INTRODUCTION
1. “Proceedings of the Native American, Environmentalist, and Agriculturalist Workshop” (Northern Rockies Action Group, December 10, 1975), 15, in author’s possession.
2. 31 U.S. 515 (1832), 559. A staunch federalist, Marshall limited his defense of tribal sovereignty to internal tribal matters within tribal lands, maintaining that the federal government held superior authority over the tribes’ external relations. In fact, he followed the quote about Indian nations being distinct and independent with the words “with the single exception of that imposed by irresistible power” of a conquering nation. This recognition of federal supremacy, however, does not affect Marshall’s legal opinion that tribes retained the right to manage resources within their lands. As to Jackson’s quotes, see Felix S. Cohen, Cohen’s Handbook of Federal Indian Law (Newark: LexisNexis, 2005), 50, n. 304; Ronald N. Satz, American Indian Policy in the Jacksonian Era (Lincoln: University of Nebraska Press, 1974), 49, n. 31; Francis Paul Prucha, The Great Father: The United States Government and the American Indians (Lincoln: University of Nebraska Press, 1984), 212, n. 61. Most historians agree on the accuracy of Jackson’s quote, though the more popular version holds that the president replied, “John Marshall has made his decision, now let him enforce it.” Regardless of his actual words, subsequent federal actions made clear Jackson’s policy to ignore the Supreme Court’s holding. Finally, the literature on non-Indians divesting Indians of their land and resources in the nineteenth century is voluminous. Francis Paul Prucha provides the classic introduction to the many ways in which this was accomplished (Prucha, Great Father). For the more specific point of how non-Indians used the legal system to erode tribal sovereignty, see Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (New Haven: Yale University Press, 1987), esp. 56–57; Sidney L. Harring, Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (Cambridge: Cambridge University Press, 1994); David E. Wilkins, American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997), esp. chapter 3; and Lindsay Gordon Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (New York: Oxford University Press, 2005).
3. For early views and policies of European colonials and Americans toward American Indians, see Prucha, Great Father, esp. 5–9 and parts 1–2; Robert F. Berkhofer, The White Man’s Indian: Images of the American Indian from Columbus to the Present (New York: Alfred A. Knopf, 1978); Brian W. Dippie, The Vanishing American: White Attitudes and U.S. Indian Policy (Middletown, CT: Wesleyan University Press, 1982), esp. parts 1–2; Bernard W. Sheehan, Savagism and Civility: Indians and Englishmen in Colonial Virginia (Cambridge: Cambridge University Press, 1980). For the mid-nineteenth-century emphasis on assimilation, and the later turn toward race as a marker of inferiority, see Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians, 1880–1920 (Lincoln: University of Nebraska Press, 1984). David Rich Lewis explains the prominent role of settled agriculture in the project to “civilize” Indian cultures. Neither Wolf nor Dog: American Indians, Environment, and Agrarian Change (New York: Oxford University Press, 1994), esp. 3–21.
4. The literature on Collier is extensive. A particularly helpful work explaining Collier’s motivation to protect Indians’ communal ethic is E. A. Schwartz, “Red Atlantis Revisited: Community and Culture in the Writings of John Collier,” American Indian Quarterly 18, no. 4 (Autumn 1994): 507–31; see also Lawrence C. Kelly, The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform (Albuquerque: University of New Mexico Press, 1983); Kenneth R. Philp, John Collier’s Crusade for Indian Reform, 1920–1954 (Tucson: University of Arizona Press, 1977); Elmer Rusco, A Fateful Time: The Background and Legislative History of the Indian Reorganization Act (Reno: University of Nevada Press, 2000); Graham D. Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934–45 (Lincoln: University of Nebraska Press, 1980); and Stephen Kunitz, “The Social Philosophy of John Collier,” Ethnohistory 18, no. 3 (Summer 1971): 213–29. For an explanation of how Collier’s Office of Indian Affairs effectively retained control over Indian assets through its use of “technical assistance” to the tribes, see Thomas Biolsi, Organizing the Lakota: The Political Economy of the New Deal on the Pine Ridge and Rosebud Reservations (Tucson: University of Arizona Press, 1992), esp. chapter 6.
5. As I discuss in chapter 1, Felix Cohen’s position stemmed from his normative vision of America as a legally pluralistic society with power decentralized to local authorities. For Cohen’s concept of legal pluralism and his efforts to apply it to American Indian law, see Dalia Tsuk Mitchell, Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Ithaca: Cornell University Press, 2007). For additional explanations of Cohen’s approach to Indian law, particularly how legal realism influenced his work, see Christian McMillen, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (New Haven: Yale University Press, 2007), 128–33; Jill Martin, “The Miner’s Canary: Felix S. Cohen’s Philosophy of Indian Rights,” American Indian Law Review 23 (Summer 1999): 165–79; Martin P. Goldberg, “Realism and Functionalism in the Legal Thought of Felix S. Cohen,” Cornell Law Review 66, no. 5 (1981): 1032–57; and Stephen M. Feldman, “Felix S. Cohen and His Jurisprudence: Reflections on Federal Indian Law,” Buffalo Law Review 35, no. 2 (1986): 479–515. Chapter 1 also covers how the 1938 Indian Mineral Leasing Act provided a uniform mineral leasing system whereby tribes, through the Bureau of Indian Affairs, could solicit offers to extract reservation minerals, but they could not develop these resources themselves. Instead, the federal government would oversee the work of outside developers who “leased” Indian minerals for production. Indian Mineral Leasing Act, Public Law 75–506, 52 Stat. 347 (1938), codified as amended at 25 U.S.C. § 396a–f [2006]; Cohen, Cohen’s Handbook of Federal Indian Law, 2005 ed., 1091.
6. Richard Nixon, “Special Message to Congress on Indian Affairs,” July 8, 1970, The American Presidency Project, ed. Gerhard Peters and John T. Woolley, http://www.presidency.ucsb.edu/ws/index.php?pid=2573. For Nixon’s Indian policy conforming to his New Federalism approach, see George Pierre Castile, To Show Heart: Native American Self-Determination and Federal Indian Policy, 1960–1975 (Tucson: University of Arizona Press, 1998), 80–86. Nixon’s self-determination policy actually continued a trend begun with President Lyndon Johnson’s Office of Economic Opportunity to provide tribal governments direct control over reservation funds and resources. See Castile, To Show Heart, and Thomas Clarkin, Federal Indian Policy in the Kennedy and Johnson Administrations, 1961–1969 (Albuquerque: University of New Mexico Press, 2001). As George Castile argues, “The rhetoric, the language of self-determination, had long been around; what was new [under the Johnson administration] was a practical mechanism to transfer authority to the tribes—the [Office of Economic Opportunity] system of compacting with local Indian community action agencies to carry out federal programs.” George Pierre Castile, Taking Charge: Native American Self-Determination and Federal Indian Policy, 1975–1993 (Tucson: University of Arizona Press, 2006), 14. According to Castile, Nixon simply carried forth this model and proposed new federal legislation that authorized the Bureau of Indian Affairs to transfer some of its responsibilities to tribal governments, again following the template already established by the Office of Economic Opportunity.
7. For a discussion of Nixon’s original legislative proposals to effectuate his policy, how the Watergate scandal hampered the passage of these bills, and the Democratic Congress’s embrace of the Indian Self-Determination and Education Act after Nixon’s resignation, see Castile, To Show Heart, chapters 4 and 6–7. There is a robust and growing literature on Indian gaming. See, e.g., W. Dale Mason, Indian Gaming: Tribal Sovereignty and American Politics (Norman: University of Oklahoma Press, 2000); Angela Mullis and David Kamper, eds., Indian Gaming: Who Wins? (Los Angeles: UCLA American Indian Studies Center, 2000); Duane Champagne and Carol Goldberg, “Ramona Redeemed?: The Rise of Tribal Political Power in California,” Wicazo Sa Review 17, no. 1 (2002): 43–63; Eve Darian-Smith, New Capitalists: Law, Politics, and Identity Surrounding Casino Gaming on Native American Land (Belmont, CA: Thomson/Wadsworth, 2004); Steven Andrew Light and Kathryn Rand, Indian Gaming and Tribal Sovereignty: The Casino Compromise (Lawrence: University Press of Kansas, 2005); and Jessica R. Cattelino, High Stakes: Florida Seminole Gaming and Sovereignty (Durham: Duke University Press, 2008).
8. My notion of a “third area of sovereignty” is related to, but different from, Kevin Bruyneel’s concept of a “third space of sovereignty.” In The Third Space of Sovereignty, Bruyneel demonstrates how Euro-American legal institutions and cultural constructions continuously limited American Indians both to a place outside the American polity (spatial boundary) and to a time before the emergence of a modern American state (temporal boundary). However, while careful to note these limitations, Bruyneel also finds ambiguity in the application of these principles, stemming largely from the multifaceted nature of the American people and its state. The lack of uniformity in views and policies toward American Indians produces what Bruyneel calls “colonial ambivalence,” creating a space within which American Indians could operate historically to exercise some sovereignty and extract benefits from the federal government. It is here, in this “third space of sovereignty,” where American Indians are neither wholly within nor outside the American state, that Bruyneel finds Indian agency and the explanation for the continued resiliency of American Indian groups today. Kevin Bruyneel, The Third Space of Sovereignty: The Postcolonial Politics of U.S.–Indigenous Relations (Minneapolis: University of Minnesota Press, 2007), 1–25. While greatly influenced by Bruyneel’s work, my use of the “third area of sovereignty” is less amorphous and stands simply for that area within federal jurisprudence where tribal governments, rather than federal or state governments, maintain primary authority.
9. Joseph F. Mulligan, Introductory College Physics (New York: McGraw-Hill, 1985), 138 and 157.
10. For Weber’s understanding of social power, see H. H. Gerth and C. Wright Mills, eds., From Max Weber: Essays in Sociology (New York: Oxford University Press, 1962), 180. The literature on power from historians of technology and the environment has been reviewed recently by a group of scholars at the University of Virginia that includes myself, Edmund Russell, Thomas Finger, John K. Brown, Brian Balogh, and W. Bernard Carlson. The claims made here regarding the energetic basis of social power derive from that collective effort. See Edmund Russell et al., “The Nature of Power: Synthesizing the History of Technology and Environmental History,” Technology and Culture 52, no. 2 (April 2011): 246–59. Latour’s quote is in Bruno Latour, “The Powers of Association,” in Power, Action, and Belief: A New Sociology of Knowledge, ed. John Law (Boston: Routledge and Keegan Paul, 1986), 273.
11. Immanuel Wallerstein’s “world systems theory” provides the most influential analysis of these core-periphery relations. For a cogent summary of this theory, see Immanuel Maurice Wallerstein, World-Systems Analysis: An Introduction (Durham: Duke University Press, 2004). Representative examples of environmental histories that apply the theory to international development in the modern era include Richard P. Tucker, Insatiable Appetite: The United States and the Ecological Degradation of the Tropical World (Berkeley: University of California Press, 2000), and John F. Richards, The Unending Frontier: An Environmental History of the Early Modern World (Berkeley: University of California Press, 2003). For studies of American development in this mold, see, e.g., Richard White, The Roots of Dependency: Subsistence, Environment, and Social Change Among the Choctaws, Pawnees, and Navajos (Lincoln: University of Nebraska Press, 1983); William Cronon, Nature’s Metropolis: Chicago and the Great West (New York: W. W. Norton, 1991); and William G. Robbins, Colony and Empire: The Capitalist Transformation of the American West (Lawrence: University Press of Kansas, 1994). Influential anthropologies demonstrating the difficulties in applying universal ideologies in foreign, local contexts include James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998), and Anna Lowenhaupt Tsing, Friction: An Ethnography of Global Connection (Princeton: Princeton University Press, 2005).
12. A major exception to the statement that environmental histories have tended not to follow the trajectory of impacts outward from the periphery is Richard Grove’s work, Green Imperialism. In it, Grove demonstrates how the incorporation of local knowledge of the natural world, generated in colonial peripheries, influenced scientific knowledge in the metropoles, leading ultimately to powerful scientific critiques of colonialism. Richard Grove, Green Imperialism: Colonial Expansion, Tropical Island Edens, and the Origins of Environmentalism, 1600–1860 (New York: Cambridge University Press, 1995).
13. Arthur F. McEvoy, The Fisherman’s Problem: Ecology and Law in the California Fisheries, 1850–1980 (New York: Cambridge University Press, 1986), 13.
14. Studies that explain tribal factionalism in terms of resource conflicts include White, Roots of Dependency, esp. 109–17; Lewis, Neither Wolf nor Dog, esp. 41 and 154–55; Larry Nesper, The Walleye War: The Struggle for Ojibwe Spearfishing and Treaty Rights (Lincoln: University of Nebraska Press, 2002), chapter 8; and Paul C. Rosier, Rebirth of the Blackfeet Nation (Lincoln: University of Nebraska Press, 2001). Mitchell’s quote is at Don Mitchell, Cultural Geography: A Critical Introduction (Malden, MA: Blackwell, 2000), 77.
PROLOGUE
1. According to the coal industry’s leading trade journal, in 1972, Consolidation trailed only the Peabody Group in American coal production. “Top 15 Coal-Producing Groups in 1972,” Coal Age, April 1973, 39. For details on Consolidation’s proposal, see K. Ross Toole, The Rape of the Great Plains: Northwest America, Cattle and Coal (Boston: Little, Brown, 1976), 63–64; Marjane Ambler, Breaking the Iron Bonds: Indian Control of Energy Development (Lawrence: University Press of Kansas, 1990), 64–65; Michael Wenninger, “$1 Billion Coal Plant Discussed,” Billings Gazette, November 29, 1972; and Michael Wenninger, “Battle Brews over Reservation’s Coal,” Billings Gazette, April 2, 1973.
2. Dell Adams to Northern Cheyenne Tribe, July 7, 1972 (quoted in Ziontz, Pirtle, Moresset, and Ernstoff, “Petition of the Northern Cheyenne Indian Tribe to Rogers C. B. Morton, Volume II: Appendix,” January 7, 1974, A-142 to A-144, K. Ross Toole Papers, series V, box 28, folder 2, Mansfield Library, University of Montana). For the Northern Cheyenne’s average per capita income, see “Northern Cheyenne Highlights, Calendar Year 1969,” 1970, 1, 8NN-75-92-206, box 14, folder “Evaluation of Ten Year Goals,” National Archives, Denver, CO.
3. The few existing studies of Indian energy development generally portray tribal leaders as passive observers to a BIA-controlled system of exploitation. See Toole, Rape of the Great Plains; Ambler, Breaking the Iron Bonds; Donald Fixico, The Invasion of Indian Country in the Twentieth Century American Capitalism and Tribal Natural Resources (Niwot: University Press of Colorado, 1998); and Charles F Wilkinson, Fire on the Plateau: Conflict and Endurance in the American Southwest (Washington, DC: Island Press, 1999). A recent collection of essays, however, demonstrates how “from the beginning of energy development on Indian lands, Indian people have been actively engaged: as owners and lessees of resources, workers in the industries, consumers of electricity and gasoline, and developers of tribal energy companies, as well as environmentalists who sometimes challenge these enterprises.” Sherry L. Smith and Brian Frehner, eds., Indians and Energy: Exploitation and Opportunity in the American Southwest (Santa Fe: SAR Press, 2010), 5. This work follows in the latter mold, explaining how through active engagement in energy development projects, tribal governments gained the knowledge and legal tools necessary to manage their own resources.
CHAPTER 1. THE TRIBAL LEASING REGIME
1. John Artichoker to James Canan, December 28, 1965 (quoted in Ziontz, Pirtle, Moresset, and Ernstoff, “Petition of the Northern Cheyenne Indian Tribe to Rogers C. B. Morton, Volume II: Appendix,” January 7, 1974, A-1, K. Ross Toole Papers, series V, box 28, folder 2, Mansfield Library, University of Montana [hereafter Ziontz et al., “Northern Cheyenne Petition”]).
2. Ibid. To be clear, a small coal mine already existed on the reservation by the time Krueger submitted his proposal. This mine, however, supplied heating coal to reservation residents and did not export coal off reservation for industrial uses. Krueger’s offer was the first proposal to develop Cheyenne coal in commercial quantities to be used for the industrial production of electricity. For the response from Billings BIA officials, see Ned O. Thompson, memo, January 7, 1966 (found in Ziontz et al., “Northern Cheyenne Petition,” A-1 to A-2).
3. The quote describing the trustee duty as a cornerstone of Indian law comes from Dept. of Interior v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 11 (2001). In that opinion, the court merely affirmed the description of this duty as it appeared in Felix S. Cohen, Cohen’s Handbook of Federal Indian Law, 2005 ed. (Newark: LexisNexis, 2005), 221. For further description of this trustee duty being akin to the common law duty of any fiduciary to responsibly manage a trust corpus for beneficiaries, see United States v. Mitchell, 463 U.S. 206, 225 (1983). John Marshall first acknowledged the United States’ superior title to Indian lands in Johnson v. M’Intosh, reasoning the country’s “discovery and conquest” of a new but inhabited land provided this right. Although he characterized the federal claim as an “absolute ultimate title,” Marshall also admitted that Indians still possessed the “legal as well as just” right of occupancy, which granted them certain sovereign rights within that territory. 21 U.S. 543, 592, 574 (1823). Later, in Cherokee Nation v. Georgia, Marshall elaborated that this unique indigenous land right did not create full sovereign Indian nations within the territory of the United States but instead made the tribes “domestic dependent nations . . . in a state of pupilage,” likening their relationship to the United States as “that of a ward to his guardian.” 30 U.S. 1, 17 (1831). This special status of Indian nations as “domestic dependent nations” forms the basis the United States’ trustee duty to responsibly manage Indian land and resources. The last quote holding the federal government to the most exacting fiduciary standards comes from Seminole Nation v. United States, 187 U.S. 286, 297 (1942); see also Cohen, Handbook of Federal Indian Law, 2005 ed., 419–20, and Christian McMillen, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (New Haven: Yale University Press, 2007), 89–90.
4. Lyn Fisher, “Transcript of Notes of Conversation with J. Canan of the BIA Regarding the Northern Cheyenne Petition,” June 15, 1979, 8, K. Ross Toole Papers, series V, box 28, folder 3, Mansfield Library, University of Montana.
5. Act of July 22, 1790, Public Law 1–33, § 4, 1 Stat. 137 (1790). The 1790 Non-Intercourse Act specifically prohibited the transfer of Indian land unless “duly executed at some public treaty, under the authority of the United States.” As to major shifts in federal Indian policy, their justifications, and the impact on Indian land holdings, see notes 3–5 to introduction, above, and accompanying text.
6. As to John Collier’s Indian New Deal, see generally notes 4–5 to introduction, above, and accompanying text.
7. E. A. Schwartz, “Red Atlantis Revisited: Community and Culture in the Writings of John Collier,” American Indian Quarterly 18, no. 4 (Autumn 1994): 507–31. Schwartz argues that Collier’s concept of a “Red Atlantis,” which he developed after his first visit with the Taos Pueblo Indians in 1920, initially captured both the idea that Indians could offer lessons to white America on the values of group cohesion and also the recognition that this reservoir of knowledge required federal protection from capitalist attacks. Schwartz goes on to note, however, that Collier gradually subjugated the former concept to the latter, as he increasingly viewed his mission to slowly integrate—but not assimilate—Indians into American society and became less concerned with the direct transfer of Indian knowledge to whites. Other helpful works on Collier’s life and his perception of American Indians include Lawrence C. Kelly, The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform (Albuquerque: University of New Mexico Press, 1983); Kenneth R. Philp, John Collier’s Crusade for Indian Reform, 1920–1954 (Tucson: University of Arizona Press, 1977); Elmer Rusco, A Fateful Time: The Background and Legislative History of the Indian Reorganization Act (Reno: University of Nevada Press, 2000); Graham D. Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934–45 (Lincoln: University of Nebraska Press, 1980); and Stephen Kunitz, “The Social Philosophy of John Collier,” Ethnohistory 18, no. 3 (Summer 1971): 213–29.
8. For Collier’s views on indirect administration, see Rusco, Fateful Time, 160–63 and 176. For a discussion of how, in practice, BIA’s “technical assistance” could often preempt tribal decision making, see Thomas Biolsi, Organizing the Lakota: The Political Economy of the New Deal on the Pine Ridge and Rosebud Reservations (Tucson: University of Arizona Press, 1998), 128–32.
9. Initially, two young attorneys, Cohen and Melvin Siegel, worked on the draft legislation. Little is known of Siegel, but Elmer Rusco reports that Lucy Cohen, Felix’s wife, remembers Siegel remaining at the Department of the Interior for only a few months, and thus he could not have been a major contributor to Indian policy debates. Rusco, Fateful Time, 193. For the quotes describing Cohen’s views on legal pluralism, see Dalia Tsuk Mitchell, Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Ithaca: Cornell University Press, 2007), 57.
10. Mitchell, Architect of Justice, 82–90. The original bill’s quotes are taken from ibid., at 83. It should be noted that Felix Cohen strongly opposed the BIA’s position that the Indian Reorganization Act authorized only the federal government to issue corporate charters to Indian tribes. Cohen’s stance, consistent with the argument he would make throughout his tenure, was that the right to incorporate was a fundamental right of any sovereign power. Because Congress had not explicitly extinguished this right for Indian tribes, they thus retained the authority to define their own powers through corporate charters. Felix Cohen to Frederic Kirgis, April 14, 1937, National Archives II, College Park, MD (hereafter NAII), RG 48, entry 809, box 12.
11. For the deliberations over Interior’s bill, see Vine Deloria, Jr., and Clifford M. Lytle, The Nations Within: The Past and Future of American Indian Sovereignty (Austin: University of Texas Press, 1984), 66–79; Mitchell, Architect of Justice, 90–101; and Rusco, Fateful Time, 192–209. The final statute is at Indian Reorganization Act (IRA), Public Law 73–383, ch. 576, § 16 48 Stat. 984, 987 (1934), codified at 25 U.S.C. § 476 (2006). The quote from the Solicitor’s Opinion is at Nathan Margold, U.S. Department of the Interior, “Powers of Indian Tribes,” in Opinions of the Solicitor: Indian Affairs (Washington: Government Printing Office, 1946), 446. As to the novelty of Cohen’s argument that tribal powers originated with the tribal sovereign, Charles Wilkinson demonstrates how this articulation of inherent sovereignty simply echoed sentiments expressed by Chief Justice John Marshall in Worcester v. Georgia. In that famous opinion, which Cohen cited liberally in his Solicitor’s Opinion, Marshall stated that the “Indian nations had always been considered as distinct, independent, political communities, and the settled doctrine of the law of nations is that a weaker power does not surrender its independence—its right to self-government—by associating with a stronger, and taking its protection.” 31 U.S. 515, 559 (1832). See also Charles F. Wilkinson, American Indians, Time, and the Law (New Haven: Yale University Press, 1987), 54–59. Marshall thus was first to advance the theory that tribes possessed all the powers of a sovereign, surrendering only their external sovereignty by virtue of Euro-American conquest, but Cohen resurrected this foundational principle after decades of its subjugation to the federal government’s plenary power. See also David E. Wilkins, “The Era of Congressional Ascendancy over Tribes,” in American Indian Sovereignty and the U.S. Supreme Court (Austin: University of Texas Press, 1997). Deloria’s and Lytle’s point about tribal powers is found at Nations Within, 159. These two authors also argue that when Congress slashed the Department of the Interior’s original list of tribal powers down to three it unwittingly expanded tribal sovereignty. They reason that although Interior’s proposal included a long list of potential powers, these powers had to first be granted by the federal government in the form of a corporate charter tailor-made to the specific situation of each tribe. The final IRA, however, granted these three enumerated powers to any tribe organized under the statute, not to mention recognizing “all powers vested . . . by existing law.” Thus, in the final law, although the BIA retained the right to approve tribes’ organizing constitutions, once accepted it could not deny these powers. Deloria and Lytle, Nations Within, 142.
12. This premise of Indian powers mirrors the first principle Cohen would later articulate in his seminal work, Handbook of Federal Indian Law. Cohen, Handbook of Federal Indian Law, 2005 ed., 2. (“Nonetheless, there are some fundamental principles that underlie the entire field of federal Indian law. First, an Indian nation possesses in the first instance all of the powers of a sovereign state.” Emphasis removed.) As to the debates within Interior, the Solicitor’s Office itself was also divided over the proper interpretation of tribal powers. Within that office, the most prominent members of the divided camps were Assistant Solicitor Frederick Wiener and William Flannery, who invariably offered legal interpretations limiting tribal powers and affirming BIA’s oversight role, versus Cohen, Solicitor Nathan Margold, and Charlotte Westwood, who offered consistently expansive interpretations of tribal sovereignty. On resolving inconsistencies between the Northern Cheyenne constitution and Interior’s regulations relating to grazing leases, see William Flannery, memorandum to file, February 27, 1936, NAII, RG 48, entry 809, box 9; and Felix Cohen, memorandum to file, March 6, 1936, NAII, RG 48, entry 809, box 9. On disagreements over whether tribal governments can issue timber contracts, mineral leases, or agricultural leases to Indian cooperatives at a nominal sum, see William Flanery, memorandum to file, October 22, 1936, NAII, RG 48, entry 809, box 11; and William Flannery to Frederick Wiener, November 14, 1936, NAII, RG 48, entry 809, box 11. On whether a conflict of interest justifies the BIA’s denial of a timber contract entered into by the Flathead Indians, see William Flanery to Frederick Wiener, December 1, 1936, NAII, RG 48, entry 809, box 11; and Charlotte Westwood to Frederick Wiener, December 1, 1936, NAII, RG 48, entry 809, box 9. On a dispute over whether the Paiute Indians of the Pyramid Lake Reservation can veto a mineral lease issued prior to the tribe’s organization under the IRA, see Frederick Wiener to Nathan Margold, March 6, 1937, NAII, RG 48, entry 809, box 12; and unsigned memo to Assistant Secretary of the Interior, March 9, 1937, NAII, RG 48, entry 809, box 12.
13. The National Archives does not contain a copy of the BIA’s initial proposal to streamline the process for developing Indian minerals, but it is referenced at Charles Fahy to the Geological Survey, August 8, 1933, NAII, RG 48, entry 809, box 2. No further action appears to have been taken on this proposal until 1935, when Felix Cohen drafted a memo on behalf of Solicitor Nathan Margold detailing the impacts of the proposed legislation. Nathan Margold to John Collier, February 6, 1935, NAII, RG 48, entry 809, box 6.
14. Cohen’s “fiery retort” that was later amended to soften its tone can be found at Nathan Margold to John Collier, January 24, 1935, NAII, RG 48, entry 809, box 6 (draft memorandum authored by Felix Cohen). Assistant Solicitor Rufus Poole’s memo questioning the Solicitor’s Office’s role is at Assistant Solicitor Poole to Nathan Margold, January 28, 1935, NAII, RG 48, entry 809, box 6. Finally, as to Cohen’s amendments, compare Nathan Margold to John Collier (draft memorandum authored by Felix Cohen), January 24, 1935, NAII, RG 48, entry 809, box 6 with Nathan Margold to John Collier, February 6, 1935, NAII, RG 48, entry 809, box 6. Cohen wrote in the margins of both the original draft and the memo from Poole, “revised as to form.”
15. The final bill, along with Senate and House reports, can be found at S. 2638, H.R. 7681, 74th Cong. (1935). It is interesting to note the statutory language governing the secretary’s veto authority is different for oil and gas leases than for other minerals. With respect to oil and gas, the final statute specified the secretary could reject bids for development “whenever in his judgment the interest of the Indians will be served by so doing.” With other minerals, the statue authorized tribes to lease their interests only “with the approval of the Secretary of Interior.” Compare 25 U.S.C. § 396(b) with § 396(a) (2006). For Interior’s position that the 1938 IMLA controlled all transfers of Indian minerals, see Senate Select Committee on Indian Affairs, Permitting Indian Tribes to Enter into Certain Agreements for the Disposition of Tribal Mineral Resources and for Other Purposes, 97th Cong., 2d sess., June 10, 1982, 8–12; House Committee on Interior and Insular Affairs, Permitting Indian Tribes to Enter into Certain Agreements for the Disposition of Tribal Mineral Resources and for Other Purposes, 97th Cong., 2d sess., August 13, 1982, 9–13; and Senate Select Committee on Indian Affairs, Hearings Before the Select Committee on Indian Affairs on S. 1894, 97th Cong., 2d sess., 1982, 70–77.
16. Elmer Thomas’s quote is found at S. 2638, 74th Cong., 1st sess., Congressional Record 79 (May 28, 1935): S8307. As for passage on the House’s consent calendar, see H.R. 7626, S. 2689, 75th Cong., 3rd sess., Congressional Record 83 (May 2, 1938): H6057. Wiener’s quotes are found at Frederick Wiener to Nathan Margold, March 5, 1936, NAII, RG 48, entry 809, box 9. Finally, the 1938 Indian Mineral Leasing Act is found at 25 U.S.C. § 396a–396g (2012). The act’s implementing regulations in effect during the events detailed here are at 25 C.F.R. § 171.2 (1966).
17. Mining Act of 1866, 14 Stat. 251 (1866); Charles F. Wilkinson, Crossing the Next Meridian: Land, Water, and the Future of the West (Washington, DC: Island Press, 1992), 40–50; Samuel P. Hays, Conservation and the Gospel of Efficiency: The Progressive Conservation Movement, 1890–1920 (New York: Atheneum, 1972), 67. For a discussion of the specific problems related to coal, see ibid., 82–83.
18. Hays, Conservation and the Gospel of Efficiency, 82–90; see also Wilkinson, Crossing the Next Meridian, 50–54. The 1920 Mineral Leasing Act is found at Mineral Leasing Act of 1920, Public Law 93–153, 41 Stat. 438 (1920), codified at 30 U.S.C. § 181 et seq. (2006).
19. Charles Fahy to the Geological Survey, August 8, 1933, NAII, RG 48, entry 809, box 2. The 1938 Indian Mineral Leasing Act is codified at 25 U.S.C. § 396a–g (2006), and the controlling regulations at the time of the Northern Cheyenne coal sales are at 25 C.F.R. § 171 (1966).
20. Richard White, “It’s Your Misfortune and None of My Own”: A New History of the American West (Norman: University of Oklahoma Press, 1991), 399.
21. James S. Cannon and Mary Jean Haley, Leased and Lost: A Study of Public and Indian Coal Leasing in the West (New York: Council on Economic Priorities, 1974), 21–23. Chapter 2, below, provides much greater detail of public officials’ failure to carry out the mandates of the 1920 Mineral Leasing Act. See chapter 2, notes 7–12 and accompanying text.
22. The 1938 act’s public bidding requirement for oil and gas is at 25 U.S.C. § 396b (2006). Nowhere in the act does it require bidding for minerals other than oil and gas, yet the controlling regulations requiring that all Indian minerals be “advertised for bids” are at 25 C.F.R. § 171.2 (1966).
23. The tribal resolution is at Northern Cheyenne Tribal Resolution No. 9 (66), February 10, 1966 (found in Ziontz et al., “Northern Cheyenne Petition, A-1 to A-2). Thompson’s communication to BIA headquarters is located at Ned O. Thompson to Commissioner of Indian Affairs, April 2, 1966, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC. It is also described at Ziontz et al., “Northern Cheyenne Petition,” A-3; and Toole, Rape of the Great Plains, 62.
24. The fixed royalty rate was provided in Charles Corke to James Canan, March 15, 1966 (found in Ziontz et al., “Northern Cheyenne Petition,” A-4).
25. Interior put in place an acreage limit for Indian coal leases to prevent mining firms from securing a mineral development monopoly on any given reservation. The limitation, however, could be waived if a “larger acreage is in the interest of the [tribe] and is necessary to permit the establishment or construction of a thermal electric power plant or other industrial facilities on or near the reservation.” 25 C.F.R. 171.9(b). For the rationale behind the acreage limitation, see Myron E. Saltmarsh, “Acting Area Realty Officer to Area Director,” March 12, 1974, K. Ross Toole Papers, series V, box 28, folder 3, Mansfield Library, University of Montana. Washington officials actually authorized such a waiver for Northern Cheyenne development on numerous occasions. Fryer to James F. Canan, May 11, 1966, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC; and Ziontz et al., “Northern Cheyenne Petition,” A-4. For further description of the acreage limit waiver and the reduction in royalties for coal burned on reservation, see Ziontz et al., “Northern Cheyenne Petition,” A-4 to A-9.
26. The life of John Woodenlegs’s famed grandfather is detailed in Wooden Leg and Thomas Bailey Marquis, Wooden Leg: A Warrior Who Fought Custer (Lincoln: University of Nebraska Press, 1962). Both the Lincoln Star’s editorial and Woodenlegs’s reply (“From the President”) were reprinted in the March 18, 1966, edition of the Northern Cheyenne newsletter, the Morning Star News (in author’s possession). For Metcalf’s introduction of Woodenlegs’s letter on the Senate floor, see Progress on the Northern Cheyenne Reservation, 89th Cong., 2d sess., Congressional Record (February 21, 1966): S3391–92. Jim Canan describes his meeting with John Woodenlegs and reservation superintendent John Artichoker at the Billings, Montana, Northern Hotel to hear their strong support for coal development. Fisher, “Transcript of Notes of Conversation with J. Canan of the BIA Regarding the Northern Cheyenne Petition,” 2. Thompson’s additional request for immediate action on the Cheyenne coal auction is found at Ned O. Thompson to Commissioner of Indian Affairs, May 6, 1966, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC. For a general description of Cheyenne actions to move along the process, from the Cheyenne’s own attorneys, see Ziontz et al., “Northern Cheyenne Petition,” A-5.
27. Steven H. Chestnut, “Coal Development on the Northern Cheyenne Reservation,” in Commission on Civil Rights, Energy Resource Development: Implications for Women and Minorities in the Intermountain West (Washington, DC: Commission on Civil Rights, 1979), 162–63.
CHAPTER 2. POSTWAR ENERGY DEMANDS AND THE SOUTHWESTERN EXPERIENCE
1. For the tripling of American oil consumption from 1948 to 1972, see Daniel Yergin, The Prize: The Epic Quest for Oil, Money, and Power (New York: Simon and Schuster, 1991), 541.
2. As to the post–World War II deals that brought Middle Eastern oil to the world, see ibid., chapter 21. For the broad societal impacts of cheap oil, see ibid., 541–60; and Rudi Volti, Cars and Culture: The Life Story of a Technology (Westport, CT: Greenwood Press, 2004), 105–13.
3. Ivan Given, “Toward Energy Entity,” Coal Age, November 1966; “The Coal Industry Makes a Dramatic Comeback,” Business Week, November 4, 1972, 52–53; James S. Cannon and Mary Jean Haley, Leased and Lost: A Study of Public and Indian Coal Leasing in the West (New York: Council on Economic Priorities, 1974), 3 and 9–11; Bureau of Competition and Bureau of Economics, Staff Report to the Federal Trade Commission on the Structure of the Nation’s Coal Industry, 1964–1974 (Washington, DC: Federal Trade Commission, 1978), 159–61; and Peter Galuszka, “1911–1986: Coal’s Rise and Fall and Rise,” Coal Age, June 1986, 52–53.
4. “The Coal Industry’s Controversial Move West,” Business Week, May 11, 1974; Cannon and Haley, Leased and Lost, 3–6; and Bureau of Competition and Bureau of Economics, Staff Report to the Federal Trade Commission, 37–39, 156.
5. Alfred E. Flowers, “Energy and Security,” Coal Age, August 1968, 59. The Clean Air Acts of 1963 and 1967 were the first statutes to focus on controlling air emissions, though they established a research regime to determine the best pollution control techniques, rather than setting specific air emission limits. Clean Air Act of 1963, Public Law 88–206, 77 Stat. 392 (1963); Air Quality Act of 1967, Public Law 90–148, 81 Stat. 48 (1967). The 1970 Clean Air Act, however, greatly expanded the federal government’s role in regulating air pollution by establishing emission limits for both stationary and mobile sources. Clean Air Act of 1970, Public Law 91–604, 84 Stat. 1676 (1970); see also Office of Air and Radiation, Environmental Protection Agency, “History of the Clean Air Act,” http://epa.gov/air/caa/caa_history.html (accessed April 2, 2013). For the federal government’s increasing concern over sulfur emissions and industry’s response, see “HEW Slaps Low Sulfur Limits on Fuel,” Coal Age, January 1967; Alfred E. Flowers, “Cleaning the Air,” Coal Age, November 1967; “Keys to Big Markets for Coal: Research and Pollution Control,” Coal Age, November 1967; and Alfred E. Flowers, “The Sulfur Question,” Coal Age, April 1968. For the impacts of the 1967 oil embargo and 1970 Clean Air Act on promoting western coal, see “Western Coal Is Booming, but Serious Problems Lie Ahead,” Coal Age, September 1971; “The Challenges and Opportunities in Mining Western Coal,” Coal Age, April 1973; “Western Coal . . . Important Element in National Energy Outlook,” Coal Age, April 1973; and “The Coal Industry’s Controversial Move West,” Business Week, May 11, 1974.
6. The figure noting that 80 percent of western coal underlies federal or tribal land comes from Cannon and Haley, Leased and Lost, 2. For more detailed description of the existing legal regime, and the wasteful practices it replaced, see, above, chapter 1, notes 17–18 and accompanying text.
7. Bennethum’s quote is found in Cannon and Haley, Leased and Lost, 22. The historical data on the mineral leasing program are ibid., 4, and the figures on coal’s average market value are ibid., 27. In 1975, the Federal Trade Commission issued a report on Indian mineral leasing that confirmed the general pattern of industryled development, though it noted the Navajo tribe had nominated its own tracts of land for energy development. Federal Trade Commission, Staff Report on Mineral Leasing on Indian Lands (Washington, DC: Federal Trade Commission, October 1975), 20–23.
8. Cannon and Haley, Leased and Lost, 2–3.
9. Ibid., 4–6. As to coal lease concentration among large oil companies, see ibid., 9–11.
10. The quotes from both the General Accounting Office and the Council for Economic Priorities are found at Canon and Haley, Leased and Lost, 22.
11. Details of the moratoriums are found ibid., 24; and Sally Jacobsen, “The Great Montana Coal Rush,” Bulletin of the Atomic Scientists 29, no. 4 (April 1973): 41. As to Interior’s decision to lift the moratorium and impose new policies and procedures, see Thomas Kleppe, “Press Release: New Federal Coal Leasing Policy to Be Implemented under Controlled Conditions” (Department of the Interior, January 26, 1976), series 6: NCAI Committees and Special Issues, box 234, “Coal Regs. [II],” National Congress of American Indians Collection, National Museum of American Indians Archive Center, Suitland, MD (hereafter NCAI Collection).
12. Thomas Clarkin, Federal Indian Policy in the Kennedy and Johnson Administrations, 1961–1969 (Albuquerque: University of New Mexico Press, 2001), 2–3; and Harvard Project on American Indian Economic Development, The State of the Native Nations: Conditions under U.S. Policies of Self-Determination (New York: Oxford University Press, 2008), 114–15. American Indian income levels are taken from Alan Sorkin, “Trends in Employment and Earnings of American Indians,” in Toward Economic Development for Native American Communities: A Compendium of Papers Submitted to the Subcommittee on Economy in Government of the Joint Economic Committee, Congress of the United States (Washington, DC: Government Printing Office, 1969), 107, 109, 111, and 114–15. Educational statistics can be found at Margaret Connell Szasz, Education and the American Indian: The Road to Self-Determination (Albuquerque: University of New Mexico, 1999), 134. Mortality rates are located in Helen Johnson, “American Indians in Rural Poverty,” in Toward Economic Development for Native American Communities, 21–22. Some experts placed the life expectancy rate for reservation Indians even lower, at an astonishing forty-two years. House Committee on Interior and Insular Affairs, Subcommittee on Indian Affairs, A Review of the Indian Health Program: Hearing Before the House Committee on Interior and Insular Affairs, Subcommittee on Indian Affairs, 88th Cong., 1st sess., 1945, 21.
13. The BIA’s assessment of tribal coal possessions is found at Federal Trade Commission, Staff Report on Mineral Leasing on Indian Lands, 6. The Geological Survey’s estimate is found at Comptroller General of the United States, Indian Natural Resources: Part 2, Coal, Oil, and Gas: Better Management Can Improve Development and Increase Indian Income and Employment: Report to the Senate Committee on Interior and Insular Affairs (Washington DC: Government Printing Office, March 31, 1976), 2. Tribal assessments can be found in Joseph Jorgensen, ed., Native Americans and Energy Development II (Boston: Anthropology Resource Center and Seventh Generation Fund, 1984), 6; and Joseph Jorgensen, ed., Native Americans and Energy Development (Cambridge, MA: Anthropology Resource Center, 1978), 6.
14. Oil, gas, and uranium figures can be found in Comptroller General of the United States, Indian Natural Resources: Part 2, Coal, Oil, and Gas, 1–2; Federal Trade Commission, Staff Report on Mineral Leasing on Indian Lands, 8; and Marjane Ambler, Breaking the Iron Bonds: Indian Control of Energy Development (Lawrence: University Press of Kansas, 1990), 94, n. 8. The Harris quote is found in Ambler, Breaking the Iron Bonds, 94.
15. American Indian Policy Review Commission, American Indian Policy Review Commission Final Report Submitted to Congress May 17, 1977, vol. 1 (Washington, DC: Government Printing Office, 1977), 7.
16. For the Navajo’s and Hopi’s long knowledge of their energy minerals and how such knowledge influenced the formation of their tribal governments, see Peter Iverson, Diné: A History of the Navajos (Albuquerque: University of New Mexico Press, 2002), 133–36; Lawrence C Kelly, The Navajo Indians and Federal Indian Policy, 1900–1935 (Tucson: University of Arizona Press, 1968); Kathleen P. Chamberlain, Under Sacred Ground: A History of Navajo Oil, 1922–1982 (Albuquerque: University of New Mexico, 2009); and Charles F Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (New York: Island Press, 2005), 284–87. As to the rapid growth of the American West after World War II, see Lisa McGirr, Suburban Warriors: The Origins of the New American Right (Princeton: Princeton University Press, 2001), esp. 25–29. For World War II and the effect of the Cold War on the American West generally, see Gerald D. Nash, The American West Transformed: The Impact of the Second World War (Bloomington: Indiana University Press, 1985); and Gerald D. Nash, World War II and the West: Reshaping the Economy (Lincoln: University of Nebraska Press, 1990).
17. The numbers on postwar energy demand in the American Southwest come from Brian Morton, “Coal Leasing in the Fourth World: Hopi and Navajo Coal Leasing, 1954–1977” (PhD diss., University of California, Berkeley, 1985), 49. Alexander’s quote is found in Alvin M. Josephy, Jr., “The Murder of the Southwest,” Audubon, July 1971, 54.
18. Peter Iverson covers Navajo oil and uranium mining in The Navajo Nation (Westport, CT: Greenwood Press, 1981), 77–80; and Iverson, Diné, 220. Benally’s quote is found at Iverson, Diné, 219. For uranium mining impacts to the Navajo, see also Judy Pasternak, Yellow Dirt: An American Story of a Poisoned Land and a People Betrayed (New York: Free Press, 2010); Doug Brugge, Timothy Benally, and Esther Yazzie-Lewis, The Navajo People and Uranium Mining (Albuquerque: University of New Mexico Press, 2007); Peter Eichstaedt, If You Poison Us: Uranium and Native Americans (Santa Fe: Red Crane Books, 1994); and Ward Churchill and Winona LaDuke, “Native America: The Economics of Radioactive Colonization,” in Review of Radical Political Economics 15 (Fall 1983): 9–19.
19. Jones’s 1956 quote is found in Morton, “Coal Leasing in the Fourth World,” 189. The 1959 quote is at Peter Iverson and Monty Roessel, eds., For Our Navajo People: Diné Letters, Speeches and Petitions, 1900–1960 (Albuquerque: University of New Mexico Press, 2002), 253.
20. Todd Andrew Needham, “Power Lines: Urban Space, Energy Development and the Making of the Modern Southwest” (PhD diss., University of Michigan, 2006), 145–46.
21. Andrew Needham and Allen Dieterich-Ward, “Beyond the Metropolis: Metropolitan Growth and Regional Transformation in Postwar America,” Journal of Urban History 35, no. 7 (2009): 950–51. For background on the Four Corners Plant and the Navajo Mine, see Iverson, Navajo Nation, 79–80; Morton, “Coal Leasing in the Fourth World,” 7–8; and Josephy, “Murder of the Southwest,” 55. To be clear, Utah International obtained its coal mining lease prior to entering an agreement to supply coal to the Four Corners Plant. As Andrew Needham demonstrates, however, from at least 1957 onwards, the power plant intended to use Navajo coal as its fuel source. Needham, “Power Lines,” 219–20.
22. Information on WEST’s Grand Plan is provided in Josephy, “Murder of the Southwest,” 62–64; and Charles F. Wilkinson, Fire on the Plateau: Conflict and Endurance in the American Southwest (Washington, DC: Island Press, 1999), 220–22. The WEST official’s quote is found in Wilkinson, Fire on the Plateau, 212. While Wilkinson does not provide a source for this quote, the same statistics on the size of this regional project appear in other contemporary accounts, e.g., Josephy, “Murder of the Southwest,” 61; and “Power: WESTward Ho!,” Time (October 2, 1964).
23. The decision to combine private and federal systems is covered in Needham, “Power Lines,” 245–56. Needham also explains in great detail the environmental opposition to more federal dams in the Southwest and thus Udall’s move to interconnect federal hydroelectric and irrigation systems with the WEST network. Ibid., chapter 7. Udall’s first quote comes from John Redhouse, Geopolitics of the Navajo Hopi Land Dispute (Albuquerque: Redhouse/Wright Prod., 1985), 16 (quoting Suzanne Gordon, Black Mesa: The Angel of Death (New York: John Day, 1973)). His second quote is at “Udall Pledges Cooperation with Utilities: Prophecies Great Future,” Arizona Republic, June 24, 1965.
24. Morton, “Coal Leasing in the Fourth World,” 7–12.
25. Ibid., chapter 5. Morton blames the suboptimal leases on an overriding federal policy to develop the nation’s coal at all cost. I question whether he confuses policy goals with executive agency actions, as a close reading of his analysis reveals that federal agents simply failed to uphold the intent of mineral leasing legislation, which was to thoughtfully and systematically develop the nation’s resources so as to avoid waste, prevent monopolies, and regulate mining in the public interest. For Morton, this failure to perform indicates that the 1920 Mineral Leasing Act and the 1938 Indian Mineral Leasing Act did not substantially alter nineteenth-century policies that encouraged, and failed to regulate, private exploitation of public and Indian resources. My view is different, as these Progressive reforms were intended to curtail many of the excesses of Gilded Age mining, but the federal agencies tasked with carrying out these directives simply were not provided the tools and resources for doing so. Still, we both arrive at the same conclusion: that the federal regime failed to efficiently develop western resources for the good of public and Indian owners. See Morton, “Coal Leasing in the Fourth World,” chapter 7.
26. Lynn A. Robbins, “Energy Development and the Navajo Nation,” in Jorgensen, Native Americans and Energy Development, 43. Smith’s quote is found in Josephy, “Murder of the Southwest,” 64.
27. Josephy, “Murder of the Southwest,” 67.
28. Lynn A. Robbins, “Energy Development and the Navajo Nation,” in Jorgensen, Native Americans and Energy Development, 43.
29. Josephy, “Murder of the Southwest,” 64; Federal Trade Commission, Staff Report on Mineral Leasing on Indian Lands, 22–23.
30. For detailed accounts of Hopi villagers’ struggle to prevent Black Mesa mining, see Wilkinson, Fire on the Plateau; Josephy, “Murder of the Southwest,” 64–67; and Richard O. Clemmer, “Black Mesa and the Hopi,” in Jorgensen, Native Americans and Energy Development. At the time the Black Mesa lease was issued, only six of the eighteen Hopi Tribal Council slots were filled validly. Josephy, “Murder of the Southwest,” 66; Jorgensen, Native Americans and Energy Development, 26–27. Alvin Josephy’s quote is found at Josephy, “Murder of the Southwest,” 66. Charles Wilkinson uncovered John Boyden’s clear conflict of interest. See Wilkinson, Fire on the Plateau, 169–71. The quote from the Hopi leader is found in Clemmer, “Black Mesa and the Hopi,” in Jorgensen, Native Americans and Energy Development, 30.
31. Comptroller General of the United States, Indian Natural Resources, 11. Federal Trade Commission, Staff Report on Mineral Leasing on Indian Lands, 21 and 95.
32. Redhouse, Geopolitics of the Navajo Hopi Land Dispute, 16. The Peabody permit revoked by the tribal council was designed to provide coal to the proposed Mohave Generating Station, owned by the WEST-affiliated Southern California Edison Company.
33. Redhouse, Geopolitics of the Navajo Hopi Land Dispute, 16–17. Udall’s quote is found in “News about Navajo Country,” Navajo Times, July 29, 1965 (quoted in Redhouse, Geopolitics of the Navajo Hopi Land Dispute, 16). Littell’s first quote comes from “Norman M. Littell Makes Statement,” Navajo Times, November 18, 1965. The second quote is found in “Norman M. Littell, General Counsel for the Navajo Tribe, Makes Statement on Conflicting Claims of Navajo and Hopi Tribes,” Navajo Times, January 6, 1966 (both are quoted in Redhouse, Geopolitics of the Navajo Hopi Land Dispute, 17).
34. Iverson, Navajo Nation, 105.
35. For environmental opposition to Grand Canyon dams and thus need to construct the Navajo Generating Station, see Needham, “Power Lines,” chapter 7.
36. Wilkinson, Blood Struggle, 303–4; Josephy, “Murder of the Southwest,” 62–64; and Redhouse, Geopolitics of the Navajo Hopi Land Dispute, 18–22. In 1948, the states of Wyoming, Colorado, Utah, New Mexico, and Arizona signed the Colorado River Compact to allocate water rights to this valuable western water source. Arizona received 50,000 acre-feet, but no provision was made for Navajo rights even though the majority of state land adjoining the river was on the reservation. Although these specific Navajo water rights had not been determined, the 1908 Supreme Court Winters v. United States decision held that the creation of Indian reservations implied a reserved right to the water flowing through or adjacent to them in order to fulfill the purpose of the reservation system, which was to provide a self-sufficient homeland to transform Indians from “wild” hunters and gatherers to “civilized” agricultural and pastoral people. 207 U.S. 564 (1908); and Cohen, Federal Indian Law, § 19.02 (2005). Under the Winters doctrine, the Navajo thus had a strong legal claim to a majority of Arizona’s allocated Colorado River water. The deal orchestrated by the Department of the Interior and WEST, however, required the Navajo to give up this legal claim to 34,100 acre-feet of water, plus an additional 3,000 acre-feet for the town of Page, Arizona, where the Navajo Generating Station would be built.
37. Josephy’s quote is found at Josephy, “Murder of the Southwest,” 64. For more on the unfairness of the deal to supply water and coal to the Navajo Generating Station, see Philip Reno, “High, Dry, and Penniless,” The Nation (March 29, 1975), and Wilkinson, Fire on the Plateau, 212–23. Josephy’s presidential report, commissioned by President Nixon’s chief of staff Bob Haldeman, is found at “The American Indian and the Bureau of Indian Affairs: A Study with Recommendations, February 11,1969,” in Red Power: The American Indians Fight for Freedom, ed. Alvin Josephy, Jr. (New York: McGraw-Hill, 1971). As George Pierre Castile shows, Haldeman’s memo requesting this report conveyed Nixon’s desire to “show more heart, and that we care about people, and [Nixon] thinks the Indian problem is a good area for us to work in.” Castile, To Show Heart; Thomas Clarkin, Federal Indian Policy in the Kennedy and Johnson Administrations, 1961–1969 (Albuquerque: University of New Mexico Press, 2001), 76.
38. For the Navajo’s Committee to Save Black Mesa, see Josephy, “Murder of the Southwest,” 64. The quote from Hopi elders is found at Clemmer, “Black Mesa and the Hopi,” in Jorgensen, Native Americans and Energy Development, 29. Clemmer’s assessment of the Senate hearings is at Clemmer, “Black Mesa and the Hopi,” in Jorgensen, Native Americans and Energy Development, 30.
39. For discussions on the rampant news coverage of Navajo and Hopi coal development, see Needham, “Power Lines,” 312; and Clemmer, “Black Mesa and the Hopi,” in Jorgensen, Native Americans and Energy Development, 28. The New York Times quote is found at Stan Steiner, “The Navajo vs. the Bulldozer,” New York Times, March 20, 1971.
40. For Peter MacDonald’s efforts to tap into rising nationalist sentiment among younger Navajo and his actions to control, not suspend, energy development, see Needham, “Power Lines,” 309–39; and Andrew Needham, “‘A Piece of the Action’: Navajo Nationalism, Energy Development, and Metropolitan Inequality,” in Sheri L. Smith and Brian Frehner, Indians and Energy: Exploitation and Opportunity in the American Southwest (Santa Fe: School for Advanced Research Press, 2010), 210–14. The anticolonial quote comes from “Candidates for Chairman,” Navajo Times, October 19, 1970, and the quote about reclaiming Navajo control of their resources is mentioned in Josephy, “Murder of the Southwest,” 64.
41. Andrew Needham is especially helpful in understanding MacDonald’s new approach to reservation development. As he explains, “By the time the tribe began questioning the electrical development on their land, most of the projects needed to generate electricity—strip mines, railroads, slurry pipes, power plants, and transmission lines—were already in place. As fixed capital, this geography resisted change imposed from the outside, leading Navajos to pursue regulatory instead of transformative change.” Needham, “Power Lines,” 261.
CHAPTER 3. “THE BEST SITUATION IN THEIR HISTORY”
1. Federal Trade Commission, Staff Report on Mineral Leasing on Indian Lands (Washington, DC: Federal Trade Commission, 1975), 41–43.
2. Ibid., 5; and James S. Cannon and Mary Jean Haley, Leased and Lost: A Study of Public and Indian Coal Leasing in the West (New York: Council on Economic Priorities, 1974), 31. To reiterate, these lease acreages represented only a tiny fraction of Indian lands actually opened to energy companies because the prospecting permits that led to leases gave mining firms access to much larger areas of the reservation to drill and explore. Once locating particularly desirable deposits, the coal companies then held exclusive rights to convert the large prospecting permit into a smaller lease, which authorized the actual removal of coal. As we will see in chapters 4 and 5, for American Indians, the presence of outside energy developers scouring their reservations for precious minerals was often as disturbing as the actual mining activities.
3. The lease royalty figures come from Cannon and Haley, Leased and Lost, 4; and Federal Trade Commission, Staff Report on Mineral Leasing on Indian Lands, 83–84. The Montana coal excise tax is discussed at K. Ross Toole, The Rape of the Great Plains: Northwest America, Cattle and Coal (Boston: Little, Brown 1976), 62–64. Ultimately, the Ninth Circuit Court of Appeals found Montana’s taxation of tribal mineral revenues to be an unlawful infringement on tribal sovereignty. Crow Tribe v. Montana, 819 F.2d 895, 903 (9th Cir. 1987). The Supreme Court later clarified, however, that Montana’s excise tax was unlawful not because states lacked the authority to tax non-Indian development of reservation resources but because Montana’s tax was “extraordinarily high” and unfairly discriminated against the tribe’s ability to market their coal. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 186–87, n. 17 (1989); for further clarification see also Montana v. Crow Tribe, 523 U.S. 696, 715 (1998) (“Montana, Cotton Petroleum thus indicates, had the power to tax Crow coal, but not at an exorbitant rate.”). The Supreme Court thus left open the possibility of states imposing reasonable taxes on non-Indian operators extracting minerals from Indian reservations.
4. Charles P. Corke to William G. Lavell, November 3, 1966, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC; F. F. DuBray, Realty Officer to Realty Files, July 14, 1966 (found in Ziontz, Pirtle, Moresset, and Ernstoff, “Petition of the Northern Cheyenne Indian Tribe to Rogers C. B. Morton, Volume II: Appendix,” January 7, 1974, A-9, K. Ross Toole Papers, series V, box 28, folder 2, Mansfield Library, University of Montana [hereafter Ziontz et al., “Northern Cheyenne Petition”]).
5. John R. White to Area Office Realty Files, May 9, 1973, 3, K. Ross Toole Papers, series V, box 28, folder 3, Mansfield Library, University of Montana; John Woodenlegs, “Statement Presented by John Woodenlegs, President, Northern Cheyenne to Conference called by Robert L. Bennett,” October 5, 1966, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 237, folder 237–1, Montana Historical Society, Digital Library and Archives.
6. Ziontz et al., “Northern Cheyenne Petition,” A-11 to A-14. The first document that directly discusses Peabody’s takeover of Sentry’s interests is a May 18, 1967, letter from the coal company’s attorneys to the BIA’s Northern Cheyenne office. But several other documents make it clear that discussions for this takeover were ongoing between Peabody and the Northern Cheyenne since the end of 1966. For instance, on December 17, 1966, Tribal President John Woodenlegs told President Lyndon Johnson’s National Advisory Committee on Rural Poverty that his tribe had recently “advertise[d] for coal prospecting, resulting in a very hopeful negotiation with the largest coal mining company in America.” Similarly, early in 1967, Peabody Vice President Richard Miller wrote Senator Lee Metcalf of Montana to thank him and fellow Montana Senator Mike Mansfield, for their “offer to assist us with federal departments and agencies that may be helpful in the development of [Northern Cheyenne coal].” Metcalf’s subsequent correspondence makes clear that the parties involved understood that Peabody’s goals included the construction of a power plant on or near the reservation. John Woodenlegs, “Statement Presented to President’s Johnson’s National Advisory Committee on Rural Poverty,” December 17, 1966, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 237, folder 237–1, Montana Historical Society, Digital Library and Archives; Richard Miller to Lee Metcalf, February 15, 1967, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 237, folder 237–1, Montana Historical Society, Digital Library and Archives; Lee Metcalf to Oakley Coffee, February 25, 1967, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 237, folder 237–1, Montana Historical Society, Digital Library and Archives. The Northern Cheyenne’s approval of the permit expansion is found at John Woodenlegs, “Resolution No. 70 (67),” October 16, 1967, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC. John White’s quote is found in Ziontz et al., “Northern Cheyenne Petition,” A-20.
7. James Canan to Commissioner of Indian Affairs, November 9, 1967, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC; Charles Corke to James Canan, November 16, 1967, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC; A. F. Czarnowsky, memo, November 16, 1967 (found in Ziontz et al., “Northern Cheyenne Petition,” A-21).
8. John R. White to Area Office Realty Files, 3. For a thorough description of the Peabody extension negotiations, see Ziontz et al., “Northern Cheyenne Petition,” A-14 to A-23.
9. For the tribal council taking the initiative to offer more land for mining and Rowland’s leadership in opening the entire reservation, see John R. White to Area Office Realty Files, 4. (“It is my belief that no one in the Bureau up to that point [of the Northern Cheyenne resolution] had suggested that another coal sale be held.”) The actual tribal resolution authorizing the reservation-wide lease sale is found at John Woodenlegs, “Resolution No. 37 (68),” April 22, 1968, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC.
10. Reinholt Brust, memo, May 6, 1968 (found in Ziontz et al., “Northern Cheyenne Petition,” A-55, n. 165); A. F. Czarnowsky, handwritten note, April 30, 1968 (found ibid., A-57).
11. Ziontz et al., “Northern Cheyenne Petition,” A-63 to A-64. Rowland’s quote is found in Toole, Rape of the Great Plains, 52.
12. A. F. Czarnowsky to Superintendent, Northern Cheyenne Agency, August 1, 1969 (found in Ziontz et al., “Northern Cheyenne Petition,” A-80).
13. As to Peabody pressure, see “Northern Cheyenne Highlights, Calendar Year 1969,” 1–2; and Ziontz et al., “Northern Cheyenne Petition,” A-30 to A-31, A-82. At the same meeting where the tribal council considered Peabody’s second bid, company executive J. H. Hobbs announced that his firm planned to exercise the lease option on its first permit and extract coal, but only if the tribe allowed Peabody to construct a railroad line to the coal fields. No doubt the implied assertion was that Peabody’s willingness to continue the entire project also hung on the council approving Peabody’s second bid. Tribal council actions to accept Peabody’s second bid, issue a lease on the first coal permit, and negotiate for transportation infrastructure across the reservation can be found at Northern Cheyenne Tribal Resolution No. 20 (70), August 18, 1969 (found in Ziontz et al., “Northern Cheyenne Petition,” A-81); Northern Cheyenne Tribal Council Resolution No. 10 (71), July 20, 1970 (found in Ziontz et al., “Northern Cheyenne Petition,” A-35); and Northern Cheyenne Tribal Council Resolution No. 24 (70), August 31, 1970 (found in Ziontz et al., “Northern Cheyenne Petition,” A-43).
14. W. H. Oestreicher to Allen Rowland, June 1, 1970, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC. For tribal council efforts to renegotiate royalty terms, see Ziontz et al., “Northern Cheyenne Petition,” A-38 to A-44. The original August 1970 deal terms included minimum royalty payments that would commence in the third year of the contract to insure Peabody actively pursued production rather than simply sitting on the coal deposits until the market improved. The tribal council successfully negotiated an increase in these minimum royalty terms and secured a promise from Peabody to start paying them in the contract’s first, not third, year. The BIA official assisting the tribe in these negotiations was Donald Maynard, and his quote regarding immediate tribal needs is found at Donald Maynard to Acting Director, Economic Development, September 28, 1970, Central Classified Files, 1958–75, Northern Cheyenne, decimal #332, box 21, RG 75, National Archives, Washington, DC. There were also numerous other incidents where the Northern Cheyenne pushed back against Peabody and demanded amendments to their existing contracts, with the BIA’s blessing. For instance, when Peabody’s second permit came up for renewal in fall 1971 and it became clear the coal company needed Cheyenne water to fully develop the coal resources, the two sides hammered out an agreement where the tribe promised certain water rights in exchange for more advanced royalties. Ziontz et al., “Northern Cheyenne Petition,” A-50 to A-55, A-84 to A-87. The new BIA superintendent Alonzo Spang—himself, an enrolled member of the tribe—encouraged the tribe’s hard negotiating tactics, writing to President Rowland, “The Tribal Council has every right and power to request that leases be re-negotiated. Our [BIA] action would be required once negotiations are complete. We are in full agreement with the Council’s request to have Peabody Coal Company become involved in a re-negotiation of the cited leases.” Alonzo T. Spang to Allen Rowland, November 26, 1971 (found in Ziontz et al., “Northern Cheyenne Petition,” A-85).
15. Maurice W. Babby to A. F. Czarnowsky, February 3, 1971 (found in Ziontz et al., “Northern Cheyenne Petition,” A-89 to A-90). As to interest generated for Northern Cheyenne coal, see Allen Rowland to John R. White, October 1, 1970 (found in Ziontz et al., “Northern Cheyenne Petition,” A-103).
16. Allen Rowland to John R. White, October 1, 1970 (found in Ziontz et al., “Northern Cheyenne Petition,” A-103); Allen Rowland to John R. White, December 4, 1970 (found in Ziontz et al., “Northern Cheyenne Petition,” A-105).
17. Ziontz et al., “Northern Cheyenne Petition,” A-111 to A-113, A-121 to A-123.
18. Compare Regional Mining Supervisor to Superintendent, Northern Cheyenne Agency, April 28, 1971 (found in Ziontz et al., “Northern Cheyenne Petition,” A-123) with John J. V. Pereau to Allen Rowland, April 30, 1971; and Office of Area Director to Superintendent, Northern Cheyenne Agency, May 18, 1971 (both found in Ziontz et al., “Northern Cheyenne Petition,” A-123 to A-124). Final contract figures come from Rogers Morton, “Decision on Northern Cheyenne Petition,” June 4, 1974, 2, Eloise Whitebear Pease Collection, 10:31, Little Bighorn College Archives, Crow Agency, MT; Ziontz et al., “Northern Cheyenne Petition,” A-124 to A-127, A-136; and Alvin M. Josephy, Jr., “Agony of the Northern Plains,” Audubon 75, no. 4 (July 1973): 92. These numbers include the previous Peabody permits.
19. Ziontz et al., “Northern Cheyenne Petition,” A-126.
20. Ibid., A-137 to A-139. For further details of Consolidation’s proposal, see chapter 1, above, notes 1–2 and accompanying text. Toole’s quote is found at Toole, Rape of the Great Plains, 49.
CHAPTER 4. “THE MOST IMPORTANT TRIBE IN AMERICA”
1. U.S. Department of the Interior, North Central Power Study (Billings, MT: Bureau of Reclamation, 1971), 5; see also K. Ross Toole, The Rape of the Great Plains: Northwest America, Cattle and Coal (Boston: Little, Brown, 1976), 19–20; and Marjane Ambler, Breaking the Iron Bonds: Indian Control of Energy Development (Lawrence: University Press of Kansas, 1990), 67–68. As for analyses of the projects’ potential impacts, see Alvin M. Josephy, Jr., “Agony of the Northern Plains,” Audubon 75, no. 4 (July 1973); Alvin M. Josephy, Jr., “Plundered West: Coal Is the Prize,” Washington Post, August 26, 1973; and Lynton R. Hayes, Energy, Economic Growth, and Regionalism in the West (Albuquerque: University of New Mexico Press, 1980), 24. The National Academy of Sciences first articulated the concept of a “national sacrifice area” to meet the nation’s energy needs in their 1974 report, Rehabilitation Potential of Western Coal Lands. Examining the coal industry’s recent trend to locate mines on public and tribal lands in the western United States, this report noted vast difficulties in reclaiming strip mines in arid regions. Concluding that restoration of such lands to their previous ecological state “is not possible anywhere,” the report suggested bluntly that the United States declare certain regions “National Sacrifice Areas,” where reclamation would not even be attempted. James S. Cannon and Mary Jean Haley, Leased and Lost: A Study of Public and Indian Coal Leasing in the West (New York: Council on Economic Priorities, 1974), 7–8. Two years later, K. Ross Toole first applied the label of “national sacrifice area” to the Northern Plains. Toole, Rape of the Great Plains, 4.
2. Toole, Rape of the Great Plains, 52.
3. The letter is quoted in both Ambler, Breaking the Iron Bonds, 65; and Josephy, “Agony of the Northern Plains,” 96.
4. This portion of the letter is quoted at Ziontz, Pirtle, Moresset, and Ernstoff, “Petition of the Northern Cheyenne Indian Tribe to Rogers C. B. Morton, Volume II: Appendix,” January 7, 1974, A-144 to A-146, K. Ross Toole Papers, series V, box 28, folder 2, Mansfield Library, University of Montana (hereafter Ziontz et al., “Northern Cheyenne Petition”).
5. Bert W. Kronmiller to Don Maynard, July 26, 1972 (found in Ziontz et al., “Northern Cheyenne Petition,” A-126).
6. Interview with William L. Bryan, Jr., June 13, 2011, Bozeman, MT, in author’s possession; and William L. Bryan, Jr., “Report on the July 1972 Activities of William L. Bryan, Jr., Northern Rocky Mountain Environmental Advocate,” July 1972, in author’s possession. Bryan’s dissertation is found at William LaFrentz Bryan, Jr., “An Identification and Analysis of Power-Coercive Change Strategies and Techniques Utilized by Selected Environmental Change Agents” (PhD diss., University of Michigan, 1971).
7. Toole, Rape of the Great Plains, 52.
8. Bryan’s first quote is from William L. Bryan, Jr., “The Northern Rocky Mountain Environmental Advocate,” September 1, 1972, 3, in author’s possession. His second quote and Gordon’s warning come from William L. Bryan, Jr., “Report on the August 1972 Activities of William L. Bryan, Jr., Northern Rocky Mountain Environmental Advocate,” August 1972, 4, in author’s possession.
9. Interview with William L. Bryan, Jr., August 15, 2008, Bozeman, MT, in author’s possession; William L. Bryan, Jr., “September Report on the Activities of William L. Bryan, Jr., Northern Rocky Mountain Environmental Advocate,” September 1972, 1, in author’s possession.
10. Interview with Marie Brady Sanchez, August 24, 2009, Lame Deer, MT, in author’s possession; National Park Service, “Sand Creek Massacre Project, Volume 1: Site Location Study,” 2000, 268–69, home.nps.gov/sand/parkmgmt/upload/site-location-study_volume-1-2.pdf (accessed December 30, 2014). Allotment came late to the Northern Cheyenne Reservation, and as a result the tribe retained a sizeable portion of their reservation in communal ownership. The 1926 Northern Cheyenne Allotment Act authorized allotment, but tribal rolls were not completed and the reservation was not fully surveyed until the early 1930s. At that time, there were only 1,457 qualified allottees, meaning 234,732.56 acres were apportioned to these individuals in lots of 160 acres or less, leaving 209,791.90 acres in tribal ownership. The 1934 Indian Reorganization Act ended the practice of allotment, and subsequent opening of “surplus” land to white settlers, before this additional land could be distributed. Over time, the tribal government reacquired 46,781 allotted acres, giving the tribe 62 percent ownership by the 1970s. Of the remaining 38 percent, much of it had not been granted to the allottees in outright fee, thus the BIA retained trust oversight over this allotted land. See Testimony of Bert W. Kronmiller, Tribal Attorney, “To Grant Minerals, Including Oil, Gas, and Other Natural Deposits, on Certain Lands in the Northern Cheyenne Indian Reservation, Montana, to Certain Indians,” Hearings Before the House Subcommittee on Indian Affairs, Committee on Interior and Insular Affairs, March 28, 1968, 11–12, folder “Northern Cheyenne 14,” box 257, no. 1 (reel 167), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983, microfilm collection published by Primary Source Media, filmed from the holdings of the Seeley G. Mudd Library, Princeton University (hereafter Assn. on American Indian Affairs Archives); Petition of Writ of Certiorari at 8, n. 5, Northern Cheyenne v. Hollowbreast, 425 U.S. 649 (1976) (No. 75–145).
