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2. Legacies

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The Lewis and Clark expedition is almost universally described as the greatest and most successful exercise in overland exploration ever attempted. Even today, it is hard to conceive how one might organize thirty-five to forty-five individuals to cross the continent by foot, horseback, and small watercraft, then return by similar routes and modes of travel. Trying to accomplish the same feat in the early nineteenth century, and lose only one person to an inoperable case of appendicitis, truly boggles the imagination. Of course, the completion of this transcontinental journey depended on the assistance of Native peoples—who themselves were quite capable of covering vast distances in a relatively short time. The success of the expedition was not a simple matter of miles traveled, mountains crossed, or mosquitoes tolerated, nor should its significance be assessed in terms of persistence or assistance. Rather, the successes of Lewis and Clark, as with any enterprise of similar magnitude, are best measured in terms of their historical consequences.

The first two essays in this section, both by legal scholars, examine the immediate and ongoing legacies of Thomas Jefferson's Corps of Discovery. The consequences of the Louisiana Purchase and the subsequent expedition of Lewis and Clark had farreaching constitutional implications that raised fundamental questions about slavery, the legality of territorial expansion, and the nature of the federal public domain. The explicit objectives of the expedition also left a series of disturbing legacies in its wake. For the Mandan, Hidatsa, and Arikara peoples of the upper Missouri River, who occupied a central place in the commercial, diplomatic, and geographic designs of Jefferson and the two captains, the past two centuries have been an epic struggle to regain the strength and autonomy they possessed at the time of their encounter with Lewis and Clark. Together, these two essays force us to broaden the contexts in which we understand the expedition and remind us of its direct and lasting significance on subsequent generations. The third essay extends our understanding of the significance of the expedition in terms that are too easily forgotten. To the degree that Lewis and Clark set out on a “literary enterprise,” scholars have largely regarded their efforts as a failure—yet the expedition had an immediate and lasting effect within learned circles.

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4. The Louisiana Purchase and
the Lewis & Clark Expedition

A Constitutional Moment?

Peter A. Appel

“Scarcely any political question arises in the United States,” noted Alexis de Tocqueville, “that is not resolved, sooner or later, into a judicial question.”^[1] If Tocqueville is correct, then the Lewis and Clark expedition—in some ways, the culmination of the Louisiana Purchase—ought to be a constant reference in the case law of American courts. Instead, the legal researcher combing through Westlaw or Lexis unearths such mundane and irrelevant matters as cases involving Lewis and Clark College in Portland, Oregon, Lewis and Clark County, Montana, a recent decision of the Supreme Court entitled Lewis v. Lewis and Clark Marine, Inc., and a series of cases involving a boat captain named Lewis N. Clark.^[2] Even the important cases, involving Indian tribes that had their first contact with the government of the fledgling United States through the expedition, treat the expedition more in passing reference.^[3] The case most directly involving the expedition itself concerns a dispute over the fate of Clark's diary.^[4] These cases surely are not the resolution of great political matters by the judiciary.

This lack of attention in the reported decisions is unusual, given the sweeping claims made for the impact of the Louisiana Purchase on the legal system. For Henry Adams, the Louisiana Purchase was the absolute beginning of nineteenth-century politics; it was “in historical importance next to the Declaration of Independence and the adoption of the Constitution—events of which it was the logical outcome.”^[5] Everett Sommerville Brown concluded in 1917 that the purchase “serves as the corner stone for all interpretations of the constitutional right of the United States to acquire and govern foreign territory; and such acquisitions have been one of the most significant features in the history of the United States.”^[6] Frederick Jackson Turner agreed with Adams and argued that “[w]hen the whole sweep of American history and the present tendencies of our life are taken

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into view, it would be possible to argue that the doctrines of the Louisiana Purchase were farther-reaching in their effect upon the Constitution than even the measures of Alexander Hamilton or the decisions of John Marshall.”^[7] The great constitutional thinker and judge Thomas Cooley argued that, after the Louisiana Purchase, congressional debate over whether the federal government had limited powers or not died down.^[8] More recently, Merrill Peterson wrote that the ratification of the treaty with France worked “a revolution in the Constitution. A momentous act of Jeffersonian statesmanship unhinged the Jeffersonian dogmas and opened, so far a precedent might control, the boundless field of power so much feared.”^[9] (Not all writers are quite so gushing in describing the constitutional effects of the Louisiana Purchase. For example, one modern critic allows that the Louisiana Purchase “is a good example of early constitutional change,” but only as “constitutional change on a relatively small scale.”)^[10]

But scholarly and historical claims about the constitutional importance of Jefferson's purchase are lacking in three important areas. First, for the most part they do not identify exactly how the Constitution changed as a result of the Louisiana Purchase. To be sure, the reach of the federal government expanded after the Louisiana Purchase, but to what did that reach extend? Did the federal government now possess power over local (sometimes called municipal) issues, or did its expanded power still have well-defined limits? Second, to the extent that writers like Brown do identify how the federal government's power expanded as a result of the Louisiana Purchase, few of these historians attempt to spell out the precise effect that the Louisiana Purchase had on the inner workings of the federal government. Was the expanded power equally divided among the three branches? Or was it largely vested in one or two? Third, and finally, the past argument concerning the Louisiana Purchase ignores the signal event that made the purchase truly part of the United States, namely the Lewis and Clark expedition. The instructions that the explorers received on setting out and the public adulation that they received on their return complete the story of the constitutional effects of the Louisiana Purchase. The instructions directed the explorers not only to go beyond the physical boundaries of the United States but also to investigate matters beyond the powers of the federal government.

One solution to these inquiries, and one that allows us to sidestep the purely judicial question, may reside in the work of the constitutional scholar Bruce Ackerman. Ackerman theorizes that the Constitution can change fundamentally through two means. The first way is obvious to anyone who has had high school civics, namely the formal means of amendment contained in article 5 of the Constitution, where two-thirds of each house of Congress proposes an amendment and three-fourths of the states ratify that change. The other means of achieving change in the fundamental law is

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through what Ackerman has named a “constitutional moment.”^[11] Ackerman's concept of the “constitutional moment” looks for a pattern of interchange between the People and their government, and among the different branches of government, to arrive at an altered understanding of the constitutional structure that courts eventually invest with the force of law.^[12] These states of interchange include signaling, where the People make their representatives aware of the need for constitutional change; proposing, in which the desired change takes concrete form; mobilized deliberating, where the citizenry debates proposals that embody transformative change; and finally codifying by the courts, in reformed legal doctrine.^[13]

Some scholars have criticized Ackerman's theory about the development of constitutional law, arguing that its flexibility makes it verge on the tautological. Any historical event that has the qualities Ackerman defines is a constitutional moment; a historical event that appears to have these qualities but does not result in change—or does not result in change that Ackerman would approve of—is a failed constitutional moment.^[14] Others urge that, as a normative matter, courts should not take it upon themselves to figure out when they are in the midst of a constitutional moment and can start reshaping and codifying new constitutional principles. Rather, argues this school, courts should rely on more traditional sources of legal authority such as text, original intent, constitutional structure, and precedent.^[15]

Regardless of the merits of Ackerman's general theory, his concept of a constitutional moment, at least in a looser form than Ackerman might allow, aptly conjures up a phenomenon in constitutional law, namely the establishment of precedent through means other than a change in the text of the constitution, or even a decision of a court embracing a particular interpretation of the preexisting text. The Supreme Court has recognized that a consistent pattern of accommodation between the legislative and executive branches can eventually develop into constitutional doctrine that the courts will apply in future cases.^[16] This essay uses this expanded notion of a constitutional moment to explain how the Louisiana Purchase and the subsequent Lewis and Clark expedition affected American governance under the Constitution. These two intertwined events altered received understandings about the powers of the federal government generally and the power of the executive branch within that government, especially over the acquisition and management of public lands. One can then trace the effects of these changes through decisions of the courts concerning public lands. Although these decisions might not make up the great political cases of all time, they nevertheless shaped the governance and physical appearance of the nation.

To approach this subject, I first address a basic question: why did Jefferson and his allies in Congress believe that the Louisiana Purchase was constitutionally suspect? An answer to this question requires a background in

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the history of the United States government's acquiring and governing land in the West. I then turn to the debates over the Louisiana Purchase and the outcome of that debate from a constitutional perspective, meaning the immediate effects of the purchase as a precedent. Then, after looking at how the Lewis and Clark expedition cemented that understanding, I identify traces of these two intertwined events in modern jurisprudence concerning federally owned lands. The basic constitutional principles arising out of the Louisiana Purchase and the Lewis and Clark expedition still exist, if one looks for them carefully.

The general question of expansion of the United States beyond the Mississippi River did not occupy much of the attention of the founders at the constitutional convention. This oversight did not necessarily come from a lack of interest in the West or of expansionist intent. Indeed, the topic of actually acquiring lands beyond the Mississippi occupied the thoughts of some of the founders. But the new nation faced larger hurdles to overcome before tackling westward expansion beyond the Mississippi. For example, the free navigation of the Mississippi greatly interested the South and the West, and the efforts by John Jay to negotiate with the Spanish to limit free navigation of the river by Americans greatly distressed these interests. The controversy over free navigation of the Mississippi—which, in turn, led to the Louisiana Purchase—almost led to a split in the fragile union.^[17] Disputes over land claims make up a surprising number of the debates over the Constitution in the late eighteenth and early nineteenth century.

