Coyote Warrior

by Paul Van Develder

  While JTAC was being formed out in North Dakota, the tribes’ future chairman, Ed Lone Fight, was startled awake by a dream on a snowy night in Washington, D.C. Lone Fight had spent twenty-five years in Washington as an administrator with the Department of the Interior. His father and grandfather had been close friends with Martin Cross and Old Dog, respectively. As a young boy, Ed had lived through The Flood before his parents sent him to off-reservation schools. Like many members of the Three Affiliated Tribes, he eventually went on to college and graduate school, where he earned a master’s degree in political science from Portland State University in Portland, Oregon. On that snowy night in the nation’s capital, the inspiration to return to Fort Berthold appeared to him like a burning bush.

  “I sat up in bed in cold sweats. The time had come to go home. There was no doubt about it, so I resigned from my job, sold my house, and moved back to Fort Berthold. I had no idea what I was going to do when I got there.”

  Before he and his wife had even unpacked, Lone Fight was elected to succeed Alyce Spotted Bear as tribal chairman. He was sworn into office in a ceremony at the Four Bears tribal offices just as Chairman Murry and Walker were submitting the final JTAC report to Secretary Hodel. Murry reminded Hodel that the JTAC had been asked to investigate a broad range of issues. The most salient and pressing of those issues had been highlighted by the Garrison Diversion Unit Commission’s final report in February 1986, under its “Indian recommendations.” After reviewing the work of the GDUC, Congress had directed the JTAC to answer one big question: Did the 80th Congress make a good-faith effort to meet the just compensation requirements of the U.S. Constitution and federal takings law in 1949, when the Corps built Garrison Dam?

  Needless to say, said Murry, this was a sensitive question, particularly in light of the fact that the secretary had personally erased Congress’ request from the JTAC charter. Nevertheless, Murry and Walker ignored the fact that Hodel had drawn a line through “the big question.” They set out for North Dakota determined to return with an answer. Eventually, they succeeded. Congress, reported Murry, was clearly guilty of abdicating its trust responsibilities to the tribes in 1949. After all was said and done, JTAC determined that only an exchange of “lieu lands,” as originally promised by Senator O’Mahoney’s committee, could have justified the compensation package that Congress forced on the tribes “against its will” in 1949. In JTAC’s view, the government’s debt to the Three Affiliated Tribes ran into the hundreds of millions of dollars. What had been unjustly taken from the tribes in 1949 could never be replaced. Even though it was far too late to make the Mandan, Hidatsa, and Arikara people “whole,” to restore them to their former economic and social conditions, a cash award that reflected the true value of what these people had lost would give them the wherewithal to create a future.

  “I had a good idea that we were in for some rough sailing,” says Murry. “Hodel didn’t want to deal with just compensation, even though the GDUC had explicitly directed him to do so. So, I decided to stay loyal to the original charter from Congress and let the two of them fight it out.”

  Murry was warned by his friends in Washington that getting a single dime out of Congress would be next to impossible. The federal government was drowning in red ink. Congress had recently committed itself to spending no more than it took in. There was no rush in Washington to settle old scores with Indian tribes. When the report was filed and the recommendations formally presented in 1986, Secretary Hodel sat on it for more than a year.

  Frustration, delays, and inertia were primary forces in Washington. Raymond had tasted enough of this life when he was working with the Pasqua Yaqui. That experience soon convinced him to apply his legal talents to other causes in other venues. But it was times like these, moments precisely like this one, when the universe offered alternative compensations. On June 16, 1986, the high court came back with its ruling in Wold II. Sovereign immunity had held. The chief justice of the North Dakota Supreme Court, Ralph Erickstad, now had the “bright line” he had sought from the court in the earlier go-round. Erickstad immediately reworked the procedural rules for the state courts and formally recognized the full jurisdiction of tribal courts in civil disputes.

