IN THE SPRING of 1973, in the heart of the same Powder River Country of Montana where George Armstrong Custer met his death a century earlier, a modern-day Indian revolution erupted. Much like the nineteenth-century conflict sparked by white prospectors seeking gold in the sacred Black Hills of Dakota, the twentieth-century version featured an impassioned revolt against the incessant intrusions of non-Indians hoping to extract precious minerals. Also as in the earlier conflict, Indian resistance was fueled by fear that losing control over an indigenous land base would produce the end of the People, erasing the unique social customs and cultural values that distinguished their group from others. Survival once again hung in the balance. And as in the earlier conflict, this revolt would fundamentally alter the relationship between the federal government and Native American tribes.
There were, of course, important differences. For one, rather than seeking yellow gold in the Black Hills, white prospectors during the 1970s desired the “black gold” of the Yellowstone Country known as low-sulfur, subbituminous coal. Changing patterns in world energy production and domestic consumption following World War II had combined with new environmental legislation during the early 1970s to transform this once overlooked energy source into a highly valuable commodity. And vast quantities of this desirable resource happened to lie tantalizingly close to the surface of the Northern Cheyenne and Crow Reservations in southeastern Montana. To access this coal, non-Indians once again worked through and with the federal government. But rather than employing military force, as was done during the nineteenth century, multinational companies exploited a broken and outdated legal regime that sought to promote the development of western resources at the expense of tribal sovereignty, ecological health, and simple equity.
Although the tactics differed, the initial results of this late twentieth-century grab for Indian resources were comparable to nineteenth-century efforts. By 1973, energy firms had gained control of hundreds of thousands of acres of Indian land and millions more were threatened. On the Northern Cheyenne and Crow Reservations alone, the combined acreage opened for mining exceeded 600,000 acres, allowing energy companies to prospect over half the Northern Cheyenne’s total land mass. It is no surprise, then, that Indian leaders such as the Northern Cheyenne’s John Woodenlegs drew parallels to their tribes’ nineteenth-century battles. As Woodenlegs explained, “Our Cheyenne people fought hard to be allowed to live in Montana. Our whole history has been a struggle for survival. The impact of uncontrolled coal development could finish us off.”1
But unlike the tragic, if also heroic, nineteenth-century battles that relegated Northern Plains tribes to small parcels of their once vast homelands, circumscribing their control over daily activities and all but eliminating the tribes’ political sovereignty, the postwar contest ultimately expanded tribal powers. It left Indians better positioned to capitalize on their abundant natural resources, if they chose to do so. This story, then, is not another romantic account celebrating valiant but largely unsuccessful fights for freedom on the Northern Plains. It is, instead, a powerful tale of tribes becoming skilled negotiators, sophisticated energy developers, expert land managers, and more effective governing bodies. In this story, Indians worked meticulously to increase their understanding of the complicated legal, political, and economic mechanisms governing their lands and created a sovereign space where tribes decide the fate of their resources. These tribal governments asserted control over reservation resources to ensure their communities’ survival. And the story begins in the same remote corner of southeastern Montana where a century earlier the Northern Cheyenne and Sioux dealt the United States military its most crushing Indian defeat.
