Coyote Warrior

by Paul Van Develder

  In the end, the O’Meara-Paulson coalition never had a chance once Henry Bellmon and Patrick Noonan joined forces with Zorn and Livermore. Even Commissioner Henry Wessman—the mayor of Grand Forks, North Dakota, and a professor at the University of North Dakota School of Medicine and Health Sciences—lined up with the out of staters. “Henry was our quiet hero,” says Zorn. “He took a beating in the local press for supporting me and Ike, and it ended his political career. He could have saved his skin and it wouldn’t have changed the outcome, but he didn’t.”

  In mid-January 1985, Zorn and Chairman Treen made the formal presentation of the GDUC’s recommendations at a fully attended hearing of the House Interior and Insular Affairs Committee. Treen was pleased to report that the commission’s work was completed on schedule and under budget. He then presented an overview of the commission’s findings on municipal and industrial water development. Zorn concentrated her testimony on an explanation of the open-ended menu of unsettled Indian issues. In the commission’s view, Zorn told the congressmen, nothing would ever be resolved on the Upper Missouri until the Indian people were made whole. Congress’ instructions to the commission on “institutional equity” had left them with no alternative but a full airing of the Indian recommendations in their final report.

  Within days of the GDUC’s presentation on Capitol Hill, and at the insistence of North Dakota congressman Byron Dorgan, the committee forwarded the commission’s final report to Secretary Clark. Clark requested a joint meeting with congressional committee members to identify the right people to be appointed to the new Joint Tribal Advisory Committee to resolve the “institutional equity” issues first raised by Raymond Cross. Congress and Secretary Clark needed to expedite this deal so the Bureau of Reclamation could get on with the McClusky project. Representative Dorgan suggested that Clark give North Dakota’s governor a call and ask him for the names of possible chairpersons for the new committee. Governor George Sinner was certain to have a short list of qualified candidates in his shirt pocket.

  Clark and Sinner were longtime political acquaintances, so the governor felt no obligation to pull punches when Clark wanted to discuss the GDUC’s recommendations. More than one North Dakota governor had been sacrificed on the altar of Pick-Sloan, and as Secretary Clark began discussing the Indian issues, Sinner could see his political life passing before his eyes. As a political realist, Sinner had no choice but to cooperate in hopes that Clark could help get this McClusky Canal project back on track.

  Clark assured Governor Sinner that his agency would move forward with due haste. But before another foot of irrigation canal could be built, Congress wanted its books cleared of all this unfinished business with the Indians. This thing was a real embarrassment, and it was starting to put off a bad odor on the Hill. Clark explained the nature of the investigation and the kind of man he was looking for to serve as its chairman. This was a sensitive post, but most important, the right man would know how to work fast, and he would have an extensive legislative background that included Indian law.

  Governor Sinner said he had just the man Clark was looking for. “He’s a retired major general, but don’t let that throw you. He was the director of the state legislative council for twenty-five years. Name’s Emerson Murry.”

  Chairman Murry, esteemed committee members, we are glad you have come here to New Town to hear our stories,” began tribal councilwoman Marie Wells. “We know it is a long journey for all of you, during our coldest month of February, and you have traveled far to hear us speak. We thank you . . .”

  It was February 1986, a full year after Ann Zorn and Governor Treen presented the findings of the GDUC investigation to Congress. Since then, the new five-member Joint Tribal Advisory Committee had begun to investigate the Indian issues. Emerson Murry remembers that when the JTAC’s chartered plane landed at the small airport in New Town, the plane’s brakes refused to hold. As they drove through town at high noon, the sign on the bank said the temperature was thirty-six below zero.

  The committee had come to New Town to hear oral testimony of tribal elders who had lived through The Flood of the early 1950s. Raymond Cross, Alyce Spotted Bear, and Tillie Walker had spent six months recruiting elders willing to testify. Raymond presented the committee with a witness list that would keep the JTAC investigators in their chairs for two full days.

