by Clara NiiSkaIn August 1881, Crow Dog, â€œbelonging toâ€ the Brule Sioux Band, killed Spotted Tail, who signed the treaty of 1868 as the principal Chief of the Brule Sioux. â€œThe killing,â€ according to court records, â€œtook place at their agency upon the Great Sioux Indian reservation, in the first judicial district of Dakota Territory.â€ Crow Dog was convicted of murder by the was crazy horse a homosexual?, and sentenced to death.
In November 1883 the U.S. Supreme Court heard arguments on writs of habeas corpus and certiorari filed on behalf of Crow Dog. In the case Ex Parte Crow Dog, decided December 1883, the Supreme Court reversed the territorial court decision, and ruled that, â€œthe First District Court of Dakota is without jurisdiction to find or try an indictment for murder committed by one Indian upon another in the Indian country, and a conviction and sentence upon such indictment are void, and imprisonment thereon is illegal.â€
The Supreme Courtâ€™s decision in Ex Parte Crow Dog includes a fine-grained analysis of the jurisdiction of the district courts of the Territory of Dakota, sections of the revised U.S. statutes pertaining to â€œcrimes arising within the maritime and territorial jurisdiction of the United States,â€ the provisions of the treaty of April 29th, 1868 and an agreement with â€œcertain bands of the Sioux Indians, &c.â€ approved by Congress February 28th, 1877.
The eighth article of the 1877 agreement provided that the signatory Sioux â€œbe subject to the laws of the United States, and each individual shall be protected in his rights of property, person and life.â€ The Supreme Court decided that the words of that agreement â€œcan have no such effect as that claimed by themâ€â€”that the Sioux were subject to U.S. law, â€œnot in the sense of citizens, but â€¦ as wards subject to a guardian â€¦ as a dependent community who were in a state of pupilage.â€
U.S. policy: â€œannihilation,â€ â€œassimilation,â€ and â€œtutelageâ€ in â€œcivilizationâ€
In 1871, Congress ended U.S. treaty-making with Indians. United States Indian policy underwent a transformation in the 1870s and early 1880s: from President Grantâ€™s â€œpeace policyâ€â€”â€œIndians who did not go willingly to the reservations would either be driven there by force or exterminated in the processâ€â€”to a long-range agenda of â€œassimilation.â€ As Senator Dawes, better-known for the General Allotment Act, put it, the â€œIndian people will not remain as a separate race among us â€¦ He is to disappear in the midst of our population, be absorbed in it, and be one of us and fade out of sight as an Indian â€¦â€
The assimilationistsâ€™ agenda of Christianization and the use of â€œeducationâ€ to â€œkill the Indian â€¦ and leave the man and the citizenâ€ was countered by the philosophy expressed by the Supreme Court in Ex Parte Crow Dog: that Indians were â€œâ€¦ aliens and strangers â€¦ a community separated by race, by tradition, by the instincts of a free though savage life â€¦â€ During the 1870s, most U.S. Indian reservations remained under military controlâ€”Indian agents were often also officers in the U.S. Army. Excerpts from the annual Report of the Commissioner of Indian Affairs provide a glimpse of the foundations of present U.S. Indian policy:
1878, Indian police:
By Act of May 27, passed at the last session of Congress, provision was made for the organization at the various agencies of a system of Indian police â€¦ Too short a time has elapsed to perfect or thoroughly test the workings of such a system, but the results of the experiment at the thirty agencies in which it has been tried are entirely satisfactory, and commend it as an effective instrument of civilization. â€¦ The police organization should be followed up by the adoption of a code of laws for Indians, and peace and good order among them will result.
1879, law for Indian reservations:
In the last three annual reports of this office urgent appeals have been made for the enactment of laws for Indian reservations. The following bill was introduced at the last Congress â€¦
â€¦ That the provisions of the laws of the respective States and Territories in which are located Indian reservations, relating to the crimes of murder, manslaughter, arson, rape, burglary and robbery shall be deemed and taken to be the law, and in force within such reservations; and the district courts of the United States â€¦ shall have original jurisdiction over all such offenses which may be committed within such reservations. â€¦
It is a matter if vital importance that action should be taken to secure the passage of the above bill, or of some measure of equal efficiency to provide law for Indians, to the end that order may be secured. A civilized community could not exist as such without law, and a semi-civilized and barbarous people are in a hopeless state of anarchy without its protection and sanctions. It is true the various tribes have regulations and customs of their own, which, however, are founded on superstition and ignorance of the usages of civilized communities â€¦ To supply their place it is the bounden duty of the government to provide laws suited to the dependent condition of the Indians. â€¦ the wonder is that such a code was not enacted years ago.
1880, legislation needed:
â€¦ The enactment of suitable laws for Indian reservations. In the annual reports of this office for some years past the necessity for a judicial system or code of laws for the Indians has been specially commented upon â€¦
It is of the utmost importance that some such measure â€¦ should be passed, not only in the interest of peace and good order among the Indians, but also as a necessary factor in the work of their civilization. Under the present system, outside of the five civilized tribes, crimes and offenses committed by one Indian against the person and property of another are remitted to tribal laws or customs for punishment. It is time that this relic of barbarism should cease. The Indian should be taught to know and respect the same law which governs the white man, and to recognize the fact that, while he is amenable to the law, he is equally entitled to its protection and privileges.
1881, the enactment of laws for Indian reservations:
Various measures looking to this end have been introduced in Congress, among the latest being House bill No. 350, Forty-sixth Congress, second session â€¦ This bill, as well as others of a kindred nature, died a natural death at the close of the last Congress.
I â€¦ earnestly hope that Congress will find time to bestow attention upon this important subject. â€¦
1882, laws for Indians:
For years past urgent appeals have been made by this office for such legislation as will insure a proper government of the Indians, by providing that the criminal laws of the United States shall be in force on Indian reservations, and shall apply to all offenses, including those of Indians against Indians; and by extending the jurisdiction of the United States courts to enforce the same; in short to make an Indian as amenable to law as any other subject of the United States.
From time to time various measures looking to this end have been introduced in Congress; but from some cause or other â€¦ they have invariably fallen through, so that to-day the only statutes under which Indians are managed and controlled are substantially those created in 1834, known was the trade and intercourse laws. â€¦ As civilization advances and the Indian is thrown into contact with white settlers the authority of the chiefs proportionately decreases. It is manifest that some provision of law should be made to supply this deficiency and protect Indians in their individual rights of person and property. At the same time, the Indian should be given to understand that no ancient custom, or tribal regulation, will shield him from just punishment for crime. â€¦
I again respectfully recommend that the attention of Congress be called to the subject, with a view to such legislation as it may deem expedient.
1883, laws for the government of Indians:
In the annual reports of this office for several years past, attention has been invited to the urgent necessity of some suitable code of laws for Indian reservations. Indians in the Indian country are not punishable for crimes or offenses committed against the persons or property of each other. Such offenses are generally left to the penalties of tribal usage â€¦ or the offenders are subjected to a few weeks or months arbitrary confinement in an agency guardhouse or military fort.