11. Interview with Marie Brady Sanchez, August 24, 2009, Lame Deer, MT, in author’s possession.
12. For a concise discussion of federal funding increases for Indian programs during the 1960s, including Indian higher education, and its contribution to increased Indian activism, see Joane Nagel, American Indian Ethnic Renewal: Red Power and the Resurgence of Identity and Culture (New York: Oxford University Press, 1996), 122–30. Nagel also provides an apt description of AIM’s strategic shift, ibid., 166–68. Marie Sanchez’s meeting with Russell Means is detailed in Michael Parfit, Last Stand at Rosebud Creek: Coal, Power, and People (New York: E. P. Dutton, 1980), 85–86.
13. Bryan, “September Report on the Activities of William L. Bryan, Jr.,” 2.
14. Parfit, Last Stand at Rosebud Creek, chapters 20–21 and 23–24.
15. Josephy, “Agony of the Northern Plains”; David Earley, “Group Forms to Battle Strip Mining,” Billings Gazette, April 27, 1972. Charter’s quote is found at Calvin Kentfield, “New Showdown in the West,” New York Times, January 28, 1973.
16. Earley, “Group Forms to Battle Strip Mining”; see also Northern Plains Resource Council website, “History,” http://www.northernplains.org/about/history. McRae’s quote is at Parfit, Last Stand at Rosebud Creek, 96.
17. Denise Curran, “Voice of Land Speaks Up,” Billings Gazette, November 16, 1972.
18. Northern Plains Resource Council, “Newsletter,” Billings, MT, June–July 1972, in author’s possession; Northern Plains Resource Council, “Newsletter,” Billings, MT, October–November 1972, in author’s possession; Curran, “Voice of Land Speaks Up”; Parfit, Last Stand at Rosebud Creek, 91; Bryan, “September Report on the Activities of William L. Bryan, Jr.”; Glenn Fowler, “Harry M. Caudill, 68, Who Told of Appalachian Poverty,” December 1, 1990, New York Times.
19. Northern Plains Resource Council, “Newsletter,” Billings, MT, October–November 1972; Northern Plains Resource Council, “Newsletter,” Billings, MT, December–January 1972, 1973; interview with William L. Bryan, Jr., June 13, 2011, Bozeman, MT, in author’s possession; and William L. Bryan, Jr., “October Activities of William L. Bryan, Jr.,” October 1972, in author’s possession.
20. Mining firms with prospecting crews active on the Northern Cheyenne Reservation in fall 1972 included Peabody, Consolidation, Chevron, and AMAX, as well as local speculators Bruce Ennis and Norsworthy & Reger, Inc. As to damages caused by some of these companies, see Ziontz et al., “Northern Cheyenne Petition,” A-131 to A-134 and A-143. For the actual formation of the NCLA, see Bryan, “October Activities of William L. Bryan, Jr.,” 3.
21. Bill Bryan notes how the AIM caravan’s arrival disrupted the first attempt to organize the NCLA. Bryan, Jr., “October Activities of William L. Bryan, Jr.,” 2. Organized by several Indian activist groups but led by AIM, the Trail of Broken Treaties was part of AIM’s transition away from focusing on the civil rights of urban Indians and toward a broader message of enforcing tribal treaty rights. Ward Churchill and James Vander Wall, Agents of Repression: The FBI’s Secret Wars against the Black Panther Party and the American Indian Movement (Boston: South End Press, 1990), 121–22. For more on the Trail of Broken Treaties and AIM’s leadership, see Vine Deloria, Behind the Trail of Broken Treaties: An Indian Declaration of Independence (New York: Dell Publishing, 1974); Paul Chaat Smith and Robert Allen Warrior, Like a Hurricane: The Indian Movement from Alcatraz to Wounded Knee (New York: New Press, 1996), part 2; and Charles F. Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (New York: Island Press, 2005), 139–43. For a history of the Red Power Movement that began before AIM’s ascendance, see Bradley Shreve, Red Power Rising: The National Indian Youth Council and the Origins of Native Activism (Norman: University of Oklahoma Press, 2011).
22. Rising Sun’s first quote and Bixby’s response are found at Nagel, American Indian Ethnic Renewal, 169. For a discussion of generational differences between American Indians’ reactions to the Trail of Broken Treaties, see ibid., at 136–37. Rising Sun’s second quote is ibid., 41–42. For the Northern Cheyenne’s condemnation of the BIA takeover, see Allen Rowland, “Northern Cheyenne Resolution No. 64 (73),” November 14, 1972, John Melcher Papers, series 1, box 115, folder 5, Mansfield Library, University of Montana. Two years after this condemnation, dozens of AIM members returned to the Northern Cheyenne Reservation after the organization’s armed standoff with federal agents at Wounded Knee, South Dakota. AIM members declared that their mission was only to establish a legal aid center and perhaps organize a Lame Deer chapter, but once again Cheyenne residents harassed the activists. This time, federal agents had to be called in to protect the peace. Jim Crane, “AIM to Aid in Opposing Coal Development,” November 24, 1974 Missoulian (Missoula, MT); “AIM Organizing at Lame Deer,” August 15, 1974, Missoulian; and “Most AIM Backers Leave Lame Deer,” August 25, 1974, Missoulian. Interestingly, the visiting AIM activists camped at the home of Marie and Chuck Sanchez, who participated in the protest at Wounded Knee and then hosted Russell Means, Leonard Peltier, and about thirty other AIM members after the event. Marie Sanchez dismissed the publicity this second visit generated, explaining, “They [local reporters] just wanted to sell papers.” In her recollection, AIM’s presence on the reservation was a non-event and its contribution to the anti-coal cause minimal. Interview with Marie Brady Sanchez, August 24, 2009, Lame Deer, MT, in author’s possession.
23. Results from the Northern Cheyenne Research Project and the tribal members’ quotes are found at Jean Nordstrom et al., The Northern Cheyenne Tribe and Energy Development in Southeastern Montana (Lame Deer, MT: Northern Cheyenne Research Project, 1977), 174–75.
24. Ibid. Woodenlegs’s statement is at “Proceedings of the Native American, Environmentalist, and Agriculturalist Workshop” (Northern Rockies Action Group, December 10, 1975), 14, in author’s possession.
25. Tribal quotes regarding disruptions to the community are found at Nordstrom et al., Northern Cheyenne Tribe and Energy Development, 166, 164, and 161, respectively. For comparison sake, only 9 percent listed environmental impacts as coal mining’s worst possible effect; another 7 percent feared most the loss of land and water that could be used for other industrial development. Rising Sun’s and Sootkis’s quotes come from George Wilson, “Indian Coal Fight Tests U.S. Policies,” Washington Post, June 11, 1973.
26. For years, George Bird Grinnell’s tome provided the primary account of the Northern Cheyenne’s flight from Indian Territory back to Montana. The Fighting Cheyennes (New York: Scribner’s, 1915), 383–411. Recently, James Leiker and Ramon Powers have supplied a much-needed update to this dramatic tale that includes recollections of the event and its contested meaning along the Great Plains. This work is especially instructive for understanding how the Northern Cheyenne’s collective memory of this nineteenth-century ordeal serves to unite the tribe. The Northern Cheyenne Exodus in History and Memory (Norman: University of Oklahoma Press, 2011), esp. 183–195. Several other books relay the events as remembered by the participants. Edger Beecher Bronson, Reminiscences of a Ranchman (New York: McClure, 1908) 139–97; E. A. Brininstool, Dull Knife: A Cheyenne Napoleon (Hollywood: E. A. Brininstool, 1935); Thomas Marquis, trans., Wooden Leg: A Warrior Who Fought Custer (Lincoln: University of Nebraska Press, 1957), 321; and John Stands in Timber and Margot Liberty, Cheyenne Memories, (New Haven: Yale University Press, 1998), 232–37. Other secondary works dedicate substantial focus to the flight, including Stan Hoig, Perilous Pursuit: The U.S. Cavalry and the Northern Cheyenne (Boulder: University Press of Colorado, 2002); John H. Monnet, Tell Them We Are Going Home: The Odyssey of the Northern Cheyennes (Norman: University of Oklahoma Press, 2001); Orlan J. Svingen, The Northern Cheyenne Indian Reservation, 1877–1900 (Niwot: University Press of Colorado, 1993), 19–24; Tom Weist, A History of the Cheyenne People (Billings, MT: Montana Council for Indian Education, 1977), 80–87; and Verne Dusenberry, “The Northern Cheyenne: All They Have Asked Is to Live in Montana,” Montana: The Magazine of Western History 5 (Winter 1955): 28–30. For an alternative account arguing the Northern Cheyenne were awarded a reservation due to the tribe’s selective adoption of settled agriculture, see James Allison, “Beyond the Violence: Indian Agriculture, White Removal, and the Unlikely Construction of the Northern Cheyenne Reservation, 1876–1900,” Great Plains Quarterly 32, no. 2 (Spring 2012): 91–111.
27. Bill Parker’s quote is found in “Proceedings of the Native American, Environmentalist, and Agriculturalist Workshop,” 9–10. The tribe’s comments opposing the Colstrip Power Plant are at Tom Scheuneman, “Statement of the Northern Cheyenne Tribe before the State of Montana Department of Natural Resources and Conservation,” December 30, 1974, 3–4, Montana Energy Division Records, 1972–1990, record series 328, box 15, DNRC Public Hearings on Colstrip 3 and 4, Montana Historical Society, Digital Library and Archives (emphasis removed). Tribal comments related to air shed redesignation are at the Northern Cheyenne Research Project, “The Northern Cheyenne Air Quality Redesignation Request and Report,” December 11, 1976, 3–10, in author’s possession. Text on the tribe’s official stationery is noted at Ambler, Breaking the Iron Bonds, 8. And finally, the last quote from the young tribal member comes from Nordstrom et al., Northern Cheyenne Tribe and Energy Development in Southeastern Montana, 174.
28. The text from Bill Bryan’s pamphlet is found at Michael Wenninger, “$1 Billion Coal Plant Discussed,” Billings Gazette, November 29, 1972; and William L. Bryan, Jr., “Northern Rocky Mountain Environmental Advocate, November Activities of William L. Bryan, Jr.,” November 1972, 2, in author’s possession. Bill Bryan provided the “Coal: Black Death” poster, and it is in the author’s possession.
29. Unfortunately, Toole cites no sources for this meeting between Dahle and Crossland, and subsequent accounts simply cite Toole. Thus it is difficult to verify the meeting took place or assess its impact on tribal leaders. Toole, Rape of the Great Plains, 53–55; and Ambler, Breaking the Iron Bonds, 65. For the subsequent NCLA meetings and Rowland’s and Spang’s support, see Wenninger, “$1 Billion Coal Plant Discussed”; Michael Wenninger, “Cheyennes Eye Coal Proposal,” Billings Gazette, November 30, 1972; Michael Wenninger, “Indians Mull Coal Referendum,” Billings Gazette, December 1, 1972; and Bryan, “November Activities of William L. Bryan, Jr.”
30. Attendees at this December 7 meeting are detailed in William L. Bryan, Jr., “Northern Rocky Mountain Environmental Advocate, December Activities of William L. Bryan, Jr.,” December 1972, in author’s possession; and Betty Clark to William Byler, December 1972, folder “Northern Cheyenne 16,” box 257, no. 1 (reel 167), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983. For NARF’s founding and experience defending southwestern Indians, see Native American Rights Fund, Announcements 1, no. 1 (June 1972), 3–4 and 13. Brecher’s personal involvement with NARF is detailed in Michael Wenninger, “Northern Cheyenne to Fight Coal Complex,” Billings Gazette, January 27, 1973.
31. Wenninger, “Northern Cheyenne to Fight Coal Complex.”
32. For the suspension of drilling activities, see Ziontz et al., “Northern Cheyenne Petition,” A-177. Rowland’s and Dahle’s quotes come from Wilson, “Indian Coal Fight Tests U.S. Policies.” Gardner’s quote is at Ben Franklin, “Indian Tribe in Montana Weighs Major Offer to Strip Mine Coal as Profitable but Perilous,” New York Times, February 5, 1973.
33. As to Joseph Brecher’s alienating style, see interview with William L. Bryan, Jr., June 13, 2011, Bozeman, MT, in author’s possession. For tribal council efforts to draft tax and reclamation codes, see Franklin, “Indian Tribe in Montana Weighs Major Offer to Strip Mine Coal as Profitable but Perilous.” The resolution canceling all existing coal deals is at Allen Rowland, “Resolution No. 132 (73): A Resolution of the Northern Cheyenne Tribal Council Relating to the Cancellation and Termination of All Existing Coal Permits and Leases on the Northern Cheyenne Reservation,” March 5, 1973, Eloise Whitebear Pease Collection, 10:31, Little Bighorn College Archives, Crow Agency, MT.
34. To be clear, the Northern Cheyenne’s initial grounds for terminating its leases rested on the BIA violating 25 C.F.R.§ 177.4, but once the tribe hired the Seattle law firm of Ziontz, Pirtle, Moresset, and Ernstoff, it greatly expanded its legal arguments. Filed on January 7, 1974, the official petition listed thirty-six violations of the law, each of which the tribe argued provided grounds to void the coal contracts. Steven Chestnutt, “Coal Development on the Northern Cheyenne Reservation,” in Commission on Civil Rights, Energy Resource Development: Implications for Women and Minorities in the Intermountain West (Washington, DC: Government Printing Office, 1979), 165–71. Rowland’s comparison of the Northern Cheyenne’s situation to the Navajo and Hopi tribes is found in Allen Rowland to James Canan, March 9, 1973, 3, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 219, folder 219–3, Montana Historical Society, Digital Library and Archives. Dahle’s quote is in Nancy Cardwell, “Cheyenne’s Last Stand?: Indians Fight New Battle in Montana, To Limit Coal Mining on Reservation,” Wall Street Journal, September 10, 1975.
35. 25 C.F.R. § 177.4(a)(1) (1970); National Environmental Policy Act, Public Law 91–190, § 102, 83 Stat. 853, 854 (1970) (codified at 42 U.S.C. § 4332 (2006)). In 1972, the comptroller general failed to find documentation of the required “technical examinations” for any Indian mineral leases previously approved by the BIA. United States General Accounting Office, Administration of Regulations for Surface Exploration, Mining, and Reclamation of Public and Indian Coal Lands (Washington, DC: Government Printing Office, 1972), 13. In response, the BIA took the position that staff need not physically perform the technical examination as long as this requirement could be fulfilled by the “data available in the offices of the USGS and BIA plus the familiarity of the field offices employees with the land.” John Crow to BIA Area Directors, November 17, 1972, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 219, Montana Historical Society, Digital Library and Archives. Only after offering this post hoc rationale did the Billings area office direct the Northern Cheyenne and Crow reservation superintendents to document how they fulfilled the technical examination requirements for leases and permits already issued. Maurice Babby to Superintendents, Crow and Northern Cheyenne Agencies, December 12, 1972, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 219, folder 219–3, Montana Historical Society, Digital Library and Archives. K. Ross Toole argues this was “a blatant attempt, ex post facto, to doctor the files.” Toole, Rape of the Great Plains, 59. For the Department of the Interior’s position that NEPA did not apply to agency actions for Indian assets, see United States General Accounting Office, Administration of Regulations for Surface Exploration, Mining, and Reclamation of Public and Indian Coal Lands; and Harrison Loesch to John Dingell, November 12, 1971, folder “Natural Resources,” box 147, no. 4 (reel 71), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983. In 1975, the Ninth Circuit Court of Appeals rejected this argument, making clear NEPA applied to federal actions managing Indian resources. Further, although no federal court has determined whether compliance with the “technical examination” of 25 C.F.R. part 177 satisfies NEPA’s procedural requirements for an environmental review of any major federal action, the Ninth Circuit held that BIA’s compliance with NEPA’s requirements renders the requirements of part 177 moot. Davis v. Morton, 469 F.2d 593 (10th Cir. 1972). Ambler’s quote comes from Ambler, Breaking the Iron Bonds, 69.
36. Richard Nixon, “Special Message to Congress on Indian Affairs,” July 8, 1970, The American Presidency Project, ed. Gerhard Peters and John T. Woolley, http://www.presidency.ucsb.edu/ws/index.php?pid=2573. For Nixon’s message as just a continuation of the previous administrations’ Indian policy, see Thomas Clarkin, Federal Indian Policy in the Kennedy and Johnson Administrations, 1961–1969 (Albuquerque: University of New Mexico Press, 2001); and George Pierre Castile, To Show Heart: Native American Self-Determination and Federal Indian Policy, 1960–1975 (Tucson: University of Arizona Press, 1998), chapters 1–3. In fact, Lyndon Johnson provided his own message to Congress two years earlier, which contained some of the same policy language: “I propose a new goal for our Indian programs: A goal that ends the old debate about ‘termination’ of Indian programs and stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership self-help.” Lyndon B. Johnson, “Special Message to the Congress on the Problems of the American Indian: ‘The Forgotten American,’” March 6, 1968, The American Presidency Project, ed. Gerhard Peters and John T. Woolley, http://www.presidency.ucsb.edu/ws/index.php?pid=28709#axzz1ckaZdTec.
37. Rogers Morton, “Decision on Northern Cheyenne Petition,” June 4, 1974, Eloise Whitebear Pease Collection, 10:31, Little Bighorn College Archives, Crow Agency, MT. Morton actually denied most of the Northern Cheyenne’s claims but did find that the BIA violated acreage limitations placed on the size of mineral leases and that the agency had not yet conducted the proper environmental analyses required by NEPA. On the original question of whether the BIA conducted the proper technical examination, Morton punted, requesting more information on agency actions to fulfill this requirement. The point, however, was moot since Morton already demanded a NEPA-style environmental analysis before mining could commence. Rowland is quoted in John J. Fialka, “The Indians, the Royalties, and the BIA,” Civil Rights Digest (Winter 1978): 29.
38. Ambler, Breaking the Iron Bonds, 69. For Northern Cheyenne meeting with Montana’s congressional delegation, see Roger, “Memo on the Meeting on Northern Cheyenne Coal Lease,” August 1, 1973, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 218, folder 218–4, Montana Historical Society, Digital Library and Archives; Dorothy Tenenbaum, “Memo to File,” September 7, 1973, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 218, folder 218–4, Montana Historical Society, Digital Library and Archives; and Mike Mansfield and Lee Metcalf to Roy E. Huffman, September 12, 1973, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 218, folder 218–4, Montana Historical Society, Digital Library and Archives. For tribal efforts to develop a mining enterprise business plan, see Alonzo Spang to Allen Rowland, August 28, 1973, 8NN-75-92-206, box 14, folder “Comprehensive Plan for the Northern Cheyenne Res.,” National Archives, Denver; and Northern Cheyenne Tribal Council, “A Proposal to Develop a Preliminary Business Plan for the Development of Coal Reserves and Related Industry on Tribally Owned and Controlled Lands on the Northern Cheyenne Reservation,” February 1974, Bradley H. Patterson Files, box 4, Northern Cheyenne-Coal, Gerald R. Ford Library, Ann Arbor, MI. The tribal council’s tour of Peabody facilities is detailed in Fialka, “Indians, the Royalties, and the BIA,” 22.
39. Northern Cheyenne Tribal Council, “A Proposal to Develop a Preliminary Business Plan for the Development of Coal Reserves and Related Industry on Tribally Owned and Controlled Lands on the Northern Cheyenne Reservation,” 2.
CHAPTER 5. DETERMINING THE SELF
*Epigraph. Washington Irving, The Adventures of Captain Bonneville (New York: John B. Alden, 1886), 138–39.
1. H. J. Armstrong to Commissioner of Indian Affairs, March 24, 1882, 6491, Letters Received—Office of Indian Affairs, RG 75, National Archives (quoted in Frederick Hoxie, Parading through History: The Making of the Crow Nation in America, 1805–1935 [New York: Cambridge University Press, 1995], 21).
2. The quotes come from Hoxie, Parading through History, 29. Hoxie’s coverage of the Sword Bearer incident is found ibid., 154–64. Other accounts of this incident are summarized in Colin Calloway, “Sword Bearer and the ‘Crow Outbreak’ of 1887,” Montana: The Magazine of Western History 36, no. 4 (Autumn 1986): 38–51.
3. Patrick Stands Over Bull, “Statement from the Crow Tribal Chairman, Patrick Stands,” August 29, 1975, 1, Joseph Medicine Crow Collection, 24:12, Little Bighorn College Archives, Crow Agency, MT (hereafter LBC Archives).
4. Ibid., 6.
5. Crow Coal, Inc.’s proposal is at Joseph Rawlins to Crow Industrial Development Commission, May 10, 1966, Eloise Whitebear Pease Collection, 16:54, LBC Archives. For background on the company and its formation, see “Articles of Incorporation of Crow Coal, Inc.,” January 7, 1966, Eloise Whitebear Pease Collection, 16:54, LBC Archives; Joseph Rawlins to Eloise Pease, October 6, 1966, Eloise Whitebear Pease Collection, 16:54, LBC Archives; and A. F. Czarnowsky, Deputy Regional Mining Supervisor, to Superintendent, Northern Cheyenne Reservation, February 4, 1965, 8NN-075-91-008, box 8, folder “Coal Leasing and Permit (Sene and Scott),” National Archives, Denver.
6. The federal government’s 1910 assessment of Crow Reservation land and resources is found in House Committee on Indian Affairs, Sale of Certain Land, etc. within the Diminished Crow Reservation, Mont., 61st Cong., 2d sess., 1910, H. Rep. 1495, 2. Yellowtail is quoted in Megan Benson, “The Fight for Crow Water: Part 1, The Early Reservation Years through the New Deal,” Montana: The Magazine of Western History 57, no. 4 (Winter 2007): 36. The Crow Allotment Act is at Act of June 4, 1920, Public Law 66-239, 41 Stat. 751 (1920).
