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Sovereign Mineral Rights and Wrongs, Part I: The Golden Curse

“When I was older, I learned what the fighting was about that winter and the next summer. Up on the Madison Fork, the Wasichus had found much of the yellow metal that they worship and that makes them crazy, and they wanted to have a road up through our country to the place where the yellow metal was; but my people did not want the road.”

Black Elk shared this memory with John G. Neihardt in 1931. By that time, the relationship between American Indians and gold was history. Most of the gold was gone, and so were most of the Indians.

Indians discovered Columbus in the Caribbean in 1492. Some people believed he had come there looking for heathen souls that could be saved for the Christian God; others said his purpose was to become wealthy. In his diaries, Columbus mentioned God 26 times. He mentioned gold 114 times.
The Spanish in the Americas, from Columbus forward, usually just wanted to know where the gold was. If the Indians didn’t tell, they were tortured, brutalized for what the conquistadores took as insolence. If the Indians did tell them, they were worked to death in the mines, brutalized for the crime of having wealth they could not defend.

The United States of America, showing its exceptionalism, forwent the death penalty for Indians possessing gold. The punishment was merely loss of the lands guaranteed in the last treaty with the U.S. The wholesale killings were incidental to the evictions they accompanied.

Gold Destroys Cherokee Treaty

The Treaty of Washington in 1819 left the Cherokee a much bigger reservation than they have today. An ironic addendum to that treaty created a “turnpike company” with both Cherokee and settler management, and ownership of that turnpike to be built to revert to the Cherokee Nation in 20 years. No one appeared to consider the possibility that the Cherokee Nation would no longer be in the vicinity of that road in 20 years.

The Cherokee were guaranteed their remaining lands in 1819, and so it was until gold was discovered at Dahlonega, Cherokee Nation, in 1828. No treaty could stop the miners who descended like locusts. This spate of anti-Indian violence did not end until President Andrew Jackson engineered the bogus Treaty of New Echota in 1835.
Jackson got New Echota ratified in the U.S. Senate by one vote, over the complaint of Chief John Ross that the Cherokee signers lacked authority. So it was that the Cherokee have the dubious distinction of having been the landlords during the first gold rush in the U.S. and therefore the first Indians in North America to experience the lethality of gold fever.

Under the Treaty of New Echota, Cherokee government and most of its citizens were removed to Northeastern Indian Territory, to land involuntarily exchanged for their homeland. It was cold comfort at the time that the U.S. Government guaranteed the new Cherokee lands would never be placed inside a state without the tribe’s permission. The 1835 treaty held up until 1907, probably because there was no gold discovered in Oklahoma. Then we learned about “black gold,” but I’m getting ahead of the story.

The gold rush that caught the imagination of the entire United States followed the discovery of gold in California on January 24, 1848. As the men who would be called “Forty-Niners” made their way by land and by sea to scrabble for their fortunes in California, the indigenous peoples there were exterminated in the clearest case of genocide in U.S. history. Unlike the Cherokee before them and the Cheyenne after, the California Indians did not have their real estate guaranteed by treaties, but there is no reason to believe that treaties would have protected them.

Gold Destroys Cheyenne Treaty

Cheyenne Chief Black Kettle was in his fifties — old by the standards of the day — when he signed the Treaty of Ft. Wise with the United States on February 18, 1861. The Ft. Wise Treaty once again ceded land, leaving the Cheyenne with one-thirteenth of the real estate they had been promised in the Treaty of Ft. Laramie just 10 years earlier.

The land guaranteed to the Cheyenne at Ft. Laramie had been rendered politically and militarily indefensible by the discovery of gold in the Colorado Rockies in 1858. Federal power was insufficient to enforce the treaty, so what the federal government intended was almost beside the point. What little federal power that could have been wielded there was substantially diminished when the Civil War broke out two months after the Ft. Wise Treaty was signed. Putting down the rebellion of the Southern states became the primary mission of the U.S. Army, a mission far more important than the Indian wars generally — let alone bringing order to Colorado Territory, which was in the throes of gold fever.

