Murder in Indian Country—Indian Country Justice (Part IV)

When I think of murder mysteries about American Indians, I think of Tony Hillerman’s novels, set on a New Mexico Navaho reservation. New Mexico is not one of the states that assumed partial legal jurisdiction over reservations within its borders under a 1953 federal law known as Public Law 280.

Because New Mexico has no legal jurisdiction over the Navahos, Hillerman was able to make his protagonists tribal cops. In other states, reservations usually must rely on state and county law enforcement and courts—but not always successfully.

In a few states, reservations provide their own criminal law enforcement and criminal courts unless the federal government steps in, which apparently it tends to do, especially when women, children, and other especially vulnerable people are involved (family court issues), when a capital crime has been committed, or when a federal law has been violated.

Sidebar: Civil law issues are particularly murky on reservations. For the most part, civil issues within the tribes are handled by tribal courts, but, when a non-Indian is involved, the jurisdiction is often disputed. I suspect this is one of the reasons so many tribal leaders these days are lawyers (more later).

What Goes Wrong on Reservations?

In 2004 the Bureau of Justice Statistics published a study of justice in Indian Country (with statistics for the years from 1999 to 2002). It claims that Indians are victims of crime far more often than any other group. It also notes that about 15% of the inmates in federal prisons are Indians, even though Indians comprise only about 1% of the nation’s population.

Sidebar: A few days ago I stumbled across a pre-publication report that claimed these statistics were grossly wrong, primarily because many Indians do not self-identify as such. The pdf of the report has since disappeared from the web (or I can’t find it, in any case). So, while I suspect this is true, I have only the BOJS study to refer to now.

The upshot of the BOJS report is that reservations have inadequate funding for law enforcement. It urges further research to determine how the government can improve the situation.

Much as I like data collection and statistics, I am extremely skeptical of any such venture, because I don’t believe the federal government has any idea what Indian Country is or how many tribes there are or how many people are really American Indians “entitled to federal benefits.” If they did, they would post a list of reservations, tribes, and their populations on the Bureau of Indian Affairs website.

The most thorough information I have found is at WikiPedia: http://en.wikipedia.org/wiki/List_of_Indian_reservations_in_the_United_States#Reservations

But I defy you to read that article and tell me how many Indian reservations there are on federal lands versus reservations on state lands or how many tribes there are.

And if you read the BOJS study (above) I defy you to tell me which reservations are under federal criminal jurisdiction, which are under state criminal jurisdiction, or which are entirely under tribal criminal jurisdiction.

Juvenile Justice on Reservations

One statistic is particularly troubling and confusing—juvenile justice and detention: “Table 34. Tribal juvenile jail capacity, number in custody,offense seriousness, and staff, by State and tribe, 2002.” According to the study, in 2002 almost 200 juveniles were being held in a tribal detention center,  of which about 10% were arrested for serious crimes. There are 70 jails in Indian Country managed by tribes and the Bureau of Indian Affairs, of which 10 are designated as “juvenile detention facilities.”

By this the BOJS means, I assume, that the jails are in no way under state jurisdiction. As a result, Indian juveniles are not subject (apparently) to prosecution as adults in state courts. So, a juvenile who commits murder or violent rape must be released into the general reservation population at age 18 or 21, I suppose. Since recidivism rates are high on reservations, most such individuals are likely to offend again. This could be one of the many things that go wrong on reservations.

Fundamentally, the treatment of school-age American Indians is what really goes wrong. Opportunities for a high-quality education are severely limited on reservations. According to the Manhattan Institute, only 54% of American Indians graduate from high school and only 38% are college ready at the time.

Sidebar: I question the 54% high-school graduation rate. Elsewhere I have read that only 50% of all students graduate from high school. The Manhattan Institute in the same article claims that 70% of “all high school students” graduate. So I suspect the American Indian statistic also refers to “all American Indian high school students” who graduate, which means there is a percentage of American Indian children who drop out before they even reach high school.

Just as troubling is the existence of “tribal colleges.” For decades other minority colleges have solicited other races. For example, you will be hard-pressed to find a college that identifies itself as a “black college.” Instead, they call themselves “historically black.” Any college that touts itself as serving only a single community has no place in higher education. A good college certainly may be founded to promote research into and learning about a specific culture or creed, but a ghetto focus does not empower learners.

That’s why it’s a miracle that in 2002 less than 200 American Indian juveniles were in jail. Half the juveniles on reservations are dropouts. 25% or so of reservation high-school graduates are not ready for college, which probably means many reservation high-school graduates can’t get into any college other than a tribal college.

