The Treaty Imaginary and Tribal Sovereignty in South Dakota

Abstract

This article examines the history of the South Dakota "Mitigation Act" (as it is commonly know by Lakota people) in the 1990s and early 2000s. The Mitigation Act, enacted in 1998 and implemented over a period of nine years, was meant to create a negotiated agreement between tribal governments and the state for jurisdiction over the regulation of hunting and fishing on the Missouri River that would avoid a long history of bitter litigation over jurisdictional contests. The act was also meant to return lands held by the US Army Corps of Engineers, originally acquired for the purpose of constructing three main-stem dams on the Missouri, to the tribes that had originally held the land, and to the State of South Dakota. Both the goal of negotiating state and tribal jurisdiction, and returning lands to the state and the tribes, led to heightened intensity of the very tribal-state conflicts that the act was meant avoid. Based primarily on the senatorial records of Senator Thomas Daschle (D-SD) and the gubernatorial papers of William Janklow (R), the article examines the logic of the "treaty imaginary" among Lakota tribal governments and their constituencies, and the liberal democratic principle of negotiation by "all interested parties" at the center of development of the Mitigation Act. The article ties the conflict over the act to its fundamental misrecognition of the continuing validity of treaties for Lakota people, and the family resemblance the act had to the illegal taking of the Black Hills for many Lakota and other Great Sioux Nation tribes.