Marilyn takes her elbow. Together they walk back to the van in silence. The drive down Old State Road Number Eight is always a pilgrimage to the past, a sojourn to childhood, a distant time that seems more actual and immediate at these landmarks than it does in the vague abstractions of scrapbooks and photo albums. Lake Sakakawea is just a short jaunt down the road from Parshall, but the ride is not always a painless one. The familial pathology gets complicated the closer the Cross kids get to the lake. Bucky, for example, has returned to Fort Berthold on numerous occasions, but he has no use for the dam or the lake. Like the experience of many of the people who lived through The Flood, his memories of that era are still raw.
“A lot of our tribal people have never seen Garrison Dam,” says Marilyn. “One day soon there won’t be anyone left who remembers Elbowoods, or Nishu, Lucky Mound, or Beaver Creek. That day will mark the end of something for our people. It’s best not to think about it.”
Psychologists studying the long-term effects of extreme hardship on groups and communities have coined a new term to describe what they encountered: transgenerational trauma. A bit awkward at first glance, the term is nonetheless an apt description of the experience of the Mandan, Hidatsa, and Arikara people over the past fifty years. Unless the pathology resulting from a traumatic event is quickly interrupted, long-term psychological damage can sweep through a community like a viral epidemic. Untreated, the effects of the trauma linger for generations, often long after the causal event is forgotten. The most immediate symptoms include a sudden increase in alcoholism and drug addiction, joblessness, child abuse, domestic violence, clinical depression, and suicides. Equally common are widespread diabetes and heart disease, disabling afflictions which usually accompany a crippling assortment of lesser maladies. Life expectancy plummets. Indian Country in general, and Fort Berthold in particular, have become frontline laboratories for the study of transgenerational trauma. As a registered nurse and a mental health specialist, Phyllis has spent a lifetime thinking about The Flood and its consequences. In her own family, for example, decades passed before her parents and siblings were willing to talk.
“I’ve come to the conclusion that our thinking failed us. Our thinking failed us because suddenly our landmarks, our social and physical landmarks, the framework for everything we were, was gone. Our identity derived from our villages. Those were destroyed. We were born into very dynamic and complex social networks that connected those identities across forty generations. Those went when the villages went. When everything was gone, there was no one waiting to help us put the world back in order. No jobs, no communities, no gardens, no homes. Gone.”
As the Cross children grew older and their lives began to stabilize, each became more willing to compare notes. What jumped out was not the similarities of their experiences but the differences. “It turned out we were complete strangers in many ways,” says Marilyn. “We went from being a deeply integrated family and community in July 1954 to being a society of totally isolated individuals who went into social free fall for the next fifty years. This happened to thousands of people simultaneously.”
Of all the Cross children it was probably the youngest, Carol and Raymond, who were most vulnerable to the emotional fallout of The Flood. Young, defenseless, and as rootless as tumbleweeds, they were thrown headlong into the darkest and meanest days of the storm that descended on Parshall. Their new small-town home on the High Plains suddenly transformed itself from an idyllic farming village into a racial war zone.
“Craziness, dis-integration, and racial hatred were completely normal to Raymond and Carol,” says Phyllis. “Little children, elders, were dying all around us. Meals were breaks between funerals. Raymond and Carol grew up thinking it was normal to see the mothers and fathers of their friends passed out drunk in the streets at twenty below. In that world, either you learn to step over the bodies and keep going, or you lie down beside them. Raymond will never talk about those years. He could walk through a burning house today and not know it was on fire. He has that ability to detach, to focus on a distant point, that came from walling himself off from the world in order to survive.
“The more we studied trauma, the more clearly we saw how it was being passed on to the next generation. How do you bury the past when your identity is trapped in its lasting effects? What do you call your life as a community, as a people, when despair is the only emotion you can trust?”