At its most essential, what happened on the Northern Plains in the 1970s was that energy tribes—those American Indian groups possessing substantial energy resources—expanded their governments’ capacity to manage reservation land, and as a result, there came a belated recognition of the tribes’ legal authority to govern communal resources. Indian people seized the skills necessary to protect their sovereignty because sovereignty was crucial to protecting tribal lifeways and land. To accomplish this, energy tribes had to first dismantle a century-old legal regime built on the premise of inherent tribal sovereignty but corrupted with an ideology of Indian inferiority. As far back as the 1830s, the Supreme Court had articulated a seemingly expansive view of tribal sovereignty that should have afforded Indian groups control over their own affairs. In Worcester v. Georgia (1832), for instance, Chief Justice John Marshall explained, “The Indian nations had always been considered as distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.” President Andrew Jackson’s infamous retort, however, that “the decision of the Supreme Court has fell still born” set the tone for how local, state, and federal authorities would respect this and other early holdings favorable to Indian rights. With few exceptions, nineteenth-century government officials and non-state actors ignored federal case law, enacted statutes overriding judicial decisions, or reinterpreted Marshall’s opinions to eviscerate their holdings. Whites desired Indian land and resources, and they’d be damned if an impotent federal judiciary would stop them.2
To justify this taking of indigenous lands, nineteenth-century Americans constructed complicated and evolving ideas about Indians’ inferior capacity to manage their own affairs. Early, ambivalent views of Native Americans as either noble savages or ignoble beasts rendered eastern tribes beyond the pale of Euro-American civilization, supporting an Indian removal policy thinly veiled as a humanitarian mission to protect unprepared Indians from encroaching American settlers. These efforts to separate a supposedly inferior people gradually gave way by midcentury to more benevolent, if misguided, assimilation policies designed to indoctrinate Indians with the civilizing values of settled agriculture and Protestantism. By the end of the century, however, the dominant conception had changed once again, as pseudo-scientific racial theories emerged to challenge the efficacy of this cultural uplift program, claiming race permanently relegated Indians to the periphery of American society. Discouraged by the persistence of Indian culture, eastern policy makers gladly handed over responsibility for “the Indian problem” to western politicians, who employed more “realistic” views of Indians’ inability to evolve in order to justify an imperial land policy. Recast as people doomed by their race, Indians now became “assimilated” through industrial education, federal wardship, partial citizenship, and the loss of more land and resources.3
The “Indian New Deal” of the 1930s supposedly changed all this. Orchestrated by the social crusader John Collier, whom Franklin Roosevelt appointed commissioner of Indian Affairs in 1933, the federal government set about reversing its Indian policy of the past 150 years. Collier ended the disastrous program of allotting tribal lands to individual Indians—which had also opened “surplus” areas to white settlers—and sought to empower tribal governments to protect communal holdings. As we will see, however, Collier himself was not immune to paternalistic assumptions of Indian inferiority. The scion of a prominent southern family, Collier turned from his capitalist roots to fight for the preservation of Indian culture because he believed it offered vital lessons in communal living to a spiritually bankrupt, individualistic America. Still, Collier’s Progressive faith often overrode his benevolent intentions. Under his tenure, the Office of Indian Affairs constructed a legal regime that gave tribal governments some tools to protect their land base yet also ensured that decisions over how to manage reservation assets remained largely in the hands of federal experts.4
Nowhere was this Progressive, paternalistic impulse more evident than in the laws governing Indian minerals. Prior to the 1930s, a hodgepodge of narrow and often conflicting statutes left the development of these resources in disarray. Collier and his colleagues within the Department of the Interior sought to provide a uniform system for Indian mineral development, but they differed in approaches. In particular, a young assistant solicitor named Felix Cohen resurrected John Marshall’s early nineteenth-century opinions on inherent tribal sovereignty to advocate for tribal governments making their own development decisions, free of federal influence. For Collier, however, the risk of allowing unprepared tribal leaders to develop reservation resources by engaging in the cutthroat world of industrial capitalism proved too much. Instead, the Office of Indian Affairs adopted an approach used for public minerals: federal officials would survey reservation lands, judiciously select tracts for development, and then require competitive bidding to determine which mining companies could prospect and lease Indian minerals. Tribes had to consent to the extraction of their minerals, but federal law gave them no specific authority to develop these resources themselves. The regime fit Collier’s twin goals perfectly. Federal officials would help tribes develop reservation economies to support their communities, and in doing so they would insulate indigenous lifeways from capitalism’s divisive influence.5
It was within this legal context that most tribes first encountered multinational energy companies seeking to extract reservation minerals to feed America’s post–World War II energy demands. Driven by stubborn ideologies that cast doubt upon Indian capacity for managing tribal resources, statutory law failed to provide explicit authority for tribes to develop their own resources. Instead, Native Americans were forced to rely on their federal trustees, who had been tasked with surveying reservation land and selecting appropriate tracts for development. These officials, however, were completely unequipped to do so. The results were predictable. Energy firms, not federal agents, surveyed Indian reservations, proposed which areas to open for development, and then secured permits to prospect and mine. They also accomplished this under a veil of secrecy, careful not to attract competition from other developers that would drive up the price of Indian minerals. By 1973, energy companies had opened millions of acres of Indian land to prospecting and mining, yet tribal governments had collected miniscule payments for this privilege.
