by David Treuer
“All rise,” she says. And my mother wafts into the room from a back door and takes her place at the bench. It is a strange thing to doff my cap and rise when my mother enters the room. And I get the feeling that every time she walked into my bedroom or the kitchen or the living room or wherever, I should have been standing with hat in hand, a supplicant before her. The bailiff brings the papers over and while he goes over the docket with my mother, Lucille squints at the huddle of Indians in the gallery, leans back, leans forward again, and says:
“You there. Is your hair blue?”
“Yes, ma’am. I colored it for fun,” says a teenage boy who, later, will appear before the bench to face charges.
She laughs. “Oh, I wasn’t sure. But I thought it was blue. Or purple. You know, purple for the Minnesota Vikings.”
“No, ma’am. I am a Packers fan.”
With the docket sorted out, my mother reads everyone’s rights en masse. It must give her some pleasure to do so. For most of the people facing charges and for most Indians everywhere, it wasn’t until recently that we felt as though we had any rights to speak of. Certainly not rights administered in an Indian court presided over by an Indian judge, or defended by Indian lawyers and prosecuted by Indian lawyers, or facilitated by an Indian bailiff. One of the things I am only now beginning to realize is how deeply any one law, any congressional act, or any Supreme Court ruling can affect everything else. As common as the Bois Forte Tribal Court seems, as down-home (if not homey) as it might be, there is a seething mass of history that props it up—the legacy of the Bureau of Indian Affairs (BIA), the Major Crimes Act, the policy of allotment, and the Dawes Act—and sets the act and the actors in motion. Tribal law is notoriously tricky; each thread is tied to another and to another and it seems almost impossible to figure out sometimes. But one thing uniting all the disparate forces that come together in my mother’s tribal court is the issue of power and powerlessness.
Memories of the kind of powerlessness that Indians felt in the face of the law run close to the surface for her and for many other Indians. My mother remembers very clearly, and narrates with a force of anger surprising because the subject itself is both so old and so commonplace for Indians of her generation, how the state game warden confiscated her family’s rice one fall. At Leech Lake, the Indian children started school in late September, after participating in the wild rice harvest. The area schools hated this arrangement, of course, because their funding was based, in part, on their average daily membership (ADM), which was compiled at the start of the regular school year. Wild rice—which grows naturally in shallow streams and along lake edges—ripens in late August and mid-September. There are about three good weeks when it is possible to harvest it. This is usually a family affair. Everyone, from young children to the old, gathers at boat landings and campgrounds and shoves whatever kinds of homemade boats are available—duck boats, canoes (if people are wealthy enough to own any), flat-bottomed boats made of plywood—into the rice. One person pushes the boat or canoe through the rice with a long tamarack or cedar pole tipped with a Y-shaped tree fork or (again, if people are rich) a metal duckbill. The person doing the pushing is like a gondolier. The ricer in the bow bends the rice stalks over the gunwales of the boat with one wooden knocker and hits or “knocks” the rice with the other one. The ripe rice kernels drop into the bottom of the canoe; the unripe rice stays on the stalks, and when it is ready you can rice the same area again. The knocker alternates between the left and right sides. Meanwhile the poler slowly pushes the canoe along through the rice beds—if the boat goes too fast, the knocker won’t have a chance to reach out and bend the stalks; if it’s too slow, you won’t get much rice in the boat. If the crop is a good one and if you stay at it all day, a two-person team can expect to harvest about 200 pounds of green rice—sometimes a lot more, sometimes a lot less. Most people keep some rice for themselves, either finishing it the old-fashioned way (by roasting it over a fire and dancing on the parched rice to loosen the hulls and then winnowing it) or sending it to a rice finisher who does the same thing but with a wood-fired mechanical parcher and winnower. Most of the rice is sold. In the 1950s, when my mother was growing up, this was, for many, the single major source of cash income for the year. If not the only source, it was certainly the largest. In the 1950s green rice (rice that was knocked and sacked but not parched or winnowed) fetched around one dollar per pound. This was a lot of money. My grandfather, grandmother, mother, aunt Barb, uncle Sonny, and uncle Davey could make $600 a day if the rice was good. A rice season could yield a few thousand dollars—the cash needed to buy clothes, shoes, kerosene, flour, lard, bullets, roofing material, everything they needed to stay dry, warm, and fed for the winter. Ricing was a big deal. The harvest mattered more than any other. The rice mattered more than fish, more than furs, more than farming. It was the one tribal resource, in Ojibwe country at least, that was controlled and protected throughout the centuries when other treaty rights languished. By the 1950s, however, ricing, too, had eroded and the state had illegally assumed control of the rice beds.
One fall Dinah Stangel, her parents, my great-uncle Diddy Matthews, my mother, and some others drove around to the northwestern corner of Lake Winnie to rice on Raven’s Point and Rabbit Lake. There was no good way to get to the spot, because the wind was blowing hard and kicking up waves that would have swamped their canoes and boats, so they drove down an old tote road and dragged their boats through the trees and across bogs to get to the rice. They got a lot of it. But by four in the afternoon the wind had not let up. It was blowing out of the south and waves as high as four feet were crashing into Raven’s Bay from the main lake. My mother and her ricing partner Dinah Stangel were fourteen years old and both skinny as snakes. They were almost finished when the ricing pole broke. They had one oar and began using that to get back to the landing, and then that broke. Their homemade flat-bottomed duck boat was not intended for open water or for use in that kind of weather.
