Coyote Warrior

by Paul Van Develder

  As soon as Tillie Walker arrived back in New Town that evening, she put the water commission hearings at the top of the agenda for the next day’s Tribal Council meeting. Alyce flew back from Washington early the next morning and raced home in order to make the weekly meeting. Tillie raised the issue as soon as Alyce called for new business. After the snubbing in Bismarck the day before, Raymond remembers that he went into the council meeting with mixed feelings. In fact, based on what he had learned in Bismarck, bringing old complaints to this new commission looked like a big waste of time.

  “After going through Adair, I had a pretty good idea of the obstacles we would have to overcome to reopen the compensation issues. Besides, Congress was pretty clear. These were hearings with white farmers over irrigation, not with Indians over the dam. From a practical point of view, this was a real stretch.”

  The Cross and Walker clans had been neighbors for going on nine hundred years, so members of each family were known to be blunt with one another. After hearing Raymond’s reservations, Tillie, a close friend of Raymond’s older sister Phyllis, shrugged them off. Over the next two months, Walker held her ground with passion and persuasion at council meetings. Her friend and ally, fellow councilwoman Marie Wells, was in Tillie’s camp. Wells had her own dark memories of The Flood, and she believed they should demand a hearing with the commission.

  “Marie and Tillie were tight,” says Alyce. “Once they’d made up their minds, you couldn’t get a knife blade between them.”

  Perhaps this Garrison Diversion Unit Commission was a long shot, just like Raymond argued, and maybe the legal hurdles were insurmountable. But even if the opening was no bigger than the eye of a needle, argued Walker, what did the council have to lose?

  “Let us never forget the people in these three tribes whose lives were destroyed by Garrison Dam,” said Walker. “We all know people who are still living with the horror of dislocation and disintegration in their families and communities. I say the dead have a right to be heard. I believe we have a moral obligation to make certain that no opportunity is missed to set this right. Raymond is probably right. We probably won’t get to first base. But we’ll never know if we don’t try.”

  The council voted unanimously to submit the Three Affiliated Tribes’ outstanding grievances related to the dam to the Garrison Diversion Unit Commission when the hearings began in Fargo. Raymond, Tillie Walker, and Marie Wells would travel to the hearings. If he could find a way to get legal standing before the commission, Raymond agreed to present the tribes’ case.

  But before they made the drive to Fargo for one roll of the dice, Raymond wanted the Tribal Council members to understand that their chances for success were slim to none. The North Dakota State Water Commission had refused to recognize the tribes at the hearings in Bismarck. As far as Congress was concerned, the tribes had already been compensated for their loss thirty years earlier, so they could not be regarded as “a stakeholder group whose opportunities were forgone.” In the eyes of Congress and the state of North Dakota, the compensation claim now being raised by the tribes’ attorney these many years later was a nonstarter. Everyone on the council said he or she understood that the odds were a million to one, against.

  What Raymond did not tell the council was that he may have found the eye of the needle, but he was loath to raise their hopes. By denying the tribes standing to air their grievances before the Garrison Diversion Unit Commission, the state had inadvertently exposed the only argument it could call on to bar the tribes from the hearings. Now all Raymond had to do was find another opening to the commission in Fargo, preferably one that the state had already deemed to meet the requirements for a legitimate claim.

  Raymond remembers that when the answer came to him, no one was more surprised than he was. It had been right under their noses all along, lurking in one of the last places he would have looked. Now, the big question was whether the Garrison Diversion Unit Commission would give him standing at the hearings long enough to make his case. Would they let him speak? That was the imponderable question that remained to be answered in October 1984, when Martin Cross’s youngest son turned east onto Interstate Ninety at Bismarck and headed for Fargo. The first snow flurries of the season swirled across the pavement on phantom zephyrs. The odds against him were still impossibly long, but Tillie Walker was right. After so much anguish and grief, it was worth the 250 mile drive to look into their eyes and ask, one last time, to be heard.

