Coyote Warrior

by Paul Van Develder

  “The coat was really trashed, but I didn’t say a word. Neither would Dad. He would have laughed to himself and bought Eugene a drink. When they finished, he would have taken him outside and kicked his ass.”

  CHAPTER VIII

  Return of the Natives

  “The heavens and earth are my heart. The rising sun is my mouth. My lips dare not lie to you. My friend, I ask the same from you. Do not deceive us. Be strong and preserve your word inviolate. I am old, but I shall never die. I shall always live in my children, and my children’s children.”

  NEW CORN, POTAWATOMI

  More so than any of his big brothers and sisters, Raymond Cross is a product of Garrison Dam. His early years in Elbowoods and Parshall were shaped by the cultural entropy that engulfed both his family and the three tribes. In a few short years, the Mandan, Hidatsa, and Arikara people went from being the only self-sufficient tribal enclave in the United States to being one that was almost wholly dependent on outside help for day-to-day survival.

  If poverty is the midwife of dreamers, Raymond was destined for a life of ideas and imagination from the time he was a young boy. Even in Elbowoods, from his birth until he moved with his mother and sister to Parshall at the age of five, he shaped his far-ranging imaginings by the amber light of a kerosene lantern. He remembers clearly that his first hero was the German rocket scientist Wernher von Braun. To the young Indian boy in Parshall, North Dakota, it seemed that he and the legendary rocket man shared a common dream. Both wanted to break the bounds of gravity.

  “Life wasn’t very good in those years,” says Raymond. “It didn’t hold out many possibilities. Mom and my sister Carol and I were no different than anyone else in Parshall. We survived on welfare. By the time I was nine or ten, things were pretty crazy for a lot of people. Even in our own family, we’re still sorting it all out.”

  For a few years after The Flood, the Cross family managed to cling to its former identity, but by the time Raymond was getting out of elementary school, both his family and the tribes were in complete disarray. Brothers and sisters were scattered across the country. Every day brought news of another death in the tribe, or another tribal member who had “relocated” to Chicago or Los Angeles, never to be heard from again. “The whole time I was growing up in Parshall, I heard the stories about how wonderful our world was before the dam. Our communities were close and integrated. Farming and ranching were profitable. People were happy. It was hard to imagine.”

  By 1960, Milton was living at an institution for the mentally handicapped at Grafton, North Dakota, Michael had enlisted in the Army, and Dorothy and her two youngest children were spending their summers in California. Each time they went west, the return to Parshall grew a little more difficult. When Raymond became a teenager, Marilyn invited Raymond to move in with her family and attend school at Santa Clara. There, for the first time in his life, he began thinking about the future. For the tall, quiet Indian boy from North Dakota, public high school in Santa Clara, California, was a formative and exciting experience. It was there, with coaxing from teachers and guidance counselors who recognized his unusual gifts, that he finally began emerging from a private world shaped by chronic trauma. It was also there that he first began thinking about the law as a possible vocation. By the time Raymond was in high school, Wernher von Braun had been replaced in his pantheon of heroes by his father, Martin Cross.

  “We all tend to bad-mouth our parents when we’re kids. I’m sure I did my share of that. When I was little, Dad was pretty messed up. He was coping with his impotence as a man, as a leader, and his own sense of personal disintegration. Occasionally, he’d try to establish a connection with me. He’d make promises to take me to the movies. I’d wait for him to come pick me up, but he never came. Eventually, that kind of disappointment makes you a little withdrawn, a little more, and less, resourceful at the same time.

  “When I was a sophomore in high school in California, I began to understand just how extraordinary my dad had been in the fight over Garrison Dam. He overcame the limitations of his education by the sheer force of will. He accepted the mantle of tribal leadership and sacrificed years of his life to that fight without looking for anything in return. When he lost, he continued to fight to hold the tribe together. He was the last of the old and the first of the new. As the last of the old, he accepted the loneliness and isolation that came with leadership. As the first of the new, I think he was far ahead of the average citizen in Indian Country. He was among the first to recognize that our survival would depend on stepping out of the isolation of our past.

