Chapter 4 - Apartheid at Red Lake

        The I.R.A. and tribal courts
            Indian court jurisdiction
            Dead “Indians”
            Wub-e-ke-niew and “race”

Until November 1987, the “tribal court” at Red Lake was unambiguously a “Court of Indian Offenses” – and was fairly widely perceived as a beset with serious problems in its administration of injustice to the Indian people subject to Indian court jurisdiction.

More than sixty years after Congress granted “citizenship” to Indians in 1924, both the B.I.A. and ‘tribal government’ persistently violated Indians’ civil rights on reservations including Red Lake. In its May 1990 confidential draft report, Enforcement of the Indian Civil Rights Act of 1968,[1] the United States Commission on Civil Rights chronicled some of the public concerns about the Red Lake Indian Court during the preceding eighteen years:

… to understand more clearly the Department of Interior’s role with respect to the rights of reservation residents vis-à-vis tribal governments, the [Civil Rights] Commission continued to draw upon the Bureau [of Indian Affairs’] recent handling of matters involving the Red Lake Tribe [i.e., Red Lake Band of Chippewa Indians].[2]

1972: A law review article appeared criticizing the tribal courts at Red Lake[3]

1977: The Department of Justice prepared to sue the Red Lake Tribe regarding the tribal law requiring attorneys to be members of the tribe. The suit was dropped when the Martinez decision came down.[4], [5]

1979: The council removed the tribal treasurer. ... This sparked an uprising which resulted in the burning of Red Lake Chairman Roger Jourdain’s house along with other property. [The U.S. Commission in Civil Rights narrator] believe[s] about 13 buildings were burned and, unfortunately, two deaths occurred.[6]

1980: The Red Lake Council passed a resolution barring the news media from the reservation.[7]

1982: Another resolution barring the news media was passed.[8] Also in 1982, a B.I.A. consultant reported, “The Red Lake court has never had a jury trial and juries were not being provided, even when requested by parties.”[9] Around that time, an Interior Department attorney advised B.I.A. officials that the court’s practice of not providing a jury trial violated rights secured by the Indian Civil Rights Act.[10]

1985: Senator Boschwitz and Representative Stangeland requested the U.S. Comptroller General to investigate the Red Lake system, which they never did, as [the U.S. Civil Commission on Civil Rights narrator] understand[s] it.[11]

May 1985: Two prisoners were released by a Federal district judge on the grounds that they had been denied counsel, bail, and the right to a trial by jury.[12]

August 1985: The Red Lake Council began requiring that attorneys be members of the Red Lake Tribe, understand Chippewa, and be a resident of the reservation.[13] In 1985 also, the Minneapolis Star and Tribune brought a Freedom of Information action against the Department of the Interior seeking the Red Lake court records.[14]

August 1985: The court records were seized by the Red Lake Tribe [tribal council]. Suit had been brought by the U.S. Government to recover those records on the grounds that the records are “Agency records” of the B.I.A.. The U.S. District Court for Minnesota and the Eight Circuit have ruled in favor of the U.S. Government. The tribe has petitioned the U.S. Supreme Court for certiorari review.[15]

September 1985: Suit was filed in the federal district court against the Department of the Interior on behalf of three Indians seeking termination of Federal funds to the Red Lake court until court reforms are achieved. The suit was dismissed on the grounds that the federal court does not have the authority under the Indian Civil Rights Act in light of the Martinez decision.[16]

November 1985: The B.I.A. issued a directive requiring the court to allow retained counsel into court.[17]

November 1987: The Red Lake CFR court was changed from a CFR court to a tribal court under a contract with the Bureau for judicial services.[18]

Whether or not the legal status of the Red Lake “CFR Court” – also known as the Red Lake “Court of Indian Offenses” – actually changed to a “tribal court” is questionable: in 2002 the Bureau of Indian Affairs was still funding the Red Lake court as a part of the federal bureaucracy (i.e. as a “Court of Indian Offenses”), and in May 2004, Red Lake reservation was still listed in the Code of Federal Regulations (25 CFR § 11.11) as having a Court of Indian Offenses, rather than a ‘tribal court.’

The distinction between a “tribal court” and a “Court of Indian Offenses” is relevant to the longstanding abuses at the Red Lake Indian court, specifically including that the federal government is potentially liable for the actions of a “Court of Indian Offenses” (CFR Court), while the tribal council – generally immune from being sued in federal court – would likely hold (unenforceable) legal responsibility for abuses by a “tribal court.”

The federal authority for Indian tribal councils’ establishment of “tribal courts” is apparently derived from the 1934 Indian Reorganization Act. As the United States Court of Appeals for the Eight Circuit delineated the situation in 1987,[19] in a case deriving from the Minneapolis Star and Tribune’s Freedom of Information Act requests for Red Lake court records:

The United States argues that the tribal court is a “C.F.R. court” organized under the B.I.A. and governed by 25 C.F.R. Pt. 11. Part 11 establishes “Courts of Indian Offenses” on designated reservations for the purpose of providing “adequate machinery of law enforcement for those Indian tribes in which traditional agencies for the enforcement of tribal law and custom have broken down for which no adequate substitute has been provided under Federal or State law.” 25 C.F.R. § 11.1(b). The Red Lake Reservation is among those reservations specifically designated in the regulation. Id. § 11.1(a)(6).

… Designated tribal courts are presumptively C.F.R. courts. A C.F.R. court may, however, exempt itself from B.I.A. regulation and be reclassified as an independent tribal court if the tribe establishes that it was organized under the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. §§ 461-479, and that it has adopted its own law and order code in accordance with its constitution and bylaws. 25 C.F.R. § 11.1(d).

… Red Lake did not offer evidence establishing the necessary elements for exemption under § 11.1(d) at the summary judgment stage. Red Lake merely stated then, as it does now, that it does not know whether the tribe is organized under the IRA or whether the tribe has adopted a law and order code that effectively supplants agency regulation.

Because it was not clear that the tribal government of the Red Lake Band of Chippewa Indians was organized under the Indian Reorganization Act, the federal Eighth Circuit court ruled, the Red Lake tribal court records were federal records subject to federal law, including the Star and Tribune’s Freedom of Information Act request. Red Lake officials burned the “tribal archives,” where most of the court records since mid-1979 were reportedly stored, rather than surrendering them to the federal government (and the investigative reporters writing for the Minneapolis newspaper). The court records prior to May 1979 were presumably destroyed during the revolution, when the law enforcement center was burned.

The I.R.A. and tribal courts

Through federal regulation and administration of agency policy – including widespread adoption of “boilerplate” Indian Reorganization Act “tribal constitutions” and ensuing reconstitution of “tribal government” – and “tribal membership” – in accordance with the U.S. Department of the Interior’s interpretations of the 1934 Indian Reorganization Act and subsequent legislation, the federal government has cut a wide swath across indigenous sovereignty. In conjunction with I.R.A. tribal governments’ administration of federal programs under federal contracts pursuant to the Indian Self-Determination Act (PL 93-638), and federal courts’ interpretations of “tribal sovereignty,” the federal government has also effectively insulated itself from liability for administration of federal Indian policy through the “tribal councils” it established.

