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.”  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.”  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.
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.”  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.”  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.
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.”  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.
 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.
 “Frequently Asked Questions.” US Department Of The Interior, Bureau of Indian Affairs, http://www.bia.gov/FAQs/.
 Erdrich, Louise. The Round House. (New York: HarperCollins Publishers, 2013), p. 2.
 Erdrich, Louise. The Round House. (New York: HarperCollins Publishers, 2013), p. 48.
 Erdrich, Louise. The Round House. (New York: HarperCollins Publishers, 2013), p. 319.
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