Perhaps the constitutional convention did not bother itself with the lands west of the Mississippi because the convention had to grapple with the far more immediate question about the western land claims. Seven of the states (Connecticut, Georgia, Massachusetts, New York, Virginia, and the Carolinas) claimed grants of land that extended far beyond their present boundaries, with some states pointing to crown charters granting them lands as far as the South Sea. The states without such claims (Delaware, Maryland, New Hampshire, New Jersey, Pennsylvania, and Rhode Island and Providence Plantations) were understandably envious of their betterendowed neighbors. The controversy over the western lands formed one of the most fractious issues facing the country during the Revolutionary War through the period of the Articles of Confederation. The dispute loomed so large that for two years Maryland refused to adopt the Articles of Confederation.

The nonlanded states objected to the landed states’ claims for a number of reasons, ranging from principles to politics to greed. As a matter of principle, the nonlanded states argued that all of the states had fought to liberate these lands from the British, and all should therefore benefit from their

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disposition by the nation as a whole. States without western land claims saw the western lands as their just, shared reward for services rendered in the revolution. After all, observed New Jersey in its consideration of the proposed articles of confederation, “It was ever the confident expectation of this State, that the benefits derived from a successful contest, were to be general and proportionate; and that the property of the common enemy, falling in consequence of a prosperous issue of the war, would belong to the United States, and be appropriated to their use.”^[18] Although New Jersey believed that the state ceding the territory should retain political jurisdiction over it, all of the states “have fought and bled for” the western territory “in proportion to their respective abilities, and therefore the reward ought not to be predilectionally distributed.”^[19] Rhode Island similarly proposed that the United States should receive ownership of the western lands with the landed states retaining political jurisdiction over them.^[20]

Maryland's objections to the Articles of Confederation went beyond those of New Jersey and Rhode Island, because Maryland urged that the states with western land claims should cede both the ownership of and political jurisdiction over these lands. In Maryland's view, the western lands, “if wrested from the common enemy by the blood and treasure of the thirteen states, should be considered as a common property, subject to be parcelled out by Congress into free, convenient and independent governments, in such manner and at such times as the wisdom of that assembly shall hereafter direct.”^[21] Maryland predicted that if states like Virginia retained their western lands, they could easily pay off their share of the collective war debt through land sales, and, because landless states like Maryland would have only the option of raising ruinous taxes to satisfy their war debts, overtaxed Marylanders would emigrate to Virginia, thus depopulating Maryland. In addition to its stand based on principle and politics, Maryland had another motive in demanding that Virginia and the other states cede their western lands: prominent Marylanders had invested in land speculation companies that had made claims in Virginia's western territory, and resolution of the conflicting claims in Congress held out the best hope for these speculators to succeed in their investments. Virginia and New York eventually ceded their lands to the United States, and Maryland signed on to the Articles of Confederation (although pressure from the French government may have forced Maryland's hand).^[22]

As adopted, the Articles of Confederation did not expressly grant the United States power to acquire or manage any land, or to admit any new colonies to the confederation without the concurrence of nine states (although Canada could join if it agreed to the Articles of Confederation). The articles were therefore poorly adapted for the national government to do the work cut out for it. Virginia and New York had already ceded their land claims and the other states were expected to by the time that Maryland

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acceded to them. The general view held by Maryland that United States should own the ceded lands as a common fund and exercise political jurisdiction over them won the day. Despite the lack of express authority in the articles, Congress enacted three important statutes to govern the western lands before the constitutional convention, one of which was the Northwest Ordinance of 1787. That ordinance framed a system for the establishment of territorial governments and, among other provisions, banned slavery in the Northwest Territory. In urging subsequent adoption of the Constitution, Madison would later point to these acts as a sign of the weakness of the Articles of Confederation. Congress enacted all of this legislation, Madison complained, “without the least color of constitutional authority.”^[23]

The constitutional convention of 1787 met to address the general lack of power in the federal government, including an express lack of power over the western lands. At each turn in the proceedings, the constitutional convention broadened federal authority over these lands and did not foreclose the possibility that the United States might acquire territory beyond the Mississippi. For example, the initial drafts concerning the authority of the federal government over the territories and other property of the United States vested in the federal government only the power to “dispose of the unappropriated lands of the United States.”^[24] But the Constitution, as adopted, vests in Congress the significantly greater power “to dispose of and make needful Rules and Regulations respecting the Territory and other Property belonging to the United States.”^[25] Similarly, the original drafts concerning the authority of Congress to admit new states concerned only those “lawfully arising within the limits of the United States” and expected that Congress would form these new states either by joining two existing states or carving a new state out of an existing state.^[26] The convention considered a motion that would vest Congress with the power “to erect new States within as well as without the territory claimed by the several States,”^[27] but it passed over this proposal to adopt language much like the present language concerning the admission of new states, which is silent as to whether these new states must be within the boundaries that the United States then claimed.^[28]

Thus, the constitutional convention worded the grants of authority to Congress over the territories and new states broadly when it confronted the issues of territorial governance, regulation of federal property, and the admission of new states. In addition to these direct grants of authority to Congress, the Constitution also granted power to the federal government to acquire territory, at least by implication. In article I, the Constitution vested in Congress the power to declare war.^[29] Second, article II of the Constitution vested in the president the power to make treaties with the advice and consent of two-thirds of the senate, and article VI made the Constitution and treaties made under its authority “the supreme Law of the Land.”^[30] The

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common understanding at the time of the ratification of the Constitution was that the United States, as a corporate whole, constituted the nationstate for purposes of international law, and that the individual states (such as New York and Georgia) ceded their role as potential nationstates to the United States. Settled principles of international law at the time recognized that nation-states could transfer territories in several ways, including conquest (war) and voluntary cession (treaty).

Stopping the story here could give support to the argument that a constitutional moment had occurred. The Constitution, unlike the Articles, granted Congress express authority to manage the territories and other property of the United States. This authority, wrote Madison, was of paramount importance because Congress needed it, and, if it did not have it, it would grab it, just as Congress did when it enacted the Northwest Ordinance “without the least color of constitutional authority.” Not that Madison disagreed with the content of the Northwest Ordinance, but he objected to the process. Forcing the legislature to act when it lacked express authority to do so—vesting in the United States the western land claims but not granting it the power to legislate for them—led inevitably to “dissolution or usurpation.”^[31] Ackerman has argued that the adoption of the Constitution in 1787 was the first of three important constitutional moments.^[32] If he is correct, then this first constitutional moment also happened to involve the ownership and management of the territories and other property of the United States. The Constitution established Maryland's objection to the articles as the principle that would continue to govern the territories and federal lands: these lands were to serve as a common fund to be used by the United States for the good of all the states. This reading, while plausible, would be simplistic because one of the first large constitutional questions that faced the new nation was the acquisition and governance of more territory.

With the determination that the United States would dispose of the western lands and govern it while these new lands developed into political units worthy of statehood, thoughts could turn to the possibility of American dominion over more of the continent. In the earliest discussions of the powers of the federal government, the question of its authority to acquire lands outside of the boundaries of the original states arose in somewhat strange circumstances, namely the creation of the first Bank of the United States. When George Washington considered the first bill to incorporate the Bank of the United States in 1791, he solicited opinions from many members of his cabinet, notably Alexander Hamilton and Thomas Jefferson. Hamilton—Washington's secretary of the treasury and a staunch supporter of a strong national government—submitted his opinion that the federal government had the authority to charter a corporation to further national

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ends. There, Hamilton expressly considered the possibility that the United States would acquire territory through war and concluded that “if the United States should make a conquest of any of the territories of its neighbors, they would possess sovereign jurisdiction over the conquered territory. This would rather be a result from the whole mass of the powers of the Government, and from the nature of political society, than a consequence of either of the powers specially enumerated.”^[33]

Before Hamilton wrote his opinion, Jefferson—Washington's secretary of state and an advocate of limited government—weighed in on the bank and objected to the expansion of federal powers that such an institution would represent. He did not, as Hamilton did, raise the question of acquiring new territory outside United States boundaries as a test of his doctrine; he simply urged that the proposed bank exceeded the powers granted to Congress in the Constitution. “To take a single step beyond the boundaries thus specially drawn around the powers of Congress,” warned Jefferson, “is to take possession of a boundless field of power, no longer susceptible of any definition.”^[34] How this view would play out when Jefferson confronted the actual possibility of acquiring more territory for the United States as president lay several years in the future.

Unlike the plan to acquire the western lands from the states as a common fund, any plans that the United States had toward westward expansion obviously and necessarily involved the claims of other countries, particularly France and Spain. The Louisiana Territory had belonged to the French at the time of the French and Indian War, and France had ceded its interest in it to Spain in the 1762 Treaty of Paris. After the end of the Revolutionary War and the ratification of the Constitution, France reacquired its interest in the Louisiana Territory through the October 1800 Treaty of Ildefonso. This switch in ownership complicated matters for American politics both externally and internally. Externally, the renewed presence of France in Louisiana made things difficult for the expansion of the United States. Although Spain was an easy foe, Bonaparte's France was a major world power. In a war against France, the United States might very well lose. This provided a reason for the United States to acquire territory at the mouth of the Mississippi.

The internal dispute involving free navigation of the Mississippi reached a head as Spain closed the dutyfree cargo deposit that American ships used in New Orleans, a move that arguably violated an earlier treaty that the United States had negotiated with Spain. Whether Spain took this step as a deliberate move to combat American smuggling or whether, as the Jefferson administration portrayed it, the closure of the cargo deposit was simply the unauthorized action of a Spanish local official is immaterial.^[35] Whatever its origin—and modern historians believe that Madrid took this action deliberately—the loss of this important transshipment point raised hackles in

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the South and West and thus created a potential crisis for the administration. Robert Livingston, the representative of the United States in France at the time, did not inspire much confidence in the Jefferson administration. Livingston had been in France for almost a year before Spain closed New Orleans to American goods and had made no progress on acquiring two essential areas, namely New Orleans and a portion of the Floridas. Members of Congress from the West and South were up in arms about losing their transshipment point in 1802, and members of the Federalist Party used the disruption to try to persuade citizens of these states to form a new allegiance with the Federalists. These forces also called for the United States to take steps toward war if negotiations with France did not succeed. Senator James Ross of Pennsylvania was particularly hawkish toward France and Spain. “Why not expel the wrongdoers?” he asked. “Plant yourselves on the river, fortify the banks, invite those who have an interest at stake to defend it; do justice to yourselves when your adversaries deny it; and leave the event to Him who controls the fate of nations.”^[36] To placate the southerners and westerners, Jefferson appointed James Monroe—a Virginian with investments in the West—as minister extraordinary and plenipotentiary to France to negotiate acquisition of New Orleans and the Floridas. By the time he arrived in Paris, Napoleon had already decided to sell Louisiana to the United States. Napoleon concluded that France could not defend Louisiana from invasion, based in part upon a failed attempt to repress a slave revolt at Saint-Domingue in the Caribbean. The saber-rattling of some members of Congress may well have solidified his impression of an American threat.^[37]

At the time that Monroe and Livingston concluded the treaty with France that sold France's interest in Louisiana to the United States for $12 million, the constitutional law on this subject was not entirely clear to some advocates at the time. Hamilton had advocated territorial expansion, but in a different setting. In other words, the purchase of Louisiana might be unconstitutional. National politics also confused the constitutional issue. The Federalists, seeking to embarrass Jefferson in the West and South, had called for the United States to acquire a small part of Louisiana by force. Now the United States had acquired all of Louisiana through treaty. Would Jefferson's opponents reverse their usual doctrinal position and become strict constructionists to oppose this acquisition? In the meantime, Jefferson's envoys had acquired much more from Bonaparte than Jefferson had sent them for, and Jefferson had argued against suchbroad increases infederal power such as the bank (although his opinion on the bank might not have been widely known at the time).^[38] If creating the bank was too broad a use of federal power, surely buying Louisiana was too. Would Jefferson's desire to acquire this territory and to send an expedition through it overcome his strict constructionist principles? Was a constitutional moment about to occur?

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Jefferson received news of the Louisiana Purchase on 3 July 1803, and the newspapers for the most part loudly proclaimed it as a victory. Some Federalist newspapers raised questions about the extent of the purchase, but for the most part, even they were supportive (although they argued that the Jefferson administration deserved no credit for the purchase). The Republican newspapers were unstinting in their praise, hailing the coincidental date of the news as the greatest news since the Declaration of Independence itself.^[39]

The treaty called for ratification by 30 October 1803. Thus, Jefferson had to reconvene Congress to ratify the treaty and to appropriate the money necessary to implement it. Over the course of that summer and fall, then, Jefferson had ample time to think about the constitutionality of the purchase. The contemporary written record in Jefferson's letters suggests that Jefferson believed the Louisiana Purchase dubious at the very least and quite possibly unconstitutional. Two issues arose from the purchase, the question of acquisition (buying the land) and the question of incorporation (making it part of the United States). Jefferson apparently believed that acquisition of territory might pass strict constitutional muster, but incorporation of that territory into the United States presented a different problem. As he wrote to his secretary of the treasury, Albert Gallatin, in January 1803, “there is no constitutional difficulty as to the acquisition of territory, and whether, when acquired, it may be taken into the Union by the Constitution as it now stands, will become a question of expediency.” But Jefferson thought that relying on principles of expediency could prove dangerous, and thus he thought it would be “safer not to permit the enlargement of the Union but by amendment of the Constitution.”^[40] After receiving news of the treaty, Jefferson set to work in the summer of 1803 drafting two different possible constitutional amendments that would empower the United States to acquire and incorporate Louisiana. Both recognized the acquisition of Louisiana after the fact and limited the ability of the United States to admit new states from a zone north of the 31st parallel. The second laid out more explicitly the rights and duties of the citizens to be admitted to the United States.^[41]

Jefferson's letters after he learned of the treaty also reveal his constitutional qualms about acquiring and incorporating Louisiana. In a letter to John Dickinson, Jefferson wrote, “The general government has no powers but such as the constitution has given it; and it has not given it a power of holding foreign territory, & still less of incorporating it into the Union.”^[42] An exchange of letters between Jefferson and Virginia Senator Wilson Cary Nicholas also shows Jefferson's belief that strict construction of the Constitution should prevail over expediency. Nicholas urged Jefferson not to make any opinion of his on the unconstitutionality of the treaty known, for it would either scuttle the treaty or scuttle the party. “I shou’d think it very

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probable,” wrote Nicholas, “if the treaty shou’d be by you declared to exceed the constitutional authority of the treaty making power, that it would be rejected by the Senate, and if that should not happen, that great use wou’d be made with the people, of a wilful breach of the constitution.”^[43] In response to Nicholas, Jefferson wrote a classic defense of strict construction of the Constitution.

When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, when it is found necessary, than to assume by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.^[44]

These words, read alone, would make any strict constructionist proud.

In the end, however, the depth of Jefferson's constitutional objections to the Louisiana Purchase remains uncertain. Some of Jefferson's letters show his wavering. In his letter to John Dickinson, Jefferson stated his belief that a constitutional amendment was necessary. “In the meantime,” Jefferson conceded, “we must ratify & pay our money, as we have treated, for a thing beyond the constitution, and rely on the nation to sanction an act done for its great good, without its previous authority.”^[45] In his letter to Nicholas urging that the Constitution should not be made “blank paper by construction,” Jefferson yielded to expediency. “If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects.”^[46] Jefferson also believed that Congress should do whatever it judged best, “with as little debate as possible, and particularly so far as respects the constitutional difficulty.”^[47] Similarly, Jefferson had earlier written to Senator John Breckenridge of Kentucky that although the “Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union,” nevertheless the overall good of the country justified the purchase.

It is the case of a guardian, investing the money of his ward in purchasing an adjacent territory; and saying to him when of age, I did this for your good; I pretend to no right to bind you: you may disavow me, and I must get out of the scrape as I can: I thought it my duty to risk myself for you. But we shall not be disavowed by the nation, and their act of indemnity will confirm and not weaken the Constitution, by more strongly marking out its lines.^[48]

Ackerman's theory of constitutional change echoes this notion: Jefferson advocated that the representatives of the People take a stand that incorporates what lies beyond the accepted bounds of the Constitution, and present it to the People for their ratification.

Furthermore, many of Jefferson's actions stand in stark contrast to his

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written statements expressing concern and doubt over the constitutionality of the purchase. After all, Jefferson instructed Livingston to gain some French territory to bolster American shipping interests on the Mississippi, and he sent Monroe to France to help in this task. What must have surprised Jefferson about Bonaparte's eventual offer was not the thought of the United States annexing land so much as the amount of land that the French ceded to the United States. Although he set about drafting possible constitutional amendments to add Louisiana to the United States, Jefferson never submitted them to Congress. In fact, Jefferson called Congress to convene and deliberate over ratifying the treaty with France on 17 October 1803, when ratification had to occur by 30 October 1803, leaving just less than two weeks for the Senate to ratify the treaty and for both houses to enact a constitutional amendment (should they determine one was necessary). Of course, in the days before fax machines and New York to Washington shuttles, communication and travel time between the farflung states and the capital limited the amount of time that Jefferson could convene Congress. Nevertheless, Jefferson used the time before Congress convened not to prepare an amendment so much as to shore up support for the purchase among his political allies and to quell interest in the constitutional questions it raised.

