0:00:00.0 Speaker 1: We'll hear arguments next in the United States against the Sioux Nation of Indians.

0:00:06.3 Andrew Parsons: Hey, everyone. This is not Leon. It's Andrew Parsons from Prologue Projects. I'm filling in for Leon while he's on paternity leave. This week, the hosts are talking about United States v. Sioux Nation, with host of the Red Nation podcast, Nick Estes. On paper, the case looks like a win for Indigenous folks. In 1980, the Sioux are granted a cash settlement for land they have the treaty rights to. But to date, the tribes have refused to claim the funds. Many folks argue that they don't want money. They want the land back. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:47.9 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are breaking our civil rights like mercury breaking through our thermometers. I'm Peter. I am here with Rhiannon.

0:00:58.2 Rhiannon: Hello.

0:01:00.2 Peter: And our friend, Nick Estes.

0:01:00.8 Nick Estes: How's it going?

0:01:01.9 Rhiannon: We're thrilled to have on the podcast today Nick Estes with us. Nick is a member of the Lower Brule Sioux Tribe and an assistant professor of American Indian Studies at the University of Minnesota. He's a journalist, a Lakota historian, and the host of the Red Nation podcast. He's also an author of Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance. We are here today to talk about how shitty the Supreme Court is on federal Indian law. And so thrilled to have Nick with us. Nick, thanks for being here.

0:01:38.8 Nick Estes: Yeah, thanks for having me.

0:01:40.1 Peter: We've kicked Michael off the podcast for the week.

[laughter]

0:01:43.3 Peter: He's last I checked doing hard drugs in Las Vegas.

0:01:46.2 Rhiannon: Probably.

0:01:47.5 Peter: Yeah. Today's case, United States v. Sioux Nation. This is a case from 1980 about the compensation of the Sioux Nation of Indians for the seizure by the Federal Government of the Great Sioux Reservation over a century prior. But this case is a little more complicated. Despite the legal win, the Sioux people have to date rejected the compensation because they are concerned that accepting it would functionally terminate any claim they had to their actual land.

0:02:21.4 Peter: So this is a unique case for us, I think, as it's less about the correctness or incorrectness of the court's opinion than it is about the inadequacy of the existing law and the unwillingness of the Federal Government to comprehensively address the imperial colonization of tribal lands. So we're sort of just using this case as a jumping-off point for a discussion about tribal rights in the United States, past and present, and where the tribes generally and the Sioux specifically sit within our legal system and our society more broadly. So Rhi is going to talk a little bit of history and then I'll talk a little bit of legal background and then we'll get into the meat of it.

0:03:07.7 Nick Estes: Yeah, I think it's worth clarifying. Some of these terms like Sioux Nation is a made-up thing. It's a kind of a legal fiction in some ways, while also being something that defines our relationship to the United States government. Because if you take the Sioux in a broader sense, it actually includes people who are out here in Minneapolis or as far east as Minnesota, because this is Dakota country. This is actually where the word Sioux came from, right? It comes from Nadowessioux, which means like little snake or little enemy. That's a French bastardization of an Ojibwe word for us. And so that in itself is kind of a misnomer. But it just shows like even when Rhiannon was doing the introduction for me, I'm from the Lower Brule Sioux Tribe.

0:03:52.6 Rhiannon: Right.

0:03:53.4 Nick Estes: Lower is an English word. Brule is a bastardization of brûlée, meaning burnt, which is actually kind of a derivation of Sicangu, which is actually the name of our tribe. Sioux, which is a French bastardization of an Anishinaabe word, and then tribe, right? Which denotes the kind of contemporary relationship we have with the Federal Government.

0:04:15.5 Peter: Right.

0:04:16.0 Rhiannon: So jumping into this history, I think we really need to situate ourselves kind of in the framing that this is a history of violent dispossession of native lands by the US Federal Government. This was often effectuated through explicit genocidal policies. So I think we just need to keep that in mind as we work our way through this history, that genocide, violent dispossession and displacement of indigenous people was necessary for US colonial expansion.

0:04:49.9 Peter: Right.

0:04:50.3 Rhiannon: So throughout the 1800s, the US government would enter into treaties with tribes. These treaties would outline the terms of the agreement between the US government and Indian tribes about land, water rights, the political relationship between tribes and the US government, et cetera. But just as soon as treaties were agreed to and signed, the US government, state actors, and white settlers would basically immediately be disregarding the treaties. Right. This happened with Sioux Nation as well. In 1868, the Treaty of Fort Laramie was signed, which reserved the Great Sioux Reservation for "absolute and undisturbed use and occupancy by the Sioux Nation". Pretty clear, unequivocal language.

0:05:32.8 Peter: That's the sort of unequivocal language you can't walk back in the future.

