American Indian History on Trial: Historical Expertise in Tribal Litigation

American Indian History on Trial

Historical Expertise in Tribal Litigation

E. Richard Hart

The University of Utah Press

Salt Lake City

Copyright © 2018 by The University of Utah Press. All rights reserved.

The Defiance House Man colophon is a registered trademark of The University of Utah Press. It is based on a four-foot-tall Ancient Puebloan pictograph (late PIII) near Glen Canyon, Utah.

Library of Congress Cataloging-in-Publication Data

Names: Hart, E. Richard, author.

Title: American Indian history on trial : historical expertise in tribal litigation / E. Richard Hart.

Description: Salt Lake City : The University of Utah Press, [2017] | Includes bibliographical references and index. |

Identifiers: LCCN 2017030452 (print) | LCCN 2017035573 (ebook) | ISBN 9781607815969 () | ISBN 9781607815952 (pbk.)

Subjects: LCSH: Indians of North America—Legal status, laws, etc. | Evidence, Expert—United States. | Forensic historians—United States. | Federally recognized Indian tribes. | Indians of North America—Government relations. | Indians of North America—Land tenure.

Classification: LCC KF8205 (ebook) | LCC KF8205 .H37 2017 (print) | DDC 342.7308/72—dc23

LC record available at https://lccn.loc.gov/2017030452

Printed and bound in the United States of America.

To my mentor and friend

Floyd A. O’Neil

Contents

List of Figures

Acknowledgments

Introduction: Indian History in the Courts

PART I. COEUR D’ALENE

1. Coeur d’Alene: Introduction

2. Ownership of Coeur d’Alene Lake: Tribal Sovereignty and the Equal Footing Doctrine

3. The Dawes Act and the Permanency of Executive-Order Reservations

4. Coeur d’Alene: Postscript

PART II. WENATCHI

5. Wenatchi: Introduction

6. The History of the Wenatchi Fishing Reservation

7. Wenatchi: Postscript

PART III. AMAH MUTSUN

8. Amah Mutsun: Introduction

9. Federal Recognition of Native American Tribes: The Case of California’s Amah Mutsun of Mission San Juan Bautista

10. Amah Mutsun: Postscript

PART IV. HUALAPAI

11. Hualapai: Introduction

12. The Western Boundary of the Hualapai Indian Reservation

13. Hualapai: Postscript

PART V. WATER HISTORY AND NATIVE AMERICAN WATER BASIN ADJUDICATION

14. Water History and Native Americans

15. The Adjudication of Three Tribes’ Water Rights

Afterword: Outcomes for Tribes and Expert Witnesses

Notes

Bibliography

Index

Figures

2.1   Coeur d’Alene fish trap

2.2   Drawing of Coeur d’Alene Mission in 1870

2.3   Map of 1873 reservation

6.1   Wenatchi hunting camp at Lake Wenatchee

6.2   Wenatchi man spearing salmon at a trap, ca. 1907

6.3   Chief John Harmelt in 1931

6.4   The August 20–22, 1931, Wenatchi Pow-Wow to address Wenatshapam claims

9.1   The original United States survey of the Juristac Land Grant

9.2   Barbara Solórsano at Mission San Juan Bautista

9.3   Ascención Solórsano shortly before her death

9.4   Maria Dionisia Mondragon, with Victoriano Mondragon in a woven basket cradle

12.1 Detail from Frederich von Eggloffstein’s map of the Ives Expedition, 1858

12.2 Palfrey’s 1882 map shows Tinnakah, Clay (At-too-bah), and Peach Spring within the boundaries of the reservation

12.3 Chief Jim Fielding, ca. 1900

12.4 Chief Quasula, son of Wauba Yuma

15.1 Plan of a Zuni Cornfield by F. H. Cushing, 1884

15.2 Corn drying on Zuni rooftops

15.3 Modoc fishhook and double gorget

15.4 Raft of the type that would have been employed on Klamath Lake

15.5 Map of the Headwaters of the Klamath River by Albert S. Gatschet

15.6 Triangular dip net with slip rings, on A-frame

15.7 Fish spears

Acknowledgments

Many people and institutions have ably assisted me during the course of my work on the matters mentioned in this book. Special thanks go out to Marilyn Watkins, Gregory E. Smoak, Floyd A. O’Neil, Clayton A. (Nick) Coppin, and Christian McMillen, all of whom assisted me in the preparation of my testimony in one or more of the matters discussed in this book.

