Baffled by the stereotypes presented by Hollywood and much historical fiction, many other Americans find the contemporary American Indian an enigma. Compounding their confusion is the highly publicized struggle of the contemporary Indian for self-determination, lost land, cultural preservation, and fundamental human rights—a struggle dramatized both by public acts of protest and by precedent-setting legal actions. More and more, the battles of American Indians are fought—and won—in the political arena and the courts.
American Indians, American Justice explores the complexities of the present Indian situation, particularly with regard to legal and political rights. It is the first book to present an overview of federal Indian law in language readably accessible to the layperson. Remarkably comprehensive, it is destined to become a standard sourcebook for all concerned with the plight of the contemporary Indian.
Beginning with an examination of the historical relationship of Indians and the courts, the authors describe how tribal courts developed and operate today, and how they relate to federal and state governments. They define such key legal concepts as tribal sovereignty and Indian Country. By comparing and contrasting the workings of Indian and non-Indian legal institutions, the authors illustrate how Indian tribes have adapted their customs, values, and institutions to the demands of the modern world. Describing the activities of attorneys and Indian advocates in asserting and defending Indian rights, they identify the difficulties typically faced by Indians in the criminal and civil legal arenas and explore the public policy and legal rights of Indians as regards citizenship, voting rights, religious freedom, and basic governmental services.
American Indians seem an enigma to most other Americans. The images portrayed in the movies, whether of noble redman or bloodthirsty savage, recall the stereotypes of western history. Newspaper stories dealing with oil wells, uranium mining, land claims, and the occupation of public buildings and reservation hamlets almost seem to speak of another group altogether and it is difficult to connect the two perceptions of Indians in any single and comprehensible reality. Literature on Indians provides no clues to understanding the present or remembering the past. Much contemporary literature is a thinly disguised romanticism that looks at Indians as the last and best spiritual hope for a society disheartened and disorganized.
Were a serious reader to attempt to understand the complexities of the present Indian situation, particularly in the fields of legal and political rights, he or she would not find much that is helpful. The classic treatise on Indian rights, the Handbook of Federal Indian Law, by Felix S. Cohen, has been revised twice and, although the authors and sponsors of the second and third editions cautioned that it must be understood as a reference work rather than an unassailable authority, it is viewed by everyone who uses it as the ultimate expression of Indian law. But the Handbook of Federal Indian Law is very specific in its intent: it is designed to be a ready and concise manual for the practicing attorney or judge who, suddenly confronted with an Indian case, can gain immediate understanding of the complexity of the topic while reviewing the major cases and statutes that have established both law and policy in such exotic subjects as Indian treaties, water rights, taxation, civil and criminal jurisdiction, and property.
Cohen's masterpiece is designed to educate the specialists in federal law dealing with Indians, but it does not seek to provide much understanding of the manner in which things happened or how the different subjects came to be regarded as important. The Handbook will outline the powers of tribal governments without so much as a sketchy discussion of what tribal governments are and how they came to be. Other studies attempting to provide information on legal and political rights of American Indians seem to view Cohen's work as the mountain they must scale in order to view the landscape. Some treatises seek to state the present condition of Indians in legal terminology. Other studies attempt to trace the flow of political power from one sovereign to another without telling the reader what sovereignty means in the modern world. The student is generally as baffled when he or she finishes the work as when the first page was turned, and the historical-cultural dimension of Indian life, its antecedents and its philosophical values, and the practicalities of modern Indian life remain hidden from view.
This study does not purport to be an exhaustive encyclopedia of the legal and political rights of American Indians. Rather, it focuses on a particular institution—the judicial branch of government. Courts—federal, state, and tribal—have become the most important branch of government. More than the legislative arm, which seems generally to frustrate the citizen, or the executive branch, which has recently appeared to be a futile exercise in public relations, the judicial institutions of our country affect most intimately the conduct of our lives. Whether a person views the Constitution as truth written in granite in 1789 or sees it as a flexible document capable of reinterpretation by each generation, few will deny that when a court announces its decision in a case certain things change and perceptions of society are never quite the same again.
In choosing the judicial function of government as the subject of a study, we therefore place ourselves in a position where we can see how law affects people. There are no abstract ideologies and concepts in a court of law although at times it appears that the judges do speak of a different world than that in which we live. Nevertheless, within the courts we find the tools whereby a society adjusts its daily patterns of behavior and where other institutions, both public and private, learn about the boundaries of acceptable behavior and conduct themselves accordingly.
Providing the student and the interested layperson with a study of tribal courts involves a recognition that most people do not understand how non-Indian judicial institutions operate. Thus it is not possible to examine and comment on tribal judicial institutions without referring to the corresponding non-Indian institutions so that where differences exist they will appear as clearly as possible. This study provides both historical and cultural background in American Indian history as well as comparisons with non-Indian institutions and their manner of operation. This format enables us to see how Indian tribes, once completely independent of all external influences, have adapted their institutions, customs, and values to the necessity of living in the modern world. While many Americans yearn for the romantic days of the past when seemingly noble Indian chiefs provided us with memorable aphorisms regarding the meaning of life, American Indians today do not live in that world. Like other Americans they have to adjust to economic trends, respond to changes in political climate and thought, and act responsibly in relation to others. Indians have survived and that means that they have successfully and consistently adapted themselves and their institutions to new situations.