0:05:37.2 Rhiannon: Yeah, you would think. Right. So the reservation, the land itself encompassed the western half of what is South Dakota today, including the Black Hills. The Black Hills is a mountain range in South Dakota and Wyoming. If you don't live around here or you don't know this history, you might be familiar with Mount Rushmore, one of several US national parks that have been established in or around the Black Hills Mountains on stolen Sioux land.

0:06:05.8 Rhiannon: So the treaty reserves all of this land for the Sioux, but the US government immediately, I mean, immediately does a terrible job of enforcing the treaty and keeping white settlers off the land. Just a couple of years later, the US Army does an exploratory expedition into the Black Hills during which the US Army finds gold, confirms that there is gold on this land.

0:06:30.0 Peter: Treaty canceled. Treaty canceled.

0:06:30.4 Rhiannon: No more treaty anymore.

[laughter]

0:06:31.6 Rhiannon: Burn that shit. At that point, the US government is not just not enforcing the treaty, but actively disregarding it in favor of white settlers. Who are flooding the area to extract all of these natural resources?

0:06:47.1 Peter: Basically, as soon as the homing pigeon could arrive in Washington DC from the Black Hills saying that there was a treaty. The president's like, Nope. Send one back saying, look for gold.

0:06:57.8 Rhiannon: Exactly. In the mid-1870s, again, this is just a few years after the treaty was signed, to begin with, President Grant's administration starts trying to strike a deal with Sioux Nation for the US to buy the Black Hills from the tribes. So Sioux Nation refuses all of these offers from the US government, and the government starts to employ sell or starve tactics. Again, this is explicit genocidal policy... There was a military expedition led by General Custer to forcibly remove the Sioux from the land that culminated in what people know as the Battle of Little Bighorn in which Custer got his ass beat, actually.

0:07:39.4 Peter: Smoked.

[laughter]

0:07:40.4 Rhiannon: Yeah. Got wrecked. But after the battle of Little Bighorn, the US government is like, okay, we kinda lost that, but how about we just fucking starve them? So native survivors of the Battle of Little Bighorn were interned on the Great Sioux Reservation. They were cut off from resources by the federal government. Their movement was restricted. They were punished for hunting on traditional lands, their food rations that were provided by the federal government. Those were insufficient in and of themselves because, for example, the federal government was sending tiny amounts of flour, which wasn't enough. But also the Sioux didn't even know how to cook with flour. But then as the Sioux continued to resist the pressure to sell their land, even those appropriations were completely cut off by an act of Congress in the late 1870s. Again, we are 10 years from the signing of a treaty.

0:08:37.5 Rhiannon: So even though the federal government has cut off all appropriations, interned them on this land has pressured them constantly with military force to sell the land and to leave. They won't budge. And so what does Congress do? Congress passes a law that takes large portions of the Great Sioux Reservation, including the Black Hills. The treaty is in the trash to Congress. They just go ahead and pass the law and says, you know what? It's just our land. We don't care if you buy it from us or not.

0:09:06.0 Rhiannon: But that treaty of 1868 required that any change to the reservation lands had to be agreed to by three-fourths of the adult male Indians on the reservation. So in passing this law, the federal government utterly disregarded that. Coerced something like 10% of the adult male Indians on the Great Sioux Reservation into signing. They quit caring about even attempting to get more signatures. And they say like, yeah, that's all we need actually. The Black Hills belongs to us now.

0:09:33.0 Peter: The Federal government to this day, gets a sexual thrill from violating a treaty.

[laughter]

0:09:37.5 Peter: From what I can gather.

0:09:38.8 Rhiannon: They really do. Yeah, the vigor with which they effectuate their Treaty trashing, yeah.

0:09:44.4 Peter: You'd think that if you were gonna violate that aggressively, you wouldn't get any signatures. But they were like, no, it's, it's more fun. It's more exciting to get a few.

0:09:51.5 Rhiannon: Right. Let's make this incredibly insulting. Right?

0:09:54.4 Peter: Right. So let's talk about the legal background of the case. And we can start big picture because it's unclear where the tribes fit into our legal system now, and it was unclear when the country was founded. The Constitution mentions the tribes just a couple of times, and mostly in passing, but seems to treat them as a separate sovereign entity of some type. For example, the Commerce Clause gives Congress the power to regulate commerce with the tribes just as they would other nations. What really, "Clarifies" tribal sovereignty law is the so-called Marshall Trilogy, a set of three Supreme Court cases in the 1820s and 30s. In those cases, the court functionally subjugated the claims that tribes had to land to the claims of the federal government.

