“You didn’t have to spend more than one winter there to know that nobody could survive that country on top. When I saw the lake for the first time, I was stunned. We destroyed hundreds of square miles of beautiful river bottomland. What a terrible thing. We gave them no choice.”
The clouds of red dust streaking the sky above the town of Garrison in the autumn of 1951 put farmers in a state of giddy excitement. The dam taking shape beneath those streamers was an answer to their prayers, a long-awaited reward for hard work and sacrifice. Their bone-breaking, mind-numbing trials on the Upper Great Plains were about to come to an end. White-knuckled men behind plows had outlasted the demons of the natural world. God and Governor Aandahl had intervened. Surely, if not next year then the following, Pick-Sloan irrigation would turn their prairie into a garden of plenty.
For Martin Cross, the red sky above the sandstone bluffs east of Elbowoods spoke of something quite different. In a letter to Robert Yellowtail, the tribal chairman of the Crow tribe in eastern Montana, Martin predicted that what was being done to the Three Affiliated Tribes was only the beginning for tribes on the Missouri and elsewhere—a prediction that would prove prescient.
Martin Cross’s intended hiatus from council work was short-lived. Judging from the stack of letters in his desk drawer, the stubs of train tickets, and the nonstop parade of tribal members through the Cross family living room, Martin was spending as much time on tribal business as he had when he was chairman. The intensifying crisis between Elbowoods and Washington suddenly mushroomed from a small taking on the Upper Missouri to a full-scale assault on treaty rights of the Yankton, Brule, Standing Rock, and Cheyenne River Sioux, and the Arapaho, Shoshone, Chippewa, Blackfeet, Crow, Cree, and Assiniboin. As Pick-Sloan’s consequences for Indian Country became clear, tribes across the nation began following every turn of events on the Upper Missouri. The escalating conflict was transforming Martin Cross from a small-time Indian rancher into a national leader for Indian people.
Martin’s friend and mentor, Robert Yellowtail, had been beating the drum for strong leadership in Indian Country since the release of the 1928 Merriam Report. A self-taught lawyer who passed the bar without the benefit of a formal education, the elder Yellowtail took Cross under his wing. As new elections approached for the Three Affiliated Tribes, he wrote Martin a personal letter in April 1953 from his home in Lodge Grass, Montana, and appealed to Cross’s sense of duty: “Native Indian leadership is what the Indians need right now . . . when their political, constitutional, and treaty rights are being assaulted by white men. Get that, Martin, as your people look to you for intelligent and effective leadership.”
Though he was off the council between 1947 and 1950, Martin made numerous trips to Washington for the tribe. These sojourns took him away for weeks at a time, leaving the care of the home and ranch to Dorothy and the older children. Increasingly, his work for the council competed with his responsibilities at home, a daunting conflict that left his loyalties hamstrung by quandary. In the end, the more visible and urgent needs of the tribes won out. Willy-nilly, the small-time rancher from Elbowoods had become one of the most recognized and respected Native leaders in the United States. At home, he was the most trusted leader the three tribes had known since they were led by his father. On any given evening, elders and clan leaders would start knocking on the Cross’s front door right about dinnertime. Without fail, guests were offered a meal and a seat at the table, and it was not uncommon for them to linger in the front room into the wee hours of the morning, discussing politics and the dam. Then, first light often arrived accompanied by the sound of typewriter keys banging away in the living room at Martin’s makeshift desk, which he set in front of the window beside the old cherrywood radio. Cross wrote thousands of letters on that typewriter. A stickler for accuracy and standards of professionalism, he seldom let an official letter leave his desk with a typographical error or a misspelled word. In her final years of high school, his daughter Marilyn helped him proof hundreds of letters.
“I think he knew nothing would ever be simple again,” reflects Marilyn. “By 1951, he was fighting to salvage a piece of his pride, and to live up to his father’s name.”