  “If you look at Plato’s response to the Sophists, he says, I can show you that the only way to have a just man is to create a just society. This is an important exercise in myth making for any society, and I think it points to the nut of where American society has so often broken down. We build capable individuals like Frederick Douglass, Cesar Chavez, and Martin Cross, but then we deny them the resources to build a just society. The essence of native culture forces you to ask different kinds of questions about how a just society might look. What, for example, are the essential ingredients that make up a tribal society that already has its legal, economic, and cultural base of identity imbedded in its mountains and rivers and prairie? The physical world is the wellspring of a tribe’s cultural identity. That has to be protected; at the same time the consciousness of the people has to transcend its isolation in order to survive. I think Martin Cross was one of the first leaders in Indian Country to fully understand the nuances of that challenge.”

  Against the great weight of the past, against the will of the national legislature and federal water agencies, against determined foes in the Bureau of Indian Affairs, Martin Cross, till his final days, fought to lead his people onto a road that would ensure the survival of tribal culture for unborn generations of Mandan, Hidatsa, and Arikara people. “To that end, which I believe was a noble one, you have to say he succeeded. Along toward my junior year in high school, I decided I needed to start thinking about carrying on with what he had started.”

  For all of the emotional and psychological challenges of Raymond’s early life, being the youngest of ten children in the Cross family also brought advantages. Raymond was born at a time that eventually put him in law school in an era when Indian Country suddenly found itself undergoing dramatic and radical change, the very transformation that had been championed by his father. While Raymond was finishing his studies at Stanford in the late 1960s, the American Indian Movement, known as AIM, sprang to life almost overnight at the height of the civil rights era, a tumultuous age of cross-cultural political activism that saw blacks’, Chicanos’, and women’s rights movements all merging with the growing protests against the Vietnam War in southeast Asia.

  “What AIM helped people see for the first time was that our native cultures had been strip-mined by the Euro-American, Judeo-Christian civilization,” says Raymond. “This was a big deal. An awful lot of Indians had been baptized Christians. But by then, the storm of protests and causes made it clear to us that we were dealing with a desperate society trapped inside a crumbling mythology. For four hundred years people had been living with the illusion that they could claw their way back to Eden on this continent. Now, their mythology was crumbling all around them. Blacks, Indians, Chicanos—we all had to start finding our own solutions because the white people were out of answers.”

  Yet an event that would have an even greater and longer-lasting impact on Indian Country than AIM occurred a century to the day after General William Tecumseh Sherman sued the Sioux chief Red Cloud for peace at Fort Laramie. Richard Nixon was elected as the thirty-seventh president of the United States.

  On July 8, 1970, two months before Raymond Cross entered Yale Law School, Nixon presented Congress with a bold new vision for Indian Country. Calling for a governmentwide initiative to embrace the principle of Native American self-determination, Nixon’s message was heralded by Indian leaders as a long-overdue break from the faile
d policies of the past. Nixon told Congress that its legislative history in Indian Country had created inexcusable horrors. “The American Indians have been oppressed and brutalized, deprived of their ancestral lands, and denied the opportunity to control their own destiny.” Yet despite these travails, “The story of the Indian is a record of endurance or survival, of adaptation and creativity in the face of overwhelming obstacles. The time has come to break decisively with the past” because the “extreme policy of forced termination had more often produced excessive paternalism.” In Nixon’s view, one or the other of these “evils” had held the Indian down for 150 years. Indian tribes, he declared, “can become independent of federal control without being cut off from federal concern and federal support.” This was in fact the very same argument that Martin Cross had used to challenge Senator Arthur Watkins and Dillon Myer twenty years before.