Indian tribes, as we shall see, were once primarily judicial in the sense that the council, whether it was that of a village, a league of tribes, or a simple hunting band, looked to custom and precedent in resolving novel and difficult social questions that arose. Tribes were homogeneous units—linguistically, religiously, economically, and politically. All aspects of life were interwoven so that there were no sharp distinctions between the various aspects of life such as those we see in today's world. Everyone knew and respected the customs and beliefs of the tribal community. The task of the council, when it had a difficult question to resolve, was to appeal to that larger sense of reality shared by the people of the community and to reach a decision that people would see as consonant with the tradition. Few new laws or customs were needed and when these occasions presented themselves the homogeneity of the community made the adoption of the innovation simple. Executive leadership in most tribes depended almost wholly on the prestige and charisma of individuals so that Indian chiefs did not need a program or platform to announce to establish their leadership in the community.
With the coming of the white settlers, Indians faced the problem of adjusting to new realities. Had the tribes abandoned their old ways and wholeheartedly adopted the new institutions of the intruders, we would have no identifiable Indians today. On the other hand, if they had absolutely resisted any changes, we most probably would not have Indians today either. Tribes might have stubbornly held their ground but they would not have been able to withstand many of the overtures and intrusions that contact with Europeans made inevitable and they most probably would have perished in their effort to remain stationary while the world about them changed. Consequently, tribes everywhere adjusted cautiously and did their best to keep what was good in the old culture while adopting those things that helped them deal with new realities and new people.
Indians will be with us for the foreseeable future. After a period of nearly five centuries of almost continuous contact with European culture, Indian tribes do not resemble the pristine and stable so cieties that existed in the remote past, but they do resemble those societies enough so that, given a choice between Indian society and non-Indian society, most Indians feel comfortable with their own institutions, lands, and traditions. In order to perpetuate themselves, tribes have successfully used many of the institutions of the nonIndian as a defense against further intrusions and erosions. Tribal courts have been one of the most successful institutions in assisting Indians to defend themselves against too rapid change and destruction, although it has not been until recently that tribal courts have received any significant financial support for their operations.
The social legislation of the last two decades sought to help reservations build the proper institutions for local self-government. In addition to locally controlled schools and economic development projects, tribal courts have been the beneficiaries of this new policy of self-determination. Although federal funding has been drastically reduced with the onset of the Reagan administration, there is every indication that tribal judicial systems have become an integral part of Indian life so that they will be able to survive and grow. Such pieces of legislation as the Indian Civil Rights Act and the Indian Child Welfare Act have provided tribal courts with a new basis for exercising their powers, and as the provisions of these acts take hold and become a part of contemporary Indian life tribal courts will also grow and prosper.
This study is designed to provide the reader with a knowledge of the Indian judicial system as it has come to be in our generation. Many cases and statutes are cited here but primarily for the purposes of illumination of the issues and understanding. A great deal of attention has been paid to the historical antecedents of tribal institutions. The sharp cleavages that many students of Indian affairs believe to exist are more abstract and remote than they would like to believe. In the daily lives of people on the reservations certain practical compromises are always in order and we have tried to highlight the practical aspect of life rather than the theoretical.
Those readers who wish to go into great depth concerning a particular legal or political problem can most certainly find the precision and sophistication they seek in the latest revision of the Handbook of Federal Indian Law. Our volume, on the other hand, should be particularly useful for the student of Indian affairs, the teacher of social science, the scholar in a related field, and the tribal council person who wishes to find in one place a comprehensive overview of the subject matter. Although future cases may alter somewhat particular interpretations of certain doctrines of law, they will most certainly not alter the manner in which the tribal judicial system has come into being and is recorded here.
As both Indians and non-Indians seek to refine their judicial institutions and make them more suitable for community purposes, we can anticipate institutional and procedural changes. Such new functions and tasks can only be understood in a historical perspective and, once understood as a continuing process of human adjustment to social realities, changes become second nature and are accepted without question. The spectrum of Indian life as we have experienced it in the last two decades indicates that Indian people are increasingly returning to examine their ancient traditions with the intent of adapting them to modern problems. Therefore, it is imperative that people understand the usefulness of tradition in human affairs. With the hope that as future problems arise our framework of interpretation will prove increasingly useful in understanding social and judicial change, we have tried, wherever possible, to give special emphasis to the manner in which Indians use tradition and informal procedures.
The efficacy of law ultimately depends on society's perception of its ability to provide justice. People obey laws they consider just and rebel at laws they see as unjust; but the perception is not rational, it is emotional. Indian people, from the establishment of the reservations, were forced into a situation where they could not always perceive the justness of federal laws. And the federal laws were not always just, nor were they suited to the needs of many tribes. In recent decades the great gulf that once existed between the Indian people's perception of law and its effect on their lives has considerably narrowed. The predictable result of this change is that tribal judicial systems have gained much respect and have become an important part of the everyday lives of people. We hope this study will contribute to further understanding of the judicial process and assist tribal courts in their task of helping Indians govern themselves.