Moreover, and in some ways more significantly, Jefferson organized the Lewis and Clark expedition before the United States had even acquired the Louisiana Territory from France, and the reasons he gave to justify the expedition changed for each audience. To the Spanish authorities who still claimed the territory, Jefferson said that the planned expedition was scientific and literary in nature. These reasons may have placated those authorities, but strictly read the Constitution does not vest any authority to promote science or literature in the federal government with the narrow exception of the clause that empowers Congress to create copyrights and patents.^[49] In his secret message to Congress of 18 January 1803—still months before the United States had actually acquired the land that Lewis and Clark would explore—Jefferson stressed that the expedition would serve to further commerce through navigation of rivers and promotion of the fur trade. “The interests of commerce place the principal object within the Constitutional powers and care of Congress,” argued Jefferson, “and that it should incidentally advance the geographic knowledge of our continent, cannot but be an additional gratification.”^[50] Again, even with this happy coincidence, strictly read, the Constitution does not empower Congress to promote interstate and foreign commerce but only to “regulate” it. Even so, Dumas Malone recognized that Jefferson may have made this shift in emphasis because “he doubted the constitutional authority of that body [Congress] to make an appropriation for a ‘literary expedition.’”^[51]

Finally, in his instructions to Lewis, issued after the United States had actually

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acquired some of the territory to be explored, Jefferson emphasized three missions. The first two—exploring the Missouri to discover whether it provided a transcontinental route for commerce and exploring the potential for commerce with the Indian tribes Lewis and Clark met along the way—arguably were linked to powers granted to the federal government in the Constitution, namely the power to regulate commerce with foreign nations and with Indian tribes. The third purpose of the expedition—collecting data on the soil, vegetation, and animals discovered “especially those not of the U.S.”^[52]—had no direct connection with any express power of the federal government. Arguably, exploring the land that the United States bought from France would be an exercise of the government's power to manage its property. But Jefferson's mission expressly directed the Corps of Discovery to exceed even the bounds of the United States with the Louisiana Purchase. Exploring the territory of another country for its soil, vegetation, and animals has no obvious connection to an express power of the federal government. Indeed, this instruction is mystifying until one recalls Jefferson's wide-ranging interests in science and nature. Jefferson wanted to know about latitudes and longitudes of rivers, the nature of soil, vegetation, and animals, the types of Indians found in the territory, and all of this information unrelated to the regulation of commerce because he wanted to know the country. Jefferson was, after all, the author of the Notes on the State of Virginia, in which he cataloged the different flora and fauna of his state. That analysis of Virginia can be seen as a template for the later survey he envisioned of the western lands. If there was a mastodon living in the West, Jefferson wanted to know everything about it, and not just how it could be used in the regulation of commerce.^[53]

In sum, although Jefferson advocated strict construction and although the politics of the day may have driven Jefferson to stake out an even stricter constitutional view than he might otherwise—after all, Hamilton could not have been right about the bank—Jefferson's keen scientific and literary interests pulled him in the opposite direction. If actions speak louder than words, Jefferson's actions shout down his protests about the constitutionality of the Louisiana Purchase.^[54]

In the context of modern constitutional law, Jefferson's quandary is hard to understand. Jefferson and the advocates of the Louisiana Purchase had all of the tools at their disposal that a modern constitutional lawyer would find necessary to justify the Louisiana Purchase, namely the text of the Constitution and the record of the debates at the constitutional convention. First, the Constitution vested in the national government the power to declare war and the power to conclude treaties. Jefferson himself recognized this power. Although one could argue that the disposal of new territory is domestic and would therefore fall within the power of individual states under this theory, the acquisition of territory from another nation is clearly

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something that common practice would place in the realm of the nation. Indeed, Jefferson's attorney general, Levi Lincoln, suggested to Jefferson a plan along those lines to obviate any constitutional concern, namely that the land obtained through the Louisiana Purchase would be attached to existing states, thereby preventing the need of a constitutional amendment to incorporate the territory into the United States. But Albert Gallatin, Jefferson's secretary of the treasury, argued that such a tortured process was unnecessary. Thus, even at the time, many recognized the constitutionality of the purchase based on the text of the Constitution and the structure of government.

Second, the record of the debates at the constitutional convention showed that the founders expected the United States to have extensive power over its property, and that it had to have the authority to acquire more. After all, Georgia and North Carolina did not cede their western lands until after the ratification of the Constitution. Because the participants to the constitutional convention all expected these cessions eventually, the federal government must have had the authority to acquire and incorporate new territory. To be fair to the strict constructionists of Jefferson's day, though, this expectation may not have uniformly extended to territory outside the agreed boundaries of the United States. Moreover, Gouveneur Morris, who drafted the language in the Constitution granting Congress the power over the territories, later wrote that he believed it did not allow Congress to admit new territory as potential states but only as provinces with “no voice in our councils.”^[55] Placed in context, it is clear that Morris did not believe that his views represented those of the convention as a whole.

Nevertheless, the constitutional lawyer of today would likely dismiss Morris's sentiments because they were not contemporaneous with the drafting of the Constitution. But these are the arguments of today's constitutional lawyer. Even if they were persuasive to the party of broad construction, times had changed, and now the Republicans, who had won their ascendancy in part on the principle of strict construction, controlled Congress. The historian dismisses Morris's argument because it so clearly had its basis in the politics of the moment. When Morris lodged his objection to the incorporation of Louisiana into the United States, Congress debated the steps of the Louisiana Purchase, a debate marked by how times had changed. The expansionist party advocated express constitutional authority and against Jefferson's treaty with France, and the party associated with strict construction advocated, of all things, expedience.

The debate in the Senate over ratification of the treaty itself went quickly, and with few hitches. When the act to carry the treaty into effect and to appropriate the money to pay France hit the House, the Federalists immediately brought up the constitutional question, asking where in the Constitution the president and Senate obtained the authority to expand the

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boundaries of the United States through the treaty-making power. As Jefferson's allies pointed out, however, this argument came from the same people who had advocated going to war to seize territory from the French. Similar issues came up at each step, led by the Federalists. In the end, most of the measures required to acquire Louisiana, incorporate it into the United States, and establish a provisional government for it, passed by partyline votes.^[56]

Lewis and Clark set out on their journey and returned to a great reception. “Never did a similar event excite more joy through the United States,” Jefferson later wrote. “The humblest of its citizens had taken a lively interest in the issue of this journey, and looked forward with impatience for the information it would furnish.”^[57] Congress ratified the expedition by awarding the soldiers double pay and homestead allowances from public lands.

If one looked for the close of a constitutional moment, this ratification of the expedition after loud acclaim by the people might serve as the final step of Ackerman's process. For most recitations of the constitutional history and impact of the Louisiana Purchase, the story ends there, or even a little sooner. Jefferson and his Republican allies swallowed their principles, accepted the expansion of the United States through the vast Louisiana Purchase for the sake of expediency, and thereby established precedent for future expansion. To the eyes of a constitutional scholar, however, this telling of the story is incomplete. The Louisiana Purchase and the subsequent Lewis and Clark expedition were certainly momentous. That does not mean, however, that they necessarily completed a “constitutional moment.” The subsequent treatment of the Louisiana Purchase and the Lewis and Clark expedition by the People and the courts—the signaling and codifying steps of events that become a constitutional moment—lay in the future. Moreover, the steps would take two different directions, one for the extent of federal powers over the territories, and one for the way the government would exercise that power and through what agency.

The first question raised by the Louisiana Purchase was the extent of congressional authority over the territory that the United States acquired from France. It would seem at first that this power was vast and unlimited, for the Constitution vests in Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” A crude use of Ackerman's theory might describe the Louisiana Purchase as a constitutional moment in this sense: before the Louisiana Purchase, the Constitution was seen by many in Congress as depriving the federal government of needed authority to acquire and manage new territory outside of the bounds of the original states and their chartered limits. With the restrictions that Spain placed on the Mississippi

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at New Orleans, Ackerman's People rose up and demanded action from their government. Their government responded and went beyond the strict needs of the People, rewarding them not only with new lands, but with a scientific and heroic exploration. The Supreme Court subsequently codified this new expansive view of the power of the federal government through decisions that found the power of the federal government over the territories to be almost without limit. Thus, within a generation after the Louisiana Purchase, the Supreme Court codified the principles behind the Louisiana Purchase in several cases that stand for the rule that the federal government has broad power over the territories.^[58]

This telling of the story would be only half right. The key dispute of the country before the Civil War was slavery, and at the federal level the fight over slavery often took the form of disputes over how Congress would or could legislate for the territories. Here, the story returns to the Lewis and Clark expedition and specifically to the actions of William Clark. After the expedition, Lewis was appointed governor of the Louisiana Territory, but his tenure ended with his early (and mysterious) death. Clark lived much longer. He was appointed to deal with the Indians in the area and was eventually appointed to be the territorial governor of what would become the state of Missouri. And, unlike any other member of the expedition, Clark brought along with him a slave, a man named York. York had been a slave of Clark's family, and the evidence suggests that York was roughly Clark's age and was a companion from Clark's youth. The only thing that may have separated Clark and York was York's race and thus legal status.^[59] Despite his legal status within the United States, York contributed to the expedition in many ways. The Journals report many surprising stories about York, which indicate that he was considered a full member of the expedition. For example, York is reported shooting animals, even though slaves could not legally carry firearms. He voted in the deliberations of the expedition, thus becoming perhaps the first African American to have a legal voice in government. The most noteworthy aspect of York's race, it appeared, was the fascination he held for the Native Americans that the expedition encountered. These tribes had never seen a black person before, and York apparently played it to the hilt.^[60] One could even argue that York's racial difference made the difference between success and failure for the expedition, because the Shoshone Indians from whom the expedition needed horses were willing to keep stalling Lewis until Clark showed up with York.^[61]

Yet, unlike any other member of the expedition, York did not receive double pay—indeed, he did not and could not receive any pay, because he was a slave. Instead, York asked for his freedom from Clark. Clark was, to say the least, not forthcoming with the request. Instead, he hired York out as a wage-earning slave. We think of slavery as the most objectionable position a person could be in, yet being a wage-earning slave was one of the lowest positions

