1. According to Professor Virginia Peters the ancestors of the Mandan Indians settled the upper Missouri River between the mouth of the White River and the Little Missouri around 1100 a.d. to 1400 a.d. See Virginia Bergman Peters, Women of the Earth Lodges: Tribal Life on the Plains (North Haven, Conn.: Archon Books, 1995), 19.

2. Ibid., 24–30. This is one of a familyof creation myths told bythe Mandan, Hidatsa, and Arikara Indians. The Mandan's cultural hero, Lone Man, along with Itsikamahidis, or First Worker, jointlycreated the ground, grass, trees, animals, birds, and running water over a period of six days. The river that they created to separate their respective works was apparentlythe Missouri River. The Arikara hold that it was Mother Corn who brought them to the Missouri River region out of the deep darkness of the cave in which theyfirst resided. Skunk, Badger, and Mole helped Mother Corn tunnel out of the cave and into the light of a gracious land.

3. Three Affiliated Tribes Equitable Compensation Act, Reclamation Projects Authorization and Adjustment Act of 1992, Pub Lno. 102–575, tit35, 106 Stat 4731.

4. Raymond Cross, “Sovereign Bargains, Indian Takings and the Preservation of Indian Countryin the Twenty-First Century,” Arizona Law Review 40 (summer 1998): 425–509.

5. Roy W. Meyer, The Village Indians of the Upper Missouri: The Mandan, Hidatsas and Arikaras (Lincoln: University of Nebraska Press, 1977), 1–17.

6. Ibid., 2–3.

7. Ibid., 15–16.

8. John Seelye, “Beyond the Shining Mountains: The Lewis and Clark Expedition as an Enlightenment Epic,” The Virginia Quarterly Review 63 (1987): 40.

9. Ibid., 44–45.

10. Ibid., 45–46.

11. Meyer, Village Indians, 42.

12. James P. Ronda, Lewis and Clark among the Indians (Lincoln: Universityof Nebraska Press, 1984), 102–103.

13. Ibid., 92.

14. Ibid., 81–84.

15. Ibid., 2. Also see Elizabeth A. Fenn, “Biological Warfare in Eighteenth Century America: Beyond Jeffery Amherst,” Journal of American History 86 (March 2000): 1552–1580.

16. The Mandan population's historic high (in the late eighteenth century) was 8,000. After the epidemic had already destroyed many in the closely settled Indian villages, Indian Commissioner Joshua Pilcher proposed that the federal government expend $2,000 on vaccinating all those Indians of the upper Missouri River region who would agree to that procedure. After a long delayin receiving federal approval, Pilcher succeeded in vaccinating about 3,000 members of the nomadic tribes such as the Sioux who, because of their dispersed populations, had not been as adversely affected as the closely settled Mandan, Hidatsa, and Arikara peoples (Meyer, Village Indians, 91–96).

17. Ibid., 93, 97.

18. Ibid., 93.

19. Ibid., 94.

20. Ibid., 98–109.

21. Ibid., 109.

22. Ibid., 188.

23. Charles J. Kappler, comp. and ed., Indian Affairs: Laws and Treaties (1904–41; reprint, New York: AMS Press, 1971), 1:426.

24. Ibid.

25. The House Subcommittee on Public Lands explained that because of the Garrison Dam the Indians’ “homes will be lost, their cattle industrywill be ruined, their churches and schools and their social life will be completely disrupted” (H Rep no. 81–544, at 3 [1949]).

26. Roy W. Meyer, “The Fort Berthold Reservation and the Garrison Dam,” North Dakota History 35 (summer 1968): 215, 233; Cross, “Sovereign Bargains,” 499–500.

27. Meyer, Village Indians, 186–190.

28. Ibid., 190.

29. Ibid., 190–196. Ironically, manyof the Indian dissidents objected to the IRA's effort to “retribalize” the Indians as contraryto the assimilation and acculturation goals of earlier federal Indian policies.

30. Constance E. Hunt, Down By the River: The Impact of Federal Water Projects and Policies on Biological Diversity (Washington, D.C.: Island Press, 1988), 116–118.

