June 22, 2001
“Indian courts”: a brief history
This week: quasi-legal courts at Red Lake
by Clara NiiSka
Last week, Press/ON reprinted brief excerpts from the Annual Reports of the Commissioner of Indian Affairs in 1886 and 1888. The “courts of Indian offenses” were formally proposed in late 1882 by the Indian Commissioner, and established with the “approval” of the Secretary of the Interior on April 10, 1883.
The late 1800s were an era when political leaders like Senator Dawes—also chief author of the General Allotment Act—exhorted other policy-makers that “the Indian … is to disappear.” At that time, the main debate was whether “the vanishing Americans” were to be completely annihilated, or merely “civilized.” The Interior Department’s establishment of “courts of Indian offenses” deliberately intended to “destroy the tribal relations as fast as possible” as well as to repress religion and culture, does not seem to have raised much public concern.
In 1886, three years after the Indian courts had been created by the federal bureaucracy, the Commissioner of Indian Affairs was still urging that “they should be placed upon a legal basis by an act of Congress authorizing their establishment.” Despite its claims to “plenary authority” over Indians, the U.S. Congress has never seen fit to legalize the courts of Indian offenses. After 118 years, these “Indian courts” remain “educational and disciplinary instrumentalities” operating under the “general authority” of the Secretary of the Interior.
Indian tribal governments were transformed by the Indian Reorganization Act (I.R.A.) in 1934. Tribal Constitutions which “contain all the requirements of an IRA-document” specifically limit “Indian tribal government” by mandating that most acts of such Indian governments be approved by “the Secretary of the Interior or his authorized representative.” The I.R.A. also provides that tribal organization chartered under the I.R.A “shall not be revoked or surrendered except by Act of Congress” (25 § 477). With its control over “Indian tribal governments” thus thoroughly entrenched, the Commissioner of Indian Affairs and his Bureau of Indian Affairs (B.I.A.) began claiming that the courts of Indian offenses and other “Indian courts” were founded on “tribal authority” rather than that of the Secretary of the Interior.
notion that the
courts of Indian offenses established by the U.S. government are
“tribal” has been entrenched over the past seventy years.
The B.I.A.’s fiscal year 2001 budget request
to Congress included more than $145 million dollars for Indian courts. The B.I.A. explained its quasi-legal federal
instrumentalities—originally established to destroy indigenous
society—as “more than 250 Tribal justice systems and Courts of Indian
which “enable … Tribes to exercise their rights as sovereign nations.” Is this a “shell game” to divert
responsibility, confuse Congress, and absolve the U.S. government of
In Minnesota, 1884:
Based on the general authority asserted by the Secretary of the Interior, courts of Indian offenses were established in Minnesota in 1884. Minnesota Indian Agent C.P. Luse described these courts of Indian offenses in his 1884 report: “While I have selected three good men as judges of the court of Indian offenses for [White Earth reservation], I have not been able to find suitable persons both at Red Lake and Leech Lake to be competent judges.” Despite its lack of competent judges, Agent Luse described the Red Lake Indian court as having, “relieved me of many a trying case.” Luse prophesied that, “it is only a question of time and [the Court of Indian offenses] will become a permanent fixture and recognized as the only way to settle the little differences among them. If these judges could be paid a reasonable salary for their time and services, there would not be any doubt of the continued good results from this court.”
Six years later, in his 1890 Report, the Commissioner of Indian Affairs noted that the “reservation tribunals known as ‘courts of Indian offenses’ have been placed upon a quasi-legal basis by an appropriation made by Congress for the pay of the judges of such courts.” That same year B.P. Schuler, U.S. Indian Agent in Minnesota, wrote that there were three judges at the court of Indian offenses at the White Earth Agency (which also supervised Leech Lake, Mille Lacs, Red Lake, and several other places no longer distinguished as Indian reservations). The White Earth judges—Joseph Charette, William V. Warren, and John G. Morrison—Schuler continued, “speak English fluently and intelligently and wear citizens’ dress. … The general influence of the court … is good … This court should be regularly established and the judges compensated for their labor.”
U.S. jurisdiction over
The reality of jurisdiction—which court has authority over whom [personal jurisdiction] under what circumstances [subject matter jurisdiction]—at Red Lake is fairly complicated in actual practice. The U.S. and the State of Minnesota have asserted jurisdiction piecemeal and by increments on Indian reservations, and legal writers have described the consequences as a “morass” and “dolefully” inconsistent. The details of how this was done are interesting history chronicled in state and federal case-law.
