The Inadequate Native American Judiciary System
and The Environmental Effects of Poorly Operated Tribal Courts
In the past thirty years, there has been a major continent-wide push for increased environmental protection. Most of this push is largely attributed to laws and measures passed in the government to correct these environmental problems, such as unclean air, acid rain, deforestation, pollution, and the greenhouse effect.
The Native Americans are trying to combat these problems as much or more than anyone in this country. However, as these problems must be addressed through proper legislative channels, unfortunately, the inadequate funding allotted to Native American tribal courts, by deteriorating their effectiveness and efficiency, constitutes not only serious environmental damage, but it also sets a grave tone for increasing cultural abuse.
Initially, of course, the Native Americans had sovereignty over their judicial system. This was proven by the Ex parte Crow Dog ruling, where an Indian man named Crow Dog killed an adversary named Spotted Tail at a tribal council meeting in 1881. Originally tried and sentenced to death for murder, Crow Dog was released by Ex parte, which stated that U.S. courts had no jurisdiction over Indian affairs on reservation land (Hagan 92).
Outrage over Crow Dog lead to the passing of the Major Crimes Act of 1885, which gave Federal Courts jurisdiction over seven major crimes committed by Native Americans, which has today increased to fourteen crimes (Hagan 98). There is no local jurisdiction of any of the crimes granted by the act. Empirically, the act has been shown to punish crimes committed by Indians and pass legislation according to Anglo-American laws and values rather than traditional Indian customs. It would seem, however, if the bill or case was not defined by federal law, that it would fall back to the Indian court system, but the Major Crimes Act provides that if it is not so defined, it will fall into state jurisdiction. Here, it is seen that the act moderately denies Native Americans control over their own tribal judicial system (Polashuk 1204).
Although Congress provides for federal jurisdiction over many of these tribal judicial cases, because of a backlog of crimes committed off the reservation by non-Indians or legislation dealing with non-Indian environmental issues – often reaching back several years – they are considered a low priority. Testimony at congressional hearings has even revealed that such federal jurisdiction of Native American judicial activity has been wholly inadequate (Meisner 181).
Because American culture is ignorant of Indian cultural values and social norms, legislature and jurisdiction through federal channels are most often completely inappropriate. (Polashuk 1210). Congress has concluded that Indian tribes, proposed then as sovereign governments, must have a vital interest in decisions which have to do with their environment. The U.S. has a direct interest in promoting environmental legislation to further its cause—it is a critical link to the tribes’ existence (Polashuk 1221).
There is always an inherent problem in considering any government for increased sovereignty who is part of a distinct group. Not only are the people of American Indian tribes of a different race than the rest of society, they have completely different lifestyles and places of residence than of the American norms. This often causes both racial tension and cultural clash—there are some areas of the West where this tension has risen to “extreme levels.” (Polashuk 1213).
So, how to provide a Native American with a fair trial? How to pass a resolution on a reservation that will properly deal with the environmental problems there? The answer lies in the tribal courts, who possess the traditional knowledge to properly discipline their members and pass and judge environmental bills. The primary reason that the tribal court system is not currently used is that it cannot fully carry out its services. This, however, is a problem of lack of funding—not any inherent functional flaw within the system (Burch 977).
Lack of funding is a problem for the Native American judiciary system—this absence of resources undermines the whole tribal government. Without proper funds, the tribal court systems cannot attain the competent personnel to properly staff a standard legal system. Tribal governments as a whole are similar to the American three-branch system. Without the judiciary system working, legislative and executive attempts to perform proper initiatives dealing with environmental protection always fall short because of this judicial defect (Vicenti 140).
A large tide of American culture is sweeping across the Indian reservations, replacing traditional tribal customs with non-Indian values and methods. Along with environmental protection methods, Indian tribal culture itself is in a crisis. To fight this, almost every reservation now has educated Indian people who struggle to stop the invasion. These experts almost unanimously agree that among the primary steps in this cultural and environmental fight is restoring a traditional tribal justice system (Vicenti 135).
