Madeline Colliflower, known to her relatives as Si-Siya, walked on in her 81st year back in 2000, the cusp of the 21st century. She was one of a few surviving FBI (Full-Blooded Indian) citizens of the Gros Ventre.
Those of us who did not have the honor of knowing her personally should remember Colliflower for her arrest and conviction in the Fort Belknap Reservation Tribal Court that led to the enactment of the Indian Civil Rights Act. The Associated Press, noting Colliflower’s passing, reported incorrectly that the Indian Civil Rights Act “guarantees defendants in tribal court the same rights provided in the U.S. Constitution.”
The Indian Civil Rights Act is not a Bill of Rights for Indian Country. However, what happened to Colliflower is evidence that in fact Indian Country does need a Bill of Rights.
Colliflower was charged with disobeying a tribal court order to remove her cattle from land leased to another person. If guilty, she should have been punished. However, the tribal court judge who convicted her also prosecuted her. And she was convicted without being allowed to give evidence in her defense. Under those procedures, who knows if she was guilty?
Contrary to Anglo-American legal folklore, many civilized legal systems get along fine with the roles of judge and prosecutor, or at least investigator, combined. How about most of Western Europe, where a judge is in charge of the investigation, the judge is allowed to consider the defendant’s failure to testify, and the trial does not begin until the judge is convinced that the defendant is probably guilty? Are all the civil tradition countries uncivilized?
But not allowing Madeline Colliflower to defend herself is, pardon the expression, indefensible. Maybe the cattle were there without her knowledge. Maybe they were not in fact her cattle because she had sold them. Maybe she had an emergency on her land that made it necessary to move the cattle. We don’t know these things even if we know that cattle with her brand were in the wrong place, and sorting such things out is why we have courts.
The question becomes what shall be done when a tribal court—or, for that matter, a chief or a tribal council—gets out of hand, does injustice, or violates fundamental human rights? Congress’ response was the Indian Civil Rights Act of 1968. It purported to apply a slightly watered down version of the Bill of Rights to Indian Country. There are some rights that simply make no sense in the tribal context.
Freedom from establishment of religion is absolutely necessary for the United States, when so many of the original settlers came to these shores to escape religious persecution or to be free to visit religious persecution on others, depending on your point of view.
The right to counsel in criminal cases is imperfectly realized in the United States but out of the question on most Indian reservations.
Protection against “cruel and unusual punishment” is a completely culture-bound concept. In Crow Dog’s case, the tribal court would have found the American sentence cruel and unusual, because the tribal court had determined that Crow Dog posed no threat to the community and it was therefore un-necessary to kill him. A serious cruelty from the Indian point of view–banishment–excites little interest in American courts.
Culture clashes aside, allowing Indians to take their own tribal officials to federal court is an affront to Indian self-government. The only thing that keeps the Indian Civil Rights Act minimally palatable to the tribes is its lack of teeth. The only remedy for a violation is habeas corpus, which means that tribal governments can violate the Indian Civil Rights Act at will as long as they do not lock anyone up.
The Indian Civil Rights Act and the issues it raises are a colossal good news and bad news joke for Indian sovereignty.
Few tribes ever had any reason to develop a concept of individual rights enforceable against the tribe. This is a concept only necessary to govern heterogeneous cultures, like the U.S. It has become necessary to govern Indian nations because of Christianity and other outside influences, and if the Indian nations do not develop self-governing means to rein in dishonest or tyrannical officials, the U.S. government will be more than happy to do it for us.
Instead, whenever some dishonesty or tyranny happens within an Indian government, our leaders line up to wave the bloody red shirt of sovereignty.
One major tribe was only able to remove a corrupt chief after federal indictment because the chief did not allow tribal citizens to have access to the voting lists. Did this glaring bit of tyranny get reformed by the new administration? No. Sovereignty is a shield to incumbency, whether the incumbent is a crook or not.
Indian sovereignty lies in tatters already. What remains of sovereignty ought to be insufficient to shield dishonesty and tyranny, even if there were some advantage for Indians in being ruled by crooks. I am reminded of Vine Deloria, Jr.’s bon mot that Indians vote for crooks and white people vote for morons.
Should the Indian Civil Rights be expanded to allow lawsuits in federal court whenever individual rights are violated by tribal governments? No. But if tribal governments continue to steal from their own people and then hide behind sovereignty, the day will come when there is no sovereignty left to hide behind. We must develop tribal understandings of individual rights, and tribal mechanisms to vindicate those rights.
Having this conversation, not the Indian Civil Rights Act, would be a more fitting memorial to the Gros Ventre elder Madeline Colliflower, Si-Siya.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas, and can be reached at firstname.lastname@example.org.