7. For oil and gas activity on the Crow Reservation, see Superintendent, Crow Indian Agency, to Area Director et al., Re: The Ten Year Goals of the Crow Reservation, July 13, 1964, 2–3, 8NN-75-92-206, box 9, folder “Res. Programs—Crow Res.,” National Archives, Denver; and John Cummins and Otto Weaver, “Application to Lease Tribal Lands for Oil and Gas Purposes,” May 17, 1963, 8NS–075–97–341, box 11, folder “Confidential Crow Requests for Oil and Gas Lease Sale,” National Archives, Denver. As of 1967, the Department of the Interior reported the tribe had received only $3,665,000 in mineral revenue since 1920, with 40 percent of this coming over the previous five years. Senate Committee on Interior and Insular Affairs, Granting Minerals, Including Oil and Gas, on Certain Lands in the Crow Reservation, Mont., to Certain Indians, and for Other Purposes, 90th Cong., 1st sess., 1967, S. Rep. 690, 3. The law transferring reservation minerals to the Crow in perpetuity is at An Act to Grant Minerals, Including Oil and Gas, on Certain Lands in the Crow Indian Reservation, Montana, to Certain Indians, and for other Purposes, Public Law 90–308, 82 Stat. 123 (1968). In passing this law, Congress thwarted the expectation of individual allottees and surface owners who, under the 1920 Allotment Act, would have received mineral rights at the conclusion of the fifty-year period reserving these rights to the tribe. Despite this sudden change in future ownership, no widespread opposition seems to have materialized on the Crow Reservation. On the neighboring Northern Cheyenne Reservation, however, allottees challenged a similar law passed the same year transferring their minerals to tribal ownership. As discussed in chapter 7, the Supreme Court ultimately upheld the law, affirming that all reservation minerals belonged to the Northern Cheyenne, and by implication, the Crow as well. Northern Cheyenne v. Hollowbreast, 425 U.S. 649 (1976); see chapter 7, note 6 and accompanying text.
8. As to tribal governance under the 1948 constitution, see Crow Tribe, Crow Tribal Report, Presented to the American Indian Policy Review Commission (Crow Agency, MT: Crow Tribal Council, 1976), 77–78 and 86–87. For how this “open council” form of government led to Crow factionalism, see ibid., 76–87, and Hoxie, Parading through History, chapter 8.
9. The resolution creating the Oil and Gas Committee is at Fred Froze, “Resolution,” November 13, 1952, Eloise Whitebear Pease Collection, 16:54, LBC Archives. Subsequent clarification of this committee’s powers is found at John Cummins, “Resolution No. 64–09, Resolution of the Crow Tribal Council Granting Power to the Oil and Gas Committee to Transact Business and for Other Purposes,” July 13, 1963, Eloise Whitebear Pease Collection, 16:54, LBC Archives; and James Torske to Westmoreland Resources, February 18, 1972, Eloise Whitebear Pease Collection, 16:54, LBC Archives.
10. For local media coverage of the emerging demand for Crow coal, see “Indians Could Be Big Winners in Coal Boom,” Billings Gazette, September 14, 1967. The resolution conferring unilateral powers to the tribal chairman is at Edison Real Bird, “Resolution No. 68–2: A Resolution of the Crow Tribal Council Authorizing the Crow Tribal Council Chairman to Issue Prospecting Permits and to Grant Mining Leases of Coal Resources of the Crow Tribe of Indians and for Other Purposes,” October 31, 1967, Eloise Whitebear Pease Collection, 16:20, LBC Archives.
11. Thomas Kleppe, “Decision of the Secretary of the Interior Relating to Crow Tribe v. Kleppe, Et Al.,” January 17, 1977, 1–3, Eloise Whitebear Pease Collection, 14:37, LBC Archives. Peabody’s bonus was $1.00 an acre, Gulf’s was approximately $3.50, and Shell paid $12.00 per acre. These figures are not insignificant, but as we well see, none of the companies ever developed their coal rights and thus never provided a steady, lucrative revenue stream to the Crow tribe.
12. The act transferring Crow land in the Ceded Strip to the federal government is at Act of April 27, 1904, Public Law 58–183, 33 Stat. 352 (1904). Although negotiated in 1899, this transaction was not formalized until several years later, when Congress unilaterally adjusted the payment terms. For the negotiations leading to the land cession and Congress’s alteration of the terms, see Hoxie, Parading through History, 233–39. The act transferring mineral rights back to the Crow is at Act of May 19, 1958, Public Law 85–420, 72 Stat. 121 (1958). For a helpful review of the Ceded Strip’s convoluted history, see Crow Tribe of Indians v. U.S., 657 F. Supp. 573 (D. Mont., 1985), 575–78. To be clear, though the tribe owned mineral rights in the Ceded Strip and the federal government acted as a trustee over these subsurface rights, the surface area was not part of the reservation. See Crow Tribe v. Montana, 650 F.2d 1104, 1107 (9th Cir. 1981) (noting the opinion in Little Light v. Crist, 649 F.2d 682, 685 [9th Cir. 1981]) that “the ceded area is not a part of the reservation”).
13. For the negotiations between Norsworthy & Reger, the Crow tribe, and the BIA that resulted in an oral auction for Crow coal rights, see Jase Norsworthy to J. O. Jackson, September 5, 1969, Central Classified Files, 1958–75, Crow, decimal #323, box 38, RG 75, National Archives, Washington, DC; Office of Area Director to Commissioner of Indian Affairs, September 29, 1969, Central Classified Files, 1958–75, Crow, decimal #323, box 38, RG 75, National Archives, Denver; A. F. Czarnowsky, Regional Mining Supervisor, to Area Realty Officer, September 30, 1969, Central Classified Files, 1958–75, Crow, decimal #323, box 38, RG 75, National Archives, Washington, DC; and George Hubley, Commissioner of Indian Affairs to Area Director, Billings Area, October 20, 1969, Central Classified Files, 1958–75, Crow, decimal #323, box 38, RG 75, National Archives, Washington, DC. To be clear, oral bidding was available only to firms that had first submitted sealed, written bids. Bruce Ennis to Louis R. Bruce, July 17, 1970, Central Classified Files, 1958–75, Crow, decimal #323, box 38, RG 75, National Archives, Washington, DC. Recall that the following month, in October 1970, Northern Cheyenne Tribal President Allen Rowland demanded the same oral auction procedure for his tribe’s third, final, and most lucrative coal sale. See chapter 3, note 16 and accompanying text. The results of the Crow’s third coal sale are at Bureau of Indian Affairs, “Abstract of Sealed and Oral Bids on Coal Sale #3,” September 16, 1970, Central Classified Files, 1958–75, Crow, decimal #323, box 38, RG 75, National Archives, Washington, DC; and BIA Regional Office to Commissioner of Indian Affairs, September 22, 1970, Central Classified Files, 1958–75, Crow, decimal #323, box 38, RG 75, National Archives, Washington, DC.
14. For the various per cap distributions following the Crow’s coal sales, see Edison Real Bird, “Resolution No. 68–21: A Resolution Providing for the Appropriation of Tribal Funds for Social and Economic Purposes,” April 13, 1968, Eloise Whitebear Pease Collection, 16:20, LBC Archives; Edison Real Bird, “Resolution 68–31: A Resolution of the Crow Tribal Council Providing for the Appropriation of Tribal Funds for Social and Economic Purposes,” April 26, 1968, Eloise Whitebear Pease Collection, 16:4, LBC Archives; and James Canan to Edison Real Bird, October 16, 1970, John Melcher Papers, series 1, box 113, folder 12, Mansfield Library, University of Montana.
15. For Westmoreland’s acquisition of Norsworthy & Reger coal rights and Crow water rights, see A. E. Bielefeld to Norsworthy & Reger, May 19, 1971, Westmoreland Coal Company Records, Acc. #1765, “Sarpy Creek, Land Questions, 8–71–6–73, WE3FEB2,” box 830, Hagley Museum and Library, Wilmington, DE (hereafter Hagley Museum); United States Bureau of Reclamation, “Contract among the United States, Norsworthy & Reger, and Westmoreland Resources to Assist Contract No. 14–06–600–329A for Furnishing Water for Industrial Use,” July 22, 1971, Westmoreland Coal Company Records, Acc. #1765, “Sarpy Creek, Land Questions, 8–71–6–73, WE3FEB2,” box 830, Hagley Museum; R. L Freeman to Charles Stewart, October 22, 1971, Eloise Whitebear Pease Collection, 17:8, LBC Archives; Lucille Cooke to Walter Fenney, November 16, 1971, Eloise Whitebear Pease Collection, 17:8, LBC Archives; and Clarence Stewart, “Resolution of the Crow Tribal Mineral Committee,” January 25, 1972, Eloise Whitebear Pease Collection, 17:8, LBC Archives. For constructing a railroad line to the Ceded Strip and unifying Westmorland’s leases, see Eloise Pease, “Annual Overall Economic Development Program Progress Report (For the Calendar Year 1971),” 1972, 4, Eloise Whitebear Pease Collection, 7:7, LBC Archives; Eloise Pease, “Meeting of Mineral Committee [Handwritten] Minutes,” February 4, 1972, Eloise Whitebear Pease Collection, 16:57, LBC Archives; Ralph E. Moore to Mineral Committee, June 2, 1972, Westmoreland Coal Company Records, Acc. #1765, “Misc. Correspondence, 1974–76,” box 837, Hagley Museum; and United States Bureau of Indian Affairs, “Coal Mining Lease Indian Lands, Contract No. 14–20–0252–3863,” June 6, 1972, Eloise Whitebear Pease Collection, 16:66, LBC Archives. For coverage of the royalty negotiations and the tribe’s rejection of the amended terms, see Pease, “Meeting of Mineral Committee [Handwritten] Minutes”; Minturn Wright to Pemberton Hutchinson, May 8, 1972, Westmoreland Coal Company Records, Acc. #1765, “Sarpy Creek, Land Questions, 8–71–6–73, WE3FEB2,” box 830, Hagley Museum; Theodore Voorhees to Louis R. Bruce, May 9, 1972, Westmoreland Coal Company Records, Acc. #1765, “Sarpy Creek, Land Questions, 8–71–6–73, WE3FEB2,” box 830, Hagley Museum; and “Memorandum: West more land Resources,” October 22, 1972, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum. To be clear, Westmoreland was not the only energy company that elected to transform its prospecting permit into a lease. Shell and AMAX also decided to “go to lease” in summer 1972, but these companies were much further away from beginning actual mining operations. With their prospecting permits set to expire, it appears AMAX and Shell determined to take leases and simply pay the Crow penalties under their contracts’ minimum production requirements in lieu of forfeiting all rights to Crow coal. United States Bureau of Indian Affairs, “Coal Mining Lease Indian Lands, Contract No. 14–20–0252,” June 5, 1972, Eloise Whitebear Pease Collection, 17:26, LBC Archives; United States Bureau of Indian Affairs, “Coal Mining Lease Indian Lands, Contract No. 14–20–0252–3863”; and United States Bureau of Indian Affairs, “Coal Mining Lease Indian Lands, Contract No. 14–20–0252–3917,” September 12, 1972, Eloise Whitebear Pease Collection, 16:66, LBC Archives.
16. Internal Westmoreland correspondence documents this dispute within the tribe over the terms of their deal. According to Westmoreland officials, the BIA was especially wary of approving any lease terms that might contradict the desires of a large portion of the Crow tribe, thus Westmoreland executives expended considerable efforts to demonstrate to the BIA why the amendments to their coal contract were necessary to make their projects viable and that the Crow tribe was fully informed and supported these changes. Minturn Wright to Pemberton Hutchinson, May 4, 1972, Westmoreland Coal Company Records, Acc. #1765, “Sarpy Creek, Land Questions, 8–71–6–73, WE3FEB2,” box 830, Hagley Museum; Minturn Wright to Pemberton Hutchinson, May 8, 1972; and Theodore Voorhees to Louis R. Bruce, May 9, 1972. David Stewart’s new list of demands to Westmoreland are detailed at “Memorandum: Westmoreland Resources,” October 22, 1972, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum.
17. In Davis v. Morton, the Tenth Circuit Court of Appeals rejected the BIA’s stance that the National Environmental Policy Act did not apply to the issuance of Indian mineral leases. 469 F.2d 593 (10th Cir. 1972). Westmoreland communication with BIA officials, who then were tasked with preparing the required environmental analyses, makes clear that the BIA was prepared to delay its report due to Crow dissatisfaction with the current royalty. Theodore Voorhees to Pemberton Hutchinson, March 15, 1973, 2 and 6, Westmoreland Coal Company Records, Acc. #1765, “Legal Correspondence, 1974–76,” box 836, Hagley Museum. As for Crow intervention into the Sierra Club suit, Westmoreland’s payment of attorney’s fees, and Crow demands for advanced royalties, see Charles Brinley, “Westmoreland Resources Meeting Minutes,” September 13, 1973, Westmoreland Coal Company Records, Acc. #1765, “Directors’ Meetings, 1–71 to 9–81, #58.04,” box 831, Hagley Museum; Pemberton Hutchinson to Evalyn Carson, September 21, 1973, Westmoreland Coal Company Records, Acc. #1765, “Sierra Club v. Morton, et al., 9/73–1/76, #350.10” box 832, Hagley Museum; and Pemberton Hutchinson to Partners, September 21, 1973, Westmoreland Coal Company Records, Acc. #1765, “Sierra Club v. Morton, et al., 9/73–1/76, #350.10,” box 832, Hagley Museum. Hutchinson’s comment about not wanting the Crow to develop Cheyenne attitudes is at Pemberton Hutchinson to Partners, June 18, 1973, 2, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; see also Charles Brinley, “Westmoreland Resources Meeting Minutes,” May 17, 1973, 3, Westmoreland Coal Company Records, Acc. #1765, “Directors’ Meetings, 1–71 to 9–81, #58.04,” box 831, Hagley Museum. Additional correspondence making clear tribal support for the Ceded Strip’s environmental impact statement depended on securing higher royalties is at Daniel Israel to Pemberton Hutchinson, January 30, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; Charles Brinley to Partners, February 1, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; Pemberton Hutchinson to Daniel Israel, February 14, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; and Charles Brinley, “Westmoreland Resources Meeting Minutes,” March 13, 1974, Westmoreland Coal Company Records, Acc. #1765, “Misc. Correspondence, 1974–76,” box 837, Hagley Museum. This correspondence also makes clear that the federal government was withholding final issuance of the environmental analysis until the tribe secured satisfactory royalties.
18. “Coal (Crow) Agency,” October 1973, 1, Joseph Medicine Crow Collection, 24:12, LBC Archives.
19. Crow Tribe Community Action Program, “Crow Coal Survey and Preliminary Social Impact Report,” October 1973, 2–3, Eloise Whitebear Pease Collection, 16:52, LBC Archives.
20. David Stewart, “Resolution No. 74–09: A Resolution of the Crow Tribal Council Providing for the Election of a Mineral Committee of the Crow Tribe, Defining the Powers and Duties of Said Mineral Committee, Rescinding and Repealing Any and All Resolutions Heretofore Passed and Adopted by the Crow Tribal Council Which Are in Conflict with the Provisions of This Resolution, and for Other Purposes,” October 13, 1973, 2, Eloise Whitebear Pease Collection, 22c:3:1, LBC Archives. Although the enacting resolution unambiguously charged the Minerals Committee with handling all mineral development, a subsequent resolution gave the committee more specific directions for negotiating with Westmoreland. Tribal attorney Thomas Lynaugh later argued that this subsequent resolution limited the Minerals Committee’s authority to dealing only with the Westmoreland lease. “Resolution No. 74–17: A Resolution of the Crow Tribal Council Authorizing the Mineral Committee of the Crow Tribe to Take Certain Actions, and for Other Purposes,” January 12, 1974, Eloise Whitebear Pease Collection, LBC Archives; and Thomas Lynaugh to Bud Lozar, November 8, 1976, Eloise Whitebear Pease Collection, 16:19, LBC Archives.
21. Israel’s first meeting with the Mineral Committee is documented in Eloise Pease, “Mineral Committee Meeting [Handwritten] Minutes,” December 4, 1973, 1, Eloise Whitebear Pease Collection, 16:52, LBC Archives. As to Israel’s coordination with the Crow’s community action program, see Daniel Israel to Ken Toineeta, December 13, 1973, Eloise Whitebear Pease Collection, 16:57, LBC Archives. In July 1973, the Crow had received a $125,000 grant from the Department of Health, Education, and Welfare to study the best method for managing their coal resources. Caspar Weinberger to Lee Metcalf, January 23, 1974, Eloise Whitebear Pease Collection, 16:52, LBC Archives. The hired consultants’ assessment of past deals and their advice to the Crow is at Daniel Israel, “Memorandum: Meeting with Carmel Patton on November 28, 1973,” November 29, 1973, 1, Eloise Whitebear Pease Collection, 16:57, LBC Archives.
22. For the Crow’s strategy to focus on the Westmoreland deal and use it as the basis for subsequent negotiations, see Daniel Israel to Crow Mineral Committee, December 20, 1973, Eloise Whitebear Pease Collection, 16:57, LBC Archives. For the actual negotiations, see Daniel Israel to Pemberton Hutchinson, February 8, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; Pemberton Hutchinson to Partners, February 8, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; Pemberton Hutchinson to Daniel Israel, February 14, 1974; Pemberton Hutchinson to Partners, March 1, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; Pemberton Hutchinson to Dan Israel, March 11, 1974, Eloise Whitebear Pease Collection, 16:54, LBC Archives; and Eloise Pease and Pemberton Hutchinson, “Memorandum of Understanding,” March 13, 1974, Eloise Whitebear Pease Collection, 16:35, LBC Archives. Israel’s quote is at Dan Israel and Dale Emling to Crow Mineral Committee and Crow Tribal Leaders, May 20, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum. For tribal meetings that resulted in postponing a decision on the Westmoreland amended contract, see Pemberton Hutchinson to Partners, March 25, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; and Pemberton Hutchinson to Partners, April 9, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum. For additional consultants advising the Mineral Committee and Crow candidates, see P. J. Stevens to Robert Howe, April 10, 1974, Westmoreland Coal Company Records, Acc. #1765, “Misc. Correspondence, 1974–76,” box 837, Hagley Museum; Charles Beasley to Alex Birdinground, April 16, 1974, Eloise Whitebear Pease Collection, 16:48, LBC Archives; Pemberton Hutchinson to Partners, April 18, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; Charles Brinley to Partners, May 2, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum; and Dan Israel and Dale Emling to Crow Mineral Committee and Crow Tribal Leaders, May 20, 1974. The decision to postpone any vote on Westmoreland’s deal until after tribal elections is at Eloise Pease to Crow Tribal Members, May 3, 1974, Eloise Whitebear Pease Collection, 16:54, LBC Archives. Finally, Howard Frey’s bloody tomahawk is found in Pemberton Hutchinson to Partners, April 9, 1974.
23. For the May 1974 election turnout, see Eloise Pease to Members of the Crow Tribe, May 14, 1974, Westmoreland Coal Company Records, Acc. #1765, “Land Questions, 7–73 to 3–75, WR3FEB2,” box 830, Hagley Museum. Stands Over Bull’s quote is in Donald Fixico, The Invasion of Indian Country in the Twentieth Century: American Capitalism and Tribal Natural Resources (Boulder: University of Colorado Press, 1998), 146. The mining moratorium resolution is at Patrick Stands Over Bull, “Resolution No. 75–06A: A Resolution Providing General Direction on Matters Concerning Pending Coal Development on Tribally Owned Coal Resources and on All Coal Resources within the Boundaries of the Crow Indian Reservation,” July 13, 1974, Apsaalooke Nation Council and District Records, Crow Tribal Government Building, Crow Agency, MT. For Stands Over Bull’s private negotiations with Westmoreland, see Pemberton Hutchinson to Partners, July 8, 1974, Westmoreland Coal Company Records, Acc. #1765, “Misc. Correspondence, 1974–76,” box 837, Hagley Museum; and Patrick Stands Over Bull, “Resolution No. 75–12: A Resolution Authorizing a Delegation of the Crow Tribal Council to Negotiate Specific Matters in Order to Obtain a Final Agreement on Tracts 2 and 3,” October 12, 1974, Apsaalooke Nation Council and District Records, Crow Tribal Government Building, Crow Agency, MT.
24. For the amended agreement’s terms, see Crow Delegation to Crow Tribal Council, November 3, 1974, Joseph Medicine Crow Collection, 24:12, LBC Archives; Charles Brinley to Partners, November 4, 1974, Westmoreland Coal Company Records, Acc. #1765, “Legal Correspondence, 1974–76,” box 836, Hagley Museum; and Patrick Stands Over Bull, “Resolution No. 75–17: A Resolution Approving a Final Agreement between the Crow Tribe of Indians and Westmoreland Resources with Respect to Coal Leases on Tracts 2 and 3,” November 23, 1974, Apsaalooke Nation Council and District Records, Crow Tribal Government Building, Crow Agency, MT. The actual tribal council vote was 343 for the amended Westmoreland deal versus 33 opposed.
25. Daniel Israel, “Report on the Shell Coal Lease,” December 4, 1974, 2–3, 21–22, Eloise Whitebear Pease Collection, 17:13, LBC Archives (emphasis in original).
26. The tribal poll is at “Crow Tribal Coal Survey, 1975,” Hardin Herald, April 6, 1975, 1.
27. For Shell’s reliance on Crow coal, see Israel, “Report on the Shell Coal Lease,” 23–24. Shell’s letter to tribal members is at N. J. Isto to Joe Medicine Crow, June 30, 1975, Joseph Medicine Crow Collection, 24:12, LBC Archives; see also Richard H. Geissler, “Crows Criticize ‘Fraudulent’ Offer,” Billings Gazette, July 9, 1975.
28. The Coal Office’s mandates are at “Crow Tribal Coal Survey, 1975,” 1. Examples of information sheets can be found at Office of Coal Research, “Information Sheet #1–75,” February 17, 1975, Eloise Whitebear Pease Collection, 17:13, LBC Archives; Office of Coal Research, “Information Sheet #2–75,” April 25, 1975, Eloise Whitebear Pease Collection, 16:49, LBC Archives; and Office of Coal Research, “Information Sheet #3–75,” June 25, 1975, Eloise Whitebear Pease Collection, 16:1, LBC Archives.
29. Angela Russell to Joe Medicine Crow, August 22, 1975, Joseph Medicine Crow Collection, 24:12, LBC Archives. The participants’ survey is at Office of Coal Research, “Black Mesa Site Visit,” November 8, 1975, 6–10, Joseph Medicine Crow Collection, 24:12, LBC Archives.
30. Edmund Littlelight, Jr., to Hardin Herald Editor, December 17, 1975, Eloise Whitebear Pease Collection, 22c:3:1, LBC Archives.
31. Stands Over Bull’s first quote comes from Patrick Stands Over Bull to N. J. Isto, July 3, 1975, Lee Metcalf Papers, General Correspondence, Collection No. 172, box 161, folder 161–5, Montana Historical Society, Digital Library and Archives, Helena, MT. The chairman’s public statement is at Patrick Stands Over Bull, “Statement of Patrick Stands Over Bull, Chairman Crow Tribal Council,” September 19, 1975, 3, Eloise Whitebear Pease Collection, 16:11, LBC Archives; see also Patrick Stands Over Bull, “Statement from the Crow Tribal Chairman, Patrick Stands,” August 29, 1975, 1, Joseph Medicine Crow Collection, 24:12, LBC Archives; and Patrick Stands Over Bull, Tyrone Ten Bear, Jiggs Yellowtail, and Oliver Hugs to Crow Tribal Members, September 19, 1975, Joseph Medicine Crow Collection, 24:12, LBC Archives. For helpful reviews of the tribal ordinances enacted to control coal mining, as well as interpretations of their legality, see Kent Frizzell to Patrick Stands Over Bull, March 22, 1976, Eloise Whitebear Pease Collection, 16:11, LBC Archives; and Department of the Interior Solicitor, “Solicitor to Secretary,” October 13, 1976, Joseph Medicine Crow Collection, 4:31, LBC Archives. Stands Over Bull’s preconditions for further agreements are found in Patrick Stands Over Bull to Keith Doig, March 12, 1976, Eloise Whitebear Pease Collection, 16:11, LBC Archives; and Patrick Stands Over Bull to Amax Coal Company, March 19, 1976, Eloise Whitebear Pease Collection, 16:11, LBC Archives.
