Coyote Warrior

by Paul Van Develder

  Between the lines, Congress had cut a deal with itself. Lawmakers were not going to get lured into a trap that tangled them up in the finer points of the law. The 5-million-dollar compensation package was intended to cover all bases. Not only would it have to compensate them for their land, but it would also have to cover the relocation and reconstruction expenses for more than four hundred families, in addition to rebuilding schools, hospitals, and roads. Congress had chosen to ignore the valuations provided by private appraisers, who had already estimated the value of the bare land at 21 million dollars. The $150 an acre figure Martin Cross had cited three years earlier to O’Mahoney’s committee as the value of an acre of bottomland had now been reduced by Congress to less than $15. And be forewarned, said the bill’s fine print, this is the best offer you are going to get. And one last thing, said Congress. The tribes had five months to consider the offer. Congress wanted an answer no later than June 1, 1948. If the tribes failed to accept the offer, the money would revert back to the federal treasury, and the council could then take its chances in the court.

  The take-it-or-leave-it subtext conveyed by this offer was deeply unsettling to the Tribal Council members. Privately, Martin Cross knew the tribes had run out of options. The future that looked so promising after his first trip to Washington in October 1945 had been systematically eroded by political forces that proved greater than the tribes or their allies. The Bureau of Indian Affairs had become a liability. Now, under a vicious attack by western congressmen such as Senator Arthur Watkins of Utah, Congress appeared more determined than ever to abolish the agency altogether. With the lieu-lands provisions now null and void, the tribal councilmen searched one another’s eyes. Each of them knew that from this day forward, the people of the Mandan, Hidatsa, and Arikara nations were in a losing race against the white man’s clock.

  Phyllis Old Dog Cross turned seventeen in January 1947, the same year Congress gave the Army Corps of Engineers the final go-ahead to build Garrison Dam. It would be her last winter in Elbowoods. When the search for lieu lands failed, the early optimism her father expressed about stopping the dam suddenly began to diminish, before finally fading out altogether. The twelve-hundred-square-foot Cross house was now home to ten people. Her father’s mood was gloomy, day in and day out. Determined to go to nursing school that fall, Phyllis worked every day that summer chopping fence posts in the woods by the river, earning a dime per post. This was the first “folding money” she had ever called her own, and she never worked that hard again. But she knew she came from a long line of strong-willed, tough-minded women. If she had to work twenty hours a day through the summer in order to go away to school, then that was what she would do.

  “The dam had gradually taken over our dad’s life,” says Phyllis. “Mom was getting more and more withdrawn. By the time I left home, her only social activity was the school. Their common ground had gotten smaller and smaller.”

  Martin Cross must have sensed that his marriage was adrift. When he came up for reelection early in 1948, he made an unexpected decision not to seek another term on the Tribal Council. Martin stuck to that decision despite the pressure that was brought to bear by the elders. The four years he spent fighting the dam, since early 1944, had been an education in the ways of the white man’s world.

  “Mom and Dad were two very complex people, trying to mesh their lives as best they could,” says Marilyn. “By nineteen forty-seven or forty-eight, there were too many forces out there working against them. Dad loved to play the saxophone, and Mom played the accordion and the banjo. After Forrest died, they never played together again.”

  “It doesn’t take long for politics to turn you into something your family doesn’t much like anymore,” reflects Michael. “Dad got progressively harder to get along with. He could be a bear at home with us kids, but he was so effective in public as a politician. He was caught between the past and the future, and between dual personalities, and between responsibilities to his family and his responsibilities, as Old Dog’s son, to the tribe. I think his life just got more and more impossible.”

  All things that rise tend to converge. When the search for lieu lands collapsed and her father left the Tribal Council, Phyllis, like her mother before her, enrolled in the nursing program at St. Alexius Hospital in Bismarck. Unlike her mother, Phyllis was determined to finish the program and not return to Elbowoods. When the day finally came to leave home, her mother and father gave her a ride as far as Garrison. From there she caught the bus to Bismarck.

