Coyote Warrior

by Paul Van Develder

  “Where’s the harm in letting him speak?” countered Zorn.

  “The state already vetted these guys,” retorted Paulson. “If we were supposed to take their testimony, the tribes would be on the list.”

  “Besides, I’ve never believed any Indian I’ve ever talked to,” blurted O’Meara.

  Zorn was astounded by this slip, as were Livermore and Treen. “Let’s get back to the point,” said Treen, crossing visual daggers with O’Meara.

  “Let’s hear him out,” said Henry Bellmon, the former governor and U.S. senator from Oklahoma. “Ike’s got a point.”

  “Well, I guess this one’s up to me,” said Treen.

  As they returned to their seats, none of the commissioners knew what Treen had decided. Chairman Treen rapped the gavel and asked the audience to return to their seats. His brow furrowed with deep creases as a hush fell over the theater.

  “The Garrison Diversion Unit Commission recognizes Mr. Raymond Cross, attorney for the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara nations. Just so everybody here understands, Mr. Cross will be the final person to address this commission. Mr. Cross, the commission is granting you fifteen minutes. Please, you may begin.”

  Chairman Treen and members of the commission, my name is Raymond Cross, and it is my pleasure to testify on behalf of the Three Affiliated Tribes of the Fort Berthold Reservation,” began Raymond. “The Three Affiliated Tribes is a federally recognized Indian tribe that resides on the Fort Berthold Reservation in northwestern North Dakota.” He quickly reminded the commissioners that the aboriginal homelands of the Mandan, Hidatsa, and Arikara people were located at the center of Lake Sakakawea, which was created by the Pick-Sloan Plan. “Indeed, the Department of the Interior, from the inception of the Pick-Sloan Plan, was aware of the ethical and legal responsibilities imposed by these facts. The Bureau of Indian Affairs recognized that many of the features of the project were in part or in whole based on Indian lands and would affect Indian water rights. The BIA concluded that realization and protection of the unique Indian rights should be built into the governing principles of the Flood Control Act of 1944 at each aspect of the project’s development.”

  But that had never happened, argued Cross, despite all the guarantees made to the tribes at the time of the bill’s passage in Congress. Two generations later, the people of North Dakota were arguing that they suffered disproportionate losses of their rich, irreplaceable croplands, a fact at the heart of the state’s claim that the people of the nation should now build the irrigation program they promised, four decades earlier, to mitigate the great sacrifices made by the people of North Dakota.

  “The fact is,” Cross concluded, “the Three Affiliated Tribes bore the brunt of the social and economic costs imposed on discrete groups for the development of these multipurpose projects that benefitted the United States as a whole. Very little account has been taken of the water development needs of the Indian tribes, developments that were promised and never delivered.”

  There was no time better than the present to finally make good on those promises, Cross advised the panel. The tribes had sought permission to participate in these hearings in order to ensure that the recommendations the panel made to Congress reflected the true sacrifices made by people living on the Upper Missouri River, native and nonnative alike. Unfortunately, that representation was not extended to them by the State Water Commission, so as the legal counsel for the Mandan, Hidatsa, and Arikara people, the original citizens of this High Plains country, Cross had no choice but to present their case directly to the commission.

  “We would like to propose to the commission that a special study area be established to examine the North Dakota Indian tribes’ water development needs, and that a portion of its report to Congress deal specifically with an assessment and recommendation as to how the tribes’ unique federal water rights may be realized through development of project water from the reservoirs along the system.” With that, he thanked the panel for the opportunity to speak and offered to answer any questions.

  “Specifically, what promises did Congress make to the tribes regarding water development projects?” asked Livermore. “None of us have copies of those pieces of legislation, and, unless I overlooked something, there was nothing in our materials about Pick-Sloan agreements with the tribes.”