That is, until the Northern Cheyenne took action to ensure the survival of the tribe. Located at the epicenter of a booming new trade in western, low-sulfur coal, Cheyenne tribal members saw the grandiose scale of mining proposed for their reservation and envisioned hordes of non-Indian coal miners descending on their lands, disrupting the social customs and cultural norms that sustained their unique indigenous community. Many Cheyenne lamented the potential environmental impacts of massive strip mines, but far more feared becoming minorities on their own reservation. Tribal members of all stripes thus mobilized to fight for what they believed to be their tribe’s survival, organizing a grassroots campaign to protest potential mining that prompted tribal leaders to take legal actions to protect the reservation. Here, the tide of energy companies exploiting Indian minerals turned.
What follows is a “movement history” that explains how this small group of American Indians organized to halt a specific mining project they viewed as a threat to their indigenous community and then mobilized similarly situated energy tribes into a national coalition to educate tribal leaders and demand changes to federal law. The tale begins in Lame Deer, Montana, but travels quickly to the adjacent Crow Reservation, then to reservations and courtrooms across the West, corporate boardrooms in the East, federal agency headquarters in Washington, D.C., and ultimately, the United States Congress. The Northern Cheyenne and the Crow tribes are featured prominently, but this is not a tribal history. These two groups were the first to successfully challenge reservation energy projects, thus a tribal-level investigation is warranted into the reasons why these communities, and not others, were able to halt mining until their governments controlled reservation resources. Such an analysis is provided, as is an explanation of how heated intratribal fights over mining wrought important changes within the Northern Cheyenne and Crow communities. But what happened after these tribes asserted control over reservation mining had a far greater impact on tribal sovereignty nationwide. The explanation for that sea change in federal Indian law is the true burden of this book. By organizing disparate energy tribes into a national coalition focused on increasing tribal capacity to govern reservation land, the efforts begun in southeast Montana ultimately delivered a new legal regime—anchored by the 1982 Indian Mineral Development Act—that recognized tribal, not federal, control over reservation development.
Scholars of Native America should have little trouble fitting this remarkable tale into the broader trajectory of federal Indian policy at the close of the twentieth century. After all, the 1970s began with President Richard Nixon publicly rebuking the existing Indian policy of “Termination,” which sought to end the government’s special trust relationship with Indian tribes, and proclaiming “a new era in which the Indian future is determined by Indian acts and Indian decisions” rather than federal agencies. Labeling this new policy “Indian Self-Determination,” the president affirmed his goal was not to assimilate Indian people into the larger American mass, but to empower tribal governments so that they may “strengthen the Indian’s sense of autonomy without threatening his sense of community.” The move fit clearly within Nixon’s burgeoning New Federalism philosophy to transfer responsibility and power for social welfare from federal to local governments. With respect to Native Americans, Nixon also sought to end what many viewed as an unhealthy dependence on the federal government. For American Indians who had been clamoring for more control over their lives and land since the reservation system began in the mid-nineteenth century, the message could hardly have been more welcomed. These people had never stopped working to determine their own fate, but now the president provided rhetorical cover for their actions. A policy window to effectuate real change had opened.6