  The unsuccessful campaign Martin Cross and the National Congress of American Indians had launched thirty-five years earlier to defeat P.L. 280 had come full circle. Now, the most odious effects of that law had been successfully challenged in a case over faulty water pumps. In a single stroke, and with full cooperation from Chief Justice Erickstad, the Wold II decision transformed North Dakota courts into the most progressive in the United States. Erickstad personally rewrote the state code governing North Dakota’s courts and formally recognized the legal efficacy of tribal courts for the purpose of resolving civil disputes with non-Indians.

  “I don’t mind telling you that a lot of states thought we were crazy,” says Chief Justice VandeWalle. “We have never regretted it. It put us in the forefront, nationwide, with regard to tribal courts, and we have never had a single problem.”

  In the first two minutes of his presentation to the Supreme Court, Raymond had sensed that his principal ally on the bench would be the old ranch hand Justice Sandra Day O’Connor. The release of the court’s formal six-to-three opinion reaffirmed his intuition. Justice O’Connor wrote the majority opinion. Justice Stevens, perhaps the court’s most liberal judge on a broad range of issues, aligned himself with the most conservative, Rehnquist and Brennan, and dissented.

  Weeks became months for the JTAC report. Legislative inertia in Washington seemed to grow more ponderous with each passing day. The new tribal chairman, Ed Lone Fight, tried pulling strings with his former colleagues at the Department of the Interior, but Secretary Hodel was showing no willingness to revisit the question of “just compensation” for the Three Affiliated Tribes. After awhile nobody at Interior returned Lone Fight’s calls. The JTAC report had been dropped into the dead-letter file, where it would soon be forgotten. Finally, in November 1987, Lone Fight and Emerson Murry got a lucky break. Senator Daniel Inouye, the esteemed and knowledgeable chairman of the Senate Select Committee on Indian Affairs, sidestepped the roadblock at Interior and invited the pair to present the JTAC’s report to his committee. Murry, Raymond Cross, and Lone Fight traveled to Washington on November 12, 1987. Once there, they were reacquainted with Ann Zorn, who flew in from Las Vegas to recapitulate the recommendations of the GDUC. Zorn agreed to tailor her remarks to the Fifth Amendment, taking issues highlighted in the GDUC report that she and David Treen presented to Congress two years earlier. The idea of making the tribes “whole,” of restoring them to their former economic independence and self-sufficiency as required by the Fifth Amendment, was probably the most powerful tool working in the tribes’ favor. Congress could abrogate a treaty, it could break a contract, it could refuse payment, but it could not ignore the Bill of Rights in the U.S. Constitution. “It became clear to all of us on the GDUC that Congress never succeeded in making the tribes whole,” Zorn explained. “In our minds, there was no question whatsoever that the tribes’ Fifth Amendment rights had been violated, and no good faith effort had ever been made to set things right.”

  Ann Zorn had again left her mark on powerful congressmen. Before the hearings had finished, her explanations for the recommendations of the GDUC were made even more dramatic in contrast to testimony presented by the Bureau of Indian Affairs and the Army Corps of Engineers. Both of these agencies declared themselves opposed to any further reviews of the “just compensation” issues raised by the attorney for the Three Affiliated Tribes.

  By the time the BIA and the Corps had finished their reports, Senator Inouye was struggling to control his displeasure with both Congress and the White House. “For too long, the trustee [Congress] has acted in a strange manner. Instead of protecting the rights and resources of the tribes, it has accomplished exactly the opposite. I must apologize for my anger, but sometimes I think there is justification for anger.”
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  “Excuse me,” broke in the junior senator from Arizona, John McCain. “This seems to be a request for compensation in the range of three hundred sixty million to seven hundred sixty million dollars. Mr. Chairman, there are twenty tribes in the state of Arizona that have suffered dislocation for various reasons. Are they also eligible for compensation? I’m just wondering what’s going on here?”

  “This report was prepared at the request of Congress and the administration,” shot Inouye. “Yet the administration has been sitting on this thing for a year now. This is unacceptable. Mr. Murry, you have worked tirelessly and without pay to produce this important document. I want to personally thank you and your committee for your excellent work and personal sacrifice.”

