Rez Life: An Indian's Journey Through Reservation Life (17 page)

It was around this time—the late 1960s and early 1970s—that efforts began to establish tribal judiciaries beyond the Courts of Indian Offenses controlled by the BIA. But the courts, like the tribal governments from which they sprang, were complicated. Tribal governments after the IRA, loosely based on the organization of municipalities and cities, operating in accordance with constitutions that didn’t necessarily conform to their cultures or their conditions, had an enormous responsibility and a dysfunctional relationship with the government.

Tribal government, like any government, has certain responsibilities. It must attend to the social conditions, economic status, public health, infrastructure, natural resources, and education of its people. But unlike many other kinds of government—the state and federal levels come to mind—tribal government has a highly codependent type of autonomy. A state can levy income and property taxes to pay for infrastructure such as roads, civic buildings, and schools. Tribes have the same responsibilities but they usually don’t have the power to levy taxes. Or if they do, there is really no tax base to draw from and taxation is more or less politically impossible to achieve. Instead they have to negotiate with the state and the feds for educational funding, with the state and the feds for road improvements, with the feds for health care, and so on. They must maintain the health of their natural resources but they don’t receive fees from selling licenses or lottery tickets (as the state of Minnesota does) to accomplish this. No corporation or HMO will build a hospital in the reservation; instead, most tribes rely on the Indian Health Service for medical care. Every executive decision puts the tribe in negotiation with one, two, or sometimes three different governments or agencies. Typically, the funding for tribal government comes from three sources—money and services owed to tribes as part of federal treaty obligations, tribally owned business enterprises, and federal and state grants for tribal projects. Tribes are rarely “free” to spend the money or to make their own decisions about resources, because all that money, or most of it, comes with strings attached. To make matters worse, the constitutions that largely empower these tribes are often very vague on separation of powers and responsibilities. There is language about elections and tribal courts, but when the two clash (say, in a contested election), the decision comes down to a judge who was appointed by the very tribal council about whom the dispute swirls. For most tribal governments there is no balance of power; on the contrary, power is very much out of balance. Such was the case at White Earth Reservation in the 1990s.

At the time it was controlled by one of the most powerful Indian leaders in the country, Darrell “Chip” Wadena. Wadena oversaw the advent of gaming on White Earth and held sway over the fractious reservation for more than twenty years. He drove a truck with a vanity license plate that read “CHIEF.” The expensive bug guard over the lip of the hood had been hand-painted with the phrase “SUPER CHIEF.” Brian Goodwin, a White Earth enrollee enraged by Wadena’s thievery, happened across Wadena’s truck in the casino parking lot, scratched off the C in “SUPER CHIEF,” and replaced it with a T. And who says “counting coup” is a dead practice? When the casino was being built the bidding was rigged and contracts were awarded to construction companies that Wadena controlled or was a partner in. The contract for slot machines went to a company that Wadena had a stake in. When ballots for tribal elections were mailed out to White Earth enrollees who lived off the reservation, the packages contained flyers and information about Wadena and his campaign. Eventually the “super chief” became the object of a federal investigation, at which time he cried “sovereignty” and said that the government was trying to do away with tribal autonomy. But his was the kind of autonomy familiar to anyone who lived through the nepotism, fraud, and incompetence of the days when the Indian agent and the BIA were in charge. Wadena was convicted of bid rigging and election fraud and served two and a half years in federal prison. In 2004 he ran for office again—there was nothing in the White Earth constitution at the time to prevent convicted felons from running for or holding office.

Another example is Leech Lake, where there was a break-in at the tribal government offices. When the Bureau of Criminal Apprehension (the top state-run law enforcement agency) was called in, its investigators found out that an undisclosed sum of money had been stolen from a filing cabinet. The money in that cabinet was used for paying tribal council members a per diem. The scam was this: the council members got their per diem (according to federal per diem charts) for every meeting they attended. But the council would call multiple meetings on a single day and the council members would get multiple per diems for a single “diem.” That was a small scam compared with the one run by Alfred “Tig” Pemberton, Harold “Skip” Finn, and Daniel Brown. Together they formed a bogus insurance company, Reservation Risk Management, that succeeded in defrauding Leech Lake Reservation of millions of dollars, which they pocketed. Finn (the tribal attorney and a state senator) resigned and was later convicted of conspiracy, theft, and mail fraud. He was disbarred, sentenced to five years in prison, and assessed a $100,000 fine. A cynic might say that after doing away with the corruption, mismanagement, and paternalism of the BIA and government agents, tribes took on the job themselves. Perhaps. But Wadena, Finn, and others around the country ended up in jail. And despite the design flaws of tribal government and the legacy of the abuse of governmental power on the part of federal and tribal leaders, tribes have managed to grow. With them, tribal courts have also grown.

As of today, there are about 275 Indian tribes and Alaskan Native villages that have courts of their own. But the paternalism of the 1950s lingers. Some of these courts and court systems are vast. The Navajo have six district courts and a seventh, floating judge who serves where needed. Supporting the courts is a police force of more than 200 officers. Other courts are small. Court is held in storerooms or modular buildings. In some places the tribal judge is also the prosecutor. Non-Natives can’t be tried in these courts, but Indians from other tribes can be. Non-Natives who commit crimes on Indian land against Indians are still tried by the federal government, but tribal law enforcement can cite, fine, bar, ban, or expel them. The nonprofit Tribal Law and Policy Institute publishes a table on its Web site that tries to make sense of who can be tried, for what, and by whom in Indian country.

It seems simple enough, but an asterisk leads us to this: “Please note that this general criminal jurisdiction chart does not apply to jurisdiction where Public Law 280, 18 U.S.C 1162, or other relevant federal statues have conferred jurisdiction upon the state.”

This means that the chart works, with the exception of states that have applied Public Law 280—civil jurisdiction legislation, passed in 1953, which some people consider the most destructive act of
Congress for Indian people in the twentieth century. In effect, PL 280 gave the states criminal jurisdiction over Indians and non-Indians on Indian land. These states include California, Minnesota (except Red Lake Reservation), Nebraska, Oregon (except Warm Springs Reservation), Wisconsin, Nevada, South Dakota, Washington, Florida, Utah, Montana, North Dakota, Arizona, Iowa, Alaska (except Metlakatla Indian Community), and Utah. Some reservations—Bois Forte, where my mother is judge—retroceded from PL 280 and reassumed jurisdiction over crimes committed on the reservation. So the chart above works for all the states except those with the most Indians and Indian reservations. Most of the time there is a complicated dance between federal, state, county, and tribal jurisdiction. If fairness is a mark of a good judicial system, one would think that clarity is also a virtue to be promoted. Some feel (and I am one of them) that PL 280 only passed on the crimes that the United States claimed it should prosecute under the Major Crimes Act, in effect making the states responsible for the jurisdiction claimed by the feds in the nineteenth century. This means that PL 280 might be seen as covering only major crimes—rape, larceny, murder, kidnapping—and that the rest, from petty crimes to whole categories of felonies, might be crimes the tribes have retained the right to try in their own courts with their own juries. This has not been tested widely but perhaps it should be.

That cold day in court at Bois Forte was, according to my mother, typical. Half the cases involved kids who were affected in bad ways. Nine of the eleven cases involved women. All of the cases except one were drug-related or alcohol-related and involved defendants who pleaded guilty and who seemed to be hanging on to the edges of their own lives. All the defendants who appeared before my mother seemed to have cobbled their lives together as best they could. They were underemployed; some had part-time jobs or service-sector jobs. Others made money doing seasonal work (ricing in late summer, picking balsam boughs in the fall, working on tribal projects). Their houses were partly funded by the BIA and the tribe and were often held together with whatever they could find at hand. Health care came partly from private insurance and partly from the Indian Health Service, but none of it seemed very comprehensive. Their families were fractured—in flux, separated, with some members incarcerated or scattered among various other relatives or foster families. When I think about the people who appear in my mother’s court and in other courts around Indian country, their lives seem as checkered as the reservation land itself—which was made into a checkerboard by the Dawes Act. The idea of a checkerboard might very well be the best way to describe tribal justice and jurisdiction.

The land inside reservations such as Leech Lake and White Earth does resemble a checkerboard: the reservation boundary is the edge of the board, and within it there are squares of different colors—black for tribally owned land, white for non-tribal land owned by private individuals, counties, states, the federal government, and corporations. The rights of Indians and the jurisdictions of Indian courts form such a pattern, too. For instance, officers Grolla and Nelson could confiscate Mueller’s boat at Red Lake. They could cite him and his son-in-law, could expel them from the reservation, but could not arrest them. There is some effort to change that, however. The struggle over the limits of tribal jurisdiction has been vicious, varied, and long-lasting. The Crow Dog case (which led to the Major Crimes Act) is but one example. More recently, in 1973, a test came again. On August 19, 1973, during “Chief Seattle Days,” a celebration sponsored by the Suquamish Reservation, a non-Indian resident of the reservation was arrested by tribal police and charged with assault and battery. “Chief Seattle Days” draws a large and rowdy crowd, and the tribe had appealed to state and local law enforcement agencies for help in policing the event. Its repeated requests were denied. The tribe members were told that they would have to provide all the law enforcement and that they’d have to pay for it, too. So when Mark David Oliphant was arrested, he was arraigned in tribal court and transported off-reservation to Bremerton jail, where those arraigned in tribal court were sent pursuant to a lease agreement with the BIA and the state. A year later, another non-Indian resident of Suquamish Reservation, Daniel B. Belgarde, was involved in a high-speed chase on the rez. It so happened that Oliphant was a passenger in the car. The chase ended when Belgarde rammed a police car. He was charged, under the Suquamish tribal code, with reckless driving. Instead of facing charges Oliphant and Belgarde applied for a writ of habeas corpus; they claimed that the tribe didn’t have jurisdiction over non-Indians.
The case (as so many have) wound its way up to the U.S. Supreme Court. Even though the Suquamish never officially relinquished their right to prosecute wrongdoers as part of a treaty, and no congressional act had been passed that limited the Suquamish or their authority over their own affairs, the Supreme Court ruled that the Suquamish (and by extension other tribes) did not have jurisdiction over non-Indians. Tribes can hold non-Indians for serious crimes but only until those being held can be picked up by state, federal, or local authorities. This creates serious complications for tribes seeking to administer justice on their own lands, especially when we consider that Indians suffer physical violence at the hands of non-Indians at ten times the national average.

For instance, in Oklahoma, where Indian communities are scattered across many counties, law enforcement comes face-to-face with sovereignty in ways that don’t help. Sexual crimes are the most difficult to deal with. Indian women in Alaska are two and a half times more likely than white women to be the victims of sexual assault. When Indian women are raped or assaulted by another Indian on tribal land the tribal police can intervene and arrest the perpetrators. Well and good. But they cannot arrest, detain, or investigate a crime perpetrated on an Indian woman by a non-Indian. It is a widely held sentiment in Oklahoma that local law enforcement is not as invested in solving rapes of and assaults against Indian women. The tribal police, who do want to act, can’t. In one case, a Potawatomi woman was assaulted and the perpetrator was still hiding in her house when the police arrived. When the tribal victim’s advocate showed up she found agents of four different law enforcement agencies on the front lawn, arguing about who had responsibility and jurisdiction.