The Indian & The Law [excerpt]
By THEODORE H. HAAS, Chief Counsel
United States Indian Service
*The following material on Indian Courts was prepared by Louis C. Mueller, Chief Special Officer in 1946.
There are three different types of Indian Courts or Tribunals in which Indians may be tried, i.e., Traditional Courts, Courts of Indian Offenses and Tribal Courts.
The oldest, but not necessarily the best known, is the traditional court or tribunal which in many instances had definitely prescribed punishment to fit each type of offense. These courts generally operated under an unwritten Code and as necessity arose. Among the Apaches infidelity on the part of a wife was punishable by cutting off the end of her nose; larceny among the Seminoles is reported to have been punishable by cutting off an ear, and among the Cheyennes it was not uncommon to banish a member of the tribe for certain serious offenses. When such a member was banished he might, three or five years later, return to the tribe and request to be reinstated. These appeals for reinstatement were often favorably received and constitute the earliest form of pardon. Commission of certain offenses, such as murder, among some tribes, barred the offender from holding certain tribal offices. These traditional courts continue to operate among the Pueblos and the Hopis although such drastic punishments are no longer imposed.
Courts of Indian Offenses
The Courts of Indian Offenses were first established by Commissioner Price in compliance with instructions issued by Secretary of the Interior Teller December 2, 1882. Secretary Teller, writing to Commissioner Price on this subject, stated that there were certain practices among the Indians he felt should be discouraged. He mentioned the injurious phases of certain dances and rituals, plural marriage, the medicine man and the destruction of property following death. The rules promulgated by the Commissioner stipulated that it should be known as the "Court of Indian Offenses," and that it be presided over by three Indians, each to be styled "Judge of the Court of Indian Offenses." The first three ranking officers of the Indian Police force were to be designated as Judges. Appeals might be taken from the Indian Court to the Indian Bureau. The Indian Bureau Regulations issued September 22, 1884, established these courts.
The original regulations were amended on March 12, 1894. The Judges could then be selected from the body of the Tribe, provision was made for the disposition of funds collected as fines, and Indians were not permitted to leave their reservation except by consent and approval of their superintendent.
The Indian Bureau Regulations of April 1, 1904, reveal little change in these regulations. Under the 1904 Regulations, the offenses consisted of participating in a Sun Dance, entering into plural marriage, operating as a "Medicine Man," destruction or theft of property, giving or offering money to a friend or relative to procure a girl for the purpose of cohabiting with her, intoxication or the trafficking in intoxicants, and unauthorized leaves of absence from the reservation. These Regulations continued in force with little or no change until the present Departmental Regulations were approved by Secretary Ickes, November 27, 1935.
A draft of the present Regulations was prepared in 1934 and given wide circulation among Indian groups and experts in specialized fields of Indian culture, sociology and law whose comments and criticisms were invited. The present Regulations represent a redraft prepared after careful digestion of the suggestions, recommendations, comments and criticisms of this group. The objectionable features contained in the earlier regulations, including that provision which attempted to control the right of an Indian to leave the reservation without a permit were omitted. The list of offenses was short in comparison to state codes, was written in a style easily understood and easily translated. Indians for the first time in their own courts, enjoyed the right to bail, trial by jury, probation and parole and many other privileges.
Following Secretarial approval in 1937, steps were taken to acquaint the various Tribal Councils, agency personnel, Indian Judges and Indian Police with the provisions of these new Regulations. At this same time many tribes, having voted favorably on the Indian Reorganization Act, had adopted constitutions which granted them the privilege of establishing and operating courts of their own which, for the sake of distinguishing them from the Court of Indian Offenses, are called Tribal Courts. To assist the Indians of each reservation to develop a law and order code suited to the customs of their own tribe, representatives of the Indian Service visited one reservation after another explaining the new Regulations to the tribes not under the Indian Reorganization Act and discussing with the organized tribes the structure of their Tribal Court. As was only natural, the Departmental Regulations were used as a basis for discussing the style and structure of the Tribal Courts. With one or two notable exceptions the organized tribes adopted regulations similar or identical to the Departmental Regulations.
Many worthwhile recommendations have resulted from these discussions with Tribal Councils, some of which have been added to the Departmental Regulations by amendment. Councils on both organized and unorganized reservations have passed special ordinances to meet conditions peculiar to their respective jurisdictions.
Admittedly, much needs to be done to bring Indian courts to a greeter degree of perfection, but the tribes have generally accepted their responsibility seriously and approached their problems in a realistic and intelligent manner. The remedy in present unsatisfactory situations lies largely in the field of education, One of the first jury trials resulted in an acquittal notwithstanding the presentation of uncontradicted evidence of guilt. Questioning of the jury later revealed that their verdict was based on the fact that they had not seen the alleged offense committed.
There is some question as to how satisfactory the Anglo-Saxon conception of justice (as expressed in the Codes) is with respect to settling all disputes among Tribal groups or between individuals who are inclined to cling to traditional customs, attitudes and practices.
In some instances, there is evidence of adherence to both custom and the Code. For example, a case arose some time ago involving a trial marriage approved by tribal custom. This trial marriage was with full knowledge and approval of the girl's parents, but when the prospective groom moved out and legally married another girl, these same parents insisted on a prosecution for illicit cohabitation. It is probably not necessary to note that Indian Judge refused to entertain a formal complaint.
Three questions invariably arise regarding the operation of these courts. First, the Indian Courts have no jurisdiction over Whites; these courts, as the name implies, are Indian Courts operated by and for Indians. Second, generally the court has no jurisdiction outside the exterior boundaries of the reservation. Third, the Court does have jurisdiction over an Indian committing an offense anywhere inside the exterior boundaries of the reservation. If the offense, however, is committed on deeded land and is in violation of a state law, and if state authorities choose to prosecute, the state jurisdiction has priority. Fourth, Tribal law may provide for the punishment of offenses committed a member off the reservation upon his return. This has rarely been done.
Courts of Indian Offenses
Extract from the Annual Report of the Secretary of the Interior November 1, 1883
Secretary of the Interior Henry M. Teller instigated the establishment on Indian reservations of so-called courts of Indian offenses. His goal was to eliminate “heathenish practices” among the Indians, but the courts came to be general tribunals for handling minor offenses on the reservations. His directions to the Commissioner of Indian Affairs in regard to the courts were given in his annual report of 1883.
....Many of the agencies are without law of any kind, and the necessity for some rule of government on the reservations grows more and more apparent each day. If it is the purpose of the government to civilize the Indians, they must be compelled to desist from the savage and barbarous practices that are calculated to continue them in savagery, no matter what exterior influences are brought to bear on them. Very many of the progressive Indians have become fully alive to the pernicious influences of these heathenish practices indulged in by their people, and have sought to abolish them; in such efforts they have been aided by their missionaries, teachers, and agents, but this has been found impossible even with the aide thus given. The Government furnishes the teachers, and the charitable people contribute to the support of missionaries, and pended by their elevation, and yet a few non-progressive, degraded Indians are allowed to exhibit before the young and susceptible children all the debauchery, diabolism, a savagery of the worst state of the Indian race. Every man familiar with Indian life will bear witness to the pernicious influence of these savage rites and heathenish customs.
On the 2nd of December last, with the view of as soon as possible putting an end to these heathenish practices, I addressed a letter to the Commissioner of Indian Affairs which I here quote as expressive of my ideas on this subject:
I desire to call your attention to what I regard as a great hindrance to the civilization of the Indians, viz, the continuance of the old heathenish dances, such as the sun-dance, scalp-dance, etc. These dances, or feasts, as they are sometimes called, ought, in my judgment, to be discontinued, and if the Indians now supported by the Government are not willing to discontinue them, the agents should be instructed to compel such discontinuance. These feasts or dances are not social gatherings for the amusement of these people, but, on the contrary, are intended and calculated to stimulate the warlike passions of the young warriors of the tribe. At such feasts the warrior recounts his deeds of daring, boasts of his inhumanity in the destruction of his enemies, and his treatment of the female captives, in language that ought to shock even a savage ear. The audience assents approvingly to his boasts of falsehood, deceit, theft, murder, and rape, and the young listener is informed that this and this only is the road to fame and renown. The result is the demoralization of the young, who are incited to emulate the wicked conduct of their elders, without a thought that in so doing they violate any law, but on the contrary, with the conviction that in so doing they are securing for themselves an enduring and deserved fame among their people. Active measures should be taken to discourage all feasts an dances of the character I have mentioned.
The marriage relation is also one requiring the immediate attention of the agents. While the Indians were in a state of at least semi-independence, there did not seem to be any great necessity for interference, even if such interference was practicable (which doubtless was not). While dependent on the chase the Indian did not take many wives, and the great mass found themselves too poor to support more than one; but since the Government supports them this objection no longer exists, and the more numerous the family the greater the number of the rations allowed. I would not advise any interference with plural marriages now existing; but I would by all possible methods discourage further marriages of that character. The marriage relation, if it may be said to exist at all among the Indians, is exceedingly lax in its character, and it will be found impossible, for some time yet, to impress them with our idea of this important relation.
The marriage state, existing only by the consent of both parties, is easily and readily dissolved, the man not recognizing any obligations on his part to care for his offspring. As afar as practicable, the Indian having taken of himself a wife should be compelled to continue that relations with her, unless dissolved by some recognized tribunal on the reservation or by the courts. Some system of marriage should be adopted, and the Indian compelled to conform to it. The Indian should also be instructed that he is under obligations to care for and support, not only his wife, but his children, and on his failure, without proper cause, to continue as the head of such family, he ought in some manner to be punished, which should be either by confinement in the guard-house or agency prison, or by a reduction of his rations.
Another great hindrance to the civilization of the Indians is the influence of the medicine men, who are always found with the anti-progressive party. The medicine men resort to various artifices and devices to keep the people under their influence, and are especially active in preventing schools, using their conjurers’ arts to prevent the people from abandoning their heathenish rites and customs. While they profess to cure diseases by the administering of a few simple remedies, still they rely mainly on their art of conjuring. Their services are not required even for the administration of the few simple remedies they are competent to recommend, for the Government supplies the several agencies with skillful physicians, who practice among the Indians without charge to them. Steps should be taken to compel these imposters to abandon this deception and discontinue their practices, which are not only without benefit to the Indians but positively injurious to them.
A Young Dakota Named Frosted. A young Dakota, named Frosted, was imprisoned at Fort Yates military post for practicing his traditional religion—he went on a hill, fasted, and made a prediction to his people. At all Indian agencies the practice of any Indian spiritual traditions was considered an offense that could land one in jail. Notice the ball and chain. (Photo courtesy of the State Historical Society of North Dakota)
The value of property as an agent of civilization ought not to be overlooked. When an Indian acquires property, with a disposition to retain the same free from tribal or individual interference, he has made a step forward in the road to civilization. One great obstacle to the acquirement of property by the Indian is the very general custom of destroying or distributing his property on the death of a member of his family. Frequently on the death of an important member of the family, all the property accumulated by its head is destroyed or carried off by the “mourners,” and his family left in isolation and want. While in their independent state but little inconvenience was felt in such a case, on account of the general community of interest and property, in their present condition not only real inconvenience is felt, but disastrous consequences follow. I am informed by reliable authority that frequently the head of a family finding himself thus despoiled of his property, becomes discouraged, and makes no further attempt to become a property owner. Fear of being considered mean and attachment to the dead, frequently prevents the owner from interfering to save his property while it is being destroyed in the presence and contrary to his wishes.
It will be extremely difficult to accomplish much towards the civilization of the Indians while these adverse influences are allowed to exist.
The Government having attempted to support the Indians until such time as they shall become self-supporting, the interest of the Government as well as that of the Indians demands that every possible effort should be made to induce them to become self-supporting at as early a day as possible. I therefore suggest whether it is not practicable to formulate certain rules for the government of the Indians on the reservations that shall restrict and ultimately abolish the practices I have mentioned. I am not ignorant of the difficulties that will be encountered in this effort; yet I believe in all the tribes there will be found many Indians who will aid the government in its efforts to abolish rites and customs so injurious to the Indians and so contrary to the civilization that they earnestly desire.
In accordance with the suggestions of this letter, the Commissioner of Indian Affairs established a tribunal at all agencies, except among the civilized Indians, consisting of three Indians, to be known as the court of Indian offenses. The members of this tribunal consist of the first three officers in rank of the police force, if such selection is approved by the agent; otherwise, the agent may select from among the members of the tribe three suitable persons to constitute such tribunal.
The Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, promulgated certain rules for the government of this tribunal, defining offenses of which it was to take cognizance. It is believed that such a tribunal, composed as it is of Indians, will not be objectionable to the Indians and will be a step in the direction of bringing the Indians under the civilizing influence of law. Since the creation of this tribunal the time has not been sufficient to give it a fair trial, but so far it promises to accomplish all that was hoped for at the time of its creation. The Commissioner recommends an appropriation for the support of this tribunal, and in such recommendation I concur. … [House Executive Document no. 1, 48th Congress, 1st Sess., serial 2190, PP. x-xiii]