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5. “Twice-born” from the Waters

The Two-Hundred-Year Journey of the Mandan,
Hidatsa, and Arikara Indians

Raymond Cross

Christian salvatorylore requires that you be “twice-born” from the waters to merit everlasting life. Perhaps in a similar manner, the sacred and secular birth and rebirth of the Mandan, Hidatsa, and Arikara people from the waters maymerit them everlasting life. Their first birth from beneath the waters of Spirit Lake conferred a sacred character on their endeavors to develop an economically and culturally vibrant life along the bottomlands of the upper Missouri River.^[1] According to the Hidatsa creation story, theycame from beneath the waters of Spirit Lake, that bodyof water non-Indians now call Devils Lake in present-day North Dakota. A vine grew downward into the underworld where the Indians lived beneath the waters. Some of the Hidatsa climbed that vine into the upper world of the sunlight. But a veryfat Hidatsa woman pushed her wayto the head of the line and when she tried to climb the vine, it broke. Manyof the Hidatsa remain, to this day, marooned beneath the waters of Spirit Lake.^[2]

These Indian people's second birth was from beneath the waters of Lake Sakakawea, the 118-mile-long federal flood control and hydropower reservoir created in 1953 bythe world's fourth-largest earth-filled dam, the Garrison. The creation of Lake Sakakawea—named bythe U.S. Army Corps of Engineers to commemorate the memoryof the young Shoshone Indian who assisted the Lewis and Clark expedition in 1805–6—required the removal of over 90 percent of the Mandan, Hidatsa, and Arikara people from their historic settlements along the bottomlands of the Missouri River. Their rebirth from beneath the waters of that manmade lake occurred in 1992 when Congress awarded $149.5 million in just compensation for taking the Garrison.^[3] The Three Affiliated Tribes must, bystatute, use these funds to overcome the social and economic devastation wrought by Lake Sakakawea so as to rebuild their tribal world—which has been constantly

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undermined bythe ongoing encounter with American power since the arrival of the Lewis and Clark expedition in 1804. In doing so, the tribes must address the interlacing of sacred and secular duties that confront their people. Theywill accomplish this bydrawing from the strengths that have allowed them to survive the hardship and devastation that has characterized their two-hundred-year relationship with the United States and once again exercise the cultural and economic independence theypossessed when they first encountered the American explorers.^[4]

Water, disease, and words—these are the three basic human factors that have defined the long relationship between the United States and these Indian people from 1804 to the present. My essay evaluates how the interaction of these three human factors, and their different significance for Indians and non-Indians, have fundamentally altered the tribal life worlds of the Mandan, Hidatsa, and Arikara people over the course of two-hundred years. I divide this span of two centuries into four keyhistorical periods, concluding with a fourth human factor—hope—to illustrate how these Indian people's enduring resilience and tenacitywill enable them to survive and perhaps even triumph over their ongoing hardships. The ultimate “test case” of myhypothesis evaluates the likelihood that these Indian people will recover from the federally engineered destruction wreaked in 1953b the flooding of the Fort Berthold Indian Reservation.

Disease, particularly small pox, is the human factor that dominates the first historical period, from the arrival of Lewis and Clark in 1804 to the devastating epidemic of 1837 that forced the surviving members of the Mandan, Hidatsa, and Arikara tribes to consolidate within one village. Words, those contained in an 1886 federal agreement between these Indian people and the United States, open mysecond historical period. This agreement created the cont emporary Fort Berthold Indian Reservation and obligated the Mandan, Hidatsa, and Arikara people to farm and ranch the bottomlands along the Missouri River. Through arduous effort these Indian people had clearlylived up to the words of the 1886 agreement byrecreating a self-sufficient agricultural economyand a renewed tribal cultural life within the forbidding environment of the Fort Berthold reservation in northwestern North Dakota. But in 1949 the federal government chose to break its word bytaking the Indians’ last remaining river bottomlands as the site for the federal hydroelectric and flood control reservoir known as Lake Sakakawea. Water, embodied in those billions of gallons unleashed on the Fort Berthold reservation bythe federally engineered flood of 1953, frames the tribal life world of these Indian people during mythird historical period. Beginning with the mass removal and relocation in 1953 of over 90 percent of these Indian peoples from their reservation homes to accommodate the closure of the flood gates of the Garrison Dam, this third historical period ends in 1985 with Interior Secretary Donald P. Hodel's

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reluctant creation of the Joint Tribal Advisory Committee (JTAC) to hear these Indians’ just compensation claim arising from the flooding of their historic tribal homelands. Hope is the factor that animates the tribal life world during myfourth historical period, which begins in 1986 with the release of the pivotal JTAC report to Congress and mayclose in 2004 with these Indian people's development of a social and economic recoveryplan based on the 1992 congressional payment of $149.5 million in just compensation.

FRAMING THE LEWIS AND CLARK ENCOUNTER

The Mandan, Hidatsa, and Arikara people long ago made the “elongated oases” of the upper Missouri River valleytheir home. Bytheir successful exploitation of the river valley's resources these Indian peoples—particularlythe Mandan—had by900 a.d. established a vibrant cultural and economic life along the bottomlands, terraces, and bluffs of the Missouri River in what are now the states of South Dakota and North Dakota.^[5] Bythe time of their 1804 encounter with the so-called Corps of Discovery, these Indian people had long flourished through their use of the waters and riparian lands of the upper Missouri River. Theyhad evolved varieties of quick-maturing corn that were well adapted to the short growing season of the upper Missouri River valley, thus becoming the northernmost outpost of the Mesoamerican corn culture. Their exploitation of the extensive flood plain of the river, when cleared of brush, allowed the tribal women to plant and cultivate their large gardens of squash, corn, beans, and sunflowers. Likewise, the surrounding terraces and bluffs created bythe river provided suitable sites for their earth lodge villages that could be easilydefended from potential attack bytheir enemies. The surrounding prairie was well stocked—not onlywith abundant deer, elk, and antelope—but with the big game animal the Mandan valued most as their source of food and material supply—the bison.^[6]

Well before the arrival of Lewis and Clark in 1804, the Mandan had substantially expanded their horticulture and used their large food surplus in a flourishing intertribal trade, particularly with their nomadic neighbors to the west. Situated on the big bend of the Missouri, and downstream from the mouth of the Yellowstone River, theyenjoyed an enviable geographic position that attracted trade goods from farflung regions such as obsidian from present-day Yellow stone National Park, copper from the Great Lakes area and conch shells from the Gulf Coast. Later, with the coming of the horse and gun to the Great Plains, the Mandan and Hidatsa villages became the center of an even more complex web of trade that eventually incorporated trading representatives from the fabled Hudson Bayand Northwest Companies.^[7] It was in this last context, as confident and adaptive peoples

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who were well situated in regional, continental, and imperial trade networks, that the Mandan, Hidatsa, and Arikara first encountered Lewis and Clark.