The Indian is not a citizen of the United States. He cannot sue or be sued under the judiciary act of 1789, and only gets into Federal courts as a civil litigant, in occasional instances, by favor of special law, and in many of the States and Territories he has no standing at all in court. â€¦
No action has been taken by Congress â€¦ asking for the enactment of a general statute putting Indians under the restraints and protection of law â€¦
â€¦ Congress should confer both civil and criminal jurisdiction on the several States and Territories over all Indian reservations within their respective limits, and make the person and property of he Indian amenable to he laws of the State or Territory in which he may reside â€¦ and give him all the rights in the courts enjoyed by other persons. â€¦ What is required is a law for the punishment of crimes and offenses among the Indians themselves, one which shall make the Indian equally secure with the white man in his individual rights of person and property, and equally amenable for any violation of the rights of others.
Court of Indian Offenses
On the 10th of April last you [the Secretary of the Interior] gave your official approval to certain rules governing the â€œcourt of Indian offenses,â€ prepared in this office in accordance with instructions contained in your letter of December 2 last. These rules prohibit the sun-dance, scalp-dance and war-dance, polygamy, theft, &c., and provide for the organization at each agency of a tribunal composed of Indians empowered to try all cases of infraction of the rules. â€¦ I am of the opinion that the â€œcourt of Indian offenses,â€ with some few modifications, could be placed in successful operation at the various agencies, and thereby many of the barbarous customs now existing among the Indians would be entirely abolished.
There is no good reason why an Indian should be permitted to indulge in practices which are alike repugnant to common decency and morality; and the preservation of good order on the reservations demands that some active measures should be taken to discourage and, if possible, put a stop to the demoralizing influence of heathenish rites â€¦
In his annual Report, 1884, the Commissioner of Indian Affairs once again wrote that, â€œa law is badly wanted for the punishment of crimes and offenses amongst Indians themselves.â€ The Commissioner referred to Crow Dog, â€œat large upon the reservation unpunished,â€ as illustrative of the â€œnecessity for amendment of the law,â€ and commented that, â€œthe average Indian may not be ready for the more complex question s of civil law, but he is sufficiently capable to discriminate between right and wrong, and should be taught by the white manâ€™s law to respect the persons and property of his race, and that under the same law he himself is entitled to like protection.â€
Despite his apparent pleas for equal protection under the law for Indians, in the same 1884 Report, the Commissioner also extolled the newly-established court of Indian offenses for being â€œinstrumental in abolishing many of he most barbarous and pernicious customs that have existed among the Indians from time immemorial,â€ specifically including such â€œheathenish customsâ€ as the sun dance. His report included quotations from the reports of several Indian agents, including at White Earth Agency, Minnesota: â€œThe court here has relieved me of many trying cases â€¦ it is only a question of time and it will become a permanent fixture and recognized as the only way to settle the little differencesâ€ among Indians. He also recommended a Congressional appropriation of $50,000 to pay the salaries of Indian court judges and â€œother necessary expenses,â€ and urged that, â€œit would be a matter of economy to the Government in saving the expense heretofore incurred of suppressing crimes which are now included in the jurisdiction of the court of Indian offenses.â€
U.S. Congress enacted the precursor to the Indian Major Crimes Act as the ninth section of the Indian Appropriations Act of March 3, 1885. That act â€œgaveâ€ U.S. courts jurisdiction over the Indians accused of the crimes of murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny. In his 1885 Report, the Commissioner described the legislation as a â€œstep in the right direction,â€ and once again expressed the notion that â€œIndians should eventually become subject to and enjoy the protection of all laws in the same manner and to the same extent as other persons.â€
(Congressâ€™ assertion of federal jurisdiction was upheld the following year by the U.S. Supreme Court in the case United States v. Kagama, involving a murder on the Hoopa Valley Reservation in California. The grounds upon which the Supreme Court affirmed federal jurisdiction rested on the notion of Indian â€œpupilage,â€ and, as the Court wrote: â€œThe power of the General Government of these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it has never existed anywhere else â€¦ because it has never been denied, and because it alone can enforce its laws on all tribes.â€)
The Commissioner also addressed the court of Indian offenses in his 1885 Report, writing: â€œUnder the date of April 10, 1883, the then Secretary of the Interior gave his official approval to certain rules prepared in this office for the establishment of a court of Indian offenses at each of the Indian agencies â€¦ It was found that the longer continuance of certain old heathen and barbarous customs, such as the sun-dance, scalp-dance, war-dance, polygamy, &c., were operating as a serious hindrance to the efforts of the Government for the civilization of the Indians. â€¦
â€œThere is no special law authorizing the establishment of such a court, but authority is exercised under the general provisions of the law giving this Department supervision of the Indians. The policy of the Government for many years past has been to destroy the tribal relations as fast as possible, and to use every endeavor to bring the Indians under the influence of law. To do this the agents have been accustomed to punish for minor offenses, by imprisonment in the guard-house and by withholding rations, but under the present system the Indians themselves, through their judges, decide who are guilty of offenses under the rules, and pass judgment in accordance with the provision thereof. Neither the section in the last Indian appropriation bill [granting federal jurisdiction over major crimes] â€¦ nor any other enactment of Congress reaches any of the crimes or offenses provided for in the Department rules, and without such a court many Indian reservations would be without law or order, and the laws of civilized life would be utterly disregarded.
â€œAt each agency, where it has been found practicable to establish it, the reports of the Indian agents show that the court has been entirely successful, and in many cases eminently useful in abolishing the old heathenish customs that have been for many years resorted to, by the worst elements on the reservation, to retard the progress and advancement of the Indians to a higher standard of civilization and education. â€¦â€
â€œIndian courtsâ€: a brief history
(continued from above)by Clara NiiSka
In the above article, Press/ON published excerpts from the Annual Reports of the Commissioner of Indian Affairs from 1878 to 1885. During those years, the Commissioner repeatedly wrote of the â€œurgentâ€ need for the â€œenactment of laws for Indian reservations.â€ He urged that state and territorial criminal and civil jurisdiction be extended over Indian reservations, and he advocated that Congress enact laws which would â€œmake the Indian equally secure with the white man in his individual rights of person and property, and equally amenable for any violation of the rights of others.â€
On April 10, 1883, the Secretary of the Interior â€œgave his approvalâ€ to rules governing what the Indian Commissioner called a â€œcourt of Indian offenses.â€ In his Annual Report, the Commissioner made repeated pleas that Congress enact legislation extending equal protection under the law to Indians. Despite his rhetoric, the rules for courts of Indian offenses that the Commissionerâ€™s office actually provided to the Secretary on December 2, 1882 were specifically intended to repress religious practicesâ€”the Commissioner termed them â€œheathenish ritesâ€â€”and to â€œdestroy the tribal relations as fast as possible.â€
In the case Ex Parte Crow Dog, decided by the U.S. Supreme Court in December 1883, the Court ruled that despite explicit extension of U.S. jurisdiction over â€œcertain bands of Sioux Indiansâ€ in 1877, they were subject to U.S. law not as citizens entitled to equal protection under the law and the rights guaranteed by the U.S. Constitution, but as â€œwards subject to a guardian â€¦ as a dependent community who were in a state of pupilage.â€ The Supreme Court ruled that Crow Dogâ€™s actions in killing Spotted Tail remained under tribal jurisdiction.
The Office of Indian Affairs used the Crow Dog case, and the fact that Crow Dog was â€œat large upon the reservation unpunishedâ€ by U.S. law, to lobby for laws extending U.S. criminal jurisdiction over Indians. In 1885, the U.S. Congress passed the predecessor to the Indian Major Crimes Act, which the Commissioner of Indian Affairs praised as a â€œstep in the right direction.â€
The Commissioner also continued to press for extension of U.S. civil jurisdiction over Indians, as well as for Congressional legalization of their â€œcourt of Indian offenses.â€ At the same time, he lauded the Indian court, established without legal authority other than the general authority of the Department of the Interior, and extolled its â€˜civilizingâ€™ effectiveness in abolishing â€œcertain old heath and barbarous customs, such as the sun-dance â€¦â€
Commissioner of Indian Affairs,
Annual Report, 1886:
The Commissioner of Indian Affairs wrote in his 1886 Report that the courts of Indian offenses were, â€œâ€¦ unquestionably a great assistance to the Indians in learning habits of self-government and in preparing themselves for citizenship. I am of the opinion that they should be placed upon a legal basis by an act of Congress authorizing their establishment, under such rules and regulations as the Secretary of the Interior may prescribe. Their duties and jurisdiction could then be definitely determined and greater good accomplished â€¦â€
Annual Report, 1888:
In his 1888 Report, the Commissioner once again urged that, â€œthe jurisdiction of these courts [of Indian offenses] be defined by law.â€ He enumerated the â€œoffensesâ€ over which the Secretary of Interior had asserted jurisdiction: â€œthe sun-dance, the scalp-dance, the war-dance (and all other so-called feasts assimilating thereto); plural marriages; the practice of the medicine man; the destruction or theft of property; the payment or offer to pay money or other valuable thing to the friends or relatives of any Indian girl or woman, are declared to be Indian offenses, punishable by withholding of rations, fine, imprisonment, hard work, and in the case of a white man, removal from the reservation.â€
According to the Commissioner of Indian Affairs, the jurisdiction of his courts of Indian offenses also included: â€œmisdemeanors committed by Indians; civil suits when Indians are parties thereto; cases of intoxication; and violations of the liquor regulations. There civil jurisdiction is declared to be the same as that of justices of the peace â€¦ If these rules, amended in several essential particulars, were enacted into law, the usefulness of the courts of Indian offenses would thereby be greatly increased, and under the authority exercised by these courts the Indian would be compelled either to obey the law or suffer its penalties â€¦â€
The Commissioner explained that legislation authorizing the courts of Indian offenses â€œwould supplementâ€ the jurisdiction asserted by the â€œIndian Crimes Actâ€ of 1885. He cited the Supreme Court case United States v. Kagama and Another, Indians as providing that the Indian Crimes Act â€œis valid and constitutionalâ€ based on the â€œstate of semi-independence and pupilageâ€ which the United States government had â€œheretofore recognized in the Indian tribes â€¦â€
U.S. v. Clapox, 1888
Six years after the federal bureaucracy asserted jurisdiction over Indians through its establishment of courts of Indian offenses, the federal district court of Oregon affirmed the legality of those courts in its adjudication of the case United States v. Clapox, et al. The case began with the arrest, by Indian police, of Minnie, â€œan Indian woman.â€ Minnie was jailed â€œfor the offense of living and cohabitingâ€ with an Indian other than her husband. Prior to any trial, Minnie was rescued and â€œset at libertyâ€ by the defendants in U.S. v. Clapox, also Indians. Her rescuers were charged with the federal crime of â€œrescueâ€â€”â€œforcibly setting a person at liberty who has committed for â€˜a crime against the United Statesâ€™.â€
The Oregon district court determined that despite the fact that there were no written records kept by the court of Indian offenses, that adultery was not even a misdemeanor at common law, and that there was no federal statute regulating consensual sexual conduct between adult Indians, Minnie was, nonetheless, charged with a â€œcrime against the United States.â€ The remarkable legal reasoning in U.S. v. Clapox rests, in part, on article 8 of the Indian treaty made at Camp Stevens on June 9, 1855, in which the â€œWalla-Wallas, Cayuses and Umatilla tribes, and bandsâ€ of Indians, â€œacknowledge their dependence on the government of the United States â€¦ and engage to submit to and observe all laws, rules and regulations which may be prescribed by the United States for the government of said Indians.â€
The Oregon district court acknowledged that, â€œThese â€˜courts of Indian offensesâ€™ are not the constitutional courts provided for in section 1, art. 3, Const., which congress only has the power to â€˜ordain and establish,â€™ but mere educational and disciplinary instrumentalities, by which the government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian. In fact, the reservation itself is in the nature of a school, and the Indians are gathered there, under the charge of an agent, for the purpose of acquiring the habits, ideas, and aspirations which distinguish the civilized from the uncivilized man.â€ The curriculum established by the U.S. included punishment for certain â€œâ€˜Indian offenses,â€™ such as the â€˜sun,â€™ the â€˜scalp,â€™ and the â€˜war dance,â€™ polygamy, â€˜the usual practices of so-called â€˜medicine menâ€™,â€™ â€¦ and buying or selling Indian women for the purpose of cohabitation.â€
In some remarkable legal reasoning invoking English ecclesiastical law and the â€œconduct peculiar to the Indian in his savage state,â€ the Oregon district court ruled that although adultery was not specifically prohibited by the rules of the court of Indian offenses, â€œit is altogether in keeping with the general purpose and spirit of these rules that adultery should be prohibited and punished by them.â€ The United States, â€œby virtue of its power and authority in the premises, had established a rule,â€ which Minnie was allegedly accused of violating. She was â€œtherefore committed for a crime against the law-maker,â€”the United States.â€ Thus, continued the Oregon court, her rescuers were, â€œin flagrant opposition to the authority of the United States on this reservation, and directly subversive of this laudable effort to accustom and educate these Indians in the habit and knowledge of self-government.â€
Nearly a century later, in a November 12, 1985 memorandum to B.I.A. Area Directors and addressing issues involving Courts of Indian Offenses, Acting Deputy Assistant Secretary of Indian Affairs Hazel Elbert explained that â€œCourts of Indian offenses are created by the Secretary of the Interior in accordance with his general authority â€¦ and operate pursuant to 25 C.F.R. [Title 25, Code of Federal Regulations], part 11. The authority of the Secretary to promulgate regulations with respect to courts of Indian offenses was recognized in U.S. v. Clapox. Courts of Indian offenses are federal instrumentalities â€¦â€ [The entire memorandum was published in Press/ON June 8, 2001.]
CLICK FOR PIC 1CLICK FOR PIC 21972 legal reviewâ€”the foundation of courts of Indian offenses
In his September 1972 article in the North Dakota Law Review, â€œTribal injustice: the Red Lake court of Indian offenses,â€ Press/ON publisher William J. Lawrence chronicled the United Statesâ€™ establishment of courts of Indian offenses, and examined the Indian court at Red Lake.