It is not at all improbable that the worst abuse of indigenous peoples worldwide has taken place in the United States of America. The U.S. has, for more than a century, aggressively pursued policies of cultural assimilation and degradation. Additionally, the United States has just as long held a haughty cultural arrogance regarding Native Americans, which essentially denies the Indians the recognition to begin healing themselves. Something as serious as even moderately denying American Indians jurisdiction over their tribes most definitely results in cultural abuse (Barsh Interview). Cultural abuse in this form, by disallowing the proper function of the tribal judicial branches, considerably hampers further environmental protection.
Not only do Indian cultures have the right to exist and prosper in the U.S., they also have a great amount of values and wisdom to share with the other peoples and cultures of the Earth (Suagee 696). Thus, American Indian tribal culture needs to be preserved. There is, of course, an inherent value of culture itself, but Native American wisdom is extremely important and valuable. In fact, each different tribe has its own reservoir of ancestral wisdom, springing from the knowledge and experience of generations upon generations of ancestors. Not only does this loss of Native American wisdom result from the loss of tribal judicial control, it constitutes the loss of knowledge of proper environmental care, evidenced by the condition of the environment when Columbus arrived in the New World. However, this priceless wisdom and knowledge can easily be lost—it is only by keeping the tribal traditions alive through the use of traditional tribal judicial courts will we and future generations be blessed with this wisdom (Suagee 708).
In addition to giving jurisdiction to the tribal courts, the Federal Government must recognize them as legitimate judiciary units. The United States officially supports tribal sovereignty—the tribal court systems are, essentially, the backbone of that sovereignty. In order to further advance their official position, the U.S. Government must recognize the legitimacy of these tribal courts. Likewise, this recognition, which will allow further measures relating to the environment to be introduced and pursued, will lead to both an increased survival of the tribal culture and greater environmental improvement (Polashuk 1231).
Only one major obstacle stands in the way of altering the American Indian judicial policy—the Major Crimes Act (Polashuk 1204). Although the benefits of increasing the sovereignty of the Indian judicial system—from an environmental standpoint—are clearly shown by the evidence, a majority of the non-Indian population—especially those living in areas near reservations—who do not understand the positive impacts and advantages of traditional Indian judicial action will most definitely oppose any alteration of federal policy towards tribal courts. The Major Crimes Act was created by people such as these and will be inherently difficult to repeal or amend, as it has been in place for over a century (Hagan 99).
However, though any opposing legislation may be difficult to overcome, the benefits of this change are well worth the effort. First and foremost, the proposal will allow the legislative and executive branch to work more effectively and efficiently with the judicial branch to pass positive environmental resolutions. It also halts the cultural abuse given to American Indians by industrialized people and the U.S. Government, and allows the wisdom and knowledge of countless generations of Indian ancestors to be preserved. Furthermore, this beneficent treatment of our indigenous peoples will serve as a model for the treatment of indigenous peoples world-wide, preserving a incalculable amount of information for future generations on a global scale (Suagee 712).
Barsh, Russel (professor of Native American Studies).
Personal Interview. 3 March 1997.
Burch, Jordan (Clerk for Edward Rafeedie, Central
District of California, Los Angeles). Ohio
Northern University Law Review, Vol 20. p. 977. 1994.
Hagan. Indian Police and Judges, op. cit., p. 89-145.
Meisner, Kevin (Case Western Reserve University).
American Indian Law Review, Vol 2. p.
181-182. 17 December 1992.
Polashuk, Stacie. Southern California Law Review.
Vol 69. p. 1191-1232. 1996.
Suagee, Dean. University of Michigan Journal of
Law Reform. Vol 23. p. 671-715. Spring and
Vicenti, Carey (chief judge of Jicarilla Apache Tribe).
Judicature. p.135-141. Nov-Dec, 1995.