The Black Hills Bill: Expressions of Doubt As to Its Justification and Constitutionality

Abstract

I. Senate Bill 105, the Bradley Bill, constitutes an unprecedented intrusion by Congress into the affairs of a State. A. The bill will create a new reservation which would cover all or part of seven counties. These are Harding, Butte, Lawrence, Pennington, Meade, Custer and Fall River. B. The bill would transfer over 1.5 million acres of publicly owned land to a newly created entity called the Nation. The publicly owned land is in the Black Hills National Forest, Custer National Forest, Wind Cave, and Buffalo Gap National Grasslands. C. The bill would establish exclusive jurisdiction to regulate hunting and in the newly created Sioux Nation although the State of South Dakota has controlled such hunting and fishing since 1889. S.B. 105 ? 17. (Hereinafter only a ? is given in reference to S.B. 105.) D. The bill would severely alter the water rights regime as discussed in more detail below5. E. The bill would cloud property rights by giving the Sioux Nation the right of first refusal with regard to sale of lands deemed by the Sioux Nation to have special religious or ecological significance. ? 8(6), 11 (b), (c). E The bill would create a huge area of checkerboard jurisdiction as discussed in more detail below. G. The U.S. has not created any reservations of this size, to the writer's knowledge, in the Twentieth Century. II. The historical case justifying the bill is very weak. A. The first elements of the Sioux did not cross the Missouri River and certainly did not see the Black Hills until sometime between 1750 and 1800. 1. Wesley R. Hurt was contracted by the U.S. Department of Justice to study the movement of the Sioux. Hunt traced their progress from Minnesota to South Dakota as follows: