Resistance Mapping

This is the text of a talk I gave at the Critical GIS Workshop at McGill University held in concert with NACIS on October 13, 2017. I will likely try to publish it in modified form, but didn’t want to hold off giving it a little exposure in the mean time or in case it never gets into print. I would appreciate any constructive feedback via the comments section. -C

Since the early 1990s, critical GIS has engaged with efforts to support oppressed and Indigenous communities through map-based empowerment—what Denis Wood (2003: 7) might call “offer[ing] professional assistance, on bended knee if necessary, to all the people trying to ameliorate their situation by mapping it.” This combined ethic and process has gone by many names indicating variants on the general theme: participatory mapping (Chambers, 2006; Corbett, 2009), public participation GIS (Elwood, 2002; Sieber, 2006), critical cartography (Crampton, 2010), feminist GIS (Elwood, 2002; Seiber, 2006), Indigenous mapping (Poole, 1995; Chapin, Lamb, and Threlkeld, 2005), and counter-mapping (Peluso, 1995). While all of these variants stimulate productive relationships between researchers and underserved communities, there seems to be a growing need for a new, more confrontational version of critical GIS praxis.

There has been a recent upsurge in place-based Indigenous resistance movements in the U.S. and Canada, exemplified by the Idle No More movement and more recent water protector struggles against oil pipelines, such as Dakota Access last year. These efforts contain a cry for radically-minded GIS practitioners and cartographers to assist. I suggest that resistance mapping can offer a more useful framework for such praxis than other existing terms. The concept of resistance mapping builds on ethical principles established to ensure productive cooperation between Indigenous and non-Indigenous partners, while challenging extractive capitalist and police state power structures more directly than other critical GIS practices.

Let’s briefly travel back to this time last year, to the water protector camps near Standing Rock, North Dakota. The Dakota Access Oil Pipeline was planned to carry 470,000 barrels per day of fracked crude oil from the Bakken fields of western North Dakota to southern Illinois. Its route passed within ½-mile (0.8 km) of the Standing Rock Reservation and within ten miles of the Tribe’s water intake pipes (USACE, 2016). Having exhausted the state and Federal environmental review process with inadequate tribal consultation, Standing Rock tribal members decided to engage in direct actions challenging the pipeline (Meyer, 2016). Their resistance took the form of both legal protest and prayer, and direct actions deemed illegal by the state, such as blockades and lockdowns to construction equipment (Carlin, 2016) They were met with private security attack dogs, the intentional bulldozing of sacred archaeological sites, and massive police state repression with footage reminiscent of the civil rights-era Deep South.

By August, the water protectors’ struggle had become an international cause célèbre, with thousands of people from around the world—mostly Indigenous, some non-Indigenous—descending on the Sacred Stone and Oceti Sakowin camps to assist. But despite the international outpouring of attention and news headlines, initially there were few publicly available maps to locate the site of the struggle, much less the pipeline route or the locations of critical events (Sack, 2016).

In response to this absence, I created a map entitled “The Black Snake in Sioux Country,” which located the site of the protest camps and the pipeline route. It also showed an alternative route initially proposed by Energy Transfer Partners, the pipeline company, but rejected by regulators for reasons that included protection of the Bismarck-Mandan water supply (USACE, 2016). The map included a red outline over the area where the pipeline company had skipped its construction forward 20 miles in order to bulldoze archaeological sites. And it depicted both the border of the Standing Rock Reservation and historic Sioux territory under the 1851 Treaty of Fort Laramie through which the pipeline passed, something I only learned of when I spoke with Tribal Historic Preservation Office staff at Standing Rock.

After I published my map on my blog and social media, thanks to a bit of good timing, it quickly went viral. Many people who commented on the blog post interpreted the visual contrast between the rejected route and the chosen route as evidence of environmental racism in regulatory decision-making. Others reacted strongly to the inclusion of the 1851 Sioux territory, of which legal U.S. ownership remains contested by many Sioux people (Ostler and Estes, 2017). Clearly, maps have power; resistance maps have the power to alter public perceptions in support of Indigenous-led environmental and treaty rights struggles. Resistance maps aim to tell the story of such struggles from an alternative point of view not beholden to dominant capital or state interests.

Yet, it would be inaccurate to call this form of critical cartography Indigenous mapping. Although I traveled to Standing Rock, stayed at Oceti Sakowin camp, participated in a protest march, and met productively with Tribal staff, I was only present in the area for four days, much of which I spent holed up in the casino keeping up with my teaching load online. The entire process was far too rapid and discounted to stand as a model of Indigenous cartographic participation. The final map was heavily influenced by what I learned at Standing Rock, but was ultimately my creation and distributed widely under a Creative Commons license to the public, rather than the tribe or a representative group maintaining ownership over it. Nor can I accurately call this counter-mapping, as it was not led by the Indigenous frontline community, nor a direct attempt to reclaim resources or sovereignty (Peluso, 1995). This map, and others made in direct response to resource colonialism and/or structural violence, are acts of resistance against capitalist and state forces that threaten the lives and livelihoods of frontline communities.

