- Chapter XIII -
            Indian tribal courts

            The Geneva Convention of 1864 began formal codification of the Europeans' Laws of War.  This body of Common Law of Western Civiliza­tion[i] includes the understanding that "it is customary for the military government set up by the occupying power to maintain law and order [in an occupied territory]."[ii]  The European perspective is based on the world-view that there is such a thing as a "just" war, and that violently appropriating another Nation's property can be considered "Civilized" behavior.  The brutal war of extermination conducted by Western Europeans against the Aboriginal Indigenous people of this Continent--who have never been Indians--was justified by the derogatory and all-inclusive unilateral definition by the Euro-Americans, of Aboriginal Indigenous peoples as "Indians."  It was supported by the actions of patrilineally Lislakh people, including many who were full-blooded Whites,[iii] who took on the European identity of "Indian" and did in fact attack other Whites and Indians, as well as Aboriginal Indigenous people.  The Western Europeans' self-justifications were also bolstered by the precedent set by Pope Alexander III, in the year 1179, that "outsiders" and "infidels" were not subject to the same protections as "equals" when vanquished.  No matter how such concepts have become entrenched in Western civilization's International Law, such violent codes of War and Peace have no business being applied to fundamentally non-violent Aboriginal Indigenous peoples.  Mitigating circumstances for engaging in War have never been a part of Ahnishi­nahbæó^tjibway religion, values, and culture.

            The 1864 Red Lake and Pembina Métis' Indian Treaty Amendment was unilaterally enacted by the U.S. Congress shortly before the end of the United States Civil War.  Contemplating the surrender of the Confedera­cy, policy-makers in Washington, D.C. weighed the various strategies under which Peace might be waged.  The philosophy finally adopted by Congress was that those the U.S. termed the "Southern States," had "'deprived themselves of all civil government' and had forfeited their rights of self-government."[iv]  The spirit of the times was Peace in the sense of Reconstruction by the conqueror, and in 1865 the United States Government began contracting with Christian missionary societies "for the purpose of preparing Indians to adopt Anglo-American culture,"[v] under similar concepts of peace.

            In the first year and a half after the end of the Civil War, a million volunteer troops were mustered out of the Union Army.  Many of them were paid off with land Scrip redeemable for homesteads on "public lands," usually in the West.  Construction of the transcontinental railway was begun in earnest.[vi]  Between the years 1864 and 1871, about 2,276,000 documented immigrants[vii] entered the United States, putting intentional pressure on the western frontier of European settlement, and creating public support for the sentiment expressed by General Grant during his Presidential Campaign of 1868, "The settlers and immigrants must be protected, even if the extermination of every Indian tribe was necessary to secure such a result."[viii]

            Ulysses Grant's presidency is described by The Encyclopedia Americana as characterized by "his peaceful Indian policy."[ix]  The same source remarks that the "Indian wars" of that era were "some of the bitterest fighting of American military history, interspersed with massacres ... the inadequacy of troops available for the ugly job of pacification was not its worst feature."[x]

            By 1871, the land designated as "Indian Reservations" was less than 7% of the total land area, all of which was claimed by the Euro-Americans' foreign concept of eminent domain.  The population designated by the U.S. as "Indian"[xi] was 326,468--probably less than half of whom were Aboriginal Indigenous people.   On March 3, 1871, the U.S. Congress passed an Act providing "hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty."[xii]  Later in 1871, the Peace Policy was summarized by General Sherman in an endorsement to the recommendations of the Secretary of the Interior,[xiii] "to fix and determine (usually with the assent expressed or implied of the Indians concerned) the Reservations within which they may live and be protected by all branches of the executive Government; but if they wander outside they at once become objects of suspicion liable to be attacked by the troops as hostile."  Agitation had begun by 1871 to create military tribunals in the P.O.W. camps called Reservations, and to once again use Indians to try to claim jurisdiction over the Aboriginal Indigenous people, under the Rules of War for occupied people.  As Thomas S. Williamson wrote on June 2, 1871 from St. Peter, Minnesota,[xiv] "I hasten to send you my views as to civilizing the aborigines of our country ...  The hostility between the white and red men of our country is chiefly owing to the fact that the [Indians] are, in our country, everywhere outlaws.  If we would strike from our statutes the words 'except Indians not taxed,' and punish them for their crimes ... they would very rarely molest us. ..."