  “Those were outlined in House Joint Resolution 33, from the 80th Congress, and the final takings act, Public Law 437, from 1949. I can make those available, Mr. Livermore. To answer your question in a general way, there were a lot of promises made, Commissioner, ranging from irrigation to municipal and industrial water development, to the right of access to the lake to develop recreational facilities.”

  “So, from A to Z, so to speak . . .”

  “Yes, sir.”

  “And . . . what is the status of those projects?” asked Governor Bellmon.

  “There is no status, Commissioner, insofar as they never happened, or the guarantees, such as lakeshore development, were later denied.”

  “Why were they denied?” asked Zorn.

  “Well, that’s a good question, Commissioner. That’s never been explained to us, but they never happened.”

  “None of them? Nothing?” asked the incredulous chairman.

  “No, sir, none of them. We were awarded some settlement money by Congress at the time of the taking, but we had to use that money to build our own water system because the wells the Army engineers put in were seldom any good. The water was bad, you couldn’t drink it or put it on crops or fill a stock tank with it without making your animals sick. So, the system we put in almost forty years ago is desperately inadequate, but the tribes don’t have the financial resources to build a new system from scratch, so we’re making do. An M and I [municipal and industrial] system was supposed to be factored into the original appropriations bills for Pick-Sloan, but we never saw it.”

  “How long ago was this, Mr. Cross?” asked Commissioner Patrick Noonan, the former national director of the Nature Conservancy.

  “Forty years next month.”

  “Mr. Cross,” said Zorn, “I’d just like to say that I think your idea about a special study area regarding these guarantees, and the tribes’ water development needs, seeing how the tribes sacrificed so much in the first place, is an intriguing one. I think we’ll be talking about this and trying to figure out the best way to pursue this with the tribes. I’m assuming you’ll be available?”

  “Yes, ma’am, of course, and we welcome that opportunity.”

  “Thank you, Mr. Cross, for being patient with us. I know you’ve waited a long time to speak,” said Livermore.

  “My pleasure. I’m grateful for the opportunity.”

  “Are there any other questions for Mr. Cross?” asked Treen.

  “Uh, Mr. Cross, I’d like to speak with you right after the meeting, if I may,” said Livermore.

  “Certainly.”

  “Thank you, Mr. Cross,” said Treen.

  “Thank you, Mr. Chairman.”

  The gavel came down with a bang. “The Garrison Diversion Unit Commission stands adjourned.”

  The institutional equity clause that Raymond had found in the commission’s charter was, in effect, a legal hole shaped by the bundling of the irrigation and municipal and industrial water development issues. Instead of raising questions about the “just compensation” for the Three Affiliated Tribes, a claim that would likely go nowhere, Raymond realized that he could achieve the same objective by connecting the unfulfilled promises Congress had made to his father in 1954—to provide the tribes with municipal and agricultural water development—with the “institutional equity” clause in the Garrison Diversion Unit Commission charter. Marc Messing had immediately recognized the tactic. Raymond tailored the tribes’ new appeal to fit within the narrowly defined scope of the commission’s official charter.

  Whoever he was, wherever he came from, the tall young Indian with the jet-black eyes had presented his case wit
h a remarkable degree of self-assurance. The weight of his coolly delivered statement was felt immediately by the commission. “As Raymond was speaking, I could feel our entire investigation veering off in a new direction,” says Zorn. “The only question in my mind, and Ike’s and Henry Bellmon’s, was ‘How are we going to get there?’ Congress had a lot of questions it wanted answered, but from that moment on, the GDUC was in Raymond Cross’s hands.”

  Once they were finished in Fargo, the commissioners moved on to Minot and finally wrapped up their fieldwork with two days of hearings in Bismarck. Before the group left the state, the press was already noting the shift. Beneath a banner headline reading PANELISTS CONTEND INDIANS’ ROLE NOT RECOGNIZED, Fargo Forum reporter Jim Neumann identified the maverick commissioners in the story’s lead sentence and reported that Livermore and Zorn had knocked the commission off its rails. In their opinion, the Indians had paid the highest price for Missouri River development, and the tribes should be first in line when the federal government started writing checks for water projects.

