Excerpted Material for Group Work: Pipestone Quarry and Westward Expansion: Whose Rock is This Anyway?

Excerpts from Hal K. Rothman and Daniel J. Holder, Managing the Sacred and the Secular: An Administrative History of Pipestone National Monument (Omaha: National Park Service, 1992)

"The annual presentation of Henry Wadsworth Longfellow's classic poem, The Song of Hiawatha, as a dramatic performance has become an important link between Pipestone National Monument, the town of Pipestone, the surrounding region, and a public interested in history and culture. Each summer, the pageant recurred, bringing visitors, media attention, and a sense of vitality to the Pipestone area. The pageant provided a tremendous boost for the local economy. People from all over the northern plains attended, staying in town, spending money, and contributing to an enlivened cultural and economic environment." (202)

"At the beginning, there was no seating, and people brought their own blankets. The only place to spread them out was a long way from the stage. The audience used field glasses to see the activities. Many remembered the bugs as being awful, and insecticide became standard equipment. The first lighting came from car headlights. The crowds were small and mostly local, and the director rounded up people for the show." (204)

"By the late 1950s, the [Hiawatha club, a local organization] had more than $20,000 invested in a range of equipment and capital facilities." (206)

"Leaders of the pageant made some attempts to include more Indians in the pageant. In the early 1960s, [Hiawatha] club members drove to Nebraska to hire Native Americans to participate in the pageant. The Indians danced in costume at the festivities in what some remembered as a caricature of their traditions. But the lack of Indian participation remained notable. It was as if local Native Americans sought to demonstrate their discomfort by refusing to participate." (207)

"By the middle of the 1960s, the pageant had become a local tradition and a fixture of the cultural landscape. Foreign visitors became common, with Europeans, themselves overwhelmingly interested in the experiences of Native Americans, predominating. Local businesses anticipated the coming of the pageant in the way that merchants in a college town await homecoming. There was little to object to in the pageant. Everyone made money, the town of Pipestone had a unifying event, and the portrayal of Native Americans was benign, if a little patronizing. In an era that prided itself on an increasing liberalism regarding minority groups, the pageant fulfilled many socio-cultural needs.

"But like nearly everything else in the United States, the changing cultural climate of the late 1960s affected The Song of Hiawatha pageant. After nearly two decades of trying to eliminate Indian tribal structure, the federal government adopted a policy that allowed Native Americans greater autonomy than they had since the beginning of the reservation system. In the aftermath of the Civil Rights Act of 1964 and Voting Rights Act of 1965, a spate of new legislation that formalized Indian control over their lives and customs continued for more than a decade. A cultural awakening seized the nation. For Native Americans, a movement that challenged the romantic view of native experiences closely followed. In a time of increased militance, the pageant was vulnerable to charges that its very nature exploited Native American culture.

"At Pipestone, this culminated in an incident at the pageant in 1970. Although the Native Americans who lived in Pipestone were generally conservative, Minneapolis became a center of activism. Urban Indians faced more bleak and trying conditions, and Native American support groups formed to help newcomers from the reservations adapt to city life. These groups became increasingly militant, spreading their message not only to other Indians, but to the larger world as well. At the 1970 pageant, a number of activists disrupted the performance as an expression of their discontent, stamping their feet, shouting epithets and briefly drowning out performers. Aggressive and strident, these groups temporarily focused their animosity on the pageant." (210)

"Planning to continue their protest, the militants stayed in the area to observe the situation of Native Americans in the community, park, and pageant. By the next week, they discovered that Pipestone offered Native Americans many positive opportunities...Native Americans had positions of leadership. The monument worked to convey a comprehensive approach to the history of the people of the northern plains, the Pipestone Indian Shrine Association created economic opportunity, the Native Americans of the town were generally positive about local institutions, and the pageant, at the very worst, was benign. Although the militants stayed in town, they ceased to protest." (212)

Excerpts from Supreme Court brief for the United States (October Term, 1926), The Yankton Sioux Tribe of Indians, Petitioner, v. The United States

Opinion

The Red Pipestone Quarry or reservation is a tract of land of 648.2 acres located in southwestern Minnesota. Within its boundaries is located the famous "Wakan," or holy ground, from which from time immemorial Indians of the surrounding nations obtained the material for their pipes. Those bands of Sioux other than the Yankton band, who have heretofore claimed any interest in the land, have ceded it.

On April 19, 1858, a Treaty was concluded between the United States and the Yankton Sioux Indians (11 Stat. 743, 746), Article VIII of which provided that

"The said Yankton Indians shall be secured in the free and unrestricted use of the Red Pipestone quarry, or so much thereof as they have been accustomed to frequent and use for the purpose of procuring stone for pipes; and the United States hereby stipulate and agree to cause to be surveyed and marked so much thereof as shall be necessary and proper for that purpose, and retain the same and keep it open and free to the Indians to visit and procure stone for pipes so long as they shall desire."