  “I knew I had to get out, but I also felt like I was deserting my little brothers and sisters. When they left me at Garrison, they looked back through the window with their beautiful little innocent faces, waving their little hands. I thought my heart would break.”

  Phyllis got on the bus wearing a new pair of mail-order shoes that she had purchased from a Sears catalog for $2.50. She wore a new calico dress sewn by her mother, and the suitcase she checked through to Bismarck contained all her worldly belongings. “I took a seat toward the rear of the bus and looked out the window. When the bus pulled onto the street and turned away from Elbowoods, it hit me all at once. I couldn’t believe it. There I was, alone in the world for the very first time in my whole life, heading off into the unknown.”

  Phyllis settled quickly and easily into her new life at the hospital. The dormitory itself seemed luxurious compared to the world she had left behind. Water came out of faucets, she could take a warm bath every night, and there was central heat and electric lights in every room. Her first paycheck for a month’s work came to $191, a sum that made her rich beyond her wildest imaginings. She sent money home to her mother every month, completed the three-year nursing program in just two, and still graduated at the top of her class. The nuns at the hospital were very strict, but Phyllis thrived in the regular routine of hospital life. Soon she made new friends in Bismarck, started going to picture shows, and volunteered to work extra shifts at the hospital on the weekends. As the months went by, the world of her childhood drifted farther and farther away.

  “The trip home was just a hundred miles, but it would take all day,” remembers Phyllis. “When I went back at Christmas, in 1947, I couldn’t believe it. So much had changed, or the way I was seeing it had changed. That trip home was very hard for me. Then Mom told me she was pregnant again. I thought, when is this ever going to end? I couldn’t wait to get back to Bismarck.”

  The nine communities of the Three Affiliated Tribes voted on the compensation package in May 1948. Congress’ offer was accepted by 625 of the 960 eligible voters. There were notable holdouts, such as Lillie Wolf, who years before had gone door-to-door collecting dimes and nickels to pay for train tickets to Washington. She spoke for many when she told the tribes’ new chairman, George Gillette, “I will not accept any money from the sale of the tribal land and timber. I refuse to sell my share.”

  The tribe was face-to-face with a “prisoner’s dilemma.” Gillette felt he had little choice but to argue in favor of accepting the offer. At the very least, he could argue that the contract guaranteed the tribes’ grazing rights, and hunting and fishing rights, in the taking area. It also protected the tribe’s subsurface mineral rights and promised that if the $5 million proved insufficient for “relocation” costs, Congress would cover the overruns. The official signing ceremony was held in Secretary Julius Krug’s office in Washington, D.C., on May 20, 1948. As Krug fixed his signature to the contract, flashbulbs popped at the moment emotion overwhelmed Chairman Gillette. He buried his face in his hands and wept. The picture ran on the front page of newspapers across the country.

  “As everyone knows,” Gillette told the press following the ceremony, “our treaty of 1851, and our tribal constitution, are being torn into shreds by this contract. My heart is very heavy. What will become of our people?”

  Not everyone in Congress was celebrating the government’s dismissal of its “supreme law of the land” obligations to the Mandan, Hidatsa, and Arikara people.
Yet many of the tribes’ early supporters were no longer in office. A postwar sea change had seen Republicans take control of both houses of Congress for the first time in more than twenty years. For Pick, who had since been promoted to general, this was reason to celebrate. Republican control of Congress was a guarantee that what had been done on the Upper Missouri would not be undone. Besides, a new cadre of anti-Indian legislators, led by the hard-charging senator from Utah, Arthur Watkins, was in control of important committees. With Watkins watching the Indians’ every move from his position as the new chairman of the Select Committee on Indian Affairs, it was generally conceded on Capitol Hill that nothing short of an act of God could stop the Garrison Dam from being built.