Which brings me back to Tony Hillerman. . .

Hillerman did not identify himself as an American Indian, although in photographs he looks as if he must have Indian ancestors. His biography parallels my father’s: both were born about the same time in Oklahoma, both graduated from high school there, went to the University of Oklahoma, joined the army and fought in WW II, and then returned to graduate from college. My father, too, did not identify himself as Indian, even though he knew his mother was Cherokee/Choctaw.

Both men escaped Indian Country through education.

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Indian Country Justice (Part III)—Public Law 280

American Indians are not ordinary American citizens who enjoy the same protections available to their fellow citizens within the justice system. Legally (it seems to this non-lawyer) American Indians are a defeated, enemy nation whose citizens are now held captive—just like the “detainees” at Gitmo.



Sidebar: No, I don’t want to get into a discussion of the Gitmo mess, except to say that the federal government has made a mess there, just the way they have made a mess of Indian Country. And now it sounds as if they’re going move the mess into my backyard in Illinois.


The history of the war between the United States and the Indians is legendary. In the end, the U. S. won the war and signed a series of treaties with the defeated enemies, that is, the tribes. Today, the reservations and residents of mythical “Indian Country” are governed by the terms of these treaties; and this very fact proves the Indians’ status as a defeated nation. (Just look up the definition of a treaty at a website, such as The Free Dictionary.)


The fact that American Indians were not “treated” as citizens for most of their relationship with the U. S. government is proven by the fact that they were not given the right to vote until after World War I, even though the 15th Amendment in 1869 gave the vote to every other adult male citizen of the United States, regardless of race or ethnicity: in 1924, Indians received the right to vote through an act of Congress, “The Citizenship Act,” not by an amendment to the Constitution.


Why didn’t the 15th Amendment apply to American Indians? Because they were not “citizens of the United States;” they were citizens of Indian Country.


What is Indian Country?


Indian Country is a legal fiction of the federal government: it includes reservations, non-Indian property inside a reservation, Indian “allotments” held in trust by the federal government both on and off the reservations, and associated Indian “communities.”


Of course, you have to ask what the definition of an “Indian tribe” is. As www.duhaime.org’s Legal Dictionary says, “there is no single definition of what an ‘Indian’ tribe is in the United States.” As it now stands, the federal government officially recognizes a list of so-called tribes. Membership in the tribes is determined by a governing tribal organization, which can include and exclude anyone they like or dislike.


Indian Country is federal land—for the most part. That means the federal government has complete jurisdiction over them; the states, counties, and town governments have no jurisdiction (sort of). However, in 1953 the federal government caved in to state pressures and granted the states some jurisdiction over Indian Country through a law known as Public Law 280.


Public Law 280 0f 1953


According to Jerry Gardner and Ada Pecos Melton, Congress passed Public Law 280 because California claimed that the reservations within the state were lawless and a danger to non-Indian neighbors. Of course, what California and several other states really resented was that reservations were not subject to any state laws and did not pay taxes.


Under Public Law 280 five states (and later Alaska when it became a state) were granted complete jurisdiction over reservations within their borders. Several other states were granted the option of complete or partial jurisdiction. (Utah was one of these optional states; its decision to take jurisdiction over reservations there had at least one good effect, namely, Utah had to give Indians the right to vote in state elections.)


However, not every state has any reservations within their borders—but almost all have some Indian Country. For example, Oklahoma (the former “Indian Territory”) has only one reservation, as far as I can tell (it’s difficult to find a definitive list of reservations by state), but Oklahoma is not covered by Public Law 280. The Cherokee Nation (headquartered in Tahlequah, OK) has no reservations anywhere.


As Gardner and Melton point out, this is a chaotic situation, and chaos does not promote justice anywhere, and certainly not in a mythical non-place like Indian Country.


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Indian Country Justice (Part II)

Something happened to me yesterday that reminded me once again that not only is life unfair (as Pres. Kennedy said) but life is also unjust. Justice is something people have to bestow on one another.

The “justice system” does not bestow justice. The government does not bestow justice.

The not-guilty verdict in the murder trial of Sharron Chason proves that only people can bestow justice—and also that people are often less just than random chance.

Ms. Chason was hounded into court by vindictive relatives and friends of her husband. Had her circle of friends and family been larger than her husband’s or more powerful, I have no doubt that the medical examiner’s office would never have been called into the hospital while her husband was still alive.

