By Clara Caufield
A Cheyenne Voice Possible coal development on the Northern Cheyenne Reservation in Montana wends over sixty years. And it’s not over yet. As reported earlier, in the 1960’s large portions of the Reservation were leased for coal development. Some years later those leases were cancelled at the request of the Tribe enabled through Congressional action. According to tribal sources, the Tribe was not opposed to coal, but to a “bad deal.” “We needed to cancel these leases and start over,” said Edwin Dahle, then a Council member and future Tribal President (Donna Dahle, Edwin’s widow). Recently, Northern Cheyenne Tribal President, Llevando “Cowboy” Fisher called for a referendum vote about developing undisturbed coal reserves on the Reservation. “We need to become self-sufficient and coal development is the main thing that could address the economic problems facing the Northern Cheyenne,” he said. The Cheyenne hold strong feelings about this issue, both pro and con. Some (several hundred tribal members and family members currently employed in off-reservation coal-development) might welcome the draglines to the Reservation with a parade. Others, of a more traditional persuasion might throw themselves in front of draglines to stop development. Feelings run strong. Besides those fringe groups, many Cheyenne are neutral or undecided, waiting for more specific details on what development might entail. They ask: how will this benefit us, our children or grandchildren? Northern Cheyenne coal is a communal tribal commodity. That is why President Fisher suggests the majority decide the matter at the ballot box. He acknowledges the 1976 Supreme Court decision: the Hollowbreast Case ruling that all Reservation mineral rights (coal, water and timber) are exclusively owned and controlled by the Tribe, rather than individual allottees. This story is corroborated by surviving Council members who made decisions of the time (Dennis Limberhand and Daniel Foote). They say that the Hollowbreast Case decision put the Northern Cheyenne Tribe in a distinctly different situation from other Tribes such as Crow or the Three Affiliated Tribes at Fort Berthold, where individual allottees and descendants with mineral rights receive individual royalty payments for coal, oil and gas development. The Hollowbreast Case goes back to the Northern Cheyenne Allotment Act, 1926, when Northern Cheyenne was one of the last Tribes to accept the General Allotment Act of 1887, federal policy of providing heads of households with individual allotments to promote private land ownership and assimilation. Under that Congressional mandate, much land on other Reservations moved out of Indian ownership as individual impoverished allottees sold or were swindled out of their allotments. Long term Northern Cheyenne Tribal President John Woodenlegs, Sr. said this allowed the Cheyenne to learn from that experience. As a result, Northern Cheyenne follows a Land Acquisition Program, initiated by Woodenlegs where 98% of tribal lands are now owned by individual members or the Tribe. In 1926, Cheyenne tribal leaders petitioned Congress to allot the Reservation. “We, the undersigned members of the Northern Cheyenne Indian Tribe, of the State of Montana, do hereby humbly beseech you to do all in your power to have a Bill introduced and passed in Congress, to have an allotment of not less than 320 acres of tillable farm land made to each and every member of the Northern Cheyenne (Tribe of) Indians. And, to reserve all mineral, timber, and coal lands for the benefit of the Northern Cheyenne Indian Tribe, said tribe to have absolute control of same.” The Act provided for allotments of 160 acres per tribal head of household on the Northern Cheyenne Reservation and also included a provision that the mineral rights would become the property of the allottees after 50 years. That would extend the policy of assimilation underlying the allotment policy by giving the mineral rights to allottees after they became assimilated. A total of 1,557 individual Northern Cheyenne heads of household received allotments under the 1926 Act. Now, only 7 original allottees are still alive, but their heirs number in the thousands. Section 3 of the 1926 Act also reserved coal and other mineral deposits on otherwise unallotted underlying lands on the Northern Cheyenne Reservation for the Tribe's benefit. And, in 1968, Congress amended the Act to reserve the mineral rights “in perpetuity for the benefit of the Tribe,” subject to a prior judicial determination that the allottees had not been granted vested rights to the mineral deposits by the Act. In the late 1960’s and 70’s, coal development on the Northern Cheyenne Reservation became more possible and profitable. A group of individual tribal allottees engaged the Tribe in litigation, challenging the tribal ownership of mineral rights on their individual allotments. The value of coal reserves under the allotted lands had spiked sharply in the 1960's due to increasing energy demand. During court arguments, the Tribe provided a “conservative estimate of the value of the coal reserves at $2 billion, based on a recent offer for coal under the Crow Reservation, which adjoins the Northern Cheyenne Reservation.” At the Supreme Court, Tribal elder Grace Stangeowl addressed the Justices in the Cheyenne language, assisted by interpreters, providing compelling testimony about communal ownership of tribal assets. “I think she single-handedly convinced the court”, Steve Chestnut (deceased) later commented. (Carrie Braine, personal source) Coal deposits on Northern Cheyenne have never benefited the Tribe or allottees. A lingering concern is that at least one-half of the allottees and heirs do not live on the reservation. If control of strip mining had passed in 1976 to the individual allottees, serious adverse consequences might be suffered by the non-allottees living on and off the reservation, the Tribe argued. At the time, some allottees with mineral rights had the opportunity to “get rich.” They were represented by Lou Brougamen, a Billings attorney for a contingency fee. The Tribe was represented by a recent law school graduate, Steve Chestnut. Both sides had a lot to lose or gain by the outcome. Edwin Dahle (deceased) Tribal Council member was a strong proponent of reservation coal development and a spokesperson for coal issues of the time, including the Hollowbreast Case. While promoting reservation coal development, he worried about the possibility of numerous small coal mines being developed on allotments without tribal oversight or control if the allottees prevailed. Dahle also spoke about the benefits of having one mineral rights owner (The Tribe) to deal with potential developers, very attractive to industry. Long term tribal attorney and tribal member, Calvin Wilson noted, “Due to the Hollowbreast Decision,” the Tribe at one fell swoop became the owner of mineral rights to a half million acres. That was why we got the ARCO deal” (follow up story to come). The Hollowbreast Case took years: the District Court held that the Act did not grant the allottees vested rights in the mineral deposits. The Court of Appeals reversed, construing the 1926 Act to have granted unconditional, non-contingent grant of the mineral deposits to the allottees, in the absence of any express statement of Congress' intent to retain power over the deposits. Finally, the Supreme Court held: the Act did not give the allottees of surface lands vested rights in the mineral deposits underlying those lands. Long story short: the Northern Cheyenne Tribe is unique among Tribes because they gained a Supreme Court ruling that the Tribe, alone, owns the mineral rights on the reservation. That is why the Northern Cheyenne membership must decide this matter by a Referendum vote. As President Llevando “Cowboy” Fisher says, “The majority will speak.” (Clara Caufield can be reached a acheyennevoice@gmail.com)
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