and not as “nations.” Cook-Lynn argues that the implication of “nation” through the use of the word “collective” is not enough. Obfuscating Native nationhood within UNDRIP and not providing legal mechanism for redress, the Oyate treaty councils that directly opposed the very mechanisms of colonial property regimes since 1890 find that the only remedy is to return to treaties made between the U.S. and Native nations.[14] Given the long history of outstanding Indigenous land claims both internationally and within the U.S. setter colonial context, there still remains no material application of UNDRIP as effecting land return to Indigenous people.

(Im)Possibilities of Colonial Property Regimes

The lack of effective legal recourse that faces the Oyate to seek redress for the historic and ongoing dispossession of treaty-specified lands creates a seemingly impossible double bind. On one hand, the Oyate’s land base is continually under threat from being completely folded into  larger colonial property regimes. While on the other hand, the Oyate participates directly in the commodification of land through its participation in the private real estate economy. Opposition on part of the Oyate is not enough because until Native nations act outside the confines of federal authority, they will inevitably accommodate and replicate the very colonial means by which they are repressed. For example, Barker and Cook-Lynn both argue that sexually othered (namely, non-male) Native people experience the worst kinds of colonial violence. Both scholars see the accommodation of normative values of Christianity and liberalism as infecting tribal communities and governments. This reification of the normative values of the liberal democratic U.S. colonial state serves to validate the dominance of settler colonialism within Native communities and tribal law.[15]

Without directly implicating Native nations in the continued commercial commodification and exchange of land, then, how is it possible for the Oyate not to fall into the trappings of the colonial property regimes with the recent purchase of Pe’ Sla? Perhaps this question cannot be addressed in the appropriate manner without expressing the notion that property, as it is understood in a larger theoretical framework, does not imply permanent ownership. Although Pe’ Sla was privately owned by a white settler family for 136 years, it has now become the shared property of the Oyate. But, this, too, does not guarantee a permanent fix to the eventual recovery of He Sapa. Tribal property is also subject to change ownership, given how the entire history Native-Colonizer relations can be summed up as one violent real estate exchange—one that solely benefits and is intrinsic to the vitality of the U.S. settler state.

Without detailing the intricacies of how Native nations must put purchased or reacquired land into trust with the federal government (a colonial process inherently paternalistic), Pe’ Sla will still have to be federally trusted back to the Oyate through the Bureau of Indian Affairs. One needs only to look at the recent 2009 7,100-acre seizure of Crow Creek Sioux Tribe land by the IRS to understand the instability of tribal property and the paternalistic nature of the federal government. Eventually the Crow Creek Sioux Tribe, which is located in Buffalo County, SD, the poorest county in the United States, bought the purchased the land back from the IRS with the help of the Oyate. Although the case received extensive coverage by regional newspapers, the issue, like most outrages against the criminal behavior of the U.S. colonial state, fell silent after the land was returned.[16]


What is at stake in the private purchase of Pe’ Sla and any future private purchases of land by the Oyate, is the possibility that the land will somehow be reclaimed or incorporated back into colonial property regimes because property ownership is not permanent. This creates the opportunity and possibility of tribes to purchase land as an act of reacquiring territory. But because the Oyate remains financially and materially restricted by federal oversight, this cannot be a sustainable venture. A radical departure from the political and legal practices of tribes reifying normative values of the U.S. liberal democratic state has to take place first and foremost. This would mean abandoning these values as they pertain to the empty promises of self-determination, “sovereignty,” social Native exceptionalism (authenticity) and the exclusion of non-normative people, and, finally, a re-articulation of the fundamental legal precedents of treaty law.

Although the U.S. like many settler colonial state would like to create historically amnesic gap between the eliminationist policies of a colonial past to the continued eliminationist policies of the present, the continued existence and threat of the private exchange of land has on the Oyate is an enduring reality of the colonial present. For example, like all federal eliminationist policies of the past that have been subsequently rescinded or abandoned, the 1888 Dawes Act’s detrimental effect on Native land and title continues to be an enduring colonial feature of the present.

The primitive accumulation of land and the establishment of settler colonial property regimes, in effect, create the material conditions of possibility to simultaneously legitimize settler status through the protection of property rights within liberal democratic institutions of law and politics and roots of capital as a formulaic enterprise of Native territorial dispossession. Effectively addressing the current material conditions in place that are intrinsic to the settler colonial property regimes remain to be challenged. Pe’ Sla and outstanding contestations of He Sapa represent unique opportunities for the Oyate to unsettle these colonial property regimes. What must be taken into account, however, is that, if left unchallenged, settler colonialism and imperial demands for territorial and capitalistic expansion will continue. The importance of Pe’ Sla in the global context is that U.S. federal Indian law has historically been adapted by settler colonial regimes across the globe. The implementation of property regimes and the legitimation of dominance and discovery, for example, have been taken up by New Zealand, Australia, Canada, and more recently Israel as legal precedents for the legitimating the historic and continued existence of settler colonial states.[17]

Pressing the U.S. settler state to live up to its moral obligations to respect and provide recourse for Native nations as moral right does not have a legal bearing or precedent. To successfully unsettle colonial property regimes, there must exist an effective legal mechanism that addresses “reconciliation” and “decolonization” as a material redistribution of power. For Native nations, the realization of material power is the very existence of Native nations as property-owning nations that have real physical, material boundaries. Therefore, before any amelioration of the continued material subjugation of Native people can begin at an international or domestic level, land and the right to land must be acknowledged first and foremost. It is land, as mentioned by Wolfe, that settler colonialism creates life for itself. It is land for the Oyate that has sustained its existence. This would mean that the treaties between Native nations and colonizing states not merely be acknowledged or “honored,” but put into material practice.