The original versions of four of the sections in this book were first published in Western Legal History, the Journal of the Ninth Judicial Circuit Historical Society, under editor Bradley B. Williams over a period of more than ten years (2000–2010). His editorial staff provided excellent assistance in getting those articles into print. Those articles dealt with legal issues related to four different tribes: Coeur d’Alene, Wenatchi, Amah Mutsun and Hualapai.

Many institutions and their staffs provided excellent service and assistance to me, including, but not limited to, the National Archives facilities in Washington, D.C.; College Park, Maryland; Denver, Colorado; and San Bruno, California. Libraries and special collections at the University of Utah, University of Washington, University of New Mexico, Yale University (the Beinecke Library), and University of California (particularly the Bancroft Library) have been essential to my work. My time at the Huntington Library has always been both beneficial and enjoyable.

Gregory C. Thompson not only provided crucial assistance in my work at the Marriott Library at the University of Utah (as well as encouraging and overseeing the Special Collection of my papers) but helped put together the panel of experts at the 49th Annual Conference of the Western History Association held in Denver in 2009 that discussed expert testimony. Thanks also go to the experts quoted in my introduction and afterword, including David Harder, R. David Edmunds, and Richard White.

Any errors in this work, of course, are my own.

Introduction

Indian History in the Courts

This book is about writing history for use as expert testimony for Indian tribes during litigation.¹ I have been doing this for over forty-five years. I am writing this book because a number of people asked me to do so, thinking that it might assist young historians if they were to seek out this type of career. Professional conditions are so different today than they were when I started this work that I initially wondered how much help I could be. For instance, tribal Self-Determination has made it much easier to work with tribal governments, and with the United States, than it was half a century ago.

However, there are still a lot of racists out there, as well as quite a few Indians who wonder why some white person should be working on their tribe’s litigation. Over the decades I’ve had people threaten to beat me up in a few instances, or even to shoot me, but those anomalous incidents are not the real stories of my career. If I told them the reader might think that my work has been a lot more swashbuckling than it actually has been. In fact, writing primary history is a laborious task, usually a solitary endeavor. When it involves products going to court, it can be especially thankless.

With all that in mind, I am going to try to provide an overview of my conclusions about how history can work for tribes in litigation and what kinds of recommendations I have for writing that kind of history.

I started working at the American West Center at the University of Utah while in graduate school in the late 1960s. Floyd A. O’Neil (who, I think it is fair to say, was a very assertive employer) started me out doing things like creating an index to the Millennial Star and Harper’s Weekly, listing each and every instance where American Indians were mentioned in any way in any article. Eventually Floyd graduated me to my own 1950s-era microfilm machine and rolls of records of the Bureau of Indian Affairs, Record Group 75, from the National Archives.

This was all before computers (I did have a IBM Selectric typewriter, which I considered quite extravagant at the time) and pretty mind-numbing, but in my view it was a lot better than my previous job laying asphalt for the Utah State Road Commission. In my view, working in the university library in an air-conditioned cubicle was superior to raking hot asphalt in order to fill potholes on Interstate 15 opposite the prison at Utah’s Point of the Mountain.

In 1973 I had been working for the American West Center at the University of Utah for four years. Working under S. Lyman Tyler, C. Gregory Crampton, and especially Floyd O’Neil, I had lately been dealing mainly with curricular materials for use in tribal reservation schools, including tribal histories. Floyd had introduced me to the National Archives, regional National Archives facilities, and other important repositories of Indian materials in the United States. I had put together some pamphlets about Zuni history and culture for the Zuni Tribe, and Floyd told me that the Zuni Tribal Council wanted to talk about a project.