  Murry demurred. On behalf of his fellow committee members, he thanked Chairman Inouye for the opportunity to present their report. Now, said Murry, the principals had to “fish or cut bait.”

  With Murry’s challenge as the last word, Senator Inouye adjourned the hearings.

  After four years of ceaseless work for the tribes, the veteran Cross, and the newcomer, tribal chairman Ed Lone Fight, suddenly found themselves adrift and on their own. “Senator Inouye was very supportive,” says Cross, “but he had to deal with McCain, and that was shaping up to be a bigger problem than we had anticipated.”

  In a few years’ time, Senator John McCain’s experience on this committee would transform him into a fierce defender of Native American rights. In those final days of 1987, the federal government was drowning in red ink. Deficit spending on military programs had soared during Reagan’s second term in office. Cross and Lone Fight knew that the junior senator had put his finger on the budgetary impediment that would almost certainly translate into more delays. The government was hemorrhaging money. While Congress fought over ways to stop the negative cash flow, further postponements for the JTAC would be inevitable. Yet with every passing month, “just compensation” drifted farther out of reach. Under overcast skies, Cross and Lone Fight descended the Capitol steps into the gray light of dusk. Without articulating their darkest fears, both men realized that the tribes’ forty-year campaign to force Congress to make them “whole,” to compensate them for the abrogation of the solemn agreement they made at Horse Creek, had finally come to a dead end.

  After a quick dinner, Raymond and Ed returned to their hotel room to discuss strategy. They decided to first survey the legislative landscape, the pros and cons, and assess the forces arrayed against them. When all elements had been weighed and considered, they could see only two potential pathways around Hodel’s intransigence. Before they left Washington they needed to find someone who worked inside the power circuits on Capitol Hill, a professional fixer with an intimate knowledge of how things were connected behind the marble and walnut veneer. They made a number of phone calls. Oddly enough, they kept hearing the same name, which was strange, since neither Cross nor Lone Fight had ever heard it before. Alyce Spotted Bear told them that this guy was the best in the city. She had been introduced to him by Jim Bluestone, a fellow tribal member, when Bluestone was employed as a legislative intern at the Department of the Interior.

  “He’s a public interest lobbyist, it’s right here, hold on . . . at Moss, McGee, Bradley, and Foley,” said Spotted Bear. “Lee Foley. Call him tonight, and be sure to use my name.”

  It was too late to call Foley’s office, so Lone Fight called Bluestone at home. Bluestone told him that Foley arrived on Capitol Hill in the late 1960s, fresh out of college. Since then, he had spent years working the back rooms on Capitol Hill. By sticking it out, he eventually became a highly respected journeyman, a legislative whiz kid who discovered that he had a talent for making things happen. Then, when Reagan was elected in 1980, Foley and his partners decided to open their own office. If there was anyone in Washington who could get the JTAC recommendations moving, it was Lee Foley.

  The following morning they phoned the office of Moss, McGee, Bradley, and Foley at eight o’clock sharp. To their surprise, Foley invited them to come right over. “I happen to be free right now,” said Foley, “but in ten minutes I could be gone for a week.”

  When Raymond and Lone Fight explained why they were there, Foley’s initial response was short of encouraging. “I’d love to take this on, but let’s face facts. The government’s broke. Nobody has any money. So, on top of everything else, your timing couldn’t be worse. Why didn’t Alyce come to me with this three years ago?”

  “Three years ago, this was a pipe dream,” explained Raymond.

  “You think it’s too late?” asked Lone Fight.

  “That’s an expensive question in this town,” said Foley. “I don’t have an answer, but there’s one way to find out. I’ll make some phone calls, get the lay of the land. In the meantime, gentlemen, your job is to pray for a miracle.”

  The miracle would come from an unexpected source, and on another continent, on May 31, 1988. At the invitation of Soviet Prime Minister Mikhail Gorbachev, President Ronald Reagan made a visit to the Soviet Union. While he was there, he was anxious to meet with the Russian people face-to-face, so when the students at Moscow State University invited him to their school for a question-and-answer session, Reagan jumped at the chance. With the world’s press there to record the event, President Reagan made an off-the-cuff response to a question regarding the federal government’s mistreatment of American Indians.

