Coyote Warrior

by Paul Van Develder

  Lone Wolf v. Hitchcock—In this watershed case from 1903, the high court ruled that the United States Congress had “plenary power” over the tribes. Legal scholars have reminded Congress ever since that those powers are balanced against their ongoing responsibilities to treaty tribes to act in their best interests as legal trustee. Finding themselves in conflict with the will of Congress, tribes such as the Mandan, Hidatsa, and Arikara commonly encounter a Congress anxious to exercise its “plenary power” but reluctant to balance that power against its responsibilities as trustee for Indian lands, resources, and self-governance.

  Winters Doctrine—Foundational Indian law has evolved in roughly seventy-year cycles. In the first decade of the twentieth century, the U.S. Supreme Court heard a case now referred to simply as Winters that built on the Marshall Trilogy. In Winters, the court ruled that by entering into a treaty with the United States government some years prior, the Gros Ventre tribe in Montana had reserved unto itself and its tribal members all the natural rights of nationhood. The court further explained that one of these reserved rights, which did not have to be stipulated in the treaty to exist but rather existed as a precondition to the treaty, was the tribe’s right to sufficient water to conduct its affairs, engage in commerce, and raise crops or harvest fish. The water in question flowed from the Milk River in Montana. White farmers and ranchers were seeking to divert the Milk for their own economic purposes. To their astonishment, they lost.

  Canons of Construction—A canon of construction is a term of art used by the courts to identify a legal principle that has become axiomatic—a legal guidepost ensuring continuity of interpretation from one generation to the next. These legal aids to navigation, so to speak, illuminate what would otherwise be a murky world. Two canons of construction cited regularly in both the federal courts and the Supreme Court are Hagen v. Utah and Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n.

  In Hagen, the court established the idea that ambiguities and conflicts that arise in the interpretation of statutes “are to be resolved in favor of the Indians.” In other words, a draw goes to the tribes. This is a crucial distinction and a deciding factor in many cases at the lower court level. Nevertheless, Hagen is seldom cited in news stories.

  Similarly, in Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, the U.S. Supreme Court laid down a powerful guiding principle when it ruled that the terms of treaties and agreements with Indian tribes must be construed and interpreted “in the sense in which they would naturally be understood by the Indians.” Justice O’Connor cited both of these canons in the majority opinion in the high court’s controversial 1999 decision in Minnesota v. Mille Lacs Band of Chippewa Indians.

  Minnesota v. Mille Lacs Band of Chippewa Indians—In this classic case of pitting a tribe against a state over the disposition of treaty-protected “usufructuary rights,” the court upheld the Mille Lacs Chippewa tribe’s claim to treaty rights guaranteeing it “reserved rights” to fish in Mille Lacs Lake in central Minnesota. Non-Indian sports fishing groups, supported by the state, fought the tribe’s claim. The typical five-to-four decision favoring the tribe in Mille Lacs is an important reaffirmation of earlier “usufructuary rights” cases, such as the infamous Boldt Decision of 1974. What was interesting about this case was the fact that the lake in question lies outside the modern boundaries of the Chippewa reservation. Usufructuary rights agreed upon in their nineteenth-century treaty with the federal government guaranteed the tribe perpetual rights to fish, gather, and hunt in their accustomed forests and lakes.

  A few weeks later, the high court let stand a lower court ruling in a case in Washington state that ruled in favor of seventeen Puget Sound tribes who asserted their rights of access to traditional shellfish beds. In a decision that mirrored Mille Lacs in many respects, the 9th Circuit Court of Appeals ruled that neither the state of Washington nor private property owners could deny tribal members the right to cross private land in order to harvest shellfish in their “traditional and accustomed” manner.

  Boldt Decision—About seventy years after Winters, the 9th Circuit Court of Appeals was asked to rule on a case that challenged the foundations of Indian law. Treaty tribes on the West Coast, and in Puget Sound in particular, began to assert their treaty rights over the storied salmon runs. Clearly, salmon were already a dwindling resource. In 1974, Judge George Boldt wrote a landmark opinion for the court—one that the Supreme Court let stand on appeal—that remains as controversial today as it was thirty years ago. Building on both Marshall’s Trilogy and Winters, the 9th Circuit Court then ruled that the reserved rights of West Coast tribes guaranteed the Indians fully half of the annual catch of the prized fish. White legislators and fishermen were stunned.

  The losing attorney in that case, Slade Gorton, went on to become a U.S. senator. As a national legislator, Gorton would repeatedly attempt to introduce legislation or budget riders that would undermine tribal sovereignty or that would disband tribes altogether. The downstream effect of the Boldt Decision will be felt profoundly in the Northwest as states, tribes, and the Endangered Species Act converge on an almost imponderable high noon confrontation that pits treaty rights against the displacement of enormous economic power and states’ rights.

  United States v. Michigan—In the 1979 case of United States v. Michigan, Judge Noel P. Fox was asked to determine whether the twentieth-century descendants of nineteenth-century Chippewa treaty signatories had retained fishing rights under the treaties. Further, if those rights were indeed present, the suit asked how many and what kind of fish could the Indians take?

  In a powerful postscript to Boldt (and precursor to the Voigt Decision), Judge Fox strongly affirmed in a very wide-ranging decision the Indians’ rights as secured to them by the treaties of 1836 and 1854. Judge Fox wrote: “The mere passage of time has not eroded, and cannot erode, the rights guaranteed by solemn treaties that both sides pledged on their honor to uphold. The Indians have a right to fish today wherever fish are to be found within the area of cession, a right established by aboriginal right and confirmed by the Treaty of Ghent and the Treaty of 1836.”

  Fox further emphasized the basis of these rights as being grounded in treaties: “Because the right of the . . . tribes to fish in ceded waters of the Great Lakes is protected by treaties . . . , that right is preserved and protected under the supreme law of the land, does not depend on state law, is distinct from the rights and privileges held by non-Indians, and may not be qualified by an action of the state. . . .”

  The Voigt Decision—Nearly ten years after Boldt, states’ rights activists in Washington and in state capitals took another hit from a federal appeals court, one that expanded on Boldt in ways no one had anticipated. Oddly, Boldt centered on salmon while the Voigt Decision focused on walleye perch.

  In the early 1980s, Wisconsin’s Chippewa tribe claimed a treaty right to spear walleye in their ancestral lakes. Year after year, Indian spearfishing provoked violent protests from white sports-fishing groups. Year after year, Indians and whites spilled each other’s blood on regional boat landings. Initially, in Lac Courte Oreilles v. Voigt, Judge James Doyle decided against aboriginal fishing claims. But on appeal, the 7th Circuit reversed Doyle, and though the 7th Circuit had the final word, the controversial case is still referred to as Voigt. At that time, Lester Voigt was the director of the Wisconsin Department of Natural Resources. The “Final Judgment” in this contentious case was written by Judge Barbara Crabb. Crabb’s ruling was issued in March 1991. White/ Indian relations in the Upper Midwest have never been the same since.

  Judge Crabb ruled that the usufructuary rights of the tribes arising from the Treaties of 1837 and 1842 included “rights to those forms of animal life, fish, vegetation, and so on that they utilized at treaty time . . . on their ancestral land, lakes, and rivers, regardless of modern-day reservation boundaries.” Once again, non-Indians were stunned. Wisconsin appealed. Six months later the U.S. Suprem
e Court denied certiorari and refused to retry the case. Wisconsin Governor Tommy Thompson was so angry that he tried to buy out the Chippewa’s treaty rights. The Indians refused to sell. As with Boldt, Crabb’s ruling has held.

  Isleta Pueblo v. City of Albuquerque—After fighting its way through the court system for nearly ten years, the Isleta Pueblo tribe of New Mexico won a landmark case in a federal court of appeals that upheld the tribe’s right to establish its own water-quality standards. Those standards, fiercely contested by their upstream neighbor, the city of Albuquerque, would force the city to spend $300 million in upgrading its water-treatment facilities in order to come into compliance with the Indians’ standards. The tribe was the first in the nation to act on a little known provision in the federal Clean Water Act of 1976 that allowed tribal governments to establish water-quality standards independently of the state in which they reside. In 1998, the U.S. Supreme Court upheld a lower court that had ruled in favor of the Pueblo. Since that victory, dozens more tribes have followed the Isleta’s lead in a rush to protect their resources from off-reservation polluters. This avalanche of regulatory freelancing by the tribes is viewed somewhat dimly by state governments, developers, city planners, and mining-industry lobbyists.