We traveled to Zuni. Robert E. Lewis, the Zuni governor,² who was a very able tribal politician and leader, said that he was interested in hiring me to work under Floyd at the American West Center to answer two questions. Governor Lewis and the Zuni Tribe wanted to know if the Tribe had a good claim against the United States in 1946 that could have been filed under the Indian Claims Commission Act and, if so, why the Tribe had not filed a claim.

A large electrical transmission line had recently been constructed through the Zuni Reservation, and the Tribe had received payment for the easement. In 1970 President Richard Nixon had called for a policy of Self-Determination for tribes and formally ended the disastrous Termination policy. It would be two years before the Indian Self-Determination Act was passed by Congress, but in 1973 the Zuni Tribal Council was already tackling many of the big problems that the United States had left to it.

Floyd had made sure that when I studied the history and ethnohistory of a tribe I looked at the records of the Indian Claims Commission, established under the Indian Claims Commission Act of August 13, 1946. The original statute had allowed a claim to be filed by all recognized tribes for a period of five years, until August 13, 1951. The Zuni Tribe had not filed a claim. From my previous work in Claims Commission records, I knew that a tribal claim against the government could take a very long time to make its way to a conclusion. Such lawsuits might take ten, twenty, or even thirty years. So as I was being asked to take on this project, I had an inkling that it might be a commitment that would not end anytime soon. Floyd said yes and then I did too: thus began what was really my first work with expert testimony.³

The establishment of the Indian Claims Commission helped create the discipline of ethnohistory, which is necessary to document both the ethnological and historical narratives of a tribe.⁴ Eventually I produced many hundreds of pages of ethnohistorical written expert testimony in the Zuni claims cases, submitted thousands of pages of exhibits documenting my conclusions, was deposed for over two weeks by United States Justice Department attorneys, and finally testified orally at trial.

Ordinarily witnesses in court can testify only to firsthand knowledge and cannot testify on the basis of hearsay (what they might have heard or learned from someone else). If qualified by the court, however, expert witnesses by virtue of training, experience, education, and skill can testify about their special knowledge on a subject, learned through research, interviews, and both primary and secondary sources. A body of case law has established the legal requirements for qualifying as an expert.⁵

David W. Harder is a trial attorney with the United States Department of Justice and a specialist in water rights. Over a period of years I had the pleasure of working with him on several cases related to the adjudication of water rights in the Klamath River Basin. During a Western History Association panel on expert testimony in tribal litigation, Harder explained that expert testimony constitutes something that isn’t within the ordinary understanding of the average juror or judge. In order to provide such testimony, he noted, such specialized knowledge requires the expert witness to have some training, education, or experience that allows him or her to provide the court with an answer to that unique question which is in front of the judge.⁶

Harder went on to explain that sometimes the topic before the court is exceedingly narrow. So we look at the particular discipline in history that you’re in, your particular background, research you’ve done over the years, to see if you are the right expert to answer this particular problem. The most common thing that experts do in the legal profession is to carry out research and gather historical documents:

If we are contemplating bringing a lawsuit, or we know that one is likely to be filed against us or against a certain party, we’ll turn to an expert, to an historian, to gather documents and provide us the background information to know more about the situation, analyze more completely what the particular options are. . . . Very few historians, I say, make it to the witness chair in the courthouse with the august judge looking down at you. Most cases are resolved by negotiations long before that ever happens, and most historians’ work is fed into that process to allow us to intelligently decide how good of a case we’ve got and what direction we should take going forward.

The court goes through a process to qualify witnesses before they deliver expert testimony, whether written or oral. That qualification process is exceptionally important, as he explained. The witnesses first provide a description of their qualifications.

