SAME BLACK HILLS, MORE WHITE JUSTICE:
Senator Daschle's Provision Granting Barrick Gold Company Immunity From Liability

By EDWARD LAZARUS

Thursday, Jan. 24, 2002

Just before going home for the holidays, Senate Majority Leader Tom Daschle did a neat little favor for one of his corporate constituents. As a rider to the defense appropriation bill, he attached a provision granting absolute immunity to the Barrick Gold Company of Toronto for any liability arising from the 125-year operation of its Homestake Mine, a gold-bearing gash in the Black Hills of South Dakota.

Over the years, the Homestake, once the foundation of the Hearst family fortune, yielded more a billion dollars in gold. Now the site is largely played out, but according to arguments supporting immunity for Barrick, it's ideal for a giant underground physics lab - as long as the feds underwrite the clean-up problems.

The government's assumption of liability for the Canadian mining company may cost over $50 million dollars. Still, the pork-barrel bill probably would not be worthy of special note except for two reasons. First, it marks an interesting turn in the longest running legal saga in American history. Second, it re-affirms an unsurprising truth: This country deals far more generously with foreign corporations that buy our land than with the native peoples from whom we took it.

Gold In Them Thar Black Hills, But Not For the Sioux

The Homestake mine was born amid one of the most sordid chapters in the saga of America's westward expansion. In 1868, the U.S. Government signed a treaty with the Sioux Indians confirming tribal ownership of the entirety of what is now western South Dakota, including the awe-inspiring Black Hills.

Even when the treaty was signed, there were rumors that the Hills were filled with gold. And in 1874, the government sent into the Hills a secret expedition under the command of George Armstrong Custer to investigate the rumors. As Custer gleefully reported upon his return, he'd "found gold in the roots of the grass."

Notwithstanding the government's agreement to keep all miners out of the Hills, Custer's announcement triggered a gold rush. By 1875, those willing to risk their necks were staking claims, including the claim that would emerge as the gargantuan Homestake mine.

Inevitably, the pressure mounted for the government to renege on its treaty obligations and take the Hills from the Sioux. Equally inevitably, the government yielded to the pressure.

"Negotiating" with the Sioux

The government took the land anyway. In 1877, Congress passed a statute seizing the Hills unilaterally. War broke out. Custer had his last stand. But in the end, superior numbers and superior weapons defeated the tribe and they were confined to a new, diminished reservation while gold poured forth from the Hills.

Over the next decades, the government tried various means for assimilating the Sioux and other western tribes into America's cultural mainstream. They failed in almost every respect, but the process did teach Indians that their conquerors had a court system in which to seek redress for perceived wrongs.

The Sioux's Suit: A Larger Award But Not Large Enough

By the 1880s, Sioux leaders were already talking about filing a claim against the United States for the taking of the Black Hills. It took them four decades to convince Congress to waive the government's sovereign immunity and to grant jurisdiction over such a claim to the Court of Claims. Finally, in 1923, the tribes filed in federal court a suit seeking compensation for the theft of the Hills and all the gold that the Homestake folks and others had taken out of them.

It took 57 years, lots of false starts, even two more special acts of Congress, but eventually the Sioux had their day in court. In 1980, the Supreme Court by a 8-1 vote, awarded the tribe $106 million dollars on the ground the U.S. had taken the Black Hills and paid no just compensation in violation of the Constitution's Fifth Amendment.

The Black Hills award was, at the time, the largest ever against the United States . Yet it could hardly be called "just" in any absolute sense. The $106 million dollars represented the value of the Hills in 1877, the time of their taking, plus 5% simple interest over the intervening years. As a result, the tribe realized almost none of the vast mineral wealth yielded by their stolen land.

A fairer solution would have allowed compound interest and an interest rate more reflective of realistic returns. It might also have imagined a counterfactual in which the tribe had kept the land, as they had sought to do, and awarded them the huge value of the opportunities they'd lost.

The Sioux Refuse the Award: A Black Hills Stalemate

In any event, in one of the tale's most ironic twists, by the time the tribe obtained its victory in court, many Sioux politicians had come to reject the notion of accepting money as compensation for the taking of lands the tribe held sacred. As a result, from a combination of religious and political ideology, the tribal leaders reacted to their long-sought legal victory by spurning the money judgment. Instead, they demanded that the United States return the Black Hills to the tribe.

The government, for its part, has cut back on reservation programs generally and, not surprisingly, resisted the idea of returning to the Sioux lands that now include both private property and the shrine of Mount Rushmore.

There is no end in sight to this tragic Black Hills stalemate which has yielded neither sustenance (physical or spiritual) to the tribe, nor true redemption for their conquerors.

How Congress Can Help the Sioux with A New Black Hills Bill

The next time Senator Daschle is cooking up a bill for his constituents, he should consider turning his attention to this aspect of Black Hills history, and not the gold that tore the region apart originally.

A constructive first step would be a bill authorizing the Sioux, presumably using the interest on their Black Hills award, to buy private property in the Hills and obtain reservation status for the land so purchased. Next, the Senator might propose returning specifically identified sacred sites within the Hills to the tribe, in those instances in which the federal government still owns the land.

Such a bill would hardly solve the myriad problems in Indian country. But it would be a further step in healing a wound that has crippled the tribe for generations. And neither proposal would cost the government a dime. It would just be a triumph for the ever elusive principle of doing the right thing.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, Black Hills/White Justice: The Sioux Nation Versus the United States, 1775 to the Present and Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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