Coyote Warrior

by Paul Van Develder

  Every congressman wanted a reclamation project approved for his state or district, regardless of whether it made economic sense. By 1924, less than 10 percent of the money loaned out by the bureau had been repaid. Sixty percent of the irrigators were in default. Congress simply extended the repayment period from twenty to forty years, which only created a new problem: crop surpluses. Despite the financial woes with the fund, the “psychic value of the Reclamation farms” remained high. A “preproject” acre that was worth no more than ten dollars was suddenly worth fifty times as much to speculators. At least one out of three Reclamation farmers sold out just in time, creating a fluidity in population and regional economics that the Reclamation Act was attempting to curtail. “Despite official declarations from more sensitive administrators that ‘Reclamation is measured not in engineering units but in homes and agricultural values’ . . . the Service [bureau] regarded itself as an ‘engineering outfit.’” Robinson, “Water for the West,” as quoted by Reisner, Cadillac Desert, pp. 118- 119. An astonished Reisner reported that “No one seemed bothered by a government creating expensive farmland out of deserts in the West” at the same time as it was “drowning millions of acres of perfect farmland in the east. . . . The entire business was like a giant pyramid scheme,” and American taxpayers were picking up the tab. Ibid., p. 141.

  177 could not have secured congressional approval: U.S. Congress, Representative Usher Burdick charges the Army Corps of Engineers with unconstitutional taking of Fort Berthold.

  177 the first drop of irrigation water had yet to fall: Between 1957 and 1964, Congress held three different sets of hearings in North Dakota. U.S. House Committee on Interior and Insular Affairs, Hearing on HR 7068; U.S. House Committee on Interior and Insular Affairs, Hearing on Provisions in Connection with the Construction of the Garrison Diversion Unit, 86th Cong.; and U.S. House Committee on Interior and Insular Affairs, Hearing on Provisions in Connection with the Construction of the Garrison Diversion Unit, 88th Cong.

  178 “This would be a good time for the governors and senators and representatives”: Limvere and Madsen, “Rumblings from the Ditch.” This special report is a “must-read” document for anyone interested in the history of Pick-Sloan.

  CHAPTER VIII: RETURN OF THE NATIVES

  Interviews: Raymond Cross, Louise Holding Eagle, Dr. Monica Mayer, Emerson Murry, Jesus O’Suna, Chief Justice Gerald VandeWalle, Hans Walker, Marie Wells, Dr. Herbert Wilson.

  186 Nixon’s message: Nixon, The Public Papers of the Presidents of the United States, pp. 223- 224.

  186 “The American Indians have been oppressed”: Ibid., p. 564. Declaring that “the policy of forced termination is wrong,” Richard Nixon let it be known that his position on this matter was nonnegotiable. To its credit, Congress not only responded by passing the Self-Determination Act but followed later with the Indian Education Act of 1972 and the Indian Health Care Improvement Act of 1976. Unlike many social remedies attempted by lawmakers, these laws have had beneficial effects on the residents of Indian Country that far exceeded Congress’ greatest hopes. Funding made education available to many thousands of Indian students, who have earned degrees in science, law, the arts, and social sciences.

  187 After his dramatic victory in the Adair case: United States v. Adair, 478 Fed. Supp. 336; United States v. Adair II, 723 Fed. 2nd 1394; and United States v. Adair [also known as Adair II], Fed. Supp. 2nd 1273.

  187 help the Yaqui people: What made this a particularly difficult challenge was the fact that there were two different tribes of Pasqua Yaqui in Arizona by the late 1970s. Jesus O’Suna, a veteran tribal councilman for the Yaqui, credits Cross’s effort with bringing the tribes into the twentieth century. The tribes’ casinos have given the Yaqui people the opportunity to live in real homes, operate their own schools and medical facilities, and become a political force in Arizona politics.

  188 Fragments of Public Law 280: Establishing State Jurisdiction over Indian Nations in Civil Disputes, U.S. Public Law 280. For a full discussion of P.L. 280, see Josephy, Red Power.

  188 “it was the Wold Engineering case”: Three Affiliated Tribes v. Wold Engineering, 463 U.S. 1248, and Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877.

