Chapter 4 - Apartheid at Red Lake

Until November 1987, the “tribal court” at Red Lake was unambiguously a “Court of Indian Offenses” – and was fairly widely perceived as a beset with serious problems in its administration of injustice to the Indian people subject to Indian court jurisdiction.

More than sixty years after Congress granted “citizenship” to Indians in 1924, both the B.I.A. and ‘tribal government’ persistently violated Indians’ civil rights on reservations including Red Lake. In its May 1990 confidential draft report, Enforcement of the Indian Civil Rights Act of 1968,[1] the United States Commission on Civil Rights chronicled some of the public concerns about the Red Lake Indian Court during the preceding eighteen years:

… to understand more clearly the Department of Interior’s role with respect to the rights of reservation residents vis-à-vis tribal governments, the [Civil Rights] Commission continued to draw upon the Bureau [of Indian Affairs’] recent handling of matters involving the Red Lake Tribe [i.e., Red Lake Band of Chippewa Indians].[2]

1972: A law review article appeared criticizing the tribal courts at Red Lake[3]

1977: The Department of Justice prepared to sue the Red Lake Tribe regarding the tribal law requiring attorneys to be members of the tribe. The suit was dropped when the Martinez decision came down.[4], [5]

1979: The council removed the tribal treasurer. ... This sparked an uprising which resulted in the burning of Red Lake Chairman Roger Jourdain’s house along with other property. [The U.S. Commission in Civil Rights narrator] believe[s] about 13 buildings were burned and, unfortunately, two deaths occurred.[6]

1980: The Red Lake Council passed a resolution barring the news media from the reservation.[7]

1982: Another resolution barring the news media was passed.[8] Also in 1982, a B.I.A. consultant reported, “The Red Lake court has never had a jury trial and juries were not being provided, even when requested by parties.”[9] Around that time, an Interior Department attorney advised B.I.A. officials that the court’s practice of not providing a jury trial violated rights secured by the Indian Civil Rights Act.[10]

1985: Senator Boschwitz and Representative Stangeland requested the U.S. Comptroller General to investigate the Red Lake system, which they never did, as [the U.S. Civil Commission on Civil Rights narrator] understand[s] it.[11]

May 1985: Two prisoners were released by a Federal district judge on the grounds that they had been denied counsel, bail, and the right to a trial by jury.[12]

August 1985: The Red Lake Council began requiring that attorneys be members of the Red Lake Tribe, understand Chippewa, and be a resident of the reservation.[13] In 1985 also, the Minneapolis Star and Tribune brought a Freedom of Information action against the Department of the Interior seeking the Red Lake court records.[14]

August 1985: The court records were seized by the Red Lake Tribe [tribal council]. Suit had been brought by the U.S. Government to recover those records on the grounds that the records are “Agency records” of the B.I.A.. The U.S. District Court for Minnesota and the Eight Circuit have ruled in favor of the U.S. Government. The tribe has petitioned the U.S. Supreme Court for certiorari review.[15]

September 1985: Suit was filed in the federal district court against the Department of the Interior on behalf of three Indians seeking termination of Federal funds to the Red Lake court until court reforms are achieved. The suit was dismissed on the grounds that the federal court does not have the authority under the Indian Civil Rights Act in light of the Martinez decision.[16]

November 1985: The B.I.A. issued a directive requiring the court to allow retained counsel into court.[17]

November 1987: The Red Lake CFR court was changed from a CFR court to a tribal court under a contract with the Bureau for judicial services.[18]

Whether or not the legal status of the Red Lake “CFR Court” – also known as the Red Lake “Court of Indian Offenses” – actually changed to a “tribal court” is questionable: in 2002 the Bureau of Indian Affairs was still funding the Red Lake court as a part of the federal bureaucracy (i.e. as a “Court of Indian Offenses”), and in May 2004, Red Lake reservation was still listed in the Code of Federal Regulations (25 CFR § 11.11) as having a Court of Indian Offenses, rather than a ‘tribal court.’