0:10:51.5 Peter: And in one of those cases, the court expressly held that the tribes were not independent nations, but instead were "dependent nations" making them necessarily lesser in their rights than the colonizing government. So that's the legacy of the Marshall Trilogy. The history of this case starts in the early 1920s when the Sioux Nation brings a case saying that under the constitution's takings clause in the Fifth Amendment, they need to be fairly compensated for the land that was taken from them. That case bounces around for about 20 years before it is dismissed. Then in the 1940s, the government creates the Indian Claims Commission, which allows the Sioux to pursue this case again. It again bounces around for many years, but eventually the Sioux win, and after much haggling over the amount that they are due, the number lands at just over $100 million. That gets appealed up to the Supreme Court. And here we are, note that this case is in 1980.

0:11:57.9 Peter: So we're talking about a case that essentially started in the early 1920s and gets "resolved 60 years later". And as we will discuss, a lot happens in that 60 years. So let's quickly talk about the opinion itself. It's written by Harry Blackman and it basically goes through much of the relevant history and says that Congress has a duty and an obligation to compensate the Sioux for the full value of the land with interest.

0:12:26.9 Peter: The only dissent is by our old buddy, William Rehnquist, who just cannot pass up on the opportunity to do just a little bit of racism.

0:12:36.3 Rhiannon: That's right.

0:12:37.0 Peter: He has some boring procedural complaints, but then the heart of his dissent is really just him pushing back on some of the majority's characterizations of what happened to the tribes in the 19th century.

0:12:49.1 Rhiannon: Yeah, accusing the majority of agreeing with a false history.

0:12:53.5 Peter: Right. He says, "There were undoubtedly greed, cupidity, and other less than admirable tactics employed by the government during the Black Hills episode in the Settlement of the West, but the Indians did not lack their share of villainy either. It seems to me quite unfair to judge by the light of revisionist historians or the Moors of another era, actions that were taken under pressure of time more than a century ago." This sort of like, well, they were warring amongst themselves too. He's essentially providing a moral defense of the treatment of the Sioux, while the case itself is not really raising a moral question. This is a very transactional case. This is about financial compensation for land. Rehnquist grew up thinking that Manifest Destiny was truly a good and just thing, and only recently in his mind has that narrative been challenged by wayward communist academics or however he perceives it, I'm not entirely sure. But not particularly focused in my mind on the case itself, but on the narrative, on this idea that the Sioux were treated poorly here, or that we did something morally wrong. And maybe Rehnquist is doing a little bit of implicit legal realism here because he's sort of acknowledging almost explicitly that the court has a role in which historical narratives prevail.

0:14:25.1 Rhiannon: Yeah. Yes.

0:14:26.4 Peter: And he's embracing a very specific narrative about what happened in the 1800s between the government and the Sioux.

0:14:36.1 Rhiannon: Yes.

0:14:36.5 Nick Estes: I would agree with the sentiment behind Rehnquist's decision. I don't agree with him at all. He's a horrible racist. But he's pulling back the curtain on Oz. He's saying like, these judges, me, myself, we're not objective. We're products of the social whims and the social movements and whatever's transforming at society. The court doesn't sit above society. Because what was happening in the 1980s, we're coming out of a period of militancy and activism from indigenous communities. The previous administration under Nixon was giving land back to tribes. Because of protests and because of law being and pressure being put on. There was a Senate hearing about whether or not the Wounded Knee Massacre was actually a massacre. So there was a level of consciousness. To me, that suggests that, yes, these courts are not immune to political persuasion and whatever movements are happening at that time period.

0:15:39.6 Rhiannon: Yeah, that's a really good point. We talk about that on this podcast a lot, which is that the Supreme Court is not outside of a political system. They are absolutely a part of it and they are influenced by popular politics of the time period. And we talk a lot on this podcast about sort of dueling narratives, about whose narrative, "Wins." Whose side is victorious because the Supreme Court accepted a narrative from one side over another side? And what you have here in federal Indian law and in this case is these same tensions between control over a narrative, between what tribes identify as their history versus the Supreme Court and Congress talking about US history.

0:16:29.6 Nick Estes: There's kind of a common tendency within US history to sort of frame US history as central. Obviously, it's called US history. But during this time period that you just described where there was a lot of war and fighting and westward expansion, the narrative within the Oceti Sakowin or the Lakota, Dakota, and Nakota-speaking people didn't really think of the United States as central to their own history. But by and large, in the 19th century, the world of the Oceti Sakowin and especially the world of the Tito wa or the Lakota people is largely intact and largely functioning and holding space in what we know as Hesapa, which is a region. It's not just the Black Hills.