In accordance with this agreement the United States caused as much land as appeared to be necessary and proper for the purposes of the reservation to be surveyed and marked (R. 22). The tract so established was 648.2 acres in extent. The Treaty of 1858 seems to have reserved to the Yankton Sioux a right in the nature of an easement to go upon the quarry property and remove stone. Nevertheless, since that treaty was made, the Yankton band has claimed the ownership of the tract, and the controversy had continued [sic] until the present time.

At times the United States has recognized the existence of an interest in the Indian greater than a mere easement. By the Act of March 2, 1889 (c. 421, 25 Stat. 1012), Congress directed that the reservation be valued, including the actual value of a strip of land across it then occupied by a railway company, and an appraisal made of the damage to the balance of the lands by reason of the occupation by the railroad. The appraisement was made and the sum of $1,740, collected by the Secretary of the Interior from the railroad company for the right of way, was paid to the petitioners. That Act also provided that no sale of any part of the tract should be made without the consent of a majority of the adult male members of the tribe and that the proceeds of any such sales should be covered into the annuity fund of the Indians or expended as they should determine.

By the Act of February 16, 1891 (c. 240, 26 Stat. 764), Congress authorized Indian industrial schools to be established in Wisconsin, Michigan, and Minnesota- Section 2 of that act was as follows:

"That the Secretary of the Interior may select any part or portion of the nonmineral public domain of the United States in either of said States, which he may deem necessary and suitable, not exceeding six hundred and forty acres, and may, by appropriate order in that behalf made and recorded in the General Land Office, perpetually withdraw such land from sale and entry and dedicate the same to use as a site for such industrial or training school; and if such portion of the public domain is not found available or suitably located, then the Secretary of the Interior may secure title by purchase, condemnation, or otherwise of a tract of land not less than two hundred acres for each of said schools, and upon the site thus selected, acquired, or purchased the Secretary of the Interior shall cause to be erected such buildings and improvements as may in his judgment be best adapted to the purpose in view: Provided, That the site for said buildings in the various States shall be as follows:

In Minnesota, on the Pipestone Reservation; In Michigan, in the county of Isabella; In Wisconsin, near some railroad from which all the reservations may be conveniently reached."

Pursuant thereto an Indian school was established on the Pipestone Quarry tract and was opened in February, 1893. Meanwhile the United States had entered into negotiations with the Yankton Sioux for the cession of about 150,000 acres of land belonging to them, which resulted in the agreement of December 31, 1892, ceding to the United States many thousand acres of land which were immediately opened to settlement. The Act authorizing construction of an Indian school on the Pipestone quarry had been passed in 1891, and the school was in course of construction, while the agreement of December 31, 1892, was under negotiation. The Indians were disturbed at the act of the United States in taking possession of the Quarry tract for school purposes, and caused to be inserted in the agreement of December 31, 1892, Article XVI, which reads as follows (28 Stat-317):

"If the Government of the United States questions the ownership of the Pipestone Reservation by the Yankton Tribe of Sioux Indians, under the Treaty of April 19th, 1858, including the fee to the land as well as the right to work the quarries, the Secretary of the Interior shall as speedily as possible refer the matter to the Supreme Court of the United States, to be decided by that tribunal. * * *

"If the Secretary of the Interior shall not, within one year after the ratification of this agreement by congress [sic], refer the question of the ownership of the said Pipestone Reservation to the Supreme Court, as provided for above, such failure upon his part shall be construed as, and shall be, a waiver by the United States of all rights to the ownership of the said Pipestone Reservation, and the same shall thereafter be solely the property of the Yankton tribe of the Sioux Indians, including the fee to the land."

This agreement was ratified by Congress on August 15, 1894. (C.290,28 Stat. 286,319-) The question was not submitted to the Supreme Court in any way within one year from the day of the ratification of the agreement. The Secretary of the Interior submitted the question to the Attorney General, who advised him that it was "impracticable" to comply with the section of the agreement requiring submission to the Supreme Court (R. 23, 24).

Nearly three years after the ratification of the agreement of 1892, an [sic] in the Indian Appropriation Act of June 7, 1897 (C. 3, 30 Stat. 62, 87), Congress, proceeding on the assumption that by virtue of the agreement of 1892, and the failure of the United States to bring the question of ownership before the Supreme Court, the Indians had become vested with ownership of the Pipestone Quarries, provided:

"The Secretary of the Interior is directed to negotiate through an Indian inspector with the Yankton tribe of Indians of South Dakota purchase of a parcel of land near Pipestone, Minnesota, on which is now located an Indian industrial school."

