Raymond Cross sees this circle enclosing his own life, for it is now the first winter in a new millennium, and once again, a federal commission convened by the Army Corps of Engineers has come to Missoula, Montana, to find out what people here think about salmon, the Snake River dams, and the economic future of this vast region of the American outback. Missoula, a railroad, logging, and university town of seventy thousand citizens, is one of ten stops in what will be remembered for years to come as a rolling-thunder road show of white men in blue suits and funny hats. At every venue thus far, the commission has drawn angry, standing-room-only crowds of farmers and ranchers, businessmen and railroaders, commercial fishermen, barge operators and environmentalists, grandmothers in hiking boots and secretaries in heels, college professors and housewives burping babies—a widely divergent constituency accustomed to sweet water, “poverty with a view” under the big skies, and packing protein off the land. Crossing all socioeconomic, age, cultural, and gender boundaries, the testimony of citizens thus far has tended to address two dominant themes: one, the threatened extinction of native salmon in the Columbia River Basin, a geographic area the size of France, is the leading edge of an unprecedented environmental crisis; and two, any realistic solutions to meeting this crisis will be economically excruciating.
Agreements tend to end there. The capacity mob that thronged the convention center in Boise, Idaho, a few days earlier was ready to light a fuse under the Snake River dams before the sun went down. Why wait another day, was the overwhelming consensus of the crowd. Emotions ran high. Voices rang out in fervid pitch. A brave young wheat farmer from Lewiston, Idaho, took the microphone and accused the “dam breachers” of willfully destroying three generations of his family’s hard-won livelihood. The farmer was followed by Nez Percé elder Carla HighEagle, who stepped up to the microphone and scanned the eyes of each member of the commission. The auditorium fell silent. She then addressed the commission, and the farmer from Lewiston, without a trace of rancor or a note of bitterness.
“Sirs,” she began, “no one empathizes with you and your family more than the Nez Percé people, the Umatilla people, the Yakima people, and all the members of the Columbia River tribes. It is a terrible thing to see three generations of work wiped out, just like that. We empathize with you. We ask the commission to consider that in one generation, just one, the five federal dams on the lower Snake River have virtually destroyed a salmon legacy among my people that goes back five hundred generations. It is all but gone. We have watched it vanish in less than one lifetime. For five hundred generations, my people have been subsisting on salmon. We and the salmon people are one. If you kill the last of them, if you allow them to go extinct, we will go away with them, for there will be nothing left to keep us here. That is all I have to say.”
A week later, at a large conference room at the Doubletree hotel in Missoula, those same commissioners have taken a break for lunch. They are due back any moment. How things will go here in Missoula, a wild card in a region of wild cards, is anybody’s guess. The task before the commission is formidable, and the protestors have already lined up outside to meet them when they arrive. A colorful coalition of activists has arrived in costume, masquerading in the parking lot as spawning salmon. Most of the young people from the university are on bicycles, wearing T-shirts and shorts. There are the usual banners, placards, and dreadlocked activists with rings around their toes and through their noses. The year’s most popular bumper sticker reads: WILD SEX FOR WILD SALMON.
Like the Missouri River watershed, which begins less than a hundred miles from Missoula on the eastern front of the Rocky Mountains, marine scientists have testified in Congress that the Columbia River watershed is dying. Many people have come here because they believe this may be their final opportunity to avoid that looming, yet unimaginable, catastrophe.
The wild white-water rivers that boil through narrow canyons at the head of the Columbia River Basin have been traveled by oceangoing salmon and steelhead trout for tens of thousands of years. For all of its hydraulic bravado, this finely tuned ecosystem depends on thousands of independent performers to make it work. At the turn of the twentieth century, the Columbia River accounted for more salmon than all the rest of the world’s anadromous fish runs put together. If an eighteenth-century hat fetish led to the near demise of the beaver, then the invention of the tin can initiated the long downward spiral of the salmon. When William Clark first saw the run of fall chinook on the Columbia River in October of 1805, he exclaimed that he could get from one shore to the other without a boat. He said he could walk across on the backs of the fish and reach the far side without getting wet.
In 1991, only one sockeye salmon returned to Redfish Lake, an alpine jewel set among snowy crags in Idaho’s Sawtooth Range. This lone sockeye, having made the three-year journey to Japan and back, has since been nicknamed Lonesome Larry. After his sperm was collected by marine biologists, Lonesome Larry was stuffed, shellacked, and mounted on a pine board and hung in the governor’s office in the Idaho statehouse in Boise. In the entire river basin, the 5 million salmon of Lewis and Clark’s day had dropped to fewer than 50,000.
The lecture hall is abuzz with human energy and packed to overflowing with all the usual suspects. Apart, alone, keenly observant, a man with short-cropped hair and penetrating black eyes sits quietly at the back of the room. His legs are crossed, his fingertips pressed together in a prayerful shape as he surveys the milling crowd. Once again, Raymond Cross finds himself at the center of a storm, a national debate over how to rescue native fish stocks on thousands of miles of dying streams and rivers, and how to ensure the cultural survival of the dozen regional tribes that depend on that resource for their survival. And once again, he finds himself sitting at the back of a room, waiting patiently for his opening to address a commission. His own circle, it seems, continually brings him back to a point of origin that is very familiar, another face-to-face encounter with the Army Corps of Engineers.