0:17:15.0 Nick Estes: Looking at it from the east to the west, the Black Ridge also includes what are known as the Bighorn Mountains. This is what's called the Powder River Country, which is sort of prime area where Teotihuacan, the Buffalo Nation, roams and where the Plains tribes, not just the Lakota Nation, keep their sort of relationship with the land intact. And in fact, what is known as the Black Hills is sacred to or has a central kind of role within the cosmology of more than 50 different indigenous nations. We just happen to be the last sort of, I guess, caretakers of the land. We actually cannot fully imagine or comprehend the devastation of US settler colonialism. Well, the United States brought civilization and order to a place that somehow lacked it. And that, to me, is a fundamental kind of purposeful misunderstanding and erasure. Sure, there's the kind of physical and cultural erasure of people from a landscape, but there's also this kind of intellectual erasure to say that these were not complex systems of governance that held laws, customary laws, etcetera and that these people, although they may have been in conflict with each other, their conflict never resulted in systems, like introducing things such as chattel slavery, free labor force for a capitalist system.

0:18:42.0 Nick Estes: Or committing acts of genocide in a systematic way to the point where it became policy. And even when we think about the law, while, yeah, settler colonialism is about eliminating native people from the landscape, their governance structures, their claims to land, it's also about eliminating a form of relationship to that particular place. What was happening in that latter 19th-century moment, you had the end of reconstruction or the United States trying to get out of reconstruction, right?

0:19:13.3 Nick Estes: And removing federal troops from the south after the Civil War. Well, there's an ensuing kind of economic crisis. And there's an attempt to build a transcontinental railroad system. And so these railroad systems actually create inroads, like, literally and figuratively into this region where people are investing, literally investing money. So the taking of the Black Hills was key in that particular imperialist project for this capitalist machine and these investors to literally return profit. And we were standing in the way of that profit. So I think we have to talk about the law in that context and what it's actually upholding in terms of attempting to strip us our relationship to that particular land base.

0:20:03.0 Rhiannon: Right.

0:20:03.6 Nick Estes: Lastly, I'll just say that the US system is based on relationships about property, right?

0:20:09.1 Rhiannon: Right.

0:20:09.5 Nick Estes: So when somebody owns something that ownership is not about the relationship between that person and that thing. It's actually the exclusion of others to that thing, right? Whereas our system of governance is how do we fundamentally relate to this land with others, including what could be considered like non-human relations. And I know that might sound a little woo wee, woo wee, but there is a sort of grounded materialist practice, right? So if you have a good relationship with the Buffalo Nation who's in the Powder River Country, you are ensuring the survival of your people from generation to generation, right?

0:20:45.6 Rhiannon: Right.

0:20:46.0 Nick Estes: That is not some kind of like avatar plug my braid into a tree.

0:20:51.3 Rhiannon: Right [chuckle]

0:20:51.6 Nick Estes: Novi kind of thing.

0:20:52.8 Peter: Right. It's not purely spiritual.

0:20:54.6 Nick Estes: Yeah.

0:20:54.8 Peter: There's a material component.

0:20:56.8 Rhiannon: Right. And that relationship to property point that you just made is why, for example, there is a takings clause in the Fifth Amendment, right?

0:21:06.1 Nick Estes: Exactly.

0:21:06.5 Rhiannon: Which is exactly the sort of limited legal question here.

0:21:10.1 Nick Estes: Good transition [laughter]

0:21:11.7 Peter: Yeah. This transition into the takings clause. So, Nick, there's a question that I wasn't sure it was worth asking, honestly, because it's sort of like a bad faith reactionary position in my mind, but there's a sort of conservative argument that this is all just how history works, that to the victors go the spoils, and history is riddled with wars and we are all sort of the product of that history and that's what happened to the tribes. That this is no more unjust than what has happened throughout history. And I imagine you've sort of heard that argument in its many iterations, and I'm sort of wondering what your reaction is to it.

0:21:55.3 Nick Estes: Yeah, there's two sort of examples that I like to use, especially when teaching students the first there's a book called The Underdevelopment of Africa, written by Walter Rodney, a preeminent, Pan Africanist historian, and he talks about the same kind of argument. Well, the tribes in Eastern Africa were warring with each other, so what difference did it make that the Europeans introduced a transatlantic slave trade because they were already enslaving each other to begin with? Well, tens of millions of people. There was a mass depopulation, first of all.

0:22:29.0 Nick Estes: That literally collapsed entire civilizations, right? That led to centuries of plunder, not just of labor, but of resources in that region. He's like, of course, there was conflict within these societies. They're human societies. Like there was no utopic past that we can return to. But what happened was those societies, because of the transatlantic slave trade and the plundering of their resources, were literally knocked off their development path. And so we can't even imagine that history has been taken from them. So even if there were kingdoms that did awful things or there were tribes that did awful things, it didn't deserve that kind of mass enslavement and depopulation. The other sort of corollary to that would be like, imagine that the USSR didn't push back the Nazis in Eastern Germany. Would we just kind of consign the Holocaust and the genocide and the eastern expansion of Nazi Germany into that region as just something like oh, it's just natural like the wind. 'Cause that's the tendency and that's the sort of attitude, oh well, these rebellions, the fighting that happens amongst these primitive or tribal people is just as natural as a hurricane. So imagine consigning the immense amount of human suffering caused by Nazi Germany to just something that's like, oh, it's just nobody would do that and nobody should do that. Right?