John Seelye has rightly described the Corps of Discoveryas a pragmatic “nationalistic reconnaissance with a paramilitary, quasidiplomatic scope and purpose.”^[8] One of its acknowledged, if publicly unstated, missions was to dislodge the well established British and French fur trading interests from the upper Missouri bysecuring the resident Indian tribes’ acceptance of American sovereigntyand their commitment to trade exclusivelywith those American companies that would come upriver from St. Louis. Native peoples were to be left in no doubt about the United States’ intent and power to impose its control over the Indian trade within that region. Toward these ends, the Lewis and Clark expedition exerted a significant measure of “gunboat diplomacy” as its means of impressing on the Indian peoples the might of their new master—the United States government.^[9]

Meriwether Lewis made sure that the first general council meeting in the late fall of 1804 with the assembled Mandan and Hidatsa chiefs would highlight the “gunboat diplomacy” aspects of his mission. In his journal, he described this meeting as held “under an awning of our sails, stretched so as to exclude the wind … [and so t]hat the impression might be the more forcible, the men were all paraded, and the council was opened bya discharge from the swivel [gun] of the boat. We then delivered a speech which, like those we alreadymade, intermingled advice with the assurances of friendship and trade.” At least one Hidatsa chief, Caltarcota, expressed his anger at being lectured but, Lewis blandlynoted, “was instantly rebuked with great dignitybyone of [his fellows] for this violation of decorum at such a moment.”^[10]

According to Roy Meyer, the Indians’ real assessment of this first meeting was that Captain Lewis “had a wicked design on their country.” Theylikewise judged Captain Lewis's floweryspeech, and his professed his wish for undying peace and friendship with the Indians, as political farce.^[11] But the Mandan and Hidatsa Indians’ critical assessment of the expedition did not deter a thriving Indian trade with the American explorers. In exchange for Mandan corn and buffalo the expedition's blacksmiths mended the Indians’ hoes, repaired firearms, and late produced implements of intertribal warfare such as Indian battleaxes. Although this trade seriously undermined the expedition's putative objective of promoting intertribal peace, Lewis defended his blacksmiths’ practices as a “happyresource to us in our present situation as I believe it would have been difficult to have devised anyother method to have procured corn from the natives.”^[12]

Viewed in isolation, the impact of the Lewis and Clark expedition on the Mandan, Hidatsa, and Arikara people was virtuallynil—in both diplomatic and commercial terms. A Mandan chief complained about the lack of

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American trade goods and concluded that “had these Whites come amongst us with charitable views theywould have loaded their ‘Great Boat’ with necessaries. It is true theyhave ammunition, but theyprefer throwing it awayidlyrather than sparing a shot of it to a poor Mandan.”^[13] As federal diplomats, Lewis and Clark sought to impose what James Ronda has called a “simplistic diplomatic model” that did not require their understanding of the deep complexityof tribal economic and governmental life. Their simple formulation of the Indians’ revised political status as “dutiful Indian children” with a new and powerful “White Father” who resides in Washington, D.C. was certainlynot welcomed bythe Mandan, Hidatsa, and Arikara people.^[14] Nevertheless, these misunderstandings formed the basis for the unequal relationships between these Indians and the increasingly powerful United States.

DISEASE AND DEPENDENCE, 1837 TO 1886

When President Thomas Jefferson was devising his instructions for the Lewis and Clark expedition, he apparently considered the vaccination of the Indians of the upper Missouri River against smallpox. After all, as Ronda put it, “[d]ead Indians could not participate in an American trade network and dying natives could onlyblame the explorers for spreading the disease.” Jefferson ultimately decided against this precaution, since he believed it would overburden his Corps of Discovery by adding an unwieldymedical function that might detract from the performance of their other duties.^[15] His views were reflected in the observations of expedition members, who commented on the consequences of past epidemics with clinical detachment. Fortunately, no one on the expedition carried a fatal infectious disease, a fact that no doubt helps account for Lewis and Clark's abilityto garner much needed assistance from various Native communities during the successful return to St. Louis in 1806.

Disease followed in the wake of the expedition. Increased trade through St. Louis brought greater exposure to European diseases, which had a debilitating effect on all the Native peoples of the upper Missouri. It was not until the late 1830s, however, that the Mandan, Hidatsa, and Arikara Indians would face epidemiological catastrophe. At the waning height of the peltrytrade, when American fur trade posts had long since dislodged these Indian communities from their central position in the Great Plains trading networks, the waters of the upper Missouri River and American commerce joined to bring to the Mandan, Hidatsa, and Arikara villages an unwelcome guest—smallpox—which arrived on the American Fur Companysteamer, St Peters, at 3:00 P.M. on 19 June 1837. Although the presence of smallpox had been suspected aboard the steamer when a mulatto servant had come down with the disease, the captain refused to put the man ashore because

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he did not wish to lose the man's services. Apparently, some three Arikara women, who had been visiting their Pawnee relatives, came aboard the boat and soon contracted the disease. The disease spread rapidly, devastating the Hidatsa and Arikara people, and virtuallywiping out the Mandan. From a historic high population of 8,000, the Mandan had been reduced to a preepidemic population of 3,200. Bythe time the disease had run its course, only 120–130 individuals survived.^[16]

The journal of the Indian agent Francis A. Chardon, starting on 14 July, references just one or two Indian deaths a dayfrom smallpox. But his reported number of Indian fatalities from that disease increases bythe date of his August entries from four to seven a day. By 20 August, he estimated the rate of Indian fatalityfrom smallpox to have reached eight to ten a day. By August's end he concluded that at least five hundred Mandan and Hidatsa Indians had been killed bysmallpox and by19 September he raised that number to eight hundred dead. Chardon later remarked that the “Mandan and Rees gave us two splendid dances, they say they dance on account of that theydo not have long to live, as theyexpect to all die of the smallpox, and as long as theyare alive theywill take it out in dancing.” Aside from their dancing, some of the village Indians responded more directlyto the disease bycommitting suicide. A young widow killed her two children and then hanged herself. A young Arikara man asked his mother to dig his grave and then walked into it, saying that all his young friends were gone and he wished to follow them.^[17]

