Coyote Warrior

by Paul Van Develder

  In Cross’s mind, the resolution itself was a wedge that held open the door to the possibility of a full hearing in Congress over the violation of the solemn agreements the tribes made at Horse Creek. When Senator O’Mahoney’s committee had invited the Three Affiliated Tribes to come to Washington to testify, Chairman Cross immediately sent a telegram to Commissioner Brophy requesting him to make a formal appeal to Congress in support of the tribes’ protest of Garrison Dam. Brophy responded to Cross’s second appeal with a more upbeat telegram. This time, the commissioner promised his full and vigorous support in defense of the tribes’ protest. On the eve of their departure for Washington, the council interpreted this as an encouraging sign. Unfortunately, while Brophy was being distracted by congressional assaults on his agency, the Trojan horse of SJ Res. 79 had already slipped through the gate.

  When Martin Cross stepped into room 424 of the Senate Office Building, he was immediately buttonholed by Brophy’s assistant, Walter Woehlke. Was the memorandum to Congress written? Cross asked Woehlke. Yes, said Woehlke, it was written, but complications had arisen regarding SJ Res. 79, complications that prevented the commissioner from signing his own memorandum. The memo was written and ready to deliver, but attorneys on the Water Resources Committee at the Department of the Interior warned Brophy that if he followed through with his memo, he could expect another round of attacks on the BIA from hostile western senators.

  In other words, Congress’ tacit threats had succeeded in silencing the Indian commissioner. The Indians would get their day in Washington, but as an advocate for the tribes, Brophy and the Indian bureau had been cleverly preempted by their foes on Capitol Hill. As Martin Cross stepped forward to take his seat at the witness table, the tribal chairman realized, for the second time in as many months, that the bureau was again throwing in the towel. The agency’s powerful enemies in Congress had quietly disabled the bureau behind closed doors. As he raised his right hand to take the oath of honesty, Chairman Cross had no choice but to take a deep breath and accept the fact that the Mandan, Hidatsa, and Arikara nations were on their own.

  Senator O’Mahoney rapped the gavel, then opened the hearings with a brief statement outlining the purpose of the meeting. He introduced the six committee members who were present and their guest, Lieutenant Colonel Goodall of the Omaha office of the Army Corps of Engineers. O’Mahoney then welcomed the representatives of the Three Affiliated Tribes, and noted for the official record the attendance of Acting Solicitor Felix Cohen and Assistant Indian Commissioner Walter Woehlke. “A delegation of Indians has come from the Fort Berthold Reservation to present the point of view of the Indians with respect to the construction of Garrison Dam,” he explained to the committee members. “Mr. Chairman, would you please take a seat at the table?”

  Martin Cross moved to the center table. Once seated, he squared his broad shoulders to the dais of white men in dark suits. Even seated in a chair, his physical presence dominated the room. After Senator O’Mahoney entered the text of SJ Res. 79, and the previous Tribal Council resolution protesting the dam, into the record, Cross delivered a brief statement summarizing the events that led to this meeting. Then, following through on the agreed-upon strategy, he closed his opening statement by broaching the thorny issue of treaty rights.

  “Mr. Chairman, senators,” began Chairman Cross, “the Corps of Engineers seems to think that the Indian land in the flooded area can be acquired by eminent domain, if necessary. We question the legality of this process on the grounds that the treaty law between the United States government and the Indians is binding, and not subject to eminent domain. Since I have no legal talent, I must rely on other authority to interpret this legal point. I want to come out openly against the construction of the Garrison Dam, not only from the legal standpoint but from destructiveness and the setback of our Indian people. I believe that this group of men, composing this honorable body, are adamant foes of abuse and, being such, that they will not permit the Army engineers to carry out their program, their plan.”

  “Mr. Cross,” said Senator O’Mahoney, “I understand you to say that if the Garrison Dam were constructed, a large amount of that land would be flooded. Is that right?”

  “That is right, about two hundred twenty-one thousand acres.”