  Yet the tribes were not yet completely friendless in Washington. Men such as Senator Langer, O’Mahoney, and North Dakota’s idealistic champion of Indian rights in the House of Representatives, William Lemke, were determined that the $5 million settlement offered by Congress should not be the final word on the abrogation of the treaty made at Horse Creek. As the contract was being drawn up for the signing ceremony in the spring of 1949, Langer introduced a bill that upped the ante by demanding that the tribes be given $1 million in compensation for their flooded land and $30 million in damages for their forced removal. Removal, in context of the bill, was a sanitary euphemism for the abrogation of constitutionally protected treaty rights.

  Langer’s bill sailed into heavy seas from the outset. Though the first draft was rejected out of hand, Langer and Lemke managed to attach a $9.5 million rider to the “takings act” as additional compensation. In committee hearings, Ralph Case produced experts who told Congress that the tribes’ claims in a court case could easily exceed $25 million. The logrolling now began in earnest. In January of 1949, Lemke’s bill called for a compensation package totaling $14.6 million and officially became House Joint Resolution 33. This proposal was immediately referred back to Senator Watkins’s Indian committee in the Senate. There, without explanation, Watkins reduced the House figure to $4 million. After months of haggling back and forth through the summer and fall of 1949, Congress arrived at a compromise package of $12.5 million.

  The committee haggling over compensation was a bitter defeat for Lemke. The rookie congressman was powerless to curb the mean-spirited atmosphere that now prevailed on the Senate’s Indian committee. Nevertheless, Lemke told the House that a great crime was being committed against the Indians. Garrison Dam was probably a mistake to begin with, he said, but the “taking” of treaty-protected lands only compounded the crime. “We are again violating a treaty solemnly entered into with these tribes, a treaty in which we promised never to disturb them again. Unfortunately, the Indians have no choice. There is no honor in this settlement.”

  Watkins’s strong-arm tactics had sent the tribes a clear but subliminal message: take the money. Another round of negotiations in Watkins’s committee would likely cut the figure even further. Martin Cross advised the Tribal Council to throw the entire package back in the laps of Congress and take their chances in the courts. On a hastily arranged trip to Washington in 1948 as an at-large representative for the tribes, Cross told a joint committee hearing that the new “taking” act would most likely be ruled unconstitutional. Yet when Congress’ compensation offer was put to a vote, the tribe approved the latest offer by a thin majority. Members themselves were more deeply divided than ever, a political split that did not bode well for the coming months and years. In the end, Martin Cross set his personal opinions aside and pressed Congress to abide by the will of his people. The official “taking” act, Public Law 437, was signed into law by President Truman on October 29, 1949.

  Lemke’s arm-twisting managed to secure a monetary settlement that was more than twice the original figure. On the other hand, Watkins had succeeded in cutting what they were legally due by half. Now, as far as Congress was concerned, P.L. 437 swept aside any unresolved claims the tribes might have regarding violations of their agreement at Horse Creek. The question that remained was, by the time they were removed from the valley, lock, stock, and barrel; and new homes were built; and thousands of graves were moved to high ground from bottomland cemeteries; and new schools and roads were built, how much of the money would be left in the treasury to assist individuals faced with rebuilding their lives, and communities, from the ground up?

  Human suffering aside, the money had come with hidden costs which slipped through Congress with no discussion. In the compromise that came out of Watkins’s committee, the best parts had gone missing. The tribes’ fishing and hunting rights, the promise of discounted power, and the guarantee of irrigation and of perpetual grazing and mineral rights in the taking area were quietly stripped from the bill. The most sinister wrinkle of all was tucked into the final section by Watkins himself. He emerged from a private lunch with his friend General Pick and tacked a clause onto the end of Section 12 that prevented the Indians from ever using the settlement money to bring claims against the government.

