Invisible Nation: Mapping Sioux Treaty Boundaries

This post is based on a talk I gave at the Nelson Institute Center for Culture, History, and Environment Symposium at UW-Madison on February 11, 2017. Here are the slides from the talk:

Last fall I made a map of the Dakota Access Pipeline’s Missouri River crossing that went viral. One part of the map drew especially vigorous discussion in the comments section of the original post: the area labeled “Sioux Territory Under 1851 Treaty of Ft. Laramie.” Because of that discussion, I changed the label from its initial wording, stripping the word “Unceded” from the beginning. I won’t change it back; for now, this keeps the map on sound legal footing. But here I will explain why I think a strong argument can be made for the original wording, and what it portends for Sioux sovereignty over this contested landscape.

While conducting research for the Black Snake map in mid-October, I connected with a staff member at the Standing Rock Tribe’s Historic Preservation Office who gave me information I could use on the map in exchange for some light GIS assistance. As I was packing up to head back to the Oceti Sakowin camp, this person asked me if I would be willing to digitize and map the boundaries of the Great Sioux Nation.

My response was: The what?

The Great Sioux Nation is a geographic entity that came into existence with the 1851 Treaty of Fort Laramie. Intended to halt Indian attacks on white settlers moving west along the Oregon Trail, the treaty for the first time designated territorial boundaries of the Sioux, Cheyenne, Arapaho, Assiniboine, Mandan, and Arikara peoples. To the Native Americans who roamed the plains as nomads hunting buffalo for subsistence, these boundaries were always in flux, determined by who could best their rivals in counting coup. To the Americans, fixated on expanding their nation-state, defined territory and property boundaries were necessary prerequisites for legal ownership and use of the land. Thus, these boundaries were largely fictitious, but a legal fiction that would bear some fruit in the white man’s court over a century later.

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Map of 1851 treaty boundaries from North Dakota Studies website.

Of course, hostilities between the U.S. and the Sioux in particular did not cease in 1851. In 1868, after a series of skirmishes known as Red Cloud’s War, the U.S. signed another Treaty of Fort Laramie with the Sioux and their allies. This treaty was negotiated shortly after Red Cloud’s warriors massacred 81 American troops under Captain William Fetterman, who the Indians saw as trespassing in the contested Powder River Country (they were protecting white gold prospectors using the Bozeman Trail, whose presence threatened the buffalo herds, the main form of subsistence for the western Sioux). In the wake of the Civil War, the U.S. Army calculated the cost of militarily subduing the proud Sioux as too high, and sued for peace.

The 1868 treaty contained three sections defining Sioux lands. Article 2 of the treaty designated a “Great Sioux Reservation,” a place where, in theory, Indians who wanted to assimilate could settle into the lifestyle of yeomen farmers. Article 16 recognized Sioux hegemony over the vast Powder River Country, labeling it “unceded Indian territory” and closing American forts and the Bozeman Trail. Article 11 recognized the rights of the Sioux to hunt south of the reservation “so long as the buffalo may range thereon in such numbers as to justify the chase.”

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Map of 1868 treaty boundaries from North Dakota Studies website

These treaty boundary maps were easily located on the internet, but were too small-scale to digitize accurately. I figured it wouldn’t be too hard to use the treaties themselves to draw in more accurate boundaries, or, failing that, find the sources used by the online maps. As I was leaving the Standing Rock office, I said that I should have something done by the weekend. Boy, was I off. I was staring down a rabbit hole.

The first source I went to, of course, was the treaties themselves. Two problems quickly became apparent: in some cases, the treaty language was very vague and didn’t match up with on-the-ground geography, while in others, the boundaries on the online maps obviously disagreed with what what the text of the treaties said.

Exhibit A: Here are the Sioux boundaries as defined in the 1851 treaty:

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The problem lies in this part: “…to a point known as Red Bute (sic), or where the road leaves the river; thence along the range of mountains known as the Black Hills…” Red Butte is just west of modern Casper, Wyoming. The Black Hills—at least as we know them today—are at closest 150 miles to the northeast.

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Red Butte and the Black Hills are separated by 150 miles of nondescript plains. Screenshot from ArcGIS Online.

So how does one get from Red Butte to the Black Hills? The boundary on the online maps does not head northeast from Red Butte at all, but rather continues west along the North Platte River, seemingly in violation of this treaty language (otherwise, why would Red Butte be marked as a waypoint on the boundary line at all?).

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Exhibit B: Article 11 of the 1868 Treaty states that the Sioux “reserve the right to hunt on any lands north of North Platte, and on the Republican Fork of the Smoky Hill River [now just called the Republican River]” as long as there are buffalo to hunt. But the two rivers are widely separated by a seeming no-mans-land, and what exactly does “on” the Republican River mean, anyway? Again, the maps have an answer, but it’s not a very satisfying one:

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(Note that the above map mislabels the southern hunting grounds “unceded Indian territory;” the treaty does not use that term for this area, nor have the courts that interpreted it).

