Incomplete Independence: American Indians and Tribal Law

In 2012, Archie Cavanaugh, an American Indian from Southeast Alaska learned the headdress he had created, which included feathers from a raven and a flicker, was illegal to sell under the Migratory Bird Treaty Act. His reaction was one of shock. Rosita Worl, head of the Sealaska Heritage Institute, reacted similarly. “I had no idea this law existed,” she said. “We didn’t even know it was an issue, we’ve just been doing things that we’ve been doing forever.” [1] This instance is just one small example of the frictions that exist between many American Indians and the U.S. government. Many American Indians (especially those who reside on reservations) live in-between. They are simultaneously separate from and a part of the United States. Legally, physically, and to an extent culturally, reservations are independent entities. Yet still they are influenced and surrounded by the United States. This tension between separation and inclusion and a sense of incomplete independence play a large part in American Indian identity and experience. Often, it manifests in legal misunderstandings and conflicts.

According to the Bureau of Indian AffairsBureau of Indian Affairs, the U.S. government treats tribes as “sovereigns,” with their own set of laws. From about 1778 to 1871, the U.S. government created many treaties with American Indian tribes. These treaties “recognized and established unique sets of rights, benefits, and conditions for the treaty-making tribes.” [2] As a result, the federal and state governments do not have authority over tribal governments. Tribes are governed by officials, often elected, whose roles include assuring members adhere to tribal laws (and punishing those who do not), regulating property and inheritance, and defining who can and cannot be a member of the tribe. But, as with many things, the situation is much more complicated than this. Legally and culturally, American Indians live both as tribal and U.S. citizens. Although sovereign, many tribes do not have complete and total power or independence.

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Author Louise Erdrich

In her book, The Round House, Louise Erdrich explores these themes of separation and inclusion, particularly in relation to the law. The main character, a 13-year-old boy named Joe lives on an Ojibwe reservation in North Dakota with his father, the tribe’s judge, and his mother, who works as a tribal enrollment officer. As the son of two members of the tribal government, Joe is surrounded by and fascinated with the law. Early in the book, he sneaks into his father’s study to examine the Handbook of Federal Indian Law. Joe feels empowered by the treaties outlined in the book saying, “The grandeur and power my Mooshum talked about wasn’t entirely lost, as it was, at least to some degree I meant to know, still protected by the law.” [3] Retaining sovereignty and independence served as a way to carry on the traditions of his culture.

However, throughout the book, Joe’s faith in the law is repeatedly shaken. After reviewing his father’s cases, he is shocked to find one addressing the potential theft of 15-cent washers. He asks, “For what had Felix S. Cohen written his Handbook? Where was the greatness? The drama? The respect? All of the cases my father judged were nearly as small, as ridiculous, as petty.” [4] Joe becomes even more jaded with the justice system when it fails his family. His mother is brutally raped, but since she cannot remember whether the crime was committed on tribal or federal land, her attacker walks free. This small technicality ensures that Joe’s mother will not have justice. The tribe’s lack of total legal power caused the criminal to be released. This fact frustrates Joe and his father, who has the power to punish hot dog thieves but not the man who raped his wife. Anger and vengeance tear at Joe, until he bypasses the law to deal with his mother’s rapist himself.

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American Indian Activists at an Idle No More protest for Indigenous sovereignty

Again at the center of this conflict is a sense of incomplete sovereignty. Joe’s tribe has power to an extent, but not when it truly matters. This flawed situation raises the question of, Who really has the power? When the state government frees the attacker, there is nothing Joe or his family can do legally. So who truly has the ability to dictate and enforce right and wrong? Who has the ability to say when a case must be dropped? Although the U.S. government has in some ways honored the treaties promising sovereignty to American Indian tribes, how much power do the tribes really have?

Although a work of fiction, the crime (and lack of punishment) depicted is very real. In her afterword, Erdrich shares the horrifying statistic that at least “1 in 3 Native women will be raped in her life…86 percent of rapes and sexual assaults upon Native women are perpetrated by non-Native men; few are prosecuted.” [5] The law fails these women every time it allows their attackers to walk free. Erdrich’s book is a plea for sovereign justice, to give the tribes back true power to punish the crimes against them. It is a plea for the U.S. to live up to their promises and truly honor sovereignty. And it is a plea that must be answered.

Sources:

[1] Dunham, Mike, “Feds tell Native Alaskan artist his art violates Migratory Bird Treaty Act.” The Anchorage Daily News, October 16, 2012, http://www.mcclatchydc.com/news/nation-world/national/article24738778.html.

[2] “Frequently Asked Questions.” US Department Of The Interior, Bureau of Indian Affairs, http://www.bia.gov/FAQs/.

[3] Erdrich, Louise. The Round House. (New York: HarperCollins Publishers, 2013), p. 2.

[4] Erdrich, Louise. The Round House. (New York: HarperCollins Publishers, 2013), p. 48.

[5] Erdrich, Louise. The Round House. (New York: HarperCollins Publishers, 2013), p. 319.