  APPENDIX B

  Elbowoods, North Dakota: Final Roll Call of Relocation and Dispossession—1953

  The following is a list of Mandan, Hidatsa, and Arikara families who lost their homes and ancestral lands on the river bottoms of the Upper Missouri River in 1954. While the three tribes’ membership suffered the highest percentage of loss of any of the tribes in the Missouri River Basin (approximately 95 percent), they were by no means the only tribes impacted by Pick-Sloan projects. Before the agencies were finished “taming” the wild Missouri, twenty-three different tribes would suffer similar fates. Where particulars differed for the Sioux, the Crow, and the Northern Cheyenne, the results were invariably the same. The Crow, led by their legendary tribal chairman Robert Yellowtail, would be the last to lose the fight. Rubbing salt in the wound, the Bureau of Reclamation, upon erecting a massive impoundment on the Bighorn River, named the structure Yellowtail Dam.

  RESIDENTS OF ELBOWOODS

  Rita Abe

  Mr. and Mrs. Philip Atkins

  Lillian Bad Brave

  Serena Bad Brave

  Mr. and Mrs. Anson Baker

  Christine Bear

  Mr. and Mrs. Nathan Bear

  Mr. and Mrs. Charles Bearstail

  Mr. and Mrs. John Bearstail

  Minnie Bearstail

  Patrick Bearstail

  Vincent Bearstail

  William Bearstail

  Mr. and Mrs. Karmen Blake

  Frances Boyd

  Mr. and Mrs. Evan Burr, Sr.

  Mr. and Mrs. Arnold Charging

  Anna Chase

  Emerson Chase

  Mr. and Mrs. John Chase

  Joseph Chase, Jr.

  Inez Coffee

  Mr. and Mrs. Peter Coffee

  James Conklin

  William Conklin

  Alfred Cross

  Carol Cross

  Dorothy Cross

  Marilyn Cross

  Martin Cross, Jr.

  Mr. and Mrs. Martin Cross, Sr.

  Michael Cross

  Phyllis Cross

  Raymond Cross

  Mr. and Mrs. Burr Crowsbreast

  Polly Dalby

  Clara Danks

  Edward S. Danks

  James Danks

  John Danks

  Francis Deane

  Mr. and Mrs. Joseph Deane

  Peter Deane

  Mr. and Mrs. William Deane

  Cecelia Drags Wolf

  Bertha Driver

  Eugene Eagle

  Mr. and Mrs. Frank Eagle

  Mr. and Mrs. Tom Eagle

  Joseph Face

  Mr. and Mrs. Walter Face

  Jerine Fox

  Leon Fox

  Lloyd Fox

  Mr. and Mrs. Ted Gillette

  Mary Goodreau

  Cecilia Grinnell

  Dorothy Grinnell

  Mr. and Mrs. John Grinnell

  Luther Grinnell

  Maggie Grinnell

  Perpetua Grinnell

  Richard Grinnell

  Virginia Grinnell

  Wilbur Grinnell

  Celeste Hall

  Edward Hall, Jr.

  Ina Hall

  Mr. and Mrs. Jim Hall

  Margie Hall

  Mervel Hall

  Mr. and Mrs. Lloyd Howard

  Myra Howard

  Mr. and Mrs. Charles Huber

  Ernestine Huber

  Mr. and Mrs. Fred Huber

  Mr. and Mrs. Gordon Huber

  Mr. and Mrs. John Hunts Along

  Rollo Jones

  Zona Kills Thunder

  Marcia Kirkaldie

  Jeannette Little Crow

  Elizabeth Little Owl

  Raymond Little Owl

  Mr. and Mrs. Wilfred Lockwood

  Mr. and Mrs. Charles Malnourie

  Mr. and Mrs. Patrick Malnourie

  Mr. and Mrs. Jim Martin

  Cecelia Mason

  Medicine Crow

  Floyd Montclair

  Margaret Necklace

  August Newman

  Sam Newman

  Lucy Old Dog

  Elizabeth Packineau

  Katie Packineau

  Mr. and Mrs. Lambert Packineau

  Melda Packineau

  Mr. and Mrs. Tracy Packineau

  Josephine Paetz

  Mr. and Mrs. Clarence Perkins

  Fannie Perkins

  Rudolph Perkins

  Tony Perkins

  Angela Plante

  Mr. and Mrs. Paul Reed

  Inez Huber Reidhead

  Bryan Rogers

  Mr. and Mrs. Tom Rogers

  Ermel Rush

  Larry Rush

  Mr. and Mrs. Wilbur Schettler

  Mr. and Mrs. Lawrence Sears

  Miriam Sears

  Mr. and Mrs. Frank Sherwood

  Mr. and Mrs. John Sitting Crow

  Ben and Margie Slocum

  Emma Smells

  Mr. and Mrs. Carroll Smith

  Jefferson Smith, Jr.