  189 “routine disputes over the ordinary”: A case in Alaska arose between a small tribe and a subcontractor over an unpaid bill for twelve hundred dollars. By the time the case reached the U.S. Supreme Court, what was at stake was the ownership of millions of square miles of Alaskan wilderness and resources resulting from the Alaska Native Claims Settlement Act.

  191 The unemployment rate at Fort Berthold had risen: Spotted Bear recalls this period as the tribe’s post-dam nadir of social disintegration.

  191 Life expectancy for men: These and other current medical statistics were taken from interviews with Dr. Monica Mayer and Dr. Herbert Wilson. It is noteworthy that the profile of the Mandan, Hidatsa, and Arikara in 2003 is not dissimilar from that of hundreds of other tribes.

  192 The accounts were in such disarray: From interviews with Alyce Spotted Bear and members of the Three Affiliated Tribes Tribal Council. Of her many achievements during four years in office, Spotted Bear is most proud of leaving the tribal government in a state of solvency. “I had to practically beg the people at Interior to give me one more month to get the books in order. Frankly, I don’t believe they thought we had a chance in the world of turning it around, but somehow we did.”

  192 “Hiring Ray was your classic no-brainer”: Interviews with Alyce Spotted Bear.

  193 “The Supremes asked us to take another look”: Interviews with Chief Justice VandeWalle and Raymond Cross.

  193 North Dakota State Water Commission: The state agency responsible for acting as liaison between federal water programs, such as the Garrison Diversion Unit, and the state legislature.

  195 almost forty years after: Russell, Promise of Water.

  195 Pick-Sloan’s original price tag: The current price for Pick-Sloan is $20 billion and counting. Accountants and investigators for organizations such as the North Dakota Farmers Union believe this figure is very conservative, though it is the one most commonly cited.

  196 “the kind of working alliance”: Limvere and Madsen, “Rumblings from the Ditch.”

  196 “The reason people killed this idea when it first came up”: Ibid.

  CHAPTER IX: THE LAST TRAIN TO YUMA

  Interviews: Raymond Cross, Marilyn Hudson, Roger Johnson, Ike Livermore, Emerson Murry, Alyce Spotted Bear, Governor David Treen, Chief Justice Gerald VandeWalle, Hans Walker, Marie Wells, Ann Zorn.

  201 Congress’ requirements: Establishing Garrison Diversion Unit Commission, U.S. Public Law 360.

  201 municipal and industrial water systems: Ibid. In separate interviews, Ann Zorn and Ike Livermore, two of the eleven members of the Garrison Diversion Unit Commission, explained that the “institutional equity” issues they were asked to look at in the implementation of the Pick-Sloan Plan eventually dominated all other factors Congress asked them to investigate.

  203 Yet this lawless practice: Reisner, Cadillac Desert, pp. 114, 382- 383.

  203 Others aligned themselves: Russell, Promise of Water. These alliances would soon harden into a kind of trench warfare, a phenomenon not at all uncommon in the West, where water is prized. This is particularly true at the local level, when state and local governments bump up against the sovereign immunity of tribal governments that have first claim to diminishing water resources. At the Washington State Republican Convention in 2000, a motion was put on the floor calling for the “abolition of all Indian tribes.” That same year, the legendary “Indian fighter” from Washington, Slade Gorton, lost his bid for a fourth term in the U.S. Senate to Maria Cantwell. In a very close election that required a recount, votes turned out by the state’s Indian tribes swung the election to the newcomer Cantwell.

  206 Institutional equity was the eye of the needle: Establishing Garrison Diversion Unit Commission, U.S. Public Law 360.

&n
bsp; 207 “Chairman Treen and members of the commission”: Cross, Statement to the Garrison Diversion Unit Commission.

  209 Instead of raising questions about the “just compensation”: Cross, Recommended changes to recommendations.

  210 PANELISTS CONTEND INDIANS’ ROLE NOT RECOGNIZED: Neumann, “Panelists Contend Indians’ Role Not Recognized.”

  211 “Marc Messing”: In a private note to Zorn and Livermore, Messing wrote: “I am increasingly concerned that the commission may compound the injustices.” Messing, Memorandum to Ike Livermore and Ann Zorn on fundamental Indian issues.

  211 “The history of this settlement is a tragedy”: Ibid.

  211 Livermore reminded his protégés: Livermore and Zorn, “Observations on Visits to Fort Berthold and Standing Rock.”

  212 Zorn and Livermore began to prepare: GDUC, Final recommendations regarding Indian claims. See a complete manifest of final recommendations in U.S. House Subcommittee on Water and Power Resources of the Committee on Interior and Insular Affairs, Hearings on the Final Recommendations of the Garrison Diversion Unit Commission.

  213 in late December, at the same moment Zorn and Treen: GDUC, Transcripts of final meeting with Treen, Zorn, and O’Meara on recommendations to Congress.

  214 In mid-January 1985: U.S. House Subcommittee on Water and Power Resources of the Committee on Interior and Insular Affairs, Hearings on the Final Recommendations of the Garrison Diversion Unit Commission.

  214 unsettled Indian issues: The report to Congress stated in unequivocal terms that the commission had found “the tribes were entitled to additional awards” (Ibid).

  216 “Many of us have waited a long, long time”: Marie Wells was still on the Tribal Council when the JTAC arrived in New Town to hear testimony. Her testimony, re-created from interviews with Wells herself and others who were there, was very typical of the statements the committee members heard from the tribal elders.

  216 “We picked wild grapes, chokecherries”: The loss of these natural foods to the Indians’ diet would have a profound impact on their general health over the next two generations. Emerson Murry told me that the challenge for the JTAC was to find a way to put a valuation on sources of food and sustenance that were lost to The Flood, such as the chokecherry bushes. The loss of the chokecherry, in particular, seems to have left its mark. Researchers have recently discovered that antioxidants in the chokecherry are nature’s perfect antidote for heart disease. Prior to The Flood, less than 1 percent of the Indian population was afflicted with heart disease. Today, it is a leading cause of death.

  217 Hidatsa elder Cora Baker: Some of the testimony heard by the JTAC has been taken from abbreviated transcripts and posted on the Three Affiliated Tribes’ Internet home page (www.threeaffiliatedtribes.org). Many of the original records from these hearings were lost in a fire that destroyed several tribal records. Alyce Spotted Bear’s records were also lost when her home burned down many years after the hearings. Chairman Murry was able to provide me with boxes of bound reports compiled by staff, with the assistance of Raymond Cross, as the committee prepared its final report for Secretary Hodel and Congress.

  217 “When our economic heartland was taken away”: Ibid.

  218 Alyce and Raymond suddenly realized: From the beginning their strategy was to secure federal funds to develop water projects, then divert some of those funds to other projects such as feeding schoolchildren and heating the homes of the elders in winter.

  218 “We had a lot of fine people break down”: Chairman Murry and Hans Walker both told me they believed the oral testimony was the single most important factor in determining the direction of their report. In the opening hours, Murry knew that the JTAC investigation would produce a report condemning the actions of Congress in 1949.

  218 “Congress had blown it very badly”: As a lawyer with twenty-five years of experience as the director of the state’s legislative council, Murry was in a unique position to assess both the mistakes made by Congress and the means of reconciling them to existing laws. Early in the process, Murry recognized that they would be talking about monetary compensation. Congress went astray when it dismissed Felix Cohen’s warning that serious consequences would result if lawmakers ignored their responsibilities as trustees to the tribes.

  218 “I never really discussed this aspect of our investigation”: Murry said he did not feel the need to discuss the fine points of the “rules of evidence” with the nonlawyers on the committee, but the outcome hinged on the committee’s willingness to take the oral testimony at face value, as though it were actual “evidence.” Chairman Murry: “This was the only way we could eventually put some kind of value on all the things that were lost, such as the timber, the wild fruit and berries, all the things that had gone into making their world what it was.”

  219 “There was so much more at stake”: The efficacy of P.L. 280 was more clearly at stake in the second appeal than it had been the first time. This was a result of Erickstad’s insistence that the state had no right to hear the case without the tribe surrendering its “sovereign immunity.”

  CHAPTER X: INTO THE STORM

  Interviews: Bucky Cross, Crusoe Cross, Raymond Cross, Lee Foley, Marilyn Hudson, Roger Johnson, Ed Lone Fight, Emerson Murry, Alyce Spotted Bear, Governor David Treen, Chief Justice Gerald VandeWalle, Hans Walker, Marie Wells, Ann Zorn.

  225 Chief Justice Warren Burger gave the gavel a firm rap: Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877. The courtroom scene is taken from the transcript and from interviews with Raymond Cross and Alyce Spotted Bear. While trained lawyers will have no trouble following the arguments, those unfamiliar with the arcane vernacular of the law will likely find some of the arguments difficult to follow. Nevertheless, I felt that it was important to accurately portray the intellectual challenge of the exchange and the specialized training it required. In some places, for the sake of brevity or clarity, I have paraphrased the actual exchanges between Cross and the justices.

  231 What had been unjustly taken from the tribes: U.S. Senate and House, Joint hearing of the Senate Select Committee on Indian Affairs, the Senate Committee on Energy and Natural Resources, and the House Committee on Interior and Insular Affairs, Final Report and Recommendations of the Garrison Unit Joint Tribal Advisory Committee.

  231 a cash award that reflected the true value: U.S. House Subcommittees on Indian Affairs of the Committee on Public Lands, Providing for the Ratification by Congress of a Contract for the Purchase of Certain Indian Lands Under HJ Res. 33. A similar, more comprehensive report was compiled by the Missouri River Basin investigation team headed by Gordon Macgregor, which produced a number of excellent “white papers” on the effects of Pick-Sloan on the Missouri River tribes in the years prior to the actual flooding. Macgregor, “Social and Economic Impacts of Garrison Dam on the Indians of the Fort Berthold Reservation.”

  231 On June 16, 1986, the high court came back with its ruling in Wold II: Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877.

  233 Zorn agreed to tailor her remarks: U.S. Senate and House, Joint hearing of the Senate Select Committee on Indian Affairs, the Senate Committee on Energy and Natural Resources, and the House Committee on Interior and Insular Affairs, Final Report and Recommendations of the Garrison Unit Joint Tribal Advisory Committee.

  233 “the tribes’ Fifth Amendment rights had been violated”: Ibid.

  Zorn was invited to join Hans Walker, Raymond Cross, and Emerson Murry to make this presentation. Senator Daniel Inouye presided. Ronald Reagan’s secretary of the interior, Donald Hodel, shelved the entire investigation. Inouye summarizes Hodel’s position in a question to Zorn (p. 5):

  “The Department of the Interior has suggested that the report of the Tribal Advisory Committee does not provide adequate documentation to justify and establish that the tribes are entitled to additional financial compensation in the form of substitute or replacement value of the economic basis lost, as a result of the action taken. Do you believ
e there is adequate documentation to establish this claim?”

  Zorn: “I think we fully thought so at the time we were bringing the issues forth. We expected more documentation to come from the JTAC examinations.”

  Murry answered this question directly: “There was no question in our minds that the construction of the two dams and the impoundment of waters destroyed the major economic base of both the Standing Rock and the Fort Berthold Reservations. . . . In the case of the Fort Berthold Reservation, these activities made it one of the few, possibly even the only, economically self-sufficient reservation in the country. . . . The emotional impact, and we found it to be material, of this abrupt and radical change, could not be quantified, but it certainly was major, and its effects last until this day. The committee found that the tribes are entitled to be made whole for their specific losses.”

  Hodel’s strategy was to shelve the entire report, which he did for nearly two years. JTAC member Brent Blackwelder tells Congress that “the Department of the Interior never initiated any discussion with the Tribal Advisory Committee members to ask us questions, if they had any, about the report. . . . The question here is more a matter of right and just compensation. The Indians were deprived in a most unfair manner of resources vital to their livelihood, to their self-sufficiency, and we as a matter of right, ought to make that compensation and not delay further after decades. So, it’s not a question of can we afford it, but there is a right and an entitlement here, and in a nation as wealthy as we are, we ought to be able to make that budgetary commitment and fulfill this entitlement.”

  Zorn recalled the moment Inouye lost his patience during this hearing with the intentionally indirect testimony of the Army engineers’ General Dominy, who tried to lay the entire blame for Pick-Sloan at the feet of Congress. Inouye asks Dominy if he thinks the 1949 compensation package was fair. Dominy sidesteps the question.