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that a slave could find himself or herself—in some ways, the lowest of the low. York toiled for a few years in this capacity and died in Tennessee, unable to enjoy the freedom that Clark bestowed upon him eventually.^[62]

The federal government should have granted York land in the West. Instead, York's reward for his toil lay in Clark. Unfortunately, Clark's refusal to grant York his freedom and the sad story it tells embodies the larger price that the United States would pay for the Louisiana Purchase. In the Northwest Ordinance, the first effort that the federal government made for managing territory wholesale—and one, incidentally, drafted by Jefferson, himself a slave owner—the United States banned slavery. By contrast, the United States dithered over the status of slavery in the newly acquired Louisiana Purchase. The most noteworthy act that Congress took about slavery in the period following acquisition was the Missouri Compromise, in which Congress admitted Missouri to the union as a state that had slaves but banned slavery in the rest of the Louisiana Purchase. Slavery flourished in Missouri, and apparently St. Louis, where Clark had taken York, was a particularly inhospitable place for slaves. “Though slavery is thought, by some, to be mild in Missouri, when compared with the cotton, sugar and rice growing states,” wrote William Wells Brown in a slave narrative, “yet no part of our slaveholding country is more noted for the barbarity of its inhabitants than St. Louis.”^[63]

Over the course of the 1840s and 1850s the question of Congress's power over the territories festered. It took several forms. For example, in 1846, Congress debated and ultimately rejected the Wilmot Proviso, which would have banned slavery in any territory acquired from Mexico in the Mexican-American War. Although the proviso failed, the fight spilled out into other arenas, such as the organization of the territorial governments for Kansas and Nebraska, which led in turn to civil war breaking out in Kansas.

During this period, opinion about congressional power over the territories divided into roughly four schools of thought. Some, like John Calhoun of South Carolina, argued that Congress could not constitutionally ban slavery in the territories, but instead that Congress was obligated to protect slave owners in their property. Others, like Stephen Douglas of Illinois, argued for popular sovereignty in the territories, namely that Congress could not ban slavery but territorial governments could. A third school argued for the practical determination that Congress should simply extend the line of the Missouri Compromise across the country or make individual decisions for individual territories. Obviously, this school appealed to practical compromise, not constitutional principle. Finally, some argued that Congress could ban slavery in the territories if it wished, and that it should. The Republican Party platform for 1856 embodied this view and declared, “the Constitution confers upon Congress sovereign power over the Territories of the United States for their government; and that in the exercise of this

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power, it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism—Polygamy, and Slavery.”^[64] The first and last schools based their claims most expressly on the Constitution, the second and third on compromise.

This political question became, as Tocqueville would have predicted, a judicial one. And, just as inevitably, a question about territory became a question about slavery. The Supreme Court answered the question in its deservedly infamous Dred Scott decision. The facts of the case fit a common fact pattern then but seem bizarre and arcane now. The basic question was what events would render a slave free. Courts had struggled with this question against a variety of fact patterns, such as where the slave escaped into free territory, where the master had taken the slave voluntarily into free territory for a short period but returned to slave territory, or where the master had lent the slave to another who took the slave into free territory. In Dred Scott's case, Scott claimed to be free because John Emerson, one of Scott's previous masters and an officer in the United States Army, had taken Scott from Missouri (a slave state) to what was the territory of the United States and is now Minnesota (free soil by virtue of the Missouri Compromise), and also to Illinois (a free state). Scott argued that his presence on free soil freed him. Scott originally sued the wife of his master in the Missouri courts, where the court decided against him. The Missouri Supreme Court had case law that supported Scott's claim, but it could have distinguished that body of precedent on the ground that Emerson never established residency in free territory since the army had ordered him to move each time. Instead the Missouri Supreme Court overruled its own prior authority and held that Scott was still a slave.^[65]

Undaunted by this loss, Scott sued John Sanford (whose name is misspelled in the official reports as “Sandford”), who was Mrs. Emerson's brother, and either had acquired the Scotts or acted as the executor of Dr. Emerson's estate.^[66] Sanford was a citizen of New York, so Scott sued in federal court asserting that the court had jurisdiction because of the diverse citizenship of the parties. Thus to determine whether it had jurisdiction, the federal court had to decide whether Scott, a putative slave, was a “citizen” of Missouri in the way that Sanford was a citizen of New York. Scott lost in the trial court, and the case wound its way to the Supreme Court.

The opinions of the Supreme Court run over two hundred pages, and, because each justice wrote separately, it is difficult to determine whether the Court held anything. But it is generally accepted that Chief Justice Taney's opinion for the Court probably gives a sense of the majority, and in his opinion, Taney reaches two basic conclusions. First, Taney held that Scott was not a citizen of Missouri because of his race. The practice of the founders was not to treat blacks as citizens since before the founding of the United States, in Taney's words, they were “regarded as beings of an inferior order,

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and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”^[67] If Scott was not a citizen of Missouri, then he could not sue Sanford in federal court claiming that the parties were “citizens” of different states.

Despite the lack of jurisdiction, Taney went on to a second conclusion. Did Scott's presence on free soil make him free? To answer that question, Taney decided to rule on whether Congress could mandate that the territory of the United States be free. Taney held that it could not, and that the Missouri Compromise was unconstitutional. Taney's reasoning on this point is hopeless. Turning to the text of the Constitution, Taney found that the clause of the Constitution that grants Congress power over the “Territory and other Property belonging to the United States” applied only to the territory that Virginia and the other states had ceded to the United States before the ratification of the Constitution. The term “territory” must have had a definite and fixed meaning, not an expansive one, and it must have been fixed at the time of the founding. Of course, the problem with Taney's interpretation of the territorial power was that Congress had made legislation for the territories, and lots of it, and the Supreme Court itself had approved of these arrangements. Even justices who agreed with Taney had trouble with his reasoning. Justice Catron disagreed for personal reasons. “It is due to myself to say,” he wrote, “that it is asking much of a judge, who has for nearly twenty years has been exercising jurisdiction, from the western Missouri line to the Rocky Mountains, and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had been all the while acting in mistake, and as a usurper.”^[68] But Catron, a southerner, did not dissent from the overall decision.

To drag himself out of the logical quagmire he created, Taney argued the federal government could pass laws for the territories under the inherent power that a sovereign has over its territory. This power did not, however, include the power to act in excess of constitutional authority. Therefore Congress could not ban slavery in the territories, Taney argued, because it amounted to a deprivation of private property without due process of law—an act in excess of constitutional authority. Because slaves were property, banning slavery in the territories was like telling a person that he could not take his clothing or other personal property with him when moving to the territories.

Earlier, I stated that Taney decided to rule on the constitutionality of the Missouri Compromise. Taney's decision had to be deliberate and resultdriven, because it was unnecessary. There was no reason that Taney had to discuss the Missouri Compromise, given how he decided the rest of the case.

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Recall that Scott had traveled with his then master Emerson not only to a territory made free by the Missouri Compromise but also to the free state of Illinois. Did the voluntary action of a master taking a slave to a free state and establishing permanent residency there make the slave free? The Court had earlier suggested this possibility in a case involving slaves living in Kentucky who, with their master's permission, went occasionally into Ohio. On one trip, the slaves kept going from Kentucky to Ohio and then to Canada, and the owner of the slaves sued the master of the boat that had enabled the slaves to go to Ohio claiming the value of the escaped slaves. In that case, Strader v. Graham, the Court held, “Every state has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory.”^[69] Since the escaped slaves were domiciled—permanently residing—in Kentucky, their escape to the free state of Ohio did not affect their status because Kentucky law determined their status. But in Dred Scott's case, he had moved and permanently resided in Illinois because his master took him there on purpose. Would not his permanent residence, his domicile, in Illinois change his status from slave to free man since Illinois had the “undoubted to determine the status … of the persons domiciled within its territory”? Taney answered no, because Scott's status was not to be determined by the law of Illinois, but by the law of Missouri, where Scott was most recently domiciled. And Missouri law held that Scott's presence in Illinois did not affect his status in Missouri—indeed, the Missouri Supreme Court created that rule especially for Scott, overturning earlier Missouri case law. Assuming that Missouri law governed Scott's status, then the Court did not need to decide whether Congress could ban slavery in the territories under the Missouri Compromise, for, even if it could, Scott's return to Missouri rendered him slave regardless. The only reason that Taney needed to decide whether the Missouri Compromise was constitutional, then, was to settle once and for all the question of congressional power over slavery in the territories.