Roy Meyer remarks that the Indians surprisingly sought no vengeance against those who had brought the disease to them.^[18] Still, the Mandan chief Four Bears (ca. 1795–1837) sought vainlyto rallyhis supporters to attack the whites. Reflecting on his own relationships with Americans since the time of Lewis and Clark, Four Bears noted that more than three decades of peaceful trade only resulted in the ultimate undoing of his people:

Myfriends one and all, listen to what I say—Ever since I can remember, I have loved the Whites, I have lived with them ever since I was a Boy, and to the best of my Knowledge, I have never Wronged a White Man, on the Contrary, I have always Protected them from the insults of Others, Which theycannot deny. The 4 Bears never saw a White Man hungry, but what he gave him to eat, Drink, and a Buffaloe skin to sleep on, in time of Need, I was always readyto die for them, Which theycannot deny. I have done everything that a red Skin could do for them, and how have theyrepaid it! With ingratitude! I have Never called a White Man a Dog, but to day, I do Pronounce them to be a set of Black harted Dogs, theyhave deceived Me, them that I always considered as brothers, has turned out to be My Worst enemies. … Listen well what I have to say, as it will be the last time you will hear Me. Think of your Wives, Children, Brothers, Sisters, Friends, and in fact all that you hold dear, are all Dead, or Dying, with their faces all rotten, caused by those dogs the whites, think of

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all that Myfriends, and rise all together and Not leave one of them alive. The 4 Bears will act his part.^[19]

Weakened both physicallyand spiritually, and displaced within their own trading systems, the three tribes became increasingly dependent on American commercial and military interests in the decades following the 1837 epidemic. By 1845 several Mandan and most of the Hidatsa moved further upriver to jointly establish a new town, Like-a-Fishhook Village—which soon attracted the looming presence of a new American trading establishment, Fort Berthold. It is not altogether clear whythe new village was established, but Hidatsa legend holds that all the timber was gone at the old sites by1845 and some new village location had to be found. In anyevent, by1862 the consolidation of all the remaining Mandan and Arikara in that village became the focus of life for the upper Missouri tribes over the next forty years.^[20]

The political integration of these three distinct Indian groups into an affiliated or amalgamated tribal people was clearlythe result of the 1837 pandemic. Though Mandan, Hidatsa, and Arikara individuals and groups maintained distinct ethnic identities, from this time forward village leaders and federal policymakers operated as if the Like-a-Fishhook community represented a single tribe. Such amalgamation presented difficult challenges for tribal leaders, but also gave the village a numerical strength that approximated the size of their once numerous town sites along the river. If the Mandan, Hidatsa, and Arikara continued to live separately, theywould have been overwhelmed bythe much larger equestrian groups on the plains or become lost in the world of daylabor that defined life in American trading establishments. While amalgamation presented necessary benefits, so too did isolation. As Meyer notes, the Three Tribes remained “largelyfree of overt white pressures, [and] retained their languages, their traditions, their values, most of their material culture, and a heartening amount of their dignityand sense of identity.”^[21] Nevertheless, the Three Tribes had lost much in the decades following the epidemic—a fact that is probablybest measured bythe magnitude of land theywere forced to relinquish to the United States. Byexecutive order in 1870 and 1880, their land base was diminished byapproximately80 percent to make wayfor a new railroad and again reduced a further 60 percent in 1886. In all, about 11,424,513 acres of tribal lands were taken, reducing the Indians’ land base to approximately the present-day size of the Fort Berthold Indian Reservation.^[22]

NEW WORLDS AND OLD WATERS, 1886 THROUGH THE 1940S

The contemporary Fort Berthold Indian Reservation was formally established byagreement in 1886 “for the sole use and benefit” of the Mandan,

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Hidatsa, and Arikara people.^[23] Bythat agreement those Indians ceded to the United States all their lands north of the 48th parallel and west of a north-south line drawn six miles west of the most westerlypoint in the big bend of the Missouri River. The stated purpose of this reservation was to enable the Mandan, Hidatsa, and Arikara Indians “to obtain the means necessaryto enable them to become wholly self-supporting by the cultivation of the soil and other pursuits of husbandry.”^[24] Though it involved a significant reduction of their land base, the Three Tribes kept true to the words in the 1886 agreement. This was recognized bythe House Subcommittee on Public Lands in 1949 when it remarked that the Indians’ development of an agricultural livestock industry[on the Fort Berthold reservation had] rendered them “in sight of complete economic independence.”^[25] Bymaking full use of their reservation's available natural resources—“the wild game, the fruits and berries, the timber that grew in the river bottoms and along the tributaryravines, [and] the lignite coal,” they continued to draw on their long-developed abilities to make a living from the “forbidding” country and climate of the Dakotas.^[26]

The road to independence was also built during a long struggle to receive fair compensation for the lands ceded to the United States by the executive orders of 1870 and 1880. After three decades of petitions from tribal leaders, the U.S. Court of Claims eventuallyheard the Indians’ arguments and in 1930 awarded them $4,923,093.47. However, the United States requested an offset of $2,753,924.89, ostensibly representing the amount it had expended gratuitouslyfor the “support and civilization” of these Indians. The court granted that federal offset request and reduced the Indians’ final award to $2,169,168.58. The joint congressional resolution of 1931 that approved this final award also directed that the monebe doled out in per capita installments of about $200 to each eligible Indian beneficiary, for a total of $1,191.50 per individual. Although the agency super intendent feared that these per capita payments would be misspent on illegal liquor, most of the moneyseems to have gone toward housing improvements, and the purchase of beef and dairycattle, and farm equipment.^[27]