What is their particular training and education and specific knowledge related to the particular topic? So whether done orally or in writing, we will go into great detail about all of the publications that are relevant to the particular topic, their presentations, their past research. And the other side will be able to try to poke holes and say, you know, Have you done this? Have you done that? before the judge will formally decide, and I would say, I move that my eminent historian over here be admitted to testify as an expert. And that’s an important moment, because the judge will then agree or disagree; and if he allows my eminent historian to testify, he [the witness] gets to give an opinion.

It sounds like a very commonplace thing. We all express our opinions, you know—we don’t like Snickers, we like Milky Ways—but in the legal proceeding that’s a very important distinction, because, if I walk out of here on my way back to my office, and I’m in a street, and I see a pedestrian run over by the city bus, I saw it! I’m what’s called in the law a fact witness. I was there. I observed it. Somebody will take my statement and say, Oh, at noon, you saw this white male get run over. But, if I’m someone who has specialized knowledge, expertise training, I can testify with an opinion, which would be . . . [for instance] in the accident context . . . , Gee, but, you know, it was a sunny day, and somebody was blinded, and that’s why the white male got run over. I’m beginning to express an opinion. I’ve knit things together. I make inferences, all those things that someone who’s testifying as a fact witness generally cannot do.

It should seem obvious that anyone qualified as an expert witness should be objective in approach, methodology, and conclusions. While attorneys are advocates for their clients within the legal system, experts are supposed to be objective and truthful like any other witnesses. Attorneys can, and often should, emphasize the evidence that might help their clients and are advocates. Experts should never sort documents to come up with a set that supports some preconceived conclusion. They are not advocates.

With that said, many hired guns out there will construct testimony to fit the desires of clients and attorneys. Any historian who has done much documentary research knows that there will always be some anomalous document at odds with the general set of documents. I have seen experts piece together arguments using anomalous documents and even nonrepresentative portions of documents to support preconceived conclusions. Reasons for producing such testimony might be political (someone doesn’t like the idea of tribal sovereignty), prejudicial (someone just doesn’t like Indians), or financial (someone is paying the witness to reach a certain conclusion).

However, the judicial system includes a methodology for identifying such testimony and neutralizing it. Usually testimony designed to support a preconceived conclusion appears to be just what it is. David Harder of the Department of Justice put the process in lay terms for aspiring expert witness historians. As a witness, he said, at the most basic level

you have to tell the truth and be objective, because your opponents, if you ever get to court, will have been able to look at all the research you’ve done. You’ll have had to provide the documents you relied on. You’ll likely have had to explain, before the trial, to the other side’s attorney—there will be a question and answer process in a little room, and he’ll get to ask you, Hey, where did you go do research? What did you look at? Did you look at this? Did you do this? And usually you’ll have written a report that the opposing attorney will have, and they will say, Okay, I see on page four, paragraph six, that you talk about this particular event. What did you mean by the second sentence here? And we’ll go through, in painstaking detail, every part of your opinion. The other side will almost certainly have gone and looked at all of your sources, looked at other sources that might contradict yours, and you need to be prepared to meet everything.

With that in mind, Harder pointed out that the word advocacy is a term of art in the legal profession. There is nothing wrong with experts strongly defending their position, however, if they believe they have reached it in a professional and objective manner. As Harder explained, an expert witness needs to hold firm to your position, once you’ve figured out what it is, believe it, and then stick with it, so long as it’s consistent with the facts. He noted that it is fine to be on the street advocating big issues as part of a movement but that the legal system usually addresses very tiny questions that are a long way away from the big things that happen in the movement.

Some people are great scholars and terrible expert witnesses. Many scholars have a history of never being questioned—students either agree or hit the road. Others want to please and encourage their students rather than make a concrete stand about an issue. Being wishy-washy in court is a sure way to fail. In most cases any expert witness at some point will face a withering deposition or cross-examination, where the very fundamentals of the testimony are questioned. It is crucial to be able to stand firm and not give up and confess to murder or even to misconstruing an obscure document.