Yet despite the lavish attention paid to Nixon’s message by both contemporary observers and historians, the self-determination policy was not self-executing. There was no sudden transfer to tribal governments of authority and responsibility over reservation land, people, and programs. Simply put, no white man could grant Indian sovereignty; tribal governments themselves would have to fill in the contours of the self-determination policy. Even Nixon’s legislative proposals to hand over federally funded programs required tribal governments to first request such authority and demonstrate their capacity to run these programs effectively. Many tribes seized this opportunity to take over programs related to reservation housing and education, as authorized by the 1975 Indian Self-Determination and Education Act, but Indians also pursued self-determination through other measures not anticipated by federal policy makers, most famously Indian gaming.7
In pursuing these paths to power, then, tribal actors worked within the political and legal structure crafted by non-Indians, but they also took extralegal actions to shape that structure to address the issues most important to them. And no issue was more important than control over reservation land and resources. Yet there are no histories explaining how tribes reclaimed authority over these items. This book tackles this crucial, and as yet unexplained, transition, demonstrating how energy tribes worked beyond the existing legal structure to transform the promise of sovereignty contained in the self-determination policy into actual control over reservation development. In doing so, tribes greatly enlarged a third area of sovereignty within the federal system where tribal, not federal or state, governments now hold primary authority over reservation land and resources.8
There are also important lessons here that transcend interests in American Indian history and policy, and none is more important than demonstrating how control over energy confers power. To state as much sounds axiomatic, but this book reveals the complicated, underlying material and social forces that make such a statement appear self-evident. On the material side, we know that energy underlies power. Physicists have long told us that energy is the life force of all activity, that it exists in all matter, and every organism uses energy, mostly derived from the sun, to accomplish tasks. Energy is the capacity to do work. In converting energy into useful motion, scientists describe organisms as exhibiting power. Power is thus energy put to work, and all beings exercise some form of it. Of course, one of the greatest conversions of energy into power has come with the ability to burn fossil fuels to produce electrical and mechanical power.9
But energy also produces power in the social realm. Older sociological conceptions of power, dating back to Max Weber, defined the term as a function of social position or status. More recently, sociologists of science and technology, environmental historians, and historians of technology have come to recognize that “social power” has a material, energetic basis as well. The ability of humans to effectuate their desires, often by shaping the actions of others, derives not from their position in society but is produced through their increasing ability to control material inputs, mostly by exhibiting mastery over social structures governing those inputs. As Bruno Latour explains, “This shift from principle to practice allows us to treat the vague notion of power not as a cause of people’s behavior but as the consequence of an intense activity of enrolling, convincing, and enlisting.” Power, in other words, is not the result of status and does not explain how people achieve their ends. Instead, it is created though the process of acquiring capacity to control matter—and thus energy—and must itself be explained.10
Throughout the 1970s, American Indians increased their capacity to control energy and thus grew more powerful. They secured energy experts to review potential mining projects, educated tribal leaders so they could negotiate better mineral contracts, and passed tribal ordinances to shape how energy resources would be extracted. They improved their mastery over those social structures governing access to energy. Ultimately, as we will see, this increased capacity produced changes in federal law that recognized tribes’ legal authority over reservation resources. Again, increasing capacity to control energy expanded tribal power within the federal structure. Lawyers call such power “sovereignty.”