This moneydid not shield the beneficiaries completelyfrom the worst effects of drought and economic depression in the mid-1930s. In 1934, the worst drought year on the Fort Berthold reservation, neither the Indian farm and ranch operators, nor their non-Indian lessees, earned anyincome from the parched earth. The Indian livestock operators had to radically destock their herds, selling their starving or diseased animals for disposal to the federal government and selling their healthyanimals for whatever price theycould get on the depressed livestock markets. Federal Indian rations, something the Indians had long foregone out of pride and self-sufficiency, returned during the depression years to the Fort Berthold reservation.^[28]

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As in its dealings with other Native communities, the federal government was slow to extend its “New Deal” public employment and works projects to the Fort Berthold reservation. Bythe late 1930s, however, a small Indian Conservation Corps became fairlyactive on the reservation, rebuilding bridges, developing dams and springs, latrines, garbage pits, or cattle guards, and helping in land revegetation efforts. Much of this came in the wake of the Indian Reorganization Act (IRA), the brainchild of the ambitious new Commissioner of Indian Affairs, John Collier. At its core, the IRA was Collier's effort to extend a constitutionally based, representative democracyto Indian country. Indian tribes that did not affirmatively vote to reject the IRA were required to adopt tribal constitutions and establish democratically elected, representative tribal councils. Collier assumed that the Fort Berthold reservation would be receptive to the IRA idea and he was proven right. On 17 November 1934 the Mandan, Hidatsa, and Arikara people voted to become one of the first “IRA-tribes” by a margin of 477 to 139. The biggest selling point was the federal promise of economic development aid to IRA tribes. Section 17 of the IRA allowed the tribal government to become a federally chartered corporation empowered to exercise the usual corporate powers of a forprofit business entity. Although the new tribal council voted to reorganize itself, the federal government once again broke its word: nothing came of the promised federal economic aid or the expected business development on the Fort Berthold Indian Reservation.^[29]

Strengthened bythe challenges of drought, depression, and the IRA, and sustained bythe age-old gifts of the Missouri River, the Three Tribes entered the 1940s on solid footing. Environmental and political change would soon undermine their relationship to the river, and the tribes would be forced to draw on all the lessons of the past to navigate their waythrough a daunting future. The upper Missouri River was a friend to these Indians, but non-Indian settlers and later downstream citydwellers viewed the river's changeable nature as a menace to their lives and property. A huge flood in 1943 wreaked havoc on downstream cities, industries, and farms, and led the downstream Missouri River states to demand a comprehensive congressional plan for flood control. Ironically, one of their greatest concerns involved protection of the channels and dikes that had taken several decades and millions of dollars to construct on the lower Missouri—but had also contributed to the disastrous magnitude of the flood.^[30]

While the flood of 1943 inundated portions of the Fort Berthold reservation, its effects on the Three Tribes were relativelyminor. However, its consequences would become permanent. When Congress passed the Flood Control Act of 1944, it called for a comprehensive approach to the development of the Missouri River basin for the purposes of flood control, irrigation, and navigation. Though a number of congressional representatives mayhave been ignorant of it at the time, the act also set the United States

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on a course to breach the central premise of its 1886 agreement with the Mandan, Hidatsa, and Arikara: namely, to reserve a stretch of the fertile bottomlands along the Missouri River to ensure the Three Tribes could “obtain the means necessaryto enable them to become wholly self-supporting bycultivation of the soil and other pursuits of husbandry.” The consequence of these broken words would be the greatest threat to the survival of these tribal people since the epidemic of 1837.

SURVIVING THE ENGINEERED FLOOD, 1953 TO THE 1980S

The Flood Control Act incorporated two competing proposals, one championed by Colonel Pick of the Army Corps of Engineers and one from W. Glenn Sloan of the Bureau of Reclamation. The Pick-Sloan Program was hailed as the answer to the region's prayers for an end to the twin devastations caused byrecurring summer dust bowls and spring floods. The program called for a mammoth multipurpose water development program that entailed the construction of four major main-stem dams along the Missouri River: three in South Dakota, Gavins Point near Yankton, Big Bend at Fort Thompson, and Oahe at Pierre; and one in North Dakota, Garrison at Riverdale. The Pick-Sloan Program was carefully planned so that its reservoirs would not inundate any non-Indian towns along the Missouri River. But the Mandan, Hidatsa, and Arikara people were not so fortunate. The Garrison Dam was intended to serve as the “high dam”—the major regulating structure—in the Pick-Sloan Program, and its reservoir would inundate all of the riparian lands that had been reserved to the Three Tribes bythe terms of the 1886 agreement with the United States.^[31]

The Flood Control Act of 1944 had been adopted by Congress without anyconsultation with the Mandan, Hidatsa, and Arikara people. The first real experience of these Indians with the coming of the Garrison Dam occurred when the Corps of Engineers entered the reservation to begin construction in April 1946. The Mandan, Hidatsa, and Arikara people—led bytheir tribal chairman, Martin Cross—petitioned Congress to prohibit the construction of the Garrison Dam on their reservation as a direct violation of the terms of their 1886 agreement with the United States. Their efforts in this regard inspired the creation of a congressionally established group known as the Missouri River Basin Investigations (MRBI), which essentially affirmed the Indians’ basic argument that constructing one of the world's largest earth-filled dams on the Fort Berthold reservation would irretrievably disrupt the economic and social life of an ancient tribal people.^[32]

The MRBI reports highlighted the expected adverse impacts of the Garrison Dam. First, approximately90 percent of the Indian people would have to be removed from their historic settlements along the bottomlands of the Missouri River. Second, the agricultural treatypurposes of the Fort

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Berthold reservation would be frustrated due to the flooding of the Indians’ arable land base. Third, the only agriculturally self-sufficient Indian tribes on the Great Plains would have their economic and social base destroyed bythe proposed flooding and would likelybe reduced to dependence on the federal government for their future subsistence and maintenance.^[33]

