Rez Life: An Indian's Journey Through Reservation Life (14 page)

All tribes had their own particular brand of tribal justice, and not in the ironic sense meant by phrases such as “Apache Justice,” a story by Stanley Crane published in 1941, the title of a YouTube video showing three Iraqis being gunned down by a helicopter, and what is meant when you tie someone to a tree and beat him to death with a two-by-four—a punishment that comes up often on Web searches. The Ojibwe and many other clan-based societies had particular clans whose job it was to function as policemen and warriors. There are ceremonial positions such as “rice chiefs,” known as “oshkaabewisag” (literally, “messengers”), whose job it was to ensure fair access to rice beds, the lifeblood of the Ojibwe people. Justice was, back in pre-reservation days, more flexible for us. We believed, and still believe, that when an Ojibwe dies a violent death, the soul is prevented from getting to the afterlife unless it is given some kind of justice. There were three ways this could happen. First, a family member could be put through a very elaborate ceremony to appease the soul of the deceased; in effect, the living could function as surrogates for the dead. Second, the offending party in the violent death could perform a “laying of gifts” on the family (literally covering up the living with heaps of valuables). Third, the dead could be appeased through revenge killing. Depending on the relationship between the deceased and the transgressor, the family chose one of these options. This helped preserve social order and compensated families who were both emotionally and financially bereft because of their loss. The system worked well. Murder was a rarity in Ojibwe country.

The Tonawanda Seneca of upstate New York, widely considered the most traditional Seneca community, not only has retained its traditional system of government in the form of longhouse ceremonies (involving a religious and political organization) but also adheres to a traditional form of justice, as does the larger Seneca nation. The Seneca nation’s judicial branch of government consists of peacemaker courts, surrogate courts, the council, and two chief marshals. Each Seneca reservation elects the peacemaker judges, a surrogate judge, and a marshal. “The peacemaker and surrogate courts may apply tribal, federal, or state law to the case they are hearing, depending on the circumstances. Traditional law is still honored by the Senecas, especially in the regulation of property. For instance, individuals can own only surface property rights ‘a plowshare deep.’ Resources below that depth, such as minerals and oils, belong to the nation. In the case of gravel, which lies close to the surface, any sales profits are divided evenly between the individual owner and the nation.”

And tribal justice extended to legal matters outside tribes, too. One of the treaties between the United States and the Choctaw was clear on this point. Article IV of that treaty, signed in 1786, reads: “If any citizen of the United States, or other person not being Indian, shall attempt to settle on any of the lands hereby allotted to the Indians to live and hunt on, such a person shall forfeit the protection of the United States of America, and the Indians may punish him or not as they please.”

The Sioux had their own justice system as well, but it ran counter to mainstream ideas of justice. This dispute was one of the first intratribal conflicts and set the tone not only for Indian justice but for relations between Indians and whites well into the twentieth century. In 1881 the Brule leader Crow Dog killed the chief Spotted Tail. The murder was a fairly brazen act: “After leaving the council lodge Crow Dog was seen approaching Spotted Tail. He had his wife with him. He got out of the wagon and was stooping down when Spotted Tail rode up to him. He suddenly rose up and shot Spotted Tail through the left breast. The chief fell from his horse, but rose to his feet and made three or four steps toward Crow Dog, endeavoring to draw his pistol. He then reeled and fell backward, dead. Crow Dog jumped into his wagon and drove off at full speed toward his camp, some nine miles distant.” Some say it was an attempt to seize power. Others maintain that Spotted Tail had offended Crow Dog’s family. Spotted Tail had been a cooperative chief and U.S. officials wanted vengeance. Crow Dog was arrested by the U.S. government and tried for murder. The Brule Lakota whom Spotted Tail represented tried Crow Dog according to their own sense of justice. They ordered Crow Dog to maintain Spotted Tail’s widow and heirs for the rest of his life and banned him and his descendants from living in the community for the next four generations. This was acceptable to Spotted Tail’s family. And the tribe upheld its own rulings. Even though Crow Dog’s descendant Leonard Crow Dog became one of the most important spiritual leaders on the Rosebud Reservation, and arguably one of the most important spiritual leaders since World War II, he did not live in the village. Only in the last few years has Leonard Crow Dog’s grandson been able to move back to the reservation. This ruling, however, was not acceptable to many whites. They cried that Crow Dog had gotten away with murder. The U.S. government agreed and the case of Crow Dog wove its way to the Supreme Court, which upheld Crow Dog’s argument and ruled that state and federal governments do not have plenary power over tribes or jurisdiction over crimes committed by Indians against Indians on Indian land.

The federal government was not content with this. And as with the issue of Cherokee removal some fifty years before, it found a way around the Supreme Court’s ruling. The Indian Major Crimes Act, passed in 1885, was the response. Murder, rape, grand larceny, and assault are a few of the major crimes covered under the act. These “major crimes” became, as a result of the act, federal offenses punishable only in federal courts. However, in order to administer justice for lesser offenses, the feds had already set up the Court of Indian Offenses in 1883. “Justice” is a term that must be applied loosely to the Court of Indian Offenses: in its charter were clauses that targeted Indian religions, referred to as “heathenish rites,” and it was the hope of the commissioner of Indian Affairs that the courts would “destroy the tribal relations as fast as possible.” For instance, in 1884, the Court of Indian Offenses at Red Lake enforced “rules forbidding plural marriages, dances, destruction of property following death, intoxication, liquor traffic, interference with the ‘civilizing program,’ and leaving the reservation without permission.”

In 1881, when Crow Dog murdered Spotted Tail, many tribes already had Indian police—sometimes staffed by tribal members and funded by Congress pursuant to treaty—but tribes soon had courts as well, as clunky, corrupt, and guided by bad principle (like the Court of Indian Offenses at Red lake) as these were. “Indian offenses” is a concept fairly far off the mark of “Indian justice.”

The justice system created by the Indian Major Crimes Act and the Court of Indian Offenses, which was hardly just, persisted more or less unchallenged until the Indian Reorganization Act (IRA) of 1934, which created constitutional governments with elected officials on many Indian reservations. Along with constitutions and elected officials came the sense that some sort of judiciary was necessary. Some tribes began to break away from the model of the Court of Indian Offenses and created their own courts, as difficult as that was. Smaller tribes, however, could not afford to start and administer their own courts and retained the services of the Court of Indian Offenses (more than twenty tribes still have CFR courts today). But change came slowly after 1934 and through the 1950s—it came as slowly as shifts in government policy came quickly. The Wheeler-Howard Act, part of the “Indian New Deal,” was replaced in the 1950s with the policy of termination. The government was trying to rid itself of its responsibility to Indians once again.

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It is easy to understand the animosity many Indians have toward cops, and why they feel they will never get a fair day in court. When my father worked for the BIA in the 1960s he saw a lot of brutality firsthand. As he went about his work at Leech Lake he began to hear stories about chronic abuse at the hands of law enforcement: beatings, rapes.
“I talked to people and began to learn what was going on. Well, there was some obscure federal regulation or law that allowed government employees to register complaints directly with the Department of Justice; you didn’t have to go through all the usual channels. So I collected affidavits. I interviewed people. By the time I was done I had twenty-four affidavits and I submitted a formal complaint to the DOJ. The one that sticks out in my mind is one older lady who was picked up for public drunkenness and brought back to the police station. According to her testimony she was bent over a squad car and raped with a billy club.”

When the complaint landed at the Department of Justice, FBI agents were dispatched to Leech Lake. When their plane landed in Bemidji they radioed the sheriff’s department (in Walker, seventeen miles south of Cass Lake) and asked the staff to find and collect all the officers named in the complaint.