32. Formal protests lodged against the October 1975 Mineral Committee election show that tribal members disputed whether Stands Over Bull properly noticed the special election or instead simply forced through his preferred candidates. “Crow Tribal Response to Protest of the October Quarterly Council Meeting Filed by Robert Howe, Jr.,” October 1975, Eloise Whitebear Pease Collection, 22d:1:2, LBC Archives.
33. In spring 1976, Stands Over Bull was negotiating with at least four different coal companies: Westmoreland, Shell, AMAX, and Gulf. See Keith Doig to Pat Stands Over Bull, February 12, 1976, Eloise Whitebear Pease Collection, 17:26, LBC Archives; Patrick Stands Over Bull to AMAX Coal Company, March 19, 1977; R. B. Crowl to Patrick Stands Over Bull, March 24, 1976, Eloise Whitebear Pease Collection, 16:11, LBC Archives; Patrick Stands Over Bull to Charles Brinley, March 25, 1976, Eloise Whitebear Pease Collection, 16:11, LBC Archives; Keith Doig to Patrick Stands Over Bull, March 29, 1976, Eloise Whitebear Pease Collection, 16:11, LBC Archives; Charles Brinley to Patrick Stands Over Bull, March 30, 1976, Eloise Whitebear Pease Collection, 16:11, LBC Archives; and R. J. Gocken to Patrick Stands Over Bull, March 30, 1976, Eloise Whitebear Pease Collection, 16:11, LBC Archives. For tribal members complaining at the spring council meeting about these on-reservation mining negotiations, see “Public Hearing at Crow Tribal Building,” March 16, 1976, Eloise Whitebear Pease Collection, 16:11, LBC Archives. As for attacks on Stands Over Bull’s coal policy and allegations of public drunkenness, see John Pretty On Top, “So the People May Know!,” May 1976, Joseph Medicine Crow Collection, 4:16, LBC Archives. The four candidates opposed to reservation mining were Sargie Howe, Andy Russell, John Pretty On Top, and Jiggs Yellowtail, the last being Stands Over Bull’s vice chairman. Joseph Medicine Crow, “May 8, 1976 Tribal Election Results [handwritten],” May 8, 1976, Joseph Medicine Crow Collection, 4:16, LBC Archives.
34. For a complete history of the fight over the Bighorn River dam, see Megan Benson, “The Fight for Crow Water: Part 1, The Early Reservation Years through the New Deal,” Montana: The Magazine of Western History 57, no. 4 (Winter 2007): 24–42; and Megan Benson, “The Fight for Crow Water: Part 2, Damming the Bighorn,” Montana: The Magazine of Western History 58, no. 1 (Spring 2008): 3–23. Ultimately, neither side could claim victory; the tribe decided to sell the land for a dam but never received the full agreed-upon payment. Meanwhile, Northsider leader Robert Yellowtail suffered the indignity of having the dam he opposed named after him. As for pre-reservation Crow divisions, see Hoxie, Parading through History, chapter 2. The third major group was a subgroup of the Mountain Crow, known as the Kicked In the Bellies. For the division between and characteristics of the River Crow/Southsiders versus Mountain Crow/North-siders, see Timothy P. McCleary, “An Ethnohistory of Pentecostalism among the Crow Indians of Montana,” Wicazo Sa Review 15, no. 1 (Spring 2000): 123; and Mardell H. Plainfeather, “Factionalism among Contemporary Crow Indians,” n.d., unpub. manuscript, Little Bighorn College Library, Lame Deer, MT.
35. For Sonny Yellowtail’s vote against his father, see Constance J. Poten, “Robert Yellowtail, the New Warrior,” Montana: The Magazine of Western History 39, no. 3 (July 1, 1989): 40.
36. Frederick Hoxie also argues that generational differences greatly influenced Crow positions on reservation allotment during the early twentieth century. According to Hoxie, older, “long hairs” generally opposed the breakup of communal land, while younger, “short hairs” were more comfortable with individual plots and believed allotment to be the only way to preserve Indian land. Hoxie, Parading through History, 260–63. Kindness’s quote is found in National Congress of American Indians, Proceedings from the National Congress of American Indians, Indian Energy Conference, Billings, Montana, August 28–29, 1974, August 28, 1974, folder “Natural Resources,” box 147, no. 4 (reel 71), 30, Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983.
37. Kindness’s quote is at National Congress of American Indians, Proceedings from the National Congress of American Indians, Indian Energy Conference, 29.
38. For details on this protest and quotes of the participants, see Bryce Nelson, “Custer Relative Has No Role in Helping Mark 100th Anniversary of ‘Last Stand,’” Los Angeles Times, June 26, 1976; Bryce Nelson, “Indians Stalk Custer Ghost: After 100 Years Wounds of Bighorn Still Festering,” Los Angeles Times, June 25, 1976; and Akwesasne Notes, August 1976, 21. For a discussion of the changing and various meanings attached to the Battle of the Little Bighorn site, see Edward Tabor Linenthal, “Ritual Drama at the Little Big Horn: The Persistence and Transformation of a National Symbol,” Journal of the American Academy of Religion 51, no. 2 (June 1, 1983): 267–81.
39. Lipton’s recommendation to establish a Crow operating company is at Charles Lipton to Patrick Stands Over Bull, October 1, 1976, Eloise Whitebear Pease Collection, 16:8, LBC Archives. The Coal Authority’s enacting resolution is at Patrick Stands Over Bull, “Resolution 77–08: A Resolution Setting Forth Terms for Discussions with Off Reservation Energy Companies: Establishing a Crow Coal Authority, Setting Qualifications and Duties for Said Authority: Protecting the Crow Reservation: And Providing for a Per Capita Distribution,” October 9, 1976, Apsaalooke Nation Council and District Records, Crow Tribal Government Building.
40. Eloise Pease to Stephen Lozar, October 19, 1976, 3, Eloise Whitebear Pease Collection, 22c:4, LBC Archives; see also Patrick Stands Over Bull to Stephen Lozar, November 12, 1976, Eloise Whitebear Pease Collection, 16:38, LBC Archives. As to the competing bodies negotiating with different mining firms, see Stephen Lozar to Eloise Pease, October 29, 1976, Eloise Whitebear Pease Collection, 22c:4:4, LBC Archives; Thomas Lynaugh to Bud Lozar, November 8, 1976, Eloise Whitebear Pease Collection, 16:19, LBC Archives; and Thomas J. Lynaugh to Crow Tribal Officers, Members of Executive and Minerals Committees, December 13, 1976, Eloise Whitebear Pease Collection, 16:44, LBC Archives. Varying accounts of the violent December 22 meeting are found in Phillip White Clay, “Crow Tribal Special Council Meeting Minutes,” December 22, 1976, Eloise Whitebear Pease Collection, 16:43, LBC Archives; Eloise Pease, “Statement of Eloise Pease, Parliamentarian at the Council of December 22, 1976,” Eloise Whitebear Pease Collection, 14:15, LBC Archives; and Urban Bear Don’t Walk to Ben Reifel, January 24, 1977, 8, Eloise Whitebear Pease Collection, 14:15, LBC Archives. This special council meeting was called after Stands Over Bull’s supporters gathered a petition to create yet another minerals committee to conclude negotiations with Shell. At the December 13 executive council meeting that considered the petition, however, anti-coal opponents countered with their own petition to suspend Stands Over Bull. “Executive Committee Meeting Minutes,” December 13, 1976, Eloise Whitebear Pease Collection, 14:15, LBC Archives. As to Stands Over Bull’s actions to adjourn and leave the meeting, see Patrick Stands Over Bull to Stephen Lozar, December 27, 1976, Eloise Whitebear Pease Collection, 22c:4:4, LBC Archives.
41. The BIA order invalidating Stands Over Bull’s suspension is at Patrick Stands Over Bull and Urban J. Bear Don’t Walk v. Billings Area Director, BIA, 6 IBIA 98 (June 6, 1977), 110. In a clear nod to tribal sovereignty, the Board of Indian Appeals held that the question of Stands Over Bull’s suspension was a parliamentary issue that only the tribe could resolve. Because the tribal council never affirmed this action and, in fact, voted down a subsequent suspension resolution on January 8, 1977, the appeals board found the suspension ineffective. The January and April meetings’ minutes are at Phillip White Clay, “Quarterly Crow Tribal Council Meeting Minutes,” January 8, 1977, Eloise Whitebear Pease Collection, 2c:4:4, LBC Archives; and Phillip White Clay, “Crow Tribal Council Minutes, April 9, 1977,” April 9, 1977, Eloise Whitebear Pease Collection, 2c:4:1, LBC Archives. Pease’s quote comes from the January meeting, at 2.
42. Patrick Stands Over Bull and Urban J. Bear Don’t Walk v. Billings Area Director, BIA, 6 IBIA 98 (June 6, 1977), 109.
43. Philip Whiteclay, “Crow Tribal Council Meeting Minutes,” July 9, 1977, 2–4, 8, 9, 11, 12, and 17, Eloise Whitebear Pease Collection, 2c:4:2, LBC Archives. The opposition argued the popular practice of walking “through the line” to support a resolution pressured individuals to follow clan lines rather than vote their conscious, which was at odds with their conception of sovereignty emanating from the free will of the people.
44. Ibid., 15.
CHAPTER 6. TAKING THE FIGHT NATIONAL
1. Department of the Interior News Release (October 3, 1972) (found in Kleppe v. Sierra Club, 427 U.S. 390 [1976], Appendix, 132 and 134). For a concise description of the overall project, see Kleppe, 427 U.S. at 396–97.
2. Morton’s quote is located in Department of the Interior News Release (October 3, 1972) (found in Kleppe, 427 U.S. at Appendix, 133). Nixon’s April energy address can be accessed at Richard Nixon, “Special Message to Congress on Energy Policy,” April 18, 1973, The American Presidency Project, ed. Gerhard Peters and John T. Woolley, http://www.presidency.ucsb.edu/ws/?pid=3817. In his first energy message to Congress, on June 4, 1971, the president called for an increased supply of domestic, “clean” energy. In 1973, the president repeated this call for increased domestic production in dozens of addresses, though the emphasis on clean energy had conspicuously disappeared. The most significant of these 1973 messages were delivered on April 18, June 29, November 7, and November 25. These speeches and remarks are available online at The American Presidency Project, ed. Gerhard Peters and John T. Woolley, www.presidency.ucsb.edu.
3. Native American Rights Fund, “An Unfinished Drama: The Declaration of Indian Independence,” Announcements 3, no. 2, part 1 (April–June 1975): 28; Native American Natural Resource Development Federation, “Native American Natural Resources Management Program: A Proposal to Provide Management-Development Plans to the Member Tribes of the Native American Natural Resource Development Federation,” April 1, 1975, 2–3, series 6: NCAI Committees and Special Issues, box 236, “Energy (General) 1975 [1 of 2],” National Congress of American Indians Collection, National Museum of American Indians Archive Center, Suitland, MD (hereafter NCAI Collection).
4. Native American Rights Fund, “Unfinished Drama,” 28–31.
5. Ibid.; Native American Natural Resource Development Federation, “Native American Natural Resources Management Program,” 2–5. For Burnette’s involvement with the NCAI and his own tribal political career, see Thomas W. Cowger, The National Congress of American Indians: The Founding Years (Lincoln: University of Nebraska Press, 1999), 141–48. As for Burnette being the first to conceive of the Trail of Broken Treaties, see Robert Burnette and John Koster, The Road to Wounded Knee (New York: Bantam Books, 1974), 195–98; and Paul Chaat Smith and Robert Allen Warrior, Like a Hurricane: The Indian Movement from Alcatraz to Wounded Knee (New York: New Press, 1996), 139. For more on the Trail of Broken Treaties and its influence, or lack thereof, on the Northern Cheyenne’s protest against energy development, see chapter 4, notes 21–22 and accompanying text.
6. Native American Rights Fund, “Unfinished Drama,” 9–35; Native American Natural Resources Development Federation “A Declaration of Indian Rights to the Natural Resources in the Northern Great Plains,” quoted ibid., 29.
7. Native American Natural Resource Development Federation, “Native American Natural Resources Management Program,” 5.
8. George Crossland to Stuart Jamieson, February 13, 1974, series 6: NCAI Committees and Special Issues, box 238, “Surface Mining Legislation, etc. (Strip Mining) 1974,” NCAI Collection; George Crossland to Chuck Trimble, March 25, 1974, 4 and 9, series 6: NCAI Committees and Special Issues, box 235, “Energy (General) 1974 [1 of 2],” NCAI Collection.
9. For the NCAI’s founding and early tactics, see generally Cowger, National Congress of American Indians. For NCAI’s moderate approach in the early 1960s, see ibid., 146–49; and Bradley Shreve, Red Power Rising: The National Indian Youth Council and the Origins of Native Activism (Norman: University of Oklahoma Press, 2011), 119 and 208. For a discussion of how the 1964 election of Vine Deloria, Jr., as NCAI’s executive director reenergized and redirected the organization toward a more activist bent, see Charles F. Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (New York: Island Press, 2005), 106–12. To be clear, even though the NCAI consistently disavowed direct action protests, it was instrumental in forging the Red Power Movement, most specifically by organizing the American Indian Chicago Conference that launched the National Indian Youth Council. Cowger, National Congress of American Indians, 133–41; and Shreve, Red Power Rising, 89–93. The NCAI’s own description of its “industrial show” type approach is at National Congress of American Indians, “A Proposal to the Office of Native American Programs and the Economic Development Administration to Develop and Implement a National Indian Economic Development Program,” April 15, 1974, 3, series 6: NCAI Committees and Special Issues, box 235, “Energy Resources Seminar—NCAI,” NCAI Collection.
10. National Congress of American Indians, “Proposal to the Office of Native American Programs and the Economic Development Administration,” 1–5. NCAI Executive Director Chuck Trimble repeated this explanation for his organization’s change in reservation development strategy at the first Indian Energy Conference held in Billings, Montana, on August 28, 1974. National Congress of American Indians, Proceedings from the National Congress of American Indians, Indian Energy Conference, Billings, Montana, August 28–29, 1974, August 28, 1974, 7, folder “Natural Resources,” box 147, no. 4 (reel 71), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983.
11. Dan Israel and Tom Fredericks to Stu Jamieson, July 19, 1974, series 6: NCAI Committees and Special Issues, box 235, “Energy—Energy Seminar, Billings, Mont., August 28–29, 1974,” NCAI Collection; and Dan Israel and Tom Fredericks to Stu Jamieson, July 24, 1974, series 6: NCAI Committees and Special Issues, box 235, “Energy—Energy Seminar, Billings, Mont., August 28–29, 1974,” NCAI Collection. As to NARF’s influence on the Indian Energy Conference’s agenda, compare Dan Israel and Tom Fredericks to Stu Jamieson, July 24, 1974, with “NCAI Sponsors National Indian Energy Resources Conference,” Sentinel: National Congress of American Indians Bulletin (July–August 1974).
12. National Congress of American Indians, Proceedings from the National Congress of American Indians, Indian Energy Conference, 6 and 29.
13. Ford Foundation, Energy Policy Project, A Time to Choose: America’s Energy Future (Cambridge, MA: Ballinger, 1974), 325. Specifically, the report concluded that, among a host of possible alternatives, “a conservation oriented energy policy provides benefits in every major area of concern—avoiding shortages, protecting the environment, avoiding problems with other nations, and keeping real social costs as low as possible.”
14. National Congress of American Indians, Proceedings from the National Congress of American Indians, Indian Energy Conference, 8.
15. Ibid., 10–11.
16. Ibid., 16.
17. Ibid., 128.
18. As for the creation of the Federal Energy Office, see Executive Order No. 11748 (December 4, 1973); and Richard Nixon, “Remarks Announcing Establishment of the Federal Energy Office,” December 4, 1973, The American Presidency Project, ed. Gerhard Peters and John T. Woolley, http://www.presidency.ucsb.edu/ws/index.php?pid=4060. For the Federal Energy Administration’s creation and its duties, see Federal Energy Administration Act of 1974, Public Law 93–275, 88 Stat. 96 (1974); and Executive Order No. 11790 (June 25, 1974), The American Presidency Project, ed. Gerhard Peters and John T. Woolley, http://www.presidency.ucsb.edu/ws/index.php?pid=59130. For background on these and other 1970s energy agencies, see Jack M Holl, The United States Department of Energy: A History (Washington, DC: Department of Energy, 1982). As Holl explains, the Energy Reorganization Act of 1974 redefined the roles of several energy agencies and created another entity, the Energy Research and Development Administration, to coordinate federal support of energy research and development. However, despite the seeming transfer of research and development responsibility to this new institution, the FEA continued to support nonfederal efforts to expand domestic production, particularly those taken by energy tribes.
19. Old Coyote’s quote is at National Congress of American Indians, Proceedings from the National Congress of American Indians, Indian Energy Conference, 129.
20. Trimble’s quote is found ibid., 131. Mahkijani’s quote is found in National Congress of American Indians, Proceedings from the 31st Annual Convention of National Congress of American Indians, Workshop Five: Tribal Natural Resources, October 23, 1974, 9, folder “Natural Resources,” box 147, no. 4 (reel 71), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983. Crossland’s comments are ibid., 4 and 19.
21. The meetings in Washington, DC, and the letter to President Ford is described in Bob Hanfling, “Final Edition of the Indian Position Paper for John Hill,” May 8, 1975, 1, series 6: NCAI Committees and Special Issues, box 236, “Energy (General) 1975 [1 of 2],” NCAI Collection. The request to Zarb is described in Wilkinson, Cragun and Barker, “General Memorandum No. 75–36,” April 30, 1975, 1, series 6: NCAI Committees and Special Issues, box 236, “Energy (General) 1975 [2 of 2],” NCAI Collection.
22. The Indian Caucus, “Position Paper of the Indian Caucus, The Federal Energy Administration Consumer Workshop,” April 22, 1975, 2, series 6: NCAI Committees and Special Issues, box 238, “FEA [Federal Energy Administration] Energy Meeting 1975,” NCAI Collection. The Washington, DC, meeting with Zarb is described in Hazel Rollins to [numerous recipients], June 1975, series 6: NCAI Committees and Special Issues, box 238, “FEA [Federal Energy Administration] Energy Meeting 1975,” NCAI Collection; Wilkinson, Cragun and Barker, “General Memorandum No. 75–36”; and Hanfling, “Final Edition of the Indian Position Paper for John Hill,” 2.
23. Hazel Rollins to [numerous recipients], June 1975; Wilkinson, Cragun and Barker, “General Memorandum No. 75–36”; “Indian Energy Task Force Forms,” Sentinel: National Congress of American Indians Bulletin (July 1975); and Hanfling, “Final Edition of the Indian Position Paper for John Hill,” 1–3.
24. The Council of Energy Resource Tribes to Frank G. Zarb, September 16, 1975, series 6: NCAI Committees and Special Issues, box 236, “Energy Meeting—Billings, Montana (Ramada Inn) 10/13–14, 1975 I,” NCAI Collection; “Indian Energy Tribes Task Force Meeting,” September 16, 1975, series 6: NCAI Committees and Special Issues, box 236, “Energy Meeting—Billings, Montana (Ramada Inn) 10/13–14, 1975 II,” NCAI Collection; Wilkinson, Cragun and Barker, “General Memorandum No. 75–50,” September 24, 1975, series 6: NCAI Committees and Special Issues, box 239, “Task Force on Indian Resource Development and FEA,” NCAI Collection; and Marjane Ambler, Breaking the Iron Bonds: Indian Control of Energy Development (Lawrence: University Press of Kansas, 1990), 91–94. Lohah’s quote is ibid., 91.
25. Compare Council of Energy Resource Tribes, “Organization Charter of Council of Energy Resource Tribes (CERT),” September 16, 1975, 1, series 6: NCAI Committees and Special Issues, box 236, “Energy Meeting—Billings, Montana (Ramada Inn) 10/13–14, 1975 I,” NCAI Collection with the Council of Energy Resource Tribes to Frank G. Zarb, September 17, 1975, 1–2. For a brief description of the two separate documents, see also Wilkinson, Cragun and Barker, “General Memorandum No. 75–50.” The FEA’s influential role in organizing CERT is further evidenced by the fact that agency officials took responsibility for gathering final versions of these foundational documents and circulating them to the energy tribes for final approval. Hazel Rollins to Participants of the September 16 Indian Energy Tribes Task Force Meeting, September 24, 1975, series 6: NCAI Committees and Special Issues, box 236, “Energy Meeting—Billings, Montana (Ramada Inn) 10/13–14, 1975 I,” NCAI Collection.
26. Allen Rowland to Charles E. Trimble, September 23, 1975, series 6: NCAI Committees and Special Issues, box 236, “Energy Meeting—Billings, Montana (Ramada Inn) 10/13–14, 1975 I,” NCAI Collection.
27. “National Congress of American Indians, Energy Meeting, Billings, Montana, October 13–14, 1975,” October 13, 1975, 19, 33, 35, 37, series 6: NCAI Committees and Special Issues, box 236, “Energy Meeting—Billings, Montana (Ramada Inn) 10/13–14, 1975 II,” NCAI Collection. Frederick’s line-by-line analysis is found ibid., 29–41. This conversation continues in part 2 of the proceedings, and a marked-up copy indicating the changes is attached as a “supplement.” All documents are found in the same location in the archives.
28. Ambler, Breaking the Iron Bonds, 95–96. CERT initially requested $1 million in federal funds for its resource inventory but received only $200,000. As we will see, the reluctance of the federal government to fully fund CERT’s endeavors pushed the organization to look elsewhere—including to OPEC—for additional support.
29. For Carter’s emphasis on energy policy during his first ninety days in office, see Daniel Yergin, The Prize: The Epic Quest for Oil, Money, and Power (New York: Simon and Schuster, 1991), 661–64. For MacDonald’s frustration with the lack of federal support and the conflict between FEA and BIA, see Ambler, Breaking the Iron Bonds, 95; Bill Strabala, ““Indian Tribes Seek to Form OPEC-Style Energy Cartel” Denver Post, July 10, 1977; “U.S. Indians Ask OPEC, Third World Nations to Help in Developing Resources,” Washington Post, July 10, 1977; and William Greider, “Indians Organize Own Energy Combine: Patterned after OPEC,” Washington Post, July 17, 1977. According to Ambler, the BIA argued it was already conducting an inventory of Indian resources and that such an action was not within the FEA’s mandate. Ultimately, the FEA would provide $250,000 for this initial resource inventory, and the BIA reluctantly offered an additional $200,000 for establishing an “energy information clearinghouse.” MacDonald’s quotes are at Strabala, “Indian ‘OPEC’ Formed; Navajo Leader Tells Why,” Denver Post, July 10, 1977.