            In the General Meeting of Friends of the Indians, on January, 1872,[xv] the Honorable Chairman Philip Williams remarked, "...I say that our Indian policy is no more a policy than the intercourse laws are a code.  The latter constitute a slim bundle of fragments.  They only pretend to punish one or two infractions of Indian rights ..."  Williams advocated setting up Indian Courts as a means of maintaining law and order among the occupied Indians.  After twelve more years of agitation by "Friends of Indians" and other parties, the U.S. established military tribunals using the status of Indians as occupied peoples to gain unwarranted jurisdiction over Aboriginal Indigenous peoples, who had not gone to war with the immigrant Euro-Americans.  As the Commissioner of Indian Affairs reported:[xvi]

            Under the date of April 10, 1883, the then Secretary of the Interior gave his official approval to certain rules prepared in this office for the establishment of a court of Indian offenses at each of the Indian agencies, except the agency for the five civilized tribes in the Indian Territo­ry.  It was found that the longer continuance of certain old heathen and barbarous customs, such as the sun-dance, scalp-dance, war-dance, polygamy, &c., were operating as a serious hindrance to the efforts of the Government for the civiliza­tion of the Indians.  It was believed that in all the tribes Indians would be found who could be relied upon to aid the Government in its efforts to abolish rites and customs so injurious and so contrary to civilization; hence these rules were formulated, looking towards the ultimate abolishment of the pernicious practices mentioned.

                        There is no special law authorizing the establishment of such a court, but authority is exercised under the general provisions of law giving this Department supervision of the Indians.  The policy of the Government for many years past has been to destroy the tribal relations as fast as possible, and to use every endeavor to bring the Indians under the influence of [Roman] law.  To do this the agents have been accustomed to punish for minor offenses, by imprisonment in the guard-house and by withholding rations; but by the present system the Indians themselves, through their judges, decide who are guilty of offenses under the rules, and pass judgement in accordance with the provisions thereof.  Neither the section in the last Indian appropriations bill above quoted nor any other enactment of Congress reaches any of the crimes or offenses provided for in the Department rules, and without such a court many Indian Reservations would be without law or order, and the laws of civilized life would be utterly disregarded.

            The United States Government continues to maintain what they call the Indian C.F.R. (Code of Federal Regulations) Courts to bring Aboriginal Indigenous peoples under the jurisdiction of the apartheid structure which the U.S.A. calls Indian law.  The European concept of law as a means of maintaining social order has nothing to do with the Ahnishinahbæó^tjibway philosophy of each person holding their own Sovereignty, and each individual having personal responsibility for the consequences of their actions.  There was not one jail, prison, padlock, nor gallows on this Continent until the Europeans brought them as a part of their material culture, along with their Indians.  The European ideas of law depend on what Minneapolis Police Chief Tony Bouza called "a legal monopoly on violence."[xvii]  Euro-American laws, as applied to Aboriginal Indigenous people under the aegis of Indians, are illegally dictated by foreign jurisdiction, under what we are told comprises a democratic nation-state, and are used to force Aboriginal Indigenous people to conform to externally imposed values.

            In the Ahnishinahbæó^tjibway world-view, every human being is put on this earth for a purpose, and every human being is born with the capability of understanding through their own personal relationship with the Universe what the meaning of their own life is, and living in harmony.  Every person comes to this world for a purpose, and according to Ahnishinahbæó^tjibway philosophy, is untainted by what the Judeo-Christians call "original sin."  Turning away from the responsibilities for which each person is born, and getting manipulated by other human beings, is where the sin is.  Ahnishinahbæó^tjibway and other Aboriginal Indigenous people have been telling the immigrants since they got here that each one of them has a personal responsibility, and it's not to be somebody else's slave, sycophant, or henchman.  These Continents were kept a beautiful paradise because each and every one of the Aboriginal Indigenous people here took our responsibility seriously, and we lived in harmony.