  “What is the character of that land?”

  “It’s the best land we have, along the river, the best irrigable land, and most of our homes are situated along this valley.”

  “You say the homes of the Indians are now built upon the land that would be flooded?”

  “That’s right.”

  “How many homes are there?”

  “Of our five hundred thirty-one homes, four hundred thirty-six would be in the flooded area.”

  The committee chairman scribbled a note to himself, then glanced over at Felix Cohen before returning to Chairman Cross. “What you are saying, then, is that three-fourths of the homes of the Affiliated Tribes would be flooded.”

  “That is right.”

  “And you would have to move off and take up your homes somewhere else?”

  “That’s right.”

  “Do these Indians raise agricultural crops?”

  “We raise spring wheat, oats, corn, potatoes, and a little alfalfa. We have a thriving tribal cattle cooperative.”

  “And how much of your land do you use for grazing?”

  “Well, I would say out of the six hundred thousand acres, about half of it is used for grazing.”

  “So, one half of your land is grazing land, the other half is agricultural. And of the agricultural land, two-thirds would be taken if the dam were built,” stated the senator, clarifying his own mental picture of Fort Berthold. “Would the Indians be willing to exchange that land for other land, if other land were available?”

  “No, sir.”

  “I see. What is the value of this land, per acre? Have you any idea?”

  “I’m not permitted to say that,” said Cross. “In my personal opinion, I would say around one hundred fifty dollars per acre.”

  “You say you were not permitted. By whom?”

  “We are not here on the question of selling our land. We want to keep it,” said Cross.

  A murmur swept through the room. Martin Cross’s voice was steely and controlled. Now, his eyes moved from senator to senator. The committee chairman adjusted his glasses on the bridge of his nose as he pondered the approaching impasse.

  “You mean . . . the Indians did not want to disclose the value of their land?”

  “That’s right.”

  Senator Langer of North Dakota suddenly jumped in. “It is not for sale at all?”

  “That’s right,” said Cross firmly. “Senator, with all due respect, I am not here to sell land. I am here to keep the land.”

  Senator O’Mahoney looked up and down the dais. “Are there any other questions?”

  “How long have your ancestors been living there?” asked Senator Langer.

  “From time immemorial we have been living there.”

  As these facts were sinking in, Senator O’Mahoney asked for an explanation of the Army engineers’ rationale for building Garrison Dam. The committee’s counsel reported that the dam’s primary purpose was to form “a reservoir for a flood menace.” It also came to light that thus far, Congress had only appropriated $2.5 million for work on the dam, against a total appropriation of $7.6 million. Once these figures had been reviewed by the committee members, the chairman gave Martin Cross a second breath of life.

  “Of course, nothing can be done to dispossess these Indians without a formal taking of this land,” said Senator O’Mahoney, tipping his hand.

  “It raises pretty much of a legal question,” interjected Senator E. H. Moore of Oklahoma.

  “Well, considering the general disregard of Indian rights, which has characterized our dealings with Indians, I think it’s a very important question,” said O’Mahoney. “What do you stand to gain from this dam, Mr. Cross?”

&
nbsp; “We will gain nothing from this dam but our own destruction,” said Cross.

  “It would not enhance the value of the balance of your land?” asked Senator Moore.

  “No, sir, it would not.”

  “I want to say,” began Senator Langer, “as a member of this committee, that I know these lands. Everything Mr. Cross has said is absolutely true. This dam would take by far the best land and leave the tops of the hills, which will not begin to compare with the soil in the valley.”

  “That is right,” said Martin Cross, clearly appreciative of the sympathetic support from his own senator.

  The committee then heard brief statements from Jefferson Smith and Councilman Earl Bateman, who told the committee that the Tribal Council’s recent resolutions in opposition to the dam “contain some records relative to the treaties of 1851 between the Government of the United States and the three tribes—the Arikara, Gros Ventre [Hidatsa], and Mandan.” Furthermore, said Bateman, the land near the Killdeer Mountains that the Army engineers had proposed to exchange for the land that would be lost to flooding was completely unacceptable. Chairman Cross agreed, telling the committee that the land where the Corps proposed to relocate the tribes was “fit for rattlesnakes and horned toads,” but not for humans.

