Native American Press/Ojibwe News

NiiSka petitions U.S. Supreme Court to restore human rights to Indian Law

By Jeff Armstrong - December 14, 2001
In a petition for a writ of certiorari, Clara NiiSka has asked the highest court in the United States to do what no other court can--review more than a century of the contradictory hodgepodge of case law, legislative acts and bilateral treaties known collectively as Indian Law.

Since the 1997 death of her husband, columnist and author Wub-e-ke-niew (a.k.a. Francis Blake), NiiSka has submitted thousands of pages of legal and historical documentation to various courts in support of the deceptively simple proposition that her traditional 1984 Mide marriage on Red Lake was legally valid under tribal, state and federal law of questionable applicability.

A PhD candidate, anthropology professor and journalist in her own right, NiiSka carries on her late husband's belief that the Ahnishinahbæótjibway never legitimately lost or surrendered their jurisdiction over land which includes the current diminished Red Lake Reservation. She harbors no illusions about the likelihood of prevailing.

"Are they going to consider on it those grounds? Probably not," said NiiSka. "When I started this, I wasn't out to change the world. I just wanted them to recognize my marriage. That's all I really, really care about."

Wub-e-ke-niew formally renounced his tribal enrollment in 1990 and with it his legal status as an "Indian," a definition he viewed as a colonial stereotype intended to perpetrate cultural genocide and U.S. hegemony over indigenous peoples.

When Wub-e-ke-niew was born in 1928, NiiSka argues, political power on Red Lake was dispersed among four distinct factions: the assimilationist U.S. Bureau of Indian Affairs; the General Council, dominated by Peter Graves and others of mixed French-Anishinaabe (Métis) descent; the Council of Chiefs, characterized by NiiSka as little more than a fig leaf for the Métis council; and the consensual, egalitarian leadership of the surviving dodems of the Ahnishinahbæótjibway, which quietly resisted the authority of the other three.

In his controversial 1995 book, We Have the Right to Exist, Wub-e-ke-niew recounts the life of his great-grandfather Bah-se-nos, a leader of one of the two successful efforts to block the dissolution of reservations into individual "allotments," a U.S. policy which led to the occupation of the vast majority of indigenous lands. After Bah-se-nos' death, the federal government burned his lifelong birchbark residence to the ground and fraudulently attached his name to a land "cession" document in 1902--one year after his death.

Wub-e-ke-niew and his widow met a similar fate. One week after his death, NiiSka was strong-armed out of the home she and her husband had built by Wub-e-ke-niew's daughter, Valerie Blake. Blake took control of all of NiiSka's personal and joint possessions, including a van registered in NiiSka's name, and legalized the theft by obtaining a Red Lake Probate Court order appointing her administrator of the estate. When NiiSka appeared in court to contest the Red Lake Indian court’s assertion of probate jurisdiction, she was removed and barred from the reservation on the basis of a directive signed by tribal chairman Bobby Whitefeather.

NiiSka contends that the Red Lake court established jurisdiction by posthumously re-enrolling Wub-e-be-kniew in his son's name. She also points out that the court had no probate authority over her—or her property--as a non-member still among the ranks of the living.

Based upon years of research into original sources, NiiSka says that the U.S. Interior Department was forthright about its intentions in creating Courts of Indian Offenses as a device to punish and suppress the excercise of aboriginal spiritual and cultural practices. She also disputes the authority of the executive branch to create a court system under the U.S. Constitution.

"Here is an agency established by the federal government, but the indigenous people that the land actually belonged to did not ask the United States to establish a tribal court," NiiSka said. "They were established for the explicit purpose of destroying indigenous culture, period."

In her petition to the U.S. Supreme Court, NiiSka forcefully argues that if U.S. courts fail to recognize her husband's withdrawal from tribal membership, they are in effect creating a race-based court in contravention of Brown v. Board of Education, which outlawed racial segregation in public schools.

"[I]s 'Indian' legally colored as an immutable 'race' after all, and if so, doesn’t that invalidate the entire U.S. 'Indian' system as being unconstitutional under U.S. Const. Amend. 14 §1 as clarified by Brown v. Board, as well as illegal under subsequent rulings applicable to federally-funded programs?" NiiSka asks the justices.

The BIA budgeted $264,000 in federal funds for the Red Lake Indian court in Fiscal Year 2000, binding it, NiiSka argues, to respect federal civil rights laws. Despite a well-documented history of abuses, however, federal dollars keep rolling in.

"They've known for at least 30 years there are serious problems with the Red Lake court and what do they do? They keep funding them," said NiiSka.

Equally disturbing to NiiSka, and of central importance to her case, is the state governments' blanket enforcement, under the doctrine of comity, of tribal court orders which undermine the most fundamental precepts of constitutional democracy.

"Absent decisive action from the U.S. Supreme Court – the only court in the U.S. which has the jurisdiction to supersede its own Judicially-created doctrine of 'Indian tribal sovereignty' – the protections guaranteed by the U.S. Constitution will continue to languish in too many Indian courts. Amplification of civil rights abuses—and systemic lack of redress—by 'comity' rubber-stamping Indian court decisions into state jurisdiction happens frequently enough to merit serious concern by anyone who cares about the underlying principles of American democracy," she writes.

"Most importantly from the perspective of the Petitioner, the U.S. Constitution, Amend. I, guarantees 'the right of the people to petition the Government for a redress of grievances.' There have clearly been wrongs done—through the interplay of several legal systems. It is now up to the Supreme Court, whether or not the 'right ...to petition' is still a meaningful avenue for redress."