What marine and aquatic scientists are telling us about the salmon in the Columbia River Basin is a perfect illustration of the Cartesian conflict for which Cross sees no easy political solution. As the health of our environment becomes increasingly stressed by man-made processes, politicians will be forced to confront dilemmas they have historically directed to the courts. “From the beginning, the Man versus Nature argument was a contrived dichotomy,” argues Cross. “Yet the post-Renaissance Europeans bought it lock, stock, and barrel. It played right into a disaffected culture that was swept up by Luther’s Reformation. In America, the mythology spawned by Cartesian dualism told the immigrants, ‘Now, this is your chance to claw your way back to Redemption, back to the Garden of Eden, by bringing nature to heel, by taming it.’ The minute you tame nature, you’ve destroyed the garden you idealized. So I find myself outside that conversation. It doesn’t reflect the world, or the laws, that I was taught by my father, or he by his. He taught me that human culture is a project of nature, one of many projects in a network of ongoing, unfinished, never-to-be-finished projects, and that man is a part of that work, not apart from it. The failure of the mythology to explain how the Garden of Eden came to be destroyed poses a troublesome question for the dominant society: ‘Now what?’ Our experience with the natural world tells us that the unfolding tragedy with the salmon, this looming extinction, is not a failure of science. The salmon’s failure to return to the rivers and streams and high mountain lakes is not a crisis of biology or hydrology. It is a crisis of the human spirit.”
Raymond Cross predicts that the dialogue between “Europeans” and “Native Americans” in coming years will be very tense, up and down, potentially heartbreaking. There will be the occasional, but brief, celebrations of mutual understanding and reconciliation. But with the last great deposits of natural resources locked up in Indian Country reserves, no one is fooling anyone about what is at stake. How the nation’s dwindling natural resources will be managed in the twenty-first century is an unanswere
d question that is pushing both sides toward a colossal train wreck of economic ideologies and spiritual world views. Raymond Cross is ready. He will have a seat at that table where the future is divided. His voice will be heard in the courtrooms when difficult questions are asked. He issues a gentle warning to those who will join in this conflict.
“Non-Indians will never have western eyes so long as they cling to the Man versus Nature dichotomy. Four hundred years of this thinking gets you a civilization of people lost in shopping malls, coast-to-coast take-out windows, a culture that has lost its connection to the natural world. That is the ultimate poverty for all men, and no amount of money can ransom that sadness.”
The gavel cracks. Members of the Army engineers’ commission have taken their seats at a long table. The room, overflowing with a standing-room-only crowd, falls silent. Tall and deliberate, the Mandan/Hidatsa attorney with the long eyes who has journeyed across a nation that most Americans will never know, rises to his feet and steps forward to the open microphone. A door closes in another part of the building. A car horn blares on the street. A binder snaps shut across the room as one thousand eyes swivel, yielding the ticking silence to the lone coyote.
“Mr. Chairman,” he begins, “my name is Raymond Cross, and I am here to testify on behalf of the salmon, and the American Indian nations . . .”
APPENDIX A
Indian Law An Evolutionary Time Line
No field of American jurisprudence has enjoyed a greater surge of popularity among students and public-service law firms in the past twenty years than the topsy-turvy, often counterintuitive world of Indian law. Compared to more conventional and well-traveled disciplines of the law, Indian law is the Wild West, a territory so wide open and fluid that it is still possible for bright young lawyers to strike out and make names for themselves on unclaimed terrain.
“Indian law has emerged in the past ten to fifteen years as the hottest place to be if you’ve got the intellectual horsepower,” says Houston mediator Douglas Sandage. “It’s devilishly complex and exciting. There is nothing else quite like it in our legal system.”
What follows is a cursory listing of important precursors to American Indian law and the subsequent cases heard in American courts that have played a leading role in shaping the law as we know it today. Some of the more recent cases, such as the 1998 case Isleta Pueblo v. City of Albuquerque and the 1999 decision in Minnesota v. Mille Lacs Band of Chippewa Indians, are leading indicators of the battles that will be fought over natural resources in the decades to come.
PRECURSORS
Innocent III and IV—Midway through the thirteenth century, Pope Innocent IV, an intellectual pontiff known as the Lawyer Pope, wrote a commentary on Innocent III’s papal decree of 1204, Quod super his, distinguishing the legal status and rights of non-Christian societies against the emerging background of legal scholarship known as natural law. Innocent IV would ask: “Is it licit to invade a land that infidels possess, or which belongs to them?” He went on to construct a broad-based defense of the Crusades and the conditions justifying Christian warfare against infidel peoples occupying the Holy Lands. Innocent’s underlying legal premise was that Christ’s life and death had consecrated the Holy Land. Therefore, Christ’s followers, not Muhammad’s, should dwell there.