Addendum: Owasicu owe waste sni (The way of the fat-taker is no good)

Yesterday (6 February 2013), Native Sun News announced that the Wounded Knee site on the Pine Ridge Indian Reservation is up for private sale at $3.9 million. Wounded Knee is the site where over 300 Lakota men, women, and children of Hehaka Gleska (pejoratively named “Big Foot” by whites because the shoes he was rationed were too small for his feet) band of Mincounjou were massacred at the hands of Custer’s former regiment—the Seventh Cavalry. Eighteen Medals of Honor—the United State’s highest military honor—were awarded to cavalrymen who participated in this massacre of mostly unarmed Mnicounjou. It was also the largest per capita awarding of the Medals of Honor for any conflict or war in U.S. history. Wounded Knee was also the site for the 73-day standoff between the American Indian Movement and the U.S. Marshalls and FBI. For the Oyate, the Wounded Knee Massacre and the AIM occupation represent dark, violent periods in our national history, as well as a site of refusal and rejection of wasicu occupation. It is a site that is considered by many as hallowed ground. But, more importantly, it is an historic testament to how the U.S. settler colonial regime refuses forgiveness and pardon for the Oyate’s centuries of resistance to colonial occupation.

James A. Czywcynski, the current white owner of the 40 acre site, put the land up for auction and stated, “We would really like to see the land returned to the Lakota people and that is why I am giving them an opportunity to purchase the land before I open it up to others for sale.” In a statement for the reasons why he put a $3.9 million price tag on the site, Czywcynski reasoned, “I was never repaid for the property losses I had as a result of what happened there in 1973 [during the AIM occupation]. The price that I have placed on the land is an attempt for me to reclaim my losses, and an attempt to get fair market value for the land.”[18] These statements alone are testament to how continued struggles over land are also struggles over life. For the U.S. settler state, as clearly expressed by Czywcynski, the debt of Native life and land is still being paid as damages for merely surviving and continuing to live with the violences of colonial property regimes. This debt is not just a land-based economy, but an economy of suffering and an economy of mourning that is continually commodified as marketable and exploitable.

Hecetu Welo!

[1] Mario Gonzalez and Elizabeth Cook-Lynn, The Politics of Hallowed Ground: Wounded Knee and the Struggle for Indian Sovereignty (Chicago: University of Illinois Press, 1999), 331-357.

[2] Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research (December, 2006), 387.

[3] Jeffrey Ostler, The Lakotas and the Black Hills: The Struggle for Sacred Ground (New York: Viking Press, 2010), 68-69.

[4] Permanent Forum on Indigenous Issues, Preliminary Study of the Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery (New York: United Nations Economic and Social Council, 2010), 4n.2.

[5] Steve Young, “Tribes Concerned About Sale of Property Near Deer Lake,” Rapid City Journal, 18 August 2012:

[6] Rosebud Sioux Tribe Press Release, “Rosebud Sioux Tribe to Take Lead on Protecting Sacred Site,” 12 August 2012.

[7] Felix S. Cohen, On the Drafting of Tribal Constitutions (Norman: University of Oklahoma Press, 2006), 60.

[8] Joanne Barker, “For Whom Sovereignty Matters,” in Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, ed. Joanne Barker (Lincoln: University of Nebraska Press, 2005), 26.

[9] Cook-Lynn, A Separate Country: Postcoloniality and American Indian Nations (Lubbock: Texas Tech University Press, 2012), 73.

[10] U.N. General Assembly, 21st Session, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, 30 Augus 2012, (A/HRC/21/47/Add. 1), 7, 17, 18, 20, 37-40.

[11] Roxanne Dunbar-Ortiz, The Great Sioux Nation Sitting in Judgment on America: An Oral History of the Sioux Nation and Its Struggle for Sovereignty (New York: The American Indian Treaty Council Information Center, 1977), 201.

[12] Alyosha Goldstein, Poverty in Common: The Politics of Community Action During the American Century (Durham: Duke University Press, 2012), 236-40.

[13] U.N. General Assembly, 21st Session, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, 19.

[14] Cook-Lynn, A Separate Country, 188.

[15] Cook-Lynn, A Separate Country, 96-102; Barker, Native Acts: Law, Recognition, and Cultural Authenticity (Durham: Duke University Press, 2011), 98-145, 189-216.

[16] Affiliated Press, “Crow Creek Sioux Tribe Fails to Block IRS Land Auction,” Sioux Falls Argus Leader, 3 December 2009:

[17] Permanent Forum on Indigenous Issues, Preliminary Study of the Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery, 19-20.

[18] Brandon Ecoffey, “Wounded Knee Site put up for Sale at $3.9M,” Native Sun News, 6 February 2013: