Coyote Warrior

by Paul Van Develder

  Many elders told the Tribal Council that no force on earth could make them abandon their homes. Some vowed they would rather drown than be exiled to the world “on top.” As dignitaries converged on North Dakota for the official dedication of the dam on June 11, 1953, the owner of the dry-goods store in Elbowoods, Hal Simon, was found dead in his home behind the store. Leaving a young wife and a six-year-old daughter behind, Simon had taken his own life, said his note, because he could not face losing the world they had built in Elbowoods. The mute testimony of their bitter despair would not be recorded in committee meetings on Capitol Hill but would continue to appear on the obituary pages of small-town local newspapers for years to come.

  By the late summer of 1954, the Missouri River was rising rapidly. Day by day, the floodplains and gooseberry woods around Elbowoods disappeared beneath the Missouri’s turbid waters. Many residents began to realize that they had waited too long to make their preparations for the move. Every Sunday morning for the past year, Reverend Case and Father Reinhart led their congregations in Elbowoods in singing “Plant Your Feet on Higher Ground,” yet when The Flood finally came, the evacuation came off as a mad scramble. Many homes were left intact, still sitting on their foundations. In the final dash to high ground, someone realized that all the school’s athletic trophies had been left behind in the trophy case at the high school. Armed with flashlights, a group of former basketball players assembled a small flotilla of rowboats, returned to Elbowoods on a moonlit night, and rowed down the school’s main corridor to the trophy case. The Elbowoods Warriors trophies were the last things to be rescued from the green depths of Lake Sakakawea. As the boatmen swung their sterns toward the drowning village, clouds scuttled across the face of the moon in a rising wind. The boats raced for shore, battling to stay one stroke ahead of the gathering storm. Familiar voices greeted them at lake’s edge. Flashlights crisscrossed in the leafless treetops and swirling flurries of snow. For the first time in nine hundred years, the winter moon would not rise on Mandan Villages in the gooseberry woods of the Missouri River Valley.

  “When it’s fifty below in February, the sheet of ice on the river can get to be a couple of feet thick,” says Crusoe. “People think it fractures and breaks apart in the spring, piece by piece, but that’s not what happens. As snow starts melting upstream, the flow of water beneath the ice builds up pressure. In a sudden thaw, that pressure builds so quickly that the entire ice sheet explodes. You can hear it miles away, like a sonic boom, disintegrating into ten zillion pieces. That’s exactly what happened to us when The Flood came to Elbowoods.”

  Unwilling to entrust her own future to whims of chance, Dorothy Cross filed for divorce from Martin, then arranged for a crew of Army engineers to move Old Dog’s house to one of several lots the tribe had purchased in Parshall. The divorce went through in early 1954, but establishing a new residence “on top” soon proved to be more difficult than ending her twenty-six-year marriage. Along with hundreds of other exiles from Elbowoods, Dorothy arrived in Parshall with two suitcases full of her belongings, a young child under each arm, and her son Milton, a mentally retarded teenager. The two oldest kids had enlisted in the Air Force. Uppy was finishing high school with a family in Garrison, and Marilyn was off to college in Minot. Bucky was doing odd jobs for the Corps, and Michael was floating back and forth between Martin’s ranch and school in Parshall.

  “When we first got to Parshall, we lived in some abandoned shacks that were moved to town at the last minute,” says Raymond. “They weren’t much more than chicken coops, really. For awhile there, we moved from shack to shack. The seminomadic life can get pretty chaotic. Mom didn’t have the repertoire of skills to deal with everything that was happening. My earliest memories are of being completely alone in one of those shacks.”

  Eventually, Old Dog’s house arrived in Parshall and was settled on its new foundation on East Second Street. The back door, which once looked out across sixty miles of bottomland and empty prairie to the lights of Minot, was now two blocks from the Grand movie theater, the bowling alley, and the American Legion Hall on Main Street. Plumbing and electricity were installed, so for the first time in her adult life, Dorothy Cross would have an indoor bathroom, hot and cold running water in the kitchen, and electric lights. Her semi-estranged husband, however, was unwilling to give up life on the range for the relative luxury of town. Martin built a new ranch on Old Dog’s allotment, twenty miles south of Parshall. He excavated a half basement from the hard scrabble, drilled a well, poured a concrete foundation, and turned the solid-frame structure of the Tribal Council offices he’d moved from government square in Elbowoods into his new ranch house. After living in Elbowoods all his life, his nearest neighbor at the ranch would be two miles away.

  Martin Cross had probably been the first to realize that the battle to stop the dam was lost. A decade of fighting the power brokers on their own turf, in Washington, had hardened Chief Old Dog’s son into a political realist. Now, as he sat between President Eisenhower and General Lewis Pick on the reviewing stand at the dedication ceremony for Garrison Dam, he knew that a larger war, to save the Three Affiliated Tribes from oblivion, had begun in earnest.

  CHAPTER VII

  Hitting Bottom On Top

  “I have met a white man. He was fair to behold, very pleasant, very genial personality. He appealed to me as a high-type man. . . . I tell you, my people, the white man is your friend. Protect him, furnish

  him food, furnish him shelter, because he is our friend.”

