restricted access 189. United States v. Sioux Nation of Indians, June 30, 1980
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296 and irreplaceable part of the Nation’s heritage ; (2) these resources are increasingly endangered because of their commercial attractiveness ; (3) existing Federal laws do not provide adequate protection to prevent the loss and destruction of these archaeological resources and sites resulting from uncontrolled excavations and pillage; and (4) there is a wealth of archaeological information which has been legally obtained by private individuals for noncommercial purposes and which could voluntarily be made available to professional archaeologists and institutions. (b) The purpose of this Act is to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data which were obtained before the date of the enactment of this Act. . . . excavation and removal Sec. 4 (a) Any person may apply to the Federal land manager for a permit to excavate or remove any archaeological resource located on public lands or Indian lands and to carry out activities associated with such excavation or removal. The application shall be required, under uniform regulations under this Act, to contain such information as the Federal land manager deems necessary, including information concerning the time, scope, and location and specific purpose of the proposed work. . . . (c) If a permit issued under this section may result in harm to, or destruction of, any religious or cultural site, as determined by the Federal land manager, before issuing such permit, the Federal land manager shall notify any Indian tribe which may consider the site as having religious or cultural importance . . . . (g)(1) No permit shall be required under this section or under the Act of June 8, 1906 (16 U.S.C. 431), for the excavation or removal by any Indian tribe or member thereof of any archaeological resource located on Indian lands of such Indian tribe, except that in the absence of tribal law regulating the excavation or removal of archaeological resources on Indian lands, an individual tribal member shall be required to obtain a permit under this section. (2) In the case of any permits for the excavation or removal of any archaeological resource located on Indian lands, the permit may be granted only after obtaining the consent of the Indian or Indian tribe owning or having jurisdiction over such lands. The permit shall include such terms and conditions as may be requested by such Indian or Indian tribe. . . . [U.S. Statutes at Large, 93:721–23.] 189. United States v. Sioux Nation of Indians June 30, 1980 In the Treaty of Fort Laramie (1868) the United States guaranteed a large reservation to the Sioux and declared that no further cessions would be valid without the consent of three-fourths of the adult males. But in 1877 the land of the Black Hills was confiscated by the United States. For many years the Sioux sought court action to rectify that action. The Court of Claims finally decided that the 1877 law constituted an illegal taking of the land and that the Indians were due compensation with interest, for a total of more than $100 million. The Supreme court upheld that decision, thus weakening or discrediting the presumption of congressional good faith asserted in Lone Wolf v. Hitchcock (1903). This case concerns the Black Hills of South Dakota, the Great Sioux Reservation, and a colorful, and in many respects tragic, chapter in the history of the Nation’s West. Although the litigation comes down to a claim of interest since 1877 on an award of 297 over $17 million, it is necessary, in order to understand the controversy, to review at some length the chronology of the case and its factual setting. . . . [Discussion of the history of the case and of the Court of Claims judgment.] In sum, we conclude that the legal analysis and factual findings of the Court of Claims fully support its conclusion that the terms of the 1877 Act did not effect “a mere change in the form of investment of Indian tribal property.” Lone Wolf v. Hitchcock, 187 U.S. at 568. Rather, the 1877 Act effected a taking of tribal property, property which had been set aside for the exclusive occupation of the Sioux by the Fort Laramie Treaty of 1868. That taking implied an obligation on the part of the Government to make just compensation to...