Of course, it is still vital to first understand the needs and wishes of frontline communities regarding their struggles’ spatial representation. Mapping in the heat of a tense and quickly evolving situation like Standing Rock does not excuse the need for free, prior, and informed consent. Quite the contrary. Free, prior, and informed consent in resistance mapping requires the cartographer to dialogue directly with authorized representatives of the communities leading the struggle, and to respect their authority over what should and should not be mapped (Corbett, 2009). Special care must be taken to avoid exposing sensitive local knowledge. Standing Rock provides an unfortunate example of what’s at stake here, as an archaeological survey map that the Standing Rock Tribal Historic Preservation Office provided to the court at the judge’s request was used by Energy Transfer Partners to locate where to preemptively bulldoze before a stop work injunction could be issued.

Tense situations like the Standing Rock struggle demand all due haste in getting a map out there, but remote sensing and remote communication cannot be ethically used as shortcuts to producing a resistance map. Face-to-face conversation is vital for trust-building, and rural areas such as most Indian reservations often have poor phone and internet reliability. Both Indigenous culture and the struggles themselves are typically centered in place, so ‘getting the lay of the land’ in person is important to accurately represent locations, events, and the viewpoints surrounding them. For a cartographer, the rush of adrenaline that accompanies a direct confrontation with the police state poses a danger of overlooking the personal, the community, and the grounded; but these elements in fact are vital components that lend strength to any resistance struggle, and they must be reflected in the final map.

Gift giving is also an historic and culturally recognized practice that demonstrates a desire to satisfy the needs of others (Kuokkanen, 2006). A recognition of gift culture, without stereotyping or trivializing it, goes a long way toward making friends and building trust, especially when the gifts you give are useful to the struggle you’re trying to support. In my case, these gifts included a donation of time and expertise on an easy GIS project that the Standing Rock THPO staff simply needed someone to sit down and do. I also gave the Tribal staff large mosaics of USGS topo maps covering the vicinity that I had printed back at the lab in advance. In turn, THPO staff were willing to share some GIS data and spend some time cluing me in on important spatial components of the struggle, such as the 1851 and 1868 treaty territories. Critically, we discussed and came to agreement on would and would not be represented on the map. These interactions took less than a day, but proved vital to the efficacy of the final product. Back at home, I ran a rough draft of the map by THPO staff over email, and got the OK from them before posting it publicly.

A final component of resistance mapping that shouldn’t be overlooked is how the final product is distributed. As critical cartographers, it’s nice to spend time debating how computers and the internet are changing map use and our perception of the planet, and whether they can adequately represent traditional Indigenous ontologies and epistemologies. But one key fact is that the internet and social media provide a huge amount of power to amplify one’s visual message, if you have the technical knowledge and bandwidth to exploit them. After returning from Standing Rock, my goal was to get my map out there to as many people as possible as quickly as possible. Blog and social media platforms were key to this. But while you can post anything you want on a WordPress blog, getting people to actually read it is a matter of paying attention to some established best practices. These include adding SEO metadata, Tweeting and posting it to Facebook several times, and coordinating your release with widely publicized events to boost your signal.

In my case, I had the good fortune of being almost done with my Black Snake map when the largest online protest in history broke. On October 31, 2016, a million people “checked in” at Standing Rock on Facebook, after a rumor was put out that local law enforcement were using Facebook’s location-based services to track who was at the water protector camps. (As an aside, this was a fascinating moment for geographers, and I’m honestly surprised that I haven’t seen any papers published about it yet). Now, you don’t have to know much about social media algorithms to know that when you post something on Facebook, it tells Facebook’s algorithm that you’re interested in that thing, and Facebook thus shows you more things like the thing you posted. So this check-in phenomenon was a precious moment when the AI-driven virtual gaze of a million Facebook users was affixed to DAPL. I was able to rush my map to completion and post it a day later. The magic sauce worked; my blog post got picked up right away by The Huffington Post, a source widely read by the quasi-Left whose profit model operates less like a traditional newsmedia outlet and more like a megaphone for unpaid content producers. So, in my case, a mix of a hot topic, good timing, and a cursory understanding of how to milk the online medium synthesized into a viral resistance map.