A few more words about expert testimony are in order. My experience, primarily in federal courts, has been that it is very counterproductive to speculate. I have found that judges do not like speculation. If the evidence leads me to believe a conclusion that I can’t quite prove with the documentary evidence, even if I am quite sure that my conclusion is correct, I am better off to present the same evidence in the greatest detail possible to the court and let the judge jump to that conclusion or not. If testimony gets tainted with speculation, the baby may go out with the bathwater. If you don’t know the answer to a question, it is far better to say I don’t know than to dream up an answer. Judges don’t necessarily appreciate ad-libbing. It is a good idea not to make things up as you go. Judges are not particularly impressed with creativity on the witness stand.

Over the past four decades I have provided expert testimony in a number of cases involving Indian tribes. I have also consulted and provided prelitigation reports related to other matters that sometimes led to settlements that avoided costly litigation. Although I have provided a few reports related to environmental history that did not involve Indian tribes, almost all of my work has been in behalf of tribes. Because the United States is frequently in the position as trustee for tribes, the U.S. government represents tribes during litigation. Sometimes, technically speaking, the Justice Department represents the Department of the Interior, which can be responsible for tribal land and water. In some cases, the tribes may not be in complete agreement with the United States in the litigation. For instance, in the Coeur d’Alene case, which I describe in one section in this book, the Tribe argued that it owned all the submerged lands under Coeur d’Alene Lake. The United States did not agree with the Tribe’s assessment when I testified for the United States in that case. In the end, as a result of the position of the U.S. government, the court only ruled on ownership of the southern portion of the lake. Eventually the Supreme Court took the same position that I had taken: the Tribe owned the southern portion of the lake’s submerged lands (see part I on the Coeur d’Alene for more on that subject). I am still working for the Coeur d’Alene Tribe (now on reservation water rights adjudication), so although its members are unhappy that they didn’t win title to the submerged lands beneath the entire lake, they are happy with the outcome of the case.

In this book I provide four examples of the types of matters that I have been involved in over the years. The Coeur d’Alene case (Idaho v. United States) in part I went to the Supreme Court. The Wenatchi case in part II was an intervention by the Colville Confederated Tribes in United States v. Oregon. Part III on the Amah Mutsun of San Juan Bautista describes the Tribe’s ongoing attempt to gain acknowledgment by the United States. My testimony in that matter was submitted to the Office of Federal Acknowledgment and a decision is (seemingly forever) pending. Part IV involves the boundaries of the Hualapai Tribe Reservation.

I prepared two separate expert reports for the Hualapai, one relating to the precise location of the Tribe’s reservation northern boundary and one related to the location of the western boundary. The report on the northern boundary was submitted to the Department of the Interior. Thus far the Tribe has largely prevailed administratively (it has not gone to court). I describe issues relating to the western boundary and explain how that report has been utilized by the Tribe.

Part V provides an overview of some of the water adjudications in which I have been involved: Zuni, Klamath, and Coeur d’Alene.

I could have provided additional chapters relating to other tribes (Colville, Swinomish, and others), but the ones that I included seem to me to represent the variety of the types of cases in which an expert in Indian history might be involved. Every one of these cases was extremely important to the Tribe(s) involved and their continued long-term existence. My work in every case mainly involved primary historical work (not modeling or theorizing).

In the afterword I describe outcomes from my work with various tribes. It’s tempting just to say that on the whole the tribes eventually got a lot of money. But that is misleading, because sometimes the tribes are actually more interested in the truth, as best it can be established, than in any monetary judgment. And it is usually impossible to estimate the monetary value of land or water.

As an expert it is best to obtain satisfaction from the products delivered (the historical record that is documented) and not from any judicial or administrative decision—which may, by the way, come many years after a particular report was delivered.