  CHAPTER IX

  The Last Train to Yuma

  “When the last red man shall have perished from the earth and his memory among white men shall have become a myth, these shores shall swarm with the invisible dead of my tribe. Your children’s children will not be alone. Let the white man be just and deal kindly with my

  people, for the dead are not altogether powerless.”

  CHIEF SEEALTH, DUWAMISH

  It was an early October evening in Fargo, North Dakota, in 1984. Ronald Reagan’s campaign for a second term in the White House appeared to be as unstoppable as the arctic winter that had swept down out of the north and buried the Upper Midwest under the first blizzard of the year. Blowing snow drifted against the concrete abutments that lined the highway off-ramps at Fargo. Stoplights flashing over intersections of empty city streets swung wildly in the frigid wind. Schools closed regionwide, and long-haul truckers downshifted into towns such as Beach and Jamestown. There was refuge here, in warm truck stops with bright lights and like-minded castaways who had already gathered around endless pots of coffee, little piles of loose change, and dog-eared decks of cards.

  For weeks, the Garrison Diversion Unit Commission’s arrival in Fargo had been preceded by an expectant buzz in the regional press. With three former U.S. senators and three former governors among its eleven members, this was the most distinguished group of outsiders to visit the state since the dedication of Garrison Dam, exactly thirty years before. In fact, while Congress’ requirements for appointment to the GDUC had seemed modest enough on paper, suitable candidates had to be recruited from the top echelons of public service. Where, asked a stymied Secretary Clark, was he supposed to find men and women with experience in municipal and industrial water systems who were also well versed in western water law? And of those, how many would volunteer to serve pro bono for a period of months? The commission’s charter was as complex as its goals would be elusive. In order to keep the investigation on track, the cost-conscious Clark wanted a chairman with a track record for delivering reports on schedule and under budget. In August, former Louisiana governor David Treen agreed to serve as the commission’s chairman.

  Unlike many of his colorful predecessors in the Cajun state, Treen was well known in government circles as a straight-shooting administrator. He combined a congenial manner with a low threshold for nonsense, and there was a charming mint-julep quality to his voice that put people at ease. The governor confessed to being a little fuzzy on western water law, but no one on the commission was better versed in Robert’s rules. Clark asked him to have the commission’s report to Congress no later than the last day of the year. At their first get-acquainted gathering in Washington in early September, all eleven commissioners and their twenty-member support staff seemed anxious to get started. They had less than four months to come up with realistic solutions to a problem that had befuddled Congress for three decades.

  The GDUC hearings, which opened in Fargo in early October, were the first of several the commission would host in venues across the state. Despite the early snowstorm that blanketed the Great Plains, farmers from every corner of the wind-blasted prairie made the drive to Fargo. After battling the federal water agencies for forty years, they wanted to see these yahoos from Washington with their very own eyes.

  The crowds had no sooner gathered in the lobby of the Old Fargo Theater in downtown Fargo than Chairman Treen’s education in western water law commenced in earnest. Unlike the straightforward rules of supply and demand that governed the oil and gas trade in h
is native Louisiana, nothing about water in the West, whether it was a mountain stream or a raindrop, could be reduced to simple economics. By 1984 farmers owned a million and a half square miles of the American landscape. As a lobbying colossus, they had learned that they could make water flow uphill toward money. The titans of agriculture had sought to tie up every drop of water that would fall on, flow over, or be pumped out of the continent’s arid heartland for the next hundred years. To further complicate that picture, Glenn Sloan’s original plan for a regionwide system of water distribution had evolved into a confounding web of environmental and political protocols. Among the first up to testify, North Dakota’s governor William Guy reminded the commission that the state’s water subsidy to downstream barge transportation had been expressly forbidden by the O’Mahoney-Millikin Amendment to the Flood Control Act of 1944. Yet this lawless practice had been going on, unchecked, for thirty years. The Corps, said Guy, was the biggest group of thieves that Washington had ever turned loose on honest, hardworking citizens. Then, the National Wildlife Federation and National Audubon Society promised to bring further lawsuits if the central flyway wetlands were not protected. And finally, even the farmers seemed to have developed second thoughts. Some were simply fed up with the bureau and the Corps. Others aligned themselves with environmental groups such as the Sierra Club and threatened to go to court to preserve the last short-grass prairie in North America from being destroyed by Pick-Sloan reservoirs and irrigation whirligigs.

