In my career as a historian, I have personally learned that there are two ways to witness history. In one sense, encountering events and people from the past has allowed me to construct and refine historical narratives, shining a scholarly searchlight on forgotten—or suppressed—stories. In the other direction, these moments of testimony have insisted on their own power to teach and inspire this teacher.
The two-way nature of witnessing—to explore, but to return enriched—has emerged most clearly in four decades of serving as a formal witness, a court witness, for more than a dozen Native American communities across North America. This work has given me a confidence in humanity and in our future together, a confidence that I would never have known otherwise.
As an expert witness, my role was to bring the experiences of the first peoples of this continent to bear in court cases where their rights as tribals and as Americans were being challenged. Here’s a confession: I never got used to maneuvering and fighting in the courtroom. Despite the resentment of contentious lawyers, I have had the privilege of compiling and communicating the unique history of Indigenous communities, uncovering human stories that shaped a narrative of suffering, resistance and unabashed courage. The entirety of this narrative has flowed back into my own life, showing the stubborn humanity of a people so often ignored or brushed aside. These experiences, which began in the role of an expert, reshaped me as a participant.
I unknowingly stepped into this dual role in 1977 when I was asked to be part of a case arising out of a boundary dispute on the Cheyenne River Sioux Reservation in central South Dakota. A group of white political leaders, outraged by the rise of assertive native leaders in the “Red Power” era, had launched a campaign to limit the reach of tribal governments. At the Cheyenne River, they claimed that a 1905 act of Congress authorizing part of the reservation to enter the public implicitly “reduced” the reservation. By chance, attorneys at the Department of Justice learned that part of my recently completed doctoral thesis in Indian history included a discussion of such “homestead laws.” As a white academic with no experience in Indian country, I was suddenly an expert.
I spent the next few months in libraries, the National Archives, local courthouses, and on the reservation. I set out to interview every octogenarian who might know and remember anything about the passage and implementation of the law. It turned out that the woefully flawed “agreement” with the tribe that Congress had deceptively used to justify its action was signed in the dead of winter, a time when few snowbound tribesmen left their homes to take part in the negotiations to participate. Most had no idea that changes were coming. But my research took me beyond superficial facts.
In my interviews on the Cheyenne River Sioux Reservation, Elder Raymond Clown told me that his family came out of their cabin one morning and found Norwegian-speaking settlers unloading a wagon in their front yard. His family’s experience was typical: government officials barely mentioned the new law to the tribe. Prospective decision-makers with authority over education, health care, and other services have never recognized the homestead areas or recognized a change in reservation boundaries. Clown’s testimony invited me to imagine the events from his family’s perspective.
On the Cheyenne River Sioux Reservation, the elderly Raymond Clown told me that his family came out of their cabin one morning and found Norwegian-speaking settlers unloading a wagon in their front yard.
It was both joyous and humbling when my interviews and research eventually became part of the records of a unanimous Supreme Court decision affirming the tribe’s position, which was ably defended by both their attorneys and attorneys of the judiciary. When the verdict came, I knew that to the extent that I had contributed to the tribe’s remarkable victory, I was probably because they had shared with me an unspoken truth, one I had learned from personal interviews, which encouraged me to look deep into the records I found in the archives: Cheyenne River residents viewed their reservation as the central vehicle that oriented them to the world.
Here’s what was most inspiring: The barely understandable legal language and daily government harassment that the people of Cheyenne River have endured—both past and present—couldn’t even remotely intimidate them. They beat away attempts to distract them from their way of life, like so many pesky mosquitoes.
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In Iron Lighting, a remote farming district that opponents of the tribe claimed was outside the boundaries of the reservation, Thomas Elk Eagle sat across from me at his kitchen table and recounted his life as a rancher, farmer and tribal citizen, a life that until dating back to the beginning of the century. Like Ray Clown, who didn’t understand why Norwegian immigrants suddenly appeared in his front yard, Elk Eagle never shied away from his commitment to living his life in his homeland for a second. His courage and generosity made me understand what the past was like for him and his family.
John Hump kept me on the edge of my seat – and long beyond the life of my battery-powered tape recorder – as he described the government’s indifference to his family’s complaints of trespassing and invasion. He told his story from his cabin near Cherry Creek, gradually drawing family members into the living room. When he ended, dozens of relatives and neighbors had attended his testimony. And the inadequacy of the opposition’s simple, legalistic argument became clear.
I’d gone to each of these people—and many more—to compile my expert report, but the sheer power of their stories compelled me to understand and testify to their indomitable devotion to their country. By telling their stories, the elders on the Cheyenne River gave me more than historical insight; They helped me understand and admire how native people view the universe and their lives. They conveyed to me their allegiance to their families and their homeland.
The elders on the Cheyenne River gave me more than historical insight; They helped me understand and admire how native people view the universe and their lives.
The insights they shared nourished and sustained me throughout a long and rewarding career in search of proper memory and a measure of justice: as I researched the history of voting rights on a Montana reservation; examined the harassment surrounding contract drafting in 19th-century Michigan; studied the persistence of tribal life on a supposedly abolished reservation in Minnesota; Or he pieced together the story of how a small group of Oneida Indians near Green Bay, Wisconsin worked to uphold a treaty that locals falsely claimed was invalid.
Native Americans face enormous obstacles when entering US courtrooms. Despite an impressive record of recent victories, they have few legal bases to back them up. To cite just one example, no legislation affecting Native Americans has ever been found unconstitutional.
And yet, in the right circumstances, the courts have heard testimonies from Aboriginal people and experts who have shared perspectives that cannot be ignored. This hardly means that the aborigines always or even consistently prevail. But as a supporting cast member in the drama to protect their lives and way of life, I was honored with the opportunity to help bring their voices into the courthouse. Time and time again, indigenous people have been ready and willing to reverse the typical direction of research—from scholar to subject—by teaching me the central truths of their past.
In human relationships, and especially in a democracy committed to the rule of law, listening and valuing the experiences of others inevitably leads to connections in our common humanity. Once we recognize and embrace this connection, it is impossible to retreat into caricatures or dismiss people who saw others as victims of history.
The privilege of listening to the stories and struggles of American Indians and communicating them in courtrooms and classrooms over many years has made my journey meaningful. Additionally, it has instilled a deep faith in the enduring presence of Native Americans and their immeasurable contribution to it.
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