31. The states in the lower and upper Missouri River basin differed as to whythe Missouri River should be controlled bya series of federal dams and reservoirs. The upstream states (North and South Dakota, Montana, and Wyoming) were interested primarilyin developing the irrigation potential of the river. The downstream states (Nebraska, Iowa, Kansas, and Missouri) were more interested in flood control. See Flood Control Act of 1944, 16 U.S.C 460d (and various sections of Titles 33 and 43 U.S.C); P.L 78–534, 22 December 1944; 58 Stat 887. Congressman Lemke from North Dakota made it clear that bytaking these Indians’ lands, Congress was “again violating a treaty solemnly entered into [in 1886] with these tribes—a treatyin which we promised never to disturb them again” (Cross, “Sovereign Bargains,” 484).

32. H. D. McCullough, “Social and Economic Report on the Future of the Fort Berthold Reservation, North Dakota,” Department of the Interior, Bureau of Indian Affairs, Missouri River Basin Investigations Report no. 46, 24 December 1947 (Billings, Mont.). Also see Michael L. Lawson, Dammed Indians: The Pick-Sloan Plan and the Missouri River Sioux, 1944–1980 (Norman: Universityof Oklahoma Press, 1982), 59; and Meyer, Village Indians, 213.

33. Meyer, Village Indians, 213–214.

34. War Department Civil Appropriations Act, Pub L no. 79–374, section 6, 60 Stat 167 (1946).

35. Lawson, Dammed Indians, 62–63

36. Governor Aandahl and Senators Young and Langer of North Dakota agreed that the Garrison Dam must go forward and the Indians must be removed to make way for the dam (Meyer, Village Indians, 214–217).

37. War Department Civil Appropriations Act, ch. 411, Pub L no. 80–296, 61 Stat 686, 690 (1947). Roy Meyer comments that Pub L no. 80–296 represented “forced” legislation that ignored the interests and treatyreserved rights of the Mandan, Hidatsa and Arikara Indians (Village Indians, 234).

38. Bureau of Indian Affairs, Department of the Interior Report no. 94, “Social & Economic Report of Fort Berthold Indian Reservation” 12, 17 (Supp I, 1949).

39. War Department Civil Appropriation Act, 1948, ch 411, Pub L no. 81–296, 61 Stat 686, 690 (1947) Also see Meyer, “The Fort Berthold Reservation,” 257–261.

40. Meyer, “The Fort Berthold Reservation,” 261–263. Also see Glynn S. Lunney, Jr., “Compensation for Takings: How Much is Just?” Catholic University Law Review 42 (summer 1993): 721–756.

41. Ronald G. Cummings, “Valuing the Resource Base Lost bythe Three Affiliated Tribes As a Result of Lands Taken from Them for the Garrison Project” (report prepared for the JTAC, on file with the author).

42. H.R Rep no. 81–544, at 3–4 (1949).

43. 95 Cong Rec 15052, 15051 (1949).

44. H Rep no. 81–544. Also see Cummings, “Valuing the Resource Base.”

45. The Senate version of what became House Joint Resolution 33 “struck everything but the legal description of the taking area” (Meyer, “Fort Berthold Reservation,” 263). At the conference on the rival bills, “some House members expressed dissatisfaction with the bill in its final form, as theywell might, but a sense of urgencyand perhaps the futilityof further wrangling led them to accept it” (Cummings, “Valuing the Resource Base”).

46. Meyer reports that “[t]he approval bythe Tribes called for was obtained bya vote in 525 affirmative votes were cast out of 900 eligible voters and on 15 March 1950, council chairman Carl Whitman, Jr., with a seven-man delegation, presented a briefcase containing the ballots to Secretary Chapman” (Meyer, “Fort Berthold Reservation,” 264).

47. Quoted in Cummings, “Valuing the Resource Base.”

48. Meyer, Village Indians, 231.

49. Ibid., 230–231.

50. Ibid., 228.

51. Ibid., 224–228.

52. Ralph Shane quoted in ibid., 228. Also see ibid., 226–231; and Donald L. Fixico, Termination and Relocation: Federal Indian Policy, 1945–1960 (Albuquerque: University of New Mexico Press, 1986).

53. Recommendations of the GDUC on H.R 1116, A Bill to Implement Certain Recommendations of the Garrison Diversion Unit Commission Pursuant to Pub L 98–360, Hearings on H.R Before the Subcomm On Water and Power Resources of the House Comm On Interior and Insular Affairs, 99th Cong 114 (1985).

54. Secretary Donald P. Hodel created the JTAC on 10 May1985, and that committee submitted its final report to the secretaryon 23 May1986 (see S Rep no. 102–250 [1992]).

