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  January/February 2004
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Small Wonder

A Northern Cheyenne lawyer defends her nation

by Stephen Hendricks

The Tongue River country of southeastern Montana, where mountain, plain, and stream have given to and taken from one another for 50 million years, came hard to the Northern Cheyenne Nation. In 1877, theCheyenne were forcibly transferred from Montana to Oklahoma. Three hundred escaped, and a humbled U.S. government let the two hundred who survived the trek home stay in a land most whites deemed too dry to farm, too scant of minerals, too far from markets.

But to the Cheyenne, the land has always been abundant. Knobby ridges, like fingers that are all knuckle, linger between badland and mountain; the uplands are covered in generous ponderosa, the lowlands in rich grass. This was once buffalo country; it’s cattle country now. Tomorrow it could be coal country, for beneath the ground lie seams of subbituminous coal 10 stories tall and closer to the surface than a foundation footing. These are among the world’s richest coalfields. But to a people who want the earth unmoved, the vast stores are no gift.

Gail SmallGail Small, 47, grew up with the threat of coal development. That she would later win a landmark lawsuit giving her people equal voting rights, or bring to heel a powerful regional bank that wouldn’t lend to Indians, or organize a voting bloc that elected U.S. senators—for this and more she could probably thank coal. Coal taught her generation of Cheyenne to fight.

In 1966, when Small was ten, the Bureau of Indian Affairs convinced the Cheyenne to sign the first of several coal-stripping leases at rates as low as one-hundredth of what such leases earned elsewhere. By the time Small was in high school, more than half the reservation, 400 square miles, had been let to multinational mining companies. Exploration rigs soon covered the reservation like spiders. When the Cheyenne asked why the coal that would eventually be mined would earn less per ton than their gravel, the BIA assured them the set coal price was a good deal. The tribal council disagreed and demanded the leases be canceled. The bureau said no.

As Small grew, so did her elders’ expectation that she get involved. She and other students were sent to off-reservation strip mines to see what happened when coal was rent from the earth. Her horror at the destruction has never left her.

Though only a handful of Cheyenne women from the reservation had ever graduated from college, Small’s parents supported their daughter’s dream of going to the University of Montana. She returned home in 1978 with a degree in sociology and joined the committee working to cancel the stripmine leases and send the coal companies—which had yet to start mining—packing. She held the only college degree on the committee—or the tribal council, for that matter. As the group worked, some of America’s largest strip mines grew just over the reservation line. But the digging stopped at the Cheyenne Nation. It took five years and an act of Congress to finally cancel the coal leases. It was the first time the feds had barred multinationals from Indian Country.

There were other firsts for the Northern Cheyenne. When Montana Power, the mining and utility conglomerate that had dominated the state for nearly a century, announced it would build two enormous coal-fired power plants just off the reservation, the tribe petitioned the EPA for Class I clean-air status, the same protection given national parks and wilderness areas. The EPA assented, and Montana Power was forced to spend $500 million on advanced scrubbers and a tribally controlled air-monitoring program. Since then, four other reservations have been granted Class I authority.

The victories were not cheap. During a five-year period, the Cheyenne’s legal and other coal-related bills were over $2 million—this at a time when the annual income of the reservation’s 2,500 Cheyenne was $1,150 per person. (Ironically, the funds used by the tribe to fight coal came from the energy leases it had signed.) By the early 1980s, the tribe was broke and had to drop several suits that would have further guarded their air. For Small, the experience was instructive: She left for the University of Oregon School of Law and in 1982 returned the tribe’s first Juris Doctor.

It is a burning July afternoon in the office of Native Action, the nonprofit Small founded two decades ago. The office is a worse-for-wear barrack-like house in a weedy lot in Lame Deer, capital of the Northern Cheyenne Nation. A chain-link fence stands guard, its lone barbed-wire strand an unconvincing threat. Inside, low ceilings, dark veneer paneling, small windows shrouded in bars, and cheek-by-jowl office furniture give the feeling of being in a cave. Only the explosion of studies and statements, pleadings and petitions, reminds you this is, in fact, a command center.

Small has penetrating eyes and midnight hair spilling down her back. In high school she modeled jewelry in Chicago, and in her 30s was featured in an MTV documentary on visionary women. She speaks in the cadence of her native Cheyenne, syllables mostly understated but with surprising rises mid-word. She has a quick mind and sharp tongue. Fellow Native American activist Winona LaDuke says Small is the kind of person you’d want to watch your back.

"These energy companies will say, ‘We hope to be here 10, maybe 20 years; then we’re gone.’ But what’s going to happen after that?" asks Small. "Is our homeland going to be one big dump or a place we can live?"