The 1934 Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, provides for “the Organization of Indian tribes; constitution and by-laws and amendment thereof.” The I.R.A. details the processes by which an “Indian tribe” may be “organized” under U.S. Law, and requires that the U.S. Secretary of the Interior approve the constitutions of tribes organized under the I.R.A. It also mandates that such Indian tribal constitutions not be contrary to “applicable laws.”

The I.R.A. delineates the powers of an “Indian tribe or tribal council” ‘federally-recognized’ by the U.S. government: in addition to all powers

vested 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.

The wording of the I.R.A. does not specifically legitimate Courts of Indian offenses, nor does it enumerate the establishment of Indian tribal courts as among the powers of an “Indian tribe or tribal council.”

Standardized ‘fill-in-the-blanks’ I.R.A. tribal constitutions written by the Bureau of Indian Affairs were adopted on most Indian reservations, in some instances after extensive ‘community organization’ and other pressure by the B.I.A. In We Have The Right To Exist,[20] Wub-e-ke-niew drew heavily on Ahnishinahbæó^tjibway oral history as well as federal records to chronicle the B.I.A.’s quarter century of efforts to ‘reorganize’ the general council at Red Lake under the I.R.A. – and along with many other indigenous people, vigorously rejected the legitimacy of “tribal” governments that he understood to be “puppets” of the U.S. government:

One story, which circulated at Red Lake, is that “a ‘yes’ vote meant a ‘no’ vote.” According to this story, the B.I.A. said, “we will do it in a democratic way, and let the people [sic] decide.” The people voted “no,” rejecting the Indian Reorganization Act. The bill went back to the United States Congress, which attached a rider saying that “a ‘no’ vote meant a vote for the I.R.A.” Then, the I.R.A. went back to the Reservation, and it “passed” unanimously, that is, everybody voted “no.” This story is a metaphor for the B.I.A.’s use of proxy votes under trusteeship.[21]

The strength of Red Lake opposition to the I.R.A. is hinted at in a letter from the Assistant Secretary to the Commissioner of Indian Affairs in August 1958, shortly before the elections adopting the “revised” constitution of the Red Lake Band of Chippewa:

In the current effort, the Red Lake people again voiced their opposition to organization under the Indian Reorganization Act. An attempt, therefore, was made to offer them a proposed form of constitution outside the provisions of this Act. The Assistant Solicitor on reviewing the proposed draft constitution submitted by the Tribal Constitutional Committee held on July 18, 1958, that it is not possible for a tribe which has accepted the Indian Reorganization Act to amend a former constitution, from which recognition has been withdrawn, without complying with established legal criterion for obtaining the Secretary’s approval of a new organic document.

In view of the strong tribal feeling, the proposed constitution and bylaws now before you, although it contains all the requirements of an IRA-document, dare not directly refer to that act if we are to obtain tribal acceptance of the proposed document. We recommend, therefore, that the proposed election order receive your early favorable consideration.[22]

In the understanding of many Ahnishinahbæó^tjibway at Red Lake, the “tribal council” proposed in 1958 was but the most recent of a series of “federal instrumentalities”[23] – purported “tribal governments” comprised of “Indians” supporting the agenda of the colonizing nation – at Red Lake dating back to certain (British-recognized) “Red Lake Chiefs” signing the Selkirk Treaty in 1817.[24]

The 1958 Red Lake Constitution supplanted a 1917 Constitution that, although not recognized as legitimate by the Ahnishinahbæó^tjibway, was tolerated as not capable of doing much harm: the 1917 General Council’s authority was constitutionally limited to not recognizing the “General Council of the Minnesota Chippewas, as a medium for the transaction of [Red Lake] tribal property business and affairs,” deciding “in disputes as to Chiefs,” and to “respect and give proper consideration to petitions that may be placed before them by any member of the Red Lake Band” [but not actually acting on those petitions].

The 1958 I.R.A. Constitution, on the other hand, granted fairly extensive power to the “tribal council” that the B.I.A. used it to establish[25] – including “administration of justice by establishing a police force and a tribal court.” That “tribal” power, however, is very clearly subject to the overarching sovereignty of the United States, “existing Federal laws,” and “subject to the approval of the Secretary of the Interior, or his duly authorized representative.”

On September 11, 1990 and after years of increasing concern about the blatant unconstitutionality of the 1952 “Law and Order Provisions” used by the B.I.A. in its “Court of Indian Offenses,”[26] the Red Lake tribal council adopted a “recommended changes to the Tribal Law and Order Code.”[27] Vigorously objecting to the new ‘revised’ code’s extension of “United States Government trusteeship, illegally applied to Ahnishinahbæó^tjibway property” – which has never been ceded – and to the new ‘revised’ code’s referring to “Indians” as “non-persons,[28] in accordance with the precedent set in the U.S. Constitution,”[29] Wub-e-ke-niew renounced his “tribal membership” and reasserted his unextinguished Ahnishinahbæó^tjibway sovereignty. In the letter accompanying his “Indian Identity Card,” which Wub-e-ke-niew returned to the U.S. Supreme Court “as a false document issued with felonious and genocidal intent by the United States Government in collusion with their colonial Indian Reorganization Act ‘Tribal Councils’,” Wub-e-ke-niew explained to U.S. Supreme Court Justice Thurgood Marshall:

The Red Lake “Tribal” Code, obviously written either by a Philadelphia Lawyer or by an old Nazi in the Department of the Interior, makes this clear in the Definition Section about “Persons or Indians.” Indians are defined as non-persons; they are an invention of the Indo-Europeans and are under Indo-European sovereignty; owned by them. Maybe the reason that Indians are not recognized as human beings by the Indo-Europeans is that the Indo-Europeans created their identity and has been using them to commit genocide. No matter what, they are human being—but they are definitely Indo-European human beings.[30], [31]

Although some changes were made in the wording of the ‘tribal code’ after Wub-e-ke-niew’s persistent criticism of its B.I.A. authors’ use of language like “person or Indian,” the July 25, 2001 revisions to the ‘tribal code’ still defined “person,” for example in § 600.191, subd.5, as “every natural person, including Indians, who are not members of the Red Lake Band of Chippewa Indians …”[32]

               In 2004, the Red Lake “Indian Court” remained a “Court of Indian Offenses,” listed in 25 CFR §11.100(a) as such a court and therefore subject to federal regulations – with the clarifying statement that,

(c) The regulations in this part shall continue to apply to tribes listed under Sec. 11.100(a) until … the name of the tribe has been deleted from the listing of Courts of Indian Offenses under Sec. 11.100(a)[33]

The Red Lake tribal council asserted that it really had a “tribal court” operating from its own “sovereignty” rather than a “court of Indian offenses” subject to the U.S. Constitution, federal law, and federal regulations. The tribal council’s “tribal court” just happened to be named “The Red Lake Court of Indian Offenses,” tribal attorneys explained.

Underneath this deliberate ambiguity is the unceded land at Red Lake, and the United States lack of legitimate authority for jurisdiction over land or Ahnishinahbæó^tjibway (Wub-e-ke-niew contended that the Métis (‘Indians’) ‘settled’ at Red Lake by the U.S. government remained under U.S. jurisdiction, and that federal conflation of Ahnishinahbæó^tjibway and Métis did not actually confer unextinguished Ahnishinahbæó^tjibway sovereignty or property rights ton ‘the White man’s Indians.’

Indian court jurisdiction

Whether a “tribal court” or a “court of Indian offenses,” reservation Indian court jurisdiction has been generally limited to “Indians,” with the precise parameters of those jurisdictional limits delineated, case by case, by the U.S. Supreme Court and, in the instance of the “Duro fix” discussed above, by Congress.

The U.S. Supreme Court’s chronicles its demarcation of the boundaries of “tribal court” jurisdiction in, for example, its decision in the 2001 case Nevada v. Hicks,[34] in which that court ruled that state officials cannot be sued in tribal court for executing a search warrant, on tribal land, “against a tribal member suspected of violating state law outside reservation.” Justice Scalia began the legal analysis underlying the Court’s opinion,

The principle of Indian law central to this aspect of the case is our holding in Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997): “As to nonmembers . . . a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction . . . .” That formulation leaves open the question whether a tribe’s adjudicative jurisdiction over nonmember defendants equals its legislative jurisdiction.[35] We will not have to answer that open question if we determine that the Tribes in any event lack legislative jurisdiction in this case. We first inquire, therefore, whether the Fallon Paiute-Shoshone Tribes – either as an exercise of their inherent sovereignty, or under grant of federal authority – can regulate state wardens executing a search warrant for evidence of an off-reservation crime.

Indian tribes’ regulatory authority over nonmembers is governed by the principles set forth in Montana v. United States, 450 U.S. 544, 67 L. Ed. 2d 493, 101 S. Ct. 1245 (1981),[36] which we have called the “pathmarking case” on the subject, Strate, supra, at 445. In deciding whether the Crow Tribe could regulate hunting and fishing by nonmembers on land held in fee simple by nonmembers, Montana observed that, under our decision in Oliphant v. Suquamish Tribe, 435 U.S. 191, 55 L. Ed. 2d 209, 98 S. Ct. 1011 (1978), tribes lack criminal jurisdiction over nonmembers. Although, it continued, “Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” 450 U.S. at 565 (footnote omitted). Where nonmembers are concerned, the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” Id. at 564 (emphasis added).[37]

…

As detailed in its footnotes, the criteria that the Supreme Court has used to determine whether a person who is not an enrolled tribal member – in the wake of its decision in U.S. v. Lara, only “non-Indians” – is subject to tribal court jurisdiction on any particular Indian reservation include whether or not that “non-Indian” has voluntarily entered “consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”[38]

‘Indian’ people at Red Lake – and on other Indian reservations – live with the Supreme Court’s hair-splitting jurisdictional distinctions as a part of the unavoidable social landscape of daily life, and think about jurisdiction. Some play games with ‘jurisdiction,’ perhaps even with a kind of prison camp machismo akin to that of Vietnam War P.O.W.s playing ‘russian roulette.’ “Nothing else to do,” I’ve heard reservation Indians say with studied casualness … “might as well.” Thus, for example, Donald Rossbach, Jr.,

standing inside the border of the Red Lake Indian Reservation, fired a number of shots with a high powered rifle across the boundary line into Clearwater County at a deputy sheriff who had just arrested an acquaintance of [Rossbach’s] in Clearwater County on a felony warrant.”[39]

The State of Minnesota – apparently considering the legal ramifications for seven months after accusing Rossback of ‘aggravated assault’ – eventually tried Rossbach in Minnesota court on the grounds that, “at common law, the general rule was that a defendant could be tried in the jurisdiction where the shots took effect.”[40] On appeal, the Minnesota Supreme Court rejected Rossbach’s claim that the state’s exercise of jurisdiction “over a completely extraterritorial fact situation involving conduct occurring entirely outside of Minnesota” was unconstitutional.[41]

The notions of ‘ Indian jurisdiction’ and ‘sovereignty’ have acquired a sort of mystique; symbolically become the ‘Indian side’ of a quasi-palpable ‘boundary’ against which activists can push in ‘opposition’ to ongoing colonial occupation. But, that symbolism and the ‘Indian activism’ based on it, belies the reality of ‘tribal sovereignty’ as a colonizing façade, held by tribal governments that are, in actuality, federal instrumentalities. Thus, both “the problems” [overlaying and obscuring the fundamental issues of colonial occupation, forcible assimilation and genocide] and potential paths of “resistance” are prescribed within overarching systems created by the colonizer.

Within the strictures of the colonially engendered systems, would-be indigenous activists are presented with a panoply of options – all of which ultimately entrench the colonizers hegemonic systems of assimilation and control.

Among the important aspects of maintaining the illusion of potentially substantive transformation within the system, are the discourses through which community understanding is directed and formed.

The apparent complexity of “Indian law” – a maze of legal cases that, in the aggregate, demarcate still-contested ‘boundaries’ between the state, federal, and ‘tribal’ jurisdiction – is among these. “Indian law” as a legal sub-specialty is sufficiently complex that general-practice attorneys hesitate to venture into its arcane turf. The specialized language [what’s the “Marshall trilogy”?] and the supersaturated symbolism of “tribal rights” obscure both the on-the-ground lived reality of indigenous people, and the ‘tails I win, heads you lose’ dualism of federal “Indian law” as perceived from the vantages of aboriginal indigenous people.

Longstanding and persistent abuses of indigenous people by the federal government remain masked behind the apparently progressive rhetoric advocating advancement of contemporary “Indian Nations,” settling longstanding “Indian claims,” and promoting legislation like the “Indian Tribal Justice and Legal Assistance Act” and “Tribal Self-Determination.” In very brief summary, federal “Indian law” takes rights, sovereignty, and property away from the relatively few surviving aboriginal indigenous people, and – without compensation or even acknowledgment of the reality – vests control in federally created, federally recognized, federally controlled, and relatively unaccountable “Indian tribes” insulated from legal liability by U.S. court-created doctrines of “tribal sovereignty.”

Although insulated from liability by the “Indian sovereignty” of its tribal governments, the United States has claimed for itself the “legal title” to the “Indian land” and other indigenous assets as delineated under U.S. ‘Indian law’ – at least twice.

The first of those claims rests in part on the notion of the Euro-Christian supremacy promulgated by Medieval papacy, granting to European royals “by the sprinkling of the blood of our Lord Jesus Christ” the rights:

to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit.[42]

More than three hundred years after the pontiffs of the Holy Roman Empire sought to partition the world among Catholic royalty, the United States Supreme Court incorporated categorical disregard of indigenous people’s rights to our own land into U.S. law. The vehicle was a lawsuit over property rights, Johnson v. M’Intosh, decided in1823, one of the “Marshall trilogy” that continue to be perceived as key in the foundation of contemporary “Indian law.” The U.S. Supreme Court wrote: [43]

The subjection [of Indians by the United States] proceeds from their residence within our territory and jurisdiction [as negotiated between European sovereigns]. It is unnecessary to show, that they are not citizens in the ordinary sense of that term, since they are destitute of the most essential rights which belong to that character. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants with diminutive rights.[44] The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government.

Johnson v. M’Intosh is perceived as establishing both the unilateral dispossession of indigenous people inherent in “Indian title,” and laying the groundwork for the colonial doctrine of “trusteeship.” Among the more interesting aspects of the Supreme Court’s decision, however, are the few sentences just after one of the sections often cited in support of “federal trusteeship”:[45]

… if it be admitted that they are now independent and foreign states, the title of the plaintiffs would be invalid: as grantees from the Indians, they must take according to their laws of property, and as Indian subjects. The law of every dominion affects all persons and property situate within it;[46] and the Indians never had any idea of individual property in lands. It cannot be said that the lands conveyed were disjoined from their dominion; because the grantees could not take the sovereignty and eminent domain to themselves.[47]

Early nineteenth-century writing often has a remarkable ‘transparency’ to it – at least in some aspects: in an era when almost all of those who were literate were, if not of the privileged elite and their bourgeois collaborators, at least white male ‘citizens,’ it seems that there was less perceived need to ‘spin’ the hegemonic intents of the ruling class into simulacra of equal-opportunity participatory democracy and “freedom.”

And … there it is, in black-and-white handset type on slave-grown cotton paper in the limited-circulation media of a property-title ruling from the U.S. Supreme court in 1823 … the very crux of centuries of annihilation of indigenous people, of forcible assimilation focused on obliterating every shred of evidence that egalitarian indigenous societies ever existed:

… the grantees could not take the sovereignty and eminent domain to themselves.

The European royal “sovereigns” and their colonial derivatives, having spent the preceding thousand years conquering Europe and solidifying social-cultural-religious-symbolic-narrative-political-economic-geographic systems in which their exclusive rights to ‘sovereignty and eminent domain’ were relatively unchallenged, reasonably understood it as imperative to retain – as a class – the imperviousness of hold over land [‘eminent domain’] and ‘god-given’ supreme political power [‘sovereignty’].

The legal foundation of Marshall Court’s opinion that “the grantees could not take the sovereignty and eminent domain to themselves” is not cited, it just-is, written as though an unquestionable natural law, and thus without any necessity for justification.

In Johnson v. M’Intosh, the U.S. Supreme Court rather clearly delineates the legal philosophy underlying colonialism – phrased “proprietary rights of civilized nations on this continent” – as assertion of eminent domain,

derived from discovery and conquest, [and] can rest on no other basis; and all existing titles depend on the fundamental title of the crown by discovery.[48]

Chief Justice John Marshall and his colleagues are quite open about the inflexibility of their own role in affirming the often-brutal dispossession of indigenous people by the United States:

We will not enter into the controversy, whether agriculturalists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. [49]

In their 62-page opinion in a case involving the validity of a land title, the Supreme Court Justices also muse on their role as apologists for the conqueror:

… Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.

Seven years before U.S. Congress’s passage of the Indian Removal Act of May 28, 1830[50] (which U.S. President Andrew Jackson described as arising from his “friendly feeling” toward indigenous people, and justified as “attempting to reclaim them from their wandering habits and make them a happy, prosperous people”[51]) and the resultant holocaust of Cherokee and other ‘civilized’ Indians in the ‘Trail of Tears’ and other atrocities, the U.S. Supreme Court wrote:

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. …

When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard; imposes these restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power.

But, the tribes of Indians inhabiting this country were fierce savages … to leave them in possession in their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence …

That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.[52]

Faced with the irreconcilable chasms between their own racism and their principled understandings of humanitarian justice, U.S. Supreme Court – acknowledging that their categorical denial of indigenous peoples’ rights to their own land “may be opposed to natural right, and to the usages of civilized nations”[53] – nonetheless ruled that:

… the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others …[54]

“Round two” came with ‘treaties’ in which federally-engendered ‘Indians Chiefs’ friendly to the U.S. agenda – generally not the people to whom the ‘ceded’ land actually belonged – were empowered by the U.S. in the context of coercive scripts of prostration and submission known as ‘treaty negotiations,’ alienating vast expanses of indigenous peoples’ lands, and subsequent forcible relocation of both Métis and indigenous people to the reservations.

“Round three” of the systemic and categorical dispossession of indigenous people came with the BIA’s implementation of the Indian Reorganization Act in the 1930s – and was promoted by ‘friends of the Indians’ as addressing Indian impoverishment resulting from extensive alienation of land and resources after allotment. The residual, unsold, and tax-forfeited – and generally least-desirable – reservation lands were “restored” to “tribal ownership” under the control of the “tribal councils” established pursuant to the I.R.A., although the land title and unextinguished rights are held by the United States “in trust” for the federally-created and ‘recognized’ “tribe.” Detailing how the current “tribal” system is structured by the colonizer to destroy indigenous community and eventually eliminate identifiable indigenous people is beyond the scope of the present paper. Wub-e-ke-niew observed in 1993:

INDIAN GIVER: The White man gives with one hand, and then he takes back with the other. There never has been any such thing as “Indian land.” How many Indian still have the land from the Land Scrip issued under the Indian Treaties? How many Indians, under the Dawes Act, still have their allotment? The U.S. Indian policy was designed to steal the land from the Aboriginal Indigenous People, and then blame the Indians for “losing the land.” Under the “land settlements” and the 1934 I.R.A., the United States may say that they gave some land “back” to the Tribes they created, but the U.S. put this land under “trust,” and this fake land title is retained by the United States. If that’s not stealing and being an “Indian Giver,” I don’t know what is.[55]

Dead “Indians”

The July 25, 2001 Red Lake “Tribal Code” asserts Indian court jurisdiction as broadly as possible, for example in § 900.02 defining probate jurisdiction as extending to all “affairs and estates of deceased persons who are domiciled on the Red Lake Indian Reservation and to the property of non-resident deceased persons which property is located within the Red Lake Indian Reservation,” although § 900.01 subd. 2 of that Code limits its definition of a “person” – for the purposes of probate – to “any Indian.”[56] Since that code retains the language “person or Indian” in some other sections, it is, perhaps, arguable that in the federal government’s colonial schema, deceased ‘Indians’ attain ‘personhood.’

Similarly, Title 25 of the Code of Federal Regulations, which governs the ‘Indian court’ at Red Lake,[57] limits probate jurisdiction to “the estate of a deceased Indian who, at the time of his or her death, was domiciled or owned real or personal property situated within the Indian country under the jurisdiction of the court to the extent that such estate consists of property which does not come within the jurisdiction of the Secretary of the Interior.”[58]

Most contemporary federal and “tribal” definitions of “Indian” limit the “Indian” status to ‘duly enrolled members of federally-recognized Indian tribes.’ The ‘constitutionality’[59] of “Indian preference” in hiring, ‘Indian’ tribal courts, and a plethora of other segregated ‘Indian’ institutions depend on federal “Indian” status being a voluntary association rather than “race,” it would seem obvious that Wub-e-ke-niew’s ‘walking away from’ “the artificial personal of Indian”[60] would unquestionably remove him from the jurisdiction of the Red Lake ‘Indian’ court.

Wub-e-ke-niew and “race”

Some of the philosophy underlying Wub-e-ke-niew’s renunciation of “Indian” identity was published in his newspaper column on October 15, 1993, exactly four years before his death:

I am not an Indian, and I do not belong to the Chippewa Tribal structure created by the United States Government. The B.I.A. listed me on their “Chippewa Indian Rolls” without my knowledge or consent, and I sent my resignation as a Chippewa Indian to then-Chief Justice Thurgood Marshall of the U.S. Supreme Court, in respect of the procedure described in the U.S. Constitution for one Sovereign dealing with another. Justice Marshall accepted my resignation, and these papers are now in the Library of Congress. I explained to Thurgood Marshall about the dishonest identity of “Indian,” and that I have my own Aboriginal Indigenous identity. I am a Sovereign Ahnishinahbæó^tjibway on my own land, and British Indian common law, United States law, and the Chippewa Indian Tribal Code do not have jurisdiction over the Sovereigns of the Ahnishinahbæó^tjibway Nation. We are on our own land, and have been here for millennia, long before the White man, the Pillager Indians, the French Métis, and the Chippewa Indians got here. We, the Ahnishinahbæó^tjibway have a right to continue existing on our own land, without the wanna-be Chippewa Indians trying to steal our identity and our traditions, abetting the Whites in trying to steal our land and resources, and covering up the genocide.[61]

In the same column, he sharply criticized the federal government’s “tribal” administration for trying “to use and abuse my Aboriginal Indigenous Sovereignty to get out of paying taxes on money you made plundering my resources and destroying my forests,” and published the challenge:

Try to kick me off of my land, which has belonged to the Ahnishinahbæó^tjibway, including my family and my Dodem, for more than the last hundred thousand years—we’ll see who leaves.[62]

The “tribal” establishment responded with pleas, death threats, and proffered ‘buyouts’ – at one point I watched him turn down $109 billion ($109,000,000,000.00) from an international consortium he believed to be backed by the C.I.A. “It’s against my religion to sell land,” Wub-e-ke-niew explained to the German intermediary who outlined the proposed deal.

And, despite their threats, neither the tribal council nor the U.S. government made no move toward removing Wub-e-ke-niew from the land that his ancestors had, in fact, never ceded.

[1] Confidential draft sent via certified mail to then-chairman Roger Jourdain on May 30, 1990. Native American Press/Ojibwe News archives, accessed 1999; online at http://www.maquah.net/Legal_Documents/I.C.R.A./I.C.R.A.-index.html, accessed May 27, 2004.

[2] [footnote 36 in original] As early as 1977, the Interior Department was aware of resistance to the I.C.R.A. by the Red Lake Tribe. A Departmental memorandum states:

There is a fundamental problem with tech tribal council’s negative stance on the applicability of the Indian Civil Rights Act....

The court is in a perilous position since it may violate the rights of defendants when it observes the rules set out in the present code. Without tribal legislative action in the nature of a major revision of the code, the court feels it cannot conform to the Act’s requirements. A specific example of court-tribal council interplay is the serious problem of defense counsel. Since only one person is presently admitted to practice as lay counsel before the court, the court is faced with a dilemma when a defendant requests counsel and the person is either unavailable, unacceptable to the accused, or refuses to represent the accused.

Memorandum to the files, Office of the Solicitor, U.S. Department of the Interior (May 20, 1977).

Another Interior Department memorandum mentions “[c]omplaints about the refusal of the tribe to permit legal counsel to represent individuals before the court in defiance of the mandate of the Indian Civil Rights Act, 25 U.S.C. § 1302(6), were documented as early as 1972 in a law review article, Note, Tribal Injustice, The Red Lake Court of Indian Offenses, 48 N.D.L. Rev. 638, 654-655 (1972).” Memorandum to the Assistant Secretary - Indian Affairs from Acting Associate Solicitor, Division of Indian Affairs (Nov. 13, 1987), reprinted as Exhibit 2, Portland hearing supra note 25, at 119-122.

[3] [footnote 37 in original] This article, Tribal Injustice: The Red Lake Court of Indian Offenses, 48 N.D.L. Rev. 639 (1972) was mentioned by Commission staff to show that the B.I.A. was put on notice of alleged problems at the Red Lake Court of Indian Offenses as early as 1972. This type of public criticism of the B.I.A. court in 1972 provides the background for understanding what the B.I.A. and Assistant Secretary Swimmer knew concerning the Red Lake Court of Indian Offenses, a court under the B.I.A.’s control. Washington, D.C. Hearing, supra, note 4, at 21. Concerning this court, Assistant Secretary Swimmer admitted that he had heard some general things about the situation at Red Lake, id. at 21, and he “certainly did not condone the actions” of the court, id at 28, and that he and others agreed, “no, that’s not the way to operate a judicial system out here.” Id. Assistant Secretary Swimmer also admitted that some in the Department believed that the I.C.R.A. was being violated at the Red Lake Court of Indian Offenses, id., but he failed to explain how the B.I.A. attempted to resolve the public allegations of civil rights abused. Instead, he explained how the B.I.A. in November 1987 entered into a contract for judicial services with the tribe for a tribally operated court. Id. Swimmer’s rejection of language in the contract requiring compliance with the I.C.R.A. was then discussed. Id at 28-31; cf. 61 (Testimony of U.S. Attorney Jerome G. Arnold). On the issue of the Red Lake Tribal Court contract, see Memorandum to Assistant Secretary -- Indian Affairs from Acting Associate Solicitor, Division of Indian Affairs, U.S. Department of the Interior (Nov. 13, 1987), reprinted as Exhibit 2, Portland Hearing, supra note 25, at 119-122 [hereinafter “Solicitor’s Memorandum”] (“In summary, it is clear that the Red Lake Tribe has no intention of operating its court in accordance with the requirements of the Indian Civil Rights Act. ... Given 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. ... By taking a firm position in this instance where a serious civil rights problem clearly exists, we can seriously reduce the risk that federal courts will force us to become routinely involved in internal tribal disputes.” (Emphasis added)).

For a critical analysis of this article, see Testimony of the Red Lake Band of Chippewa Indians for the Record of the Hearing on Enforcement of the Indian Civil Rights Act Conducted by the Civil Rights Commission in Washington, D.C., on January 28, 1988, reprinted as Exhibit 18, Washington, D.C. Hearing, supra note 4, at 321 (hereinafter cited as Red Lake Tribe Statement). The article was mentioned by a Commission staff for the above reasons and not necessarily as a general endorsement of its contents.

[4] [footnote 38 in original] United States v. Red Lake Band of Chippewa Indians, CIV 6-72-125 (D. Minn., filed March 20, 1978, voluntarily dismissed after Martinez, May 19, 1978.

[5] The U.S. Supreme Court’s decision in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), effectively limited Indians’ civil rights redress through the federal courts to ‘remedies’ involving habeas corpus.

[6] [footnote 39 in original] See Reply of Superintendent, Red Lake Agency to Commission Inquiry, reprinted as Exhibit 5 to the Portland Hearing, supra note 25, at 139-43. A federal court hearing claims arising from these incidents describes in detail what it calls “the events on the day of the uprising” in Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1188-91 (D.C. Cir 1986). See also Testimony of the Red Lake Band of Chippewa Indians, printed in Washington D.C. Hearing, supra note 4 at 321, 327, where the tribe takes issue with this characterization.

[7] [footnote 40 in original] Red Lake Band of Chippewa Indians Resolution No. 36-80, reprinted as Exhibit 6 to the Portland Hearing, supra note 25, at 151.

[8] [footnote 41 in original] Referred to in the letter to Chairman Roger Jourdain, from Dennis Whiteman, Superintendent, Red Lake Agency, May 27, 1982, reprinted as Exhibit 4, Portland Hearing, supra note 25, at 126.

[9] [footnote 42 in original] Schmickle & Buoen, Indians’ rights are often denied in tribal courts, Minneapolis Star and Tribune, Jan. 5, 1986, at 1A, reprinted as Washington, D.C. Hearing, supra note 4, at 159; Nat’l Center for State Courts, Red Lake Court of Indian Offenses[:] Management Audit Technical Assistance Report 13 (1928) (prepared by James Farrar and Priscilla Wilfart) (on file with the Commission). The Solicitor’s Memorandum, supra note 38, mentions the denial of jury trials at the Red Lake court. See Testimony of the Red Lake Band of Chippewa Indians, printed in Washington, D.C. Hearing, supra

note 4, at 321, 329, where the tribe defends its lack of jury trials:

In fact, in 1982 the budget of the Red Lake Court, funded solely by the B.I.A., was grossly inadequate, and included no funds for jury trials. It is unreasonable to expect people who have low paying jobs by day to refrain from working and serve on a jury without pay, especially to participate in a system which in many ways is not a part of their cultural understanding. Today jury trials are held upon request.

The above Minneapolis Star and Tribune article points out that in 1984 the tribe “paid law firms in Duluth and Washington, D.C. more than $140,000 in fees and expenses.” Schmickle & Buoen, supra note 4, at 159.

[10] [footnote 43 in original] Schmickle and Buoen, supra note 43, reprinted as Exhibit 4 in the Washington, D.C. Hearing, supra note 4, at 159.

[11] [footnote 44 in original] See Schmickle and Buoen, U.S. reluctant to curb tribal court abuses, Minneapolis Star and Tribune, Jan. 7, 1986, at 1A, Exhibit 4, reprinted as Exhibit 4, Washington, D.C. Hearing, supra note 4, at 186.

[12] [footnote 45 in original] See Good v. Graves, Civil no. 6-85-508 (D. Minn. May 20, 1985). The court noted:

The evidence in this case leads this court to the inescapable conclusion that the rights guaranteed petitioners by the Indian Civil Rights Act were trampled upon by the officials of the Red Lake Court of Indian Offenses.

Id. at 5. See also, Memorandum to Assistant Secretary -- Indian Affairs from Acting Associate Solicitor, Division of Indian Affairs, U.S. Department of the Interior (Nov. 13, 1987), reprinted as Exhibit 2, Portland Hearing, supra note 25, at 119-22 (“The federal court ordered the prisoners in one such case released because they had not been given a right to counsel, were told they would have to pay for a jury trial if they wanted one, and were denied the right to post bail -- all in violation of the Indian Civil Rights Act. (Emphasis added; citation to Good v. Graves deleted.).

[13] [footnote 46 in original] Red Lake Tribal Council Resolution No. 237-85 (Aug. 29, 1985). Area Director Earl Barlow wrote to the field superintendent:

Although Tribal Resolution NO. 237-85 has established criteria for purposes of admission to practice before the court, the criteria are so 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, and accordingly, the Bureau of Indian Affairs can neither approve nor recognize the criteria in Resolution No. 237-85. The existing Tribal Code provision (Chapter 1, § 4(1)) is equally restrictive because it limits licensing to Band members.”

Exhibit 4, Portland Hearing, supra note 25, at 137. See also Testimony of the Red Lake Band of Chippewa Indians, Exhibit 18, Washington D.C. Hearing, supra note 4, at 330 (“yet, that there are today no Red Lake members who are professional attorneys does mean that defendants must be represented by lay counsel.”) In 1977, an Interior Department memorandum noted a problem with lay counsel: “Since only one person is presently admitted to practice as lay counsel before the court, the court is faced with a dilemma when a defendant requests counsel and the person is either unavailable, unacceptable to the accused, or refuses to represent the accused.” Memorandum to the files, Office of the Solicitor, U.S. Department of the Interior (May 20, 1977). For a response of the Red Lake Band of Chippewa Indians, see Testimony of the Red Lake Band of Chippewa Indians, Exhibit 18, Washington, D.C. Hearing, supra note 4, at 329-34.

[14] footnote 47 in original] Orberdorfer, Paper Gets OK to See Court Files, but Red Lake Officials Withhold Them, Minneapolis Star and Tribune, Jan. 7, 1986, at 9A (reprinted in Washington, D.C. Hearing, supra note 4, at 195-196); Minneapolis Star and Tribune Company v. United States Dep’t of Interior, Civ. No. 4-84-1255 (D.Minn. Apr. 30, 1986). The United States also had to rely on the courts to recover the records of the B.I.A. court at Red Lake. United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380 (8th Cir. 1987), cert. den., 99 L.Ed. 2d 270 (1988).

[15] [footnote 48 in original] United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380 (8th Cir. 1987), cert. den., 99 L.Ed. 2d 270 (1988). See Exhibit 18, Washington, D.C. Hearing, supra note 4, at 336, for the petition for certiorari.

[16] [footnote 49 in original] Cook v. Moran, CIV No. 6-85-1513 (D. Minn. Feb. 13, 1986), reprinted as Exhibit 5, Washington, D.C. Hearing, supra note 4, at 197.

[17] [footnote 50 in original] Memorandum to all area directors from Hazel Elbert, Acting Deputy Assistant Secretary - Indian Affairs, U.S. Department of the Interior (Nov. 12, 1985), reprinted in the Portland Hearing, supra note 25, Exhibit 4, at 128-29. The right to counsel became an issue at Red Lake, see Memorandum to Earl Barlow, Area Director, from Red Lake Chairman Roger Jourdain, (Nov. 23, 1985), id., at 133-34, and Mr. Barlow’s response, id. at 135-38. Specifically, Mr. Barlow refers to the intention of one attorney, Richard Meshbesher, to appear on behalf of criminal defendants:

Next, I am also aware that the Red Lake Band has issued an order that Mr. Meshbesher be removed from the Reservation by Law Enforcement Services personnel. Bureau personnel are hereby directed not to enforce that removal order. Doing so would implicate the B.I.A. in a denial of right to counsel. ... Bureau Law Enforcement personnel are to be available to protect Mr. Meshbesher’s person and property while he is on the Reservation representing his clients.

Id. at 138 (Emphasis added). See also Schmickle and Buoen, U.S. reluctant to curb tribal court abuses, Minneapolis Star and Tribune, Jan. 7, 1986, at 1A, reprinted as Exhibit 4, Washington, D.C., Hearing, supra note 4, at 187:

In November -- after three Red Lake Indians sued the Interior Department in an attempt to shut down the Red Lake court because of rights abuses -- the B.I.A. issued a directive from Washington to Indian court officials, including those at Red Lake, saying civil rights laws must be enforced and defendants must be allowed to have lawyers represent them.

The Red Lake tribe responded by ordering the two B.I.A. officials who said they would enforce the Washington directive off the reservation. But the B.I.A. officials have remained there.

Meanwhile, the Red Lake court continues to operate. A lawyer has yet to appear there.

[18] [footnote 51 in original] 1] Washington, D.C. Hearing, supra note 4, at 20-21.

[19] United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380 (1987).

[20] Pages 123-180.

[21] Page 143.

[22] Letter from Assistant Secretary Ernst to the Commissioner of Indian Affairs, quoted in We Have The Right To Exist, page 175.

[23] Described by the American Indian Policy Review Commission in its Final Report, Submitted to Congress May 17, 1977, pages 258-9:

In recent years, a new concept has found its way into the decisions of the Federal Courts, i.e., that tribes are an “instrumentality” holds that the tribes and their governments are the chosen instruments through which the Federal Government has elected to carry out its Indian policies. It is this theory or concept which has been employed in cases shielding tribal government and tribal members from the application of State laws which would encroach upon the rights of self-government guaranteed to the Indian people under treaties and statutes.

The second theory of “federal instrumentality” holds that the tribes, particularly tribal courts, are an arm of the Federal sovereign; in other words, a federally created instrumentality....

[24] Full text of Selkirk Treaty in The Treaties of Canada with the Indians of Manitoba and the North-West Territories, Alexander Morris, online version Produced by Andrew Sly, Juliet Sutherland, Charles Franks and the Online Distributed Proofreading Team, source: http://ghostchild.com/toc.htm#2_1_5 - accessed May 8, 2004.

[25] ARTICLE VI GOVERNMENTAL AUTHORITIES

Section 1. The Tribal Council, or its authorized officers or delegates, on behalf of the Red Lake Band of Chippewa Indians shall have the sole right and authority to represent the Band and to negotiate with the Federal, State and local governments and with private persons and to make decisions not contrary to this Constitution and Bylaws or with existing Federal laws.

Sec. 2. To employ legal counsel, subject to the approval of the Secretary of the Interior, or his duly authorized representative, as long as such approval is required by Federal law.

Sec. 3. To regulate and license where permitted [sic] by law all business and professional activities conducted upon the Reservation, provided that any assessment upon nonmembers trading or residing within the jurisdiction of the Band shall be subject to the review of the Secretary of the Interior or his duly authorized representative, where required by law.

Sec. 4. To enact ordinances to remove from the Reservation persons not legally entitled to reside thereon and whose presence may be injurious to the peace, happiness or welfare of the members of the band, subject to the review of the Secretary of the Interior, or his duly authorized representative.

Sec. 5. To enact ordinances, subject to the review of the Secretary of the Interior, or his duly authorized representative, governing conduct of the members of the Band and Indians from other tribes on the Reservation, providing for the maintenance of law and order and the administration of justice by establishing a police force and a tribal court and defining their powers and duties; and regulating the inheritance of property of the members of the Band except trust land.

ARTICLE VII BUSINESS AUTHORITIES

The Tribal Council of the Red Lake Band shall exercise the following powers, subject to any limitations imposed by this Constitution and Bylaws or the laws and regulation of the Federal Governments;

Section 1. (a) To administer any funds within the control of the Band; to make expenditures from available funds for tribal purposes, including salaries and expenses of tribal officials or employees. All expenditures of tribal funds under the control of the Tribal Council shall be authorized by resolution duly enacted by the Tribal Council in legal session and the amounts so expended shall be a matter of public record to the members of the Band at all reasonable time [sic].

(b) The Tribal Council of the Red Lake Band shall prepare annual budget requests for the advancement to the control of the Band such money as now or may hereafter be deposited to the credit of the Band in the United States Treasury or which may hereafter be appropriated for the use of the Band.

(c) To deposit to the credit of the Red Lake Band of Chippewa Indians tribal funds without limitation on the amount in any account, in any approved National or State Bank whose deposits are insured by an agency of the Federal Government; or with a bonded disbursing officer of the United States whenever the conditions prescribed by the Secretary of the Interior or his duly authorized representative in connection with such advances require the advance to be so deposited.

Sec. 2. (a) To manage, lease, or otherwise deal with tribal lands and tribal resources in accordance with existing Federal laws.

(b) No action shall be taken by or in behalf of the Red Lake Band of Chippewa Indians which conflicts with the regulations authorized pursuant to Section 6 of the Act of June 18, 1934 (48 Stat. 984), or in any way operates to destroy or injure tribal grazing land, timber, or other natural resources.

Sec. 3. To engage in any business that will further the economic well-being of the members of the Red Lake Band.

Sec. 4. To enact ordinances to provide rules and regulations governing fishing, hunting and trapping on the Red Lake Reservation.

ARTICLE VIII FUTURE AND RESERVED POWERS

Section 1. The Tribal Council of the Red Lake Band of Chippewa Indians may exercise such future powers as may in the future be granted to the Council by members of the Red Lake Band or the Secretary of the Interior or by any other duly authorized official or agency of the Federal Government.

Sec. 2. Any right of power heretofore vested in the Red Lake Band of Chippewa Indians, but not expressly referred to in this Constitution and Bylaws, shall remain in the Band, but may be exercised by the Red Lake Band of Chippewa Indians through the adoption of appropriate constitutional amendment if that be the wishes of the people.

ARTICLE IX MANNER OF REVIEW

Section 1. Any resolution or ordinance which by the terms of this Constitution is subject to review by the Secretary of the Interior shall within 10 days of its enactment be presented to the Superintendent of the Minnesota Agency who shall within 10 days after its receipt by him approve or disapprove it.

Sec. 2. If the Superintendent approves any resolution or ordinance, it shall thereupon become effective, but the Superintendent shall transmit the enactment bearing his endorsement to the Secretary of the Interior, who may, within 90 days of the date of its enactment rescind the resolution or ordinance for any cause by notifying the Red Lake Tribal Council of his veto.

Sec. 3. If the Superintendent disapproves any resolution or ordinance, he shall within 10 days after its receipt by him advise the Red Lake Tribal Council of his reasons therefore, and if these reasons appear to the Council insufficient, it may by vote of the majority of all members, refer the resolution or ordinance to the Secretary of the Interior, and if approved by him in writing it shall become effective.

ARTICLE X REFERENDUM AND RECALL

Section 1. This revised Constitution and Bylaws when adopted by a majority vote of the qualified voters of the Red Lake Band of Chippewa Indians of the Red Lake Reservation, voting at special election called and supervised by the elected Constitutional Committee and the Superintendent, shall be submitted to the Secretary of the Interior and shall be in force and effect from the date of such approval, provided at lest 25 percent of those entitled to vote shall vote.

Sec. 2. (a) This Constitution and Bylaws may be amended by a majority of qualified voters of the Red Lake Band at an election called for that purpose, provided, that at least 25 percent of the Band entitled to vote shall vote in such election; but no amendment shall become effective until it shall have been approved by the Secretary of the Interior.

(b) It shall be the duty of the Tribal Council to call such election on any proposed amendment upon receipt of a petition signed by 25 percent of the qualified voters of the Band, or the Tribal Council may call such an election by an affirmative vote of the eight members of the Tribal Council.

[26] http://www.maquah.net/Legal_Documents/1958_Indian_Code/IndianCourt-INDEX.html, accessed May 30, 2004. [Original in Beltrami County Law library photocopied by this writer in the spring of 2000.]

[27] We Have The Right To Exist, page 192.

[28].E.g., Sections 600.193 ff. [footnote in original]

[29] We Have The Right To Exist, page 192.

[30] December 1990. Wub-e-ke-niew carbon-copied Noam Chomsky, and this writer thanks Dr. Chomsky for providing copies of several such letters from his files.

[31] In his 1990 use of the term “Indo European,” Wub-e-ke-niew was referring to the speakers of Indo-European languages who were a part of what they claimed as “western civilization.” Searching for more accurate language, Wub-e-ke-niew subsequently used the term “Lislakh,” which he defined as:

Lislakh: I am using this word, which was brought into the English language by linguist Carleton Hodge, to refer to the inter-related and historically connected peoples who share societal, cultural, language and/or patrilineal roots within that usually referred to as an abstract entity, Western Civilization. Lislakh includes Germanic people and the heirs of the Roman Empire (who speak languages academically categorized as Indo-European), as well as the Arabic and other peoples whose languages are categorized as Semitic, and the Moorish and other North African and Middle Eastern peoples who have common and long-standing historical inter-relationships within the context of Western Civilization.

Lislakh was coined as an abstract analytical category, although it describes historical and present reality. The word is used in this book to refer not only to the common roots of the Lislakh people, but also to their often violent co-history during their millennia of expansion. That the word Lislakh is a neologism of limited circulation is itself a manifestation of the ethos of English-speaking and other Lislakh peoples, symptomatic of the abstract isolationism of their linguistic structures and of the extent to which these peoples have been severed from their roots and their own identity.

In using the word Lislakh, I do not presume to define those people to whom I refer--especially not in the ways that they have tried to re-define and label the Aboriginal Indigenous people as Indians, and have imposed their derogatory names, projections and stereotypes onto the indigenous peoples whose land they have expropriated. I observe, however, that these people who have no name for themselves urgently need to come to terms with their identity, their past history, their roots, and their present reality: both as an inter-connected group of people, and as human beings with inherent responsibilities. The people to whom I refer as Lislakh must no longer go about stealing from each other and from other peoples; they can not continue to shirk their responsibilities toward Grandmother Earth. (We Have The Right To Exist, page 251.)

[32] Red Lake Court of Indian Offenses, Code – “Revisions July 25, 2001,” Title VI, Motor Vehicles, Highway Traffic Regulations and Motor Vehicle Registration,” Chapter 600. Online at http://www.maquah.net/Legal_Documents/Red_Lake_Indian_Courts/Title_06.htm, accessed June 1, 2004.

[33] 25 CFR § 11.100 (c)

[34] 535 U.S. 353, 121 S. Ct. 2304, decided June 25, 2001.

[35][35] n2 [footnote in original] In National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 855-856, 85 L. Ed. 2d 818, 105 S. Ct. 2447 (1985), we avoided the question whether tribes may generally adjudicate against nonmembers claims arising from on-reservation transactions, and we have never held that a tribal court had jurisdiction over a nonmember defendant. Typically, our cases have involved claims brought against tribal defendants. See, e.g., Williams v. Lee, 358 U.S. 217, 3 L. Ed. 2d 251, 79 S. Ct. 269 (1959). In Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997), however, we assumed that “where tribes possess authority to regulate the activities of nonmembers, civil jurisdiction over disputes arising out of such activities presumably lies in the tribal courts,” without distinguishing between nonmember plaintiffs and nonmember defendants. See also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18, 94 L. Ed. 2d 10, 107 S. Ct. 971 (1987). Our holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal-court jurisdiction over nonmember defendants in general.

[36] As the U.S. Supreme Court explained in Nevada v. Hicks:

In Strate, we explained that what is necessary to protect tribal self-government and control internal relations can be understood by looking at the examples of tribal power to which Montana referred: tribes have authority “[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members,” 520 U.S. at 459 (brackets in original), quoting Montana, supra, at 564. These examples show, we said, that Indians have “‘the right . . . to make their own laws and be ruled by them,’” 520 U.S. at 459, quoting Williams v. Lee, 358 U.S. 217, 220, 3 L. Ed. 2d 251, 79 S. Ct. 269 (1959). See also Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 386, 47 L. Ed. 2d 106, 96 S. Ct. 943 (1976) (per curiam) (“In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them” (internal quotation marks and citation omitted)). Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them. See Merrion, supra, at 137, 142 (“The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government,” at least as to “tribal lands” on which the tribe “has . . . authority over a nonmember”).

[37] n3 [footnote in original] Montana recognized an exception to this rule for tribal regulation of “the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 450 U.S. at 565. Though the wardens in this case “consensually” obtained a warrant from the Tribal Court before searching respondent’s home and yard, we do not think this qualifies as an “other arrangement” within the meaning of this passage. Read in context, an “other arrangement” is clearly another private consensual relationship, from which the official actions at issue in this case are far removed.

[38] Nevada v. Hicks, note 3 in original, supra.

[39] State of Minnesota v. Donald Rossbach, Jr., 288 N.W.2d 714 (1980).

[40] Ibid, citing W. LaFave & A. Scott, Criminal Law § 17 (1972).

[41] Ibid, citing State v. McCormick, 273 N.W.2d 624 (Minn. 1978).

[42] The Papal bull Romanus Pontifex of January 8, 1455, by Pope Nicholas V, from Gardiner, Frances, Ed., European Treaties bearing on the History of the United States and its Dependencies to 1648, Carnegie Institution of Washington, 1917, at pp. 20-26. [Original Latin text, ibid, pp. 13-20. Online at http://www.kwabs.com/romanus_pontifex_bull.html, accessed June 2, 2004. In the quoted paragraph of the January 8, 1455 bull, Pope Nicholas V was reiterating the “free and ample faculty” previously granted to King Alfonso by the Papacy.

[43] Johnson and Graham’s Lessee v. William M’Intosh, March 10, 1823. 21 U.S. 543, 5 L. Ed. 681, 8 Wheat. 543 (1823). Online at http://www.utulsa.edu/law/classes/rice/USSCT_Cases/JOHNSON_V_MCINTOSH_1823.HTM, accessed June 3, 2004.

[44] [footnote a in original] Vettel, l. 1. c. 19, s. 213.

[45] Even if it should be admitted that the Indians were originally an independent people, they have ceased to be so. A nation that has passed under the dominion of another, is no longer a sovereign state. [footnote in original: Vettel, l. 1, c.1, s. I1.] The same treaties and negotiations, before referred to, show their dependent condition.

[46] [footnote b in original: Cowp. Rep. 204]

[47] Johnson v. M’Intosh, op cit., p. 568. Boldface emphasis added.

[48] Ibid, p. 570.

[49] Ibid, p. 588 - 589, emphasis added.

[50] Text of the Indian Removal Act of 1830, and other documents of U.S. federal Indian policy under Andrew Jackson, online at http://www.synaptic.bc.ca/ejournal/jackson.htm, accessed June 2, 2004.

[51] Andrew Jackson, Second Annual Message to Congress, December 6, 1830, online at http://www.synaptic.bc.ca/ejournal/JacksonSecondAnnualMessage.htm, accessed June 2, 2004

[52] Johnson v. M’Intosh, op cit, pp. 589-591.

[53] Ibid, p. 591.

[54] Ibid.

[55] Wub-e-ke-niew, in the Native American Press/Ojibwe News, December 3, 1993.

[56] § 900.01, Subd. 2

[57] 25 CFR 11, § 11.100 (a)(1)

[58] 25 CFR 11, § Sec. 11.700

[59] U.S. Constitution, fourteenth amendment, as clarified by Brown v Board of Education, 347 U.S. 483 (1954).

[60] We Have The Right To Exist, op. cit., p. xxvi.

[61] Native American Press/Ojibwe News, October 15, 1993.

[62] Ibid.

Chapter 4 - Apartheid at Red Lake

The I.R.A. and tribal courts Indian court jurisdiction Dead “Indians” Wub-e-ke-niew and “race”

The I.R.A. and tribal courts

Indian court jurisdiction

Dead “Indians”

Wub-e-ke-niew and “race”

The I.R.A. and tribal courts
Indian court jurisdiction
Dead “Indians”
Wub-e-ke-niew and “race”