I wonder how many people have relatives and in-laws who are willing to go to such lengths to hurt them.

I had a grandmother who did everything but have my father thrown in jail for marrying her daughter. My maternal grandmother was a racist. My paternal grandmother probably was, too, but she had the misfortune of being Cherokee/Choctaw.

It’s a mistake to think that only whites can be racists or can be unjust. The Cherokees have a long history of racism (I don’t know that much about other tribes, so I can’t say whether this is true of them). Though the Cherokees make much of the sad Trail of Tears episode, the fact is that they are as much to blame as Andrew Jackson. Corrupt tribal chiefs sold them out in expectation of receiving vast tracts of land (Indian Territory). What’s more, the Cherokees dragged along with them on the march from Georgia to the Mississippi their own black slaves.

That’s right. The Cherokees owned slaves in Indian Territory.

And if you look at photographs of those early Cherokee settlers, you will probably find as many blue eyes among them as brown.

It’s no accident that now there are no Cherokee reservations in Oklahoma—the end of the Trail of Tears. The only Cherokee reservations now are in the Carolinas (where a few Cherokees were left behind.) The Cherokees of Indian Territory understood well the importance of private property. They owned the land where they lived. They owned slaves to work the land.

The other tribes were duped into giving up the most fundamental right granted in the Constitution: the right to private property. Private property is the source of privacy and liberty. The other tribes are, as a consequence, now confined to reservations (federal land, not private property).

Where’s the justice in Indian Country? (Part I)

What is “this country?” Not “Indian Country,” but the country in which we live. How is it defined?

Is “this country” the fifty states? Does “this country” include the territories of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Northern Marianas, and the “Minor Outlying Islands”? (Honestly, has anyone who never served in the Navy ever heard of some of these places?)

I suppose most of us would include all the land inside the borders of any one of the fifty states as “this country.” And I also suppose most of us assume that the Constitution and Bill of Rights protect residents who live in this country.

Well, it turns out that the law of the land does not apply to everyone in “this country.” The Constitution and Bill of Rights only apply to American Indians if and when the federal government declares that they do.

The federal lands of the national parks—which are not subject to state laws—are “this country,” even though they’re outside the states’ jurisdiction. And the federal lands of the Indian reservations, which also lay within the borders of the states, are also “this country,” but they often are not governed by state law either.

Sidebar: A “reservation” is not a “territory,” like Puerto Rico. The residents of territories are entitled to send delegates to the political parties’ conventions. The residents of reservations are not. Instead, they participate in federal elections through the states’ political parties—even though in some instances the reservations are not otherwise governed by state law.

But not all of “Indian Country” lies within the borders of any state. Indian Country isn’t even a physical location, a place, as most of us think of places. Nor is it a nation. It’s just a “country,” and it is governed almost entirely by federal, not state, law.

Justice for American Indians

Sidebar: Don’t call me a “native American.” The word “native” sounds like a naked savage to me. I’m very proud of my Cherokee/Choctaw heritage—what little I have been able to learn about it because my Cherokee/Choctaw grandmother died denying she was anything but lily white. One thing she and my father were very proud of, though, was that the Cherokee/Choctaw are called “civilized tribes.” Go figure.

The laws of this country governing reservations, Indian tribes, and citizens with Indian ancestors are arcane. In brief, the way I see it, American Indians don’t receive equal justice under the law.

Now the federal government has agreed to settle a long-standing class-action lawsuit against an agency of the Department of the Interior, a suit known as Corbell v Salazar. The “class” suing the government is the class of so-called “native Americans.” Not all of these plaintiffs live on reservations. Many of them, if not most, are—like me—Melting Pot Americans who will not benefit from the settlement.

The Corbell lawsuit began over a decade ago as an attempt to expose the corrupt Bureau of Indian Affairs’ financial mismanagement of Indian reservations on federal lands. And I am sure the tribes on reservations are owed the billions of dollars the government now proposes to pay them. It seems like justice, I suppose. Or maybe like charity.

Or does it? Isn’t this just a BandAid that further strains the American taxpayer (including American Indian taxpayers) at a time we can ill afford it?

Will the government change the way it “manages” Indian Country from now on? No. The whole reservation system is broken.

Sidebar: The same people who have decided to give these paltry “reparations” to American Indians for past cruelty and crimes also have decided not to give reparations to African American descendants of slaves. I don’t understand this. Is it because we now have an African-American president who is not the descendant of slaves?

The Indian Vote?  