Precisely because control over energy produces power, this book also demonstrates the far-reaching impacts of local conflicts over natural resources. Environmental historians, in particular, have spent years explaining how the pursuit of valuable resources structures relations between developed cores and distant peripheries. The incorporation of outlying commodities into global markets, we are told, renders faraway places dependent on urban regions, while producing untold environmental destruction and social dislocation at the point of extraction. Influenced by anthropologists, the best of these studies complicate the story by recognizing how local actors shape the implementation of seemingly “universal” forces like global capitalism or the high modernist ideology of nation building. Instead of an easy, top-down application of these forces to extract resources, peripheral elites, peasants, wage workers, indigenous communities and their laws, customs, and norms all influence development. In the creative space where universals and local influence meet—what Anna Tsing calls “friction”—resources often get extracted, but on compromised terms.11
These nuanced investigations into global resource development, however, still tend not to follow the trajectory of impacts outward, from local to regional, national, or global implications. Environmental and social effects are felt in the periphery, and perhaps local actors influence the method of extraction, but their actions rarely alter the larger structures shaping development. This book demonstrates the opposite, that local efforts to control how development unfolds in particular places produces power at the periphery, which can radiate beyond those locales. Certainly, changes in the global energy industry and antiquated federal laws created pressures to develop energy minerals on Native American reservations, where energy firms were forced to negotiate with increasingly knowledgeable tribal leaders to get deals done. But local concerns over tribal survival not only informed the types of development Indians would allow, they also shaped the overriding economic and legal structures that first brought energy firms to their reservations. To ensure survival, energy tribes increased their control over tribal resources and authorized only mining projects in which their governments could control the pace and scale. This then affected regional development schemes from the American Southwest to the Northern Plains. But when federal law seemed to prohibit even this type of tribal control over reservation mining, energy tribes set out to change the national legal structure governing their resources. Ultimately, the tribes succeeded in securing new legislation granting tribal authority over reservation minerals, and in doing so they encoded local concerns over tribal survival into federal laws governing energy development nationwide. The local emanated outward to shape regional mining projects, national laws, and global energy flows.12
The final lesson drawn from this book involves the intimate connections between a group’s physical and social landscape, its approach to governance, and how the community defines itself. Arthur McEvoy stresses the mutability of a society’s legal and political structures, explaining how they “evolv[e] in response to their social and natural environments even as they mediate the interaction between the two.” For McEvoy, the manner in which a group decides how to govern itself reflects cultural choices made over the best method for mediating social relations and managing the surrounding nonhuman environment. Groups value certain behavior between their members and toward their land and thus establish political institutions and pass laws to achieve those desired results. But these social structures are not all-controlling. Physical and social environments change due to external or internal forces, and when they do, the people often change their governments to better align with the altered conditions. Laws and political institutions are simply culture manifested, with roots in both the physical and social environment.13
To McEvoy’s apt description of the basis of governance, I would add that once group members establish their governing principles and procedures, they then partly define their community based on these decisions. They might say, for example, “We are Crow, thus we manage the environment this way”; or, “As Northern Cheyenne, we believe this is the best manner to police ourselves.” Changing governing structures, such as ratifying new constitutions or placing power over natural resources in new government bodies, is thus an incredibly disruptive event for the community because it fundamentally alters how the group has previously defined itself. Some members may support the move as a reasonable extension of the community’s belief system, but for others the change is a threat to the group identity they subscribe to. These members ask the fair question: “Are we still Crow if we no longer govern ourselves and our resources the way the Crow used to?”
For many American Indian communities wrestling with the prospect of reservation energy development, these contentious internal struggles over natural resource governance and identity left the most lasting legacies. Groups like the Crow and Navajo altered their governments to take advantage of development opportunities and better control mining’s impacts, but these changes deeply divided their communities. These divisions, in turn, often made it difficult to form the consensus necessary to capitalize on their abundant resources. Tribal factionalism is, of course, nothing new, and scholars have sometimes explained these conflicts in terms of internal groups vying for control over valuable resources. But few studies explain the ferocity of these debates in terms of changes to the legal structures governing natural resources. Under the auspices of “modernizing” or improving the “efficiency” of their tribal governments, energy tribes altered their governments and increased their capacity to manage reservation land. For some, however, these changes signified much more than improvements to governance. They represented a revaluing of an essential component of tribal culture (how the group manages its environment) and thus a redefining of tribal identity. Governance, the environment, and culture were inextricably entwined. As the cultural geographer Don Mitchell explains, “Moments of intense political and economic restructuring . . . are also moments of intense cultural restructuring.”14
The remarkable tale of Indian agency that follows, then, not only explains how energy tribes reconfigured the legal relationship between tribal and federal governments, it also demonstrates how this process wrought fundamental changes within tribal communities. Considering the intimate relationships between the environment, law, and culture, how could it be any other way?
Map 1. Projects proposed by the North Central Power Study. Map detail, adapted, reproduced with permission from Alvin M. Josephy, Jr., “Agony on the Northern Plains,” Audubon 75, no. 4 (July 1973), 76–77.
Map 2. Potential coal development on the Northern Cheyenne and Crow Reservations, circa 1972. Map by Mapping Specialists, Ltd.