Exhibit C: Article 16 of the 1868 Treaty vaguely defines the “unceded Indian territory” of the Powder River Country as “the country north of the North Platte River and east of the summits of the Big Horn Mountains.” This was well and good for the time the treaty was signed, when everyone knew that the problem was the Bozeman Trail and the string of forts the U.S. had erected to protect it. As a cartographer, I’m fascinated by the problem of symbolizing vague and poorly defined boundaries; there are plenty of ways to show land claims without drawing a hard line around them. But that is exactly not what the online treaty maps do. There are very definite lines drawn around this area; some segments obviously follow rivers, while in other spots the underlying geography is not obvious, but the border clearly follows something. Then there’s that big finger-shaped hole in the territory that juts down from the north like a peninsula; what’s that about?

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So I had to figure out where these boundaries were coming from. That took me to the book Black Hills, White Justice by Edward Lazarus, which appears to be the original source of the online maps. Lazarus is the son of one of the attorneys who prosecuted a pair of Sioux cases against the U.S. to gain compensation for usurped treaty lands, including the sacred Black Hills. The Black Hills case went all the way to the U.S. Supreme Court, which sided with the Sioux in 1980 and awarded them over $100 million for the unilateral “taking” of the Hills by Congress in 1877 (an episode of which a lower court famously declared, “A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history”). The other case called for remuneration for land rights ostensibly relinquished under the 1868 treaty, and eventually won the Sioux an additional $40 million.

By the time the Sioux won these cases, they had been in court for almost six decades. The intervening years saw a revolution in Native American attitudes toward their own sovereignty. Fearing that monetary compensation would absolve the U.S. government of any responsibility to give back the land they had stolen, the Sioux have refused to touch the money. Today it sits collecting interest in a BIA-administered trust now worth well over $1 billion.

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Map of 1851 Sioux territory in Black Hills, White Justice by Edward Lazarus

Lazarus’s book is a splendid bit of storytelling, and vividly recounts the whole convoluted history of U.S.-Sioux legal relations, from the fights that led to the 1851 treaty, to the theft of the Black Hills, to the high court’s ruling on the Hills and the Sioux response. But Lazarus is a lawyer, not a cartographer, and his primary focus is on the shifting jurisprudence around Indian legal rights and treaty claims, not on the geographic boundaries of those claims. Nonetheless, his book at least pointed me in the right direction: toward the Indian Claims Commission, a special court created by Congress in the New Deal era to adjudicate outstanding Indian treaty claims.

In the act that created the ICC, Congress gave the Commission the power not only to interpret Indian treaties, but to literally redraw disputed treaty boundaries and then make decisions as if they were the original boundaries. And, it turns out, this is just what the ICC did in regards to the 1851 and 1868 Sioux treaties.

In 1965, the Commission took up the issue of the 1851 Sioux territory’s western boundary (the part that went from Red Butte “along the range of mountains known as the Black Hills”). In its decision (15 ICC 577), the Commission thoroughly reviewed the background and tenor of the negotiations that led the treaty, including the boundary lines drawn on the (highly inaccurate) maps made at the time, and concluded “that the proper location of the Sioux western boundary… follows the drainage divide between the rivers flowing east into the Missouri and those flowing north into the Missouri.” This seemingly logical conclusion produced this territory:

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1851 Sioux Territory as determined by the Indian Claims Commission in 1965. Map by the author.

But it didn’t make the lawyers for the Sioux happy. The problem, they pointed out, is that the new boundary left a large “neutral zone” between the Sioux and their western neighbors and bitter rivals, the Crow. The eastern Crow boundary specified in the treaty follows the Powder River rather than the “Black Hills” used by the Sioux boundary. The attorneys argued that the land in between rightfully belonged to the Sioux under the terms of the treaty—and should be compensated for. In 1969 (21 ICC 371), the Commission agreed, nullifying its previous boundary and redrawing the 1851 territory thus:

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1851 Sioux Territory as determined by the Indian Claims Commission in 1969. Map by the author.

To determine the exact line of the western boundary, the ICC relied on a set of maps of Indian land cessions drawn by Charles C. Royce for an 1896 report to the Smithsonian Institution. The 1851 Sioux boundary eventually settled on by the Commission follows the line between area 517—land ceded by the Crow in a separate treaty—and area 597, or what Royce identified as Sioux territory supposedly ceded by the illegitimate 1876 “agreement” cited by Congress to annex the Black Hills.

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Indian land cessions map by Charles C. Royce, 1896

Royce produced maps like this for every state (more than one for some states), and luckily they have all been scanned at high resolution and are now hosted online by the Library of Congress. They were the last piece of my puzzle. They are based on the Public Lands Survey and highly accurate for the time. With a little bit of georeferencing work in GIS software, they gave me something to trace where no rivers, graticule lines, or modern political boundaries otherwise demarcated the ICC’s treaty boundary line.