Michael angled the wheels of the van into a thick patch of buffalo grass, then got out and walked the last twenty feet to the edge of the bluffs. In the distance were the twin smokestacks of a coal-fired power plant at Stanton, and the irregular blemish on the far shore called Pick City, a community of two hundred residents who work at the dam and supporting service industries. Aside from that, and a few white clouds that merged with the horizon, there was little to see for fifty miles.
“This is the spot where Dad used to drop us off and make us walk home,” said Michael, chuckling to break the silence.
“Right here?” exclaimed Marilyn, coming up beside him. “I always wondered where that was! Are you sure?”
“Right here.” Michael scuffed the ground with his foot and looked out across the lake. “It’d take us the rest of the afternoon to walk home. We’d stop and eat apples in somebody’s orchard. If it was hot we’d take a swim in somebody’s pond. We’d make it home just in time for supper. If you did that today, they’d throw you in jail for child abuse.”
“You know why he did it, don’t you?” asked Phyllis. “He was a sly one, that Martin Cross.”
“Sure.” Michael grinned as if they were about to share a secret they had kept in the dark for sixty years. “He wanted to run home and get some nooky from Mom. He ditched us out here and raced home. ‘Take your time, kids,’ he’d say. ‘Have fun.’”
Michael laughed, and after a moment of mild embarrassment, the sisters were laughing, too. “With ten kids there was never a minute of peace in that house,” said Marilyn.
“Well,” added Phyllis, “somewhere along the way they got enough to make ten of us. That’s not exactly the same thing as living without.”
Michael wandered off and followed the last fifty yards of Old Number Eight down to the edge of the lake. There, a set of wheel tracks trailed off into the water where small wavelets lapped against the shoreline. The light at water’s edge had a spectral, burnished quality, but the wind had a bite to it, a cutting edge that hinted at winter. Killdeers wheeled and dove on gusting currents. Out in the middle, windrows of whitecaps raced across the lake.
“These are recent,” he said, running his fingers along the hardened impression of a tire track. “The car that made these tracks was written up in the Garrison newspaper not too long ago. Seems that one night last summer, five or six fancy dancers at the powwow in New Town took off for a joy ride in an old Chevy Impala. They were drumming and singing and hauling ass down the road, having a great time, when they passed one of the county cops, down the road there, by the cemetery. He saw this carload of Indians dressed up in feathers and paint, so he pulls out behind them and turns on his lights. He told the paper that he clocked those kids at just over a hundred miles an hour when they hit the end of the pavement. Nothing was going to stop them. You can see how they skidded through this last turn before they hit the water. As for the cop, he slammed on his brakes just in time. The last thing he saw was the Impala’s taillights going out of sight underwater. Cop said he could still hear the drumming and the sound of those boys singing as the lights disappeared, right out there.”
Michael heaved a rock out over the lake. After a while there was a little splash.
“Cop said, ‘Never see those boys again. They were going back to Elbowoods.’”
CHAPTER II
Savages and Infidels
“We saw that the white man did not take his religion any more seriously than he did his laws, and that he kept both of them just behind him, like helpers, to use when they might do him good. These were not
our ways. We kept the laws we made and lived our religion. We have never understood the white man, who fools no one but himself.”
PLENTY COUPS, CROW
Like a fall chinook swimming home after years at sea, the white Subaru station wagon navigates the early-morning traffic in Portland, Oregon, purposefully thrusting its nose into the oncoming current. Ever since Raymond Cross was learning to swim in the back eddies of the Missouri River, half a mile from his childhood home in Elbowoods, his instincts have steered him into life’s stronger currents. This is a law of nature he learned early on from his father, Martin Cross. Slack water inevitably leads to a blocked pathway and stagnation. The strongest current runs right alongside it, and while its resistance poses another set of challenges, it always points to the open channel—free-flowing water and possibilities.
For Raymond Cross, the early-morning drive through Portland’s busy downtown streets is a homecoming of sorts. He fought his first big legal battles in this city back in the late 1970s. He likes Portland and has always felt at home here. This is a clean, well-lit city known for its progressive politics, urban-growth boundaries, and a diverse, open-minded citizenry.