“I don’t know how we did it,” my mother remembers. “I totally thought we were going to die. We were lost in the rice. We were both so short we couldn’t see over it. We didn’t know which direction to go. I don’t think I’ve ever been so scared in my life.”
Somehow they met up with Dinah’s parents and my mother’s uncle and aunt, and together they ventured out into the big lake and crept along the shore until they reached a public landing, West Winnie Landing. It was deserted except for one old white man camping out in an Airstream trailer. It was well past fishing season and all the tourists had gone home. The man saw them come in off the lake, saw what kind of shape they were in, and invited all six of them in. He turned up the heat and gave them all soup.
“I don’t know what that old-timer put in his soup, but it was the best damn soup I’ve ever tasted. Ever then. Ever since. Anyway, since it was such a long way around by boat to get the cars the men decided to walk around and get them and drive them down to the landing. It took them a couple of hours. When they got back they had the game warden with them. The way they used to do it, they’d open a lake for ricing for a couple of days and then close it, and open it again or open another one. So every day you’d hear where it was open and where it wasn’t. Well, Winnie was closed that day. And this state warden says, ‘Lake’s closed today. I’m going to have to take that rice.’ And we’d gotten a lot of it. It had been a real good day. So he took something like ten or twelve sacks of rice. He couldn’t even close the trunk of his car. And he drove off and we had nothing. Fucking asshole.”
It was more than fifty years ago and she’s still mad about it.
“Damn right I’m mad. That was our life. It was our life he put in his trunk and drove over to the rice buyer and sold.”
“He sold it?”
“Of course! What the hell else was he going to do? We didn’t know our rights then. We didn’t know, nobody knew, that a state warden has got no jurisdiction ove
r Indians on their reservations. Back then they thought they were the law. And no one knew any better. We didn’t know any better. I almost died getting that rice and then he took it.”
My mother’s experiences of powerlessness as a young Indian woman aren’t far from her mind as the first case is called. A skinny middle-aged woman stood before the bench, practically buried in her parka, which she hadn’t taken off, either because in her nervousness she’d forgotten to or because she was still cold. She faced five charges, all of them alcohol-related. She pleaded guilty to all the charges. My mother glanced down at the papers in front of her and then back at the defendant. “Did you complete treatment?” “Yes, your honor.” “Looks like you did. You look better. Seems like you’re doing something right.” She suspended the jail time and the fines and ordered the defendant to complete community service. When it was over the woman’s lawyer leaned over and whispered in her ear, “Good job.”
The second case involved a girl who shoplifted from the convenience store on the reservation. The next case was related to the one before. Evidently the two young women took eight dollars’ worth of hamburger from the freezer. After stealing the hamburger they’d gone home and gotten into a fistfight with their mother and when the cops showed up they kicked and punched the squad car. The girls were charged with disorderly conduct, shoplifting, and domestic abuse.
After the charges were listed my mother paused again and looked straight at the defendant. “Did you apologize to your mother?” “Yes.” “Are you on good terms now?” “Yes. Yes, your honor.” “Have you been to treatment?” “Yeah, October. I did it in October.” “Did you go on your own or did someone make you? Were you ordered to?” “I went on my own.” “You look better now. Have you been staying away from booze?” “Yes, your honor.” She pleaded guilty. The fines and jail time were suspended and she was ordered to complete another evaluation and to stay away from all parties and bars. My mother rarely suspends fines. Instead she requires defendants to do community service to pay off the debt.
Of the eleven cases that day, every case save one was, in one way or another, related to alcohol or drug abuse. One of the first cases my mother tried at Bois Forte involved a few men who were terrorizing one of their acquaintances. According to testimony, they forced a man to shave his face “dry”—without shaving cream or water. Purely sadistic and mean. She gave them all the maximum. And she told them, “I’m going to give you the maximum.” The maximum penalty she can impose in her court under U.S. law is one year in jail and a $5,000 fine. Considering that some of the people appearing before her are so poor they steal eight dollars’ worth of hamburger from a convenience store freezer, $5,000 is a lot of money. On that first day many at Bois Forte began referring to the new judge as “Maximum Margaret.” Tribal courts such as Bois Forte, while limited in the kind of punishment they can dish out and also limited in what kinds of cases can be tried there, have fairly creative sentencing guidelines. She knows the price Indian communities and Indian people pay for the ravages of drugs and alcohol. She’s lost several dearly loved relatives to alcohol and drugs. Despite the fact that my mother wears a black robe and sits on a raised bench and the other Indians appear before her—despite the fact that it would appear that she has the power and they don’t—she has much more in common with them than I do. They seem baffled by life, somewhat defeated by it, confused by it. What “crimes” they’ve committed stem largely from this confusion. Just as confusing, just as baffling as the Indian lives that Indian trial courts are supposed to administer to and help, are the history and reach of the courts themselves. The complicated issue of tribal justice alone is enough to drive someone to drink.
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 generatio
ns. 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.”