  Nixon’s speech was a powerful reaffirmation of John Marshall’s original vision of “domestic sovereign nations” and precisely mirrored the demands that men such as Martin Cross and Robert Yellowtail had been urging on Congress for decades. All who heard and read the speech realized that the president had taken bold steps onto unmapped ground. Legal historian Alvin Josephy wrote that Nixon’s address was the “strongest assertion ever made by an American president against the twin evils of paternalism and termination.”

  Perhaps it was his Quaker childhood, or a powerful empathy for the underdog, that nurtured Richard Nixon’s vision for Indian Country. More likely still, it had its origin in his high school football coach, a Cherokee Indian whom he later credited with teaching him everything he needed to know to become President of the United States. Whatever it was, the alchemy of the ingredients that formed Richard Nixon combined to formally end the Termination Era on a July afternoon in 1970.

  “By the mid-1970s,” says Cross, “tribes were developing their own legal departments, their own strategies for engaging federal and state governments. You could say that was one of the unintended consequences of Public Law 280. Tribes realized that they were more vulnerable than ever to state governments, but they also had more power, so they started using that power to protect themselves. This was very different from the way things had been when my father was in tribal government, and it happened right about the time I was getting out of law school. Tribal councils were taking a hard look at their ancient wardship arrangement with the federal government, and they knew it wasn’t working. Indian law was the hottest thing going.”

  Before he was driven from office by the Watergate scandal, Nixon persuaded Congress into passing the Indian Self-Determination Act of 1975. This legislation was proposed over the loud objections of western governors and state legislatures. It passed nevertheless, along with the Indian Education Act of 1972 and the Indian Health Improvement Act of 1976. Together, these laws made it possible for thousands of young Indian students to go to mainstream colleges and universities. By the time Raymond Cross graduated from Yale Law School and went to work for the Native American Rights Fund in 1977, a social revolution was sweeping across Indian Country. Dozens of tribes were finally stepping forward with long-dormant land claims and violations of treaty rights.

  For young Indians such as Raymond Cross and Alyce Spotted Bear, the new tribal chairwoman of the Three Affiliated Tribes, the “century-of-longtime-sleeping” was officially over. As the 1970s drew to a close, the first wave of college-educated Indians was returning to its home reservations. Rather than disappearing into America’s urban centers and suburbs, these coyote warriors were determined to protect their homelands and tribal cultures from further exploitation. In hogans and tar-paper shacks, from the hardwood forests of Wisconsin to the kivas of the Southwest, these spiritual descendants of Crazy Horse and Four Bears intended to map a new course. Few of them fully appreciated the obstacles ahead as well as Raymond Cross. After his dramatic victory in the Adair case in Portland, Oregon, he fulfilled a promise he had made years earlier to help the Yaqui people of Arizona to win federal recognition as a tribe. The Adair case had served as his legal education in the federal court system. The arduous campaign to win recognition for the Yaqui was his apprenticeship in the legislative system. Now, with these two victories behind him, the tall, well-spoken thirty-three-year-old Mandan attorney decided that he was ready to return to Fort Berthold and pick up where his father had left off.

  Despite Richard Nixon’s good intentions for Indian Country, people such as Emerson Murry and his colleague Chief Justice Gerald VandeWalle of the North Dakota Supreme Court point out that most western states were already paying the price for termination. Public Law 280 had caused irreparable damage to relations between tribal and state governments. Nixon’s words were reassuring to tribal leaders, but most had learned to treat state legislatures like a nest of baby rattlesnakes. Fragments of Public Law 280 were still on the books. Once a federal law is grafted onto state statutes, the onerous effects of the law continue to infect local ordinances. Public Law 280 had swept through state legal systems like a self-replicating virus, quickly embedding itself in dozens of statutes controlling everything from license plates and water rights to contract law.