Although it is frequently overlooked in much of the modern discussion of Dred Scott, the part of the decision invalidating the Missouri Compromise provoked the most heated debate at the time of the decision. At least two reasons explain this focus. First, although the Supreme Court held that Scott was not and could not be a citizen of Missouri—the aspect of the decision considered most odious today, especially because of its language—relatively few people at the time of the decision in Dred Scott argued that African-Americans were citizens. There was no state (except, perhaps, Maine) in which they could freely vote, serve on juries, hold public office, serve in the militia, or undertake other tasks that citizens performed. Indeed, an editorial in Harper's Weekly at the time stated that the uproar over the case was overblown. After all, the editors coolly reasoned, the decision had no practical effect on daily life in the United States. Since whites did not

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treat blacks as fellow citizens, what harm could come from the Supreme Court declaring that blacks could not be citizens for purposes of invoking the special jurisdiction of the federal courts?^[70] (Similarly, continued the editors, the holding that Congress could not ban slavery in the territories would have had importance earlier during the debate over the Kansas-Nebraskabill, but it was of no practical effect in 1857 since the Democrats—“certain to be in power in two branches of the Government at least for the next four years—have announced it as their fixed and unalterable determination to leave the question of slavery to the Territories themselves. When then, or how is the case to arise, which shall give this branch of the decision any practical force?”)^[71] Proslavery southerners would also use this line of reasoning to quiet criticism of the Dred Scott opinion on this ground, as antislavery northerners were not necessarily for racial equality—in fact, they generally opposed it.^[72]

The second reason that the territorial aspect of Court's decision caused great consternation was how it fundamentally changed the terms of debate over slavery in the territories. Democrats like Stephen Douglas could argue before Dred Scott for popular sovereignty in the territories—let the territories decide whether they would be free or slave. With the decision in Dred Scott, however, the possibility of popular sovereignty was undermined at the very least and probably shattered entirely. If territorial governments were creatures of Congress, how could they ban slavery when Congress itself lacked the power to do so? Douglas attempted to explain this problem away in an lengthy article in Harper's Monthly, for which he was rewarded with nasty rejoinders in pamphlet form written by leaders of his own party.^[73] Southerners, meanwhile, latched onto Taney's reasoning that a ban on slavery was an unlawful deprivation of property to argue that Congress had a positive duty to protect slavery in the territories. Given that many state constitutions had provisions similar to the due process clause in the United States Constitution, some proslavery advocates even argued that no state could ban slavery. The Democratic Party began to collapse in on itself as the internal struggle over slavery consumed its time and energy. Meanwhile, the Republicans—with their strident but clear platform and arguments by Abraham Lincoln to ignore the territorial aspect of the Dred Scott decision—won the presidential election of 1860.

Once the Civil War began, Congress acted in direct defiance of the Supreme Court. In 1862, Congress made good on the Republican Party platform and banned both slavery and polygamy in the territories.^[74] The Court's response to these new laws reveals either its own weakness or the weakness of Dred Scott as a precedent. If the Court had adhered to its position in Dred Scott, it could have found many of these regulations unconstitutional. Obviously, the Thirteenth Amendment settled the constitutionality of the congressional ban on slavery in the territories. On the broader

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question of congressional power over the territories—such as whether Congress could ban polygamy—the Court caved in. It upheld the statute banning polygamy in the territories, holding even that the United States could dismantle institutions of the Mormon Church. It upheld the power of Congress to override decisions of a territorial legislature, acknowledging in amazing understatement that “[t]here have been some difference of opinion as to the particular clause of the Constitution from which the power is derived, but that it exists has always been conceded.”^[75] Through their representatives, the People had acted to deny what the Supreme Court had said in Dred Scott, and the Court codified their beliefs.

Thus, returning to Ackerman's concept of a constitutional moment, the story of the constitutional effects of the Louisiana Purchase does not end until after the Civil War. It is not until then that the principle of congressional authority over the territories is unquestionably settled. The pattern of signaling, proposing, mobilized deliberating, and codifying—the back and forth between the People, their representatives, and the judiciary—had all taken place. The People demanded unfettered access to the Mississippi River and trading in New Orleans. Jefferson and his political allies responded and gave the People what they wanted and more, even though the constitutional authority was, in their own view, slim at best. The representatives of the People then presented this action to them as a guardian would say to a ward “when he came of age, I did this for your good; you may disavow me, and I must get out of the scrape as I can.” Along with the purchase, the government presented the People with a successful exploration of the territory, a wildly popular move. The discussion over congressional power to acquire territory may have ended there, but the debate over congressional power did not, for buried within the Louisiana Purchase were the seeds of its potential destruction. Slavery existed in the territory that the United States acquired from France, and Congress did not deal with the problem adequately or comprehensively. As the general fight over slavery took on growing importance in the 1840s and 1850s, the debate at the federal level took the form of regulating slavery in the territories. This culminated in the Dred Scott decision, which held that the federal government lacked such regulatory power. When the Civil War began, Congress enacted a law that contradicted this holding outright and continued to assert municipal authority over the territories. In response to this action and the lessons learned in the Civil War—and not in response to an express constitutional amendment, unlike the post-Civil War amendments freeing the slaves and establishing their rights—the Supreme Court accepted the repudiation of its holding and buried Dred Scott. Not until a generation later did the Supreme Court tangle with the legal decision in Dred Scott and declare it essentially irrelevant.

Thus, the development of congressional power over the territories and

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other property belonging to the United States forms the first “constitutional moment” that the Louisiana Purchase starts. The second constitutional change that occurs from the purchase and the subsequent Lewis and Clark expedition concerns how the federal government would manage these lands. Jefferson drafted the instructions to Lewis without assistance from Congress, and, as described above, one of Jefferson's primary missions for the explorers, exploring and cataloging the soil, flora, and fauna of foreign territory, had nothing to do with an express power of the federal government. The exploration was a success in every measure. Lewis and Clark lost only one man, and the reaction to the things they found was exciting to the general population. Had the exploration not succeeded—had, for example, the party died while navigating the upper reaches of the Missouri or at the hands of a hostile tribe of Native Americans—the reactions would undoubtedly have soured some Americans on the notion of a bold exploration of the West. Counterfactual history is always a questionable enterprise, but had the Lewis and Clark expedition failed, or had it not succeeded so well, the People may have questioned the wisdom of exploration of the West or have expected their representatives to place more checks on it. But the expedition succeeded, and with that success came increased power of the president.

The development of Indian law provides a useful trace of this increase in power in the executive branch. Originally, the United States dealt with Indian tribes as if they were foreign nations, and the logical and expected agreement between the two sovereigns would be a treaty. Nevertheless, the United States accepted that Indian tribes were domestic sovereigns and that the Indian tribes could not have, for example, their own foreign policy; perhaps this recognition led to placing responsibility for Indians within the Department of the Interior. Later, the United States abandoned the policy of treaties and dealt with tribes largely through executive agreement and general legislation. Congress apparently acquiesced in this transformation. To the extent that Indian policy represents public land policy, the shift in power may have been complete.

This is not to say that the Lewis and Clark expedition alone accounts for expanded presidential power over the territories and public lands. To be fair, expedience explains this growth of power as well. After all, at the time of the Lewis and Clark expedition, no other branch of the government could carry out such an expedition. Moreover, the United States Army, under the ultimate control of the president as commander-in-chief, presented itself as the logical unit of the United States to explore the West, especially foreign territory. Until the establishment of the Department of the Interior in 1849, the army had the primary responsibility for negotiating with Indian tribes because no other federal agency logically had that role. Even after that time, the army had the principal role in dealing with hostile Indian

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tribes. Moreover, Congress may not have had the resources effectively to address the myriad questions of Indian policy that the United States faced in its aggressive expansion.

Nevertheless, the success of the Lewis and Clark expedition marked the first step in a move toward recognizing presidential power over public lands that the Constitution itself does not confer. The Constitution grants to Congress the power to “dispose of and make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States.” It says nothing about presidential authority in this area. The president's power to explore the West became the president's power to protect these public lands. As early as 1868, the Supreme Court recognized that the president had the power to withhold public lands from disposition under otherwise applicable federal laws because the practice dates “from an early period in the history of the government.”^[76] By 1915, the principle was firmly established. Executive orders had reserved millions of acres of land for Indian tribes, military reservations, and bird sanctuaries, even though no statute authorized the president to reserve these lands.^[77] Moreover, Congress has vested broad discretion in the president to reserve federal lands for certain purposes.

The power of the president to withdraw public lands from disposal from allocation under public land law sounds boring and inconsequential. It is not. Presidential orders spared thousands of acres of national forests from the ax.^[78] For good or for ill, presidential orders placed Native Americans on reservations that survive to this day. More recently, the Supreme Court has recognized that Alaska cannot drill for oil in the tidelands of the National Petroleum Reserve in Alaska because President Warren Harding reserved these lands and prevented them from passing to Alaska upon its admission to the union.^[79] Thus, the entire look of this country, especially the West, has its roots in presidential proclamation, some of which rests on pure assertion of executive authority. In addition, the Supreme Court has upheld broad congressional delegations of authority to the president. For example, the Court upheld grazing regulations that the Forest Service issued, even though the relevant legislation gave the Forest Service no express authority over grazing.^[80] These Supreme Court decisions came at a time when the Court viewed presidential authority narrowly.

To return again to Ackerman's theory of the constitutional moment, one can see again the steps of signaling through codifying. After the Louisiana Purchase, Congress created a territorial government for Louisiana and vested much of the authority over that government in the president. Jefferson directed Lewis and Clark to undertake an exploration of the West, and, with their successful return, directed others to do the same. The Supreme Court gradually recognized a broad area for executive authority in this area, in part from expedience and in part from the accommodation that the political

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branches had reached. Thus, a greater scope of power for the president arose from the Louisiana Purchase and the Lewis and Clark expedition, one that the People apparently wanted and the courts eventually codified.

NOTES

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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.