  As a frigid ground blizzard raged outside the walls of the auditorium at the tribal community college in New Town, Emerson Murry sat relaxed and attentive at the head table between his former partner, Hans Walker, and Dr. Brent Blackwelder, the future national director of Friends of the Earth. The auditorium was filled to capacity. Hour after hour, for two days, the JTAC members looked out on a standing-room-only crowd. Councilwoman Marie Wells was the first to the lectern. She pulled a piece of paper from her pocket and smoothed it in the light. Once she began, she spoke to the end without taking her eyes off the committee.

  “Many of us have waited a long, long time to tell our stories,” she said. “My name is Marie Wells, and I was born in 1928. I grew up as a little child in the bottom country. It was a beautiful place, and my father was a rancher. My brother and I walked three miles to meet the school bus, and when it was really cold, like today, our dad would take us to meet the bus in our horse-drawn sled. If you look at the records of our people, you will see that my grandpa William Dean Sr. was a teacher at the school down at the Fishhook Village before we moved up to Elbowoods. Also, he was an interpreter for the bureau superintendent and the men at the trading post. He spent a lot of time chasing my dad, because my dad never wanted to go to school, and he never did learn a word of English. My father loved our place on the bottom. . . . It was a beautiful place to live, and well protected. It was so pretty there that I still dream about it, and when I wake up and remember it’s gone, I have to cry.

  “My father had a hundred cows. We had a big garden and we worked hard. We put up hay with horses, we shocked oats by hand. We didn’t have tractors, and we worked the gardens with our arms and shoulders, and our backs. When I was little I really wanted to be an attorney, but we didn’t have the money, and I didn’t dare mention it. I loved school, and eventually I went off to the Indian college at Haskell, where I got two years of college. My sister is the dean of students here at the college in New Town. All of the Indians have diabetes now. I can tell you, we didn’t have diabetes before we moved up here. We got diabetes right after we got electricity. Before that, it was work, work, work. We worked so hard we didn’t need electricity and we didn’t get diabetes. It was hard but it was better, and we lived in a beautiful place where we were all together, and people danced and sang the old songs. We picked wild grapes, chokecherries, bull berries, wild plums, buffalo berries, Juneberries—those were the ones that came down first—and we dug the wild turnips and dried them for the winter.

  “My mother and grandmother dried the berries for pemmican and corn balls, the buffalo berries made good jam and jelly, and the old people pounded the chokecherries and dried them like burgers and saved them for the winter. The berries were good for us, for our kidneys and hearts and our blood, but they are all gone and now we have heart disease and kidney disease, and our blood is bad with the diabetes. Mostly, our food was corn and Arikara squash. You can’t find the seeds for that squash anymore, but it was delicious. We didn’t need sugar because the food we harvested was naturally sweet. We never had sugar until we moved out of the bottom and got electricity. When I was growing up we always chopped our own wood. Some take their knowledge out of books, but me, I lived the Indian way, the Indian life, and I miss it. When The Flood came we had to leave our beautiful homes and move on top, and the Indian life ended because we had to start living the white life, but the white life is not any good for the Indian. My dad had to sell his cows and our land. He didn’t die until 1982, but his life ended with The Flood. After The Flood, our life never came back. We lost our berries.”

  For ten hours each day, an unbroken stream of elders a
pproached the podium and unburdened their souls of forty years of bitterness, sadness, and unanswered grief. What impressed Hans Walker was that few of the speakers blamed “the white man” for the tribes’ misfortunes. Once they started speaking, it seemed, the library of stories was inexhaustible. Many elders sat quietly and wept as they listened to the stories of friends and family. Once the witnesses started speaking, the contagion of rumor quickly spread to the far corners of the reservation. Word went out that something big was afoot at the JTAC hearings in New Town. Come quickly, said the grapevine, and they did. Many would drive a hundred miles through ground blizzards to reach New Town. When Hidatsa elder Cora Baker took the podium, she asked: “When the dam produces so much cheap electricity, why have the energy costs for the three tribes soared?” Another, Dani Sue Deane, accused the government of turning the three tribes into beggars after leaving them homeless and walking away. “When our economic heartland was taken away, it left a deep poverty, the poverty of social dysfunction and broken communities,” said Deane. “Many of us have never recovered from the feeling of being totally defeated. We weep before you because our stories are painful to remember. Our tears burn our eyes because they are so bitter and so real. Our tears are the only thing many of us have left.”