The jurisdictional cases specific to Red Lake begin with U.S. v. 43 Gallons of Whiskey—which went to the U.S. Supreme Court twice, in 1876 and again in 1883. The whiskey, belonging to white men Bernard Lariviere and Clovis Guerin, was seized in the village of Crookston on Feb. 12, 1872. Lariviere, who was a licensed “retail liquor dealer,” argued that he and the whiskey were under State jurisdiction, in Polk County, Minnesota. The United States’ position that federal law pertaining to “Indian country” had jurisdiction over Lariviere and his whiskey prevailed. U.S. v. 43 Gallons of Whiskey was still being cited as a precedent in 1933.
The philosophy underlying both U.S. and Minnesota law had been spelled out in 1823 by U.S. Supreme Court Justice Marshall in the case Johnson v. M’Intosh: “the different nations of Europe … asserted the ultimate dominion to be in themselves.” U.S. claims to hegemony were reaffirmed by Marshall in the U.S. Supreme Court case Cherokee Nation v. Georgia eight years later: “we assert a title independent of their will.”
U.S. jurisdiction and Red Lake
At Red Lake, the United States’ specific claims to jurisdiction rest on cession of land outside of the boundaries of the present-day “diminished reservation”: under the treaty of October 2, 1863 (amended April 21, 1864 and proclaimed April 25, 1864); and pursuant to the Act of January 14, 1889, Chap. 24, “An act for the relief and civilization of the Chippewa Indians in the State of Minnesota” (the “Nelson Act”).
In the table “Indian reservations, areas and how established,” published in the Indian Commissioner’s Annual Report in 1893, the B.I.A. also listed U.S. President Harrison’s Executive Order of March 4, 1890, which “restored” seven sections and partial sections—the Ponemah cut-off—which were “cut off” the diminished reservation after a survey to “establish” the boundaries of the Red Lake land ceded by the Minnesota Chippewa Tribe under the provisions of the 1889 Nelson Act. Red Lake reservation was “diminished” again pursuant to the U.S. Congress’ Act of February 20, 1904.
Underlying U.S. v. Clapox—the appellate case cited as legitimizing courts of Indian offenses—is a specific cession of jurisdiction: Article 8 of the Indian treaty of 1855 between the “confederated bands” in Oregon and the United States. At Red Lake there has been no such direct ceding of jurisdiction, and the Secretary of the Interior’s authority to establish a court of Indian offenses rests directly on the “ultimate dominion” asserted by the U.S. and its European predecessors.
Red Lake Agency Court of
Indian Offenses, 1906 - 1935
The B.I.A. operated its Red Lake court of Indian offenses as a part of the White Earth Indian Agency until 1906, when it established a separate Indian agency at Red Lake and stationed a full-time Indian agent there. After 1906, “local members of the tribe were utilized as judges,” but the Indian court continued to operate under the B.I.A.’s nineteenth-century “revised regulations” until new departmental regulations were approved by the Secretary of the Interior on November 27, 1935.
In 1918, the Red Lake Band of Chippewa Indians was formally organized under a written constitution: that of the General Council, generally known as “Peter Graves’ council.” The governmental powers delineated by the 1918 constitution did not include the establishment of a court. In fact, the 1918 constitution grants only extremely limited governmental power to the General Council: conferring authority on the “several Chiefs” to “call a meeting,” deciding in “disputes as to Chiefs,” respecting and giving “proper consideration” to petitions “placed before them by any member of the Red Lake Band,” expending and accounting for funds—and very little else. The B.I.A. continued to operate the Red Lake court of Indian offenses under the general authority of the Secretary of the Interior.
The Indian Reorganization Act, enacted by the U.S. Congress on June 18, 1934, has often been held to validate the court of Indian offenses. The legislation enacted by Congress does not, however, include any language which could reasonably be construed to establish or validate either courts of Indian offenses or Indian tribal courts.
The Secretary of the Interior prescribed new regulations governing courts of Indian offenses on November 27, 1935, but these continued to rest on the Secretary’s “general authority,” rather than on either congressional legislation or the U.S. Constitution. It is unclear whether Congress’ silence derives from silent acquiescence to the abuses in tribal courts, an absence of Congress’ express delegation of authority, or Congressional avoidance of politically-controversial issues.