Martin won his early political victories by arguing that Indians could only succeed in the modern world by closing the economic gap that separated them from white men. His experience with Congress had revised his views. Now, in a letter distributed to all the tribes on the Missouri, he called for formation of a Missouri Valley Indian Defense Committee to “try and control the whims and fancies of the starry-eyed politicians . . . who think they are Davy Crocketts or Indian fighters who still think the Indian’s rights are an impediment to the progress of the nation and should be wiped out.” Better than anyone in Indian Country, Cross knew that their fight was not simply an isolated showdown over a single dam. The outcome of this battle would most likely have an adverse and lasting impact on tribes living beside every major river system in the western United States.
When Martin Cross returned to the council following the tribal elections in 1950, he was more convinced than ever that the takings act was unconstitutional. Their only way out now was to turn to the courts. The fundamental problems with P.L. 437 grew out of the very nexus of concerns that were first articulated by Felix Cohen in Senator O’Mahoney’s committee six years before. While various drafts of the act bounced around in committees, Cohen’s caveats were consistently ignored by a Republican-controlled Congress that was determined to abolish the Bureau of Indian Affairs. The deteriorating situation at the BIA left the Three Affiliated Tribes dangerously exposed to the whims of senators such as Arthur Watkins and his close ally from New Mexico, the tall, silver-haired, smooth-talking power broker Clinton Anderson. Underscoring those threats were the widely reported remarks of President Truman’s new commissioner of Indian affairs, Dillon Myer, who told the New York Times that his primary objectives were to “end the federal trust relationship with the tribes” and to work himself out of a job.
Lawmakers like Watkins and Anderson could hardly contain their glee. They now had an ideological cohort at the Bureau of Indian Affairs, and they intended to help him accomplish his goals as swiftly as possible. With a little cooperation from fellow lawmakers, the decommissioning of tribal governments could begin within the next two years. Every field office of the BIA was instructed to draw up plans for turning its agency over to state governments. Robert Yellowtail and Martin Cross wrote an open letter to tribal leaders charging that white politicians viewed “Indians with their tax-free land holdings as a thorn in the flesh of the states.” This long-festering resentment had been aggravated by white politicians who allowed that the general public was “to forget that the United States practically stole everything, including the lands of the Indians from coast to coast.”
Without mentioning the new commissioner by name, Felix Cohen and former secretary of the interior Harold Ickes joined forces to publicly lament what they called “the banality of evil” on Capitol Hill. Cohen told the Washington Post that Dillon Myer’s appointment to the BIA gave Congress and the agency license “to disregard past promises, and to repeat past mistakes, without awareness of either.” Soon, citizens of Indian Country would lose their greatest advocate in modern times.
Just months after Harold Ickes passed away from old age in 1952, Felix Cohen succumbed to lung cancer at the age of forty-six. In his brief life, he had done more to protect the sanctity and civil rights of tribal cultures than any other jurist since John Marshall. In the foreword to the first edition of his compendium on federal Indian law, Cohen summarized the focal point of his philosophy with great brevity: “The American Indian is the miner’s canary of our society.” His old friend John Collier, the former commissioner of Indian affairs under Franklin Roosevelt, spoke for Indian Country when he eulogized Cohen’s passing: “Felix’s death has shattered me as no death since my mother’s and father’s. . . . The agony is on account of all the Indians, but it is more. Felix was m
y highest experience of the power of thought united with disinterested power of action.”
As things went from bad to worse in Washington, the council’s festering doubts about their attorney, Ralph Case, came to the fore. Some suspected that Case had been co-opted early on by the Pick-Sloan people. He never seemed to grasp the tribes’ attachment to their homelands. In Case’s mind everything had a price tag, including their land. Shortly after Martin Cross returned to the council in 1950, the tribes canceled their contract. The only hope for the future was to find someone now who could think like an Indian. Felix Cohen had once urged Cross to contact Cohen’s good friend and law school contemporary, James Curry. Curry had helped Cohen and former BIA director John Collier to establish their tribal governments under the Indian Reorganization Act of 1934. The tall, bespectacled Indian law expert had emerged in recent years as a fearless and formidable advocate for Indian rights. Working with numerous western tribes, Curry had become as familiar with the arcane ins and outs of federal Indian law as any private solicitor in America. Cross now moved quickly to retain Curry’s services. But unbeknownst to either man, Curry was a man with a price on his head. He was already in the crosshairs of the new commissioner at the Bureau of Indian Affairs, Dillon Myer.