30. The full text of Carter’s April 1977 address can be found at Jimmy Carter, “Address to the Nation on Energy,” April 18, 1977, The American Presidency Project, ed. Gerhard Peters and John T. Woolley, http://www.presidency.ucsb.edu/ws/?pid=7369. The CERT statement is at Council of Energy Resource Tribes, “Statement of the Council of Energy Resource Tribes (CERT),” April 8, 1977, series 6: NCAI Committees and Special Issues, box 239, “Energy Meeting—White House, 4/8/77 and Related Energy Material,” NCAI Collection.
31. Numerous reputable newspapers reported on the CERT-OPEC meetings, though it is unclear whether MacDonald was their only source. Bill Strabala, “Indian Tribes Seek to Form OPEC-Style Energy Cartel” Denver Post, July 10, 1977; “U.S. Indians Asks OPEC, Third World Nations to Help in Developing Resources,” Washington Post, July 10, 1977; William Greider, “Indians Organize Own Energy Combine: Patterned after OPEC,” Washington Post, July 17, 1977; and William Endicott, “Indians Seek Help from OPEC: Ask for Advice on Development of Energy Resources,” Los Angeles Times, October 16, 1977. Winona LaDuke later questioned whether these meetings ever took place or whether rumors of the meetings were spread by MacDonald as part of his grand strategy to gain federal support. Winona LaDuke, “The Council of Energy Resource Tribes,” in Joseph Jorgensen, Native Americans and Energy Development II (Boston: Anthropology Resource Center and Seventh Generation Fund, 1984), 59. MacDonald’s quote on “federal red tape and foot dragging” comes from Endicott, “Indians Seek Help from OPEC.” MacDonald’s insistence on seeking long-range technical help comes from “U.S. Indians Asks OPEC,” Washington Post, July 10, 1977, wherein MacDonald also noted: “We’ve found how (energy) companies have dealt with [OPEC nations] in the past—bad leases and one-sided operations. We wanted to see if they could give us some technical assistance we can’t get from the United States government.” For MacDonald’s use of anticolonial rhetoric to bolster his support on the Navajo Reservation, see Todd Andrew Needham, “Power Lines: Urban Space, Energy Development and the Making of the Modern Southwest” (PhD diss., University of Michigan, 2006), 326–30; see also chapter 2, notes 40–41 and accompanying text. MacDonald’s quote to the Navajo Times is at Jim Benally, “Navajos, Arab-Style, to Cash in on Resources,” Navajo Times, March 13, 1974 (quoted in Needham, “Power Lines,” 335).
32. For the public backlash against CERT generally, see Ambler, Breaking the Iron Bonds, 96–99. For the various causes and impacts of this Second Energy Crisis, see Yergin, Prize, 674–98.
33. For CERT’s 1978 financial requests to the federal government, see Gaylord Shaw, “Tribes Put Off on Bid for Resource Aid: Indians May Go Back to OPEC,” Los Angeles Times, February 15, 1978; see also “Tribes Seek Fuel-Catalog Grant,” Arizona Republic, November 20, 1978. As to CERT’s 1979 requests, reports differ whether the organization sought $700 million over ten years or $60 million per year. Compare Council of Energy Resource Tribes, “$24 Million,” CERT Report 2, no. 5 (March 17, 1980): 3, with Mark Potts, “Tribes Mining Independence: Energy Resource Bring Change,” Chicago Tribune, February 3, 1980. The Denver Post editorial is at “Indians in OPEC?” Denver Post, August 13, 1979.
34. Carter’s full address is at Jimmy Carter, “Address to the Nation on Energy and National Goals: ‘The Malaise Speech,’” July 15, 1979, The American Presidency Project, ed. Gerhard Peters and John T. Woolley, http://www.presidency.ucsb.edu/ws/?pid=32596. Peter MacDonald’s correspondence is at Peter MacDonald to President Carter, July 20, 1979 (quoted in Ambler, Breaking the Iron Bonds, 100).
35. Ambler, Breaking the Iron Bonds, 100–101; and Council of Energy Resource Tribes, “$24 Million,” CERT Report 2, no. 5 (March 17, 1980): 3. CERT and others quickly pointed out that not all the $24 million represented new federal commitments and that much of this money was simply redirected from other Indian programs. Still, earmarking these funds specifically for Indian energy development represented a major coup for the energy tribes.
36. Ambler’s quote is at Ambler, Breaking the Iron Bonds, 102. LaDuke’s description of disgruntled Navajo tribal members is in Winona LaDuke, “The Council of Energy Resource Tribes,” in Jorgensen, Native Americans and Energy Development II, 60. Gabriel’s quote is at Ambler, Breaking the Iron Bonds, 101.
37. CERT’s statement that federal funds would flow directly to tribes is at Council of Energy Resource Tribes, “$24 Million.” For CERT’s shifting tactics to focus on technical assistance, including moving staff to the Denver office, and their success in obtaining funds, see Marjane Ambler, “Uncertainty in CERT,” in Jorgensen, Native Americans and Energy Development II, 71–74. Stone’s quote also comes from ibid., at 74.
38. Even though CERT helped obtain the funding and feasibility studies for several Indian energy projects, many, like the Crow’s synthetic fuel facility, were never constructed. Council of Energy Resource Tribes, “Synfuels Awards,” CERT Report 2, no. 13 (July 18, 1980): 4–5; Dan Jackson and Charlene McGrady, “Mine Development on U.S. Indian Lands,” Engineering and Mining Journal (January 1980); and Ambler, “Uncertainty in CERT,” in Jorgensen, Native Americans and Energy Development II, 75–76.
39. Winona LaDuke, “The Council of Energy Resource Tribes,” in Jorgensen, Native Americans and Energy Development II, 62–63.
40. Gabriel’s comments and Baker’s quote are in Ambler, “Uncertainty in CERT,” in Jorgensen, Native Americans and Energy Development II, 73, and 76–77.
CHAPTER 7. RECOGNIZING TRIBAL SOVEREIGNTY
1. For putting the federal grant money to work, see Daniel Israel, “New Opportunities for Energy Development on Indian Reservations,” Mining Engineering (June 1980): 652. The 1980 proposed regulations are found at Indian Mineral Development Regulations, 45 Fed. Reg. 53164 (proposed August 11, 1980) (to be 25 C.F.R. § 171.4 and § 182.9), 53166 and 53175. To be clear, these proposed regulations did not include a section on coal mining on Indian lands, as the DOI determined to separate out this mineral for regulation under a separate provision. The agency, however, did not issue proposed new regulations for coal until after the passage of the 1982 Indian Mineral Development Act, when the entire regulatory structure was amended to comply with new tribal powers afforded by that act. Council of Energy Resource Tribes, “BIA Indian Minerals Rules,” CERT Report 2, no. 14 (August 29, 1980): 1–2; and Mining Regulations, 48 Fed. Reg. 31978 (proposed July 12, 1983) (to be codified at 25 C.F.R. § 211).
2. Council of Energy Resource Tribes, “CERT Board Meeting,” CERT Report 2, no. 17 (September 12, 1980): 1 and 3–4.
3. Wilfred Scott’s quote comes from ibid., at 1. As for Interior’s position on the Northern Cheyenne/ARCO agreement, see Council of Energy Resource Tribes, “ARCO–N. Cheyenne,” CERT Report 2, no. 18 (September 26, 1980): 2–3.
4. For Martz’s qualifications and standing as a leader in natural resource law, see Senate Committee on Energy and Natural Resources, Clyde O. Martz Nomination, 96th Cong., 2d sess., May 12, 1980; University of Colorado–Boulder Law School, “Clyde Martz Passes,” http://lawweb.colorado.edu/news/showArticle.jsp?id=606 (accessed July 7, 2014); and “Clyde Martz Was Natural-Resources Expert, Who Served Two Presidents,” Denver Post, June 7, 2010. Martz’s statement on the legality of alternative contracts is at Council of Energy Resource Tribes, “Alternative Minerals Contracts Disputed,” CERT Report 2, no. 18 (September 26, 1980): 1–2.
5. MacDonald’s statement is at Council of Energy Resource Tribes, “Alternative Minerals Contracts Disputed,” at 2.
6. The 1926 Northern Cheyenne Allotment Act reserved to the tribe all “timber, coal or other minerals, including oil, gas, and other natural deposits” found on the reservation, but provided that after fifty years, these resources “shall become the property of the respective allottees or their heirs.” Northern Cheyenne Allotment Act of June 3, 1926, 44 Stat. 690, 691 (1926). As to the 1968 law, see Public Law 90–424, 82 Stat. 424 (1968); Senate Committee on Interior and Insular Affairs, Granting Minerals, Including Oil, Gas and Other Natural Deposits, on Certain Lands in the Northern Cheyenne Indian Reservation, Mont., to Certain Indians, 90th Cong., 2d sess., 1968, S. Rep. 1145,esp. 4–5. For the Supreme Court decision, see Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976), esp. 655–56.
7. Compare Alvin M. Josephy, Jr., “Agony of the Northern Plains,” Audubon 75, no. 4 (July 1973): 87, with Alvin M. Josephy, Jr., “The Murder of the Southwest,” Audubon, July 1971, 55.
8. The 1970 Clean Air Act’s initial implementing regulations are at 40 C.F.R. § 52.21(c)(3)(i), 39 Fed. Reg. 42509 (December 5, 1974). For an explanation of these regulations’ impact to tribal governments, see Wilkinson, Cragun and Barker, “General Memorandum No. 74–59,” December 27, 1974, series 6: NCAI Committees and Special Issues, box 235, “Energy (General) 1974 [1 of 2],” National Congress of American Indians Collection, National Museum of American Indians Archive Center, Suitland, MD (hereafter NCAI Collection). For Montana’s approval of the Colstrip expansion, see Grace Lichtenstein, “Montana Ruling Won by Utilities: 2 Plants Using Strip-Mine Coal Are Approved,” New York Times, November 22, 1975; and New York Times, “Montana Allows 2 Power Plants,” June 26, 1976. Allen Rowland’s announcement that the Northern Cheyenne intended to reclassify the reservation to Class I standards is at Allen Rowland to Department of Intergovernmental Relations, July 2, 1976, Montana Air Quality Bureau Records, Subject Files, record series 38, box 4, Tribal Assistance Northern Cheyenne Reservation: Prevention of Significant Deterioration (PSD) redesignation (1976–1981), Montana Historical Society, Digital Library and Archives.
9. As to the Northern Cheyenne being the first land manager to request an upgrade in air shed status, see Marjane Ambler, “Northern Cheyenne Ask for Class 1 Air,” High Country News, August 1976. For the Northern Cheyenne’s title of “Environmentalist of the Year,” see Elliot Rockler, “Environmentalists of the Year,” Borrowed Times, January 1977. Transcripts of tribal members testifying in opposition to Colstrip’s expansion can be found in the Montana Energy Division Records, 1972–1990, record series 328, box 18, vol. 38, Montana Historical Society, Digital Library and Archives; see also David Robinson, “Northern Cheyenne Landowners Association Statement to the Montana Department of Natural Resources and Conservation Concerning the Proposed Generating Plants, Colstrip 3 and 4,” December 14, 1974, 2, Montana Energy Division Records, 1972–1990, record series 328, box 15, Public Hearing File: Colstrip 3 and 4 Proposal—Ashland, Montana Historical Society, Digital Library and Archives. The tribe’s official comments are at Tom Scheuneman, “Statement of the Northern Cheyenne Tribe before the State of Montana Department of Natural Resources and Conservation,” December 30, 1974, Montana Energy Division Records, 1972–1990, record series 328, box 15, DNRC Public Hearings on Colstrip 3 and 4, Montana Historical Society, Digital Library and Archives (quotes at 3 and 4, emphasis in original). Rowland’s quote is found in Northern Cheyenne Research Project and Richard Monteau, The Northern Cheyenne Air Quality Redesignation Report and Request, December 11, 1976, in author’s possession (emphasis in original).
10. For EPA’s denial of Colstrip’s expansion permit, see Alan Merson to William H. Coldiron, September 30, 1977, Montana Energy Division Records, 1972–1990, record series 38, box 28, Colstrip Units 3 and 4—Federal Corresp., Environmental Protection Agency, Montana Historical Society, Digital Library and Archives; Bill Richards, “Indians Block Electric Plant in Montana,” Washington Post, June 13, 1978; and “Cheyenne Indians Block Construction of 2 Power Plants,” New York Times, June 13, 1978.
11. For the Northern Cheyenne’s lawsuit and negotiations with Colstrip’s owners, see Patrick Dawson, “Is Cheyenne Air for Sale?,” Billings Gazette, October 1979. Gabriel’s comment is at Ed Gabriel, “News and Views,” News and Views 1, no. 4 (May 5, 1980), folder “Council of Energy Resource Tribes,” box 85, no. 11 (reel 26), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983. Dahle’s first quote is in Council of Energy Resource Tribes, “Northern Cheyenne,” CERT Report 2, no. 8 (April 28, 1980): 3. Dahle’s second quote comes from Clara Caufield, “Northern Cheyenne Tribe Saw Victories on Energy,” Indianz.com, April 9, 2014, at http://www.indianz.com/News/2014/013181.asp.
12. For the 1978 shift in the Cheyenne’s approach to energy development, see James Boggs, “The Challenge of Reservation Resource Development: A Northern Cheyenne Instance,” in Joseph Jorgensen, ed., Native Americans and Energy Development II (Boston: Anthropology Resource Center and Seventh Generation Fund, 1984), 221–23. Rowland’s quote is in Steve Jessen, “Northern Cheyenne Tribe Fights Mines, Woos Drillers,” Billings Gazette, September 21, 1980.
13. For the 1978 orientation program, see Tsistsistas Press (Lame Deer, MT), September 1978; “Official Agenda: Orientation for the New Tribal Council,” September 13, 1978, series 7: U.E.T. (United Effort Trust), box 9, “UET Northern Cheyenne,” NCAI Collection. For the background and objectives of the Northern Cheyenne Research Project, see Northern Cheyenne Research Project and Robert Bailey, Northern Cheyenne Research Project: Life Support Systems, First Annual Report (Lame Deer, MT: Northern Cheyenne Research Project, 1974), esp. 31–32; and Joe Lamson, Northern Cheyenne Research Project: Second Annual Report (Busby, MT: Northern Cheyenne Research Project, 1975), esp. 3–5.
14. Boggs, “Challenge of Reservation Resource Development,” in Jorgensen, Native Americans and Energy Development II, 221–22.
15. Ibid., 221–23. Little Coyote’s quote comes from Len Ackland, “Mineral Wealth Gives Indians a Bargaining Tool to Shape the Future,” Chicago Tribune, February 22, 1981.
16. Boggs, “Challenge of Reservation Resource Development,” in Jorgensen, Native Americans and Energy Development II, 223–27.
17. As to Northern Cheyenne advertising for development partners, the response received, and the request for BIA technical assistance, see Allen Rowland to James Badura, February 27, 1980, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC. For the Northern Cheyenne using its own expertise to evaluate these proposals, see Allen Rowland to Members of the Northern Cheyenne Tribe, December 5, 1980, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC. As to disputes whether the loss of the NCRP left the tribe with adequate expertise to evaluate proposals, see Boggs, “The Challenge of Reservation Resource Development,” in Jorgensen, Native Americans and Energy Development II, 227–29; Ackland, “Mineral Wealth Gives Indians a Bargaining Tool to Shape the Future”; and Len Ackland, “U.S. Lets Indians Make Their Own Deals,” Chicago Tribune, March 4, 1981. The details of the ARCO deal can be found at Boggs, “Challenge of Reservation Resource Development,” 206–8; and Council of Energy Resource Tribes, “ARCO—N. Cheyenne,” CERT Report 2, no. 18 (September 26, 1980): 2–3. As to the duties of the tribal Oil and Gas Office to monitor ARCO’s activities, see Allen Rowland to Bill Benjamin, November 25, 1980, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC.
18. As to the two referenda, see Senate Select Committee on Indian Affairs, Hearings on S. 1894, 97th Cong., 2d sess. (Washington DC: Government Printing Office, February 12, 1982), 86–89; and Council of Energy Resource Tribes, “ARCO—N. Cheyenne,” 3. Rowland’s and Little Coyote’s statements are in Steve Jessen, “Northern Cheyenne Tribe Fights Mines, Woos Drillers,” Billings Gazette, September 21, 1980. Interior’s environmental assessment is summarized in Council of Energy Resource Tribes, “Northern Cheyenne,” CERT Report 2, no. 19 (October 10, 1980): 5.
19. For a review of the various federally approved alternative contracts since 1975, see Senate Select Committee on Indian Affairs, Hearings on S. 1894, 1982, 72; see also Council of Energy Resource Tribes, “Energy Agreements Affected by Joint Venture Bill,” CERT Report 4, no. 11 (September 13, 1982): 19–20. For details on the Navajo and Blackfeet deals, and the BIA quote, see “Indians Want a Bigger Share of Their Wealth,” Business Week, May 3, 1976, 100. Black is quoted in Molly Ivins, “Indians’ Tribal Chairmen’s Group Demanding a Voice in Energy Policy,” New York Times, August 4, 1979.
20. Senate Select Committee on Indian Affairs, Hearings on S. 1894, 70–77. At these spring 1982 hearings, Interior officials identified six negotiated agreements that had been approved under various legal theories. These involved energy projects on the Navajo, Jicarilla Apache, Blackfeet, Crow, and Wind River Reservations and included four oil and gas agreements, one coal contract, and one uranium project. Later that fall, however, CERT identified fifteen negotiated agreements between western tribes and energy companies, eight of which the Department of the Interior had approved, and seven that were being held up until Congress clarified tribal authority to negotiate energy contracts. As opposed to Interior’s list of approved contracts, CERT noted that the Crow’s 1980 negotiated coal agreement with Shell Oil was never formally approved. Council of Energy Resource Tribes, “Energy Agreements Affected by Joint Venture Bill.”
21. Senate Select Committee on Indian Affairs, Hearings on S. 1894, 87 and 92; Council of Energy Resource Tribes, “ARCO—N. Cheyenne,” 3; and Ackland, “U.S. Lets Indians Make Their Own Deals.”
22. For Martz’s view on the legality of the Northern Cheyenne-ARCO deal, see Ambler, Breaking Iron Bonds, 87. Ambler actually interviewed Martz shortly after his decision. Hiwalker’s quote is at Senate Select Committee on Indian Affairs, Hearings on S. 1894, 87. As to the process that produced the legislative solution, see Council of Energy Resource Tribes, “‘Alternative Agreements’ Bill Passes Both Houses, Awaits Final Actions,” CERT Report 4, no. 11 (September 13, 1982): 17. Although both the Department of the Interior and Senator Melcher drafted their own versions of the proposed legislation, the two sides shared draft bills and worked cooperatively. See Tim Vollman to Ginny Boylan, May 5, 1981, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC; Senate Select Committee on Indian Affairs, Hearings on S. 1894, 87; and Ambler, Breaking the Iron Bond, 88.
23. For Reagan’s views on Indian Policy, see George Pierre Castile, Taking Charge: Native American Self-Determination and Federal Indian Policy, 1975–1993 (Tucson: University of Arizona Press, 2006), esp. 50–52. After pledging to support the Indian self-determination policy as a candidate, President Reagan did not issue a formal Indian policy statement until 1983. In that message Reagan confirmed his commitment to Indian self-determination, though he noted that “there has been more rhetoric than action.” “To reverse this trend,” the statement continued, the president would “remov[e] the obstacles to self-government by creating a more favorable environment for the development of healthy reservation economies.” In other words, Reagan viewed free markets as the key to self-determination. Ronald Reagan, “Statement on Indian Policy,” January 24, 1983, The American Presidency Project, ed. Gerhard Peters and John T. Woolley, http://www.presidency.ucsb.edu/ws/?pid=41665. For Reagan’s cuts to federal Indian programs, see Council of Energy Resource Tribes, “Indian Programs Hit Hard in Proposed Budget Cuts,” CERT Report 3, no. 5 (April 3, 1981): 1–3. These cuts extended beyond agencies typically charged with administering Indian programs, like the BIA and the Indian Health Service, and included deep cuts at the Department of Energy that would remove support for Indian energy projects. See Council of Energy Resource Tribes, “Planned Energy Department Cuts Hit Tribes Hard,” CERT Report 3, no. 6 (April 24, 1981): 3–4.
24. The Energy Department’s cuts and MacDonald’s quote are covered in Council of Energy Resource Tribes, “Planned Energy Department Cuts Hit Tribes Hard,” 3. For James Watt’s recent work with the Mountain States Legal Foundation, see Council of Energy Resource Tribes, “Interior Secretary,” CERT Report 2, no. 22 (December 19, 1980): 4–5; and Council of Energy Resource Tribes, “Watt Approved as Interior Secretary,” CERT Report 3, no. 1 (January 23, 1981): 1–2. The case for which Watt filed the amicus brief involved the Jicarilla Apache tribe’s authority to tax oil and gas companies operating on their reservation. In a landmark decision for tribal sovereignty, the Supreme Court held that tribal authority to tax “is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management.” Merrion v. Jicarilla Apache Indian Tribe, 455 U.S. 130 (1982), 130.
25. For energy tribes’ fight against Reagan’s proposed cuts, see Council of Energy Resource Tribes, “Indian Programs Hit Hard in Proposed Budget Cuts”; Council of Energy Resource Tribes, “Planned Energy Department Cuts Hit Tribes Hard”; Council of Energy Resource Tribes, “House Panel Proposes to Restore Indian Budget,” CERT Report 3, no. 6 (April 24, 1981): 1–2; and Council of Energy Resource Tribes, “Tribal Leaders Angry over Budget Cuts,” CERT Report 3, no. 7 (May 26, 1981): 1–2. For tribal reaction to Reagan’s proposed reduction in federal Indian programs generally, see Castile, Taking Charge, 51–56. For the percentage of CERT’s budget tied to federal support, see Ambler, Breaking the Iron Bonds, 106. Gabriel’s letter is at Ed Gabriel, “Open Letter from Ed Gabriel,” September 1981, series 5: Records of Indian Interest Organizations, box 149, “C.E.R.T.,” NCAI Collection.
26. Peter MacDonald, “Statement, CERT 1981 Annual Meeting,” October 26, 1981, 4 and 9, folder “Council of Energy Resource Tribes,” box 85, no. 11 (reel 26), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983. At this gathering, MacDonald also addressed the recent cuts in federal spending. A staunch Republican, Reagan supporter, and proponent of free market principles, the CERT chairman did not oppose the transition from federal to private support for Indian energy development, but he feared the drastic reduction in federal funding could so damage tribal communities as to shake Indians’ faith in the private sector. Thus, MacDonald tacitly supported some budgetary “belt-tightening,” but he argued for “a little bit of realism, a little bit of political pragmatism with the [free market] ideology that all of us were willing to try out.” “I buy the ideology of the private sector and am prepared to back governmental efforts to apply that ideology,” MacDonald explained, but “there comes a point when the disparity between reality and ideology is so great that people throw out the baby with the bath water.” Ibid., at 4. For other speakers at the CERT annual conference and Halbouty’s quote, see Council of Energy Resource Tribes, “It’s Time the Private Sector Discovered Indian America, Speakers Tell Tribal Leaders at 1981 CERT Annual Meeting,” October 26, 1981, folder “Council of Energy Resource Tribes,” box 85, no. 11 (reel 26), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983; and Lynn A. Robbins, “‘Doing Business with Indian Tribes’: The 1981 Annual Meeting of the Council of Energy Resource Tribes,” in Jorgensen, Native Americans and Energy Development II, 52–57.