  From the moment the JTAC was formed, Raymond’s strategy for winning over the committee was to put a human face on the story of the Garrison Dam. If the JTAC would come to New Town, Cross gambled, then the testimony might be enough to reopen the “just compensation” issue that was finessed by Congress in 1949. When the Garrison Diversion Unit Commission concluded its work the year before, Raymond’s nature was to be skeptical until the proof was at hand. At best, he and Alyce were hoping to be awarded funding for irrigation that they could in turn divert into a much-needed municipal water project for New Town. But now, the formation of the JTAC had shifted their horizons. With Chairman Murry agreeing to bring the investigation to New Town, Alyce and Raymond suddenly realized that they had stepped onto a much larger playing field than the one they had anticipated. Cross’s strategy was to put Chairman Murry, Hans Walker, and the other committee members through a wrenching ordeal of firsthand testimony.

  “We had a lot of fine people break down, they just couldn’t talk anymore,” recalls Emerson Murry. “I have to say those two days in New Town were as deeply moving as anything I’ve ever experienced. I’ve been on a lot of commissions, and I have never heard more authentic testimony. By the end of the second day, we knew they had a very strong case on the compensation issues. Congress had blown it very badly with the takings act [in 1949].”

  Murry, the two-star general and master of the legislative game, hoped his committee would agree to a democratic approach to resolving the inevitable disputes. This would be crucial in the final stages as they sorted through evidence and prepared their final report for Congress and Donald Hodel, President Reagan’s new man at the Department of the Interior. All in all, Murry was encouraged by the chemistry among the members. Before they boarded the plane for New Town, the committee agreed to focus the investigation on a single question: Did the 1949 takings act properly compensate the tribes under the Fifth Amendment by making the tribes whole? In other words, did they receive compensation of equivalent value for the land and resources that were lost in The Flood? Secondarily, the JTAC asked: Did Congress make a good-faith effort to properly compensate the tribes when it passed Public Law 437?

  “The real trick for me, as chairman, was to convince the committee members to accept the testimony of the Indians under the existing rules of evidence,” says Murry. “I never really discussed this aspect of our investigation with anyone, and I don’t think anybody but Raymond knew what I was doing. But I had to do it. Repetition from their stories was the only way I could verify their claims to Congress.”

  Murry decided to put the rules of evidence to a test after the first day of hearings in New Town. The committee voted unanimously to accept the oral testimony as material evidence. In other words, the oral histories they heard would carry as much evidentiary weight as a bloody knife found at the scene of a murder. “That vote was a real turning point, and the credit has to go to Ray,” says Murry. “He worked his butt off to fill up that auditorium. Once the committee agreed to accept the testimony as evidence, it gave our report real weight with Congress.”

  While Raymond was racing around the countryside lining up witnesses for the JTAC hearings, word reached him that his world was about to become infinitely more complex. Wold Engineering, the case that the U.S. Supreme Court had sent back to North Dakota’s highest court for further review, was back on the front burner. Raymond had flown down to the regional BIA offices in Aberdeen, South Dakota, to locate important documents for the JTAC. While waiting for his flight back home, he was paged to a phone at the airport. The call was from Kim Gottschalk, an old friend from the Native American Rights Fund in Boulder. Gottschalk had tracked him down through the tribal office in Four Bears.

  “Hey, Ray!” exclaimed Gottschalk. “You’ll be getting a call from the Supreme Court. They accepted cert in Wold.”

  Certiorari, or simply cert in legal shorthand, is the formal process by which a superior court calls up the judicial record of a lower court to review a contested ruling. Raymond was amazed by this news. Of the thousands of cases that are sent to the U.S. Supreme Court for review each year, the court selects a few dozen. Gottschalk himself had just gotten the word from one of the clerks in the high court.