  Jefferson Smith, Sr.

  Lillian Smith

  Ruth Smith

  Frank Spotted Bear

  Julia Spotted Bear

  Nora Mae Spotted Bear

  Theodore Spotted Bear

  Mr. and Mrs. Peter Sterud

  Germaine Swift Eagle

  Jerome Tomhave

  Mr. and Mrs. Mason Two Crow

  Mr. and Mrs. Willis Two Crow

  Martha Voigt

  Delphine Wheeler

  Mr. and Mrs. Joseph Wheeler

  Mr. and Mrs. Albert Whitman

  Mr. and Mrs. Carl Whitman, Jr.

  Mr. and Mrs. Clay Whitney

  Mr. and Mrs. Ernest Wilkinson

  Mr. and Mrs. John Wilkinson

  Margaret Wilkinson

  Mr. and Mrs. William Wilkinson

  Lillie Wolf

  Elizabeth Wounded Face

  Mr. and Mrs. Francis Young

  RESIDENTS OF BEAVER CREEK

  Mr. and Mrs. Adolph Bell, Sr.

  Burton Bell, Sr.

  Joseph Bell

  Mary Bell

  Rose Bell

  Ophelia Black Hawk

  Frieda Duckett

  Irene Duckett

  Mr. and Mrs. Alfred Fox

  Mr. and Mrs. George Gillette

  Mr. and Mrs. Russell Gillette

  Thelma Hunter

  Emma Jones

  Mr. and Mrs. August Little Soldier

  Mr. and Mrs. Nathan Little Soldier

  Willena Little Soldier

  Edward Lockwood, Jr.

  Mr. and Mrs. Wilfred Lockwood

  Mr. and Mrs. Isaac Price

  Jonathan Price

  Mr. and Mrs. Stephen Price

  Glenn Snow Bird<
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  Mr. and Mrs. Gilbert Starr

  Mr. and Mrs. John Starr

  Mr. and Mrs. Peter Starr

  Wilson Starr

  Aileen Whitman

  Mr. and Mrs. Carl Whitman, Sr.

  Clarine Whitman

  RESIDENTS OF SHELL CREEK

  John Bad Brave

  Nora Baker

  Sarah Baker

  Veronica Baker

  Mr. and Mrs. Harry Beaks

  Mr. and Mrs. Jacob Bird

  Steven Bird

  Frank Birdsbill

  Rosie Birdsbill

  Mr. and Mrs. Joe Black Bear

  Alvin Black Hawk

  Georgeline Black Hawk

  Mr. and Mrs. Charles Blake

  Annie Brown

  Mr. and Mrs. Louis Brown

  Mr. and Mrs. George Bruce, Sr.

  Miriam Bullseye

  Robert Cherries

  Agnes Conklin

  Norma Marie Cummings

  Felix Dancing Bull

  Josephine Dancing Bull

  Mr. and Mrs. Raymond Dancing Bull

  Mr. and Mrs. Maurice Danks, Jr.

  George Drags Wolf, Jr.

  Mr. and Mrs. George Drags Wolf, Sr.

  Grace Drags Wolf

  Mr. and Mrs. Louis Drags Wolf

  Mr. and Mrs. Alfred Driver, Sr.

  Mr. and Mrs. Jim Driver

  Mr. and Mrs. Joe Driver

  Paul Driver

  Bessie Elk

  Myrtle Elk

  Spencer Elk

  Victor Elk

  Mr. and Mrs. George Fast Dog

  Naomi Foolish Bear

  Mr. and Mrs. Albert Fox

  Mr. and Mrs. Charles Fox

  Mr. and Mrs. Clark Fox

  Cuthbert Fox

  Mr. and Mrs. George Fox, Jr.

  Mr. and Mrs. George Fox, Sr.

  Mr. and Mrs. Glen Fox

  Mr. and Mrs. Guy Fox

  Mr. and Mrs. Lee Fox

  Mr. and Mrs. Thomas Fox

  Vincent Fox

  Wanda Fox

  Mr. and Mrs. Lawrence Good Bear

  Charles Grady, Sr.

  Harry Grady

  Mary Grady

  Benedict Grant

  Charles Grant

  David Grant

  Agnes Gray Wolf

  Savina Gullickson

  Adelbert Gun

  Aline Gun

  Austin Gun

  Benjamin Gun

  Fred Gun, Jr.

  Mr. and Mrs. Fred Gun, Sr.

  Martha Gun