  “It hit me like a ton of bricks,” Livermore told Neumann. “Everybody from the governor on down mentioned this great overwhelming debt owed to the state of North Dakota, and they never mentioned the Indians. The way I look at it, they’re still due a couple of hundred million dollars,” said Livermore, observing that the tribes may deserve one-third to one-half of all the Garrison benefits. “I know that won’t fly politically, but in a court of law, I think that’s what they should get.”

  Once the field hearings concluded, Livermore took an informal head count of his fellow commissioners. He knew that he and Zorn were within striking distance of reopening the “just compensation” issues for the tribes. Through the dauntless efforts of the staff attorney, Marc Messing, who was in charge of briefing the commissioners on legal issues related to “institutional equity,” Livermore was able to slowly work his way upstream toward the legal opening that awaited them in the water development provisions of the Garrison Diversion plan.

  “Certain people just come along at the right time and the right place,” says Zorn. “For us, Marc was that person. We had a lot of wonderfully competent support staff, but no one was better versed in the federal issues than Marc Messing. There were turning points along the way, as there always are in these kinds of things, when I realized that he had the whole set of issues prewired before we ever got on the plane to North Dakota.”

  As Livermore and Zorn were entering the final negotiations for the commission’s recommendations to Congress, Messing wrote them an incisive memo. “I am increasingly concerned that the commission may compound the injustices done to the Indians,” he warned. There were two salient items that the commission had a legal and moral obligation to address in its final recommendations, wrote Messing. One, roughly half of the 550,000 acres the state claimed it lost to Pick-Sloan dams was owned by Indians. Two, in the category of institutional equity, indisputably the Three Affiliated Tribes had suffered the brunt of the impact of Pick-Sloan without ever receiving fair treatment or just compensation from the government. Messing concluded his sub-rosa memo by telling them:

  The history of this settlement is a tragedy from which the tribes have never recovered. The Indians can demonstrate explicit treaty language that guaranteed them rights which were violated by the inundations. The evidence I have seen regarding the construction of Garrison and Oahe Dams points to the fact that gross and fundamental injustices were done to these people, and not to reexamine this as part of the commission’s mandate to consider issues of “institutional equity” would effectively close the last opportunity these tribes may have to rebuild the communities that were destroyed.

  Livermore was sufficiently inspired by Messing’s appeal to write a memo of his own to his fellow commissioners as they prepared to hammer out the final recommendations to Congress in the first week of December. Recapitulating the commission’s findings, Livermore reminded his protégés that, if nothing else, their investigation had uncovered irrefutable evidence that the tribes “were given grossly inadequate consideration in the then-proposed Garrison Unit legislation.” The Mandan, Hidatsa, and Arikara people had shouldered the full weight of Pick-Sloan. By comparison, the sacrifice made by the state of North Dakota was nominal. Forty years after the taking of the ancestral homelands, the reservation infrastructure was in shambles. The new road system promised by the Army engineers, for example, was either falling apart or never completed. Bridges over coulees and streambeds stopped in midair. Roads begun forty years earlier had yet to reach their destinations. Many simply ran for twenty miles across the prairie, then ended abruptly in the middle of nowhere. The community day schools in Nishu, Shell Creek, and Beaver Creek had disappeared. Like Indian children at the turn of the twentieth century, today’s Indian children were forced to make a choice between attending white public schools, where they were not welcome, or making a long journey to BIA-sponsored boarding schools in an adjoining state. Welfare, which was all but nonexistent on the reservation before The Flood, had since increased tenfold under the “careful stewardship” of the federal government. Livermore concluded his appeal by describing the trip he and Ann Zorn took to New Town to meet with tribal leaders and elders. “The conditions we observed were enough to bring us to tears,” he wrote, adding, as a historical footnote, “North Dakota’s leaders had expressed little if any concern for the Indians” when the dams destroyed their world. Where were they, Livermore asked, when the Indians were starving to death and friendless?