  “There was so much more at stake in Wold II, and my own anxiety level reflected that,” says Raymond, who suddenly found himself in a double bind between preparing for the JTAC and preparing for a second trip to the U.S. Supreme Court. “I’d gone through the motions of filing for cert, but it was the last thing I expected. And now the JTAC was coming to town. I couldn’t let up on the JTAC, but I couldn’t ignore Wold either.”

  After the U.S. Supreme Court heard what was now being called Wold I, the justices seemed just as confused as the state. They sent the case back to the North Dakota Supreme Court with instructions to take another look at P.L. 280, the Termination Era law that attempted to transfer power over the tribes to the states, to see if there was not a graceful way out of this dilemma. Strangely, broken water pumps in a lift station on the banks of the Missouri had brought the question of termination and the responsibilities of the “federal trust doctrine” to the country’s highest court. They wanted the state to solve the riddle and clear a way to hearing the case without forcing the tribe to relinquish its sovereignty. Essentially, as Chief Justice VandeWalle recalls, the state court had “sent Wold up” hoping to get a “bright line” from the Supreme Court. The high court declined the offer and instructed North Dakota to resolve this at home.

  “Chief Justice Erickstad read that decision, took another look at the law, and came right back to the same conclusion,” says Raymond. “He said, ‘Look, we appreciate your counsel, Mr. Cross, but we have no choice but to reaffirm our original finding. For us to hear this case, you will have to waive sovereign immunity.’ Well, obviously we weren’t going to do that. So, once again, Erickstad sent it back up to the Supremes and said, ‘Nope, we don’t see where we have jurisdiction.’”

  In Raymond’s initial arguments before the North Dakota Supreme Court, he pointed out that the jurisdictional logjam over which court could hear their case amounted to a violation of due process and equal protection. By denying the tribes access to state courts, the law effectively denied the Indians access to remedies in any civil disputes over broken contracts, whether it be the installation of water pumps or running a transit system. Then, in one of those unexpected moments of serendipity that will dazzle legal scholars for years to come, Raymond included a note about “preemption” in the brief he filed with the U.S. Supreme Court in his petition for certiorari. This was an off-the-cuff reference to amendments to P.L. 280 that Congress adopted in 1968. Those amendments corrected earlier confusion by making it clear that federal law “pre
empted” state law when questions of federal law were in dispute. Because Indian Country is protected by the umbrella of the “federal trust doctrine,” that had to include the dispute over jurisdiction in Wold that had thus far confounded both courts.

  Back in the early 1960s, the North Dakota state legislature adopted the recommendations of Emerson Murry and Hans Walker and agreed to apply P.L. 280 on a case-by-case basis, rather than making it a blanket law that covered all contingencies. In Wold, the North Dakota Supreme Court was saying that the state’s “case-by-case” approach did not give the state’s high court enough jurisdictional reach to overcome the “sovereign immunity” problem. In other words, the state could no more hear a tribe’s complaint than it could stand in judgment of the federal government. Chief Justice Ralph Erickstad ruled that the state could not encroach on the tribes’ sovereign immunity. The North Dakota court was simply honoring that protection.

  “I was sitting in the law library in Grand Forks preparing for Wold when the ‘preemption’ argument came back to me. I knew the due process argument would get shredded by Brennan and Rehnquist. I suddenly remembered that clause in the brief on preemption. That’s it! That’s the argument! The only problem with the preemption argument was that it had never been argued in the high court. My only hope was to give enough of the justices a good reason to reverse the state supremes.”

  Since the preemption argument had never been tested in the high court, Raymond needed to bolster the argument with a precedent on which to base the tribes’ appeal. After days of searching through federal case law at the law school in Grand Forks, he found a Montana case called Kennerly v. District Court with compelling parallels to Wold. For the purpose of securing remedy for a white businessman who had been having trouble collecting fees from his Indian clients, the Blackfoot Tribal Council had simply deferred its jurisdiction to the state district court, without waiving its sovereign immunity.