0:23:51.1 Rhiannon: Right.

0:23:51.7 Peter: Let's talk about this case and the issue of taking or not taking the compensation for the Black Hills, 'cause it seems to me like the sewer put into a tough position where they have to choose between working within a system that's being imposed upon them by taking the compensation and sort of like implicitly accepting that the constitution applies to them, et cetera, or rejecting that system and in turn not getting the compensation. So the money has not been accepted by the Sioux at this point. It's sitting in an account somewhere, presumably accumulating interest. Rumor has it, it's now over a billion dollars. So why, from the position of the sue do you hold out here and not take the money?

0:24:38.7 Nick Estes: There isn't like an official Gallup Poll on this but from my understanding, even approaching the subject of whether or not we're going to accept that money, it just gets shot down, it's so divisive that you can't even have that conversation and it's a non-starter. So I think the only option here is through a legislative or policy approach. This is going to require a form of advocacy that requires grassroots and tribal governments coming together and pushing for a plan. And if there's one thing that has divided us, it is the question of the money. But if there's one thing that has united us, it's the eventual return of the Black Hills.

0:25:16.5 Peter: Right.

0:25:16.7 Nick Estes: The other part of that is consensus. This kind of perceived consensus, or I guess, lack of protest that these lawyers were moving forward with this case on behalf of the entire Sioux Nation.

0:25:28.9 Nick Estes: That became contentious and I do believe, honestly believe that Mario Gonzalez, the overall attorney for this case, believes in Land Back. And I think he believes it to this day, but some of the attorneys were like, "Well, we need to get paid because we've been working on this case for decades." So that created a lot of friction but then also it created this idea that somehow by accepting that money we were accepting the taking of the land itself. And therefore we'd essentially be selling it, even though it's not technically selling it, and that became the slogan of the Black Hills are not for sale. Sadly it's going to have to take an act of Congress or an executive order from the presidential administration to actually implement Land Back because the Supreme Court and the federal court system simply is not a mechanism for enforcing treaty rights.

0:26:19.1 Peter: Right.

0:26:19.9 Nick Estes: As we know from previous history, Supreme Court's decisions such as lone wolf, right? Which basically upholds Congress as the final kind of authority that can extinguish treaty rights, that can alter treaties with native nations. So it leaves us kind of in this imperial bind where it's like we can elect judges, but they seem to be deciding the very kind of nature of our relationship with the federal government. We don't elect congressional people unless they're within our district. We don't even elect Deb Haaland, God bless her, she's just appointed, but yet she has the final say on a lot of things in determining who we are as indigenous people in our relationship to the federal government. And so, what do you call that? It's just fundamentally colonial at the end of the day. So when we say something like The Black Hills are not for sale, it's kind of a rebuke of that entire system.

0:27:10.1 Rhiannon: Right, right. So I think you're touching on a point that is made so clear by this case which is the limitations of the law, of American law, right? In addressing or reaching actual just solutions. So what do you think with respect to the Supreme Court we're a podcast about the Supreme Court, what do you think are the big failures of the Supreme Court with regards to federal Indian law? And do you think you've touched on this already? I think I know your answer. Will the Supreme Court ever be a just arbiter of claims regarding tribal sovereignty?

0:27:44.7 Peter: And maybe we should limit it to biggest failures rather than big failures?

0:27:48.0 Nick Estes: Yeah.

0:27:48.2 Rhiannon: Yeah, there's a long list.

0:27:50.0 Nick Estes: I think the biggest one is just going back to the Marshall Trilogy...

0:27:53.3 Peter: And just as a reminder for listeners, the Marshall Trilogy were those cases from the 1820s and 1830s where the Supreme Court basically held that the tribes were not independent nations and sort of subjugated their claims to land in America to those of the federal government.

0:28:12.8 Nick Estes: Yeah. And there's a lot of disagreement on this, and I'm on one side of it, so. There are people who do federal Indian law who thinks that this is like one of the greatest things and it's the definition of tribal sovereignty and it puts us within this kind of constitutional framework. But I don't believe that because I actually think the reading... If we look at somebody like Justice Gorsuch and he's an originalist and a textualist, yeah, let's actually get into the minds of the founding fathers and those who drafted the Constitution, and let's actually think about what they had in mind for indigenous people. They didn't have a future in mind at all. Yeah, we're in the constitution but if you read people like Alexander Hamilton, who was not a rapper, he was a slave owner, right? [laughter] He was not an immigrant. Come on guys, are you kidding me with this crap? [laughter]

0:29:01.9 Rhiannon: A fellow Hamilton hater, thank God. [laughter]

0:29:06.6 Nick Estes: Yeah. I know. It's so weird to even have to make that point sometimes.