  As the commissioners filed out of the theater at the end of a long day of testimony, Ike Livermore, who had served for eight years as California’s secretary of natural resources under former governor Reagan, wondered privately if anyone else had noticed the young man sitting at the back of the theater. Livermore leaned over to ask the only woman on the team, Ann Zorn, if she had noticed the tall young man with horn-rim spectacles and the formal, professorial manner—the fellow who kept returning day after day.

  “It was an impulsive, off-the-cuff exchange,” remembers Livermore, “but she said she had noticed him, too. As we returned to our hotel that night, my instincts told me that I had found an ally.”

  Ever since their first meetings in Washington, Livermore had been studying his peers in search of a partner, an ideological cohort with whom he could form a coalition. He gathered that Zorn was a fierce advocate for strict environmental policies in her home state of Nevada. In fact, she held a permanent seat on the powerful Nevada State Environmental Commission. What he did not know was that Zorn had been studying him, too. Perhaps the gentleman from California, a Reagan appointee, would become her ally.

  As the long hours of testimony came to an end on the fifth and final day of hearings in Fargo, the young man noticed by Livermore and Zorn once again stood up from his chair and approached the podium. A wing of black hair fell at an angle across his forehead. He was six foot five, and his commanding poise seemed to dominate the room. As Raymond Cross stepped up to the podium, Chairman Treen’s eyes jumped. They were out of time. Treen reached for the gavel.

  “Mr. Chairman, esteemed members of the commission, my name is Raymond Cross, and I am here on behalf of the Mandan, Hidatsa, and Arikara Indian nations —”

  The gavel cracked sharply.

  “I’m sorry, Mr. Cross,” said the chairman. “We’ve had an awful long day here, as you well know, and we’re already way past our scheduled conclusion. I’m afraid we’re out of time.”

  “I’m not leaving,” Raymond Cross replied quietly.

  Ike Livermore rocked forward on his elbows. The other members of the commission were shuffling their papers, anxious to leave and get back to their hotel. Livermore glanced at Ann Zorn, who was already watching Treen. The chairman was an affable fellow, but he had shown himself to be a stickler for procedural decorum. After five days on the road and endless hours of testimony, Treen was in no mood to start bending rules.

  “Well, Mr. Cross, you can suit yourself,” said Treen. “But I’m afraid you’ll be here talkin’ to yourself, because the rest of us are finished here. It’s been a long day in a long week, and it’s well past time for supper.”

  “Mr. Chairman, with all due respect, I’m not leaving this podium until I have been heard. I have waited patiently all week. I have a right to be heard.”

  Treen was visibly irritated by Cross’s challenge. He set down the gavel and let out a loud sigh into the microphone. By now, members of the commission had stopped whatever they were doing and were lifting their eyes to the young man.

  “Let me remind you, Mr. Cross, that the questions we are seeking to answer, the reason we came to your fair state in the first place, have to do with irrigation. With all due respect, sir, there’s nothing in our mandate from Congress that has anything to do with Indians.”

  Raymond Cross deflected Treen’s calculated distinction. He had already anticipated this position, and he knew it was bulletproof if Treen wanted to make it stick. The way Treen read it, if he stuck to the letter of the charter that was drafted by Congress, the door would shut forever.

  “We respectfully disagree, Mr. Chairman. We believe the questions being put to this commission are also, by implication, raised by the federal government’s trust obligations to the Mandan, Hidatsa, and Arikara nations. These hearings are central to the devastating consequences that resulted from the unconstitutional taking of these tribes’ homelands by the Army Corps of Engineers when the Garrison Dam was built. The lake that formed behind that dam destroyed a world they owned by aboriginal title. Nothing was left, not one home, not one community, not one school. If anyone in this state is to derive a benefit from the irrigation projects promised to the people who made a sacrifice for Garrison Dam, the compensatory legislation drafted to remedy those omissions must include the Three Affiliated Tribes.”