  Senator O’Mahoney then asked Assistant Commissioner Woehlke to present the position being taken by the BIA. Cross braced himself for bureaucratic double-talk, but to his surprise, despite the phantom memo, Woehlke made a strong defense of the tribes and successfully thwarted open hostility from several members of the committee. It had long been the agency’s position, began Woehlke, that the Sloan Plan was the only responsible answer to the chronic water-management problems on the Missouri River. Conversely, in the opinion of both the BIA and the Bureau of Reclamation, the Pick Plan should never have seen the light of day. Weathering a torrent of hostile questions, Woehlke offered an explanation of the agency’s reasoning. First, there was not nearly enough money allocated by Congress for the Garrison project to compensate the Indians for their potential loss of land. Second, as Secretary Ickes explained to Congress and President Roosevelt in his report earlier that summer, just ten years earlier engineers in both water agencies had concluded that Garrison was an unnecessary extravagance. Building the dam would devastate the lives of the people who had lived in that valley for a thousand years. Woehlke concluded his remarks by saying that the BIA was in complete agreement with the secretary of the interior. Garrison Dam was a boondoggle from top to bottom, one that needed to be killed before the Corps had a chance to turn its first shovelful of dirt. If and when that happened, warned Woehlke, it would be too late to stop.

  Woehlke’s assault on the Pick Plan came as a complete surprise to the tribal delegates. Chairman Cross was heartened by the force of his arguments. Senators on the committee were now clearly baffled by some of the unresolved legal problems. The chairman then called on Solicitor Cohen for clarification. Cohen knew his audience. As the country’s leading authority on federal Indian law, Cohen staked out the perimeters of the legal battlefield that lay before them, taking pains to underscore the delicate nature of what was being asked of the tribes, and their trustee, the government.

  “These Indians were at their present location one hundred forty years ago, when Lewis and Clark went through that country,” explained Cohen. “They have never been removed from their original homelands. On the specific question of eminent domain, the fact is, whatever moral obligations we may have to respect the homes of the Indians, Congress has the authority to condemn allotted lands. It also has the authority, under extreme circumstances, to abrogate treaties, whether they were made with foreign nations or Indian nations.”

  However, said Cohen, that was not an end point for the purpose of clarifying the law in this situation. Rather, it should be viewed by the committee as a starting point, which is why the treaty business gets so sticky. Cohen explained that Congress made a very bad and fateful decision when it turned its back on Marshall in the 1880s and opened Indian lands to private ownership. The Dawes Act effectively divided the ownership of land between private land and trust lands. Now, the two kinds of titles were hopelessly intermingled. In creating two kinds of status, the government laid a trap which it could not avoid springing on itself. Congress, explained Cohen, cannot condemn lands it holds in trust for the Indians as a trustee. Yet faced with this dilemma, every time the government wants to build a road or a dam or an irrigation project across Indian land, lawmakers have to decide which of their own laws they want to break. “As far as I have been able to determine,” concluded Cohen, “Congress never has authorized condemnation of tribal lands, as distinguished from allotted lands.” In other words, condemnation of trust lands was not legally possible.

  “And this is tribal land?” asked Senator Moore.

  “Some is tribal, some is allotted.”

  “And the rights of the Fort Berthold Indians to ownership and control of their land was recognized by this treaty?”

  Cohen held up the frontispiece map in the 1945 edition of the Handbook of Federal Indian Law, showing the lands set aside for the Three Affiliated Tribes by the Fort Laramie Peace Council. “As a result of a series of cessions, they now have a small remnant of the land which was once theirs.”

  “Did Congress recognize specific boundaries, or did the Government of the United States recognize specific boundaries in this treaty?”

  “Both. An executive order on April 12, 1870, defined the boundaries very specifically.”

