[R-G] Criminal jurisdictional maze in Indian country -- and rising use of banishment

[Hunter Gray]

Note by Hunter Bear:

I taught Federal Indian Law for 13 years -- a tough and complex course in
the context of the often fast-changing and mercurial legal situation
involving Natives and related issues. [Every textbook is heavy enough to
sink a canoe damn fast.] I  do try hard to keep up with the field.

Speaking generally, in the "old time" Native world, murder involved
compensation to the family of the victim, some crimes such as repeated
instances of theft led to the cutting off of an ear, more serious matters --
e.g., incest -- could lead to exile, and the death penalty was reserved for
treason and witchcraft.  It's far more complex -- and confused -- in these
times with a maze of Federal and tribal jurisdictional lines, and sometimes
state as well.  Increasingly, as the following article indicates,
banishment -- exile -- is coming into use by tribal authorities.  I know of
two recent banishment cases where Indians of other tribes were banned from a
particular reservation -- and, frankly, they richly deserved it.  On the
other hand, banishment must be handled with care -- and used with extreme
paucity against members of one's own tribe.  In the sometimes tangled world
of Indian politics, injustices can be far from unknown.

Following this article from the Twin Cities, I have my own brief  and lucid
discussion of the current Native sovereignty and jurisdictional
ituation.  -- Hunter Bear

The Longest Goodbye  1/7/04  City Pages  www.citypages.com
Red Lake tribal leaders fight drugs with banishment
by Mike Mosedale

In 1889, when the leaders of the Red Lake Band of Ojibwe signed the
agreement with the federal government creating the Red Lake Indian
Reservation, they showed impressive foresight. Not only did the band's
leaders successfully resist the federal effort to "allot" land to individual
Indians (thereby avoiding the loss of tribal lands to non-Indian real estate
speculators), they permanently banned the sale and consumption of alcohol
within the reservation's borders.

Despite intentions, alcohol abuse has remained a scourge in the
sprawling,north central Minnesota community of some 6,000 people. But in
recent years, it has been other drugs--notably, crack and
methamphetamine--that have been at the root of some of the most violent and
disturbing crimes to occur on the reservation.

For Jim White, a member of the Red Lake Tribal Council, the low point came
in February 2002, when a homeless, crack-addicted woman broke into the home
of 68-year-old band member George Stately. The woman proceeded to beat
Stately with a hammer, slit his throat and set his house on fire--all for a
$50 rock of crack.

As White sees it, Stately's murder might have been prevented had law
enforcement authorities dealt with the reservation's drug dealers more
quickly and effectively. But jurisdictional issues make that difficult.
Major crimes at Red Lake fall under the purview of the U.S. Attorney's
office, where cases often linger for years. Red Lake's tribal courts,
meanwhile, have a limited authority when it comes to meting out sentences;
the maximum penalty is just one year in tribal jail.

Looking for a solution, last month the Red Lake Tribal Council amended its
Prohibited Drug Crimes Code authorizing tribal judges to use a new
sentencing tool: banishment. Judges will have the authority to banish band
members from the reservation for any of a number of drug offenses. White
expects the tool will be used sparingly, and that it will be targeted
exclusively at drug dealers.

While the revised ordinance passed by unanimous vote, some critics worry
that it could be implemented unfairly. For years, tribal officials at Red
Lake and elsewhere have issued orders banishing non-band members from
reservations--and complaints are common.

Clara NiiSka, a non-Indian writer who lived with her husband at Red Lake for
the better part of two decades, was banished by order of a former tribal
chairman following a dispute over the probate of her husband's estate. For
NiiSka, the banishment felt "like a social death penalty," under which she
had scant opportunity for appeal. With the expansion of such punishment now
extending to tribal members, NiiSka worries about the prospect of civil
rights being trampled. "It sets off warning bells," NiiSka observes. "This
is a part of a nationwide movement among tribal attorneys to systematically
expand the powers of tribal courts."

And the banishment law is open to abuse, NiiSka speculates: "It could be
used by those drug dealers who have good political connections on the tribal
council to eliminate the competition."
City Pages is the Online News and Arts Weekly of the Twin
Cities----------------------------------------------------------------------
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>From Hunter Bear:

The jurisdictional  maze in which Native people live in the United States
becomes more confused each year.   This is a very brief sketch of
extraordinarily complex and challenging turf:

Tribal nations are inherently sovereign  entities  -- but, obviously through
no fault of their own,  they've functionally lost much of that  sovereignty
[ only for the time being!] and are consistently fighting , among other
things, to regain those lost dimensions.  [Each tribe has its own
distinctive culture and those remain essentially intact.] Tribal nations do
tangibly possess some "limited" or "residual" sovereignty in a reservation
and/or Indian country context.  This means that they can govern themselves
administratively and judicially [under the regulations of the Indian
Reorganization Act of 1934 and related regs and court decisions]; can tax
their members and also certain non-Indian entities [corporations and other
businesses]; can handle domestic relations; can apportion tribal property;
can regulate inheritance; and can determine tribal membership.

Tribes can handle "misdemeanor" offenses in tribal courts -- cases
punishable
by a one year maximum sentence --  if the offender is Indian. [Current legal
challenges seek to restrict this dimension of tribal jurisdiction to only
members
of that particular tribe involved.  These challenges probably will not
succeed.]

Non-Indian misdemeanor offenders are taken to reservation
borders [usually by cross-deputized tribal police] and turned over to state
officials [via the USSC Oliphant decision of 1978.] In almost all cases, the
Feds handle felony crimes on reservations involving Indians [under the Major
Crimes Act of 1885] but in a small and now dwindling minority of instances,
the
respective state does this [under Public Law 280, 1953.]

The whole surrealistic jurisdictional tangle in the criminal justice arena
alone has led many to call for a return of all criminal and civil
jurisdiction to the tribal nations -- with a  creative variant proposal
calling for the setting up of special Indian-oriented and controlled
Federal  District courts on reservations with appellate lines going
into the Fed Circuit and USSC arenas.


HUNTER GRAY [HUNTER BEAR]
www.hunterbear.org


When you cut to the bone  and cut away the college degrees, academic and
other titles, published books and articles, ours is essentially a working
class and Indian family.  We consistently join unions  -- and we always
support them with the greatest vigor.


It's critical to always keep fighting -- and to always remember that, if one
lives with grace, he/she should be prepared to die with grace.