Wampum

By 1871 the House of Representatives had grown tired of living with the results of Federal Indian policies carried out by the Senate and President through their treaty making authority. Their remedy was the Appropriation Act of March 3, 1871, Ch. 120 §1, 16 Stat. 544, 566 (codified at 25 U.S.C. §71), which ended the Treaty Period. That wasn't enough however, and in 1885, in a climate of Judeao-Christian indignation at the failure of a Tribal Court to condemn an Indian to death for having killed another Indian, the House attached a bill to the general appropriation act of 1885 enacting the Major Crimes Act. In Federal Indian Law this is ex party Crow Dog. Nominally to provide the Indian Tribes with the benefits of Christianity, in particular, the lex talionis or law of similar retribution¹, but in fact creating the Plenary Powers Doctrine that Congress (read "the House") is supreme over mere Treaties (read "deals the Senate cut"), and created the authority, under US law, for Congress to unilaterally change Treaties. Treaties with Indians. Treaties about land or fish. Treaties with Russia. Treaties about anti ballistic missile systems and things that go bang.

As stark as that is, that is how the bedrock of modern Federal Indian Law came into being, petty institutional jealousy in the House. Since that is too horrible for young law students, this is papered over by the "Chritian Civilizing the Indian" fiction, which is still fairly ghastly, even Rehnquist couldn't sell it when drafting Oliphant, so it is fortuitous that most Americans, even those worldly enough to get into law school, are predisposed to think that American jurisdiction naturally and unremarkably prevails over Tribal jurisdiction for major crimes committed, where some of the lesser included offenses, say shoplifting prior to a fatal exchange of gun fire, if tried seperately, would naturally and unremarkably remain subject to Tribal jurisdiction. It is a better brand of justice, neh?

The resurrection of justice is slow and mostly invisible.

The Meskwaki Nation, the only Federally recognized Indian nation within the borders of Iowa, is putting finishing touches on its own laws and court system. The Meskwaki Tribal Court stems in part from the leadership dispute in 2003.

Any tribe in exercising its sovereignty ... should have all facets of its government in place, meaning the legislative, executive and judicial. More important for the tribe is that its rules it wants to operate under and the laws under which the community is to live should be based on the tribe's norms and practices.

Elbridge Coochise (Hopi), chief judge for the Meskwaki Tribal Court.

The tribe is compiling a code of law and has chosen three judges who have served on the courts of other tribes. Also appointed to the MTC bench are Henry Buffalo Jr. of Minnesota and Kimberly Vele of Wisconsin. A fourth judge's slot remains open, The court hired a clerk and is operating in the tribal administration building.

The court has fairly broad jurisdiction, and it's just a matter of what people file in the tribal court. We expect a full set of family law cases, child welfare related cases, some civil cases. When it comes to dispute resolution, the tribal system differs from the American system in that the goal is less about determining winners and losers as it is about getting at the truth.

Jeff Rasmussen, an attorney who helped establish the Meskwaki Tribal Court.

An excerpt from the code says the purpose is to seek a resolution which restores balance to the community in accordance with the customs and traditions of the tribe, repairs relationships, results in fairness and avoids principles of retribution and punishment.

I get the sense that the process will be different than the adversarial process you normally come across in other court systems. My sense of where the tribe wanted to go with this court was to take away some of the formality of the Western court systems in an effort to make it more friendly toward the people who will use the courts.

Henry Buffalo Jr, a tribal judge in Minnesota since 1986.

Had Jeff Weise survivied his own massacre, American justice would be Nancy Grace, howling "a life for a life", and America would be fixated on the question of whether and when, under the Federal Death Penalty rules, juveniles may be executed. I don't think that the Red Lake Nation, if it had jurisdiction over Jeff Weise, if he had survived his own massacre, would be as savage. As fixated upon retributiion, religion and a social magic of mystic equivalencies. The Red Lake Tribal Council voted to distribute $5,000 checks to 15 families, for medical or burial expenses, including the family of 16 year old Jeff Weise, who killed nine people before killing himself.

What is justice? Is it only, or simply best obtained by the present American adversarial system? Where does one come down on issues like retribution and rehabilitation, on tort reform, on federal, tribal, and state jurisdiction? Iowa is an early caucus state. Being there, and being engaged in real questions, is something to look forward to in the candidates of the next cycle. I hope at least one can be found there.

We're still collecting for the Red Lake Memorial Fund.

[1] best known by the phrase "an eye for an eye" (Ex. 21:23, 24; Lev. 24:19, 20; and Deut. 19:21). Physical similar retribution first appears in the Old World legal systems in the Code of Hammurabi (1795-1750 BC), either as a limit on social disruption, or as a magical formula. Earlier Mesopotamian legal codes provided only for restitution and did not attempt to create a system of magical equivalencies.