  Chief Justice VandeWalle has spent a lot of time contending with the consequences of termination legislation. As president for the nation’s Conference of Chief Justices, he was in a unique position to learn from the termination cases of numerous other high courts. “I was too young to be an active member in the original two-eighty debate,” says VandeWalle, “but I remember the day Murry’s report went to the legislature. Nobody would ever forget it, I’m sure. There was a lot of drumming and dancing in the hallways.”

  The very memory of those debates animates the judge’s thick eyebrows, lifting his voice a full octave as he reconstructs the sequence of events. From the very beginning with P.L. 280, says Chief Justice VandeWalle, “residual jurisdiction” issues tended to pit a state’s interest against a tribe’s interest, effectively immobilizing the federal government between them.

  “That’s why it got so messy, so fast,” says VandeWalle. “Residual jurisdiction is a situation where the state doesn’t have full jurisdiction, but it has some. For example, who is supposed to oversee what goes on in criminal cases being tried in a Native American tribal court? Well, nobody had an answer for that one. Eventually, this is the kind of conflict that’s going to find you, one way or another, and pin you down until it gets an answer. In North Dakota, it was the Wold Engineering case.”

  In the late 1970s, the Tribal Council for the Three Affiliated Tribes had hired a civil engineering firm, Wold Engineering, to build several pumping stations for municipal water supply. These stations would lift water out of the Missouri River and deliver it to the water treatment plant in New Town, four miles away. The specifications called for pumps that would work in a wide range of temperatures and guarantee a steady flow of fresh water when winter temperatures dipped to fifty below. The pumping stations were built according to specifications, but as soon as the weather turned cold, the pumps began to seize up. The tribes sued the engineering firm for breach of contract and nondelivery of services. The case was filed in state court. The state court said it had no jurisdiction to hear the case between a private party and a sovereign nation. An appeal by the tribes soon placed the “residual jurisdiction” question before the North Dakota Supreme Court in Bismarck. There, the seven justices ruled that the only way they could try the case was if the tribes relinquished their sovereign immunity. This was the very argument that was made against Public Law 280 by Martin Cross thirty years earlier, when he and Robert Yellowtail led the charge against termination in Congress.

  “Our backs were to the wall,” says VandeWalle, “but so were theirs. We were all looking for the king’s X, you know, the bright line of escape, a final word, but we kept ending up back in the same trap, going around and around.”

  Lawsuits and hurricanes are often spawned by small local disturbances, tempests in out-of-the-way teacups. “The cases that end
up in our court, or in the U.S. Supreme Court, generally begin as routine disputes over the ordinary application of governmental authority.” Then, says VandeWalle, before the legal system finds a way to resolve the issues and send them on their way, a minuscule percentage of these tiny tempests pick up energy from new, often unexpected sources and end up asking enormously significant questions. As an example, he cites a case known as Venatie that recently arose in Alaska between a small tribe and a subcontractor over an invoice for twelve hundred dollars. By the time the case ended up in the U.S. Supreme Court, the twelve-hundred-dollar invoice had mushroomed into a battle over the ownership of millions of square miles of Alaskan wilderness.

  “When Wold Engineering came in the door,” says VandeWalle, “I remember thinking, ‘Oh brother, here comes the train wreck.’ This was going to be a watershed case, a referendum on Public Law 280, no doubt about it. So we told the tribe that we had no jurisdiction to resolve this thing. The only way we could hear this case was if the tribe waived its sovereign immunity. Short of that, we couldn’t give them relief. It was beyond our reach, but it left them with no choice. They had to take it to the U.S. Supreme Court.”

  Their attorney would be Raymond Cross.

  In 1982, when Raymond began making arrangements to return home to North Dakota from Portland, Oregon, across the country a professor of history at Cornell University in Ithaca, New York, was being tormented by dreams. Alyce Spotted Bear had been feeling “an unrelenting gravitational pull from the world of my origin.” At the end of the school year, she and her husband packed up their children and their household belongings and moved “back home.” After being gone for twenty years, she arrived back at Fort Berthold without any suspicions about the challenges life was about to lay at her feet.