0:29:08.4 Rhiannon: It's so bad. Anyways, yes.

0:29:10.2 Nick Estes: But he was one of the biggest Indian haters there was, and he was like, "We need a strong federal government solely for the purposes of raising a centralized army to fight Spain, to fight Great Britain and to fight the savage Indians on our western frontier." That was his argument for creating the modern military system. And his argument actually proved correct because the Shawnee Confederacy actually wiped out [laughter] the continental army in 1791, right? It was a bigger defeat than Custer, right?

0:29:42.4 Rhiannon: Right, yeah.

0:29:42.9 Nick Estes: Almost to a man wiped out the standing continental army. And so they recognize that threat these founders did. And then the other part of that, that's the trick, and then the treaty is somebody Madison who believed that "Okay, we might have to exterminate some Indians every now and then with the Army, but we have to do it in a legal way, so we have to give them the option," right? "So we have to create a thing called a treaty system," right? "And this treaty system, we're just gonna make treaties so that we can get land concessions, and if they don't give us land concessions, we can go to war with them." That was basically what the founders had in mind when they created the Constitution and the future of indigenous people was seeding land and extermination, right? Those were the fundamental two things and I have yet to see Neil Gorsuch actually be serious about history and read these things and people think he's like this, I don't know...

0:30:31.8 Rhiannon: Protector of federal Indian law and tribal rights, yeah.

0:30:35.2 Nick Estes: Yeah.

0:30:35.6 Peter: I'm so glad to hear you say this because the praise he gets...

0:30:39.4 Nick Estes: Oh, God.

0:30:39.8 Peter: On the left for his tribal rights opinions is extensive but I think you're pointing out a sort of interesting tension in his work, which is that the very expressed projects of the early Republic involved the intentional westward expansion which necessarily involved the genocide of native peoples. And southward expansion, I should say, at that point. And I think you're right that Gorsuch doesn't really reckon with that at all. He has this very almost romantic view of the entire situation.

0:31:12.4 Nick Estes: Yeah, and I don't wanna get too into the weeds on this, but when we get to 1868, that treaty is more robust. Look at the initial treaties, most of 'em are military alliances and one-time payments. It's like, "Here's a hundred bucks get out of our way, stop coming to Washington we're tired of hearing you guys."

0:31:29.5 Rhiannon: Right.

0:31:29.9 Nick Estes: The way that treaty-making kind of evolves in that time period... The founders weren't this kind of forward thinking people. They were just like, "We have to create treaties to resolve the Indian issue, right?" So everything is going back to the Marshall decision and I don't think we're gonna be in a place in decades under the current kind of political climate of this country to ever implement laws that actually repudiate something like the doctrine of discovery. Man, it took the Pope like centuries to do it. [laughter] And even though it's repudiated, it still stands on the books.

0:32:02.1 Peter: Right.

0:32:02.7 Nick Estes: The only way to do that is to renegotiate a relationship with indigenous nations and that's not gonna happen in the Supreme Court. And in fact, the Supreme Court holds us back because we have to spend so much time and energy fighting these frivolous challenges to things such as the Indian Child Removal Act. And so that's why I have no respect for somebody like Gorsuch, or even somebody like Ruth Bader Ginsburg, who had some really racist things to say about indigenous sovereignty. And also, the vast majority of native people don't even live on Indian reservations. We're subject to other jurisdictions. And so this is the fundamental, I think hypocrisy and contradiction within the Supreme Court system is that especially those who are seen as like friends of the Indians, is that it fundamentally narrows our relationship to the federal government based on the thoughts and the words of dead white men that didn't have relevance in the time that they were written and still don't have relevance to date.

0:33:01.4 Rhiannon: Yeah. So the relationship between the US government and tribes, like you said, is sort of artificially constructed to be narrow, quite reductive. And then you have really the construct of Sioux Nation as being a construct of the federal government that treats Sioux Nation as a monolith. Multiple times over the course of this litigation between 1920 and 1980, Sioux Nation said the lawyers representing us in this case didn't have the authority to enter into the agreements they did or didn't have the authority to agree to a settlement offer that they did. And so there's also the question of representation of tribal interests in US courts, right? Are the lawyers actually there representing the broader tribal interests, or are there other motivations?

0:33:54.5 Nick Estes: At that time, we didn't have the authority to select our own lawyers. So sometimes we would've lawyers who were representing us who also had interest in the other side. And I'll give you an example, like when we were negotiating the settlement for the flooding of our lands, because of the Big Bend and Fort Randall dams that flooded the Lower Sioux Reservation bottom lands, our lawyer had to be approved by the Bureau of Indian Affairs. And that lawyer was the former governor of South Dakota who actually negotiated for the Army Corps of Engineers to build the dams on our land.