The geography of the 1868 treaty is a bit more complex than the 1851 territory, and remains contested. The latter treaty is especially important to modern Sioux sovereignty because it is regarded as the last legitimate treaty between the U.S. and the Sioux. The sell-or-starve “agreement” giving up the Black Hills in 1876 was signed by just a handful of war-broken chiefs, violating a key provision of the 1868 treaty stipulating that it could only be superseded by signature of 3/4 of the adult male Sioux population. This “rank case of dishonorable dealings” was cited by the Supreme Court as a key factor in its 1980 decision.

To review, the 1868 treaty declared three types of Sioux lands: the Great Sioux Reservation, on which the Sioux could permanently settle (not that they wanted to); hunting grounds available for Sioux use as long as they contained free-ranging buffalo (which were decimated within a few years of the treaty’s signing); and unceded Indian territory, where the unconquered western Sioux could roam and hunt in the lifestyle to which they were accustomed without harassment by U.S. soldiers or fortune-seekers. The treaty language is quite clear on the boundaries of the reservation, which basically covers the western half of what is now South Dakota along with slivers of North Dakota and Nebraska. The other two treaty areas are less clear.

In 1970, the ICC rendered a pair of decisions drawing boundaries around the southern hunting grounds and western unceded territory (24 ICC 98 and 23 ICC 358, respectively). These decisions were clearly somewhat arbitrary, drawing solid lines where perhaps there should not have been based on the post-1868 land cessions on Royce’s maps. Importantly, and against the arguments of the Sioux counsel, the Commission arbitrarily decided that the eastern boundary of the unceded territory—”the country north of the North Platte river and east of the summits of the Big Horn mountains”—aligned with the western boundary of the reservation on the 104th meridian (104º west longitude). This decision excluded the 1851 Sioux territory to the north of the reservation, which then fell under Article 2 of the 1868 treaty, relinquishing all Sioux claims to territory outside of the lands described by the treaty.

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Sioux lands under the 1868 Treaty of Fort Laramie as determined by the Indian Claims Commission in 1970. Map by the author.

But this isn’t the end of the story. In a 1978 decision(42 ICC 214), the Commission again modified its earlier findings, declaring that, based on the tenor of treaty negotiations, “the Indians cannot have regarded the 1868 treaty as a treaty of cession.” This would tend to suggest that the 1851 Sioux territory to the north of the reservation should be included in the unceded Indian territory that the Sioux did not believe they were giving up. Thus:

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Sioux lands under the 1868 Treaty of Fort Laramie as suggested by the Indian Claims Commission in 1978. Map by the author.

So the Great Sioux Nation, then, could be constituted by the Great Sioux Reservation and unceded Indian territory to the west and north of the reservation, as designated by the 1868 treaty and interpreted by the ICC, and possibly 1851 territory within the hunting areas to the south of the reservation. Why is this important now? It is the ambiguously designated northern segment of 1851 Sioux territory through which the Dakota Access Pipeline—the Black Snake—passes.

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Between the Heart River and Lake Oahe, the Dakota Access Pipeline passes through 1851 Sioux territory. Map by the author.

In an article published last month by the Indian Country Media Network, a University of New Mexico Ph.D. student, Nick Estes, and a University of Oregon history professor, Jeffrey Ostler, argue based on the 1978 ICC decision that the pipeline passes through territory never legally ceded by the Sioux. Thus, they say, it is especially imperative for the government to respect the tribe’s right to consult on and even veto dangerous infrastructure projects in the area (I would add, particularly given that the original intent of the “unceded Indian territory” was to check the growth of American infrastructure). Their exact claim—that the ICC declared “the northern boundary of the unceded Article 16 lands was the Heart River”—I can’t find support for in the wording of any ICC decision. But I agree with the logic of their argument, and I certainly think a court should definitively nullify the arbitrary and ahistorical 104º eastern limit of the unceded territory.

Would a modern court recognize that the Sioux maintain treaty rights in the 1868 unceded territory, including this northern zone? And if so, what would the nature of those rights be? In the 1990s, the Ojibwe tribes of northern Wisconsin won (back) their treaty rights to hunt and fish off reservation in ceded territory. But the idea that Native American treaty rights could include veto power over infrastructure and industrial development has not, to my knowledge, ever been tested in court. Given that the Standing Rock Sioux Tribe is fast running out of other legal avenues to block the Black Snake, perhaps it’s time to test it.

Note: My maps of Sioux treaty boundaries use state boundary and terrain data from the US Geological Survey and satellite imagery data from Digital Globe via ESRI. All maps in this post authored by me are licensed CC-BY.