I

Coeur d’Alene

1

Coeur d’Alene

Introduction

In the late eighteenth century the Coeur d’Alene Tribe lived in relative isolation, controlling an aboriginal area of approximately 4,000,000 acres located in what is now the north Idaho panhandle and a portion of eastern Washington. Members of the Tribe controlled part of the plateau region of what is now the western United States and spoke their own language, which is part of the Interior Salish language family. Schitsu’umsh (meaning those who were found here) is their name for themselves in their own language. Before the first decade of the nineteenth century had passed, French-Canadian trappers had named the tribe Coeur d’Alene (meaning heart of an awl but often translated as pierced hearts and likely referring to the Tribe’s sharp trading skills). Coeur d’Alene remains the official name for the Tribe today.

My involvement with Coeur d’Alene litigation began in the early 1990s and continues today. The Tribe claimed that it had an interest in ownership of Coeur d’Alene Lake (actually in the beds and banks or submerged lands of the lake, but more on that later). The State of Idaho claimed that it held all rights to the lake.

Ownership of the lakebeds was important for a number of reasons. First, and perhaps foremost, was the environmental pollution of the lake that had taken place as a result of mining in the upper reaches of the drainage of the Coeur d’Alene River. Heavy metals had been draining into the lake for more than a century, to the point that simply bathing in the river’s water was dangerous, let alone drinking it. The state seemingly had a considerably more amicable relationship with the responsible mining companies than did the Tribe. An interest in ownership of the beds had the potential of allowing the Tribe to demand greater action under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This act of Congress in late 1980 created Superfund Sites and made very notable amounts of money available to clean up hazardous waste sites.

If the Tribe could demonstrate that it held ownership of a portion of Coeur d’Alene lakebeds, another issue was the revenue generated from the water issuing from the lake. The water emerging from the outlet of Coeur d’Alene Lake forms the head of the Spokane River. In 1871 a prominent Coeur d’Alene leader purportedly made a deal with immigrant Frederick Post, trading land for development rights at the outlet of the lake. There is reason to question whether or not this was really an official tribal arrangement, but Congress nevertheless ratified the transaction and Post Falls became the site of the first hydroelectric dam on the Spokane River. For more than a century the Tribe never received any income from the proceeds from the power generated from that dam.

Washington Water Power Company eventually acquired Post Falls Dam and determined to raise the level of the dam (and thus the level of the entire lake) in order in increase hydroelectric potential, mostly to power the mines that were, incidentally, dumping lead into the Coeur d’Alene River. Today the company Avista is the successor to Washington Water Power Company and controls a whole series of hydroelectric dams positioned along the Spokane River.

So, although ownership of the beds and banks of Coeur d’Alene Lake would have little direct impact on revenue from the lake (dock rentals and so forth), indirect impacts might be quite considerable.

Chapter 2 deals with the Equal Footing Doctrine and how ownership of Coeur d’Alene Lake submerged lands was determined. I worked on this matter for a decade and testified in federal court. Eventually the district and Ninth Circuit decisions in the case went before the Supreme Court of the United States (and were upheld).

Chapter 3 deals with the question of the efficacy of executive-order reservations. States are constantly engaged in sovereignty battles with tribes over all kinds of matters (and the efforts of states to undermine tribal sovereignty will almost certainly continue) and in so doing have developed a number of legal strategies. One such strategy was the assertion that reservations established by executive order somehow were not as efficacious as those established by treaty. During the period when I was developing testimony on the Coeur d’Alene Lake litigation for the Justice Department, the attorney for the Justice Department became concerned that the State of Idaho would use this strategy as part of its claim for ownership of the entire lake. I was asked to research the issue and prepare a report. I prepared a report, but the State of Idaho never brought up the issue (wisely, in my view). With the facts now published here I hope that particular state argument will be forever expelled to the dustbin of litigious fantasy.