The distinction between a “tribal court” and a “Court of Indian Offenses” is relevant to the longstanding abuses at the Red Lake Indian court, specifically including that the federal government is potentially liable for the actions of a “Court of Indian Offenses” (CFR Court), while the tribal council – generally immune from being sued in federal court – would likely hold (unenforceable) legal responsibility for abuses by a “tribal court.”

The federal authority for Indian tribal councils’ establishment of “tribal courts” is apparently derived from the 1934 Indian Reorganization Act. As the United States Court of Appeals for the Eight Circuit delineated the situation in 1987,[19] in a case deriving from the Minneapolis Star and Tribune’s Freedom of Information Act requests for Red Lake court records:

The United States argues that the tribal court is a “C.F.R. court” organized under the B.I.A. and governed by 25 C.F.R. Pt. 11. Part 11 establishes “Courts of Indian Offenses” on designated reservations for the purpose of providing “adequate machinery of law enforcement for those Indian tribes in which traditional agencies for the enforcement of tribal law and custom have broken down for which no adequate substitute has been provided under Federal or State law.” 25 C.F.R. § 11.1(b). The Red Lake Reservation is among those reservations specifically designated in the regulation. Id. § 11.1(a)(6).

… Designated tribal courts are presumptively C.F.R. courts. A C.F.R. court may, however, exempt itself from B.I.A. regulation and be reclassified as an independent tribal court if the tribe establishes that it was organized under the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. §§ 461-479, and that it has adopted its own law and order code in accordance with its constitution and bylaws. 25 C.F.R. § 11.1(d).

… Red Lake did not offer evidence establishing the necessary elements for exemption under § 11.1(d) at the summary judgment stage. Red Lake merely stated then, as it does now, that it does not know whether the tribe is organized under the IRA or whether the tribe has adopted a law and order code that effectively supplants agency regulation.

Because it was not clear that the tribal government of the Red Lake Band of Chippewa Indians was organized under the Indian Reorganization Act, the federal Eighth Circuit court ruled, the Red Lake tribal court records were federal records subject to federal law, including the Star and Tribune’s Freedom of Information Act request. Red Lake officials burned the “tribal archives,” where most of the court records since mid-1979 were reportedly stored, rather than surrendering them to the federal government (and the investigative reporters writing for the Minneapolis newspaper). The court records prior to May 1979 were presumably destroyed during the revolution, when the law enforcement center was burned.

The I.R.A. and tribal courts

Through federal regulation and administration of agency policy – including widespread adoption of “boilerplate” Indian Reorganization Act “tribal constitutions” and ensuing reconstitution of “tribal government” – and “tribal membership” – in accordance with the U.S. Department of the Interior’s interpretations of the 1934 Indian Reorganization Act and subsequent legislation, the federal government has cut a wide swath across indigenous sovereignty. In conjunction with I.R.A. tribal governments’ administration of federal programs under federal contracts pursuant to the Indian Self-Determination Act (PL 93-638), and federal courts’ interpretations of “tribal sovereignty,” the federal government has also effectively insulated itself from liability for administration of federal Indian policy through the “tribal councils” it established.

The 1934 Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, provides for “the Organization of Indian tribes; constitution and by-laws and amendment thereof.” The I.R.A. details the processes by which an “Indian tribe” may be “organized” under U.S. Law, and requires that the U.S. Secretary of the Interior approve the constitutions of tribes organized under the I.R.A. It also mandates that such Indian tribal constitutions not be contrary to “applicable laws.”

The I.R.A. delineates the powers of an “Indian tribe or tribal council” ‘federally-recognized’ by the U.S. government: in addition to all powers

vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments.

The wording of the I.R.A. does not specifically legitimate Courts of Indian offenses, nor does it enumerate the establishment of Indian tribal courts as among the powers of an “Indian tribe or tribal council.”

