Coyote Warrior

by Paul Van Develder

  Nixon then asked South Dakota senator James Abourezk, the son of Lebanese immigrants who settled on the Pine Ridge Reservation fifty years earlier, to assist his administration in writing the Indian Self-Determination Act of 1975. This was landmark legislation, a comprehensive act that imagined an entirely new day in federal Indian policy. Its partners, the Indian Education and Health Care Improvement Acts passed by Congress in 1972 and 1976, opened the doors of the white man’s educational system to thousands of young Indians. In the 1960s, fewer than five hundred Indian students were enrolled in schools of higher education. By September 2002, seventy thousand young Indians were taking college course work. Thousands more had already finished law school and joined the bar.

  “Tribes began developing legal personalities for the very first time because they realized that federal policies had been a disaster for well over a hundred years,” says Cross. “The time had come to change all that.”

  Coincidentally, this was also the era when fish counts on the Columbia began to plummet. By then, virtually every tribe in the West had its own legal department and its own courts and judges. Today, many tribes staff their own biological laboratories and natural-resource departments with native scientists. Every law school west of the Mississippi offers courses in contemporary Indian law, public lands, and environmental law. Simultaneously, lawyers at agencies such as the BPA were awakening to a new set of twenty-first-century realities. With increasing regularity, natural resource law and federal environmental policies were crossing paths with federal Indian law. In the modern world, BPA lawyers would now have to figure out how treaties signed in 1855 might skew the agency’s mandate from Congress in 2002 to provide power on demand to public utilities in southern California and the Midwest. Dams on the Columbia were more than concrete structures with fish ladders and hydroelectric turbines. They had become the point of intersection between laws written by the founding fathers, century-old treaties, environmental legislation, and a confounding array of state and municipal laws. What was at stake with each turn of a turbine was the fate of tribal societies whose cultural survival was legally recognized to be inextricably linked to the survival of a fish. Somehow, the BPA had to find a way to balance existing commitments against the economic survival of those industrial and agricultural interests fueled by the Columbia’s water, by the inexpensive transportation afforded by its lakes, and by the unlimited power generated at bargain rates by its dams.

  Annually, the BPA spends half a billion dollars to protect native salmon stocks and habitat. But one day soon, that investment could well seem trivial. A compact signed in 1995 by the twelve basin tribes and the Canadian and American governments hung a sword of Damocles over Congress’ head. If the federal government’s salmon-recovery plan fails and the fish become extinct, the tribes are guaranteed a lump sum payout of 10 billion dollars from American taxpayers for the abrogation of their treaty rights. Every year since the compact was signed, fewer and fewer native salmon have returned to spawn in basin headwaters. Barring a dramatic and unforeseeable turnabout, the trajectory of the current “extinction model” projected by National Marine Fisheries biologists will touch the zero-line in 2017. Author David James Duncan has argued that Columbia River fish counts should be printed daily on the front page of the Wall Street Journal. Peering into their crystal ball in 2000, the BPA legal staff realized the time had come for a crash course in federal Indian law.

  “I first heard Raymond speak a couple of years ago at a conference on natural resource policy,” says Philip Key, the staff attorney who organized the workshop at the BPA headquarters in Portland. “In the first five minutes I knew we were in the presence of something very special. Here’s a tall, powerful-looking Indian man addressing a roomful of egomaniacs on the subject of recent environmental case law. Before he was finished, people were holding their heads in their hands. This was our guy.”

  Raymond’s wife, Kathleen Johnston Cross, and their two children, Helena and Cade, came along for a quick trip to the big city before the Missoula winter set in. Raymond and Kathy met at Harvard’s John F. Kennedy School of Government back in 1988, when both were taking scholastic sabbaticals from work; Raymond, from his job as a tribal attorney, and Kathy, from her career as an administrator with philanthropic foundations. At ages forty and thirty-eight, respectively, neither had ever been married. It was love at first sight. Raymond and Kathy tied the knot in New York City the following year, then moved to San Luis Obispo, California, where Raymond took a position teaching law at the local college. Daughter Helena came along in 1991, and son Cade arrived the following year. It was about this time that a legendary pioneer in Indian law, Professor Marjorie Brown, decided to retire from her post at the University of Montana School of Law in Missoula. When Raymond was invited to fill her vacancy, he accepted without hesitation. He’s held the position ever since.

  Raymond had earned his undergraduate degree in political science at Stanford University in Palo Alto, California. For a while, he toyed with the idea that he might do graduate work abroad, preferably at the London School of Economics. But neither political science nor economics seemed to be avenues that would lead to a practical career path for a twenty-one-year-old Indian who felt rich when he had two nickels to rub together. So, in his senior year at Stanford, he applied to four law schools: Harvard, Yale, Notre Dame, and Stanford. He was admitted to all four on full scholarship. Raymond flipped a coin. By now he felt completely at home in the white world. He had thrived on the intellectual stimulation at Stanford, but that was the relaxed, laid-back milieu of the West Coast. At Yale, life in New Haven would be a galaxy removed from the familiar landmarks of Palo Alto, California, and Parshall, North Dakota. “Yale was a real cultural challenge for me, coming from Parshall, North Dakota, but you don’t learn much real-life law there. What you learn at Yale is professional posture, your rank in the social order. The main thing I knew, coming out of Yale, was that I wasn’t headed for Wall Street. I considered myself very lucky.” California Indian Legal Services hired Raymond straight out of Yale Law School in 1973. The move back West felt like a homecoming after three years in New Haven.

  The little Subaru swerves onto Southwest Broadway, then slowly cruises past the federal courthouse. Raymond cranes his neck for a better look at his old haunt. His face suddenly lights up. A bronze plaque mounted on the front of the building reads GUS J. SOLOMON FEDERAL COURTHOUSE. “Well I’ll be damned. They named it after Gus. Isn’t that great. It’s a common misconception that you go to law school to learn the law,” explains Raymond. “That’s a lot of hooey. You go to law school to pass the bar. You learn law out here in the world, from judges who come to work in buildings like that one.”

  Cross is referring to Federal District Judge Gus Solomon, who presided over the first big case he took to trial when he went to work for NARF—the Native American Rights Fund, based in Boulder, Colorado—after his stint at California Indian Legal Services. The outcome of this case, now a textbook study in water law known simply as Adair, impacted dozens of state governments and hundreds of tribes with treaty-protected water rights. Like so many battles in the West, Adair turned into a cowboys-and-Indians shoot-out over stream flows and acre-feet of water. Judge Solomon’s 1981 ruling in favor of the tribes was so reviled by white ranchers and farmers that they decided to battle it out all over again twenty years later. Farmers in the arid Klamath Basin of southern Oregon spent a lot of money trying to get Solomon reversed on technicalities. Their challenge proved feeble. None of the new claims struck a sympathetic chord with Federal District Judge Owen Panner. In February 2002, Panner issued a forceful reaffirmation of Gus Solomon’s original ruling.

  At stake in this contest were the treaty-protected water rights of the Klamath Indians, a tribe that was formally terminated by the U.S. Congress in the early 1950s. In a later act of contrition complete with formal apologies, Congress restored the Klamath people to their former status as a federally recognized treaty tribe. When the state of Ore
gon denied their rights to water in the Klamath Basin, the penniless tribe turned to the legal staff at the Native American Rights Fund. In court, the Klamath argued that their original treaty rights had not been forfeited by Congress’ illegal termination. If the termination was itself illegal, argued Cross, then their first-in-line water rights—for all manner of uses, including fishing and irrigation—had remained intact throughout the ordeal.

  The state of Oregon and the tribe’s white neighbors vehemently disagreed. Farmers wanted unrestricted access to the basin’s limited water resources to irrigate their crops. In his reaffirmation of Gus Solomon’s earlier ruling, Judge Panner found that the Klamath’s claim to enough water to maintain a healthy fishery was not only intact but also a right grounded “in time immemorial,” predating all others. Once again a federal court declared that the Klamath’s claim was superior to all competing demands, a decision with dozens of contemporary echoes from federal courtrooms across the arid West.

  During his tenure with California Indian Legal Services in the mid-1970s, Raymond pined for a shot at a big case, one that could have far-reaching consequences in Indian Country. When he moved to Boulder, Colorado, to join the staff at NARF in 1975, that opportunity walked through his door on a blustery spring day in 1978. He won the assignment to argue Adair. As the new guy at NARF, the chance of that happening had been slim to none. High-profile cases like Adair were usually assigned to attorneys with more experience in the courtroom. But his luck was running. Adair presented itself at a time when the staff veterans were overextended with other cases.

  When Raymond filed the Klamath tribe’s claims in federal court, the suit set off alarm bells across the West. Predictably, a counterchallenge from the Oregon attorney general’s office was instantaneous. It seemed the suit had no sooner been entered into the court’s log than the volley of motion and countermotion turned feverish. Against the odds and into the current, Cross was soon on his way to Portland. The flurry of paperwork and fast-breaking developments made it obvious that there was no effective way to fight this battle from Boulder. By moving to Portland and camping out in Solomon’s courthouse, Raymond could beat the state at its own game. It was in that courthouse, says Cross, that he got his real education in the law.

  “This was not the kind of case you give to a twenty-nine-year-old kid,” says Cross, smiling all these years later at his improbable good fortune. “On the other hand, none of us at NARF really saw where this thing was headed. We knew it was big, but we didn’t know it was that big. For me this was like going from the neighborhood blacktop to the NBA in one big step.”

  Raymond’s audience at the Bonneville Power Administration headquarters is scattered out among two dozen tables. They’ve given themselves plenty of room to stretch and fidget, with notebooks open, pens in hand. Windows run the length of the wall on both sides, overlooking a city park. He’s relaxed at the podium, and guffaws with genuine laughter at a casual joke. For the next eight hours he will lead a roomful of mostly white Anglo-Saxon male and female attorneys on an intellectual scavenger hunt through a bewildering legal maze known as federal Indian law.

  “I was really pleased on the way over here this morning to see that they named the new federal courthouse after Judge Solomon,” he begins. This is a calculated opening, a way to set his audience at ease. Everyone in the room knows of Judge Solomon. Many of the agency’s veteran attorneys argued cases in Solomon’s courtroom. Moreover, all present know that Raymond Cross was the principal architect behind Judge Solomon’s Adair ruling, a decision that tends to dominate the legal foreground in current disputes between states, municipal governments, and tribes throughout the Columbia River Basin.

  “In hindsight, I’d have to say what I learned from Gus Solomon was part two of my legal education. You could say it was the practical side, the one that taught me how to work the important details of a case from beginning to end. But for all of Judge Solomon’s wisdom and fine counsel, it wouldn’t have done me much good without part one. Part one came from a man whose genius was certainly unique in the history of American jurisprudence, a man who understood better than any of our founding fathers that we are held together as a nation by our mutual willingness to embrace a system of laws, our foundational laws.

  “I am here today to talk about Indian law, because Indian law is the oldest branch of our nation’s foundational law. It surprises my law-school students to learn that Indian law predates the founding of the republic. But as every lawyer and legislator knows, creating law is one thing. Some say it’s the easy part of this law business, and I tend to agree. Once the law is on the books, somebody has to make those abstractions work in the real world, right here on the Columbia River. How does that happen? Well, for that answer we have to go back and take a second look at our founding fathers.