  Senator Moore and others seemed thoroughly confused by the distinction between allotted lands and trust lands. Cohen conceded that allotted lands could be condemned by Congress without any further action. Conversely, trust lands were held in common ownership by tribal members, with the federal government as the tribes’ trustee. Fort Berthold was a checkerboard of allotted and trust lands. Setting aside the moral considerations, the legal problem that now confounded the committee was how could they go about flooding one type of land without flooding the other? The chairman thanked Cohen, who promised a written memorandum on the question of condemnation of trust lands, and then returned to Martin Cross.

  “Mr. Cross, let me say to you and your delegation that this committee will pursue this matter further as soon as we have received the memorandum from the Department of the Interior regarding the legal phases of the treaty. It is my opinion at the moment that you can tell your Indian fellows that these lands cannot be taken away from you without the passage of a special act of Congress authorizing the condemnation.”

  “Which is the problem,” said Senator Moore. “We can’t very well inundate allotted lands without inundating trust lands.” And, by inference, Congress was legally barred from inundating trust lands by their obligations as trustee to the tribes.

  “That is so,” said Senator O’Mahoney. “At this time the committee will stand adjourned.”

  Felix Cohen was at work on a report to the committee before the delegates from Fort Berthold had arrived back in Elbowoods. Cohen’s memorandum was distributed without delay to members of Senator O’Mahoney’s committee. The tightly worded analysis attempted to fully explicate the narrow range of issues the committee had been dancing around during the hearing. In a famous turn-of-the-century case known simply as Lone Wolf, the U.S. Supreme Court had ruled that Congress indeed had the plenary power over the tribes and could legally abrogate the Fort Laramie Peace Council. But there was a fly in the ointment, cautioned Cohen. Congress indeed possessed the plenary power to abrogate ratified conditions agreed to at the Fort Laramie Peace Council. However, he cautioned, it could only do so by simultaneously violating its legally binding responsibilities to the tribes as trustee for the tribal commons. In other words, the federal “trust doctrine” clarified by Justice John Marshall a century before acted as a preemptive check on Congress’ broad authority.

  As for the sanctity of treaties, Cohen reiterated the position of former attorney general William Wirt, who had told Co
ngress a century earlier that “so long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive, and there exists no authority to enter upon their lands without their consent.”

  The Wirt Principle, Cohen explained, constituted a guarantee to the tribes from the federal government against any future taking of Indian land, for whatever purposes. Wirt had intentionally set a high bar in order to discourage state governments and opportunistic lawmakers by making it clear that tribal land “has always been sacred and can never be disturbed but by their consent.” As a coda to his own remarks, Cohen added that Attorney General Wirt’s axiom was also articulated in the text of the Fort Laramie Peace Council. “[The tribes] do not hold under the States,” concluded Wirt, “nor under the United States; their title is original, sovereign, and exclusive.” It was Cohen’s opinion that Wirt’s exegesis on tribal sovereignty of “domestic dependent nations” was an exquisite articulation of what might better be called the Marshall Doctrine.

  This was the sort of problem that untethered the Corps’ chief administrators from their legal moorings. The Army’s engineers were in the business of taming rivers, not interpreting the law. Consequently, it came as no surprise to Felix Cohen in the late summer of 1945 when he learned that the Corps had begun construction on Garrison Dam without receiving the first word of approval from Congress. The Corps viewed final approval as a formality. Yet after a careful review of Mr. Cohen’s memorandum, O’Mahoney’s committee voted to attach a rider to a deficiency appropriations bill then moving through Congress. This last-minute addendum, rubber-stamped by Congress on December 28, 1945, stipulated that no money could be spent on the construction of Garrison Dam until the tribes had been given suitable and sufficient land in exchange for the land they would lose to the flood. The Corps, however, took that to mean that they could go ahead and build the supporting infrastructure, such as new towns for all the workers and rail spurs to bring in material. Congress was simply delaying the actual excavation of dirt.