Curse of the Black Hills: breach of treaty and due process under the 5th Amendment

ISSN： 1364-2987

Source： The International Journal of Human Rights, Vol.15, Iss.3, 2011-03, pp. : 397-415

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Abstract

The US Congress has a legal relationship with the Native Americans that is set out in the Commerce clause. It has been invoked by the federal government to reach agreements with the tribes leading to their sovereign status. This process was achieved with the Sioux by means of the Treaty of Fort Laramie 1868 that led to the Great Sioux Reservation, which encompassed a land mass in the mid-West of the US. The Black Hills range proved to be gold rich and were soon coveted by the mineral prospectors. After their military defeat the Sioux had to forfeit the territory under the clause of the 5th Amendment in 1879. The issue of taking the land against the stipulation of due process has been the subject of dispute ever since and the Supreme Court in Sioux Nation v. the US, (1980) has awarded monetary compensation. The Sioux having denied any proprietary right on the basis that the claim is res judicata can question it on the basis of the principles of public international law. These can draw on the international rulings that have come through the International Court of Justice (ICJ) judgments? It can then build on the precedence that can claim the judicial review of purchases of land under duress and in breach of treaty leading to the revocation of the plenary power doctrine.