Meanwhile, in the northern plains, growing interest in the Yellowstone River country (now Wyoming and Montana) disrupted the troubled peace that had been negotiated at Fort Laramie. Beginning in 1871, state-sponsored surveying expeditions for the Northern Pacific Railroad passed through the area, some with dozens of scientists and hundreds of military escorts. In 1874, Custer`s expedition to the Black Hills of present-day South Dakota found traces of gold, and the discovery was confirmed the following year by another team. Under increasing pressure to secure the area, the Interior Ministry approved the use of military force in November 1875, paving the way for what some have called the Great Sioux War. A first offensive quickly collapsed, but in May, three large army columns converged in the Yellowstone River Valley. Sheridan reflected a concurring view, assuring a subordinate „that it is impossible for a large number of Indians to remain together as hostile bodies for even a week.” The greatest risk, he and most others believed, was that the Indians could escape the grip of the army. [ Footnote 8 ] General William Tecumseh Sherman, commanding general of the army, quoted in the St. Louis Globe in 1875, described the army`s task of keeping prospectors out of the Black Hills as „the same ancient history, the story of Adam and Eve and the forbidden fruit.” Jackson, No. 5 above, at 112. In an interview with a correspondent of the Bismarck Tribune, which was published on the 2nd. Published in September 1874, Custer recognized the army`s obligation to keep all invaders out of reserve areas, but declared that he would recommend to Congress „the removal of Indian title as soon as possible, which is possible for military reasons.” Krause & Olson, above No. 6, at p.
233. Given the ambivalence of army commanders` feelings about the practicality and timeliness of their contractual obligations, it is perhaps not surprising that one Sioux history chronicler calls the government`s efforts to drive invading settlers out of the Black Hills „weak.” F. Hans, The Great Sioux Nation 522 (reprinted 1964). Article Three provided that parcels of up to 160 acres (65 ha) of arable land were reserved for agriculture by tribal members.  :15 By 1871, 200 farms of 80 acres (32 ha) and 200 farms of 40 acres (16 ha) had been established, including 80 houses. By 1877 that number had risen to 153 houses, „50 of which had shingle roofs and most had plank floors,” according to an 1876 report from the Bureau of Indian Affairs. :15 [ Footnote 24 ] The joint resolution at issue in Nock also limited the amount of judgment that the Claims Court could grant to Nock to an amount of [448 U.S. 371, 399] established in a report by Treasury Counsel to the Senate.
See 14 Stat. 608. The tribunal rejected the administration`s argument that the Constitution did not give Congress „such discretion to bind or restrict the course of justice.” See 2 ct. cl., at p. 455. The court held that this limitation on the amount of the plaintiff`s recovery was a valid exercise of Congress` power to condition the waiver of the sovereign immunity of the United States. „Suffice it to say that defendants can only be sued with their own consent; and Congress has the same power to give that approval to a second action that it had to give to a first. Id., at p. 458. Just because we have focused our attention on the claimant Court`s age-old decision in Nock does not mean that legislation of the kind we are talking about here is a relic of the distant past.
Special jurisdiction laws that waive the Affirmative Defense of the United States for legal claims and order the Claims Court to clarify the merits of such claims are legion. See Mizokami v. United States, 188 Ct. Cl. 736, 740-741 and nn. 1 and 2, 414 F.2d 1375, 1377 and nn. 1 and 2 (1969) (reports of cases). A list of cases, in addition to those discussed in the text, that have recognized or responded to Congress` power to waive the defense of legal force of claims against the United States follows (the list does not purport to be exhaustive): United States v. Grant, 110 U.S. 225 (1884); Lamborn & Co.c.
United States, 106 Ct. Cl. 703, 724-728, 65 F. Supp. 569, 576-578 (1946); Menominee Tribe v. United States, 101 Ct. Cl. 10, 19 (1944); Richardson v. United States, 81 Ct. Cl.