55. Ibid.

56. The Supreme Court first enunciated the equivalent value or “make whole” standard for just compensation in Monongahela Navigation Co v United States, 148 U.S 312, 326, 341 (1893).

57. Cummings, “Valuing the Resource Base.” Cummings notes that Senator Watkins and the rest of the Indian committee were keenlyaware that, in light of the MRBI reports, the Fort Berthold Indians would lose the vast majorityof their arable and irrigable land base that was the essential means for carrying out the purpose of the 1886 treaty agreement.

58. Hearings on S 168, at 16–19; Meyer, “Fort Berthold Reservation,” 257–261.

59. S Rep no. 102–250, at 3 (1992). The JTAC's award range reflects the application of these alternative land and resources valuation formulas. In calculating compensation, the JTAC had directed Dr. Ronald G. Cummings to use two alternative formulas.

60. The Senate report notes that the Select Committee on Indian Affairs held three oversight hearings on the JTAC recommendations beginning on 31 March 1987, with a joint oversight hearing with the Senate Energyand Natural Resources Committee and the Water and Power Subcommittee of the House Committee on Interior and Insular Affairs. That hearing examined the need for legislation to implement the recommendations of the JTAC report. The second hearing was held on 19 November 1987, wherein the committee “urged” the tribes to provide “further justification for the level of additional financial compensation to which theyfelt theywere entitled” and “explore a budget neutral to finance the compensation needed to carryout the recommendations.” In the third hearing regarding S 168, the tribes “expressed their overall support for the bill” and the GAO “expressed its approval of the compensation figures set forth in [S 168]” (ibid.).

61. Government Accounting Office, Report to the Chairman, Senate Select Committee on Indian Affairs, Indian Issues: Compensation Claims Analysis Overstates Economic Losses (May1991) Hearings on S 168, 13–15.

62. Hearings on S 168, 31–32.

63. Reclamation Projects Authorization and Adjustment Act of 1992, Pub L no. 102–575, title 25, 106 Stat 4731.

64. Section 3504 of the Authorization and Adjustment Act provides that “[s]uch interest shall be available [to the Three Affiliated Tribes] … for use for educational, social welfare, economic development and other programs, subject to the approval of the Secretary.” Section 3506 provides that “[n]o part of any in this fund … shall be distributed to anymember of the Three Affiliated Tribes … on a per capita basis.”

65. Reclamation Projects Authorization And Adjustment Act of 1992, Pub L no. 102–575, title 25, 106 Stat 4731.

66. An opinion letter by Mr. Jerry Nagel, a tribal member and vice chairman of the Fort Berthold Landowners Association, challenges the proposed tribal investment plan: the “council wants a dowryfor themselves not an endowment for you” and describes the proposed tribal referendum on this plan as an option for tribal members to “vote to get 25% of nothing or 50% of nothing and the council gets 100% to spend at will.” Likewise, in letters to Senator Byron Dorgan (D., N.D.) Ms. Phyllis Old Dog Cross asks the senator to investigate the proposed “referendum election now being held bythe Tribal Council of the Three Affiliated Tribes.” She believes the plan is “not a wise move” and asks whether the “funds, principle [sic] and interest [are] being protected as well as invested right now?” (copies of both letters in collection of the author).

67. This is mysynthesis of governing development theorywithin Indian country. See Manfred Halpern, “A Theoryfor Transforming the Self: Moving Beyond the Nation-State,” in Transfomational Politics: Theory, Study and Practice ed. Stephen Woolpert et al. (Albany: State University of New York Press, 1998), 45–55.

68. Black Elk quoted in Bonnie Duran, Eduardo Duran, and Maria Yellow Horse Brave Heart, “Native Americans and the Trauma of History,” in Studying Native America: Problems and Prospects ed. Russell Thornton (Madison: Universityof Wisconsin Press, 1998), 70.

69. Ibid., 64.

70. Amartya Kumar Sen, Development as Freedom (New York: Alfred A. Knopf, 1999), 146–159.

71. Ibid.

72. Mary Midgley, Wickedness: A Philosophical Essay (London: Routledge, 1992), 93–98.

73. Ibid.

74. These issues are explored more fullyin Raymond Cross, “Tribes as Rich Nations,” Oregon Law Review 79 (winter 2000): 893–980.