            An Ahnishinahbæó^tjibway elder who was a highly decorated World War II veteran wrote in 1986, "To [Ahnishinahbæó^tjibway] people, the BIA police are highly political.  As Commissioner of Indian Affairs Price described the just-established BIA police and courts systems in 1881, '...a power entirely independent of the Chief [sic].  It weakens and will finally destroy the power of tribes and bands.'  The structure, function, and organization of these 'non-political' agencies hasn't changed since 1881."[xviii]

            Ahnishinahbæó^tjibway oral history is filled with cases chronicling derailment of what might be considered justice:[xix]

                        In one case a young Chippewa Indian was brought before the C.F.R. Tribal Court, and the judge asked him, "how do you bleed?"  What the judge meant, was "how do you plead," but the judge was a French Métis and he didn't speak English very well.  The person who came up before the court thought the judge was implying that they were going to take him into the back room and administer some justice that would make his blood flow.  So, he said, "Fuck you, I don't bleed."

                        Another example of justice in the Red Lake C.F.R. Courts, concerns somebody who was picked up for drunk driving.  The defendant pleaded "not guilty," and he had a witness.  The judge sentenced the defendant to 90 days, and he sentenced the witness to 30 days.  The Clerk of Court said, "you can't do that, Judge, he's the witness."

This is how these stories are told in Ahnishinahbæó^tjibway, and to an Ahnishinahbæó^tjibway they are redundant but still funny, and an ironic characterization of the "make-up-any-law-on-the-spot" B.I.A. Tribal Court system.  In our egalitarian language, it is rude to tell people things that they already know.[xx]  Our stories might seem abbreviated and incomplete to somebody outside of our culture.

            The C.F.R. Courts remain specifically designed to destroy Aboriginal Indigenous Sovereignty, traditions, culture, and people, using the façade of U.S. subject Indian people to unjustifiably presume jurisdiction.

            In 1985, the U.S. Department of the Interior, Tribal Government Services, wrote:[xxi]

            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, 25 U.S.C. §1301-1303; the Freedom of Information Act, 5 U.S.C. §552; 18 U.S.C. §2071; 43 C.F.R. §20.735-15; and 18 U.S.C. §209. ... Courts of Indian offenses are federal instrumen­talities that are required to comply with federal statutes as well as the Constitution of the United States.  Therefore, you [will ensure]:

            1. Employees in courts of Indian offenses are prohibited from willfully and unlawfully removing, concealing, destroy­ing or falsifying public records (i.e. court proceedings, ... court documents, etc.) ...

            2. Federal employees in courts of Indian offenses are prohibited from supplementing their salaries from the money accumulated through criminal fines, court fees, and from other sources. ...

            3. Courts of Indian offenses personnel must comply with a request for court records made in accordance with the Freedom of Information Act, 5 U.S.C. §552.

            In January of 1986, the Minneapolis Star Tribune published a series of articles entitled Indian Courts, Islands of Injustice.[xxii]  The series concluded:

            Civil rights abuses are occurring virtually unchecked on many of the nation's Reservations with Indian courts.  A half-million Indians live on those Reservations and could find themselves in courts without rights to bail, jury trials, lawyers, and decisions untainted by politics.

                        Why isn't the federal government, which spends more than $8 million a year to finance courts for about 150 Reservations, doing something to curb the abuses? ...

                        Congress gave Indians most of the protections of the Bill of Rights in the 1868 Indian Civil Rights Act.  But 10 years later the U.S. Supreme Court sharply limited the impact of this legislation. ..."

The Star Tribune writers attributed much of the problem to "the way tribes operate their courts."[xxiii]  But, if they understood the legal structure set up by the United States--using the quasi Sovereignty attributed to the I.R.A. councils as a front behind which the U.S. Government uses Indian trusties to assert P.O.W. control over those defined as Indians, and illegally harasses Aboriginal Indigenous people--it did not reach print.

            I.R.A. Tribal Chairman Roger Jourdain responded to journalists' concerns about the lack of civil rights in the C.F.R. Courts in 1986 by rubber-stamping a Tribal Council Resolution that lawyers in the C.F.R. Court at Red Lake had to be enrolled Red Lake Indians and had to be able to speak the Chippewa language.  There were no such lawyers.  The irony is that no judges then spoke Chippewa, and Roger Jourdain is only able to give one broken-record all-purpose speech in Chippewa, which he has given at every appropriate occasion over his thirty-year tenure as Chairman-for-Life.  The laws are all in English, although they are called "Indian Law."  The B.I.A. which administers the courts doesn't speak Chippewa.  The Miranda Rights aren't read in any language, even broken English, and there isn't a B.I.A. policeman on the Reservation who would understand the Miranda Rights in either Chippewa or Ahnishinahbæó^t­jibway.  Roger Jourdain's proposal that lawyers be able to speak Chippewa was prompted by the Bureau of Indian Affairs.  The issue of who speaks this hierarchical European Creole language is a diversionary tactic, and has nothing to do with the bureaucratic regulations under which the so-called Indian Tribal Courts operate.

            The Indian Tribal Courts are operated under the Code of Federal Regulations,[xxiv] using what the B.I.A. calls the "general authority"[xxv] of the Secretary of the Interior--although fines and imprisonment can be imposed by the C.F.R. Courts, they have no statutory basis except that in (Roman Imperial) International Law under the Rules of War.  The Indian Tribal Court is described:[xxvi]

            (b) It is the purpose of the regulations in this part to provide 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.

Jurisdiction of the C.F.R. Courts is demarcated to certain Indian Reservations including Red Lake,[xxvii] and is limited to "offenses enumerated... when committed by any Indian, within the Reservation ..."[xxviii]  The United States Supreme Court has ruled that the apartheid bureaucratic administration of Jim Crow criminal penalties exercised by the B.I.A. on Indian Reservations, cannot be extended either to Whites, or to Ahnishinahbæó^tjibway.

            The Red Lake Court of Indian Offenses' Law and Order provisions in effect prior to September 11, 1990, contained provisions which would have been in explicit violation of the Bill of Rights if the rights guaranteed by this part of the U.S. Constitution applied to Indians.[xxix]  Other sections of the Red Lake Indian Code make explicit the United States' intent to use their jurisdiction over Indians to destroy Ahnishinahbæó^tjibway traditional economics and control our subsis­tence:[xxx]

            Section 72 - Vagrancy

                        Any employable Indian who shall wander about in idleness, ... or loafs or loiters in any village or town on the Red Lake Indian Reservation without any attempt to obtain regular employment, shall be deemed guilty of an offense, and upon conviction thereof, shall be sentenced to imprisonment for a period not to exceed thirty days or to a fine not to exceed $60.00 or to both such imprisonment and fine with cost. ...

            Game and Fish, Section 1

                        No Indian shall at any time take, transport, or possess any protected wild animal on the Red Lake Indian Reservation, except as permitted by the provisions of this Chapter.  As used herein, "protected wild animal" shall mean any animal commonly taken for food or for its pelt, and shall also be taken to include all upland game and migratory water fowl.

Jackie White successfully challenged Euro-American jurisdiction over Ahnishinahbæó^tjibway, in a case relating to "endangered species" which he took to the U.S. Supreme Court.

            That the C.F.R. game and fish regulations were never intended to protect the ecosystem which the Ahnishinahbæó^tjibway have maintained under our ancient traditions, is made clear by the long-range economic development plan currently being followed by the U.S. Government on Red Lake Reservation.  This plan, written under contract with the B.I.A., and endorsed by the I.R.A. Tribal Council, recommends degradation of our environment, noting for example that their rice paddies appear "to have contributed significant amounts of dissolved solids and sulfates to the river ... [and] contributed significant amounts of biochemical oxygen demand and oxygen deficient water to the river system.  Violations of the agency standard ... could seemingly occur."[xxxi]  The plan endorses blasting duck nesting sites "with ammonia nitrate"[xxxii], and recommends clearcut "land clearing" with mechanical shearing blades[xxxiii], along with "machine scalping" of the land, application of 2-4D, 2-4-5T and other poisons[xxxiv], and elimination of "mature stands,"[xxxv] meaning wholesale destruction of balanced Ahnishinahbæó^tjibway forests, in order to make "tree farms."  The Bureau of Indian Affairs writes, "Despite conflicting opinions, stand conversion [i.e., demolishing intact forests] will occur."[xxxvi]  The White planners also note that "such a program will necessitate changes in certain activities and attitudes that may not be entirely acceptable to tribal members Ahnishinahbæó^t­jibway]."[xxxvii]  It may need to be reiterated here that the B.I.A.'s Indians are not the Ahnishinahbæó^tjibway, and in fact that the Bureau's Indian élite expects to make money from this ecological devastation.

Dispensing Indian justice

            The United States Code of Federal Regulations under which Department of Interior Regulations are administered to Indians, provides in Chapter 11, §11.12:[xxxviii]

            (b) Whenever the court is in doubt as to the meaning of any law, treaty or regulation it may request the superintendent to furnish an opinion on the point in question.

Before court is held, the Indian Agent goes over the cases to be heard with the judge, and tells him how much of a fine to levy, and how many days the defendant should spend in jail.  The B.I.A. Indian Agent has the power to decide what the outcome of the trial will be, before it goes to court.  The Euro-Americans say that they want to "acculturate" Indians, but as a conquered people they are kept separate from the mainstream, and the finer points of the Euro-Americans' English and Roman legal system (like fair trials) are ignored.  As long as I can remember, even the Métis have called the courts set up for Indians, "kangaroo courts."

Indian Major Crimes

            Under the paternalistic guidelines and trusteeship of the United States Government, two years after the C.F.R. Courts were created, the United States acted the role of "Indian giver," and reclaimed jurisdiction over the major crimes of murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny.  What later became known as the Major Crimes Act was enacted by the U.S. Congress as Section 9 of the Indian Appropriations Bill of March 3, 1885.[xxxix]  The Major Crimes Act is another part of the overall U.S. strategy of using the Indians to gain jurisdiction over the Aboriginal Indigenous people.  The specific incident used by the United States to justify the Major Crimes Act was the death of Spotted Tail, allegedly at the hands of Crow Dog.

            The Major Crimes Act has not been, however, used in most cases to prosecute murders of Aboriginal Indigenous people.  I saw documents which came from the Bureau of Indian Affairs, and circulated in the community during the early 1970's, which included stacks and stacks of case files on murdered Aboriginal Indigenous people, as well as Indians, whose deaths were neither investigated nor prosecuted.  One of the reasons that Indian murderers of Aboriginal Indigenous people were frequently not prosecuted was because the Bureau could use the threat of prosecution for murder to control the Indian: "you either do what we tell you or go to jail."  The identity of the people who committed many of these crimes was known in the community, but there was nothing done by the Law and Order agencies under the control of the B.I.A.  The Bureau claimed that they did not want to spend the time or money investigating these crimes, but they had several reasons for sitting on them, including: the theory that the "only good Indian is a dead Indian," and the use of community violence as a cover for the United States Government's violence against certain individuals.  Such conditions were worse when we were kept isolated and could not speak English.

Revising the Indian Law and Order Code

            On September 11, 1990, the Red Lake Band of Chippewa Indians unanimously adopted the "recommended changes to the Tribal Law and Order Code."[xl]  These changes did not change the U.S. jurisdiction, including that enumerated in the Indian Major Crimes Act, but expanded the detailed regulation of the Department of Interior over their Indians' affairs tenfold.  The Revised Code makes undefined reference to the "Red Lake Band of Chippewa Indians in its sovereign [sic] capacity," using this misleading appellation to claim, for example, "the ownership and legal title to all wild animals, and all of the wild rice and other aquatic vegetation growing in the waters of the Red Lake Indian Reservation."[xli]  What the I.R.A. Tribal Councilmen who endorsed this law and order code apparently did not understand is that the "Indian Sovereignty" about which they hear so much and are informed so little, is United States Government trusteeship, illegally applied to Ahnishinahbæó^tjibway property.  Their Revised Code refers to "Indians" as non-persons,[xlii] in accordance with the precedent set in the U.S. Constitution.