0:34:24.8 Nick Estes: And actually they named the reservoir that flooded our land after him. It's called Lake Sharpe. So as they're kind of taking this case, especially the Black Hills case through the court system, they have a payout in mind. If you think about, the lawyers that represented tribes that ended up getting successful, like gaming ventures, there's a payout, and so their interests sometimes don't align with the best interests of the tribe.

0:34:50.2 Rhiannon: Right. Nick, I think we have kind of one more question for you, and that is, what does organizing and sort of reservation-based resistance look like, both in terms of Black Hills and Sioux Nations claim to this land, but also in the face of sort of continued diminishing of what's called tribal sovereignty in the law?

0:35:11.4 Nick Estes: So there's several avenues that Great Sioux Nation has tried to pursue in the past. It's been anywhere from, just to be honest, been anywhere from armed resistance to legislation and Congress, after Wounded Knee that was also about land back for the Black Hills, there was also an occupation, that resulted in the killing of, I think it was a white rancher in the Black Hills that's called Yellow Thunder Camp. And there's an attempt to sort of reclaim the Black Hills, like through a reoccupation. I also mentioned the Black Hills Alliance. There's been massive mobilization. There's been recent history with the protests of Mount Rushmore. And this has led to retaliation by the state, Dusty Johnson, who's a representative, and Congress tried to introduce a bill to kind of make Mount Rushmore like a heritage site or something that to prevent like the inevitable, which is land back right back to the Great Sioux Nation in terms of what tribes are doing.

0:36:08.8 Nick Estes: There's a lot happening, a lot more happening than I've seen in the past. And I think a missed opportunity that people are sort of now coming around to is what was called the Bradley Bill. Which is something that was introduced in the 1980s, which essentially kind of designated federal lands within the Black Hills that would be returned. So it'd be like a partial return. And I think people dismissed it because it's an all-or-nothing kind of thing. And I'm totally sympathetic with that sentiment, but I think people are reevaluating that to say like well actually we should create legislation even if it fails. That sort of revives the Bradley bill to co-management with, whether it's the Forest Service or the National Park Service, and then move into potential like reclamation. There's also efforts to rehabitate the Black Hills.

0:36:57.7 Nick Estes: There's more kind of pressures now on reintroducing new forms of gold mining and resource extraction in the Black Hills. If anyone pays attention to South Dakota politics, I do. I don't live there anymore but it's fascinating 'cause there's a lot going on. The Public Utilities Commission in South Dakota is trying to build carbon pipelines and white ranchers are mad because of eminent domain laws. And they're like, how is this possible? And it's like, yeah, join the club, dude...

[laughter]

0:37:24.7 Nick Estes: We've been fighting this stuff for decades. And now you have like people in the Black Hills, these predominantly white communities in the Black Hills who have been, they're getting priced out because real estate's going up. They're the descendants and children and some of them are retired miners, right? That industry is no longer there and the new kind of forms of extraction don't require hiring people anymore. They don't require miners anymore. So they're now like a redundant kind of labor force. And the only thing that's there is tourism. And nobody wants to work in, you know that's a low-paying job. So it's the things that you would see in Appalachia, are happening here in the heart of the Black Hills.

0:38:06.2 Nick Estes: And so these communities are now kind of sort of waking up again to saying we're gonna lose our livelihoods. It's like, well, welcome to the club. We lost ours too. [laughter] That's the best form of political alliance in some instances is a shared grievance and injury, but it has to both organically and through guidance develop into a broader conscience about land back when, what it means, not just for indigenous people, but for the future of the Black Hills, for people who live there who are not indigenous. These conversations and these plans and strategies have to develop over decades. We may not see that in our lifetime. I hope we do. I think we're closer to it today than we were. Like A decade ago. And I'm really excited to be a part of those conversations and to be having this conversation.

0:38:58.1 Rhiannon: Right.

0:38:58.7 Nick Estes: I'm a free-ass Lakota, that's I learned that from a Madonna Thunder Hawk. She says, "I'm a free-ass Lakota. I go wherever I want." [laughter] It's yeah and we should.

0:39:06.1 Peter: Yeah.

0:39:06.2 Nick Estes: And the treaty itself actually allows for the expansion of a reservation.

0:39:10.1 Peter: Right.

0:39:10.1 Nick Estes: I think we think of these things as like kind of ever diminishing, but in fact, we do have legal precedent within our own agreements with the United States government that allow us to expand our reservation. But this stuff only happens through struggle. The law only changes through struggle. It's not nine unelected judges sitting in Washington DC who changed the world it's people everyday, people on the ground who change the world.

0:39:33.5 Rhiannon: That's amazing. I think that's a good place to end our conversation. But I do wanna say that your writings on this subject, I have made so many connections to the liberation movement for Palestinians, right? As a Palestinian, we talk about in the Palestinian movement for liberation, we talk about the right of return, right?