2

Ownership of Coeur d’Alene Lake

Tribal Sovereignty and the Equal Footing Doctrine

In the years immediately following the signing of the Constitution, the term highway was used primarily in the new United States of America to refer to navigable bodies of water.¹ The use of these water highways for transportation was of sovereign importance, as it had been for many years to European nations. Navigable bodies of water therefore were regulated and maintained nationally for purposes of commerce. The lands under those navigable bodies of water were considered to be sovereign as well and were to be held for the use of the future states. When the first thirteen colonies entered the Union, they acquired title to the submerged lands under the navigable bodies of water within their respective boundaries. The United States adopted a policy to ensure that future states entered the Union on an equal basis with the original thirteen colonies, resulting in the Equal Footing Doctrine. The Supreme Court’s decision in United States v. Idaho summarized that doctrine:

Due to the public importance of navigable waterways, ownership of the land underlying such waters is strongly identified with the sovereign power of government. . . . In order to allow new States to enter the Union on an ‘equal footing’ with the original States with regard to this important interest, the United States early adopted and constantly has adhered to the policy of regarding lands under navigable waters in acquired territory . . . as held for the ultimate benefit of future States. . . . Therefore, in contrast to the law governing surface land held by the United States . . . the default rule is that title to land under navigable waters passes from the United States to a newly admitted State. . . . Specifically, although Congress has the power before statehood to convey land beneath navigable waters, and to reserve such land for the United States, [a] court deciding a question of title to the bed of navigable water must . . . begin with a strong presumption ‘against defeat of a State’s title.’²

As it stated in this case, the Supreme Court has held that the United States has the power to reserve submerged lands under navigable bodies of water not yet within the exterior boundaries of a state for other purposes, including for the benefit of Indian tribes. In that case, in order to overcome the Equal Footing Doctrine, the executive branch of the government must have had a clear intent to include the submerged lands in a reservation and Congress must have recognized, or confirmed, that reservation. To determine that federal intent, the Supreme Court has said it is interested in (among other things) the purpose of the reservation, whether exigent circumstances required that the beds of navigable water be included, and whether the purpose [of the reservation] would have been undermined if the beds of the navigable water were not included. The court said that it is also interested in evidence of executive and ultimately congressional intent as shown in the documentary record.³ In short, there must be evidence of tribal dependence on the resource, explicit conveyance of the resource, and congressional ratification or confirmation of the resource prior to statehood.

Since the establishment of its reservation the Coeur d’Alene Tribe had long claimed ownership of the Coeur d’Alene Lake submerged lands. In the 1970s the Coeur d’Alene Tribe successfully petitioned to intervene in Washington Water Power Company’s licensing hearing before the Federal Energy Regulatory Commission (FERC). The Department of the Interior also intervened and supported a position that the Tribe owned at least the southern one-third of the beds of Coeur d’Alene Lake. The State of Idaho claimed that it owned all of the lakebed under the Equal Footing Doctrine.

Although FERC originally ruled with the Tribe, in 1988 it vacated its order, citing a lack of jurisdiction. In 1991 the Tribe filed a lawsuit against eight mining companies and one railroad company for heavy metal contamination of the Coeur d’Alene watershed. The extent of damages from this action, if successfully proved, would be greatly enhanced if the Tribe proved ownership of the beds and banks of Coeur d’Alene Lake and the Coeur d’Alene River. The Tribe also filed an action against the State of Idaho, claiming title to the lakebed of Coeur d’Alene Lake (Coeur d’Alene Tribe v. State of Idaho, CV 91-437-HLR).

In 1994, on appeal from the Ninth Circuit, the Tribe’s lawsuit was dismissed by the Supreme Court, which found the State of Idaho immune from the Tribe’s lawsuit. In the meantime, however, the United States, acting on behalf of the Coeur d’Alene Tribe, filed its own action against the State of Idaho, acting as trustee and asserting tribal ownership of the southern one-third of Coeur d’Alene Lake (United States v. State of Idaho, Civ. No. 94-0328-N-ELJ). After the dismissal of its case, the Tribe was allowed to intervene in the United States’ case in 1995.

