Dehumanizing Actions by North Dakota Police Violate 1851 Treaty of Fort Laramie

Steven Newcomb

The Water Protection Camps at Standing Rock in opposition to the Dakota Access Pipeline project are within the treaty-recognized territory of the Oceti Sakowin (the Seven Council Fires of the Great Sioux Nation). The Standing Rock Sioux Tribe, being a part of the larger Oceti Sakowin Nation, has the perfect right to host the water protectors at those camps. The Dakota Access Pipeline project moving through Oceti Sakowin territory without Oceti Sakowin consent is in violation of the 1851 treaty of Fort Laramie. Therefore, the North Dakota police and U.S. National Guard actions in favor of the pipeline are in direct violation of the territory of the Oceti Sakowin recognized in the 1851 Treaty of Fort Laramie.

It is shocking to see the video clips of militarized police of North Dakota using batons, mace, rubber bullets, and sound-cannon devices against unarmed peaceful water protectors at Standing Rock. There are reports of strip-searches and humiliation. It’s all domination and dehumanization in action. What’s going on at Standing Rock is also a clear illustration of a ratified Indian Nation treaty, the 1851 Treaty of Fort Laramie, being once again violated and ignored by the United States.

The 1851 Treaty of Fort Laramie is being disregarded by the United States in favor of powerful special interests in the banking and oil industries. Standing Rock is a 21st century example of the methodology and techniques of oppression that were set forth in the papal bulls of the fifteenth century. Here are a few of the steps: “invade, capture, vanquish, and subdue” the Original Nations of the continent, such as the Oceti Sakowin. Reduce the “barbarous nations” under the dominium of the “Christian empire,” or what is now the “American Empire.”

So what is the correct understanding of the 1851 Ft. Laramie treaty that the United States has made with the Oceti Sakowin (“Seven Council Fires of the Great Sioux Nation”)? Important information about treaties was provided by John Jay who was the first Chief Justice of the U.S. Supreme Court. He authored Federalist paper 64, which he published under the pen name Publius in 1788. The Federalist Papers were written in an effort to make a persuasive case for ratifying the proposed Constitution that had been drafted in Philadelphia in 1787. Jay had something to say about treaties in Federalist paper 64.

Jay responded to the argument that treaties should not be regarded as the supreme law of the land within the proposed constitutional framework. While discussing treaties, Jay said “it would be impossible to find a nation who would make any bargain with us [the United States], which should be binding on them absolutely, but on us only so long and so far as we [the United States] may think proper to be bound by it” (emphasis added) That accurately describes the U.S. attitude toward U.S. treaties with Native nations such as the Oceti Sakowin. What Jay considered to be impossible with regard to treaties is exactly how the United States has treated the Treaty of Fort Laramie of 1851. The United States has treated the 1851 Ft. Laramie treaty as in no way binding on the United States.

Jay went on to talk about lawmakers (e.g., the U.S. Congress): “They who make laws may, without doubt amend or repeal them.” In addition, Jay said “it will not be disputed that they who make treaties may alter or cancel them.” Jay admonished people to not forget, however, “that treaties are made, not by only one of the contracting parties, but by both.” (emphasis added) The consent of both parties to a treaty is essential to its formation, said Jay. Accordingly, the consent of both parties is ever afterwards necessary “to alter or cancel” a treaty.

In other words, the Oceti Sakowin (or “Great Sioux Nation”) must first give its consent before the 1851 Fort Laramie Treaty may be altered or canceled. The United States, in other words, has no right to unilaterally alter or cancel the 1851 Fort Laramie treaty by congressional legislation. Nor may the United States validly impose on the Oceti Sakowin Nation a U.S.-centric interpretation of the treaty.

Jay said that the proposed Constitution “therefore, has not in the least extended the obligation of treaties.” Treaties “are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government” (emphasis added). Since the 1851 Fort Laramie Treaty is “beyond the reach of legislative acts” by Congress, how then was it possible for the United States to validly use a legislative act of Congress in 1958 to supposedly give the Army Corp of Engineers the right to “take” Oceti Sakowin land without the permission of the Oceti Sakowin?

 According to John Jay it was not possible for Congress to validly give the Army Corps of Engineers permission by a legislative act to “take” any of the territory of the Oceti Sakowin without the consent of the Oceti Sakowin. The 1958 act was bogus according to the rules of treaty making John Jay so clearly expressed.

The United States Dakota Territorial Act says explicitly that Indian territory which has not been ceded to the United States by treaty is not be considered part of what the United States declared to be the U.S. territory of Dakota. The territory of the Oceti Sakowin is not “federal” land. It is not “state” land. It remains the distinct and separate country of the Oceti Sakowin Nation. This is the reasoning that follows from John Jay’s explanation of the proposed United States Constitution. To this day the Oceti Sakowin has never given its permission, in a ratified treaty with the United States, to allow its Oceti Sakowin territory to be considered part of the U.S. territory of Dakota or part of the states of North or South Dakota.

The above reasoning has been hidden from view because of the 1823 Johnson v. M’Intosh ruling and the Doctrine of Christian Discovery and Domination which has been the prevailing and invalid paradigm in U.S. federal Indian law and policy. The illegal acts of the United States which have not resulted in legal outcomes in relation to the Oceti Sakowin (“Great Sioux Nation”) are further documented in an article by Peter Cozzens, just published in the Smithsonian magazine (November 2016): “Ulysses S. Grant Launches an Illegal War Against the Plains Indians, Then Lied About It.” Illegal War

What everyone has been taught is the geographical extent and political boundaries of North and South Dakota is false. The boundaries of those two states do not include any of the territory of the Oceti Sakowin that has not been ceded, relinquished, or surrendered to the United States by a ratified treaty with the United States. It is the separate country of Lakotiah or Dakotiah.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He is a producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree). The movie can be ordered from 38Plus2Productions.com

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Great knowledge. That is why I always read your articles thoroughly at ICT. Sovereignty is justice. We share your concern that tribes do not realize their full sovereignty. We have successfully used our treaty to prevent the licensing of Yucca Mountain for nuclear waste storage because the treaty rights reserved and rights defined is a significant encumbrance. We issues 50000+ permits to protesters to end US/UK full scale testing of weapons of mass destruction (WMD) with only about 16 individuals going being arrested by the Nye County Sheriff’s Office and going to court. The Dakota Organic Act, the federal statute that created Dakota Territory in 1861 is the exact language as in Nevada Territory. This is our ownership contention at the Nuclear Regulatory Commission, the US doesn’t own Yucca Mountain. The Nevada Supreme Court ruled in State v. MKenny that it has “no jurisdiction” over a Western Shoshone that committed murder and the authorities of the tribe alone have cognizance of the crime. The tribe is the venue of proper jurisdiction of crimes in the Dakotas. Finally, the first act of the Nevada Territory was the adoption of the common law England or case law precedent in 1861. However, it is not appropriate to apply foreign law that is rooted in religious discrimination to Western Shoshone people peacefully living in our treaty defined land.