Indian Inspector McLaughlin undertook these negotiations and finally made an agreement with the Yankton band for the cession of the Reservation to the United States for the sum of $100,000, reserving to the Indians the right to continue to go upon a part of the Reservation, not exceeding 40 acres in area, for the purpose of procuring and removing pipestone for their own use, and to be permitted to camp thereon while visiting the quarry. This agreement and these negotiations are described in House Documents, Vol. 98, 56th Congress, First Session, as Document 535, part of which is printed in the appendix hereto. In these negotiations Inspector McLaughlin said to the Indians (P.9):

"When your people made the treaty forty one years ago (Treaty of 1858) they very prudently and wisely provided for visiting and taking stone from that quarry, and so they are the only ones mentioned as having any right in that land. Then in your later agreement of 1892 there was placed an amendment recognizing your right to that quarry. A few years later there was an item in the appropriation act which fixed the title absolutely in you. And that is why I am here to-day to negotiate for that land or a portion of it."

The agreement of October 2, 1899, made in accordance with the provisions of the Act of June 7, 1897, for the purchase of the Reservation from the Yankton band for $100,000, was submitted to Congress by the Secretary of the Interior on March 24, 1900, with the recommendation that it be ratified. (Document 535, 56th Congress, First Session; see Appendix to this brief.)

A difference of opinion arose in the Senate as to whether the Yankton Sioux owned an interest in the quarry tract than an easement to remove pipestone. In March, 1903, Senator Quarles, of the Committee on Indian Affairs, submitted an adverse report on the Bill to ratify the agreement of purchase. Senator Gamble, of the Committee, submitted a minority report. These reports present the arguments for and against ownership by the Indians. (Report No. 3316, 57th Congress, 2nd Sess., printed in the Appendix hereto.) No action was taken, and on April 14th 1906, Senator Gamble, of the Committee on Indian Affairs, submitted a report recommending the passage of the Bill to ratify the agreement. (Report No. 2369, 59th Congress, 1st sess., printed in the Appendix hereto.)

The action taken by Congress was to pass the Act of April 4th, 1910 (c.140, 36 Stat. 269, 284), conferring jurisdiction upon the Court of Claims "to hear, and report a finding of fact, as between the United States and the Yankton tribe of Indians of South Dakota as to the interest, title, ownership, and right of possession of the said tribe of Indians in and to the land embracing the Red Pipestone Quarries. The Yankton Sioux Indians filed a petition in the Court of Claims under that Act and the court made the findings of fact appearing on pages 13 to 24 of the record. The court announced no conclusion as to the title of the Yankton Sioux, being of the opinion under a narrow construction of the statute of reference that it had no power to do so. (53 C. Cls. 67, 81.) Subsequently, on July 31, 1924, under the Act of June 3, 1920 (c.222. 41 Stat. 738), giving to the Court of Claims jurisdiction to adjudicate all claims of the Sioux Indians against the United States, the Yankton tribe filed its petition in the Court of Claims (R. 13) praying that judgement be entered in its favor for an amount which should compensate the tribe for the land comprising the Pipestone Quarry Reservation, in the event that the court should find that the said land had been misappropriated by the United States (R. 12).

While this suit was still pending before the Court of Claims, Congress, by the Act of January 9, 1925 (c. 59 43 Stat. 730), expressly conferred jurisdiction upon the Court of Claims to determine and report from the findings of fact theretofore found "the interest, title, ownership, and right of possession of the Yankton Band of Santee Sioux Indians in and to the land known as the "Red Pipestone Quarries," and to determine what amount, if any "is legally and equitable due from the United States" to the said Indians for the said quarries and enter judgement thereon (R. 13).

After trial, the Court of Claims found the facts to be as found in the previous submission (R. 13, 24) and found further that the Yankton Sioux are still permitted to visit and procure stone from the Pipestone Quarries at such times and in such quantities as they may desire for their own use, and that "the said quarries are still open and free to the Indians to visit and procure stone for pipes so long as they so desire" (R. 24), and concluded that the only interest ever possessed by the Yankton Sioux in the Red Pipestone Quarries was the right "to the free and unrestricted use" of the same "for the purpose of procuring stone for pipes," and that this right had been continuously secured to them since the date of the Treaty of 1858, is [sic] strict conformity with its terms, and that no amount "is legally and equitable due from the United States" to the plaintiffs, and dismissed the petition (R. 24, 25).