Throughout his life, Raymond Cross has consciously made choices that oriented his intellect and energies to the open channel, to the future. “The older I get, the less use I seem to have for the past,” he says, in a rare moment of self-revelation. “The truth is, I never had much use for it to begin with.”
When Cross was still in his twenties, federal courtrooms in Portland became his doorway to the future. Doorways alone, however, were not enough to ensure a young lawyer’s passage into the rarefied world of federal statutes and Indian law. By fate and good fortune, generous judges were willing to hold the door open while the young Mandan attorney, fresh out of Yale Law School, polished his legal education in their courtrooms. Thanks to that mentoring, particularly by a federal district judge named Gus Solomon, Cross won his first major legal victories here.
But on a November morning in 2001, those victories seem like the outcome of battles that took place a lifetime ago. Much has changed in twenty-five years. Raymond was single then, and maybe thirty-five pounds lighter. Now he is married with two kids, and as a law professor at the University of Montana in Missoula, he himself is a mentor to a new generation of legal eagles. Much of the cityscape that passes by his window is in sync with his memory, but regardless of his physical surroundings, the intellectual carnival in Raymond Cross’s mind, with so many interesting booths, spinning lights, and alluring rides, will always be his primary preoccupation. That is why he shaves no more carefully today than he did when he was twenty-nine, leaving errant tufts of whiskers on his chin and jowl. And he is still famous for arriving at airports with neither luggage nor tickets, details that somehow go missing with predictable regularity. These are the stories families tell, fables that are embellished around kitchen tables in order to keep their most extraordinary members human sized.
This trip to Portland is a mix of business and pleasure. Months ago, officials at the Bonneville Power Administration invited Cross to hold an Indian law clinic for its legal staff of seventy attorneys. The BPA, as the agency is better known in the Pacific Northwest, sells and distributes electrical power generated by hydroelectric dams in the Columbia River Basin. Dozens of BPA dams, large and small, are scattered across a diverse geologic region, a contiguous five-state area roughly the size of France. Beneath the agency’s wide net are the homelands of dozens of federally recognized treaty tribes. With five state governments, hundreds of cities and municipalities, and dozens of tribal councils involved in the agency’s decision-making process, the region has evolved into a legal crazy quilt of overlapping treaty provisions, state laws, federal statutes and environmental regulations, and competing jurisdictions. While the Columbia Basin accounts for a small percentage of the 600,000 miles of American rivers that have been bottled up behind the 75,000 dams on the National Inventory of Dams, the BPA network—with its Grand Coulee, John Day, the Dalles, and Bonneville dams built like stair steps to the sea—is among the nation’s largest.
This powerful and intricate hydroelectric system, tapping energy released in water flowing from hundreds of tributaries and mountain lakes, also happens to be the principal route of migration for more than a dozen native stocks of salmon and oceangoing steelhead trout. After completing a three-year round-trip to Japan and back, a sockeye salmon returns to its home waters at the Columbia’s turbulent mouth, near Astoria, Oregon. From here, the twenty-five-pound adult will travel nine hundred miles up the river, climbing from sea level to seven thousand feet to spawn in high mountain lakes in Idaho’s Sawtooth Range. At every turn in this journey, dams lengthen the odds against nature’s intended outcome. Millions of dollars and decades later, marine biologists studying these fish have concluded that the damming of the Columbia and its tributaries has brought many native species, such as the sockeye, perilously close to extinction. Chinook salmon, a species which numbered as many as 50 million a century ago, dropped below 50,000 in the year 2000.
When the first large dams were built on the Columbia at midcentury, salmon appeared to hold their own. But as soon as the Army Corps of Engineers built five more dams in the 1960s and 70s on the Columbia’s main tributary, the Snake River, fish counts plummeted. The Snake was also the main corridor to the largest salmon spawning ground in North America. That corridor was now blocked. Several Columbia Basin stocks, such as the Snake River coho salmon, were declared extinct by the 1980s. Tens of millions of salmon-recovery dollars later, in August of 1991, a lone sockeye salmon returned to Redfish Lake in the mountains of central Idaho. Over the growing protests of industry and agriculture, marine biologists at the National Marine Fisheries Service, the agency charged with monitoring fish populations in federally controlled waters, closed out the twentieth century by declaring a dozen native stocks in the Columbia River Basin as endangered species. All twelve, said the scientists, were on a trajectory leading to imminent extinction.