Indian resistance to the dam eventually received a partial response from Congress, which statutorily for bade the corps's building of anyof the dam's major structural features until the secretaryof war located and offered an adequate replacement reservation to the affected Indians.^[34] While tribal leaders were cool to the idea of a new reservation, dam proponents argued that this standard of compensation was too high and would set a dangerous precedent for the corps's negotiations with the downstream Indian tribes who likewise opposed the taking of their lands for the Pick-Sloan Program.^[35] The secretaryof war seemed to share the concerns of this latter group and suggested that it would be hard to convince local non-Indian communities to accept the creation of a large replacement reservation for the relocated Mandan, Hidatsa, and Arikara Indians. Nevertheless, he did locate and propose a few potential new reservation sites, but the tribal council and the secretaryof interior alike rejected them on the grounds that theyfailed to meet the requirement that the replacement lands be of “like qualityand quantity” as the taken Indian lands. Project proponents then contended that the Indians’ refusal to accept these replacement lands demonstrated the impracticability of this congressional compensation scheme.^[36] Mounting constituent pressure forced Congress to move speedilyon the construction of the Garrison Dam, and it responded in kind. Once the Indians and the secretaryof the interior rejected the war secretary's last offer of replacement lands, Congress rescinded the construction ban and ordered the removal of the Mandan, Hidatsa, and Arikara Indians from their soon-to-be-inundated lands.^[37]

Once it became clear to tribal leaders that theycould not stave off the construction of Garrison Dam, theyfocused their energies on obtaining just compensation. While the value of their lands was considerable, just compensation would also have to ensure that tribal members could effectively operate in a cash economy. As the Interior Department reported to Congress in 1949, “Most of the natural resources upon which the Indians depend for subsistence will be wiped out bythe completion of the Garrison project. … Most of the surface coal deposits from which the Indians mine their coal will be flooded. … [F]amilies obtain almost all of their fuel, a large portion of their meat and fruit, a considerable amount of garden vegetables, and most of their building materials without the expenditure of anycash. After the inundation of these natural resources bythe Garrison Reservoir Project, the amount of cash will be greatly increased.”^[38] The Corps of Engineers and Congress pressured the Indians to accept a quick settlement,

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and a certain degree of fatalism among the Mandan, Hidatsa, and Arikara made them susceptible to these outside demands. Nevertheless, tribal leaders insisted that anyagreement must preserve their right to sue for just compensation at a future date. They eventually proved successful in this matter, forcing the inclusion of a provision that would allow them to bring a just compensation suit in the Court of Claims for anyadditional damages “of any treaty obligation of the Government or in anyintangible cost of reestablishment or relocation for which the said tribes are not compensated.”^[39]

Just compensation and future legal rights were not easilysecured, however. Senator Arthur V. Watkins, chair of the Senate Indian Affairs Committee, reasoned that Congress, not the courts, was the appropriate forum for determining the appropriate compensation for the Indians. Watkins rightlyclaimed there was a “substantial unanimityof opinion [in the Senate on this matter,] to the effect that Congress should provide a definitive settlement with the Three Affiliated Tribes.” Watkins's views stemmed from his interpretation of Congress's plenarypower over Indian lands, and he assured the Indians that any congressional settlement would be “both just and generous,… therebyremoving anyreason [or] necessityfor further action in the Court of Claims.” The Mandan, Hidatsa, and Arikara Indians remained unconvinced of Senator Watkins's sincerityand were forced to watch in horror as the Utah Republican's control of a keycommittee allowed him to override standard legislative processes for determining just compensation.^[40]

The House Committee on Public Lands and the Senate Indian Affairs Committees did brieflydebate the cost-versus-loss basis for just compensation.^[41] For example, the House committee was clearly uneasy with the corps's cavalier assertion that payment of fair market value to individual Indian landowners would adequately compensate the Mandan, Hidatsa, and Arikara people for their losses from this taking: “The Committee … feels that [the corps's figure of $17 million] is small compensation for the disruption forced upon the 2,215 Indians. A conservative estimate of the basic value of the lands and their annual use value is approximately $21,981,000. Therefore, the United States … will obtain the reservoir right-of-way at about two-thirds of its basic value and its annual use value.”^[42] Individual congressmen, such as Mr. Lemke from North Dakota, colorfully expressed their dismaythat the Indians were to be paid an amount of compensation substantially less than the real economic value of their treatyreserved lands: “Here is a factory … that produced a net income last year of $774,000. That alone capitalized at 4 per cent equal about twentymillion. Surelyno one would voluntarily surrender an income of 4 per cent on twentymillion for less than twentymillion cash. … In taking these lands, we are … depriving these tribes of their land for less than its value.”^[43]

Despite the clarityof these arguments, which tended to favor an earlier MRBI report that had capitalized the value of the taken Indian lands at a

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conservative estimate of $21,981,000, the House and Senate jointlyproposed a settlement of approximately $17 million. This smaller total was based on the following elements: $5.1 million for the fair market value of the inundated Indian trust lands and related relocation costs; $3 million for a land readjustment fund that would be used to consolidate fragmented land holdings of tribal members into viable economic units and to purchase private lands for needytribal members; $6.5 million as additional compensation to the Three Affiliated Tribes for “values not compensated for under the contract;” and approximately $2.4 million for 20,000 kilowatts of electric power (when available from the Garrison Dam) “for sale and distribution by the … Tribes … delivered at such points or points on the reservation … as maybe determined bythe Secretaryof the Interior;” and of “anyirrigation works and related facilities which … the Secretaryof the Interior determines to be feasible. … If constructed, the irrigation works must be operated on a basis not less favorable than to non-Indian lands, and the costs thereof must be repayable in accordance with the terms of other laws applicable to Indian lands.”^[44]

However unjust, the compensation for taking the Garrison Dam never followed hard economics. Instead, the amount was ultimately determined bythe comparative power of the House Committee on Public Lands and the Senate Indian Affairs Committee. The minimum just compensation amount proposed in the joint resolution of the House and Senate was repeatedly reduced by Senator Watkins's committee.^[45] When all the “horse trading” was completed, the House and Senate committees ultimately agreed on a compensation figure of $12.6 million, and on 15 March 1950, the Fort Berthold Indians reluctantly agreed to accept that final amount.^[46] The dramatic downward spiral of the original compensation proposal did not escape the attention of tribal leaders’ attention, who advised tribal members “that if we should reject the Act, the next offer of the government probablywould not be even as good as the one we are considering.”^[47] However, they knew another day might come.

