(continued from last week)

by Clara NiiSka

Last week, 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 “urgent” need for the “enactment of laws for Indian reservations.”  He urged that state and territorial criminal and civil jurisdiction be extended over Indian reservations, and he advocated that Congress enact laws which would “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.”

On April 10, 1883, the Secretary of the Interior “gave his approval” to rules governing what the Indian Commissioner called a “court of Indian offenses.”  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 Commissioner’s office actually provided to the Secretary on December 2, 1882 were specifically intended to repress religious practices—the Commissioner termed them “heathenish rites”—and to “destroy the tribal relations as fast as possible.”

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 “certain bands of Sioux Indians” 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 “wards subject to a guardian … as a dependent community who were in a state of pupilage.”  The Supreme Court ruled that Crow Dog’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 “at large upon the reservation unpunished” 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 “step in the right direction.”

The Commissioner also continued to press for extension of U.S. civil jurisdiction over Indians, as well as for Congressional legalization of their “court of Indian offenses.”  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 ‘civilizing’ effectiveness in abolishing “certain old heath and barbarous customs, such as the sun-dance …”

Commissioner of Indian Affairs,

Annual Report, 1886:

The Commissioner of Indian Affairs wrote in his 1886 Report that the courts of Indian offenses were, “… 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 …”

Annual Report, 1888:

In his 1888 Report, the Commissioner once again urged that, “the jurisdiction of these courts [of Indian offenses] be defined by law.”  He enumerated the “offenses” over which the Secretary of Interior had asserted jurisdiction: “the 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.”

According to the Commissioner of Indian Affairs, the jurisdiction of his courts of Indian offenses also included: “misdemeanors 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 …  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 …”

The Commissioner explained that legislation authorizing the courts of Indian offenses “would supplement” the jurisdiction asserted by the “Indian Crimes Act” of 1885.  He cited the Supreme Court case United States v. Kagama and Another, Indians as providing that the Indian Crimes Act “is valid and constitutional” based on the “state of semi-independence and pupilage” which the United States government had “heretofore recognized in the Indian tribes …”

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, “an Indian woman.”  Minnie was jailed “for the offense of living and cohabiting” with an Indian other than her husband.  Prior to any trial, Minnie was rescued and “set at liberty” by the defendants in U.S. v. Clapox, also Indians.  Her rescuers were charged with the federal crime of “rescue”—“forcibly setting a person at liberty who has committed for ‘a crime against the United States’.”

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 “crime against the United States.”  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 “Walla-Wallas, Cayuses and Umatilla tribes, and bands” of Indians, “acknowledge their dependence on the government of the United States … 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.”

The Oregon district court acknowledged that, “These ‘courts of Indian offenses’ are not the constitutional courts provided for in section 1, art. 3, Const., which congress only has the power to ‘ordain and establish,’ 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.”  The curriculum established by the U.S. included punishment for certain “‘Indian offenses,’ such as the ‘sun,’ the ‘scalp,’ and the ‘war dance,’ polygamy, ‘the usual practices of so-called ‘medicine men’,’ … and buying or selling Indian women for the purpose of cohabitation.”

In some remarkable legal reasoning invoking English ecclesiastical law and the “conduct peculiar to the Indian in his savage state,” the Oregon district court ruled that although adultery was not specifically prohibited by the rules of the court of Indian offenses, “it is altogether in keeping with the general purpose and spirit of these rules that adultery should be prohibited and punished by them.”  The United States, “by virtue of its power and authority in the premises, had established a rule,” which Minnie was allegedly accused of violating.  She was “therefore committed for a crime against the law-maker,—the United States.”  Thus, continued the Oregon court, her rescuers were, “in 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.”

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 “Courts of Indian offenses are created by the Secretary of the Interior in accordance with his general authority … 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 …”  [The entire memorandum  was published in Press/ON June 8, 2001.]

In his September 1972 article in the North Dakota Law Review, “Tribal injustice: the Red Lake court of Indian offenses,” Press/ON publisher William J. Lawrence chronicled the United States’ establishment of courts of Indian offenses, and examined the Indian court at Red Lake.

Lawrence observed that, “the 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 …”

Lawrence scrutinized the courts of Indian offenses’ shaky legal foundation, resting on U.S. v. Clapox—“mere educational and disciplinary instrumentalities” deriving their authority from U.S. ‘guardianship.’  He noted that another “defense of their legality” is the doctrine, espoused in 1934, that courts of Indian offenses “derive their authority from the tribe rather than from Washington.”  Lawrence adds, “whichever 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 powers” vested in the people.

The year in which tribal authority—rather than the authority of the U.S. government—was held to legitimate Indian courts is significant: 1934.  Following years of lobbying by the Bureau of Indian Affairs, led by “reformer” 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 “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; 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 “applicable laws.”

The I.R.A. also delineates the powers of the “Indian tribe or tribal council”: 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 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 “Indian tribe or tribal council.”

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 “authorized by federal legislative action.”  However, the federal court ruled that since Congress had provided for “pay and other expenses of judges of Indian courts” and Indian police, Congress “recognized” the authority of Indian tribal courts, and that those courts had “inherent” jurisdiction.

Little Finger and Black Cat argued that their rights were protected “as citizens of the United States.”  Drawing on legal cases decided before passage of the Act of June 2, 1924 extended citizenship to all Indians “born within the territorial limits of the United States,” 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: “Of 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 partial…”

The federal court also quoted from the case Lone Wolf v. Hitchcock, “It is thoroughly established that Congress has plenary authority over Indians …” and held that, “the granting of citizenship in itself did not destroy … jurisdiction of the Indian tribal courts and that there was no intention on the part of Congress to do so.”

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 “disobedience to the lawful orders of the Court.”  Mrs. Colliflower pled not guilty to the charges; the Indian judge “found her guilty and sentenced her to a fine of $25 or five days in jail.  Mrs. Colliflower … elected to take the jail sentence because she could not pay the fine.”

Based on the due process clauses of the U.S. Constitution, Mrs. Colliflower then petitioned for a writ of habeas corpus, claiming “that 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.”  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 “did not touch upon the question of whether the Constitution applies to the procedure of Indian courts,” merely ruled that the Indian court had jurisdiction.  The federal court continued, “In 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. … 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.”

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, “We confine our decision to the courts of the Fort Belknap reservation.”  The federal court also limited the impact of its decision with the caveat that, “it does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts …”

Overall, the BIA budgeted more than $128 million for “tribal courts” during the year 2001.  In the Bureau’s narrative for its 2001 budget justifications, the BIA describes the tribal courts as enabling “Tribes 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.  … The program also supports the Bureau’s goal to foster strong and stable Tribal governments so they can exercise their authority as sovereign nations.”  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. …

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: “an Indian tribe may not assert sovereign immunity against the United States.”

- To Be Continued -