  “While they all made important contributions, particularly Mr. Madison and Mr. Hamilton, most were probably dispensable. But when it comes to Chief Justice John Marshall, I’m not so sure that’s the case. As time goes by, it gets more and more difficult for me to imagine where we would be today without him. We’ve certainly never had a more visionary chief justice, or one with a greater legal intellect. He was like a world-class chess player, a man who could see eight, ten, twelve moves into the game. He knew that the young American republic was headed for trouble. There was no way around it. The fractures were there in our founding laws, and they would have to be addressed somewhere along the way. It came thirty years later, at Gettysburg and Appomattox. Marshall said, ‘Okay, look, there’s going to be trouble, big trouble. If we manage to survive as a nation, what can we do today to help reconcile those fractures in our law when that day comes?’ Marshall was absolutely the right man at the right time. It’s historically astonishing. To really get a handle on his contributions, what he was grappling with, let me take you back for a moment and show you the world as it looked through his eyes.”

  The federal Indian law that applied to dams and fish counts on the Columbia River in 2001, Cross told his audience, could be said to have its origins in the presidential election of 1800. President John Adams lost his bid for a second term to his chief political rival, Thomas Jefferson. The contest in 1800 was as fiercely divisive as the presidential election two centuries later in 2000, a contentious standoff that was still fresh in everyone’s mind. In 1800, the young republic had grown to sixteen states and had a population of 5.5 million people. The government was still carrying $81 million in debts incurred during the War of Independence from King George III. The seat of government had moved a year earlier from Philadelphia to Washington. When Adams left the presidency in March 1801, his parting act of ill will toward the incoming president was to nominate Jefferson’s arch nemesis, a federalist by the name of John Marshall, to be the new chief justice of the U.S. Supreme Court.

  In Adams’s view, the Marshall nomination was a well-aimed blow. Marshall’s superior intellect and judicial independence would bedevil Jefferson throughout his presidency. A tall, dignified Virginian with an impeccable reputation for integrity, the self-possessed, soft-spoken jurist from Fauquier County commanded greater respect from friends and adversaries—as a gentleman, civil servant, and legal scholar—than any man in early America. In character and intellect, Marshall towered above the politicians of the day. He inspired awe in his peers and foes. The great lawyer and orator from New Hampshire, Senator Daniel Webster, would one day tell Supreme Court Associate Justice Joseph Storey, “I have never known a man of whose intellect I had a higher opinion than Judge Marshall’s. His black eyes proclaimed the imperious powers of the mind that sat enthroned within, a gigantic genius that trampled all with disdain. No matter how gnarled the oak, John Marshall would, without effort, penetrate the knot.”

  Marshall’s groundbreaking opinion for the majority in Marbury v. Madison established the principle of judicial review for the Supreme Court, a decision that secured the court’s power to determine the constitutionality of laws passed by Congress. Marbury is o
nly one of hundreds of decisions issued by the Marshall court over a thirty-four-year period that continues to define the boundaries and powers of the federal and state governments, and illuminate the civil rights and liberties of individuals. Marshall consistently frustrated Jefferson, the ardent states’ rights activist, by subordinating state power to federal authority. As time went on, he increasingly demonstrated a quiet devotion to the rights of property and to the idea of steady governance by wise and good men. Marshall viewed public service by those same wise and good men as life’s highest and most noble calling. Yet like his federalist allies Madison and Hamilton, Marshall could survey the world with the cold eye of a true pragmatist.

  To the end of his life, John Marshall believed that the democratic ideal of government by the common man was a promise that could never be fulfilled. He quietly harbored profound doubts as to the average citizen’s ability to legislate against his own self-interests, a quality of personal character that Marshall viewed essential for enlightened leadership in government. Time and experience would reinforce his views, convincing the chief justice that the ideal form of government was a limited democracy run by enlightened and benevolent despots.

  Cross tells the BPA attorneys that as a legal theorist, Marshall had an impact on the eventual outcome of the salmon crisis in the Columbia River Basin that can be found in his formulation of the ground rules that today control the playing field of Indian tribes, states, and the federal government. Marshall’s Indian law schemes began to take shape in the early 1820s, with a trio of cases involving the Cherokee nations. The court would hear these three cases—Johnson v. McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia—over a ten-year period from 1822 to 1832.