Their removal to make wayfor the Garrison Dam in 1953 was perhaps the most traumatic event that the Mandan, Hidatsa, and Arikara people faced since the 1837 smallpox epidemic. While this trauma often played out in destructive personal reactions—such as increased domestic violence and alcoholism—it took place in a broader context of internal divisions among tribal leaders, external political threats, and the geographic fragmentation of the reservation community. These were all graphically illustrated on the April 1953 cover of the Fort Berthold Agency News Bulletin in which Lake Sakakawea was portrayed as a sea serpent spreading its tentacles over a radically segmented and divided Fort Berthold reservation.^[48]

How to spend the compensation for the Garrison taking fueled political infighting between two powerful tribal leaders—Martin Cross and Carl

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Whitman, Jr. Cross favored a per capita distribution of virtuallyall of the monies to individual tribal members while Whitman favored the retention of most of these monies in tribal programs to address the longterm needs of the Indian people. Cross used his position on this keyissue to defeat Whitman in the 1950 tribal council election, but the matter dominated tribal politics until the U.S. Congress agreed to a per capita payment in 1957. This internal debate within the tribe was shadowed bythe new Indian policyof termination, which sought to “terminate” federal treaty obligations and end the unique government to government relationship between Indian tribes and the United States. In this context, the Bureau of Indian Affairs (BIA) attempted to exploit both sides of the per capita debate on the Fort Berthold reservation. If funds went to the tribe as a whole, reasoned Indian Commissioner Dillon S. Myer, and the tribal government had confidence that it could manage and spend millions of dollars, then it no longer needed a treaty relationship with the United States or the supervision of the BIA. Yet BIA officials also viewed per capita distribution of the Garrison taking as a sort of de facto detribalization: if individuals received all the money, then they apparently no longer thought in tribal terms and thus had no need to operate under the terms of past treaties. Cross and the tribal council responded in an artful manner to Commissioner Myers's desire to terminate the tribe on anygrounds: “We are opposed to the withdrawal bythe government of any help that theygive us. … We onlyoppose their interference with our management of our own propertyand money.”^[49]

The Three Tribes effectively staved off termination, but the BIA-administered relocation of tribal members awayfrom the areas flooded by Garrison Dam had severe consequences for the reservation community. The BIA sought to use relocation as an opportunityto recreate Fort Berthold as new, dispersed tribal communities on the residual high plains of the reservation. These new communities—Mandaree, Twin Buttes, and New Town—sought to fuse the three tribal groups into one new tribal identity. Indeed, the name Mandaree is a composite of the syllables Man (dan), (Hi)da (tsa) and (Arika)ree. But the realityof physical separation on the desolate high plains imposed severe limits on governmental and economic integration of the Fort Berthold reservation. The resulting geographic of the reservation communityonto farflung, unproductive parcels of land was reflected in the Indians’ deteriorating social welfare status and the substantial decline in their incomes from farming and grazing leases. While 39 percent of their income came from such leases during the World War II years, only10 percent of their income derived from these sources after the Garrison Dam. Welfare that had amounted to just 1 percent of reservation income for the years prior to the dam accounted for over 9 percent of reservation income after the dam.^[50]

Besides fragmenting the reservation's social geography, the creation of

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Lake Sakakawea eroded the tribal integrityof the Fort Berthold community by fostering the absorption of tribal members into surrounding non-Indian institutions and economy. When their distinctive Indian schools disappeared under the waters of the vast reservoir, most Indian children either attended public schools on the reservation or made the long trek to off-reservation BIA-run boarding schools. Young Indian men and women also began to see themselves primarilyas wage laborers, hiring out as help on non-Indian-run farms and ranches or relocating to off-reservation establishments. This change was especially marked in the early 1960s, as wage income increased from 14 percent in the pre-dam era to 43 percent in the post-dam era. While the scope of psychological damage cannot be fullysummarized in statistics, the Mandan, Hidatsa, and Arikara peoples clearlyhad to face substantial adjustment challenges in adapting to their new reservation setting.^[51]

The new federal program of relocation onlyexacerbated these tendencies, as the BIA encouraged young men and women on reservations throughout the West to move to urban areas such as Denver, Oakland, or Chicago where their chances for employment might be better. Manyyoung people from the Fort Berthold reservation went through the “relocation” process during the 1950s and 1960s, but most did not experience any substantial improvement in their material circumstances. The reservation community sorely missed their presence, however—notwithstanding the claims of Superintendent Ralph Shane, who in 1954 asserted that the Indians would one daythank the United States because all the changes on the reservation were “byno means the end of the trail for anypeople, anyculture, anywayof life, nor an ascending economy.” He believed that the challenges of the post-dam era, just like the trials theyhad undergone in the past, would ultimately benefit the members of the Three Tribes if theycould arise to meet them.^[52]

MAKING WORDS MATTER, 1984 TO 1992

Rising to meet challenges was never a virtue in short supplyamong the Mandan, Hidatsa, and Arikara Indians. Yet the devastation wrought bythe Army Corps of Engineers and the Bureau of Indian Affairs had terribly undermined the Three Tribes and transformed them from a self-sufficient people to a fragmented and weakened communitythat was increasingly dependent on outside political and economic developments. In a slowly disintegrating situation, the Three Tribes had onlyone real strategyfor overcoming the consequences of Lake Sakakawea and reclaiming the independence theyhad once almost achieved, and it hinged on tribal efforts: convince the government to revisit the costs of the 1949 Taking Act. They finally succeeded in 1984, when Congress established the Garrison Diversion Unit Commission

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(GDUC). This eleven-member body—charged with reviewing a host of issues including problems involving land acquisition, environmental impacts, irrigation rights, and international treaties over shared water resources with Canada—quickly determined that the Three Tribes had borne a disproportionate share of the economic burden in having the Garrison Dam and reservoir located on their most productive tribal homelands. The GDUC based this finding on its review of the legislative record of the 1949 Taking Act and concluded that the Indians had suffered devastating economic, cultural, and social losses from the seizure of their most productive agricultural lands. In short, theypaid the price for a project that benefited onlydownstream communities and industries. The GDUC, moreover, found that Congress mayhave failed to make the Mandan, Hidatsa, and Arikara people whole for these economic losses.^[53]

According to its mandate, the GDUC directed Secretaryof the Interior Donald P. Hodel to hold administrative hearings on the Indians’ just compensation and related claims arising from the 1949 taking. Hodel subsequently established the Joint Tribal Advisory Committee (JTAC), which was charged with examining whether the federal government had failed to justly compensate the Three Tribes for their economic losses and, if so, to recommend appropriate implementing legislation to make appropriate amends.^[54] On the urging of the Indian people, the JTAC construed its charter so as to allow relevant layand expert testimonyabout the devastation of tribal culture and economy. And the hearings before the JTAC provided the organizational catalyst for the Mandan, Hidatsa and Arikara people to join together. Theyurged the JTAC to review the entire circumstances surrounding this federal taking, and to ensure a reliable and comprehensive inquiry into its fairness.^[55]