“By the time the FBI agents made it to Walker,” remembers my father bitterly, “every single one of the complaintants who signed affidavits had been found and threatened. They told them, ‘The FBI is only going to be here a few days and when they leave we’ll still be here.’ All recanted except one or two of them. Next thing I knew I was called into the BIA area director’s office. Mittelholtz was his name. He said, ‘Paul Winslow, the acting area director in Minneapolis, called saying the U.S. attorney general wants to talk to you.’ So I did what I was told. I went down to Minneapolis and met with Winslow. He said, ‘Judge Miles Lord wants to talk to you.’ So I met with Lord. He said, ‘You’re just doing this because you’ve got a personal grudge against the Cass Lake police for picking up one of your sons for reckless driving.’ I told him, ‘I’ve got no grudge whatsoever. My kid was driving recklessly and they arrested him and I agreed it was a good thing. That’s why I let him sit in jail and didn’t bail him out.’ Lord paused. ‘What will make all this go away?’ That’s how they did things then. So we made a deal. Judge Rollette, the county court judge for the reservation, was removed. He was a famous racist. He was famous for saying each and every time an Indian stood before him: ‘You. You are lower than the dung of whales.’ So they removed him. And they removed two of the three police officers named in the complaints. The two worst ones. The third retired. And then they fired me.”

Before that, when my father moved to an abandoned farm on the edge of Leech Lake Reservation in 1953, he didn’t know any Indians and hadn’t given Indians much thought. Nor did he think about them very much when, after living in Milwaukee and Sheboygan while working for the AFL-CIO, he visited his in-laws (from his first marriage) on the north side of Cass Lake, on the Leech Lake Reservation. He fell in love with the place, with the land. “I loved the sand hills. The river channels. The feel of the land and the woods. The one piece of art my family had in Vienna, the one original piece of art, was a pastel of a river with trees. It hung in my bedroom and I stared at it every day and every night all through my childhood. All through those war years. The land up here, around Leech Lake, reminded me of that, of that painting. Maybe that’s why I love this place so much. Anyway, I fell in love with the place. I was facing a transfer from Sheboygan to Detroit. I didn’t want to go. I wanted to live up here. I was running from everything. From conflict. I found the property, bought it for two thousand dollars, which was all the money we had. And I got my teaching degree in Bemidji. But I couldn’t get a job. Finally, after a lot of looking I started teaching high school English on the rez.”

While he taught at Cass Lake he came to know many Indian families. The majority of his students were Indian. He was shocked by the attitudes of many of the teachers, the police, and the other powers that be in a small town like Cass Lake. The town itself, in the middle of the reservation, was very mixed, but all the stores and all the positions of power were occupied by white people. “I was appalled at conditions and attitudes and so I wrote an ill-considered, heated letter to the commissioner of Indian affairs, Philleo Nash.”

My father knew Philleo Nash from his labor union days in the late 1940s and early 1950s in Wisconsin. Nash was an interesting man. He came from a well-to-do Wisconsin farming family (they farmed cranberries near Wisconsin Rapids), was trained as an anthropologist, and found his way to Washington, D.C., where he worked for the Roosevelt and Truman administrations and became friends with Eleanor Roosevelt. Like Eleanor Roosevelt, he was deeply concerned about racial problems in America. While in Washington he and his wife, Edith, founded the Georgetown Day School, one of the first integrated schools there. When Nash received my father’s manifesto, he telephoned. “Well, you think the BIA could do things better?” he asked. “Yes, I do.” “OK, then. The ball is in your court. I’ll hire you and see what you can do about things.”

It would have been hard for anyone to change the BIA at that time. Created in the 1800s to deal with the “Indian problem,” the BIA was, tellingly, under the auspices of the War Department. It was in charge of treating with tribes, administering allotments, dispersing funds, settling disputes, and overseeing day-to-day operations at reservations and forts across the American West. It had been, since its start, notoriously corrupt. Eventually the BIA was transferred over to the Department of the Interior, but it couldn’t shed much of its reputation as a powerful and damning (if not evil) force. As of 2010, Congress was considering a settlement for claims brought against the Department of the Interior and the BIA. The settlement under consideration is for $3.4 billion—a small amount, considering the alleged $150 billion the Department of the Interior and the BIA illegally withheld from Indians over the last ninety-five years. The money withheld is for timber, oil, and land leases. “Over the past 100 years, government record systems lost track of more than 40 million acres and who owns them. The records simply vanished. Meanwhile, documents were lost in fires and floods, buried in salt mines or found in an Albuquerque storage facility covered by rat feces and a deadly hantavirus. Government officials exploited computer systems with no audit trails to turn Indian proceeds into slush funds but maintain plausible deniability,” suggests a recent article in the
Atlantic
.