My involvement in that case began in 1993, when I was asked by the Department of Justice to prepare a report for the solicitor of the Interior Department, providing my preliminary assessment of whether or not there was a factual basis for the Tribe’s claim to part or all of Coeur d’Alene Lake submerged lands. I reported that documentary evidence tended to support tribal ownership of at least a portion of the lake’s submerged lands. The solicitor concurred. As a result the Department of Justice filed the case and hired me as an expert witness. I began work on my major testimony in this case.

Hank Meshorer, then head of the Indian Section of the Natural Resources Division of the Department of Justice, took the case and traveled to the town of Coeur d’Alene to announce the Department’s action. At the time the Reverend Richard Girnt Butler operated his neo-Nazi Aryan Nations out of a twenty-acre compound on nearby Hayden Lake. Butler issued a press release about the case, saying that eastern Jews and their lackeys were trying to steal land from god-fearing, upright white people in order to give it to lazy Indians. Hank Meshorer happens to be Jewish, from Boston, and a highly decorated veteran of two tours in Vietnam. I managed to get my hands on a copy of the press release and sent it to Hank, with a note in the margin, saying here I am, only a lackey. It had a perceptible motivating effect on him.

Over the next three years I researched every angle of Coeur d’Alene tribal history that I could think of that might relate to the questions of submerged lands ownership, spending time at the National Archives, the northwest regional National Archives in Seattle, and many other university libraries and repositories. On July 15, 1996, I submitted my testimony to Meshorer and the Department of Justice. Titled A History of the Coeur d’Alene Tribe’s Claim to Coeur d’Alene Lake, the nearly five hundred pages of this written testimony filled three volumes and were accompanied by about twelve hundred exhibits (around twenty thousand pages).⁴

The State of Idaho, through its attorney, had indicated that it might question the efficacy of the 1873 executive order that established the Coeur d’Alene Reservation. As a result, Meshorer asked me to do a complete and thorough study of executive orders that established reservations and to reach an expert conclusion on the efficacy of the Coeur d’Alene order. That expert testimony was submitted to the Justice Department a year later, on July 19, 1997. Meshorer decided to hold onto these two volumes and submit them at a later point if he thought it necessary. In the end, that testimony was not submitted to the court, although I did publish a shortened version of the testimony in Western Legal History. That essay is the basis for the next chapter.

Meshorer set aside ample time to prepare for trial. Indeed, I had to buy a headset for my telephone. For several weeks prior to the trial, he called first thing in the morning, every working day, and carefully walked me through my report, literally page by page and sentence by sentence. By the time we traveled to the federal courthouse in Coeur d’Alene in 1998, I honestly thought that he knew my testimony better than I did.

In the meantime, the Reverend Butler had also been busy. He had been indicted for seditious conspiracy by the Department of Justice, but an Arkansas jury was unconvinced and found him not guilty.⁵ Shortly before our arrival in Coeur d’Alene, the federal courthouse had been bombed. Security was tight. Our working office was in the United States Marshal’s office.

The morning before the first day of the trial, Meshorer and I were having a light breakfast at a greasy spoon early in the morning. Suddenly a laser dot appeared on my chest. I jerked out of the way just in time to see a teenager on a skateboard rolling away, no doubt with a laser pointer in his pocket. It did get my adrenaline going for a few minutes.

I was on the stand for a total of five days—direct, cross-examination, redirect, and rebuttal. The trial took place during the first two weeks of December 1998. Edward J. Lodge presided. Appointed by President Ronald Reagan, he was no-nonsense, fair, and I thought very smart.

I believe that Meshorer already knew what my answer would be to every question he asked before I answered. He had never told me what answer he wanted to hear, whether to a key question or to any little question. He wanted no speculation. During the trial, every night before I went to sleep I read a few pages of Kurt Vonnegut aloud to myself, hoping that in my own voice