Black Kettle probably did not know about the bloody mess at Dahlonega. He was tired of war and of the constantly shifting demands from settlers. His people split over the Ft. Wise Treaty like my people split over New Echota.

Those who disagreed with Black Kettle did not follow him. They took their weapons and went their own way. The Hotamétaneo'o, the Dog Soldiers, the most formidable of the Cheyenne warrior societies, were among those who refused to accompany Black Kettle when the old chief, along with 50 or so Arapahos, camped under a flag of truce at Sand Creek. The site was exactly where the federal commander at Ft. Lyon had instructed the Indians to wait for further instructions. Black Kettle’s people were two-thirds women and children and most of the men were non-combatants because of age, too young or too old.

An Unlawful and Immoral Attack

Despite being camped in the place where the U.S. Army had sent him and displaying the flags he had been told would keep him safe, Black Kettle was still being stalked by a politically ambitious Coloradan, Col. John Chivington, commanding a corps of volunteers created to protect the settlers from “hostile” Indians who were trying to defend themselves against the plague of gold bugs. The men Chivington commanded were serving 100-day enlistments, which were about to expire. Some historians claim that the events described here took place with many of Chivington’s troops under the influence of alcohol.

Chivington ordered an attack on Black Kettle’s camp early in the morning of November 29, 1864. He would claim he was scouting for hostile Indians and was fired upon from Black Kettle’s camp. Two regular U.S. Army officers, Capt. Silas Soule of Company D and Lt. Joseph Cramer of Company K, disregarded Chivington’s attack order to his face and commanded their troops to stand down in spite of Chivington’s threats to have them prosecuted. Soule and Cramer kept their men out of the battle because they claimed Chivington’s order to attack peaceful Indians under a flag of truce was unlawful and immoral.

Chivington’s engagement comes to us in history as the Sand Creek Massacre, known for the wholesale slaughter of women and children and mutilation of the dead bodies, most commonly scalping and removing the genitals. As to the mutilations, there has been little controversy, because the Colorado volunteers paraded their “trophies” around Denver.

Chivington filed fantastical reports describing the Sand Creek engagement as a great victory simultaneously to his military superior and to the Rocky Mountain News. He would later claim the Indians fired the first shot and the first casualty was white. No doubt Chivington was served many free drinks on that lie in Denver before Capt. Soule and Lt. Cramer blew the whistle. Soule wrote to his mother in a letter now in the possession of the Denver Public Library:

I was present at a Massacre of three hundred Indians mostly women and children… It was a horrable (sic) scene and I would not let my Company fire.

Soule said what he really thought in a letter to the former federal commander at Ft. Lyon, where he described the evil he had witnessed and his conviction that “any man who would take part in the murders, knowing the circumstances as we did, was a low lived cowardly son of a bitch.”

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Cramer wrote a similar letter to the former commander describing actions he had witnessed in stomach-churning detail. Before the serious killing began, Cramer witnessed Chivington ordering fire directed at men approaching with a white flag. He described his own reaction and Chivington’s:

Well I got so mad I swore I would not burn powder, and I did not. Capt. Soule the same. It is no use for me to try to tell you how the fight was managed, only that I think the Officer in Command should be hung, and I know when the truth is known it will cashier him.

I told the Col. (Chivington) that I thought it murder to jump them friendly Indians. He says in reply; Damn any man or men who are in sympathy with them.

These whistleblowing letters kicked off a congressional investigation and the result of that inquiry is why we now refer to the “Sand Creek Massacre,” when Chivington would have styled it the “Battle of Sand Creek.” The National Park Service keeps the Soule and Cramer letters on line.

Eight chiefs of the Cheyenne governing council died at Sand Creek, older men who advocated peace even in the face of treaty violations. The Sand Creek Massacre not only decapitated the peace faction, but also vindicated the position the Dog Soldiers had taken: the settlers cannot be trusted. No matter what you give them, they will come back for more.