To sum up, there is nothing new about critical GIS praxis aimed at empowering underserved and Indigenous communities. However, the set of procedures I’ve described here is significantly unlike most Indigenous mapping or counter-mapping processes. It characterizes an expedited approach that can be used in response to fast-moving, Indigenous-led resistance struggles. Such struggles are growing increasingly common and increasingly confrontational across North America, particularly around new petroleum infrastructure designed to serve climate-threatening tar sands and fracking operations. The Dakota Access struggle was ultimately lost due to winter weather and the change of Federal administration—sometimes the side with the best maps doesn’t win, but it never hurts to try. But the DAPL fight has spurred on many other Indigenous-led struggles against other pipeline projects in at least a dozen states and multiple Canadian provinces (Water Is Life Movement, 2017). Resistance mapping can give a powerful boost to Indigenous-led struggles through linking critical GIS scholar-practitioners to frontline communities who would benefit from telling their story with a map.

References

Carlin, Charles. 2016. “The Ethics of Ceremony at Standing Rock. Edge Effects (blog). October 6. Accessed August 31, 2017. Online: http://edgeeffects.net/ceremony-at-standing-rock/

Chambers, Robert. 2006. “Participatory Mapping and Geographic Information Systems: Whose Map? Who Is Empowered and Who Disempowered? Who Gains and Who Loses?” Electronic Journal of Information Systems in Developing Countries 25(2): 1-11.

Chapin, Mac, Zachary Lamb, and Bill Threlkeld. 2005. “Mapping Indigenous Lands.” Annual Review of Anthropology 34: 619-638.

Corbett, Jon. 2009. Good practices in participatory mapping: A review prepared for the International Fund for Agricultural Development (IFAD). Rome: International Fund for Agricultural Development.

Crampton, Jeremy. 2010. Mapping: A Critical Introduction to Cartography and GIS. Hoboken, NJ: Wiley-Blackwell.

Elwood, Sarah A. 2002. “GIS use in community planning: a multidimensional analysis of empowerment.” Environment and Planning A 34: 905-922.

Kuokkanen, Rauna. 2006. “The Logic of the Gift: Reclaiming Indigenous Peoples’ Philosophies.” Botz-Bornstein (ed.). Re-Ethnicizing the Mind? Cultural Revival in Contemporary Thought. Amsterdam & New York: Rodopi. 251-271.

Meyer, Robinson. 2016. “The Legal Case for Blocking the Dakota Access Pipeline.” The Atlantic. September 9. Accessed August 31, 2017. Online: https://www.theatlantic.com/technology/archive/2016/09/dapl-dakota-sitting-rock-sioux/499178/

Ostler, Jeffrey and Nick Estes. 2017. “‘The Supreme Law of the Land’: Standing Rock and the Dakota Access Pipeline.” Indian Country Today. January 16. Accessed August 31, 2017. Online: https://indiancountrymedianetwork.com/news/opinions/supreme-law-land-standing-rock-dakota-access-pipeline/

Peluso, Nancy Lee. 1995. “Whose woods are these? Counter-mapping forest territories in Kalimantan, Indonesia.” Antipode 27(4): 383-406.

Poole, Peter. 1995. Indigenous peoples, mapping, and biodiversity conservation: An analysis of current activities and opportunities for applying geomatics technologies. Landover, MD: Biodiversity Support Program.

Sack, Carl. 2016. “A #NoDAPL Map.” Northlandia (blog). November 1. Accessed August 31, 2017. Online: https://northlandia.wordpress.com/2016/11/01/a-nodapl-map/

Sieber, Renee. 2006. “Public Participation Geographic Information Systems: A Literature Review and Framework.” Annals of the Association of American Geographers 96(3): 491-507.

U.S. Army Corps of Engineers—Omaha District (USACE). 2016. Environmental Assessment: Dakota Access Pipeline Project Crossings of Flowage Easements and Federal Lands. Omaha, NE: U.S. Army Corps of Engineers—Omaha District. July. Online: http://www.nwo.usace.army.mil/Missions/Civil-Works/Planning/Project-Reports/Article/633496/dakota-access-pipeline-environmental-assessment/

Water Is Life Movement. 2017. “Meet the Camps.” Accessed August 31, 2017. Online: https://www.waterislifemovement.com/meet-the-camps/

Wood, Denis. 2003. “Cartography is Dead (Thank God!).” Cartographic Perspectives 45: 4-7.

Advertisements

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.

1851-treaty-map-optimized
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.”

1868-treaty-map-optimized
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:

1851-sioux-territory

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.

RedButte-BlackHills_map.png
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?).

1851-treaty-map-red-butte

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:

1868-Treaty-map-republican-river.png

(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?

1868-treaty-map-west

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.

bookscancenter_1
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:

1851_territory_1965_w_labels
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:

1851_territory_1969_with_labels
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.

royce_wyoming1
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.

1868_Territory_1970_with_labels.png
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:

1868_territory_1978_with_labels
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.

dapl_routes_map_web
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.