948, 956-957 (1935); Delaware Tribe v. United States, 74 Ct. Cl. 368 (1932); Garrett v. United States, 70 Ct. Cl. 304, 310-312 (1930). In Richardson, the Court of Claims noted, „The power of Congress, under special law, to waive any legal or just defense the government might have against a lawsuit in this court, as it did in the Nock and Cherokee Nation cases, has never been called into question.
The Court`s reports are full of cases in which Congress, impressed by the just justice of the court`s rejected claims on legal grounds, waived by a special law the government`s defense, which prevented recovery and gave the court jurisdiction to rule the case again. In such cases, in accordance with the provisions of the Notice of Reference and in cases too numerous to be cited here [448 U.S. 371, 400], the court rendered judgments to the plaintiffs whose claims had already been dismissed. „81 Ct. Cl., at p. 957. Two similar decisions of the U.S. Court of Appeals for the Eighth Circuit are interesting. Both concerned the constitutionality of a joint resolution that overturned the dismissal of lawsuits under the World War Veterans` Act, 1924, 38 U.S.C.
445 (ed.), and authorized the reinstatement of these war risk insurance claims. The Court of Appeals did not find a constitutional prohibition on Congress renouncing a decision in favor of the government or giving plaintiffs against the United States the right to have their cases re-heard on the merits. See James v. United States, 87 F.2d 897, 898 (1937); United States v. Hossmann, 84 F.2d 808, 810 (1936). The tribunal relied in part on participation in the Cherokee Nation, and the grounds of sovereign immunity were applied in The Nock case. None of the other tribes that signed the 1851 treaty fought with American soldiers,:LVII:54:161:xi, and most allied with the army. :91:127:161:129 When the tribal peace of 1851 was soon broken,:572–3:226, 228:103:119, 125–140, 178 the Arikara, Hidatsa and Mandan called for American military support against raids on the Sioux Indians in 1855. :106 By the summer of 1862, the three tribes had abandoned all their permanent villages of earth huts in the Treaty area of southern Missouri, now under Sioux control, and lived together in the village of Like-a-Fishhook north of the river. :108:408 The first Treaty of Fort Laramie, signed in 1851, was intended to settle disputes between tribes and the U.S. government, as well as between the tribes themselves in the modern regions of Montana, Wyoming, Nebraska, and North and South Dakota.
It stipulated that the tribes would make peace with each other, allow safe outside access to their lands (for activities such as travel, surveying, and building certain government posts and roads), and that the tribes would be responsible for injustices committed by their people. In return, the U.S. government would offer protection to the tribes and pay a pension of $50,000 a year.   [ Footnote 30 ] An examination of this standard shows that, contrary to the government`s assertions, the Court of Claims in this case did not base its finding of a takeover solely on the fact that Congress had not declared in 1877 that the „assets” granted to the Sioux in exchange for the Black Hills had a value equivalent to that of the land returned. On the contrary, the Court left open the possibility that, in an appropriate case, a mere assertion of Congressional goodwill in determining the terms of a forced surrender of contractually protected land could be overcome by objective evidence to the contrary. Similarly, there may be cases where the consideration given to indians for abandoned treaty lands was so manifestly reasonable and fair that the failure of Congress to say the obvious would not result in the determination of a compensable withdrawal. To the extent that the Claims Court standard differed in this respect from the original wording of the Fort Berthold test, see 220 Ct. Cl., pp. 486-487, 601 F.2d, pp.
1182-1183 (dissenting opinion), such a discrepancy was justified. The current wording of the Claims Court`s test, which takes into account the relevance of the consideration given, reinforces little more than the old principle that determining the extent of equitable compensation for a move of private property „is a judicial matter, not a legislative one”. Monongahela Navigation Co.c. United States, 148 U.S. 312, 327 (1893). Due to the Sioux massacre on the Pawnee in southern Nebraska during a hunting expedition in 1873, the United States banned such hunts outside the reservation. .