NOTES

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6. George Shannon and C. S. Rafinesque

Charles Boewe

In the 1820s, when George Shannon was a resident there, Lexington, Kentucky had a population of a little over 5,000.^[1] For its size and its geographic location, Lexington was remarkably cosmopolitan, with more than a dozen French names listed in its directory, one of which was that of C. S. Rafinesque.^[2] Most of these people knew one another, so it is not remarkable that Rafinesque and Shannon were acquainted—Rafinesque, a professor at Transylvania, the only university west of the Alleghenies, and Shannon, a successful lawyer and a member of the state's General Assembly from 1820 to 1823. In addition to his teaching duties, Rafinesque gave occasional public lectures on various topics; and Shannon, to further his political career, gave speeches before the Lexington Tammany Society. Both were public figures in a small town.

Despite all the attention given in recent years to the lives of members of the Lewis and Clark expedition, the aperçu we have on Shannon through Rafinesque's writings has been overlooked.^[3] Rafinesque himself had several reasons to be interested in the expedition and its discoveries. As a naturalist typical of his time, he considered the study of mankind within his purview, especially those little-known Native Americans the Corps of Discovery encountered; and an accomplished linguist himself, he collected vocabularies as avidly as he collected natural history specimens.^[4] He was the kind of polymath who appreciated Thomas Jefferson's scientific goals for the expedition. George Shannon, of course, was the expedition's youngest member and helped Nicholas Biddle prepare the first published edition of the expedition journals. By reviewing—and in some cases, retrieving from obscurity—some of the scientific writings of Rafinesque, we find that Shannon's knowledge of Indian languages, acquired during his service in the Corps of Discovery, was considerable. His contributions to Rafinesque's

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compilations of Indian-language vocabularies came from words he remembered hearing on the journey west. Although the science of linguistics no longer favors the historical approach Jefferson encouraged and Rafinesque embraced—of tracing tribal history through language study—the relationship of Shannon and Rafinesque suggests a new implication of the Lewis and Clark expedition. It probably did encourage the research of betterknown linguistic scholars who followed.

It was only reasonable that Rafinesque should seek the acquaintance of Shannon, four years his junior, for he himself had hoped to participate in the expedition sent out in 1804 by his friend Thomas Jefferson.^[5] Rafinesque had come to the United States as a young man aged nineteen, but he returned to Europe at the end of 1804, just as the Corps of Discovery was settling into winter quarters in the Dakotas. He stayed in Sicily for a decade, publishing there his first books in natural history, the field for which he is best known, and returned to America in 1815, when naturalists—especially in Philadelphia—were trying to sort out the scientific accomplishments of the expedition.

Though unable to join the Corps of Discovery, Rafinesque was immediately interested in the expedition's scientific findings and written report. At the Academy of Natural Sciences of Philadelphia, of which he was a member, Rafinesque tried to convince George Ord, a distinguished zoologist, that the expedition's Ovis montana, as Ord had named a mammal on the basis of its skin and one horn, actually was a goat, not a sheep.^[6] Rafinesque's opinion was correct, but such is the confusion between mountain sheep and mountain goats in the Biddle edition of the Journals (1814) that Ord stuck to his own belief in the face of the contradictory evidence of the specimen before him.

Rafinesque, too, had ransacked the Biddle edition. Despite its lack of the crucial scientific portion of the journals, Rafinesque got enough information from Biddle to give scientific Latin names to a number of animals he himself had never seen. He gave their specific names, which continue to be used, to the Oregon bobcat, the mountain beaver, the mule deer, and the prairie rattler.^[7] The living prairie dog that the expedition had shipped to Peale's Museum in Philadelphia died long before Rafinesque returned from Europe, but he named that animal too, from the description he found in Biddle. So had George Ord, and in this case Rafinesque's generic name, Cynomys, has been retained for the prairie dog in preference to Ord's, though Ord gets credit for the specific name, ludoviciana.

As a pioneer naturalist, Rafinesque longed all his life to explore the trans-Mississippi West. Unable to obtain either public or private patronage, he never got farther west than Shawneetown, Illinois, the terminal point of his self-financed trip down the Ohio River. Returning overland to Philadelphia in 1818 from this trip, he passed through Lexington, where John D.

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Clifford, a merchant friend he first knew in Italy, had now settled and had become a prominent citizen.^[8] A trustee of Transylvania University, Clifford got Rafinesque a job at that rapidly developing institution, and there he taught botany and natural history from 1819 to 1826, the only formal professorship he ever held. From Lexington as a base he explored the natural riches of Kentucky, then little known, and published voluminously—mostly on botany—finally achieving the singular record of having devised more new Latin plant names than anyone else who ever lived, before or since. After a dispute with the university's president, Rafinesque returned to Philadelphia in 1826, continued publishing books and articles, and died there in 1840.

In company with Clifford, Rafinesque came upon a new interest in Lexington that led to his brief involvement with the expedition veteran Shannon. It is doubtful that he and Shannon should be called friends, for Shannon's name is not even mentioned in Rafinesque's autobiography. And in the sketch of a utopian society that Rafinesque drew up late in life, he specifically ruled that lawyers would be banned—probably because during a lifetime of many litigious conflicts, most of which he lost, he had had his fill of lawyers.^[9]

Clifford, who died in 1820 at age fortyone, had long been interested in geology and paleontology, even though the study of organic fossils had not yet received that name. Before his death Clifford also took up the investigation of prehistoric Indian remains, publishing in Lexington's Western Review magazine eight long letters on “Indian Antiquities.”^[10] All of these were interests shared by Rafinesque, though the last is little known because his biographers have concentrated on Rafinesque's botanical and zoological researches.

In the vicinity of Lexington are a number of prehistoric sites, called, then as now, Indian forts. Whatever their occasional idiosyncrasies in other respects, Clifford and Rafinesque clearly saw that most of these prehistoric sites had nothing to do with fortification. As the few Shawnee Indians remaining in Kentucky had no idea what purpose the earthworks were intended to serve, Rafinesque and Clifford took up the task of trying to understand and explain them. Rafinesque, a cultural nationalist in his adopted land, called these earthworks the “Monuments of America,” comparable in a modest way to the monuments of ancient Egypt and Mesopotamia, and believed they were the civil and ecclesiastical ruins of a pacific race of people who had been vanquished by the more warlike ancestors of contemporary Indians. Clifford's conclusion, based on the configuration of the earthworks as well as certain conch shells and ceramic artifacts found in their vicinity, carried the thesis a step further. For him, the earthworks were the ruins of the civilization of an accomplished ancient people who were either identical with or closely related to the ancient Hindus of India. In

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Clifford's view, prehistoric life in the Ohio Valley differed little from that on the banks of the Ganges. Little wonder that one of Rafinesque's somber Transylvania colleagues, more familiar with the effort of missionaries to save the souls of the “heathen” Hindus than with the notion that polytheists could be civilized, called Clifford “a vapid, sapheaded booby.”^[11]

Out of loyalty to Clifford, Rafinesque never wholly dismissed the Hindu thesis, but he had limited enthusiasm for it. Whoever their builders were, earthen mounds and fragments of pottery found near them could tell us little about their long-dead makers. Rather, Rafinesque decided, probably after reading Leibniz in the well-stocked Transylvania library,^[12] that the best way to recover something of the unwritten chronicle of the ancient Americans was through a comprehensive study of the history of indigenous languages.

Rafinesque knew that there were similarities among the hundreds of contemporary Indian languages, which he believed he could trace back to about twenty-five ancient “mother languages,” and through these could then trace migrations of peoples and lines of linguistic descent back to the dawn of time. Perhaps it is not surprising that Rafinesque theorized as he did about the ethnological value of language, because it was a position many linguists, amateur and scholarly, endorsed at the turn of the century. Thomas Jefferson had suggested in Notes on the State of Virginia, for instance, that the noble origins of American Indians would eventually be documented by extended philological analysis. Because Indians left no literary traces, their history would be redeemed, according to Jefferson, by the study of their languages.

Rafinesque's contribution to this school of thought was enhanced by the fact that he was personally well equipped for comparative linguistics; he wrote in English, French, Italian, Latin, claimed a reading knowledge of Spanish and Portuguese, and had a smattering of such exotic languages as Arabic. Later in life he published a book interpreting, to his own satisfaction, the root meanings of words in the Hebrew Scriptures.^[13] From travel books in the university and town libraries, he collected vocabularies of languages ranging from Kurdish to Hottentot. He persuaded the federal government to instruct all its Indian agents to collect vocabularies from the oldest people in their charge (a venture that was not very successful), and he personally collected vocabularies from Indians known to him.^[14] There was, of course, a fatal flaw in his research program: his concentration on vocabulary alone. Even though there is still some disagreement among linguistic anthropologists over the relative significance of lexicon and grammar, most would concede that indifference to the morphology of languages makes it difficult if not impossible to discover relationships among them. Yet, at the time, few people interested in comparative language study were aware they were taking an inept tack, for Rafinesque was not alone in collecting

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raw vocabularies. After all, that was one of the missions Jefferson had charged Meriwether Lewis to carry out. And, in any event, some knowledge of the word-stock of a language is a prerequisite to the analysis of its structure.