Whether the federal government had made a good faith effort to justly compensate the Mandan, Hidatsa, and Arikara people was the most significant issue confronted bythe JTAC. Focusing on the administrative and legislative record that ostensibly justified the 1949 Garrison taking, the committee paid particular attention to Indian claims that demonstrated the failure to fulfill the “make whole” standard of the Just Compensation Clause.^[56] The Indians argued that Senator Watkins's Indian committee failed to justly compensate them for their taken lands, given that their lands should have been valued on the same basis as non-Indian lands that served comparable governmental and public welfare functions. Theycontended that this valuation standard would fulfill two important underlying goals of the Just Compensation Clause. First, such a valuation standard would ensure the continued viabilityof the affected Indian peoples as a recognized government consistent with the purpose of their 1886 agreement with the federal government. Second, such a valuation standard would discourage future “rent-seeking” initiatives by Indian congressional committees that

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sought to exploit their plenarypower over Indian lands for their non-Indian constituents’ benefits.^[57]

The Indians’ treaty-reserved lands formed the essential trust that supported their economic and governmental infrastructure. In particular, the destruction of 156,035 acres of easilyirrigable bottomlands imposed economic losses that could be measured onlybythe capitalized value of the expected future incomes that those lands would have generated. The JTAC recognized that the federal government had a legal dutyto make the Indians whole for their economic losses based on known and accepted 1949 valuation standards. Such a valuation approach replicated the 1946 congressional valuation standard that required the War Department to provide the Indians with the “in-kind” replacement value of their taken lands.^[58] The JTAC's next task was to determine the amount of replacement or substitute value that would adequately compensate Indians for the loss of their lands. Such an alternative valuation standard had been endorsed bythe Supreme Court in the federal taking of lands that served essential governmental or public welfare functions. That the Indians’ taken lands provided the social welfare and governmental benefits described bythe Court was evidenced bytheir use within the tribal farming and ranching activities as contemplated bythe 1886 agreement. Onlythe continued existence of those lands, or the just compensation equivalent, would ensure that the Indians would be able to fulfill those treaty-defined goals embodied in that agreement.

The JTAC issued its final report in 1986 and recommended that the secretaryof the interior propose federal legislation on behalf of the Mandan, Hidatsa, and Arikara people that would award just compensation to those Indians for the 1949 taking of the Fort Berthold Indian Reservation. As the JTAC chairman Major General C. Emerson Murry noted, the enactment of just compensation legislation would allow the tribes to reestablish a viable economic base “that was destroyed bythe construction of the [Garrison dam and reservoir].” The amount that Congress should provide as just compensation was based on two valuation formulas, and the JTAC recommended a range of $178.4 million to $411.8 million as just compensation.^[59]

Interior Secretary Hodel declined to accept the JTAC report or implement anyof that commission's recommendations. Instead, the Senate Select Committee on Indian Affairs and the House Interior Subcommittee on Water and Power initiated joint oversight hearings on the JTAC's final report in 1986.^[60] The JTAC's just compensation recommendation was referred bythe Select Committee to the General Accounting Office (GAO) for its analysis and response. The GAO report, issued in 1990, concluded that the JTAC's findings provided a substantial basis for Congress to consider an equitable award of just compensation to the Indians in the amount of $149.5 million.^[61] After lengthy discussions with the various interested groups, such as the National Rural Electric Cooperatives Association, tribal leaders crafted

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an agreement that authorized the deposit of a specified amount of Pick-Sloan hydropower receipts into a treasuryaccount on behalf of the Three Affiliated Tribes.^[62] In addition, the Indians were required to submit an economic and social recoveryplan to the interior secretarythat would govern the future expenditure of the accumulated interest on that account once the principal had reached $149.5 million. President George H. W. Bush threatened to veto the legislation but eventually signed the just compensation act into law in November 1992 as part of a larger water resources development bill.^[63]

CLOSING THE CIRCLE

The Mandan, Hidatsa, and Arikara people have survived much, endured much, along their two-hundred-year journeyfrom 1804 to 2004. Theynow confront a new “disjunctive” moment in their collective life as an Indian people: can they effectively use the $149.5 million in just compensation to reverse historyand recover sociallyand economicallyas an Indian people? Unlike the “one-shot” decision in the 1957 tribal referendum to “percap” the government's compensation for the Garrison taking, the governing statute on the use of the $149.5 million precludes any such self-interested solution. Because onlythe accrued interest from this trust fund will be distributed on an annualized basis to the tribe as a whole, the members of the Three Affiliated Tribes will be forced again and again collectivelyto redecide the best use of the distributed interest income for their economic and social recovery as a tribal people.^[64]

As “repeat players,” the various advocates for competing social and economic recovery projects will be forced to build coalitions and alliances to convince the interior secretary, who holds the trust fund, that a majority of the Indian people support a particular approach to social and economic recoveryon the Fort Berthold Indian Reservation. There is some evidence that such a process is alreadyunder wayamong the Mandan, Hidatsa, and Arikara people. Between 1992 and 1999, the accrued interest on this fund of $149.5 million had accumulated to $33 million. The current tribal business council has proposed a plan for investing $30 million of the monies in a tribal endowment fund that would be managed bya private investment firm. It promises that this investment will earn an expected annual interest rate of 10 percent, compared to a 6.5 percent annual rate of interest those funds would earn if theyare administered bythe federal Office of Trust Funds Management. Under the council's plan, about 50 percent of the endowment's annual income would be reinvested into the corpus of the fund. The remaining 50 percent of the annual income would be made available for tribal programs consistent with the council's proposed tribal social and economic recovery plan.^[65]