 

Photos:

Idle No More Vallejo by Daniela Kantorova: bit.ly/1TC0Dgn

Idle No More Vallejo by Daniela Kantorova: bit.ly/1oC1EYK

Louise Erdrich by wikicommons user slowking4: https://commons.wikimedia.org/wiki/File:Louise_erdrich_8199.jpg

14 thoughts on “Incomplete Independence: American Indians and Tribal Law

  1. This provides a great legal background to the book. Reading this in conjunction with Mikaela’s post about objects made me think about how relatively recently it was that NAGPRA was passed, giving American Indians a very belated opportunity to protect their sovereignty over artifacts of great cultural and personal significance. It also reminds me of Minik Wallace’s powerlessness in “Give Me My Father’s Body.”

    1. Kate, I too thought about Minik’s story this week, and the atrocities that were perpetrated on indigenous peoples in the early 20th century. However, reading this week’s posts have shown how far is still left to go when it comes to the law and the rights of Native Americans. Christine, you bring to light some important points in you post, particularly highlighting the importance of location. I think this plays not only into legal jurisdiction but identity as well.

  2. Christine, I think you’ve done a great job at explaining the challenges Native Americans face on a daily basis. Your discussion on living a life in between the United States and their tribe/nation/group really speaks to the predominant theme of The Roundhouse.

  3. Christine, I think that your post is a great window into the legal complications that face Native communities on a regular basis. I also like that you provided the example of Archie Cavanaugh, who is from the northwest, as our readings for this week mostly focused on reservations in the Dakotas region. His example also goes to show that legal issues can range from the very scary topics discussed in The Round House, like rape and domestic violence, to seemingly harmless pursuits, such as Mr. Cavanaugh’s art. The complicated dynamic between tribal custom and U.S. law is really all-encompassing.

  4. Great post! Your examples and reference to The Roundhouse really make it clear how difficult this incomplete sovereignty truly is. I have never really stopped to think about the legal challenges between reservations and the United States Federal Government. Like you mention, the statistics that Erdrich provides at the end of the book were not only horrifying, but really highlight how inadequate the justice system is.

  5. The statistic that 1 in 3 Native American women will be raped is truly staggering. Unfortunately it seems that the reason for the high number is the issue with legality, and who has the authority to bring the case to court– the Federal Government or the reservation court. Discussing “The Round House” in the context of sovereignty puts the novel into the larger perspective of the issues Native Americans are facing.

  6. You have done a fantastic job flushing out how recognized Native American tribes only retain partial autonomy. For a nation to truly be sovereign, it should have full legal jurisdiction over its people and its lands. The fact that Lark got away with rape shows all too well how the American legal system favors white Americans over Native Americans.

  7. In museums we rightfully talk about the importance of NAGPRA. However, it seems that beyond artifacts being acquired unlawfully and treated disrespectfully, Native peoples are also not fully protected in the U.S. legal system. I wonder if museums’ involvement in Native American history shouldn’t go past collections and also focus on illuminating the flaws in systems of government that have allowed Native American’s to suffer in the ways that you have pointed out?

  8. It’s horrifying how many gaps were left in the justice system here. It really shows the federal government just trying to make token gestures without considering or caring about the repercussions. I wonder how much of this had been fixed since?

  9. I think this post perfectly explains the conflict between the two law systems, since tribal land lies somewhere in a legal gray space they can’t extradite perpetrators to face consequences on tribal land. It prevents justice from happening and leaves the tribe vulnerable.

  10. Amazing legal background for the book. The statistics at the end are so powerful. I found the legal situation extremely frustrating in the book. Just because they couldn’t figure out which segment of whose land the rape was committed on, her rapist walked free, like so many other criminals involved with Native American victims. The fact that they knew he was guilty but walked free over a technicality is infuriating. Part of me wonders why they all couldn’t just agree on a punishment and leave it at that. Clearly changes still need to be made in the state of legal affairs concerning Native Americans.

  11. Christine, you shine a light on the difficult legal situation in this post. By pointing out the gaps within the justice system with the treatment of Native Americans we see how little power their own courts have. Also, how the federal government can pass laws that directly affect Native American communities without consulting the tribal leaders support your statement on incomplete sovereignty.

  12. Excellent post Christine, one that really raises the fascinating fact that Native Americans on this continent still exist within a vague, legal and jurisdictional limbo between their sovereignty and citizenship, which (as we have clearly seen), often is used against them. It speaks again to this sense of doubleness, this sense of living a fraught existence on a line between two (or more) incomplete unknowns, that has comprised the experience of so many people and groups we have explored this semester. Moreover, your post made me reflect further on the absolute silence around the position of Native Americans, and of the potentiality of addressing this legal incertitude. In this, an election year, there is no discussion of any of these issues, and while it might be cynical to say we might not have expected it, it does not change the need and urgency of such discussions. Perhaps through small efforts, as Antone looked to execute in his capacity, small steps can be taken. But it is a conversation whose large-scale participation is long overdue.

  13. I appreciate that you went into detail about how tribal law works and is set up. I figured most of it out through the Round House, but having it laid out in one paragraph was very helpful. While reading the book I came to the same conclusion you did, Joe was very unsatisfied with the “law” his father was able to practice. I also thought the conversation Joe and his father had about why his father continued to practice law was very insightful and a reminder why 15 cent washers and hot dog thief trials were small victories in moving towards a law that truly worked within the tribal land.

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