27. MacDonald, “Statement, CERT 1981 Annual Meeting,” 1. For more on tribal leaders’ improving knowledge of the energy industry and their desire to employ this expertise in private-tribal projects, see Jim Hendon, “Indian Tribes Hope for More Energy Flexibility,” Rocky Mountain News, October 25, 1981.
28. For coverage of the concluding resolutions and MacDonald’s statement, see Council of Energy Resource Tribes, “CERT Board of Directors Calls for an End to Economic Dependence for Indian Tribes,” October 28, 1981, folder “Council of Energy Resource Tribes,” box 85, no. 11 (reel 26), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983. NARF’s opinion regarding tribes’ existing authority to enter into alternative contracts is at Richard B. Collins to Council of Energy Resource Tribes, October 13, 1981, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC. The resolution opposing Melcher’s and Interior’s bills is at Council of Energy Resource Tribes, “Resolution No. 81–10, Amendment of the 1938 Indian Mineral Leasing Act,” October 28, 1981, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC.
29. In contrast to CERT’s and Melcher’s proposals, Interior proposed a convoluted process for approving alternative contracts. The agency’s bill authorized tribes to negotiate deals, but before they could be approved, the federal government would have to determine whether an agreement conveyed an interest in land. If it did, under Interior’s approach, the old 1938 Leasing Act would determine the deal’s validity. If, however, Interior found the agreement was not a lease—meaning it did not convey a property interest—then the agency would follow the new law’s procedures to determine whether to approve the negotiated contract. Compare Tim Vollman to Ginny Boylan (Interior’s draft) with “Senator Melcher of Montana,” Congressional Record (November 30, 1981): S14127–28 (Melcher’s draft), and Richard B. Collins to Council of Energy Resource Tribes, October 13, 1981 (CERT/NARF’s draft). The Department of Justice’s endorsement is at Robert McConnell to David Stockman, October 20, 1981, 2, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC. For further details of Melcher’s bill, see “Senator Melcher of Montana,” Congressional Record (November 30, 1981): S14127–28; Council of Energy Resource Tribes, “Sen. Melcher Introduces ‘Alternative Agreements’ Bill for Tribal Minerals,” CERT Report 3, no. 16 (December 21, 1981): 1–2; and Association on American Indian Affairs, Inc., “Memorandum No. 81–36, Proposed Tribal Mineral Rights Legislation,” December 30, 1981, folder “Legislative and Administrative Memoranda, 1976–1982,” box 293, no. 1–6 (reel 3), Native America: A Primary Record, series 3: Assn. on American Indian Affairs Archives, Publications, Programs and Organizational Files, 1851–1983.
30. Harrison’s and Burton’s quotes are at Senate Select Committee on Indian Affairs, Hearings on S. 1894, 34 and 10, respectively. For additional corporate support, see ibid., at 106, 111, and 162.
31. Ibid., 57. For additional opposition to Melcher’s bill based on the fear that uneducated Indians would be taken advantage of, see ibid., 121–36; Paul Frye to Jennie Boylan, May 11, 1982, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC; and Paul Frye to Debby Brokenrope, May 25, 1982, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC. In addition to opposition based on this fear, other detractors of the bill included a minority faction of Northern Cheyenne opposed to all mineral development, an energy company seeking to ensure that federal courts, not tribal judges, retained jurisdiction over disputes arising from alternative contracts, and state officials seeking to clarify their ability to tax mineral proceeds generated by alternative agreements. Senate Select Committee on Indian Affairs, Hearings on S. 1894, 20–26 and 93–103; Terry O’Conner, “Testimony of Terry O’Conner, Director of Legal and Governmental Affairs, Rocky Mountain Division, Peabody Coal Company, on S. 1894,” July 27, 1982, series 6: NCAI Committees and Special Issues, box 238, “Mineral Resources—S. 1894,” NCAI Collection; Chris Farrand to John Melcher, August 27, 1982, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC; and Ted Schwinden to John Melcher, June 15, 1982, Senate Select Committee on Indian Affairs, 97th Congress, 1st sess., Bill Files, box 17, Records of the United States Senate, RG 46, National Archives, Washington, DC. Further, the Northern Cheyenne tribal government opposed the retroactive authorization provision as written because they feared it could be interpreted to imply their ARCO agreement was invalid without congressional approval; or alternatively, the new law could preclude the Northern Cheyenne from later challenging certain provisions of its agreement. Senate Select Committee on Indian Affairs, Hearings on S. 1894, 17–19, 86–92; Allen Rowland to John Melcher, March 2, 1982, Senate Select Committee on Indian Affairs, 97th Congress, 1st sess., Bill Files, box 17, Records of the United States Senate, RG 46, National Archives, Washington, DC; and George Hiwalker, “Statement of George Hiwalker, Jr., Vice President, Northern Cheyenne Tribal Council,” July 27, 1982, series 6: NCAI Committees and Special Issues, box 238, “Mineral Resources—S. 1894,” NCAI Collection. For similar reasons, energy companies with previously executed alternative agreements also opposed the proposed retroactive authorization clause. See Mary Anne Sullivan to John Melcher, September 10, 1982, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, National Archives, Washington, DC; and Forest Gerard to William S. Cohen, October 20, 1982, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC. Ultimately, this provision was amended to establish a set of guidelines the Department of the Interior must use to evaluate past deals for approval, rather than simply providing blanket authorization for all existing alternative agreements. Indian Mineral Development Act of 1982, S. 1894, 97th Cong., 2d sess., Congressional Record (December 8, 1982): S14194–96; and Permitting Tribal Agreements to Dispose of Mineral Resources, S. 1894, 97th Cong., 2nd sess., Congressional Record (December 10, 1982): H9440–41.
32. Senate Select Committee on Indian Affairs, Permitting Indian Tribes to Enter into Certain Agreements for the Disposition of Tribal Mineral Resources and for Other Purposes, 97th Cong., 2d sess., 1982, S. Rep. 472, 7. Paradoxically, existing law arguably allowed “competent” allottees to negotiate their own mineral leases, even though this new bill would not authorize them to negotiate alternative agreements. Act of March 3, 1909, 35 Stat. 781 (1909), codified as amended at 25 U.S.C. § 396 (1980), implementing regulations at 25 C.F.R. § 172.1–172.33 (1980); see also Senate Select Committee on Indian Affairs, Hearings on S. 1894, 121–22 and 126–27.
33. Gabriel’s testimony is at Senate Select Committee on Indian Affairs, Hearings on S. 1894, 84. The Department of the Interior’s letters in support are at Ken Smith to William S. Cohen, March 15, 1982, 2–3, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC; and Roy H. Sampsel to Morris K. Udall, August 9, 1982, 2–3, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC.
34. The difference between the Senate and House versions of the bill related largely to the retroactive authorization of past alternative contracts and did not affect the general thrust of the legislation to recognize tribal authority to negotiate alternative agreements. See Association on American Indian Affairs, Inc., “Memorandum No. 82–20, S. 1894 Status Report,” July 30, 1982, folder “Legislative and Administrative Memoranda, 1976–1982,” box 293, no. 1–6 (reel 3), Native America: A Primary Record, series 3: Assn. on American Indian Affairs Archives, Publications, Programs and Organizational Files, 1851–1983; Council of Energy Resource Tribes, “‘Alternative Agreements’ Bill Passes Both Houses, Awaits Final Actions”; and John Melcher to Morris Udall, September 23, 1982, Select Committee on Indian Affairs, 97th Congress, Legislative Files, box 97–2, Records of the United States Senate, RG 46, National Archives, Washington, DC. For Udall’s and Bereuter’s explanation of the need for an updated law, see Indian Mineral Development Act of 1982, S. 1894, 97th Cong., 2d sess., Congressional Record (August 17, 1982): H6044–46; and Council of Energy Resource Tribes, “‘Alternative Agreements’ Bill Passes Both Houses, Awaits Final Actions.” Melcher’s quote is at Indian Mineral Development Act of 1982, S. 1894, 97th Cong., 2d sess., Congressional Record (December 8, 1982): S14196. Bereuter’s is at Permitting Tribal Agreements to Dispose of Mineral Resources, S. 1894, 97th Cong., 2d sess., Congressional Record (December 10, 1982): H9440. Also, the House Committee on Interior and Insular Affairs held abbreviated, and largely redundant, hearings in July 1982. No transcript of these hearings was published, but according to staff notes from the National Congress of American Indians, only representatives of the Department of the Interior, the Ute Mountain Utes, the Northern Cheyenne, and Peabody Coal testified. All supported the legislation. Naomi Iizuka, “Notes on House Interior and Insular Affairs Cmte Hearing on Tribal Indian Mineral Resources Agreements,” July 27, 1982, series 6: NCAI Committees and Special Issues, Box 238, “Mineral Resources—S. 1894,” NCAI Collection.
35. Melcher’s quote is in “Sen. Melcher Explains New Indian Mineral Bill,” Williston Basin Report, January 19, 1983. Reagan’s quotes are at Reagan, “Statement on Indian Policy,” January 24, 1983, The American Presidency Project, ed. Gerhard Peters and John T. Woolley, 2 and 3–4, at http://www.presidency.ucsb.edu.
EPILOGUE
1. Marjane Ambler, Breaking the Iron Bonds: Indian Control of Energy Development (Lawrence: University Press of Kansas, 1990), 107. CERT officials labeled the 1982 annual conference “Indian Energy Development in the New Economic and Legislative Environment” to reflect the major legislative changes working their way through Congress and the altered energy economics caused by a rising glut of global oil supplies. In addition to the impending passage of the 1982 Indian Mineral Development Act, Congress had established a new Minerals Management Service to better track tribal oil and gas production and to ensure tribes received their share of royalties. Ed Gabriel, “Open Letter from Ed Gabriel,” October 1982, series 5: Records of Indian Interest Organizations, box 149, “Council of Energy Resource Tribes (CERT),” National Congress of American Indians Collection, National Museum of American Indians Archive Center, Suitland, MD.
2. Council of Energy Resource Tribes, “David Lester Becomes New Executive Director of the Council of Energy Resource Tribes,” November 17, 1982, box 43, folder 10, LaDonna Harris Papers and Americans for Indian Opportunity Records, 1953–2010, University of New Mexico, Center for Southwest Research; Marjane Ambler, “New CERT Director Has Made Career Out of Indian Economic Development,” Denver Post, December 16, 1982. Marjane Ambler argues Reagan’s budget cuts greatly influenced CERT’s decision to close its DC offices, forcing the organization to prioritize tribal technical assistance over federal lobbying. Ambler, Breaking the Iron Bonds, 109–11.
3. Daniel Yergin, The Prize: The Epic Quest for Oil, Money, and Power (New York: Simon and Schuster, 1991), 717–22.
4. The Shell decision is at R. M. Rice to Crow Coal Commission, 30 1985, Eloise Whitebear Pease Collection, 17:13, Little Bighorn College Archives, Crow Agency, MT (hereafter LBC Archives). Shell officials also noted that the “continuing uncertainty regarding the application of Montana’s severance tax to Crow coal” was another factor inhibiting their ability to proceed. The Supreme Court later clarified that states have the right to impose additional state taxes on Indian resources so long as the tax is not so high as to unfairly damage the marketability of tribal minerals. Cotton Petroleum v. New Mexico, 490 U.S. 163 (1989). As to Westmoreland’s release, see C. J. Presley to Forest Horn, March 16, 1981, Eloise Whitebear Pease Collection, 16:49, LBC Archives.
5. Ambler, Breaking the Iron Bonds, 241–43; see also Garrit Voggesser, “The Evolution of Federal Energy Policy for Tribal Lands and the Renewable Energy Future,” in Sherry L. Smith and Brian Frehner, eds., Indians and Energy: Exploitation and Opportunity in the American Southwest (Santa Fe: SAR Press, 2010), 69. Voggesser reports the 1982 peak of tribal oil and gas revenues to be $198 million but then notes the drastic fall over the next four years.
6. As to the attempted removal of David Stewart (1972–74), see Pauline Small, “Crow Tribal Council Minutes, January 13, 1973,” January 13, 1973, Eloise Whitebear Pease Collection, 22c:3:1, LBC Archives. In chapter 4, I cover in detail the impeachment of Patrick Stands Over Bull (1972–77). For Forrest Horn (1977–82), see “Article of Impeachment against Crow Tribal Chairman Forest Horn,” April 1979, Eloise Whitebear Pease Collection, LBC Archives. For Donald Stewart (1982–86), the removal of his executive powers, and a helpful summary of previous impeachment proceedings see Roger Clawson, “Crow Council Deposes Chairman,” Billings Gazette, April 16, 1985.
7. For energy firms’ appeal to the Department of the Interior for clarity, see Joan Davenport to John Bookout, November 15, 1977, Eloise Whitebear Pease Collection, LBC Archives; Joan Davenport to Lowry Blackburn, November 15, 1977, Eloise Whitebear Pease Collection, LBC Archives; and James Joseph to Cale Crowley, November 15, 1977, Eloise Whitebear Pease Collection, LBC Archives. Interior’s almost identical response to the energy firms is found at Joan M. Davenport, Department of the Interior acting secretary, to Lowry Blackburn, AMAX Coal Company president, November 15, 1977; Joan M. Davenport, Department of the Interior acting secretary, to John F. Bookout, Shell Oil Company president, November 15, 1977; and Joan M. Davenport, Department of the Interior acting secretary, to Cale Crowley, attorney for Gulf Oil Corporation and Peabody Coal Company, November 15, 1977, Eloise Whitebear Pease Collection, LBC Archives. The Westmoreland Company continued its mining on the Ceded Strip but supported efforts to have the Department of Energy restructure the Crow’s apparatus for dealing with energy companies. Charles Brinley to James Joseph, November 17, 1977, Eloise Whitebear Pease Collection, 7b, LBC Archives. In the Crow’s petition to the Energy Department for assistance in amending its government, the tribal attorney actually derided the federal government’s reluctance to get involved with internal tribal politics: “The doctrine and the policy of the Congress is to grant ‘self-determination’ to the Indian people, which quite frankly, is a policy of saying ‘go paddle your own canoe.’ The canoe won’t float with so many holes in it.” Harold G. Stanton, Crow attorney, to James Furse, Department of Energy, November 17, 1977, Eloise Whitebear Pease Collection, 7b, LBC Archives.
8. For the disbandment of the Coal Authority, see Forest Horn, “Resolution No. 80–16: A Resolution Pertaining to Coal Negotiations with Shell Oil Company and to Clarify Which Committee and Entity within the Tribe Has the Authority to Continue Negotiations with the Shell Oil Company,” January 24, 1980, Apsaalooke Nation Council and District Records, Crow Tribal Government Building, Crow Agency, MT. For passage of the 2001 constitution and the new governing structure, see “Takeover Marks Crow ‘New Beginning,’” Billings Gazette, January 11, 2001; and “New Crow Constitution Wins Federal Approval,” Helena Independent Record, December 2, 2001.
9. For Westmoreland’s expansion onto the reservation proper, see Shelley Beaumont, “Absaloka Mine South Extension Approved,” Big Horn County News, October 23, 2008; and Susan Gallagher, Associated Press, “Proposal Would Move Mining onto Crow Reservation,” Helena Independent Record, April 4, 2008. Old Coyote’s quote and revenue figures from the Absaloka Mine are at Darrin Old Coyote, “Testimony of Crow Nation Tribal Chairman Darrin Old Coyote,” 3, in House Committee on Natural Resources, Subcommittee on Energy and Mineral Resources, Oversight Hearing on “Mining in America: Powder River Basin Coal Mining the Benefits and Challenges,” 113th Cong., 1st sess., July 9, 2013, available at http://docs.house.gov/meetings/II/II06/20130709/101096/HHRG-113-II06-Wstate-OldCoyoteD-20130709.pdf.
10. The Crow Reservation economic figures come from the Harvard Project on American Indian Economic Development, “On Improving Tribal-Corporate Relations in the Mining Sector: A White Paper on Strategies for Both Sides of the Table,” April 2014, 87, available at http://hpaied.org/images/resources/general/miningrelations.pdf. In 2013, the Crow granted Westmoreland another lease for an additional 145 million tons of coal adjacent to the company’s existing mine in the Ceded Strip. Susan Olp, “Crow Tribe Leases 145 Million Tons of Coal,” Billings Gazette, April 11, 2013. In 2008, the Crow announced a partnership with the Australian-American Energy Co. to build a coal-to-liquids plant on the reservation that would extract 38,000 tons of Crow coal per day. Fluctuating global oil prices, however, once again caused that project to be restructured to reduce its scale, and as of February 2013, it is unclear whether the tribe will pursue the liquefication project. Erica Gies, “Rich in Coal, a Tribe Struggles to Overcome Poverty,” New York Times, October 25, 2011. In January 2013, the Crow announced an agreement with Cloud Peak Energy that would authorize the Wyoming mining company to excavate 1.4 billion tons of coal from the reservation. This coal, which is more than the United States consumes in a year, is earmarked for export to Asian markets, pending approval and construction of coal export ports in the Pacific Northwest. Sue Olp, “Crow Tribe Signs 1.4B Ton Coal Deal with Cloud Peak Energy,” Billings Gazette, January 24, 2013. Finally, in March 2013, the Crow reached another agreement with Signal Peak Energy to prospect 400 million more tons on the reservation. Associated Press, “Signal Peak Energy Eyes Coal on Crow Reservation,” Billings Gazette, March 19, 2013.
11. For the uranium moratorium and closures of Black Mesa Mine and Mohave Generating Station, see Dana E. Powell and Dáilan J. Long, “Landscapes of Power: Renewable Energy Activism in Diné Bikéyah,” in Sherry L. Smith and Brian Frehner, eds., Indians and Energy: Exploitation and Opportunity in the American Southwest (Santa Fe: SAR Press, 2010), 235; and Enei Begaye. “The Black Mesa Controversy,” Cultural Survival Quarterly 29, no. 4 (Winter 2005). For the failed Desert Rock Energy Project and Navajo Transmission Project, see Powell and Long, “Landscapes of Power,” 236–43; Laura Paskus, “The Life and Death of Desert Rock,” High Country News, August 16, 2010; and Sierra Crane-Murdoch, “On Navajo Nation, Power Authority Slips Away,” High Country News, April 7, 2011.
12. Winona LaDuke, “Monster Slayers: Can the Navajo Nation Kick the Coal Habit?,” Indian Country Today, July 31, 2013; Noel Lyn Smith, “Navajo Nation Enters the Coal Mining Business,” Daily Times, November 2, 2013; Emily Guerin, “Navajo Nation’s Purchase of a New Mexico Coalmine Is a Mixed Bag,” High Country News, January 7, 2014; and Rebecca Fairfax Clay, “Tribe at a Crossroads: The Navajo Nation Purchases a Coal Mine,” Environmental Health Perspectives 122, no. 4 (April 2014): A104–A107.
13. For ARCO’s abandonment of the project and the impact to the tribal economy, see Jim Bruggers, “Energy Slump, Isolation and Turmoil: The Plight of the Northern Cheyenne,” Great Falls Tribune, November 16, 1986. Tribal President Llevando Fisher recently testified to Congress that Northern Cheyenne unemployment remains above 60 percent. Llevando Fisher, “Statement of Llevando ‘Cowboy’ Fisher, President, Northern Cheyenne Tribe,” 6, in House Committee on Natural Resources, Subcommittee on Indian and Alaska Native Affairs, Hearing on H.R. 4350: The Northern Cheyenne Lands Act, 113th Cong., 2d sess., May 7, 2014, available at: //naturalresources.house.gov/uploadedfiles/fishertestimony5-7-14.pdf. The 2010 census figures are provided on the tribal government-endorsed blog “A Cheyenne Voice,” available at http://acheyennevoice.com/northern-cheyenne.
14. Fisher, “Statement of Llevando ‘Cowboy’ Fisher,” at 5–6.
15. United States Surface Transportation Board, “Section 106 Consultation Meeting for the Tongue River Railroad Construction Project: Transcript of Proceedings,” February 13, 2014, 74–75, available at http://www.tonguerivereis.com/documents/021314_section_106_transcript.pdf. In this meeting, Llevando Fisher discusses the tribe’s 2006 referendum, in which tribal members were asked whether they would rather pursue traditional coal mining or coal bed methane development. The tribe chose the former. See also David Melmer, “Northern Cheyenne to Vote on Resource Extraction,” Indian Country Today, November 1, 2006, available at http://indiancountrytodaymedianetwork.com/2006/11/01/northern-cheyenne-vote-resource-extraction-128945. For additional coverage of the impending referendum, see Clara Caufield, “Northern Cheyenne Tribe to Vote on Coal Project,” Indianz.com, February 24, 2014, available at http://www.indianz.com/News/2014/012639.asp; and Clara Caufield, “Northern Cheyenne Tribe Remains Split on Coal,” Indianz.com, April 1, 2014, available at http://www.indianz.com/News/2014/013086.asp.
16. Passions over the new constitution ran so high that opponents forcibly, though temporarily, took over tribal offices to prevent its implementation. “Takeover Marks Crow ‘New Beginning,’” Billings Gazette, January 11, 2001. To those opposed to reservation mining during the 1970s, the biggest concern with the new constitution was that it stifled public participation, preventing tribal members from raising concerns about energy projects negotiated by their leaders. In fact, members of the opposition group that orchestrated Patrick Stands Over Bull’s 1977 impeachment claim that had the 2001 constitution been in place during the 1970s, the Crow “would be nonexistent now” because their faction would not have been able to “inform the people” of the dangers of development. John Doyle, Urban Bear Don’t Walk, Larry Kindness, Dale Kindness, Dewitt Dillon, interview by the author, August 17, 2009, Crow Agency, MT, in author’s possession.
17. Peter Iverson, Diné: A History of the Navajos (Albuquerque: University of New Mexico Press, 2002), 250–52; Peter Iverson, The Navajo Nation (Westport, CT: Greenwood Press, 1981), 187; and Ambler, Breaking the Iron Bonds, 102, 111–12.
18. Ambler, Breaking the Iron Bonds, 109–11.
19. Ibid., 113–16.
20. Voggesser, “The Evolution of Federal Energy Policy for Tribal Lands and the Renewable Energy Future,” in Smith and Frehner, Indians and Energy, 69–72; see also the Harvard Project on American Indian Economic Development, The State of the Native Nations: Conditions under U.S. Policies of Self-Determination (New York: Oxford University Press, 2008), 165.
21. Peter MacDonald, “Remarks by Chairman Peter MacDonald, 1983 Annual CERT Meeting,” November 18, 1982, 3–5, folder “Council of Energy Resource Tribes,” box 85, no. 11 (reel 26), Native America: A Primary Record, series 2: Assn. on American Indian Affairs Archives, General and Tribal Files, 1851–1983.
22. Ibid., 12–13 (emphasis in original).