The Red Lake Band of Chippewa Indians did not adopt a constitution conforming to the requirements of the 1934 I.R.A. until 1958, and the degree to which the Indian Reorganization Act applied to Red Lake prior to 1958 is disputed. In any event, the B.I.A. continued to operate the Red Lake court of Indian offenses under the general authority of the Secretary of the Interior.
1952: Red Lake “Law and Order Provisions”
In 1952, seventy years after the courts of Indian offenses were established by the B.I.A, written “Law and Order Provisions” were finally adopted by the “Red Lake Tribe,” and approved by the Secretary of the Interior. These “provisions” included some now-picturesque sections, including § 72, which barred “any employable Indian” from “wander[ing] about in idleness … without any attempt to obtain regular employment.” Several sections of the 1952 provisions would have been—obviously—of dubious legality under the U.S. constitution, if Indians were meant to be protected by the fundamental civil rights guarantees of that constitution as it applies to non-Indians.
Peter Grave’s General Council at Red Lake was disestablished in 1958. After a hiatus of several months, a constitution which contained “all the requirements of an IRA-document” was approved by the Constitution Committee, adopted by the Red Lake Band, and—as required by Sec. 16 of the I.R.A.—approved by the Secretary of the Interior. The 1958 constitution established the Tribal Council of the Red Lake Band of Chippewa Indians.
Neither the 1958 Red Lake constitution, nor the Constitution of the Minnesota Chippewa Tribe (approved March 3, 1964), provides for the establishment of tribal courts—or for the legalization of the courts of Indian offenses. The B.I.A. continued to operate its Red Lake court of Indian offenses at Red Lake under the general authority of the Secretary of the Interior.
1972: “Tribal Injustice” and the
In the summer of 1972, the North Dakota Law Review published an article by William J. Lawrence, “Tribal Injustice: the Red Lake Court of Indian Offenses,” detailing some of the legal, jurisdictional and procedural problems adhering to the Red Lake court. Lawrence described a “jurisdictional morass” at Red Lake. He also wrote about the parameters of jurisdiction at Red Lake: delineated by “race” and geography as well as by type of case. “Race” has been supplanted by “tribal enrollment,” but courts of Indian offenses remain apartheid under present-day Department of the Interior regulations.
Lawrence, in the carefully-documented and dry language of law review articles, described the Red Lake Indian court: “in practice [it] … is ineffective in enforcing its judgments and … most band members receive little or no satisfaction in bringing civil cases before the court.” He also touched on the problems of “tribal politics” affecting the outcome of cases before the Red Lake court of Indian offenses. “Obviously,” he wrote, “a judge whose tenure is based on tribal politics tends to be extremely insecure and far from independent.” He added, “it is an unusual case at Red Lake where the agency superintendent or the tribal politicians do not make their views known to the court.”
In his law review article, Lawrence also discussed other problems with the Red Lake court of Indian offenses, including that, “the greatest shortcoming and most basic criticism of the court is its nearly total disregard for due process for law. The court is notorious for giving improper notice. There have been numerous cases in which judges have failed to allow parties to present testimony and evidence in their behalf. … It is this type of proceeding which has … prompted many [both Indian and non-Indian] to refer to it as a ‘Kangaroo Court’.”
May 1979: “Revolution” at Red Lake
In February 1979, tribal council chairman Roger Jourdain led the Red Lake tribal council’s censure of their treasurer Stephanie Hanson. Jourdain was upset that she had “requested a legal opinion from the United States Department of the Interior Field Solicitor’s office … regarding a proposed, but not adopted, resolution” concerning chairman Jourdain’s business account. Jourdain’s subsequent “firing” the treasurer inflamed longstanding dissatisfaction at Red Lake. What a federal court subsequently called a “revolt” erupted on May 19, 1979.
According to court records, “at approximately 4:45 a.m. on the morning of May 19 … armed men, led by tribal member Harry Hanson, entered the Red Lake Law Enforcement Center (“LEC”) and took over the building.” The prisoners were released, and “two of the BIA officers, a police dispatcher, and two BIA jailers” were taken hostage, “locking them in one of their own jail cells.” The LEC was among the buildings subsequently burned.
The Red Lake tribal council sued the U.S. government for damages allegedly arising from “the defendant’s employees negligent unilateral withdrawal of law enforcement personnel from the Red Lake Reservation in the middle of an insurrection.” In addition, the “plaintiffs charged that the F.B.I. and the B.I.A. had negligently failed to make adequate plans prior to the uprising of May 19 despite warnings that something might happen.” The U.S. government moved to dismiss the suit on the “ground that the allegedly negligent activities were based upon the performance of a discretionary function and were thus exempt from liability under a statutory exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a).”
Roger Jourdain and his cohorts were awarded damages totaling $849,562.62 by the U.S. district court. In 1991, the U.S. Court of Appeals reversed the district court’s judgment, concluding that the “damages were not proximately caused by the [U.S.] government’s negligence.” The United States did not address the underlying issues, including the persistent lack of any viable legal process through which the people at Red Lake could have addressed the problems that festered and eventually erupted into revolt at Red Lake.
May 1982: the Red Lake CFR Court
Three years after the “revolution,” in the May 21, 1982 issue of the Federal Reporter, the B.I.A. published notice of its “update” of the listing of the courts of Indian offenses in title 25 of the Code of Federal Regulations, “by adding the Red Lake Court of Indian Offenses to the list. This amendment is necessary to reflect the true status of the Red Lake court which was inadvertently omitted from the listing when it was first published in the Federal Register in 1978. This amendment will effectively update the listing and eliminate the confusion concerning the status of the Red Lake Court of Indian Offenses.”
The most recent Code of Federal Regulations, §11.100, continues to identify the “Red Lake Band of Chippewa Indians (Minnesota)” as a “Court of Indian Offenses”—Red Lake is the first on the list.
“ … Islands of Injustice”
On January 5, 6, and 7 of 1986, the Minneapolis Star Tribune published a series of articles entitled “Indian Courts, Islands of Injustice.” Star Tribune staffwriters Sharon Schmickle and Roger Buoen began researching the series of articles several months prior to publication. After unsuccessfully attempting to obtain access to Red Lake court of Indian offenses records through the Freedom of Information Act (FOIA), the Star Tribune and Sharon Schmickle sued the U.S. Department of the Interior, the Bureau of Indian Affairs, the Red Lake Agency and several individuals including Red Lake Indian court judge George Sumner, “seeking to access certain files of the Red Lake Court of Indian offenses. On the same [August 1985] date,” according to U.S. district court records, “the files at issue were removed from federal custody by order of the Red Lake Tribal Council.” The Department of the Interior undertook “certain efforts to effect the return of these documents, but has not yet succeeded …”
Litigation arising from the Star Tribune’s FOIA request for Red Lake Indian court records went into the appellate courts. At an October 17, 1985 hearing, the U.S. District Court for the District of Minnesota “requested” that the Department of the Interior “take further action” in ‘effecting’ the Red Lake Tribal Council’s return of the court records to federal custody, and that the Department “supply the court with a status report of its efforts.” On November 18, 1985, the Department submitted its status report—and shortly thereafter sought a protective order limiting disclosure of the contents of that report. The U.S. District Court denied the motion for that protective order.
November 1985: “It has come to our attention …”
Thirteen years after the North Dakota Law Review article was published—and five days before its report to the U.S. District Court regarding the Red Lake Indian court records was due to be released to plaintiffs Star Tribune and Schmickle—the Department of the Interior noticed that there were problems with the courts of Indian offenses. In a November 12, 1985 memorandum (reprinted in the June 8, 2001 issue of Press/ON), the Acting Deputy Assistant Secretary for Indian Affairs, Hazel Elbert, informed “All Area Directors” 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.”
Elbert explained that, “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 are directed to take immediate steps to have reviewed the conduct and responsibility of court personnel and their operations to ensure violations are not occurring and will not occur in the courts of Indian offenses under your administrative responsibilities …”
Eleven days later, Red Lake Tribal Council Chairman Roger Jourdain responded with a memorandum to the B.I.A. demanding withdrawal of “the Hazel Elbert memorandum.” He described enforcement of the memo as “a crime against the Red Lake Band of Chippewa Indians,” and indicated that he would “order the removal of all individuals who enforce said memorandum” in the Red Lake court of Indian offenses.
About a month later, on December 27, 1985, B.I.A. Area Director Earl Barlow advised Jourdain that he could not disregard the directives in Elbert’s memorandum. Barlow then shifted the center of the dispute by informing Jourdain that private attorney Richard Meshbesher intended to appear on behalf of clients at the Red Lake court. Jourdain ordered Meshbesher removed. Barlow instructed the Red Lake B.I.A. superintendent to ignore the order, and in a January 10, 1986 letter to the Department of the Interior, argued that the tribal council’s criteria for licensing attorneys to practice before the court of Indian offenses were “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 …” Despite Barlow’s support, Meshbesher ended up bringing a habeas corpus petition in federal court in the case Anderson v. Schoenborne, alleging denials of the right to counsel, the right to a jury trial and the right to a speedy trial.
January 1986: “… Islands of
The Star Tribune went to press with Schmickle and Buon’s series, “Indian Courts, Islands of Injustice,” in January 1986. The series included a section on the problems at Red Lake, and the concluding article included the observation that: “Civil rights abuses are occurring virtually unchecked on many of the nation’s reservations with Indian courts. … 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?”
Eight months after the Star Tribune went to press with its series, in August 1987, the U.S. Court of Appeals ruled on the Department of the Interior’s suit against the Red Lake Band and Red Lake Tribal Council, seeking return of the Red Lake Indian court records. The U.S. appellate court affirmed the district court’s ruling that “tribal court records were agency records belonging to the B.I.A. and the Department of the Interior, and that removal of these records violated the federal records act.”
November 1987: Roger’s Contract
The B.I.A.’s response to public concern about civil rights violations at the Red Lake court of Indian offenses, and to the sharp criticism of the Red Lake court in the federal district court case Cook v. Moran, was to sign a P.L. 93-638 contract with the Red Lake Tribal Council. Under that contract, Roger Jourdain’s council was to administer the Red Lake court of Indian offenses on behalf of the B.I.A.
U.S. Attorney Jerome G. Arnold, Interior Department attorney Mark A. Anderson, and B.I.A. solicitor C. Hughes expressed concern about the proposed court administration contract in April 1987: “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.”
Official concerns about the advisability of the B.I.A.’s hiring the Red Lake tribal council to administer the Red Lake court of Indian offenses went “to the top”—and were dismissed by Commissioner of Indian Affairs Ross Swimmer. At a December 23, 1987 hearing in Washington, D.C., Swimmer explained the rationale for not requiring the Tribal Council comply with federal law in administering the Indian court. “… no one living on a reservation today … has to live there,” Swimmer said. “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 that tribe, they have no more responsibility to it nor the tribe to them, in most cases” [emphasis added].
In a July 12, 1988 interview—extensive transcripts were published by The Ojibwe News—Swimmer amplified his position with respect to the B.I.A.’s P.L. 93-638 contracts with the Red Lake tribal council. Indian Commissioner Ross Swimmer explained, “We have control over the program, they have to operate it in a certain way … and we have control of the accountability of it.” However, as Swimmer acknowledged during an interview with the Red Lake Peoples Council later that same day, the only remedy offered by the B.I.A. was the Red Lake court of Indian offenses—administered by the tribal council under B.I.A. contract. The transcripts published by Press/ON thirteen years ago are revealing:
Lawrence: You know, you just contracted [the Red Lake court of Indian offenses] out to Roger [Jourdain]. In spite of all these violations of civil rights, that’s the tribal court.
Swimmer: Yes, it’s tribal court.
Lawrence: So, where do we take it?
Swimmer: Tribal court. … That’s it. Those are your remedies. You don’t have any remedies, is what you’re saying to me.
Swimmer: That’s right.
Lawrence: So, we can do nothing about it.
Swimmer: That’s right.
Emboldened by the U.S. Government, the Red Lake tribal council passed Resolution No. 53-88: “… the Red Lake Tribal Council does hereby go on record as opposing and objecting to any attempt to enforce application of the ICRA [Indian Civil Rights Act]” at Red Lake. It is worth noting that under P.L. 93-638 contracts, the contracting tribe administers the B.I.A.’s programs. The B.I.A. still owns their programs—including the Red Lake court of Indian offenses.
1990: Civil Rights Commission review of the Red Lake court of Indian offenses
The U.S. Commission on Civil Rights responded to concerns about civil rights violations in Indian courts by holding hearings. Its Confidential Draft report included 32 meticulously-documented pages chronicling the problems at the Red Lake court of Indian offenses between 1972 and 1989.
The Civil Rights Commission concluded their draft with the observation that, “absent Congressional action to provide meaningful enforcement of the ICRA, it may be that the final paragraph of the Red Lake statement submitted for the Commission’s record will provide the final word:
“The Tribe 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. …”
William J. Howard, General Counsel for the U.S. Civil Rights Commission, mailed Red Lake tribal council chairman Roger Jourdain a copy of the Commission’s confidential draft report on Red Lake on May 30, 1990, “in order to give your tribe an opportunity to file a response.”
The Civil Rights Commission did not include the section on the Red Lake court of Indian offenses in its final report.
1990: Red Lake Code of Indian
On September 11, 1990, the Red Lake tribal council adopted “recommended changes to the Tribal Law and Order code.” The new code, drafted in collaboration with the B.I.A., was initially based on the tribal code for the Quinault tribe in Washington. The 1990 Red Lake version of the code § 101.01, Subd. 1, established “the Red Lake court of Indian offenses as a court of record,” and detailed everything from the qualifications of judges to watercraft regulations in seventy-four sections arranged into fifteen chapters.
Although the 1990 code included a section detailing the “right to jury trial,” neither it nor the 1958 Constitution provide for civil rights generally. The 1990 code designated that appeal from the decisions made in the Red Lake court of Indian offenses be made to a “Court of Appeals” described in §101.02. Subd. 2., of that section, however, provides that appeals be heard by three judges, “none of whom shall have been the Judge that decided or was involved in the case being appealed at the trial level.” Since there are only three Indian court judges at Red Lake, appeal is thus impracticable, or worse, subject to further proceedings overseen by politically-indebted ad hoc judges with no legal training. The lack of judiciary for a court of appeals may be why the code does not spell out the rules to be used in such a “court of appeals.”
Although the September 1990 code resolved some of the more glaring problems adhering to the 1952 code, particularly the overtly unconstitutional sections, it did not address the problems of, as the Minnesota Clergy and Laity Concerned expressed it, “justice … meted along the same lines of patronage.” The new code did not touch structural problems tainting most Indian courts—including lack of separation of powers and tribal governments which “function like corrupt, dynastic, political machines.” It did not resolve the fundamental problem of courts of Indian offenses: that there is no legal basis for the establishment these courts.
And, the 1990 code continued to ignore the civil rights guaranteed by the U.S. Constitution. Nonetheless, the code was approved by the “Secretary of the Interior or his duly authorized representative,” as required by the 1958 Red Lake constitution—as the “tribal code” for the Red Lake court of Indian offenses, a federally-funded federal instrumentality operating under the authority of the Secretary of the Interior as well as the U.S. Constitution and federal law.
1995: Red Lake “kangaroo courts”
In his 1995 book, We Have The Right To Exist, Wub-e-ke-niew describes his people’s “oral history filled with cases chronicling derailment of what might be considered justice.” He describes the process at the Red Lake court of Indian offenses as it remained in the mid-1990s: “… 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. … As long as I can remember, even the Métis have called the courts set up for Indians, ‘kangaroo courts’.”
Despite its shaky legal foundations and its extremely problematic record of civil and human rights violations, the United States continues to maintain a court of Indian offenses at Red Lake. In 2001, the Red Lake B.I.A. Agency was allocated a quarter of a million dollars to operate the B.I.A.’s court of Indian offenses at Red Lake.
The key problems described by William J. Lawrence in the North Dakota Law Review nearly thirty years ago persist at the Red Lake court of Indian offenses, including lack of impartiality. As Lawrence wrote in 1979, “A favorite tactic employed by the court to assure the outcome it desires is to notify only the party whom it feels should prevail, of the date and time of adjudication. Obviously, the lack of presence of the adversary allows the court to ‘resolve the dispute’ in an amiable atmosphere.” In addition to defects in notification, the Red Lake Indian court has recently ensured one-sided “hearings” using intimidation, by jailing attorneys for opposing parties, and through exile.
Furthermore, fueled by gambling interests and Congressional policies of “strong tribal government”—and the legal expertise that both Indian casino revenues and federal appropriations can buy—and federal legal actions to expand federal jurisdiction on behalf of Indians under U.S. “trusteeship,” Indian court decisions are being filed with Minnesota courts—with the expectation that they will be accorded “full faith and credit—with increasing frequency.
The abuse of Leech Laker Jawnie Hough in the ninth district court of the State of Minnesota pursuant to its rubber-stamp acceptance of a Red Lake Indian court decision has been chronicled by Press/ON. Ms. Hough is not alone in having been abused by the “tribal injustice” perpetrated by the Red Lake Indian court.