Baird Deposition Summary

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DEPOSITION SUMMARY

To: Rhead EnionFrom: Edward EisenmanDate: February 25th, 2016Re: Baird Deposition Summary

Introduction

This memorandum summarizes the May 13th, 2008 deposition of David W.

Baird in Quapaw v. Blue Tee Corp.

Background

David W. Baird is a professor at Pepperdine University and a historian who

has written three books on the Quapaw Indians. His responsibilities include

providing historical context for the case, speaking to the historical aspects of

sovereignty as historians understood them, and speaking to how the Quapaw’s have

used their natural resources over time. As a self-proclaimed narrative historian, his

books are carried by chronology and are not written towards a particular conclusion.

In the year prior to this deposition, Baird completed a research project for and about


the Quapaw people that did not entail litigation. He depended on the National

Archives for his material and completed a large portion of his research at the

University of Arkansas. Baird has dedicated over 30 years of his life to gaining a

better understanding of the history behind the Quapaw tribe, and was deposed as

their representative.

Summary

Page Line Summary

7 18-21 The focus of this deposition is on David W. Baird about work that he has done in connection to Quapaw v. Blue Tee Corp.

7 7-24 Introductions and beginning of questioning. Mr. Will represents defendant Doe Run Resources, and David Baird represents the Quapaw tribe.

7 13-16 Mr. Baird has never given a deposition before.

8 19-24 Mr. Baird discloses his responsibilities in this case. They include providing historical context for the case, speaking to the historical aspects of sovereignty as historians

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understood them, and speaking to how the Quapaw’s have used their natural resources over time.

10 1-18 Mr. Baird mentions the specifics of the scholarly work he has completed. He has written three books on the matter.

11-12 20-25, 1-3 Mr. Baird clarifies the difference between primary and secondary sources. He also makes it clear that his works were dependent on mostly primary sources.

13-14 1-25, 1-14 Mr. Baird responds to Mr. Will’s questions concerning the accuracy of the facts in his books. Mr. Baird makes explicitly clear that he was not intentionally factually inaccurate, but the substance in his novels were subject to change given how it has been 30 years since they were researched and written. Mr. Baird cannot identify a specific instance in which his textual information was misstated.

15 8-21 Mr. Baird clarifies his position as a narrative historian who is driven by chronology. He makes it known that he is not a

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thesis historian who would write to a particular conclusion.

16-17 15-25, 1-5 Mr. Baird discusses the intended audiences of his two books. One of which is intended for educational purposes in primary and secondary schools. The other one is catered to a legal audience and contains footnotes.

17-18 12-25, 1-10 Mr. Baird discusses research he completed at the University of Arkansas for and about the Quapaw tribe. Mr. Will attempts to find out information that Mr. Baird’s attorney, Ms. Chapman, deems potentially confidential.

19 1-3 Mr. Baird claims that the Quapaw, nor their agents, hired him for this research.

20 15-19 Mr. Baird discusses his source of information, the National Archives. He claims that he used this specific information 30 years ago and was simply revisiting it.

20 24 Mr. Baird was looking for a specific document titled “The Surveyors Notes of 1836”

23 13-19 Mr. Baird discusses one of the major conclusions that he came to. It is that the “Quapaw’s are resilient and

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have manifested their sovereignty to both Spanish and French. They were also treated as sovereigns by the United States.”

24 18-20 Baird reiterates that he is not aware of any factual errors in his books. He claims that other Quapaw book authors have used similar research, and have come to similar conclusions.

27 9-17 Baird claims that not only has no one ever pointed out factual errors in his books, but in fact, that he has been complimented on the accuracy of them.

31 1-25 Baird explains how is books are typically focused on pre-allotment. Some chapters touch on allotment, but there is not a large focus on it.

33 3-10 It is explained that the Quapaw tribe was given an individual patent to the land, which was to divide the Indian reservations into individual allotments. The Quapaw did this for themselves and then agreed to mining leases.

34 11-16 Baird clarifies, proclaiming that the Quapaw agreed on mining leases as a result of external pressure.

37 17-23 Mr. Will hands Mr. Baird a

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copy of Exhibit 1. This document is a report written by Mr. Baird on January 17th, 2008.

42 7-18 Mr. Baird discusses his method of citation in Exhibit 1. He claims that historians cite by paragraph, not sentence.

44 1-7 Mr. Baird responds to a question concerning the importance of using citations. “You use a footnote to extend conversation, provide a piece of information that is really not relevant to the text or you cite material that is not generally accessible in an encyclopedia, would be the best way I know to describe it.”

49 9-21 Mr. Baird used oral history from a film about the Quapaw in his research. Specifically, he relied on Jess McKibben and Robert Whitebird. He then makes it explicitly clear that you type notes on oral history up.

53 7-8 Mr. Baird says that you cite the document to the source, not the hand.

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55 18-23 Mr. Baird says that he was trained as a western American historian.

56 2-12 Mr. Baird says that Ethnohistory has enabled [historians] to ask more questions about the past. He mentions that his approach is economic.

56-57 23-25, 1-2 Mr. Baird says that Quapaw material is largely related to mining.

59 1-8 Mr. Baird says that although economic factors are extremely important, “there are other motivating factors that are equally significant (i.e intangible mystical qualities)”.

60 6-12 Mr. Baird answers Mr. Will’s question confirming that the Quapaw were somewhat unique in how they approached the allotment process.

61 11-15 Mr. Baird says that he has not authored a piece that deals with “these factors” with respect to the 20th century.

64 1-5 Mr. Baird says that after and even before 1921, the Government was acting on [the Quapaw’s] behalf in regards to land use.

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64 15-22 Mr. Baird says that “the Quapaw’s had their title restricted against alienation and were therefore under the guardianship of the federal government.”

68 2-4 It comes up that Mr. Baird once claimed that the Quapaw reservation was the hay capital of the world.

69 3-12 Mr. Baird clarifies: ‘if an individual Quapaw on their allotment was haying because they also had the right to lease, unmanaged early on, under duress. But if you have on their individual farmstead and they lease or they lease to somebody else or they do it themselves, then the revenue from that would go to them. But if they were restricted, the revenue went to the agency (the BIA).”

71-73 2-25, 1-25, 1 Mr. Baird details the historical details involving the Quapaw’s specific agricultural practices, and the Government’s ultimate decision to relocate them.

73 14-20 Mr. Baird says that the Quapaw continue to own their land as the environment permits. Both parties then enter a brief recess.

74 4-9 Mr. Baird answers Mr. Will’s question by

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conceding that there was a Quapaw tribal government that dated back to the colonial period.

75 13-24 Mr. Baird makes clear that this Quapaw government was viable. It provided schooling, created a railroad system, and represented the tribe in congress.

76 19-22 Mr. Baird says that after the death of Chief Charlie Quapaw, the tribe adopted allotment as a strategy.“That strategy was to retain their homeland as their own, rather than do it the way the Dawes Act would do it.”

76-77 23-25, 1-11 Baird explains what the Dawes Act was and explains that the Quapaw saw this as an opportunity to allot the whole reservation, because they did not like the idea of losing their home

79 12-17 Baird says that the Quapaw government did not exactly advocate in the early 1990’s for the continued availability of individual Quapaw to lease their lands for purposes of mining.

79 18-22 Mr. Will asks if “it was generally true that the tribal government supported the notion of the Quapaw leasing

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their lands and obtaining royalties from mining?” Mr. Baird then claims that he has no direct evidence of that.

80 25 Mr. Baird says he does not know of any resolutions passed by the Quapaw government opposing the use of Quapaw lands for mining during that time frame.

81 1 Mr. Will turns the depositions attention to page 194 of Mr. Baird’s book, to point to whether the government of the Quapaw was in fact advocating the individual, again the individual rights of the Quapaw to use their own lands as they saw fit.

83 22-25 Mr. Baird stands by the comments he made in his book.

85 15-20 Mr. Baird agrees that the Quapaw were not making decisions as a unit/government, as to who should use what land for what purpose.

87-88 21-25, 1-8 Mr. Baird notifies Mr. Will that the documentation of the sharing of all royal payments is in the book.

89 9-14 Mr. Baird clarifies that the tribe was not opposed to the New Deal as a whole, but instead disagreed with the

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Indian Reorganization Act. They were opposed to it because it said that individual allotments would go back to corporate control..

90 24-25 Mr. Baird says that there was a relationship between the wealthy elite, the tribal government, and peyote.

91 22-24 The book “History of the Quapaw People” is marked Exhibit 7.

92 1-7 Mr. Baird refutes a comment made my Mr. Will, exclaiming that the Quapaw people did not practice subsidence farming. He says that they produced enough food to sell the surplus, not just their individual families.

98 6 Both parties enter a brief recess for lunch.

98 7-11 Mr. Will asks Mr. Baird about where inhis report he addresses the issue of how the Quapaw’s have utilized their natural resources after the time of allotment. Mr. Baird says that this is addressed on page 28.

101-102 5-20, 1-25 Mr. Will calls into question the definition of subsidence that Mr. Baird has been referring to. Mr. Baird then infers that there was an “artificial barrier and that what took place after allotment may not have taken

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place after.” Mr. Baird “cannot say” if the uses of natural resources were different after allotment than they were before allotment.

104 19-22 Mr. Baird says that the agent said that all Indians in his jurisdiction cultivated part of their lands to provide for the winter’s food supply.

106 17-19 Mr. Will questions if Mr. Baird did not address in his report the extent to which there may have been Quapaw’s renting their lands for purposes of fanning or grazing after allotment.

109 4-14 Mr. Baird says that there was a significant number of Quapaw who chose to take their land and use it for purposes other than agriculture. He agrees that there was about an 80/20 split Of Quapaw, the ones who leased their lauds for mining purposes versus ones who did not.

110 2-5 Mr. Baird indicates that some of those who were among the wealthy few elite took some of their resources and bought other farms and continued to engage in agriculture.

111 4-17 Mr. Baird says that a few of the Quapaw labeled incompetent by the Government went to Washington to prove that

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they were capable of deciding for themselves whether or not to lease their land for mining purposes in the early 1900s.

112 15-17 Mr. Baird says that there was plenty of Quapaw who were duped into doing something that they soon found out they should not have done.

114 2 Mr. Baird is not aware of where the tribal council told the Government they cannot mine.

116 3-4 Mr. Baird does not recall receiving instruction to consider natural resources such as minerals that may not have been on Quapaw lands when speaking to the question of how the Quapaw’s have over time utilized their natural resources.

116 23-25 Mr. Baird makes clear that his expertise is “related only to the management of those by the Bureau of Indian Affairs.”

118 13-24 Mr. Baird says that he did not address in his report that the Quapaw made a lot more from using their land for mining purposes than they did from agricultural purposes.

119-121 1-25, 1-25, 1 Mr. Baird clarifies his definition of the term sovereignty. He also tries to

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explain how through some negotiations, the Quapaw were treated as government to government.

125 17-20 Mr. Baird says that he did not speak to the IRA or the business committee.

126-127 24-25, 1-5 Mr. Baird responds to a question from Mr. Will, claiming that there is nothing in the entirety of his report that deals with what actions the business committee has taken or may have taken.

128 9-17 Mr. Baird says he has no knowledge of whether or not there was any type of leasing for lands for hunting and fishing purposes by members of the Quapaw tribe.

128 20-24 Mr. Baird agrees that most of the materials he gathered for his book were left with the University of Arkansas. He cannot recall the materials he retained in connection with that initial research.

129 4-10 Mr. Baird announces the three major repositories for his research. He specifically cites the Oklahoma Historical Society, The National Archives, and Fort Worth.

130 1-17 Mr. Will once again attempts to find out who Mr. Baird is employed by. However, Mr. Nino interjects on the grounds of a potential breach of confidentiality agreement.

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131 10 Both parties agree that it is time for a brief recess.

131-132 15-25, 1-3 Mr. Nino tells Mr. Will that he can inquire about what work the confidential project was, but is not entitled to ask Mr. Baird about who his particular employer was.

133 22-25 Mr. Cardell assures Mr. Will that the people who employed Mr. Baird are not at all affiliated with this litigation.

133-135 1-25,1-25,1-25 Conflict ensues about whether or not Mr. Baird should breach a confidentiality agreement by notifying Mr. Will of who this employer was.

138 15 Both parties agree to move on from the issue and to potentially deal with it during the next break.

140 2-7 Mr. Baird notifies Mr. Will of what he understands this case to be about. He says that “it has to do in large pm1 with the usage of the Quapaw usage or lack thereof insofar as the natural resources on the reservation are concerned andspecifically as it relates to lead and zinc mining.”

140 12-15 Mr. Will turns to Exhibit 2, a letter agreement dated November 29th, 2007. It was signed by Mr. Baird on December 6th, 2007.

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141 17-25 Mr. Baird says that he put together his report in a two week window between Christmas and January 17th, 2008.

142 7-13 Mr. Will hands Mr. Baird a copy of Exhibit 3, his invoices for the case. This document reflects how much time Mr. Baird charged his employer for his work on this project.

145 2-10 Mr. Baird said this in regards to his understanding of the case at the beginning of the written report: “I had a

general understanding that it was about mining issues involving the Quapaw’s, and that is about the extent of it.”

148 7-13 Mr. Baird says that he focused on agricultural, hunting, and gathering in his report, because this was a case related to the utilization of natural resources. He says that he decided to not mention lead and zinc because his area of study does not include mining.

150 24-25 Mr. Will hands Mr. Baird a copy of Exhibit 4, it is the fourth amended and supplemental complaint, starting at QT 00318710.

151 6-7 Mr. Baird says he did not see this document until after he had written the report.

152 21-24 Mr. Will presents Mr. Baird

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with a copy of Exhibit 5, which is the most current version of his curriculum vitae.

153 1-4 Mr. Baird says that nothing should be supplemented or added to his CV.

153-154 18-25, 1-21 Mr. Will addresses an encyclopedia article on page 7 of the CV. Mr. Baird says that it is just a reduction of everything discussed during the deposition, and that he has no recollection of it being published. It was purely a derivative of his prior works.

155 1-5 Mr. Baird says he is not aware of any of the specific types of damages that are being sought by the Quapaw tribe.

156 9-16 Mr. Baird says that he would not call himself an expert in the field of history, because it is so vast. However, he believes he has competence in this category to speak as an expert. He claims to have some level of expertise in the history of Native Americans, the history of the American West, and the history of Oklahoma.

158 1-11 Mr. Baird considers himself more of an expert in history than in ethnohistory.

158 15-18 Mr. Baird says his book was written before the field of ethnohistory developed.

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159 1-3 Mr. Baird says ethnohistory enriches the work that he has already done.

160 11-16 Mr. Will does not understand how in the report Mr. Baird expresses these concepts of the separate discipline, ethnohistory, as opposed to standard history.

160 18-21 Mr. Baird responds that it is a level of sensitivity to matters other than documented by pieces of paper.

160 25 Record of deposition ends.

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Documents

Baird Deposition Summary