Black Kettle survived Sand Creek, although most of his Wutapiu Band died and his wife, Medicine Woman Later, was severely wounded. On November 27, 1868, four years after the Sand Creek Massacre, almost to the day, the elderly chief’s camp on the banks of the Washita River came under attack by a military commander whose stated purpose was to kill the men but take the women and children for human shields.

The engagement at the Washita had no Soule and Cramer letters to differ with the official report, although there seems to be little controversy that most of the dead were non-combatants. Black Kettle and Medicine Woman Later died, shot in the back while trying to flee across the Washita. Historians continue to debate whether the Washita engagement was a battle or a massacre, but in the short-term it burnished the reputation of the officer in charge of the attack, George Armstrong Custer.

When Custer went to his reward at Greasy Grass, one reason the Cheyenne and Arapaho were supporting the Sioux was their rights under the Ft. Laramie Treaty had already evaporated with the Colorado gold strike in 1858. When gold was discovered on territory guaranteed to the Great Sioux Nation, the leaders among the Cheyenne and Arapaho had already seen what happened in Colorado. Resistance, they knew, would be at the risk of another Sand Creek Massacre. But this time there would be a serious fight.

Gold Destroys Sioux Treaty

The Great Sioux Nation was also part of the Ft. Laramie Treaty, but a piece of paper was no protection when Custer and his Seventh Cavalry set out from Bismarck, North Dakota on July 22, 1874 to investigate rumors that Indians had been trading gold nuggets for the far more practical items they needed.

Custer’s verification that there was gold in the Black Hills touched off the mass incursions into treaty land that would destroy the treaty rights of the Great Sioux Nation. Most Indians believe that Custer’s conduct at the Washita and his incursion into the Black Hills made his end a case of rough justice.

Unlike at the Washita and at Sand Creek before that, armed warriors were present and prepared to defend their families. The part of Custer’s command that attacked first was bloodied and beaten back. Custer’s troops attacked the other side of the Indian camp and were totally destroyed in what became known as the Greasy Grass Fight on one side and Custer’s Last Stand on the other.

It was gold that touched off the chain of events leading to the bloodshed at the Little Bighorn River, just as gold touched off the chain of events leading to the bloodshed at Sand Creek, although the only gold that changed owners immediately was Custer’s hair.

Briefcase Warriors Prevail

The Sioux would eventually lose the war touched off by Custer’s incursion into the Black Hills to verify the rumors of gold. The Sioux then took their grievance to the settler courts, where they prevailed. The seizure of the Black Hills was deemed illegal but the Sioux were offered only money in return. That money remains in the registry of the federal court to this day because the Black Hills were not for sale and the goal of the lawsuit was not money and certainly not gold.

The settler courts were then and are now based on English common law. The common law tradition recognizes that no two tracts of land are alike. If you sued over a shipment of widgets, you would get the value of the widgets. But if you sued over land, you would get the land. Any widget would make you whole but land is different.

The Sioux agreed that land is different. They were not suing for damages. They were suing for the Black Hills. Even though the decision came after the gold strike had played out, the Sioux tripped over the invisible words that followed every legal principle then and does to this day: “except Indians.” For the Sioux, the casus belli and the lawsuit were about sacred sites in the Black Hills and the territorial integrity of what was left of the Great Sioux Nation — not gold.

Black Gold and Tribal Sovereignty

Cherokee humorist Will Rogers summarized the Cherokee experience after Andrew Jackson removed them out of the way of the Dahlonega gold rush to Indian Territory:

They had a treaty that said, 'You shall have this land as long as grass grows and water flows.' It was not only a good rhyme but looked like a good treaty, and it was till they struck oil. Then the Government took it away from us again. They said the treaty only refers to 'Water and Grass; it don't say anything about oil.’"

The common law rule is that a title to land conveys the title to minerals under the land. Like all common law rules, it contains the invisible qualifier, “except Indians.” Most non-Indians consider discovering gold a blessing, but for Indians it has always been a curse. Part II of this series will ask whether, in the 21st century, the discovery of black gold will be different.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.