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Not surprisingly, the appropriate use of such a large sum of monehas prompted much heated discussion among various tribal constituencies. Because the tribal business council's plan authorizes that bodyto invade the fund's corpus and use up to 25 percent of its principal as securityfor anyborrowing authorized bythe tribal council, manytribal members have greeted such plans with skepticism. Theyquestion whether stepping awayfrom federal trust management of this major tribal resource is a good idea. Some fear that this is a “power-grab” by a potentially corrupt tribal council that would misuse those tribal funds for personal benefit. Other tribal members fear that approval of such a plan would motivate individuals to “get on the council” so theycan invade the proposed endowment fund for their own pet projects.^[66] Far from dismaying anyone, such controversy represents a catalytic moment for the Mandan, Hidatsa, and Arikara people as theystrive to reclaim responsibility for their economic and social futures. It is a daunting task but onlythese Indian peoples can successfully reinternalize those values, needs, and circumstances that brought them together originallyas the Three Affiliated Tribes. Indeed, the $149.5 million serves as the crude surrogate for these values as the Indian peoples seek to reconstitute their society so as to address their social and economic recovery needs.^[67]

Ever since their encounter with Lewis and Clark in 1804, the Mandan, Hidatsa, and Arikara people have been enfolded into a non-Indian historical process that theymaynow have an opportunityto escape. These people's conscious assumption of their economic and social recoverytask will lift them outside of dependency. And because dependencyhas enveloped them for so long, theywill have to expend a great deal of collective social and emotional energyto escape. Bypenetrating the veil of their burdensome American historical experience, the Mandan, Hidatsa, and Arikara people can restore their distinctive character within a radically resituated Fort Berthold Indian Reservation. Such conscious self-exertion marks the classic strategyof the Indian peoples in carving out a place for themselves within an oftentimes hostile American society. It is the young Black Elk's vision:

And as I looked and wept, I saw that there stood on the north side of the Starving camp a Sacred man who was painted red all over his body, and he held a spear as he walked into the center of his people, and there he laid down and rolled. And when he got up it was a fat bison standing there, and where the bison stood a Sacred herb sprang right up where the tree had been in the center of the nation's hoop. The herb grew and bore four blossoms on a single stem while I was looking—a blue, white, a scarlet and a yellow—and the bright rays of these flashed to the heavens.^[68]

As the Mandan, Hidatsa, and Arikara people embark on their path of social and economic recovery, theymust confront the high psychic and social

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costs imposed bythe accumulated effects of their historical experience. Cross-cultural psychologists have diagnosed a syndrome called “intergenerational post traumatic stress disorder” that reflects the accumulated adverse effects on Indian peoples of their two-hundred-year experience with United States. It surfaced in a persistent and chronic “spiritual injury” when “the psyche of the community recognized the wounding of the community.” A wound to the communitywas a wound to that community's psyche: harmonyhad become discord and the community's unconscious perception was that the world was unfriendlyand hostile. The problems that were manifested and verbalized were merelysymptoms of a deeper wound—the soul wound.^[69] To convert $149.5 million into an effective therapyrequires the development of strategies that will directlyaddress the assorted maladies that evidence the “soul wound” to the Mandan, Hidatsa, and Arikara peoples. The major task for the Three Affiliated Tribes will be to use these funds in a deliberative, collective effort to “break” the intergenerational transmission of societal trauma.

Repeated and necessary confrontations among powerful tribal constituencies in constructing effective economic and social recovery strategies will eventually result in a new constitution for the Three Affiliated Tribes. In turn the new constitution will reconnect these contesting tribal constituencies and renew their latent and emerging values. At the pragmatic and instrumental level, these confrontations will distill these values and demands into socially accountable political expression, and in turn, effective and responsive institutions of governance. At the societal level, these confrontations will reembed the tribal government in a renewed tribal identity. Only through such a reconstitutionalizing effort can the tribes reclaim their own institutions from an imposed Americanized identityunder John Collier's IRA and federal Indian common law.^[70]

I offer onlygeneral guidelines for this task; to do more would undulyintrude into the free sovereign choice of these Indian peoples. My recommendations draw upon Amartya Sen's recent constructive approach to social governance as the essential means for realizing human freedom. First, such a tribal constitution would consciously promote the full development of the human capabilities of individual tribal members byaccording them appropriate opportunities for meaningful social and political participation. Second, such a tribal constitution would explicitly promote the growth of traditional tribal constituencies and encourage the express articulation of their interests and values in a socially comprehensible manner. Third, such a tribal constitution would require the ruling leadership to demonstrate that it “hears” their peoples’ demands and needs by responding in a politically and socially accountable manner.^[71]

Two additional background requirements provide the context for the “working out” of this new tribal constitution. First, these Indian people must

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consciously reject what the philosopher Mary Midgley calls the paralyzing “menace of fatalism.” This fatalism is embodied in the prevailing American view that innate genetic, cultural, or biological factors have doomed the contemporary Indian societies to decline and eventual disappearance. Many Indian people, including some on the Fort Berthold Indian Reservation, have “bought into” this view. Onlybyrejecting such fatalism about their future as an Indian people will the Mandan, Hidatsa, and Arikara people avoid such a paralysis of action.^[72]

Second, these Indian people must adopt the principle of “enoughness” as expressing their confidence that theycan effectivelyuse their existing material and social resources as theydefine and meet their pressing human needs.^[73] Onlybyagreeing that $149.5 million can be subdivided into enough societal resources—money, food, power, prestige, and authority—to meet peoples’ needs in a socially accountable manner, will the constitutionalizing process succeed. This will require future tribal councils to prudently “grow” this $149.5 million in a manner that creates a sustainable “steady-state” economy so as to ensure the fair and equitable distribution of their resources in a socially accountable manner.^[74]

The foundational human factors of water, disease, and words have fundamentally conditioned the contemporary “tribal life worlds” of the Three Affiliated Tribes. If Lewis and Clark were to revisit these Indian people today they likely would not fully grasp or appreciate the impact these factors have wrought on the contemporary Mandan, Hidatsa, and Arikara people. But if their return visit occurs two hundred years from today, I believe that theywill encounter an Indian people who have reclaimed in large measure their heritage of social and economic vibrancyalong the Missouri River. The exact contours of such a recreation must be left to the working out of their new tribal constitution and their corresponding mode of selfgovernance. This much is clear: it is up to the Mandan, Hidatsa, and Arikara people to continue their sacred journeyupriver as best theycan. If historis anyguide, great dangers and risks hedge this future journey. But, from 1804 to 2004, the Indian people have encountered and survived manythings. This fact alone will likelygive them the needed confidence to return to that journey, from which theywere only temporarily deflected byan over bearing American historical experience.

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