Dillon Myer’s new strategy for isolating the tribes and minimizing the effects of “hired guns” such as Cohen and Curry was to take control of the tribes’ source of funds. In 1951 Myer began notifying tribes that money for private counsel would no longer be made available. Felix Cohen had incensed the new commissioner by offering his services pro bono to the Blackfeet in Montana. In an interview with the New York Times in November 1951, Myer explained that taxpayers’ dollars were being wasted on private attorneys when government attorneys could better perform the task. To Myer’s great dismay, the public’s outcry was so shrill following the publication of these stories that President Truman’s new secretary of the interior, Oscar Chapman, responded to Myer’s remarks by calling for public hearings.
Chapman’s predecessor, Harold Ickes, had once reminded him that the top post at Interior came with both a legal and moral obligation to prevent people such as Dillon Myer and Arthur Watkins “from stomping on Indians.” While obligations to Indian Country were viewed as an annoyance by Washington bureaucrats, no love was lost between Chapman and Myer. When Chapman scheduled hearings over Myer’s protests, the commissioner’s detractors, including Senator O’Mahoney and Ickes, pressured President Truman to sack Myer before he could cause any more embarrassment. Ickes regretted not ending the commissioner’s career himself, when Myer was his subordinate at the Department of the Interior. For Ickes, Myer’s career with the Japanese internment camps, and now with the Indians, represented the darkest side of American racism. In an interview with the New York Times, Ickes described Myer as a “blundering and dictatorial tin-Hitler.”
Myer shrugged off his critics and pressed forward with his objectives. Senators Watkins and Anderson rallied to his defense with the president, but they were powerless to stop Chapman’s hearings, which opened on January 4, 1952, to heavy media coverage. The New York Times’ opening story carried the headline: INDIAN WAR WHOOP MARKS HEARINGS. The whoop, it turned out, was made by Popovi Da, the former governor of the San Ildefonso Pueblo tribe. Popovi Da, an engineer who worked on the atomic bomb at Los Alamos, put a question to the panel that no one seemed ready to answer. “If the government trusted me with its most sensitive wartime secrets, why would it now not trust me to hire a lawyer of my own choosing?”
Thomas Main, a tribal chief of the Gros Ventre tribe from Fort Belknap in central Montana, followed Da with an assault on Myer’s policies. “We Indians in Montana thought we were making real progress towards freedom until a couple of years ago. Then something happened . . . and during the last couple of years that attitude of paternalism, treating us like prisoners in a concentration camp, has become the attitude of the Indian bureau.”
Myer rose from his seat and stormed out of the hearing, refusing to return. The hearings went on without him for several more days, but despite a tidal wave of negative press, the commissioner weathered the storm by falling in behind an impregnable wall of western congressmen who fully supported his policies. When Chapman’s hearings ended, Myer redoubled his efforts against what he called the “wily Indians and their champertous attorneys” and issued a blanket policy that prohibited the tribes from hiring their own attorneys. In a note to Watkins, Myer justified his policy on the grounds that he was simply performing his “statutory duty.” As far as Watkins was concerned, Chapman could hold hearings until hell froze over. Myer’s new policy was the final word.
Ideologically, Watkins and Myer were as close as Siamese twins. A third-generation corn farmer, Myer was born in Licking County, Ohio, in 1891. His paternal grandfather turned virgin sod when Licking County “abounded in snakes, wolves, and Indians.” Methodism and self-reliance, honesty and thrift were the core values that forged the young Myer and his views of the world. As a grown man, Myer never doubted that he knew what was best for the Japanese, and later, for the Indians. Consequently, every victory by Curry or Cohen was seen by Myer and his allies as a challenge to the government of the righteous. The commissioner had no intention of allowing attorneys in his bureau to argue tribal claims in federal courts.