Do you know when “native Americans” got the vote? I bet you think they were given the right to vote by the 1869 15th Amendment, which gave emancipated slaves the vote. Well, you are wrong. Native Americans did not even get the right to vote when women of all other races did in 1920. No, American Indians did not have the right to vote in federal elections until 1924—and not in every state’s elections until (in some cases) 1956.

That’s why so many American Indians and their descendants do not “self-identify” to the Census Bureau. If my grandmother had admitted she was Cherokee/Choctaw in 1920, she would not have been eligible to vote in Oklahoma (former “Indian Territory”). And when my father was born if his birth certificate had listed him as anything but Caucasian, he would not have been entitled to the right to vote when he reached his majority. If my grandparents had chosen to identify my father as non-white on his birth certificate, and if I had been born in Utah instead of Michigan, I suppose I might not have been identified as white, either.

The federal government’s token payment to mythical “Indian country” is absurd. There is no amount of money on earth that can solve the problems of American Indians without a complete rethinking of the whole concept of a “reservation” and “Indian country.”

Where do you think this money is going to go? What makes you think the politicians at the Department of the Interior now know how to spend this money? Will the money be used to build first-class schools on the reservations? Or will the money end up expanding gambling on the reservations?

Chalk Ghost—Co-Winner of 2009 TextNovel Grand Prize

I’m in the throes of finalizing my manuscript of a paranormal mystery novel, Chalk Ghost. The protagonist, Lily-Rose Whitehorse, is an American Indian college student studying forensic accounting, because she knows how badly the federal government has mismanaged tribal finances and defrauded the reservations.

For this reason I am currently studying the history of the reservation system and the laws governing the reservations. The latest twist in this sad history is the federal government’s settlement of Corbell v. Etc. (The defendant has changed with each new administration.)

In my not-so-humble opinion, this settlement is demeaning. “Native Americans” are not an endangered species being protected on federal lands. They are being confined and deprived of the rights of citizenship.

Justice has yet to be done.

Allen Andrade Trial: Two Bloggers “Live” in the Courtroom

Courts in Denver are different from others, apparently–certainly different from Illinois. Two news organizations have bloggers in the courtroom for the trial of Allen Andrade:

Denver Westword: http://blogs.westword.com/latestword/2009/04/live_blog_the_angie_zapata_tri_3.php#more

Greeley Tribune: http://www.greeleytribune.com/article/20090417/SPECIAL_MEDIA/904179997/1002/FRONTPAGE

This kind of public access is very rare.

Author Judy Alter on Justice in the West

judy_alter


Guest Blogger Judy Alter is director of the TCU Press in Fort Worth and the author of over 60 books, most for children and young adults. She’s the winner of the 2005 Western Writers of America Owen Wister Award for Lifetime Achievement.


Please visit her blog at http://www.judys-stew.blogspot.com/ and her website at http://www.judyalter.com/


 


When Catherine asked me to blog on the subject of justice in the Old West, my mind boggled. I’ve written about the Old—and New—West most of my professional career, but I don’t know that much had to do with justice. It’s certainly not something I researched.


But then I thought about my first young-adult novel, published in 1978 by William Morrow & Co. I called it A Year with No Summer, but the marketing folks changed it to After Pa Was Shot, which does not trip easily off the tongue. The story was taken from an actual incident in a small East Texas town, but my ideas about East Texas—and the Old West—at the turn of the 20th century were hazy at best, typical of a northerner come south (which I then was—now I think of myself as a Texan and will argue with those who say you have to be born here to be a Texan). A young girl’s father, a deputy sheriff, arrests a drunken man on Christmas Eve and jails him to sleep it off. When the now-sober drunk is released, he shoots the father to death on the streets of the town. I remember thinking, “How could that be? East Texas was civilized by then. It wasn’t the wild and woolly Old West.” It may not have been the Old West, but as I now know from having studied Texas history for 40-plus years, East Texas was a violent place, home of some of the West’s most notable feuds.


The whole story is less about official justice than it is “fair” and “right.” Ellsbeth’s father dies because, although he fired first, his gun misfired the first time, and the shooter, Ben Short, gets off because the sheriff says it has to be called self-defense. Ben Short recovers from his wounds, and Pa dies. Ellsbeth writes she wanted to holler to God in Heaven that it wasn’t fair. Would an East Texas jury have been any more fair?