  BLACK CAT, MANDAN

  As the village of Elbowoods disappeared beneath the whitecaps on Lake Sakakawea in September 1954, legislation designed to terminate federal wardship over American Indian tribes was quietly moving through a dozen committees in Congress. Thus far, no one in Washington had raised a single objection to this menacing raft of laws. Since the deaths of Felix Cohen and Harold Ickes, and the exile of former Indian commissioner John Collier, it seemed that the tribes’ few remaining allies in Washington had been thoroughly demoralized, or neutralized, or effectively run out of town. It was a new day in Washington, one the protermination forces were determined to translate quickly into a new day for Indian Country. The point of their spear was Public Law 280, the federal statute originally sponsored by Senator Arthur Watkins that initiated the transfer of jurisdiction over Indian tribes from the federal government to the states. While this law appeared innocuous enough to the general public, its “real-world” effect would be to summarily sweep aside all binding contracts between Congress and the Indians, and to declare null and void all constitutionally protected agreements, such as the Treaty of Horse Creek.

  By 1954 state legislatures in New Mexico, Arizona, and Montana were using P.L. 280 to begin assuming jurisdiction over the tribes within their borders. North Dakota’s legislature was the latest to approve the measure, but many of the state’s legislators were fish out of water when it came to the more exotic legislation being handed down by Washington. More familiar with farm futures and agricultural price supports than federal Indian law, North Dakota’s lawmakers were uncertain as to how this new law was going to affect the state’s relationship with the nine sovereign Indian nations residing within its borders. Just how these new civil and criminal jurisdiction laws were going to interact with federal law, not to mention state statutes, was anybody’s guess. Since there was no road map out of this thicket, North Dakota’s governor, C. Norman Brunsdale, decided that the new director for the Legislative Research Committee should be an adventuresome sort, a lawyer who was simultaneously fearless and creative. For the right person, this would be an exciting opportunity to camp out on the leading edge of untested legislative reforms.

  When the governor put out the word, the name Emerson C. Murry turned up on two lists as the top choice. The first endorsement came from the dean of the University of North Dakota law school; the second, from the sitting chief justice of the North Dakota Supreme Court. Both described Murry as an energetic and h
ighly competent young professional. While his résumé might have suggested that Murry was a little green for a post with such high visibility and political sway, both men assured Brunsdale that the young attorney from Rugby would be an excellent appointment. He was not your average thirty-year-old wheat farmer with a law degree. Murry had enlisted in the Army on December 6, 1941. As a paratrooper with the 17th Airborne, 82nd Infantry, he had seen combat across Europe, from Belgium and Luxembourg to the Ardennes and the Rhine. In the years right after the war, he had not only graduated at the top of his law school class but also clerked for the state supreme court. Governor Brunsdale looked no further.

  “I considered myself the luckiest guy in the world,” says Murry, a retired major general in the U.S. Army. “I’d survived the war, gotten through college and law school, and now the governor offered me the best job on earth.”

  When the legislature was in session, eighty-hour workweeks were routine. Once the flood of legislation started, it never seemed to stop. Double shifts and weekends would not be enough to keep up with the workload. Aside from Washington, it seemed that every legislator in the state was writing bills. Murry’s primary responsibility was to read these new laws, absorb the content, and report back to the legislature on the merits of all proposed legislation. In his first month on the job, Murry began to recognize the “huge gaps” in his legal education. His first order of business was to get a working knowledge of federal Indian law, but that was a daunting task. When Public Law 280 dropped onto Murry’s desk, he immediately recognized an opportunity to immerse himself in the unknown.

  “It doesn’t take long with Indian law before you realize you’re breathing a different kind of air,” reflects Murry. And while the work of a state legislature can intersect with federal Indian law on a dozen different planes, just how those intersections will play out in municipal, county, township, and statewide statutes is by nature an unknown. Complicating matters further, when Congress passed P.L. 280 and began transferring federal jurisdiction over the tribes to the states, not a single state legislator in North or South Dakota, Montana, Wyoming and Colorado, Arizona, or New Mexico was trained in federal Indian law.

  Murry immediately realized that once it was enacted at the state level, the scope of P.L. 280 would be sweeping. Civil and criminal jurisdiction would dilate to include the management of Indian lands and natural resources, forests and rangeland, the implementation of irrigation and municipal water systems, the building of roads, and most important of all, the right to conduct land sales. Until now, all of these areas of the law were completely foreign to the states. To help him investigate what P.L. 280 might mean for both the Indians and the state of North Dakota, Murry hired a young Hidatsa lawyer named Hans Walker, whom he had met in law school. Walker had impressed Murry with his quiet manner and subtle but powerful talent for the law. Together, they began deconstructing P.L. 280 like the engine of a car, so they could examine its many pieces. For Murry and Walker, the report on P.L. 280 required total immersion in state land codes and federal Indian law. In the end, Murry and Walker recommended that the state legislature leave the adoption of this law up to the tribes. “In our view, this was the only way we could square the federal government’s trust obligations to the tribes with the transfer of jurisdiction to the states.”