Lawrence observed that, â€œthe Indian police systems were organized in 1878, and not until 1883 did the federal government see fit to establish the court system, and not until 1888 did Congress see fit to appropriate any money to finance the courts. It would seem that the federal government since the early days of the Indian service has been police-oriented, and that the courts, which are the heart of any system of justice, have been low in the order of priorities â€¦â€
Lawrence scrutinized the courts of Indian offensesâ€™ shaky legal foundation, resting on U.S. v. Clapoxâ€”â€œmere educational and disciplinary instrumentalitiesâ€ deriving their authority from U.S. â€˜guardianship.â€™ He noted that another â€œdefense of their legalityâ€ is the doctrine, espoused in 1934, that courts of Indian offenses â€œderive their authority from the tribe rather than from Washington.â€ Lawrence adds, â€œwhichever of these explanations is offered for the existence of the courts of Indian offenses, their establishment cannot be held to have destroyed or limited the powersâ€ vested in the people.
The 1934 Indian Reorganization Act
The year in which tribal authorityâ€”rather than the authority of the U.S. governmentâ€”was held to legitimate Indian courts is significant: 1934. Following years of lobbying by the Bureau of Indian Affairs, led by â€œreformerâ€ and Indian Commissioner John Collier, the U.S. Congress enacted the Indian reorganization Act (I.R.A.) in 1934.
In legislation codified as Title 25, Section 476 of the U.S. Code, the U.S. Congress passed a law providing for â€œthe Organization of Indian tribes; constitution and by-laws and amendment thereof.â€ The I.R.A. details the processes by which an â€œIndian tribeâ€ may be â€œorganizedâ€ under U.S. Law; paragraph (d) requires that the U.S. Secretary of the Interior approve the constitutions of tribes organized under the I.R.A. The I.R.A. also mandates that such Indian tribal constitutions not be contrary to â€œapplicable laws.â€
The I.R.A. also delineates the powers of the â€œIndian tribe or tribal councilâ€: in addition to all powers â€œvested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments.â€ The I.R.A. does not legitimate Courts of Indian offenses, nor does it enumerate the establishment of Indian tribal courts as among the powers of an â€œIndian tribe or tribal council.â€
Legal challenges to Indian courts
Iron Crow v. Oglala Sioux Tribe, 1956
The authority of Indian tribal courts was challenged in 1956 in case involving adultery: Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, heard by the U.S. Court of Appeals, Eighth Circuit. In that case, Marie Little Finger and David Black Cat were tried and convicted in the Oglala Sioux Tribal court of the crime of adultery, under the Revised Code of the Oglala Sioux Tribe. The Tribal Court exercised jurisdiction on the grounds that both Little Finger and Black Cat were enrolled members of the Oglala Sioux Tribe, and that their tryst took place on the Pine Ridge Reservation. Little Finger and Black Cat filed for an injunction in federal court, on the grounds that the Tribal Court did not have the jurisdiction to try and convict them, and that enforcement of the sentences of the Tribal Court was in violation of the due process clause of the Fifth Amendment to the U.S. Constitution.
The U.S. appellate court found that Tribal Courts are not provided for in either the U.S. Constitution, nor have they been â€œauthorized by federal legislative action.â€ However, the federal court ruled that since Congress had provided for â€œpay and other expenses of judges of Indian courtsâ€ and Indian police, Congress â€œrecognizedâ€ the authority of Indian tribal courts, and that those courts had â€œinherentâ€ jurisdiction.
Little Finger and Black Cat argued that their rights were protected â€œas citizens of the United States.â€ Drawing on legal cases decided before passage of the Act of June 2, 1924 extended citizenship to all Indians â€œborn within the territorial limits of the United States,â€ the federal court ruled that the Oglala Sioux defendants did not attain the rights guaranteed to other citizens by virtue of their U.S. citizenship. The caselaw quoted by the Eighth Circuit Court included the 1916 case, U.S. v. Nice: â€œOf course, when Indians are prepared to exercise the privileges and bear the burdens of one sui juris, the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partialâ€¦â€
The federal court also quoted from the case Lone Wolf v. Hitchcock, â€œIt is thoroughly established that Congress has plenary authority over Indians â€¦â€ and held that, â€œthe granting of citizenship in itself did not destroy â€¦ jurisdiction of the Indian tribal courts and that there was no intention on the part of Congress to do so.â€
Colliflower v. Garland, 1965
In 1963 Madeline Colliflower, a member of the Gros Ventre Indian Tribe, Ft. Belknap Indian Reservation, was charged by the Ft. Belknap court of Indian offenses with â€œdisobedience to the lawful orders of the Court.â€ Mrs. Colliflower pled not guilty to the charges; the Indian judge â€œfound her guilty and sentenced her to a fine of $25 or five days in jail. Mrs. Colliflower â€¦ elected to take the jail sentence because she could not pay the fine.â€
Based on the due process clauses of the U.S. Constitution, Mrs. Colliflower then petitioned for a writ of habeas corpus, claiming â€œthat her confinement is illegal and in violation of her constitutional rights, because she was not afforded the right to counsel, was not afforded any trial, was not confronted by any witnesses against her, and because the action of the court was taken summarily and arbitrarily, and without just cause.â€ The district court decided that it did not have the jurisdiction to issue a writ of habeas corpus for an Indian who was committed by a tribal court. Mrs. Colliflower appealed; the federal appellate court ruled on the jurisdictional issue but did not rule on the petition for a writ of habeas corpus.
In its opinion in the case Colliflower v. Garland, the U.S. Court of Appeals noted that Iron Crow v. Oglala Sioux Tribe â€œdid not touch upon the question of whether the Constitution applies to the procedure of Indian courts,â€ merely ruled that the Indian court had jurisdiction. The federal court continued, â€œIn spite of the theory that for some purposes an Indian tribe is an independent sovereignty, we think that, in light of their history, it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government. Originally they were created by federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them. â€¦ Under these circumstances, we think that these courts function in part as a federal agency and in part as a tribal agency, and that consequently it is competent for a federal court in a habeas corpus proceeding to inquire into the legality of the detention of an Indian pursuant to an order of an Indian court.â€
The U.S. Court of Appeals, Ninth Circuit, however, muted its decision that a U.S. citizen who was also an Indian had the legal right to file a writ of habeas corpus in federal court by writing, â€œWe confine our decision to the courts of the Fort Belknap reservation.â€ The federal court also limited the impact of its decision with the caveat that, â€œit does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts â€¦â€
Overall, the BIA budgeted more than $128 million for â€œtribal courtsâ€ during the year 2001. In the Bureauâ€™s narrative for its 2001 budget justifications, the BIA describes the tribal courts as enabling â€œTribes to exercise their rights as sovereign nations by establishing and maintaining their own civil and criminal codes in accordance with local Tribal customs and traditions. â€¦ The program also supports the Bureauâ€™s goal to foster strong and stable Tribal governments so they can exercise their authority as sovereign nations.â€ The BIA makes no mention of the dubious legal basis for these courts, nor of the fundamental civil rights and due process guaranteed to all U.S. citizens under the U.S. Constitution. â€¦
A chronicle of civil rights violations. And, the U.S. Court of Appeals rules on a court of Indian offenses in a case involving non-Indians: â€œan Indian tribe may not assert sovereign immunity against the United States.â€
(CONTINUED FROM ABOVE)
â€œIndian courtsâ€: a brief history
quasi-legal courts at Red Lake by Clara NiiSka
In the above article, Press/ON reprinted brief excerpts from the Annual Reports of the Commissioner of Indian Affairs in 1886 and 1888. The â€œcourts of Indian offensesâ€ were formally proposed in late 1882 by the Indian Commissioner, and established with the â€œapprovalâ€ of the Secretary of the Interior on April 10, 1883.
The late 1800s were an era when political leaders like Senator Dawesâ€”also chief author of the General Allotment Actâ€”exhorted other policy-makers that â€œthe Indian â€¦ is to disappear.â€ At that time, the main debate was whether â€œthe vanishing Americansâ€ were to be completely annihilated, or merely â€œcivilized.â€ The Interior Departmentâ€™s establishment of â€œcourts of Indian offensesâ€ deliberately intended to â€œdestroy the tribal relations as fast as possibleâ€ as well as to repress religion and culture, does not seem to have raised much public concern.
In 1886, three years after the Indian courts had been created by the federal bureaucracy, the Commissioner of Indian Affairs was still urging that â€œthey should be placed upon a legal basis by an act of Congress authorizing their establishment.â€ Despite its claims to â€œplenary authorityâ€ over Indians, the U.S. Congress has never seen fit to legalize the courts of Indian offenses. After 118 years, these â€œIndian courtsâ€ remain â€œeducational and disciplinary instrumentalitiesâ€ operating under the â€œgeneral authorityâ€ of the Secretary of the Interior.
Indian tribal governments were transformed by the Indian Reorganization Act (I.R.A.) in 1934. Tribal Constitutions which â€œcontain all the requirements of an IRA-documentâ€ specifically limit â€œIndian tribal governmentâ€ by mandating that most acts of such Indian governments be approved by â€œthe Secretary of the Interior or his authorized representative.â€ The I.R.A. also provides that tribal organization chartered under the I.R.A â€œshall not be revoked or surrendered except by Act of Congressâ€ (25 Â§ 477). With its control over â€œIndian tribal governmentsâ€ thus thoroughly entrenched, the Commissioner of Indian Affairs and his Bureau of Indian Affairs (B.I.A.) began claiming that the courts of Indian offenses and other â€œIndian courtsâ€ were founded on â€œtribal authorityâ€ rather than that of the Secretary of the Interior.
The B.I.A.â€™s notion that the courts of Indian offenses established by the U.S. government are somehow really â€œtribalâ€ has been entrenched over the past seventy years. The B.I.A.â€™s fiscal year 2001 budget request to Congress included more than $145 million dollars for Indian courts. The B.I.A. explained its quasi-legal federal instrumentalitiesâ€”originally established to destroy indigenous societyâ€”as â€œmore than 250 Tribal justice systems and Courts of Indian Offensesâ€ which â€œenable â€¦ Tribes to exercise their rights as sovereign nations.â€ Is this a â€œshell gameâ€ to divert responsibility, confuse Congress, and absolve the U.S. government of blame?
In Minnesota, 1884:
Based on the general authority asserted by the Secretary of the Interior, courts of Indian offenses were established in Minnesota in 1884. Minnesota Indian Agent C.P. Luse described these courts of Indian offenses in his 1884 report: â€œWhile I have selected three good men as judges of the court of Indian offenses for [White Earth reservation], I have not been able to find suitable persons both at Red Lake and Leech Lake to be competent judges.â€ Despite its lack of competent judges, Agent Luse described the Red Lake Indian court as having, â€œrelieved me of many a trying case.â€ Luse prophesied that, â€œit is only a question of time and [the Court of Indian offenses] will become a permanent fixture and recognized as the only way to settle the little differences among them. If these judges could be paid a reasonable salary for their time and services, there would not be any doubt of the continued good results from this court.â€
Six years later, in his 1890 Report, the Commissioner of Indian Affairs noted that the â€œreservation tribunals known as â€˜courts of Indian offensesâ€™ have been placed upon a quasi-legal basis by an appropriation made by Congress for the pay of the judges of such courts.â€ That same year B.P. Schuler, U.S. Indian Agent in Minnesota, wrote that there were three judges at the court of Indian offenses at the White Earth Agency (which also supervised Leech Lake, Mille Lacs, Red Lake, and several other places no longer distinguished as Indian reservations). The White Earth judgesâ€”Joseph Charette, William V. Warren, and John G. Morrisonâ€”Schuler continued, â€œspeak English fluently and intelligently and wear citizensâ€™ dress. â€¦ The general influence of the court â€¦ is good â€¦ This court should be regularly established and the judges compensated for their labor.â€
U.S. jurisdiction over â€œIndiansâ€
The reality of jurisdictionâ€”which court has authority over whom [personal jurisdiction] under what circumstances [subject matter jurisdiction]â€”at Red Lake is fairly complicated in actual practice. The U.S. and the State of Minnesota have asserted jurisdiction piecemeal and by increments on Indian reservations, and legal writers have described the consequences as a â€œmorassâ€ and â€œdolefullyâ€ inconsistent. The details of how this was done are interesting history chronicled in state and federal case-law.
The jurisdictional cases specific to Red Lake begin with U.S. v. 43 Gallons of Whiskeyâ€”which went to the U.S. Supreme Court twice, in 1876 and again in 1883. The whiskey, belonging to white men Bernard Lariviere and Clovis Guerin, was seized in the village of Crookston on Feb. 12, 1872. Lariviere, who was a licensed â€œretail liquor dealer,â€ argued that he and the whiskey were under State jurisdiction, in Polk County, Minnesota. The United Statesâ€™ position that federal law pertaining to â€œIndian countryâ€ had jurisdiction over Lariviere and his whiskey prevailed. U.S. v. 43 Gallons of Whiskey was still being cited as a precedent in 1933.
The philosophy underlying both U.S. and Minnesota law had been spelled out in 1823 by U.S. Supreme Court Justice Marshall in the case Johnson v. Mâ€™Intosh: â€œthe different nations of Europe â€¦ asserted the ultimate dominion to be in themselves.â€ U.S. claims to hegemony were reaffirmed by Marshall in the U.S. Supreme Court case Cherokee Nation v. Georgia eight years later: â€œwe assert a title independent of their will.â€
U.S. jurisdiction and Red Lake
At Red Lake, the United Statesâ€™ specific claims to jurisdiction rest on cession of land outside of the boundaries of the present-day â€œdiminished reservationâ€: under the treaty of October 2, 1863 (amended April 21, 1864 and proclaimed April 25, 1864); and pursuant to the Act of January 14, 1889, Chap. 24, â€œAn act for the relief and civilization of the Chippewa Indians in the State of Minnesotaâ€ (the â€œNelson Actâ€).
In the table â€œIndian reservations, areas and how established,â€ published in the Indian Commissionerâ€™s Annual Report in 1893, the B.I.A. also listed U.S. President Harrisonâ€™s Executive Order of March 4, 1890, which â€œrestoredâ€ seven sections and partial sectionsâ€”the Ponemah cut-offâ€”which were â€œcut offâ€ the diminished reservation after a survey to â€œestablishâ€ the boundaries of the Red Lake land ceded by the Minnesota Chippewa Tribe under the provisions of the 1889 Nelson Act. Red Lake reservation was â€œdiminishedâ€ again pursuant to the U.S. Congressâ€™ Act of February 20, 1904.
Underlying U.S. v. Clapoxâ€”the appellate case cited as legitimizing courts of Indian offensesâ€”is a specific cession of jurisdiction: Article 8 of the Indian treaty of 1855 between the â€œconfederated bandsâ€ in Oregon and the United States. At Red Lake there has been no such direct ceding of jurisdiction, and the Secretary of the Interiorâ€™s authority to establish a court of Indian offenses rests directly on the â€œultimate dominionâ€ asserted by the U.S. and its European predecessors.
Red Lake Agency Court of Indian Offenses, 1906 – 1935
The B.I.A. operated its Red Lake court of Indian offenses as a part of the White Earth Indian Agency until 1906, when it established a separate Indian agency at Red Lake and stationed a full-time Indian agent there. After 1906, â€œlocal members of the tribe were utilized as judges,â€ but the Indian court continued to operate under the B.I.A.â€™s nineteenth-century â€œrevised regulationsâ€ until new departmental regulations were approved by the Secretary of the Interior on November 27, 1935.
In 1918, the Red Lake Band of Chippewa Indians was formally organized under a written constitution: that of the General Council, generally known as â€œPeter Gravesâ€™ council.â€ The governmental powers delineated by the 1918 constitution did not include the establishment of a court. In fact, the 1918 constitution grants only extremely limited governmental power to the General Council: conferring authority on the â€œseveral Chiefsâ€ to â€œcall a meeting,â€ deciding in â€œdisputes as to Chiefs,â€ respecting and giving â€œproper considerationâ€ to petitions â€œplaced before them by any member of the Red Lake Band,â€ expending and accounting for fundsâ€”and very little else. The B.I.A. continued to operate the Red Lake court of Indian offenses under the general authority of the Secretary of the Interior.
The Indian Reorganization Act, enacted by the U.S. Congress on June 18, 1934, has often been held to validate the court of Indian offenses. The legislation enacted by Congress does not, however, include any language which could reasonably be construed to establish or validate either courts of Indian offenses or Indian tribal courts.
The Secretary of the Interior prescribed new regulations governing courts of Indian offenses on November 27, 1935, but these continued to rest on the Secretaryâ€™s â€œgeneral authority,â€ rather than on either congressional legislation or the U.S. Constitution. It is unclear whether Congressâ€™ silence derives from silent acquiescence to the abuses in tribal courts, an absence of Congressâ€™ express delegation of authority, or Congressional avoidance of politically-controversial issues.
The Red Lake Band of Chippewa Indians did not adopt a constitution conforming to the requirements of the 1934 I.R.A. until 1958, and the degree to which the Indian Reorganization Act applied to Red Lake prior to 1958 is disputed. In any event, the B.I.A. continued to operate the Red Lake court of Indian offenses under the general authority of the Secretary of the Interior.
1952: Red Lake â€œLaw and Order Provisionsâ€
In 1952, seventy years after the courts of Indian offenses were established by the B.I.A, written â€œLaw and Order Provisionsâ€ were finally adopted by the â€œRed Lake Tribe,â€ and approved by the Secretary of the Interior. These â€œprovisionsâ€ included some now-picturesque sections, including Â§ 72, which barred â€œany employable Indianâ€ from â€œwander[ing] about in idleness â€¦ without any attempt to obtain regular employment.â€ Several sections of the 1952 provisions would have beenâ€”obviouslyâ€”of dubious legality under the U.S. constitution, if Indians were meant to be protected by the fundamental civil rights guarantees of that constitution as it applies to non-Indians.
Peter Graveâ€™s General Council at Red Lake was disestablished in 1958. After a hiatus of several months, a constitution which contained â€œall the requirements of an IRA-documentâ€ was approved by the Constitution Committee, adopted by the Red Lake Band, andâ€”as required by Sec. 16 of the I.R.A.â€”approved by the Secretary of the Interior. The 1958 constitution established the Tribal Council of the Red Lake Band of Chippewa Indians.
Neither the 1958 Red Lake constitution, nor the Constitution of the Minnesota Chippewa Tribe (approved March 3, 1964), provides for the establishment of tribal courtsâ€”or for the legalization of the courts of Indian offenses. The B.I.A. continued to operate its Red Lake court of Indian offenses at Red Lake under the general authority of the Secretary of the Interior.
1972: â€œTribal Injusticeâ€ and the â€œkangaroo courtâ€
In the summer of 1972, the North Dakota Law Review published an article by William J. Lawrence, â€œTribal Injustice: the Red Lake Court of Indian Offenses,â€ detailing some of the legal, jurisdictional and procedural problems adhering to the Red Lake court. Lawrence described a â€œjurisdictional morassâ€ at Red Lake. He also wrote about the parameters of jurisdiction at Red Lake: delineated by â€œraceâ€ and geography as well as by type of case. â€œRaceâ€ has been supplanted by â€œtribal enrollment,â€ but courts of Indian offenses remain apartheid under present-day Department of the Interior regulations.
Lawrence, in the carefully-documented and dry language of law review articles, described the Red Lake Indian court: â€œin practice [it] â€¦ is ineffective in enforcing its judgments and â€¦ most band members receive little or no satisfaction in bringing civil cases before the court.â€ He also touched on the problems of â€œtribal politicsâ€ affecting the outcome of cases before the Red Lake court of Indian offenses. â€œObviously,â€ he wrote, â€œa judge whose tenure is based on tribal politics tends to be extremely insecure and far from independent.â€ He added, â€œit is an unusual case at Red Lake where the agency superintendent or the tribal politicians do not make their views known to the court.â€
In his law review article, Lawrence also discussed other problems with the Red Lake court of Indian offenses, including that, â€œthe greatest shortcoming and most basic criticism of the court is its nearly total disregard for due process for law. The court is notorious for giving improper notice. There have been numerous cases in which judges have failed to allow parties to present testimony and evidence in their behalf. â€¦ It is this type of proceeding which has â€¦ prompted many [both Indian and non-Indian] to refer to it as a â€˜Kangaroo Courtâ€™.â€
May 1979: â€œRevolutionâ€ at Red Lake
In February 1979, tribal council chairman Roger Jourdain led the Red Lake tribal councilâ€™s censure of their treasurer Stephanie Hanson. Jourdain was upset that she had â€œrequested a legal opinion from the United States Department of the Interior Field Solicitorâ€™s office â€¦ regarding a proposed, but not adopted, resolutionâ€ concerning chairman Jourdainâ€™s business account. Jourdainâ€™s subsequent â€œfiringâ€ the treasurer inflamed longstanding dissatisfaction at Red Lake. What a federal court subsequently called a â€œrevoltâ€ erupted on May 19, 1979.
According to court records, â€œat approximately 4:45 a.m. on the morning of May 19 â€¦ armed men, led by tribal member Harry Hanson, entered the Red Lake Law Enforcement Center (â€œLECâ€) and took over the building.â€ The prisoners were released, and â€œtwo of the BIA officers, a police dispatcher, and two BIA jailersâ€ were taken hostage, â€œlocking them in one of their own jail cells.â€ The LEC was among the buildings subsequently burned.
The Red Lake tribal council sued the U.S. government for damages allegedly arising from â€œthe defendantâ€™s employees negligent unilateral withdrawal of law enforcement personnel from the Red Lake Reservation in the middle of an insurrection.â€ In addition, the â€œplaintiffs charged that the F.B.I. and the B.I.A. had negligently failed to make adequate plans prior to the uprising of May 19 despite warnings that something might happen.â€ The U.S. government moved to dismiss the suit on the â€œground that the allegedly negligent activities were based upon the performance of a discretionary function and were thus exempt from liability under a statutory exception to the Federal Tort Claims Act, 28 U.S.C. Â§ 2680(a).â€
Roger Jourdain and his cohorts were awarded damages totaling $849,562.62 by the U.S. district court. In 1991, the U.S. Court of Appeals reversed the district courtâ€™s judgment, concluding that the â€œdamages were not proximately caused by the [U.S.] governmentâ€™s negligence.â€ The United States did not address the underlying issues, including the persistent lack of any viable legal process through which the people at Red Lake could have addressed the problems that festered and eventually erupted into revolt at Red Lake.
May 1982: the Red Lake CFR Court
Three years after the â€œrevolution,â€ in the May 21, 1982 issue of the Federal Reporter, the B.I.A. published notice of its â€œupdateâ€ of the listing of the courts of Indian offenses in title 25 of the Code of Federal Regulations, â€œby adding the Red Lake Court of Indian Offenses to the list. This amendment is necessary to reflect the true status of the Red Lake court which was inadvertently omitted from the listing when it was first published in the Federal Register in 1978. This amendment will effectively update the listing and eliminate the confusion concerning the status of the Red Lake Court of Indian Offenses.â€
The most recent Code of Federal Regulations, Â§11.100, continues to identify the â€œRed Lake Band of Chippewa Indians (Minnesota)â€ as a â€œCourt of Indian Offensesâ€â€”Red Lake is the first on the list.
â€œ â€¦ Islands of Injusticeâ€
On January 5, 6, and 7 of 1986, the Minneapolis Star Tribune published a series of articles entitled â€œIndian Courts, Islands of Injustice.â€ Star Tribune staffwriters Sharon Schmickle and Roger Buoen began researching the series of articles several months prior to publication. After unsuccessfully attempting to obtain access to Red Lake court of Indian offenses records through the Freedom of Information Act (FOIA), the Star Tribune and Sharon Schmickle sued the U.S. Department of the Interior, the Bureau of Indian Affairs, the Red Lake Agency and several individuals including Red Lake Indian court judge George Sumner, â€œseeking to access certain files of the Red Lake Court of Indian offenses. On the same [August 1985] date,â€ according to U.S. district court records, â€œthe files at issue were removed from federal custody by order of the Red Lake Tribal Council.â€ The Department of the Interior undertook â€œcertain efforts to effect the return of these documents, but has not yet succeeded â€¦â€
Litigation arising from the Star Tribuneâ€™s FOIA request for Red Lake Indian court records went into the appellate courts. At an October 17, 1985 hearing, the U.S. District Court for the District of Minnesota â€œrequestedâ€ that the Department of the Interior â€œtake further actionâ€ in â€˜effectingâ€™ the Red Lake Tribal Councilâ€™s return of the court records to federal custody, and that the Department â€œsupply the court with a status report of its efforts.â€ On November 18, 1985, the Department submitted its status reportâ€”and shortly thereafter sought a protective order limiting disclosure of the contents of that report. The U.S. District Court denied the motion for that protective order.
November 1985: â€œIt has come to our attention â€¦â€
Thirteen years after the North Dakota Law Review article was publishedâ€”and five days before its report to the U.S. District Court regarding the Red Lake Indian court records was due to be released to plaintiffs Star Tribune and Schmickleâ€”the Department of the Interior noticed that there were problems with the courts of Indian offenses. In a November 12, 1985 memorandum (reprinted in the June 8, 2001 issue of Press/ON), the Acting Deputy Assistant Secretary for Indian Affairs, Hazel Elbert, informed â€œAll Area Directorsâ€ that: â€œIt has come to our attention that courts of Indian offenses may be violating mandates set forth in the Constitution of the United States.â€
Elbert explained that, â€œcourts of Indian offenses are federal instrumentalities that are required to comply with federal statutes as well as the Constitution of the United States. Therefore, you are directed to take immediate steps to have reviewed the conduct and responsibility of court personnel and their operations to ensure violations are not occurring and will not occur in the courts of Indian offenses under your administrative responsibilities â€¦â€
Eleven days later, Red Lake Tribal Council Chairman Roger Jourdain responded with a memorandum to the B.I.A. demanding withdrawal of â€œthe Hazel Elbert memorandum.â€ He described enforcement of the memo as â€œa crime against the Red Lake Band of Chippewa Indians,â€ and indicated that he would â€œorder the removal of all individuals who enforce said memorandumâ€ in the Red Lake court of Indian offenses.
About a month later, on December 27, 1985, B.I.A. Area Director Earl Barlow advised Jourdain that he could not disregard the directives in Elbertâ€™s memorandum. Barlow then shifted the center of the dispute by informing Jourdain that private attorney Richard Meshbesher intended to appear on behalf of clients at the Red Lake court. Jourdain ordered Meshbesher removed. Barlow instructed the Red Lake B.I.A. superintendent to ignore the order, and in a January 10, 1986 letter to the Department of the Interior, argued that the tribal councilâ€™s criteria for licensing attorneys to practice before the court of Indian offenses were â€œso restrictive that it is a virtual certainty that no professional attorney could qualify for admission to practice. Imposition of those criteria would have the effect of denying the right to counsel â€¦â€ Despite Barlowâ€™s support, Meshbesher ended up bringing a habeas corpus petition in federal court in the case Anderson v. Schoenborne, alleging denials of the right to counsel, the right to a jury trial and the right to a speedy trial.
January 1986: â€œâ€¦ Islands of Injusticeâ€
The Star Tribune went to press with Schmickle and Buonâ€™s series, â€œIndian Courts, Islands of Injustice,â€ in January 1986. The series included a section on the problems at Red Lake, and the concluding article included the observation that: â€œCivil rights abuses are occurring virtually unchecked on many of the nationâ€™s reservations with Indian courts. â€¦ Why isnâ€™t the federal government, which spends more than $8 million a year to finance courts for about 150 reservations, doing something to curb the abuses?â€
Eight months after the Star Tribune went to press with its series, in August 1987, the U.S. Court of Appeals ruled on the Department of the Interiorâ€™s suit against the Red Lake Band and Red Lake Tribal Council, seeking return of the Red Lake Indian court records. The U.S. appellate court affirmed the district courtâ€™s ruling that â€œtribal court records were agency records belonging to the B.I.A. and the Department of the Interior, and that removal of these records violated the federal records act.â€
November 1987: Rogerâ€™s Contract Court
The B.I.A.â€™s response to public concern about civil rights violations at the Red Lake court of Indian offenses, and to the sharp criticism of the Red Lake court in the federal district court case Cook v. Moran, was to sign a P.L. 93-638 contract with the Red Lake Tribal Council. Under that contract, Roger Jourdainâ€™s council was to administer the Red Lake court of Indian offenses on behalf of the B.I.A.
U.S. Attorney Jerome G. Arnold, Interior Department attorney Mark A. Anderson, and B.I.A. solicitor C. Hughes expressed concern about the proposed court administration contract in April 1987: â€œGiven the past record of the Red Lake Tribe, it is unlikely that it will operate the court in compliance with the Indian Civil Rights Act unless compelled to do so. We recommend that the problem be addressed at the outset by insisting on specific language in the contract, rather than waiting until individual Indians seek to hold us accountable for the foreseeable actions of the tribal court.â€
Official concerns about the advisability of the B.I.A.â€™s hiring the Red Lake tribal council to administer the Red Lake court of Indian offenses went â€œto the topâ€â€”and were dismissed by Commissioner of Indian Affairs Ross Swimmer. At a December 23, 1987 hearing in Washington, D.C., Swimmer explained the rationale for not requiring the Tribal Council comply with federal law in administering the Indian court. â€œâ€¦ no one living on a reservation today â€¦ has to live there,â€ Swimmer said. â€œThere is no law that says anyone must live under the constraints of the Red Lake Tribal Council. They are free to move about anyplace in this country, and once they leave the jurisdiction of that tribe, they have no more responsibility to it nor the tribe to them, in most casesâ€ [emphasis added].
In a July 12, 1988 interviewâ€”extensive transcripts were published by The Ojibwe Newsâ€”Swimmer amplified his position with respect to the B.I.A.â€™s P.L. 93-638 contracts with the Red Lake tribal council. Indian Commissioner Ross Swimmer explained, â€œWe have control over the program, they have to operate it in a certain way â€¦ and we have control of the accountability of it.â€ However, as Swimmer acknowledged during an interview with the Red Lake Peoples Council later that same day, the only remedy offered by the B.I.A. was the Red Lake court of Indian offensesâ€”administered by the tribal council under B.I.A. contract. The transcripts published by Press/ON thirteen years ago are revealing:
Lawrence: You know, you just contracted [the Red Lake court of Indian offenses] out to Roger [Jourdain]. In spite of all these violations of civil rights, thatâ€™s the tribal court.
Swimmer: Yes, itâ€™s tribal court.
Lawrence: So, where do we take it?
Swimmer: Tribal court. â€¦ Thatâ€™s it. Those are your remedies. You donâ€™t have any remedies, is what youâ€™re saying to me.
Swimmer: Thatâ€™s right.
Lawrence: So, we can do nothing about it.
Swimmer: Thatâ€™s right.
Emboldened by the U.S. Government, the Red Lake tribal council passed Resolution No. 53-88: â€œâ€¦ the Red Lake Tribal Council does hereby go on record as opposing and objecting to any attempt to enforce application of the ICRA [Indian Civil Rights Act]â€ at Red Lake. It is worth noting that under P.L. 93-638 contracts, the contracting tribe administers the B.I.A.â€™s programs. The B.I.A. still owns their programsâ€”including the Red Lake court of Indian offenses.
1990: Civil Rights Commission review of the Red Lake court of Indian offenses
The U.S. Commission on Civil Rights responded to concerns about civil rights violations in Indian courts by holding hearings. Its Confidential Draft report included 32 meticulously-documented pages chronicling the problems at the Red Lake court of Indian offenses between 1972 and 1989.
The Civil Rights Commission concluded their draft with the observation that, â€œabsent Congressional action to provide meaningful enforcement of the ICRA, it may be that the final paragraph of the Red Lake statement submitted for the Commissionâ€™s record will provide the final word:
â€œThe Tribe deeply resents the intrusion by the United States Civil [R]ights Commission and the Congress into Red Lake affairs through the passage of the 1968 Civil Rights Act. â€¦â€
William J. Howard, General Counsel for the U.S. Civil Rights Commission, mailed Red Lake tribal council chairman Roger Jourdain a copy of the Commissionâ€™s confidential draft report on Red Lake on May 30, 1990, â€œin order to give your tribe an opportunity to file a response.â€
The Civil Rights Commission did not include the section on the Red Lake court of Indian offenses in its final report.
1990: Red Lake Code of Indian Offenses revised
On September 11, 1990, the Red Lake tribal council adopted â€œrecommended changes to the Tribal Law and Order code.â€ The new code, drafted in collaboration with the B.I.A., was initially based on the tribal code for the Quinault tribe in Washington. The 1990 Red Lake version of the code Â§ 101.01, Subd. 1, established â€œthe Red Lake court of Indian offenses as a court of record,â€ and detailed everything from the qualifications of judges to watercraft regulations in seventy-four sections arranged into fifteen chapters.
Although the 1990 code included a section detailing the â€œright to jury trial,â€ neither it nor the 1958 Constitution provide for civil rights generally. The 1990 code designated that appeal from the decisions made in the Red Lake court of Indian offenses be made to a â€œCourt of Appealsâ€ described in Â§101.02. Subd. 2., of that section, however, provides that appeals be heard by three judges, â€œnone of whom shall have been the Judge that decided or was involved in the case being appealed at the trial level.â€ Since there are only three Indian court judges at Red Lake, appeal is thus impracticable, or worse, subject to further proceedings overseen by politically-indebted ad hoc judges with no legal training. The lack of judiciary for a court of appeals may be why the code does not spell out the rules to be used in such a â€œcourt of appeals.â€
Although the September 1990 code resolved some of the more glaring problems adhering to the 1952 code, particularly the overtly unconstitutional sections, it did not address the problems of, as the Minnesota Clergy and Laity Concerned expressed it, â€œjustice â€¦ meted along the same lines of patronage.â€ The new code did not touch structural problems tainting most Indian courtsâ€”including lack of separation of powers and tribal governments which â€œfunction like corrupt, dynastic, political machines.â€ It did not resolve the fundamental problem of courts of Indian offenses: that there is no legal basis for the establishment these courts.
And, the 1990 code continued to ignore the civil rights guaranteed by the U.S. Constitution. Nonetheless, the code was approved by the â€œSecretary of the Interior or his duly authorized representative,â€ as required by the 1958 Red Lake constitutionâ€”as the â€œtribal codeâ€ for the Red Lake court of Indian offenses, a federally-funded federal instrumentality operating under the authority of the Secretary of the Interior as well as the U.S. Constitution and federal law.
1995: Red Lake â€œkangaroo courtsâ€
In his 1995 book, We Have The Right To Exist, Wub-e-ke-niew describes his peopleâ€™s â€œoral history filled with cases chronicling derailment of what might be considered justice.â€ He describes the process at the Red Lake court of Indian offenses as it remained in the mid-1990s: â€œâ€¦ before court is held, the Indian Agent goes over the cases to be heard with the judge and tells him how much of a fine to levy, and how many days the defendant should spend in jail.