The findings show that while the United States has not disturbed the Indians in their right to visit the quarry and remove pipestone, it has taken possession of some of the land included in the tract of 638.2 acres and constructed an Indian school thereon. The school is not for the Yankton Indian children exclusively, but for Indian children of the surrounding country generally. In the Report of the Commissioner of Indian Affairs for 1894, at page 387, there is the statement that the school had 150 acres of the Reservation under cultivation. In the "Hearings before the Subcommittee of the Committee on Appropriation of the House, on the Indian Appropriations of the House, on the Indian Appropriation Bill, 1924," at page 326, there is a statement that the "school lands" comprise 684 and a fraction acres (evidently meaning 648 and a fraction), and that there were them [sic] 305 acres under cultivation, so that the United States has evidently taken possession of more of the surface of the ground than the school buildings proper require, and has proceeded on the theory that the entire reservations [sic] has been taken for school purposes, subject to the right of the Indians to visit the quarry to obtain stone. There is no findings [sic] as to the value of the quarry tract or as to the value of the easement reserved to the Indians.

Deposition of Charles H. Burke, for claimant, taken at Washington D.C. on the 18th day of April, 1927

17. Question. What would you think, Mr. Commissioner, from your knowledge of the Indians and their customs, aside and apart from the value of the land which was taken, that the right of the Yankton Tribe to take pipestone out of 40 acres which included the strata or the stone was worth to the tribe?

Mr. Stormont, [sic] I object to that.

Answer. I could not say; I don't know.

Mr. Stormont. In the first place, it is immaterial, and in the second place, it is not susceptible of calculation on a money basis.

Comissioner Cohen. The witness states he does not know.

By Mr. Wise:

18. Question. Would you take it to represent a material value?

Answer. I would so consider it if I were negotiating with the Indians to extinguish that right.

19. Question. It is a right which has a value to the Indians?

Answer. It has in my estimation.

20. Question. You know that the Indians assume that it has a value?

Answer. I certainly do.

Mr. Wise. I have no further questions.

Deposition of Raymond T. Bonnin, for claimant, taken at Washington, D.C., on the 18th day of April, 1927

17. Question. (continuing). Or, in other words, do the old men who were living at the time the treaty of 1858 was made regard the Pipestone Quarry as a part of the consideration for the claim that they yielded to other lands?

Mr. Stormont. That is objected to as immaterial. Whether or not that was a part of the consideration has to be determined by the treaty itself and not by the opinion of the old men of the tribe.

Commissioner Cohen. Overruled.

Mr. Stormont. Exception for the Government.

By Mr. Wise:

18. Question. Go ahead.

Answer. They feel that it was a part of the consideration. The contention of the old people, who had been parties to the agreement or signed the treaty of 1858, is that they came to Washington at the invitation of the Government, and the Government asked them to cede certain tracts of land and diminish their reservation. The Indians refused to do that and continued to refuse and they were kept here in Washington several months and they were homesick, but they continued, however to oppose the signing of that treaty of 1858, and finally, the head chief, an old man, Struck-by-the-Ree, agreed to sign that treaty on the condition that they would return to them this Pipestone Reservation which had apparently been sold by some other Indians by mistake; so the Sioux people came in possession after the Government returned this to them after agreeing to sign the treaty. So it was a very important consideration.

...

21. Question. Now, Captain Bonnin, can you state what value your tribe attached to the right to own Pipestone for ceremonial and other purposes, the 40 acres that were reserved in the tentative McLaughlin agreement?

Mr. Stormont. You mean the money value?

Mr. Wise. Yes.

Mr. Stormont. Defendant objects to the question as impossible of stating the money value in a matter of that kind.

Commissioner Cohen. Why is it impossible?

Mr. Stormont. It is impossible to estimate in dollars and cents a religious right.

Mr. Wise. Has not the court under the instructions of the Supreme Court got to determine it?

Mr. Stormont. That is a part of the value to which the Supreme court [sic] has reference.

Comissioner Cohen. The witness may answer.

...

31. Question. Would you yourself have parted with the right to take stone from the 40 acres?

Mr. Stormont. For agricultural or mining purposes?

By Mr. Wise:

32. Question. For the value equivalent to the agricultural or mineral value of the land?

Answer. No, I would not.

33. Question. Do you know if the attitude of the old men who lived there at the time is the same as your own?

Answer. I believe that all members of the tribe feel the same way about it.

34. Question. Then when they agreed with McLaughlin to accept $100,000 for the reservation they were in no sense undertaking to part with the right which you say they would not have sold?

Mr. Stormont. Defendant objects to that question. The agreement speaks for itself. Comissioner Cohen. Overruled.

Mr. Stormont. Exception.

Answer. The Indians told me that Major McLaughlin and the commissioners before him had all talked along the line that the 40 acres would be kept for them so that the Indians would have the quarry the same as always. So they felt that what they were selling for $100,000 was outside of that and they still had their quarry.

35. Question. And they still had this right to exercise religious ceremonies and take the stone and have stone in sufficient quantity to fulfill their needs?

Answer. Yes.

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