  “Maybe we made a mistake in trying to maintain Indian cultures,” the president told them. “Maybe we should not have humored them in that, you know, into wanting to stay in that kind of primitive lifestyle.”

  Switchboards lit up in tribal offices across the country. Indian leaders expressed outrage on the front pages of newspapers around the world. Once the president had returned home, the White House sought to smooth the waters by inviting a dozen tribal leaders to the White House for a meeting with the president. One of those invited leaders was Ed Lone Fight, chairman of the Three Affiliated Tribes of North Dakota. After a brief photo session for the media showing the president cheerfully making amends with the Indians, the leaders were invited to join the president for an informal chat around the cabinet table. Lone Fight took the chair directly opposite the president. When the opportunity presented itself, he thanked the president for the invitation.

  “So tell me, Ed, how are things on your reservation?” the president asked with genuine interest.

  “I’m glad you asked that, Mr. President. As a matter of fact, we’re making a lot of progress. Many of our young people are now in college, but we’re stymied in the area of development . . .”

  “How so?”

  “Well, your administration conducted a study of our situation and found that the government had shortchanged us by a considerable amount of money when the Pick-Sloan project was built years ago. But that report, called the JTAC report, seems to be held up in a logjam at Interior.”

  President Reagan listened carefully to every word and detected a political opportunity. When the chairman was finished, the president turned to Secretary Hodel, who was sitting several chairs away on the same side of the table.

  “What about that, Donald? What’s the status on this JTAC report on Mr. Lone Fight’s tribe . . .”

  Hodel immediately snapped to attention, shot a glance at Lone Fight, then back to the president.

  “That’s been taken care of, Mr. President. In fact, it was on my desk this morning, and we’ll be taking action on that report straightaway now . . .”

  “Can you personally keep Mr. Lone Fight, you know, apprised . . .”

  “Oh, yes, sir, he’ll be the first to know.”

  President Reagan squared his shoulders back to Lone Fight and winked. “If you have any trouble, you call me, you put a call through to this office . . .”

  “Yes, Mr. President. I’m very grateful to you. Thank you very much.”

  There would be four more years of committee meetings, and the endless back and forth negotiations on valuations of th
e actual damages the government owed to the tribes, but the president’s response to the question in Moscow had produced the miracle Lee Foley had ordered. The meeting between President Reagan and Chairman Lone Fight formally took the JTAC recommendations out of the administrative purgatory where it had languished and moved it into the legislative auspices of Senator Daniel Inouye’s committee. There, inching forward in a campaign carefully choreographed by Lee Foley, Lone Fight and Raymond exerted steady pressure on key members of Congress and began the long push toward a “just compensation” award for the Mandan, Hidatsa, and Arikara tribes. At a propitious moment, Senator Inouye took the matter of the three tribes into his own hands. When Raymond Cross and the tribal leaders gathered in Inouye’s committee room for the final time in November 1991, Senator Inouye took the occasion to make a speech to the American people, and all the citizens of Indian Country, on the sanctity of treaties.

  “During the 1940s and the 1950s, the U.S. Army Corps of Engineers flooded more than two hundred thousand acres of prime land on these reservations when it constructed a series of flood control dams on the Missouri River,” began the senator, struggling to control his emotions. “The tribes were forced to sign away those lands with literally a gun to their heads, and in absolute violation of their rights as treaty signatories with the United States government. At that time, the tribes were provided with a small measure of compensation which came nowhere near the level of adequately compensating the tribes for the losses they sustained, and was even less responsive to the devastation caused to their lives by this brutal act. Senate Bill 168 is the first legislative measure to be introduced in an effort to bring this deplorable chapter in the United States’ history to a close. Today, this committee calls on the rest of the United States government to live up to its trust responsibility to these tribes and join in our efforts to provide equitable and just compensation that will in some small measure help make amends for the wrongs that were done to the people of the Fort Berthold and Standing Rock Reservations.