  This issue was close to Watkins’s heart. For years, Secretary Ickes and the Roosevelt administration had denied the mineral industry access to the treasure chest of resources in Indian Country. Now, with the Republicans in charge, Indian Country uranium, gold, copper, oil, zinc, silver, timber, and water fell within their reach. For years, Watkins and Mormon politicians had tried to force the Ute tribe of southern Utah to sell its treaty lands to the state and mining companies. In recent years, lawyers for the tribes had turned the tables on Watkins and his business associates. Federal courts awarded the Ute huge cash settlements for violations of their treaty rights by Mormon settlers and unscrupulous politicians. Watkins and his allies could now get to the agenda they had been forced to postpone when Roosevelt and his commissioner of Indian affairs, John Collier, put Indian Country off-limits to the extraction industries with the Indian Reorganization Act of 1934.

  As the final version of the takings act was being drafted in his committee, Watkins’s colleague in the House, Representative Reva Beck, formally instigated the “Termination Era,” a slate of bills that would clog committee dockets over the next five years with the intention of disbanding tribes and the Bureau of Indian Affairs, and transferring federal control over the tribes to the states. Watkins argued that by stripping the Three Affiliated Tribes of their mineral rights, grazing rights, and hunting and fishing rights, he was simply looking to the future. What sense did it make for Congress to guarantee the tribes’ cheap electricity and irrigation, or protect their aboriginal hunting and fishing rights, when they were already in the crosshairs for termination?

  The predicament that the Three Affiliated Tribes found themselves in was a sign to Senator Watkins that tables had turned in Indian Country. The takings act had been a dress rehearsal for the coming termination battles. Recent judicial history in his own home state had reinforced Watkins’s dim view of federal courts: federal judges could not be trusted. Given its plenary power over Indian Country, Watkins reasoned, Congress alone could determine a just and fair settlement for the Three Affiliated Tribes. While Watkins was busy laying the groundwork for termination, Secretary of the Interior Julius Krug sent a brief missive to Watkins suggesting that a clean sweep of the issues with the Mandan, Hidatsa, and Arikara nations would go a long way toward reducing the likelihood of a protracted showdown in a court of claims at some future time.

  Krug’s cautionary warning prompted Watkins to tell members of his committee to ignore any proposals out of the House that recognized the Indians’ right to just compensation, and to formulate a settlement that reasserted Congress’ plenary authority over the tribes. The trick would be to deny the tribes access to the courts. With luck, Congress could forestall judicial review in a final settlement conference. Although they could not legally deny the tribes access to federal courts, Watkins knew he could effect a similar outcome by cutting off their access to funds for legal representation. When the Select Committee on Indian Affairs completed work on the compromise, Congressman
Lemke read the draft in astonished silence. What he had in his hands bore no resemblance to the bill passed by the House.

  At the same time his committee was clipping the horns of the House bill, Watkins was publicly promising the Three Affiliated Tribes a fair shake in the Senate. Martin Cross alerted Case to be on the lookout for any shenanigans in the Senate, then sat back to wait and see. The chairman’s wait was not a long one. Denying the tribes the right to use settlement money to hire legal counsel was like hanging a padlock on their casket. Not only had they lost their usufructuary rights to hunt, fish, and gather food, but Watkins also eliminated all language from the House version of the takings act that referred to the “abrogation of treaties.” The bill was so radically altered from its original form that the Senate was obliged to give it a new name before sending it back to the House. Now it was simply called, “A joint resolution to vest title to certain lands and to provide compensation therefor.”

  Historian Roy Meyer argues that the $3 million earmarked by the Lemke bill for “consolidation of lands” could have transformed the tribes’ fractionated holdings into economically viable and contiguous units. Instead, Watkins eliminated this line item from the final draft and dug in his heels when the two houses met in conference. As a result of this fierce intransigence, Representative Lemke and his allies failed to get the Land Readjustment Fund reinstated. Members of the House who had worked diligently to write a fair and equitable takings bill were appalled by the bill that emerged from Watkins’s committee. Lemke immediately demanded a new conference. Watkins stonewalled. After the Senate agreed to a final compensation figure of $12.5 million, the House waved a white flag and capitulated.