  A quiet murmur swept through the audience. Cross’s well-mannered defiance seemed to have captured the attention of all the commissioners. “It was an extraordinary moment,” recalls Ann Zorn. “No one who was there could possibly forget it.”

  Chairman Treen rocked back, as if recoiling from Cross’s polite but effective challenge. Ike Livermore was busy second-guessing the chairman. He thought to himself that Treen’s inner dilemma was betrayed by a little storm of confusion that seemed to hang momentarily between the governor’s eyes. For the first time since the hearings began, the chairman was at a loss for words. Then a voice rang out from down the table. Treen shot a glance along the dais. It was that Livermore fellow, from California, raising his hand. Maybe he had a suggestion.

  “Mr. Livermore.”

  “Governor, can we have a brief conference here with staff, in private?”

  Treen sighed and set down the gavel. “Well, I don’t see the harm, if nobody else does.”

  There were no objections to a conference.

  “Mr. Cross, will you bear with us for a moment?” asked Treen. “As you probably know, we hadn’t prepared ourselves for this eventuality.”

  “I’d be glad to, Mr. Chairman.”

  Ike Livermore; Ann Zorn; Henry Bellmon, the former governor of Oklahoma; and Patrick Noonan, the future founder of the Conservation Fund, huddled with members of their legislative support staff around Chairman Treen. The conference seemed to go on for an eternity. Almost thirty-five years to the day after his father walked out of Congress, resigned to defeat, his thirty-five-year-old son now stood with his hands at his sides and calmly waited for an answer. Was this group of strangers going to give him the opportunity to revisit a verdict that shattered his father and his family, and destroyed the world of his ancestors?

  “Treen had every right to adjourn that hearing,” says Cross. “There was nothing obligating the commission to hear me out. I thought I might have gotten my foot in the door, but the rest was up to them. The future for thousands of Mandan, Hidatsa, and Arikara people, unborn generations, was in Treen’s hands. From where I stood, this was the last train to Yuma.”

  The soporific haze that had hun
g over the hearings all afternoon suddenly seemed to lift. Tillie Walker dashed down the aisle to remind Raymond of something, then rejoined Marie Wells at the back of the theater. While the audience stretched and milled about, a small war was being fought inside the circle of heads on the elevated stage. Treen asked their legislative support staff, Marc Messing, for a briefing on the legal issues. Messing told the commissioners that there was no problem with hearing Cross out. Cross’s appeal was obviously well thought out. It was politically clever and legally on-target. Nothing prevented them from hearing an appeal from the Indians on the irrigation issues.

  Treen now turned to the commissioners and invited them to present their opinions. Ann Zorn was an unknown, but Livermore’s credentials carried a lot of weight with everyone on the commission. Whoever this fellow was, argued Livermore, he had come back day after day with those two Indian ladies and had patiently waited for his turn to speak. But every time he stepped up to the podium, the chairman had gaveled the hearings closed and sent him on his way. “I don’t see how we can fulfill our responsibilities to resolve the institutional equity issues without hearing from the Indians,” he argued. He reminded his fellow commissioners that Congress specifically instructed them to put all institutions, such as state, county, and municipal governments, on an equal footing. Contrary to Governor Treen’s original interpretation of Congress’ charter, the institutional equity provisions seemed to be saying that the commissioners could not exclude the tribes.

  Institutional equity was the eye of the needle, Raymond Cross’s one chance in a million. Zorn, an energetic grandmother with a salt-and-pepper hairdo and a cut-to-the-chase manner, quickly agreed, but she and Livermore were immediately challenged by two of their fellow commissioners. Nowhere, argued Commissioner John Paulson, a retired editor of the Fargo Forum, did the originating legislation say a word about Indians. In fact, argued his ally, Pat O’Meara, the vice president of the National Water Resources Association, “the state doesn’t have to deal with the Indians in the first place. If the tribes have a problem with this, they can take it to their own advocates in Washington at the BIA. This isn’t our problem, and it’s not in the charter.”