The Black Hills Ledger — Entry IV — Sell or Starve

The Black Hills Ledger

"A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history."

— Justice Harry Blackmun, United States v. Sioux Nation of Indians, 1980

Entry No. IV

Sell or Starve

Randy Gipe · Claude / Anthropic · 2026

The war wasn't even finished before Congress found its lever. On August 15, 1876 — less than two months after Little Bighorn, while Sitting Bull and Crazy Horse were still in the field — Congress attached a rider to the annual Indian Appropriations Act that historians and the Sioux themselves would come to call, without exaggeration, the Sell or Starve Act. It cut off every ration owed to the Lakota under existing agreements — every pound of flour, every head of cattle the government had promised in exchange for peace — until they signed away both their hunting rights and their claim to the Black Hills. The United States had spent eight years failing to keep its own treaty. Now it was using the starvation of the people it had broken that treaty against as the instrument to finish the job.

The commission sent to formalize this — led by George Manypenny — didn't arrive to negotiate in any real sense of the word. By its own contemporaries' account, the commissioners came to Sioux country already carrying a treaty text written in advance in Washington. There was nothing to discuss, only a document to be signed by people who had just been told their children would not eat if they refused.

And even that wasn't enough to make it legal on the government's own terms. The 1868 treaty — the one Red Cloud had fought a war to win, the one that used the words "absolute and undisturbed" — had built in a specific safeguard against exactly this scenario:

Article XII

No treaty for the cession of any portion or part of the reservation herein described which may be held in common, shall be of any validity or force as against the said Indians unless executed and signed by at least three-fourths of all the adult male Indians, occupying or interested in the same.

Treaty of Fort Laramie, 1868 — full text: Yale Law School, Avalon Project

The 1876 agreement was signed by roughly ten percent of eligible men — nowhere close to the threshold the treaty itself demanded.

Congress didn't treat that as a defect. It treated it as paperwork. On February 28, 1877, it simply enacted the unratified agreement into law — the Act of February 28, 1877, 19 Statutes at Large 254 — and the Black Hills passed into United States possession by legislative fiat, over a threshold the government's own treaty had specifically required and the government's own numbers didn't come close to meeting.

A century later, the Supreme Court would look back at this exact sequence and call it what it was — not diplomacy, not a treaty amendment, but a taking.

Sources: Act of August 15, 1876 (19 Stat. 191-192); Report of the Manypenny Commission, 1876; Treaty of Fort Laramie, 1868, Article XII (Avalon Project, Yale Law School); Act of February 28, 1877 (19 Stat. 254).