  While Emerson Murry and Hans Walker were busy writing their report on P.L. 280, Congress was busy in Washington, D.C., churning out another dozen pieces of termination legislation. The most prominent new initiatives were House Resolutions 89 and 108. The former stated that the objective of termination was to bring an end to “all Federal supervision and control over Indians.” Committees reporting back to the full House urged Congress to expedite any legislation that promised to bring about the “full assimilation of the Indians into the nation’s social and economic life” because existing policy was out of step with mainstream America. “Immigrants do not become citizens as tribal groups,” reasoned Congress, “and neither should Indians.”

  Despite its treaty obligations, Congress had never bothered to explain its objectives to the citizens of Indian Country. The oft-quoted purpose of “making Indians whole” by “setting them free” was simply a legal cover for stripping them of their treaty protections. To the surprise of no one, the first round of termination hearings was scheduled between Senator Watkins’s committee and the “Tribes of Utah,” soon to be followed by the Three Affiliated Tribes. Both groups were deemed ready for “complete termination of wardship status.” Chairman Cross responded to this news with a furious letter to North Dakota’s congressional delegation telling them that the Mandan, Hidatsa, and Arikara people, having recently lost their homes and communities to the Army Corps of Engineers, were in complete disarray. In Cross’s opinion, his people had never been less prepared, or less willing, “to take such a drastic cure.”

  Martin Cross was a man under siege. He was newly divorced, and his tribes were scattering to the four winds. Now the Bureau of Indian Affairs wanted to dissolve their tribal government by putting tribal members on buses and trains with one-way tickets to distant cities. Despite his personal misfortunes, he wanted Washington to know that he was prepared to stand and fight. “We are opposed to the withdrawal by the government of any help that they give us,” Cross told Congress. “We only oppose their interference in the management of our own property and money.”

  Yet even as members of his tribe were battling to survive their first bitter winter “on top,” Cross knew that he could not let down his guard. The fictions now being advanced by the BIA seemed extraordinary even to Cross: “The tribes are now enjoying the highest level of resources in their history,” said a new BIA report in 1955, noting that tribal members believed “their present plight is up to us to do something about.” The report concluded that since the construction of Garrison Dam coerced members of the Three Affiliated Tribes to make major readjustments to their lives, the forced march to higher ground was “an excellent opportunity [for the tribes] to break with the past. We can see no particular gain for the Indian people by delaying the institution of a planned withdrawal of all special government services. The shock of such a program will have immediate repercussions, but the negative effect of such reaction can be considerably reduced if the problem is properly presented in positive terms. It is our belief that the time is ripe for early consideration [for termination] at the Washington level.”

  Chairman Cross went on the offensive, arguing publicly that the BIA was becoming more reckless by the day. As it had done so often in the past, the agency chose to ignore known facts when the facts did not serve their objectives. As it had so often throughout its history, the very agency responsible for safeguarding the Indians’ interests had become the tribes’ principal adversary. Eisenhower’s Indian commissioner, Glenn Emmons, hailed a new protermination report produced by his own agency as “an opportunity waiting to be seized.” In February 1955, Emmons sent his personal representative, Homer Jenkins, to New Town to meet with the Tribal Council. In so many words, Jenkins conveyed Emmons’s opinion that the time had come for the Three Affiliated Tribes “to get out on their own” and begin the move toward termination without delay. Jenkins urged the leaders to close the tribal rolls, demand a lump-sum payment from Congress for all money still due them from the 1949 taking, and agree to terminate their tribal government.

  Cross and the council listened politely to the commissioner’s emissary. Once Jenkins had said his piece, the council sent him on his way without tipping its hand. At the first opportunity, Cross loaded the entire tribal government onto the train in Minot and headed for a showdown with the secretary of the interior in Washington, D.C.

  “Mr. Cross,” began assistant BIA commissioner Warren Spaulding, “we understand that you desired to meet with some of the bureau people for certain discussions. You undoubtedly have something to say, so would you care to lead off?”

  “I am packing some resolutions in my briefcase, and I’m wondering if I should bother pres
enting them to the Indian office at all.”

  “How does everybody else feel about this?” asked Spaulding.

  Tribal councilman William Dean was the first to respond. “I have come after money, the money Congress owes us for taking our land, but I don’t want to be turned loose by termination. Whenever we try to cooperate with the Indian bureau, we don’t get to first base. All we do is spend lots of time and money going back and forth. It never gets us anywhere.”

  “In other words, you want the money owed you, but you also desire to retain the trust status of the land.”

  Mr. Cross interrupted. “The money belongs to us. Yet the way we’re treated, we have to come here and beg for it. If you’re using this as a way of bribing us to accept termination, then turn us loose. If we are incompetent, put it in writing. But you won’t do that. I know what I’m talking about, Mr. Spaulding.” Cross knew that if the agency declared the tribes incapable of managing their affairs, the bureau would be obligated to take the Three Affiliated Tribes off the list for termination. This, Cross knew, was something the bureau would not do. Therefore, if the three tribes were competent in the eyes of the bureau, what, then, demanded Cross, was the holdup with the money?

  “Well, you know all of these things must be reviewed.”