A legal opinion is sought as to whether the Great Plains belong rightfully to the Plains Indians according to the terms of the 1851 Treaty of Fort Laramie.
While doing research for the manuscript Washita, Genocide on the Great Plains, I came across the "Treaty of Fort Laramie with Sioux, Cheyennes, Arrapahoes, Crows, Assinaboines, Gros-Ventre Mandans and Arikaras (September 17, 1851) ," reprinted in George E. Fay's Treaties, land cessions and other U.S. Congressional documents relative to American Indian Tribes. In carefully reading it, it appears to me to be still in effect today. It has been ratified and I do not see where it was abrogated collectively.
Could any interested attorney look at this document and respond as to whether it is presently in force and if my following argument is valid?
As I read it, this is not just a treaty between the United States and a tribe, but actually the articles of a confederation, similar to a constitution, for the nations referred to above. I suggest that the purpose of this document was to delineate the boundaries of the above confederation, designating what territories belonged to what tribes. However, this document codifies a union, I repeat, a union of tribes together. This union, in addition, was recognized not only by the participating tribes, but by the United States, which ratified it.
I see no reason why this document is not still valid. In other words, I see no reason why the treaty of Fort Laramie, which assigns the Great Plains region to these tribes, is not presently operative. I offer this as an open challenge and welcome any refutations. Let me explain.
The document states, in part, the following, that:
"The aforesaid Indian nations..."
(The "aforesaid" referring to those nations of people "residing south of the Missouri River, east of the Rocky Mountains, and north of the lines of Texas and New Mexico, viz, the Sioux or Dakotas, Cheyennes, Arrapahoes, Crows, Assinaboines, Gros-Ventre Mandans, and Arikaras.)
"--do hereby recognize and acknowledge the following tracts of country, including within the metes and boundaries hereinafter designated, as their respective territories, viz:"
What followed was a delineation of the territories, such as "The territory of the Cheyennes and Arrapahoes, commencing at the Red Butte, or the place where the road leaves the north form of the Platte River; thence along the main range of the Rocky Mountains to the head-waters of the Arkansas River; thence down the Arkansas River to the crossing of the Santa Fe road; thence in a northwesterly; direction of the forks of the Platte River, and thence up the Platte River to the place of beginning."
This type of description was repeated for the various tribes. But, one must ask, what was the nature of these territories in terms of possession? How were these territories owned, in other words? The answer is that they were held in joint tenancy, not strictly individually. The territories were part of a union, a confederacy, and were held in common. One of the reasons for this was that it was an open range economy largely dependent on the buffalo. Because the buffalo migrated, the various tribes that depended on the buffalo had to be able to access that food source at all times, as well as supplemental food sources, such as deer. If circumstances occurred whereby provisions from hunting were depleted, if the herd was far away at that time, the Indian had no other choice but to go where the buffalo or other game were at that time. This could mean traveling great distances up or down the plains in search of the buffalo. While territories were fine as rough designations of living space, they could not be exclusive, for if ownership was exclusive, those excluded from where the buffalo were would die of starvation. In consideration of this fact, the following language was incorporated into the Laramie treaty:
"It is, however, understood that, in making this recognition and acknowledgement, the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands."
What "other lands" are being talked about here? The answer is those lands in which the various tribes considered they had "rights or claims." Thus, the other territories and even those lands outside those territories, in which the various Indian nations had vested rights or claims were not abandoned or prejudiced by the terms of the treaty.
To make this passage as clear as possible, the following language was incorporated:
"And further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described."
Who does not surrender? The aforesaid Indian nations. Thus, this passages says specifically that together the Sioux, Cheyennes, Arrapahoes, Crows, Assinaboines, Gros-Ventre Mandans and Arikaras do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described, namely the region of south of the Missouri River, east of the Rocky Mountains, and north of the lines of Texas and New Mexico, and in fact, do not abandon or prejudice any rights or claims they may have to other lands, including each other's territories.
This Fort Laramie treaty fractured the various designations individually, but not collectively. If the tribes together stated that they did not surrender the joint use of the land, then it is not surrendered and never has been.
If Native Americans so wished, in particular the signers of the Fort Laramie treaty, they could exercise their rights on the Great Plains to pass over it, hunt, fish and any other rights once claimed, for that joint, unsurrendered permission has been given by Congressional ratification. This means that if Native Americans so wished they could herd buffalo across the Great Plains without being prohibited from doing so by anyone. They could, for instance, follow the buffalo and protect that herd that has broken away from Yellowstone National Park. This means that the Plains Indians are still in possession of the Great Plains as an open range and need no permission to travel it, hunt it or enjoy it at will.
James Horsley
Washita - Genocide On The Great Plains, Chapter One