Small is talking about her tribe’s latest environmental fight, against coalbed methane. Methane is coal’s consort, held in beds of coal by water pressure. The gas is used to generate electricity or, like propane, to fire home furnaces, water heaters, stoves, and the like. To get it, drillers first pump out water—and that’s the problem. Methane lies deep, and as the water trickles down to it, salt is leached out of the rock. A single coalbed-methane well can create upwards of 20,000 gallons of salty wastewater a day, most of which ends up in rivers. A handful of wells have lowered some aquifers hundreds of feet. In the next decade 26,000 wells may be drilled in Montana, half of them just south and east of the reservation. To service them would require more than 9,000 miles of roads, 28,000 miles of pipeline and power lines, and 4,000 saltwater storage ponds. The forward-looking Cheyenne long ago bought all the subsurface rights on their land, so the reservation itself is protected from development. But that is little comfort. To Small, the real issue is water—which does not respect lines drawn on maps.

"I went on a tour with one of the vice presidents at the firm that’s doing all the methane in the Tongue Valley," says Small. "I asked why they couldn’t come up with a technology to take the methane out without having to drain all of our groundwater, and he said, ‘Because we don’t have to.’

"He told me that right now the company gets 80 to 90 percent profit," Small adds. "It’s just like sinking a water well, only they pull up gas, too. There are no regulations to make them do anything different."

Small doesn’t want to debate whether methane drilling is good or bad. She wants to figure out how to stop taking the water from the ground. "How do we keep from draining eons worth of water in a few years?" she asks. The water could be reinjected, but at a price drillers don’t want to pay. Moreover, she wants the water untouched, not hauled up and sent back down elsewhere. "The energy companies say they don’t have the technology to do it." (This assertion is confirmed, at least for deep methane deposits, by engineer Jim Kuipers of the Bozeman-based Center for Science in Public Participation.) "Well," Small says, "give them some tax credits and let them research how to do it better."

Coal MineMeanwhile, the lure of easy profit is making miners of people all around the Northern Cheyenne. Last year the Crow Tribe, which shares the Cheyenne’s western border as well as their poverty level, opened its land to methane drilling. Small wishes the Crow had not leased to coal companies. But she’s silent when pressed—no doubt wary of playing the Indian-against-Indian game. She knows the Crow’s poverty, so desperate that many residents call Crow Agency, the capital, Crow Agony.

Even in silence, however, Small is heard by her neighbors. When dissident Crow made noise about a referendum on methane, the arguments they used were Small’s. And though they couldn’t stop the election of a pro-drilling tribal chair, without Small’s inspiration they might not have tried at all. For Small’s part, she says she is busy full-time—"hell, more than full-time"—fighting on her eastern flank, where the Tongue River flows. Problem is, more than full-time may not be enough.

Coal MineLlevando "Cowboy" Fisher, age 59, a onetime Northern Cheyenne president with generous muttonchops and massive hands, has lived all his years along the Tongue. "We have a lot of traditional people who still practice Indian religion," he says. "They go to the river to restore their medicine bundles in the spring, when you can find the herbs. They hold the Sun Dance and gather everything they need along the Tongue."

Fisher, who ranches a small buffalo herd when he’s not working maintenance, recently found fish and beaver carcasses in the river. He suspects methane; upstream from the reservation, the Tongue is Montana’s premier recipient of salty wastewater. But nobody knows for sure. The Cheyenne are too strapped to test the river, the state too indifferent.

Small’s response to the salty water was to assert tribal control of the river’s health. The Cheyenne Nation has that authority under the Clean Water Act (and a compact signed with the state), just as it has the authority under the Clean Air Act to regulate its air.

Urged by Small, the tribe petitioned the EPA for control of the Tongue in early 2002. Nearly a year later, the agency office in Denver gave a preliminary okay. That’s when the trouble started. Under the petition, the amount of salt would be cut by a third, which would mean a third fewer methane wells upstream. Drill-happy governments in Montana and Wyoming lodged protests in D.C., while the area’s major driller, Fidelity Exploration & Production Company, retained the Houston-based law firm Bracewell & Patterson. The firm has on its staff a very well connected Republican, former Montana governor and Bush 2004 campaign chair Marc Racicot. The Cheyenne’s petition stalled.

Pressed for the reason behind the delay, the EPA declared that the tribe’s legal argument was "novel" and "insufficient"—never mind that it was the EPA’s Denver office that had suggested using the Clean Water Act and the state compact as justifications for regulating the river. The EPA hinted that if the Cheyenne proceeded, the Tongue petition would be denied. The remaining options—to redo the petition or sue the EPA for violating the Clean Water Act and the compact—are beyond the Cheyenne’s budget.

Small isn’t sanguine about her tribe’s chances. Then again, she’s seen worse odds.

In the 1980s, First Interstate Bank, a regional power and the only major creditor within a hundred miles, stopped lending to the Cheyenne. When even fourth-generation Indian ranchers without a late payment to their names were denied loans, Small tried to mediate with the bank. Her efforts proved fruitless, as did her outreach to the few white ranchers who had helped the Cheyenne fight coal. Some of those ranchers sat on the bank’s board, and they apparently preferred their neighbors undercapitalized.

"The tribal chief told me when we went into this, ‘Gail, don’t forget, we have no allies around here.’ I didn’t want to believe him, but I guess he was right, ’cause the progressive ranchers we thought were our allies refused to support us."

Small pushed forward anyway, and the Federal Reserve Board, which had never sanctioned a bank solely for redlining the poor, forced First Interstate to lend to the Cheyenne. But the words of the tribal chief stayed with her and, to her thinking, have since been fulfilled even by environmentalists.

A few years ago the Billings-based Northern Plains Resource Council sued the Bureau of Land Management to prevent methane drilling in the Tongue Basin. The Cheyenne, Small says, were barely consulted. "When we tried to intervene in the suit, it became this big internal battle whether to let us. They finally agreed not to oppose us as long as we didn’t slow them down. Well, the reason we were so delinquent in intervening was because we didn’t have the money. We were struggling to raise it."

Staff at Northern Plains explain that a federal moratorium on drilling had been lifted, 26,000 potential methane wells loomed, and the Cheyenne were nearly three years late in their intervention. In the end, the court dismissed the Cheyenne for tardiness.

Volatile tribal governments may also keep allies away. Cowboy Fisher says the two impeachment bids he survived while tribal president were about par for most terms, and current president Geri Small, sister of Gail, had to beat back an impeachment drive just seven months after winning 70 per-cent of the vote. This is not the profile of a dream co-plaintiff.

And yet, Small says, "we have a huge trump card that those groups don’t have—the ability to regulate like a state does. But we don’t have money. The environmental groups can often pull money together. So why can’t they reach their hands out to the tribe and share resources?"

If they could, she says, coalbed methane companies might have a serious adversary.

Over the years, much of Small’s work has followed an ironic pattern: She seeks help from outsiders, is dismissed, carries on anyway, eventually succeeds. The paradox is that outsiders usually benefit from her success.

Perhaps the most sweeping example evolved from her 1984 run for the Montana legislature. To register her lightly franchised people, she drove an hour to the county courthouse for voter registration cards but was allowed only a dozen. She could come for more, she was told, when those were returned. Another Cheyenne who asked for cards got the same line. He then sent in his white wife, who returned with a three-inch stack. From this affront grew Windy Boy v. Big Horn County, a protracted lawsuit that forced Big Horn County to draw Indian-majority voting districts for local elections. It acted as a catalyst for similar litigation across Montana and other states with reservations.

Small lost her legislative race, but she and friends continued to register their tribespeople. "People say, ‘Since you all are so close-knit, organizing must be easy.’ That’s not true," she says. "Indians are real territorial. Our reservation has five villages. People have lived there four generations. One organizer can’t organize them all. You have to make alliances with people from other villages, preferably people who are well respected and come from large extended families. Those people call a meeting, and I come as their guest. It takes time. You have to eat. You sit, and you listen, you don’t interrupt. We never make motions, but decisions are made."

Small’s group, Native Action, registered nine of ten people on the reservation. Other tribes in Montana followed suit. In 1992, reservation turnouts of up to 90 percent gave Bill Clinton the state and saved liberal Representative Pat Williams (D) from narrow defeat. By 1994, Montana Indians moved from worst to first for minority voter turnout.

The idea spread. When Democrat Maria Cantwell of Washington narrowly won a U.S. Senate seat in 2000, the number of new Indian voters was greater than her margin of victory. Two years later, Senator Tim Johnson, Democrat of South Dakota, survived a 500-vote squeaker and attributed his win to increased tribal turnout.

Today, in her "spare" hours, Small mentors a group of teenage girls. Last fall, Stanford University enrolled the group’s first alumna, Small’s eldest daughter. Such achievements in Indian Country are often tempered by fear the young won’t return, but Small doesn’t fret.

"They’ll come back eventually," she says. "If you’re Cheyenne and you were born and raised on the reservation, this is your home and you will always come back. Some may not come back until they die. But they will be buried here. And people will know who they are."

Told that hers seems a rather long view, Small says, "Not really. History lives here. I can point behind my house to where my grandmother is buried up in the hills. What other people talk about as the Custer Battle, the Cavalry Wars—these are our grandparents’ stories. Cheyenne know their life on this earth is fleeting, and they look at the perpetuation of the tribe as the main goal. We want our culture, land, and language to live on. Getting methane wealth, seizing and conquering, living only for yourself—what do these things matter compared to the perpetuity of your people?"

Stephen Hendricks is writing a book on the federal government’s covert war in the 1970s against Indian activists.

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