Sioux

Article on Allotment-Era Literature and Cases on Tribal Jurisdiction and Reservation Diminishment

Ann Tweedy

My article. “How Allotment-Era Literature Can Inform Current Controversies on Tribal Jurisdiction and Reservation Diminishment” was recently published in volume 82 of the University of Toronto Quarterly, in a special issue on law and literature.

I looked at non-Native authored and Native-authored literature of the time, specifically in South Dakota and surrounding states and territories, to see whether it helped illuminate the injustices that were being perpetrated on tribes through the allotment process and the takings of surplus lands. The idea was that this literature might have, like the news articles I looked at in “Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers,” put purchasers on notice that tribal lands were being taken unjustly. Most of the non-Native literature I looked at was not that helpful, but a work by historian/poet Doane Robinson was an exception. On the Native side, Zitkala-Sa’s short stories proved to be the most helpful, but the works I looked at by Luther Standing Bear and Charles Eastman were also somewhat helpful.

Unfortunately, the article isn’t available on Lexis or Westlaw, but it is on Muse, if you have access to that. A sightly older version is on my ssrn page.

California COA (Los Angeles) Reverses Guardianship Case for Violation of ICWA Notice Requirement

Matthew L.M. Fletcher

Here is the opinion in In re S.E.:

In re S.E.

An excerpt:

A.A.-E. (Father) and S.S. (Mother) appeal from an order of the juvenile court establishing guardianship of their son, S.E. Both parents contend that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the inquiry and notice requirements of the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and the analogous California statutes governing custody proceedings involving Indian children. (Welf. & Inst. Code, § 224 et seq.) We conclude that the inquiry and notice conducted was not in full compliance with the requisites of the statute. We reverse for the limited purpose of full compliance with ICWA, as explained below.

Also:

Although we are sympathetic to DCFS‟s contention that Mother‟s objection will result in regrettable delay in the proceedings, we cannot say that the failure to thoroughly  investigate the child‟s Indian heritage constitutes harmless error. The information which was omitted here pertained directly to the ancestor Mother and the maternal grandmother affirmatively claimed was Indian. Under these circumstances we cannot say that the omission was harmless and that providing the ancestor‟s name might not have produced different results concerning the child‟s Indian heritage. (Cf. In re Antoinette S., supra, 104 Cal.App.4th 1401 [omission of information concerning non-Indian relatives is harmless error if the notice included all known information about the Indian parent and relatives].) Where the information was known, its inclusion was required regardless of the lack of a preprinted line on the Judicial Council form asking for it.

Denver Post Profile on Tribal Justice

Matthew L.M. Fletcher

From the Denver Post:

 

1885 law at root of jurisdictional jumble

Much of the law that governs America’s Indian lands starts with a trade-off.

In the 18th and 19th centuries, tribal chiefs signed treaties giving away their rights over vast stretches of territory, and in turn the federal government took on specific obligations. Much of Indian Country policy since has been an effort to resolve the inevitable tensions: the federal government as guardian of Indian interests versus the tribes’ view of themselves as sovereign peoples.

Nowhere is the myth of sovereignty so apparent as the sphere of justice. Shocked that the murderer of a Brule Sioux chief was set free under tribal custom, Congress in 1885 gave the federal courts power to prosecute the most serious crimes in Indian

 

 

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  • Watch video and see photos that detail the justice crisis that plagues Native American reservations in the United States.

Country, declaring that many Indians would “be civilized a great deal sooner by being put under (federal) laws.”The reach of that power was codified in a series of court cases and laws stretching over the next 90 years, which limited tribal court sentences to one year and stripped tribes of any authority to arrest or prosecute non-Indians.

One result was to create perhaps the most complicated jurisdictional regime in the country. It’s the only legal system under which the race of the victim and perpetrator determines the court of jurisdiction.

Police working on or around Oklahoma’s patchwork reservations have to carry GPS devices because the change by a few feet in the location of a crime can determine whether it’s under state, tribal or federal authority.

Another result was to short-circuit the relationship between prosecutors and the communities they serve. There are no elected district attorneys accountable to the community. And it’s among the rare arenas where federal prosecutors routinely deal with ordinary violent crime, usually the purview of state courts.

It’s a job the federal system wasn’t designed to do, experts say, and in many cases does poorly.

Blurred lines of responsibility

Take the case of the investigation of major crimes.

With several agencies potentially involved – both tribal and federal – major investigations offer an opportunity for broad mutual support. Instead, they are hampered by cross-cutting jurisdictional lines, poor communication, thin resources and a vast lack of accountability.

Strictly speaking, the FBI is responsible for serious Indian Country crime. In practice, lines of both authority and responsibility often blur.

Both tribal police and the federal Bureau of Indian Affairs have the authority on some reservations to investigate felony crime, alongside the FBI. The agencies often cooperate, but there are few hard-and-fast rules to allocate cases, and with all three elements badly undermanned, serious crimes tumble through the cracks.

For those felony crimes that are fully investigated and forwarded to U.S. attorneys for prosecution, two- thirds are rejected out of hand. If both the victim and defendant are American Indian, the cases can be taken through tribal court and the suspects charged with any crime covered by the tribe’s legal codes – including murder, arson, rape and drug trafficking. But limitations on sentencing effectively turn all of those crimes into misdemeanors, and tribal jails’ chronic overcrowdedness can reduce the time behind bars to a few months, even weeks.