 

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A #NoDAPL Map

When I decided to become a cartographer, I didn’t just want to make pretty and useful maps. I became a cartographer to make maps that change the world for the better. Right now, no situation needs this kind of map more than the current drama unfolding around the Dakota Access Oil Pipeline’s crossing of the Missouri River.

Thousands of Native Americans and their allies have gathered on former Sioux land delimited by the 1851 Treaty of Fort Laramie to try and stand in the way of the “black snake” that could poison the Standing Rock Reservation’s water supply. Many have noted that the pipeline corridor was repositioned from its original route north of Bismarck after the U.S. Army Corps of Engineers rejected it citing its threat to drinking water in that mostly-white municipality. Yet the Corps failed its federal mandate for meaningful consultation with the Standing Rock Tribe before signing off on a route that moved the pipeline to their doorstep.

This is not to say that the good citizens of Bismarck and Mandan should be subjected to the risk of an oil spill. What’s wrong with the picture above isn’t the routing of the pipeline. What’s wrong is that the pipeline project exists to begin with. Some say it’s a good alternative to dangerous oil-by-rail shipments of Bakken crude. Those are bad too. We don’t need more fossil fuels making it to market to be burned and burn the planet up in turn (I am typing this in Wisconsin as the temperature nears 70 on the first of November). We do all need clean water. As the Sioux say, mni wiconi–water is life.

To keep to its construction schedule, the pipeline company, Energy Transfer Partners, has met nonviolent water protectors with private security guards using attack dogs in a scene reminiscent of 1963 Birmingham. It has worked hand-in-glove with law enforcement and the National Guard to create a militarized response straight out of apartheid South Africa or occupied Ireland. It has locked up hundreds of protesters in wire cages like those used early on at Guantanamo Bay. Those on the ground fear something like another Kent State, yet they keep coming, and the worldwide solidarity has gone viral.

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Water protectors approach a line of riot police and armored vehicles on October 15. Photo by the author.

Yet for all that, when I went out to camp with the water protectors at Oceti Sakowin on October 13, I had to rely on a friend’s hand-drawn sketch posted to Facebook for directions to the camp. If you Google “NoDAPL map,” you’ll find few maps available to provide visual context for the unfolding drama. The most popular seems to be the company’s own very-small-scale route map, showing a dotted line over highlighted counties on a generic road map backdrop.

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Dakota Access Pipeline Route Map by Energy Transfer Partners

This kind of view erases the people affected by the pipeline–quite literally, by covering over their communities with a hot pink gradient fill. It doesn’t tell you that all of Turtle Island (North America) is Indian Country, or that the project runs headlong into international treaties signed between the U.S. and various tribes and then unilaterally violated by Congress. It doesn’t show you where the frontline communities have set up camp to fight back (and here I realize that I should also make a map of the Bold Iowa resistance camp), or where the pipeline company, spurred on by the internal pressure of their $3.8 billion investment, has bulldozed sacred ground, or where exactly a pipeline break would endanger the drinking water of millions downstream.

There was one other, better map of the project that I found and was partially inspired by–a relatively simple yet powerful map by Jordan Engle published by The Decolonial Atlas. It uses the indigenous placenames for key waterways and sites in the vicinity of the Sacred Stones Camp (translations are on the blog post linked to above). It is oriented to the south, challenging the typical viewpoint of Western maps. This map has truly not gotten the attention it deserves.

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Dakota Access Pipeline Indigenous Protest Map by Jordan Engle and Dakota Wind, The Decolonial Atlas.

Maps like this are great, and there should be more of them. However, I felt strongly that there still needed to be a map of the area that would look familiar to most viewers and orient them to the important geographic facts of the struggle. I don’t claim that none of those facts are currently in dispute, but I recognize that all maps (even road maps overlaid with pink polygons) take a position and create knowledge based on the cartographer’s point of view. Maps have great power, and it’s a power anyone with pen and paper or a computer can wield.

My Wisconsin-bred geographer hero Zoltan Grossman once declared, “The side with the best maps wins.” The pipeline company has an army backed by state power to do its bidding. The water has its scrappy protectors. It’s time we put the latter on the map.

To download a large-scale printable version of the map, click here.

This post and the map have been corrected to indicate that the 1851 Treaty territory is former Sioux territory, not unceded land as originally stated. In fact, this land was ceded by the Sioux to the U.S. under the terms of Article 2 of the 1868 Treaty of Fort Laramie. While the latter treaty was signed by a plurality of Sioux chiefs, some chiefs did not sign because they refused to agree to any land cessions, and at least one of those who did sign (Red Cloud) later claimed he was misled regarding these treaty terms and believed he was merely signing a treaty of peace. See Edward Lazarus’s excellent book Black Hills, White Justice for more of this history.

The post has also been updated to remove reference to citizen protests against the original route in Bismarck, which I have not found a first-hand record of.