Legal History: The Curious Case of the Disappearing Unceded Lakota Territories

This Article discusses whether the Lakota Nation still has title to the unceded territories outlined in the Treaty of 1868. While many accounts focus on the supposed diminishment of the Great Sioux Reservation, the question of the unceded lands has largely been forgotten. It has renewed relevance in the context of the Dakota Access Pipeline, which crosses the lands. From a broader perspective, the case raises questions about how history is understood, constructed, and selected in American Indian Law cases. Most legal cases, especially those concerning treaty rights, are rooted in an interpretation of history; if that history is misinterpreted in court, the decisions can be misinformed. In this instance, the history of the Treaty of 1868 has been consistently misinterpreted by courts for over a century. However, comparing the Treaty text to court decisions in a close reading shows that the Lakota Nation should still have title to the unceded lands.