Standardized ‘fill-in-the-blanks’ I.R.A. tribal constitutions written by the Bureau of Indian Affairs were adopted on most Indian reservations, in some instances after extensive ‘community organization’ and other pressure by the B.I.A. In We Have The Right To Exist,[20] Wub-e-ke-niew drew heavily on Ahnishinahbæótjibway oral history as well as federal records to chronicle the B.I.A.’s quarter century of efforts to ‘reorganize’ the general council at Red Lake under the I.R.A. – and along with many other indigenous people, vigorously rejected the legitimacy of “tribal” governments that he understood to be “puppets” of the U.S. government:

One story, which circulated at Red Lake, is that “a ‘yes’ vote meant a ‘no’ vote.” According to this story, the B.I.A. said, “we will do it in a democratic way, and let the people [sic] decide.” The people voted “no,” rejecting the Indian Reorganization Act. The bill went back to the United States Congress, which attached a rider saying that “a ‘no’ vote meant a vote for the I.R.A.” Then, the I.R.A. went back to the Reservation, and it “passed” unanimously, that is, everybody voted “no.” This story is a metaphor for the B.I.A.’s use of proxy votes under trusteeship.[21]

The strength of Red Lake opposition to the I.R.A. is hinted at in a letter from the Assistant Secretary to the Commissioner of Indian Affairs in August 1958, shortly before the elections adopting the “revised” constitution of the Red Lake Band of Chippewa:

In the current effort, the Red Lake people again voiced their opposition to organization under the Indian Reorganization Act. An attempt, therefore, was made to offer them a proposed form of constitution outside the provisions of this Act. The Assistant Solicitor on reviewing the proposed draft constitution submitted by the Tribal Constitutional Committee held on July 18, 1958, that it is not possible for a tribe which has accepted the Indian Reorganization Act to amend a former constitution, from which recognition has been withdrawn, without complying with established legal criterion for obtaining the Secretary’s approval of a new organic document.

In view of the strong tribal feeling, the proposed constitution and bylaws now before you, although it contains all the requirements of an IRA-document, dare not directly refer to that act if we are to obtain tribal acceptance of the proposed document. We recommend, therefore, that the proposed election order receive your early favorable consideration.[22]

In the understanding of many Ahnishinahbæótjibway at Red Lake, the “tribal council” proposed in 1958 was but the most recent of a series of “federal instrumentalities”[23] – purported “tribal governments” comprised of “Indians” supporting the agenda of the colonizing nation – at Red Lake dating back to certain (British-recognized) “Red Lake Chiefs” signing the Selkirk Treaty in 1817.[24]

The 1958 Red Lake Constitution supplanted a 1917 Constitution that, although not recognized as legitimate by the Ahnishinahbæótjibway, was tolerated as not capable of doing much harm: the 1917 General Council’s authority was constitutionally limited to not recognizing the “General Council of the Minnesota Chippewas, as a medium for the transaction of [Red Lake] tribal property business and affairs,” deciding “in disputes as to Chiefs,” and to “respect and give proper consideration to petitions that may be placed before them by any member of the Red Lake Band” [but not actually acting on those petitions].

The 1958 I.R.A. Constitution, on the other hand, granted fairly extensive power to the “tribal council” that the B.I.A. used it to establish[25] – including “administration of justice by establishing a police force and a tribal court.” That “tribal” power, however, is very clearly subject to the overarching sovereignty of the United States, “existing Federal laws,” and “subject to the approval of the Secretary of the Interior, or his duly authorized representative.”

On September 11, 1990 and after years of increasing concern about the blatant unconstitutionality of the 1952 “Law and Order Provisions” used by the B.I.A. in its “Court of Indian Offenses,”[26] the Red Lake tribal council adopted a “recommended changes to the Tribal Law and Order Code.”[27] Vigorously objecting to the new ‘revised’ code’s extension of “United States Government trusteeship, illegally applied to Ahnishinahbæótjibway property” – which has never been ceded – and to the new ‘revised’ code’s referring to “Indians” as “non-persons,[28] in accordance with the precedent set in the U.S. Constitution,”[29] Wub-e-ke-niew renounced his “tribal membership” and reasserted his unextinguished Ahnishinahbæótjibway sovereignty. In the letter accompanying his “Indian Identity Card,” which Wub-e-ke-niew returned to the U.S. Supreme Court “as a false document issued with felonious and genocidal intent by the United States Government in collusion with their colonial Indian Reorganization Act ‘Tribal Councils’,” Wub-e-ke-niew explained to U.S. Supreme Court Justice Thurgood Marshall: