United States Commission on Civil Rights

Confidential Draft Report
“Enforcement of the Indian Civil Rights Act of 1968”

May 1990

see also "The Indian Civil Rights Act, U.S. Commission on Civil Rights"
    Statement by Commissioner William B. Allen

Enforcement of the Indian Civil Rights Act of 1968: Red Lake Court of Indian Offenses

page 16  Red Lake Court of Indian Offenses      To understand more clearly the Department of Interior's role with respect to the rights of reservation residents vis-a-vis tribal governments, the Commission hearing continued to draw upon the Bureau's recent handling of matters involving the Red Lake Tribe ... page 17  ... the following summary of the relevant events at Red Lake was presented to the panelists:      1972: A law review article appeared criticizing the tribal courts at Red Lake ... page 18      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... page 19  ... burning of Red Lake Chairman Roger Jourdain's house along with other property ... about 13 buildings were burned and, unfortunately, two deaths occurred.      1980: The Red Lake Council passed a resolution barring the news media from the reservation ... page 20  ... Interior Department attorney advised BIA officials that the court's practice of not providing a jury trial violated rights secured by the Indian Civil Rights Act.      1985: Senator Boschwitz and Representative Stangeland requested the U.S. Comptroller General to investigate the Red Lake system, which they never did ... page 21  ... denied counsel, bail, and the right to a trial by jury.       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 ... page 22  ... Minneapolis Star and Tribune brought a Freedom of Information action against the Department of the Interior seeking the Red Lake court records.      August 1985: The court records were seized by the Red Lake Tribe ... page 23  ... tribe has petitioned the U.S. Supreme Court for certiorari review.      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 the grounds that the federal court does not have the authority under the Indian Civil Rights Act in light of the Martinez decision. page 24      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.       Right to Counsel at Red Lake The hearing turned to allegations that the Red Lake Tribe was denying persons their right to counsel ... page 25  ... admission to the Red Lake Tribal Bar mandate that candidates be 21 years of age or older, have good moral character, be a law-abiding citizen without a felony conviction, schooled in tribal law and knowledgeable about the tribe's laws, customs, court rules and procedures, understand Chippewa, be a member of the Red Lake band of Chippewa Indians, and be a resident of the Red Lake Indian Reservation for at least a year ... page 26  ... specifically addressed the question of whether the tribe could impose language requirements on nonmember attorneys:       Although a tribal court is required by the Indian Bill of Rights to allow representation by a professional attorney it does not follow that the court cannot impose certain regulations or qualifications on the appearance of such an attorney.  In formulating such regulations, however ... page 27  ...Red Fox v. Red Fox,  the Oregon Court of Appeals was confronted with whether to recognize a tribal court judgment claimed to be void because the tribal court refused to allow one of the parties to be represented by an attorney.  The court of appeals recognized the tribal court judgment, saying that ... page 28   ... affirmed by the ninth circuit with a finding that due process under the ICRA and Constitution have the same meaning.  Moreover, said the ninth circuit:       "We view the enactment of the Indian Civil Rights Act as evidence of this continuing congressional solicitude for the welfare of the American Indian.  The courts of the United States must be correspondingly more available to adjudicate, enforce and protect the civil rights specifically granted to the Indian peoples by the Congress ..." page 29  ... 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.  Whether the actions of the Red Lake Court of Indian Offenses were intentional or simply the result of unfamiliarity with the obligations incident to running a court is of no concern to this court at this time ... page 30   BIA Attempts to Rectify Problems at Red Lake      The Bureau of Indian Affairs attempted to address the right to counsel along with other problems in the CFR courts by issuing a memorandum to its Area directors on November 12, 1985.  The memorandum, by Hazel E. Elbert, Acting Deputy Assistant Secretary for Indian Affairs, stated that:     "It has come to our attention that courts of Indian offenses may be violating mandates set forth in the Constitution of the United States; the Indian Civil Rights Act ... " page 31      4. The Indian Civil Rights Act and the Constitution of the United States guarantee that individuals appearing before courts of Indian offenses will be afforded all of those rights guaranteed by the Constitution to all citizens of the United States from any federal court ... page 32  ... are required to comply with both the Constitution of the United States and the Indian Civil Rights Act in making arrests and in conducting search and seizures.      9. Courts of Indian offenses shall not enforce any tribal resolution or ordinance which is in conflict with any of the foregoing provisions. ... page 33  ... A little more than a month later, BIA Area Director Earl J. Barlow wrote to Chairman Jourdain and advised him that he could not disregard the directives contained in the Elbert memorandum.  He then sent a memorandum to the Superintendent of the Red Lake Agency ... page 34   ...  the Red Lake Band has issued that Mr. Meshbesher be removed from the Reservation by Law Enforcement Services personnel.  Bureau personnel are hereby directed not to enforce that removal order.      Nevertheless, in a case brought in 1987, Attorney Meshbesher was forced to bring a habeas corpus petition in Federal court, alleging denials of the right to counsel, the right to a jury trial and right to a speedy public trial ... page 35  ... represent them in the pending criminal cases before the Red Lake Court of Indian Offenses. ... Mr. Meshbesher has been informed by Ms. Marilyn J. Johnson, the Clerk of Court of the Red Lake Court of Indian Offenses, that he will not be allowed to practice in the Red Lake Court of Indian Offenses until and unless he is licensed by the Red Lake Tribe.  However, Mr. Meshbesher has contacted Mr. Royce Graves, Sr., the official secretary of the Red Lake Indian Tribe, to obtain information and procedures to become licensed to practice before the Red Lake Court of Indian Offenses.  The Tribal Secretary has informed Mr. Meshbesher that there are no procedures by which he could become licensed to practice before the Red Lake Court of Indian Offenses, and further, that the Red Lake Indian Tribe has no plan or intention of developing or putting in place procedures by which he, or any other attorney, could become licensed to practice ... page 36 Red Lake Tribe Seizes Federal Records      In January 1986, the Minneapolis Star and Tribune published a series on the problems in tribal courts entitled, "Indian Courts: Islands of Injustice".  The Red Lake Court was among the tribal courts examined.  In an attempt to gain access to Red Lake Tribal Court records, the Minneapolis Star and Tribune filed a Freedom of Information Act request and subsequently brought suit against the Department of the Interior to obtain the records requested.  The tribe, however, seized the records and refused to turn them over to either the newspaper or the federal government. ... page 37 BIA Transfers CFR Court Operations to Red Lake Tribe      As noted previously, the Bureau's failure to promulgate a model code for CFR courts served as the basis for Cook v. Moran, a suit brought in federal district court that alleged a violation of the Fifth Amendment right to due process.  The opinion in Moran is sharply critical of the CFR court.  This is all the more troubling since in November 1987 the Bureau abolished the CFR court and permitted the Red Lake Tribe to establish its own court under a 93-638 contract ... page 38   ... Plaintiff's claim ... is an indictment of the Court of Indian Offenses on the Red Lake Indian Reservation.  It is a claim which charges that the Red Lake Court of Indian Offenses denies the fundamental rights provided under the [ICRA] to its own people more often and with greater fervor than it protects them ... [and] charges that the Red Lake Court of Offenses has established de facto the denial of fundamental rights as the norm rather than the exception in the administration of justice on the Reservation ....      The claim raises great concern in this court and should raise even greater concern in the ... page 39      Plaintiffs, the court said, had chosen the wrong means to complain of the failures of the CFR court to accord them their rights:       "The injustices which plaintiffs allege occur in the Red Lake Court of Indian Offenses are likely real and distressingly so.  But, given the unique and complex character of Indian tribes as quasi-sovereign nations and the extraordinarily broad authority of Congress over Indian matters, the role of the courts in matters between tribes and their members, even where redness of violations of rights under § 1302 of the Act is sought, is quite restrained.  Claims for redress of the injustices of the Red Lake Court of Indian Offenses which plaintiffs allege are today best directed to Congress ... " page 40  ... Bureau chose not to follow a recommendation by its own counsel and by U.S. Attorney Jerome Arnold that a clause be inserted in the contract specifying that the tribe was to adhere to the ICRA as a condition of fulfilling the contract. ... page 41      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 ... page 42   ... Bureau's decision not to include ICRA language in the tribal court contract is memorialized in a memorandum dated December 23, 1987:      "Based on my staff's recommendations I will decline, at this time, from attempting to insert any draft language to the Public Law 93-638 Tribal Court Contract with the Red Lake Chippewa Tribe as proposed by your Twin Cities field office... " page 43 ... MR. HOWARD:  The crux of the problem, as I see it, is that there are some tribal officials who maintain that the Indian Civil Rights Act is not applicable Federal law, and we've heard testimony tho that effect ... page 44   ... Asked why the Bureau had deemed it appropriate to turn administration of the court over to the tribe; Secretary Swimmer indicated that "[it] is the intent of the Bureau to withdraw from all CFR courts as soon as practicable." page 45 "I might add," he later told the Commission, "that there is no one living on a reservation today that has to live there.  There is no law that says anyone must live under the constraints of the Red Lake Tribal Council.  They are free to move about anyplace in this country.  And once they leave the jurisdiction of the tribe, they have no more responsibility to it nor the tribe to them, in most cases.  U.S. Attorney Arnold disagreed, calling the suggestion "horrendous." page 46  ... deeply resents the intrusion by the United States Civil [R]ights Commission and the Congress into Red Lake affairs through the passage of the 1968 Civil Rights Act. ... page 47   ... application of the ICRA on the Red Lake Band of Chippewa Indians which would be indirect contradiction to and in violation of prior agreement, policies and treaties between the Red Lake Band of Chippewa Indians and the United States Government ...