  An informal poll of the commissioners showed that Zorn and Livermore were scoring points and winning allies. As the commissioners headed toward a final showdown on formal recommendations they would make to Congress, it appeared that Zorn and Livermore’s campaign had a chance of winning. “Our fingers were crossed, but we really didn’t know how the vote would break until the actual votes were counted,” remembers Livermore. “A number of us were playing our cards pretty close to the chest.”

  Undeterred by the uncertainty, Zorn and Livermore began to prepare a set of formal recommendations to Congress that would be based exclusively on unresolved “Indian issues,” as Raymond Cross had suggested in his presentation in Fargo. In order to reconcile this departure from the instructions given to them by Congress, Marc Messing explained that the tribes had legal right to be included as “stakeholders who had forgone economic opportunities” as a result of the construction of Pick-Sloan dams. Since any remedy for the tribes fell outside the scope of their mandate from Congress, Zorn and Livermore recommended that Congress immediately establish a five-member Joint Tribal Advisory Committee (JTAC) under the secretary of the interior to specifically remedy the long-standing sins of omission with the tribes. The committee, they said, should address all unfulfilled promises and guarantees made to the tribes forty years earlier, including the return of excess lands, additional financial or in-kind compensation for their material losses, assessment of the potential for irrigation on reservation lands, the right to develop shoreline recreation areas, and finally, the formal establishment of the tribes’ reserved water rights on the main stem of the Missouri.

  When a preliminary draft of the report’s recommendations reached the public, North Dakota farmers and state politicians were stunned. The first word in the press came from Forum reporter Jim Neumann, who warned readers that the commission was planning to “fashion a sweeping new plan for the Garrison diversion project.” Neumann’s story broke in late December, at the same moment Zorn and Treen were busy polishing the final draft of the report to meet their January 1 deadline. Commissioner Livermore, wrote Neumann, had been in favor of more forceful language on the Indian issues, but his fellow commissioners were concerned about the legal implications of his proposed language for the final report to Congress. Livermore gave up some of his deal points when a majority agreed to recommend that William Clark appoint a new JTAC panel to resolve the tribes’ long-standing claims for compensation and “institutional equity.”
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br />   In Fargo, Minot, and Washington, D.C., this was read as an enormous victory for the tribes. The commission’s forthcoming report to Congress would put the tribes in the hunt for a share of the newly apportioned Garrison Diversion Unit water development funds. Those funds, long overdue to both tribes and farmers, had never been delivered. In an interview with Neumann, Cross told the Forum’s readers that the GDUC investigation had been prompted in the first place by the environmental issues that had brought a halt to the construction of McClusky Canal a decade earlier. The courts, he reminded Neumann, had already ruled that this phase of the Sloan Plan was in violation of the National Environmental Policy Act. If ducks and geese could get fair treatment from Congress, said Cross, perhaps it was not so far-fetched that “a tribe that was virtually destroyed by Congress has the right to raise those issues as well.” Instead of eliciting a storm of protest from angry readers, Cross’s remarks were answered by stony silence.

  Ann Zorn told Neumann that she and her fellow commissioners were presented with indisputable evidence that the tribes had borne the brunt of the costs for Pick-Sloan. If Congress intended to make good on its commitment to farmers by bringing irrigation to 250,000 acres of prairie, she said, it could only do so after it had dealt fairly with the tribes.

  Commissioners O’Meara and Paulson, the water specialist and retired newspaper editor, dug in their heels and resisted the inclusion of the “Indian recommendations” to Congress to the very end. Treen worked to find a middle ground, but it was not to be. O’Meara, an old hand at Washington politics, had nothing to lose by stonewalling. His ally Paulson would still have to look his neighbors in the eye at church and at the grocery store after the commission left town, so he held out. “Since it didn’t matter how he voted in the end, and he had to live there, nobody could blame him,” says Livermore.