Ignoring Myer’s new policy, the Three Affiliated Tribes’ new counsel made one reading of P.L. 437 and demanded new hearings on Capitol Hill. In a twist on the legal paradox first illuminated by Felix Cohen’s memorandum to Senator O’Mahoney’s committee six years earlier, Curry realized that the “settlement” in the takings bill was a fiction masquerading as law. The government had neither paid the tribes for their trust lands nor compensated them for violation of their treaty rights. Instead of resolving its constitutional dilemma, Congress’ P.L. 437 had put the solution to both of these paradoxes out of reach. The trust lands had been taken in violation of constitutional guarantees, and private lands had been taken without “making the citizens whole,” or paying them fair market value for their land, as required by the Fifth Amendment.
At Curry’s urging, the Tribal Council filed a new claim with the Indian Claims Commission in May 1954, seeking compensation for the illegal executive orders of presidents Grant and Harrison, which reduced the tribes’ land holdings by 6 million acres in the 1880s. The orders were made on behalf of homesteaders and railroads. Regardless of the rationale, the U.S. Supreme Court had since ruled that presidents were prohibited from changing a treaty without the approval of Congress. The picture in Curry’s mind was beginning to clear: P.L. 437 was simply a new violation to be added to a long list of actionable grievances. Unless this cycle could be broken, the pattern would go on repeating itself until there was nothing left in Indian Country.
As the eviction of the Mandan, Hidatsa, and Arikara people from the bottomlands began accelerating in 1952, the eastern press started picking up the story. Reporters such as Ruth Mulvey Harmer of The Atlantic Monthly were beginning to ask embarrassing questions by linking various committee chairmen in Congress to policy decisions being issued by Dillon Myer. She also pointed out that the timing of Myer’s nationwide “removal policy” happened to coincide with the eviction of the Mandan, Hidatsa, and Arikara people from their ancestral homelands. The Department of the Interior’s own in-house sociologist, Gordon Macgregor, reported to Congress that the people and the land on the Upper Missouri River “form an inseparable unit. These Indians were never assigned this land, or forced to reside on it as prisoners of war. This was the land of their ancestors, where they farmed and hunted long before the coming of the white man.”
Sympathetic accounts of the plight of the Three Affiliated Tribes suddenly began appearing under bold headlines in newspapers around the country, including the New York Times, the Minneapolis Star Tribune, and the Chicago Tribune. In her fearless attack on Myer and Congress, Harmer concluded that while “termination” and “removal” were both immoral and unconstitutional, they pale
d in comparison to what was happening on the Upper Missouri, where actions by the federal government had resulted in “one of the most extraordinary forced migrations in history.” Echoing Curry’s opinion, Harmer and others asserted that Congress’ passage of the takings act in 1949 had shredded the tribes’ constitutional guarantees.
John Marshall had tried to keep the Indians’ aboriginal title intact by incorporating Indian lands under the umbrella of federal trust doctrine. In practice, the trust doctrine created what legal experts called “high spots,” or pressure points, that had the unintended consequence of eroding stable and consistent policies between the tribes and their federal trustees. Commonly, these high spots were felt in conflicts that triangulated the competing interests of the federal government, their Indian wards, and the states.
Marshall’s difficulties arose from the fact that the federal government recognized tribes as independent nations. Legally, this made it possible for the tribes to bargain away their land. Marshall recognized that conflicts would inevitably arise between the moral conscience of the courts and the political expediency of lawmakers. In the end, Marshall crafted his solution out of federalism itself by putting the federal government and the tribes in a legally binding partnership. This still left Congress and the courts with the practical problem of guaranteeing the tribes that American society would expand across the North American continent in an orderly fashion. Inevitably, as disorderly expansion became the norm, the conflict of interest embedded in federalism gradually eclipsed the rights of the tribes. For a time in the late-nineteenth and early-twentieth centuries, Congress was able to finesse the inconvenient obligations of its partnership with the tribes. But once later courts made Marshall’s legal alignments more visible through controversial decisions that consistently favored the tribes and reminded the federal government of its binding obligations, state governments quickly learned to regard the Indians with jealous hostility and to view the tribes’ partner, the federal government, as a heavy-handed interloper.
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