Turning Aristotle’s humanism on its head, Innocent IV reasoned that infidels indeed had a natural law right to the ownership of land, but there was a catch. Pagan worship of idols and other rites constituted an unpardonable breach of natural law, said Innocent, and these blasphemous practices required Christ’s supreme representative on earth, the pope, to intervene and set things right. At the heart of his argument was the premise that every rational creature was bound by the dictates of Christian and Eurocentric precepts of natural law, standards of conduct that the pope was required to enforce by the mantle of responsibility transferred to him by divine law. Furthermore, the pope’s privileged authority on divine law made obedience to him the only means of salvation. Today’s lawyers would call this a “bright line.”
Innocent IV’s commentary midway through the thirteenth century would profoundly influence the thinking of kings and conquistadors in discovery-era Europe two centuries hence. Legal scholar Robert Williams explains how Innocent’s commentaries successfully rooted themselves in the ensuing discourses on conquest: “Secular power could be invoked to suppress ecclesiastically defined evil in a world governed by the divinely constructed precepts of natural law. . . . Secular authority in and of itself possessed no inherent function or aspect. . . . It was only an auxiliary power to be used by the pope in appropriate circumstances and at his sole, divinely inspired discretion. This, needless to say, suited the ambitions of the medieval popes. By abstracting the principles of divine justice and remitting them in an earthly form of crusading armies, the feudal-era papacy was fulfilling its divinely ordained responsibility to establish the Christian church as the dominant reality on earth.”
Sepulveda v. Bartolomé de Las Casas—After spending twentysome years among the Caribbean Indians on the island of Hispaniola, the humanistic Dominican friar Bartolomé de Las Casas returned in 1555 to the University of Salamanca, Spain, to defend the natural law rights of the natives. The battle between the prelate, arguing Innocentian law, and the dogmatic Sepulveda became the most celebrated debate in discovery-era Europe. Sepulveda argued that the law of nature was honored and understood only by the wisest and most prudent of the higher races. Therefore, heathen Indians could not possibly live by the law of nature. The Dominican priest countered with the argument that the Indians had demonstrated the rational capacity to comprehend the gospel (Las Casas estimated that 20 million Indians had been slaughtered by the Spanish in less than half a century). Despite his passion and logic, Las Casas’s appeal to the crown failed to convince the king or his lawyers that the Indians had a legitimate claim to rights and privileges.
Lord Coke and Robert Calvin—In 1608, a decision in a case tried in Elizabethan England would have consequences for Indians in the New World for the next three centuries. A Scotsman named Robert Calvin filed a suit to recover land that he claimed had been taken from him unjustly. The opposing attorney argued that the claimant Calvin was “an alien born,” and therefore, since he was out of allegiance to the king of England, his claim on English turf was specious.
In considering this argument, Lord Coke, who had for the first time systematized English common law, attempted to play Solomon by making fine distinctions under the broad category of aliens: “A perpetual enemy, as distinguished from friendly aliens, cannot maintain any action or get anything within this realm. All infidels are in law perpetui inimici, perpetual enemies [of the enlightened people], and between them, as with devils whose subjects they be, and the Christian people of the European states, there is perpetual hostility, and there can be no peace.”
Once the New World was claimed by the discoverer (the English crown), the land and everything and everyone on it fell under the province of the king. Therefore, the legal status of “savages and infidels” in the New World had already been decided in an English court before the first colony was established at Jamestown.
Lord Coke, in fact, would help draw up the official royal charter for Sir Walter Raleigh’s new Virginia Company in 1606. As agents of the king, Raleigh’s company had the responsibility for the propagation of “Christian religion to such people as yet living in darkness and miserable ignorance of the true knowledge and worship of God, and may in time bring the infidels and savages to living civility.” The king and his agents had not only a right but a responsibility to be at war with infidels who refused conversion. Thanks to Lord Coke, explains Robert Williams, Innocent IV’s thirteenth-century commentaries on natural law had become the invisible hand that wrote the official royal charter for the first English colony in the New World.
FEDERAL INDIAN LAW
Marshall Trilogy—The following cases, Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831),
and Worcester v. Georgia (1832), comprise what is known today as the Marshall Trilogy. In these pivotal early cases, the great chief justice John Marshall laid down the foundation of Indian law, and laid out the boundaries of the federal trust relationship with the tribes, by explicating the legal meaning of the term sovereignty.
Marshall explained that treaties protect Native American sovereignty as a preexisting condition to the ratification of any contract with the federal government. To complicate this state of affairs for their descendants (namely us), James Madison and James Wilson had insisted that the constitutional convention adopt treaties in Article VI of the U.S. Constitution as the “‘supreme law of the land.” The founding fathers spread the jaws of a trap that their descendants would step into two hundred years later. In the 1990s, the waste industry was only too happy to embrace sovereignty when it attempted to build landfills in Indian Country that were out of reach of federal regulators. When the tribes began to use sovereignty as a legal tool to withhold resources and coerce tough deals with extraction companies, sovereignty suddenly ceased to be a wonderful thing in the eyes of non-Indians.
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