This rash of listings instantly became a point of no return in the growing crisis over what to do about dwindling fish counts. The moment these stocks were declared endangered, nineteenth-century treaties with Columbia River Indian tribes were back on the table. When the federal government negotiated these treaties in exchange for land concessions 150 years ago, forward-looking tribal leaders such as Chief Seattle insisted on provisions which guaranteed their descendants a right en perpetua to maintain a tribal fishing economy on their ancestral waters. When the salmon were declared endangered, by inference so were the treaties. The problem for the federal government and the BPA was now twofold. These fish were protected from man-made causes of extinction by the Endangered Species Act, a law with jaws of steel that was passed by Congress in 1973. Similarly, treaties with the Columbia River Basin tribes were protected by Article VI of the U.S. Constitution as “the supreme law of the land.” This supremacy clause, relating specifically to treaties, was approved by the original thirteen states in 1789. To the dismay of state governments, industry, and agriculture, these two separate protections combined to erect a formidable legal bulwark around the fish and the tribes in the year 2000.
In this new predicament, the BPA was itself a fish out of water. The agency was suddenly obligated to mediate conflicts between the competing interests of a dozen separate entities, including states, tribes, city and county governments, and industry, transportation, and agriculture. Almost overnight, the agency went from being a distributor of watts, volts, and amperes to being the spider at the center of a web of bewildering legal complexities. When the National Marine Fisheries Service unveiled its long-awaited recovery plan for salmon in July 2000, the formal announcement was prefaced with a telling disclaimer. No model was known to exist, said NMFS officials, for reconciling the mind-boggling array of competing legal demands at play in the Columbia River Basin.
Setting the fish aside, the recovery plan’s legal aspects represented a daunting, if not imp
ossible, challenge for the BPA. Compounding its task, the agency found that few of its attorneys had any formal training in federal Indian law. In hopes of closing that gap, they asked Raymond Cross to come to Portland to help them begin sorting out the agency’s responsibilities to the Columbia Basin’s treaty tribes. Specialized legal concepts such as “domestic sovereign nations” have helped to make Indian law the most Byzantine branch of federal law, one that confounds even Supreme Court justices with its history of contradictory and nuanced precedents. In the past two centuries, the high court has heard more than fourteen hundred cases involving Native American sovereignty and jurisdiction.
Despite this high visibility, federal Indian law until recently was the exclusive domain of a small but brilliant group of white men; legal theorists such as Felix Cohen, author of the Handbook of Federal Indian Law, and Charles Kappler and Francis Paul Prucha, the leading twentieth-century authorities on the 370 active treaties that legally bind members of the national legislature, as the trustees, to the 2 million citizens of Indian Country.
Then, a hundred years to the day after U.S. Army general William Tecumseh Sherman sued Chief Red Cloud for peace at the treaty council of Fort Laramie in November 1868, Richard Nixon was elected to the White House. This event heralded a new era in Indian Country, particularly in the once rarefied arena of federal Indian law. Raymond Cross’s generation was the first to benefit, intellectually and materially, from radically progressive reforms introduced into federal Indian policy by the Nixon administration. Making good on a promise to Native American leaders, Richard Nixon became the first sitting president to deliver a speech to Congress on the subject of federal Indian policy and Native American rights. Calling the Termination Era of the Eisenhower years “a shameful disgrace,” Nixon challenged Congress to turn a new page in the “long and sorry history of Indian affairs” by reaffirming the sanctity of treaties and tribal sovereignty, and by taking measures to permanently safeguard tribal self-determination in all domestic affairs.
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