Through the course of his life, just as he collected plants for his herbarium, Rafinesque collected thousands of pages of vocabularies, most of which were probably carted off to the Philadelphia dump after his death. One document that remained and gives him what little distinction he has among historians is the Walam Olum, a long narrative poem in pictographs with a Delaware text that purports—according to some people, including Rafinesque—to describe a prehistoric migration across the Bering Strait. Known today from two bound notebooks (dated 1833) in Rafinesque's hand that are among the treasures of the University of Pennsylvania library, the Walam Olum came to Rafinesque in two parts. According to his account, the pictographs alone were given to a “Dr. Ward” by the Indians in 1820 in gratitude for medical treatment; then in 1822 “were obtained from another individual the songs annexed thereto in the original language.” He does not further identify Dr. Ward or the other individual, nor does he tell how the two documents reached him. This poem does not, however, account for the so-called Indian mounds near Lexington and elsewhere in the Ohio Valley; they were built by an earlier people only hinted at in the Walam Olum. Rafinesque says that he obtained this document while living in Lexington, remarks that only after deep study was he able to read it by 1833; and he did not publish it until 1836, when he was back in Philadelphia.^[15]

Partly because of his need to translate and interpret the Walam Olum text, Rafinesque was greatly interested in the Delaware-related languages of the West. That surely is the main reason he sought out and interviewed George Shannon, hoping Shannon could recall words from the languages of the various tribes he had visited.

The only reference to this interview in Rafinesque's vast number of publications occurs on two and a half pages of the Atlantic Journal, a magazine he published (1832–33) after returning to Philadelphia, and for which he wrote most of the text. The first article, titled “American Languages: Wahtani or Mandan” (132–133), gives words for the cardinal numerals 1 to 10 and lists twenty-three Mandan equivalents for such cardinal nouns as father, mother, man, woman, and so on. There Rafinesque says: “I met in Lexington, Ky. Mr. George Shannon, who was one of the companions of Lewis … and who furnished me with some words of the Mandans.” But it is not clear how many or which, for Rafinesque notes further that he has also “added a few scattered in Lewis’ Travels.” Hence, it is obvious that, exacting scholar as he was, he was trying to wring all possible evidence for this particular issue from the Lewis and Clark expedition, both from the imperfect Biddle edition of the report and from the only living member available to

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him. His second article is titled “Languages of Oregon: Chopunish and Chinuc” (133–134), for which Shannon, as informant, was able to supply only twelve words of Chopunish. Although twenty-four words are given for that language, the other half came from “Lewis and [Ross] Cox,” and all thirty-three words of “Chinuc” came from “Cox, Lewis, and other sources.” However, Rafinesque says, “Mr. Shannon” did confirm “the fact that only 3 languages were met with in the Oregon mts and country”; “but they are spoken in a multitude of dialects.” For Rafinesque, the “Oregon country” was the whole expanse of territory from the Rocky Mountains westward, not the present state of Oregon.

It happens that there are, in addition, two extant unpublished manuscripts where Shannon's testimony also appears. The first of these is a fourpage essay Rafinesque sent to the American Antiquarian Society in 1824, while he was still in Lexington and probably shortly after his interrogation of Shannon. It is titled “A Short Vocabulary of the Mandan or Wah-tah-neck Language,” and it contains twenty-five words that Rafinesque said Judge Shannon “remembered well.” This list enables us to see that Shannon contributed all the ten numerals in the Atlantic Journal essay as well as twelve other words. It also has three words Rafinesque chose not to include in the Atlantic Journal list (equivalents for Indian, Missouri, and Whiskey), probably because he did not consider these Mandan words indigenous to that language.

Troubled by the variant forms of Indian words when recorded through the filters of English, French, Spanish, and even Swedish used by the Caucasians who had reported them, Rafinesque devised his own phonetic alphabet to render pronunciation more accurately. Essentially, it gave vowels the sounds they have in French and dispensed with silent consonants. Using this “Universal Orthography,” as he called it, he recorded the Mandan words recalled by Shannon as follows, pointing out that this language had

never been recorded before by philologists:

Man	Nusuakeh	Cold	Shinihush
Woman	Mikeh	Missouri or Water-white	Mini-shoti
Indian	Huatanih	Whiskey or Water of God	Mini-hupanish
Father	Papah	One	Mahanah
Mother	Nayeh	Two	Nupa
God	Hupanish	Three	Namani
Water	Mini	Four	Topa
Corn	Cohanteh	Five	Kehun
White	Shoti	Six	Kima
Knife	Maheh	Seven	Kupa
No	Nicosh	Eight	Tetoki
Meat	Mascopi	Nine	Maapeh
		Ten	Pirokeh

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There is another point worth mentioning. William Clark, writing to Albert Gallatin, said he could discover no affinity at all between the language of the Mandans and those of the Sioux, Osage, Minnetarees, or any other tribe known to him.^[16] But Rafinesque, on the basis of Shannon's lexical material, concluded that Mandan had “many similarities with the Yancton and Konzas [i.e., Sioux] dialects of the Missouri tribes.”^[17] In this judgment he appears greatly ahead of his time.

The other unpublished Rafinesque document was unknown until 1982, when it was discovered in Paris in the archives of the Institut de France, where it had lain uncataloged since 1835. For the Volney Prize of that year the institute had announced a competition for the best essay on the grammatical character of the Algonkian languages of North America. Only two essays were received: Rafinesque's and one by his Philadelphia friend Peter S. Du Ponceau, who won the contest. Du Ponceau's essay was eventually published as a book (1838), and Rafinesque's manuscript was filed below Du Ponceau's and forgotten. Rafinesque himself never mentioned in any of his published writing that he had even entered the contest.^[18]

Having worked so long already on the language of the Delawares (who called themselves the Leni Lenape), Rafinesque chose their language for his prize essay, a language now usually also called Lenape, as central to all the Algonkian languages, and he tried to trace its analogues all the way from the East Coast to the West, even speculating on its relationship with that of the aboriginal Ainu people in Japan. This led him further to conjecture that the language, with its speakers, must have crossed the Bering Strait, because it was related to the Samoyed languages spoken in eastern Siberia.

This French manuscript of 270 pages, the longest-known linguistic essay by Rafinesque, tells us a great deal about the way he approached the comparative study of languages. Interested primarily in language affinities, since his overriding concern was the prehistoric migrations of peoples—not the science of linguistics for its own sake—he worked out to his own satisfaction a statistical formula for judging the degree of affinity between any two languages. Recent recognition of this accomplishment, crude though it was, has caused him to be called the father of lexico statistics.^[19]

In the prize essay he took up each of the parts of speech in turn and gave a perfunctory description of their grammatical function in Lenape and related languages, as the contest required. Still, Rafinesque's heart really was not in morphological analysis, with the result that the 1835 Prix Volney quite properly went to Du Ponceau. What interested Rafinesque most were the lexical similarities among Indian languages, similarities he fancied sometimes also were found even with Italian and French. Thus, despite the prodding of the Volney contest, he continued to miss the key that might have led to a measure of success in tracing the migrations of peoples through the permutations of their languages. Of course, it should also be

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noted that a thorough grammatical study of any one Indian language would have required a complete immersion in it through long discourse with one or more native speakers. Neither Rafinesque nor Du Ponceau had this opportunity; both had to depend on material collected by others, and the others were missionaries, trappers, Indian agents, or travelers, who, like Shannon, remembered a few words. In truth, the materials were not yet at hand for anyone to carry out the kind of analysis the French institute wanted to see.^[20]

Shannon's appearance, then, comes only in the appendix to Rafinesque's essay (254), where the author attempts to supply a comparative vocabulary of “Chopunish” and “Chinuk,” among the twenty-one vocabularies given there. In this list, eight Chopunish words are attributed to Shannon, seven of which Rafinesque had published already in his Atlantic Journal essay. The seven are

Sky	Tetoh	Head	Chop
River	Ishkit	Bear	Yahar
Sun	Spokan	Father	Papa
Nose	Nashne

And in addition, Rafinesque added in the margin of the manuscript:

Chief

Tayop

Even if Shannon could recall in total only a dozen words of Chopunish and today we are able to identify only eight of them, this nevertheless tells us something about him and helps confirm Biddle's opinion that he was one of the brightest of the nine young men from Kentucky. It will be remembered that Chopunish, the language of the Nez Perce Indians, baffled the expedition.^[21] When Captain Lewis delivered his formal speech to that nation his words had to be translated into French, from that language into Hidatsa, then into Shoshone, and finally into Chopunish. The wonder is that Shannon could pick up any knowledge of the language at all, much less remember, nearly two decades later, words that had reached him through three linguistic filters. (How many people would remember that “boy” is puer in Latin if the next speaker intoned garçon or perhaps enfant, followed by another who said Junge or possibly Knabe or conceivably Bube—while the equivalents of the word jumped about in the sentence according to the syntactical requirements of each language?)

Since the vocabularies collected by Lewis apparently were lost when Jefferson's possessions were rifled on the James River while being shipped to Monticello, even the few words recalled by Shannon now add another heirloom to the memorabilia of the Corps of Discovery. They add nothing, of course, to present-day understanding of Indian languages, and they added

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little if anything to Rafinesque's reputation as a philologist, since this aspect of his research has itself remained virtually unknown.^[22]

It is a pity perhaps that Rafinesque could interview only Shannon. If it is true, as is widely believed, that the best way to learn a foreign language is in bed with a native speaker, then Rafinesque ought to have interviewed York, William Clark's black slave, by all accounts the favorite of the Indian women. York must have been a fountain of linguistic lore.

NOTES

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