0:39:51.7 Nick Estes: Yeah.

0:39:51.9 Rhiannon: I don't want money for the land you stole from me, I want the land that you stole from me right, [chuckle] and how that is an actual recognition of sovereignty, right? It's the land and the connection to the land not a remedy at a legal system I don't even recognize is compensation or what have you. And those same connections to struggle and to imagining a future where there is justice and autonomy and land control by the people who have just claims to that land.

0:40:25.5 Peter: Yeah, I just can't exit the episode without saying that Mount Rushmore is just the worst fucking monument in the country. It's so stupid and ugly.

[laughter]

0:40:34.4 Rhiannon: Fuck Mount Rushmore.

0:40:35.4 Nick Estes: The guy was literally a card-carrying clan member.

0:40:39.1 Peter: Yeah.

0:40:39.3 Nick Estes: Like I don't before he did Mount Rushmore, he created a monument just Google Stone Mountain. It was the altar upon which the clan reformed itself. That's not even a metaphor. That's like literally what happened. [laughter]

0:40:52.6 Rhiannon: God, just every layer of history, every detail.

0:40:55.5 Peter: There's something very bleak about reading the sort of story of the Black Hills and the genocide and removal of the people who lived there and knowing that that was in service of a series of mining concerns and the ugliest fucking sculpture you've ever seen. There's just something bleak about it.

[laughter]

0:41:16.3 Rhiannon: Right, Nick, where can people find your work or learn more about indigenous resistance? Where can we direct people to?

0:41:24.0 Nick Estes: Check out our podcasts, Red Nation Podcasts. We have two series, we have regular Red Nation Podcasts. We also have Red Power Hour, which is more news and commentary. We have Red Media Press if you wanna support us on Patreon, we 100% [chuckle] subscriber-funded right now. So that's how, we're working on several books too by Elder, a native activist, and some other works. So yeah, just come check it out and we would love to have you on the show sometime too, to talk about some Supreme Court shit or Palestinian shit, we like to throw down.

0:41:55.2 Rhiannon: Hell yeah.

0:41:55.7 Nick Estes: So, yeah.

0:41:56.7 Rhiannon: Oh, I'm definitely down. That would be amazing. I'm a longtime listener and Patreon supporter.

0:42:01.1 Nick Estes: Right on.

0:42:01.6 Rhiannon: Yeah.

0:42:01.9 Nick Estes: Very cool.

0:42:02.5 Peter: Yeah, thanks for coming man. We appreciate it.

0:42:04.0 Rhiannon: Amazing.

0:42:04.6 Nick Estes: Well, thanks so much for having me on here.

0:42:06.1 Rhiannon: Thank you so much for being here, Nick. Really appreciate it.

0:42:14.0 Peter: Alright folks, next week, Patreon premium episode and we're taking listener questions, mailbag.

0:42:21.6 Rhiannon: Yeah.

0:42:21.8 Peter: It's been a long time.

0:42:22.9 Rhiannon: Yeah, and we do wanna say, don't send in your creepy questions, you know what I mean?

0:42:27.5 Peter: Yeah.

0:42:27.7 Rhiannon: Send in your real normal human questions.

0:42:31.5 Peter: Keep it normal. We have been monitoring the mailbox and I'd say it's about 15% creeps.

[laughter]

0:42:40.5 Peter: Absolute creeps.

[laughter]

0:42:42.6 Peter: That said, we understand that that's a key part of our Patreon demographic.

[laughter]

0:42:50.1 Peter: And we don't wanna ostracize you or make you feel like you've done something terribly wrong. Just stop.

[laughter]

0:42:54.6 Rhiannon: Right, right, just no more questions. [chuckle]

0:42:57.4 Peter: Follow us on all sorts of social media at Five Four Pod, fivefourpod.com/support to subscribe across all matter platforms.

0:43:10.5 Rhiannon: Yeah and check out the website, fivefourpod.com for transcripts of our episodes. Link to our merch store. Check out that merch, and lots of stuff over there.

0:43:18.8 Peter: Alright folks, we'll see you next week.

0:43:20.3 Rhiannon: Bye.

0:43:21.2 Speaker 1: Five to four was presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

0:43:53.6 Nick Estes: Where does that money actually sit 'cause I haven't been able to find it?

0:43:58.0 Peter: Right.

0:43:58.2 Nick Estes: So when we say it's over a billion dollars, that's speculation. And so I think it's worth, somebody who's a researcher out there actually finding out what account this sits in and how much is in it 'cause it has to be sitting somewhere. So we have some people who listen to this podcast who are from the Treasury Department [laughter] who wanna maybe do some research...

[laughter]

0:44:18.3 Nick Estes: You could, that would be nice.

0:44:19.8 Rhiannon: Look into it.