A lot of justice in the West was unfair. Butch Cassidy was once jailed for taking a pair of jeans from a store, even though he had left an IOU and considered his word was his bond. After that jail term (from which he escaped when being transferred on a train) soured him on following the law, Butch skirted justice a whole lot, once robbing a landlord of the money his tenant, an elderly woman, needed to pay the avoid eviction. Sure, he almost got caught several times, but he didn’t—probably not even in South America.


In The Virginian and in Elmer Kelton’s much more recent The Day the Cowboys Quit, cowboys take justice into their own hands and lynch rustlers. I could go on and on with examples—just re-watch “High Noon” for a definition of justice. Fair? Who’s to say? Especially who among us of the 21st century is to apply standards of justice to the late-19th-century West.


It seems to me a lot of justice in the Old West had less to do with the law that with fairness or the lack thereof. There were judges and juries of course—Hanging Isaac Parker comes to mind—but a lot of the “law” never reached the courts.

Hanging Judges

Oklahoma became a state in 1907, but before that it was Indian Territory–the epitome of the Wild West. Justice was administered from a courtroom in Ft. Smith, Arkansas, by a judge named Isaac Parker. So many murderers were convicted and sentenced to death by hanging in his courtroom that he became known as “The Hanging Judge” and his court as “The Court of the Damned.” “Suspects” were rounded up by a couple of dozen deputy marshals who traveled the territory on horseback, shot and asked questions later, and then dragged the bad guys back to jail in Ft. Smith, where a jury of their peers convicted them. Apparently, the deputy marshals who arrested them were the principal witnesses against them.


One of these deputies was Jim Cole,  my great-grandfather. I haven’t spent much time researching his biography, but my mother has. I just found an interesting document (Edwin C. Bearss, Law Enforcement at Fort Smith, 1871-1896–http://www.nps.gov/history/history/online_books/fosm/fosm.pdf ). I plan to read it tonight and hope to find some references to Jim Cole. I notice already that it includes a photograph of the deputy marshals standing in front of the courthouse (a copy of which I own): my great-grandfather is the paunchy man on horseback to the far right.


Jim Cole has gone down in history as the deputy who shot Frank Dalton in the back (although my mother disputes this). He received several gunshot wounds in return, but still managed to ride back to Ft. Smith afterwards. The saga of Dalton’s demise is available at the National Park Service website for Ft. Smith: http://www.nps.gov/fosm/historyculture/frank-dalton-deputy-us-marshal.htm. (The National Park Service is an unsung hero of American history. If you haven’t visited a National Park Service historical site under their guidance, you’ve missed a great experience.)


The Hanging Judge presided over jury trials, so technically the juries who ought to take some of the blame for the severity of the court. The National Park Service explains the process succinctly here: http://www.nps.gov/fosm/historyculture/criminal-case-procedure-in-judge-parker-court.htm .


I’m not as skeptical of the guilt of the accused in Parker’s court as East Coast newspapers were at the turn of the century (it was the press that dubbed Isaac Parker the “Hanging Judge”). Living in Indian Territory was probably like living in the worst slums of a modern inner city. Gangs roamed with impunity. Everyone knew who was up to no good. The gangs were proud of what they did–they were like proto-revolutionaries. They were disenfranchised by the Civil War and blamed their own poverty on “Yankee” big business, especially the banks and railroads.

I also can’t believe that current juries are more lenient than juries in the Ft. Smith courtroom. The conviction rate these days is pretty high, and the imposition of capital punishment when available also seems to be the norm. The only real differences that I can see was the speed with which the punishment was “executed,” the fact of simultaneous executions, and that executions were public.

Juries and Justice in the Old West

One of my great-grandfathers was a deputy sheriff for “The Hanging Judge” Isaac Parker in Fort Smith, Arkansas. Here’s the mystery: Were criminals tried only before the judge or were there juries present? And was there any real justice in the Old West? Did my great-grandfather shoot from the hip and ask questions later?


My great-grandfather’s name was James “Jim” Cole. When Frank James (Jesse’s brother) got out of prison and made the lecture circuit, one of the people he stayed with was Jim Cole. My grandfather Elmer Cole was just a kid, but he remembered the visit well. The mystery in our family is what the relationship between the Coles and the James family was. Jesse’s mother was a Cole, but we’ve never been able to find out if there was even a distant connection. Then, too, there’s the Younger Gang, led by Cole Younger. My great-grandfather was severely wounded in a shoot-out with the Youngers, but my grandfather always said there really wasn’t much difference between the law in those days and the lawless.


If that was so, what about those Wild West jurors?