Notes from Indian Country
January 30, 2012
How can a tribal court be fair if the judges are afraid of losing their jobs? Therein lays the dilemma facing Native American tribal courts all around Indian country.
In 2007 a group of Sicangu ladies (Rosebud) formed a group they called Lakota Women for Change. They petitioned the Bureau of Indian Affairs to conduct a specially monitored election to oversee an election amending the Constitution of the Rosebud Sioux Tribe.
Seventy one percent of the RST voters approved Article XI that the tribal court is a “separate and distinct from the legislative and executive branches of the tribal government.” One distinguished law professor wrote in 2010 that the “Rosebud Sioux Tribe had “insured its legitimacy by adopting Article X1. The odd thing is that the RST has never fully adopted this amendment to their Constitution.
As a portion of the new amendments the election also set a time limit on the tribal council members to two consecutive terms in office. Now mind you, this was a legal amendment to the RST Constitution. A law to be obeyed? Not at Rosebud because despite the amendment setting time limits to terms in office a member of that august body ran for and was elected to his third consecutive term in office.
There is fear among some members of the Rosebud community that this Constitutional amendment will be ignored in total when the next election comes around because several council members, including the office of tribal president, will face term limits in the 2012 elections and may decide to follow the example of the council representative now serving his third term and completely ignore the Constitutional amendment. In this case the Rosebud Supreme Court ruled orally that it would not be fair to enforce the term limits. The RST Supreme Court ignored the voices of the people who voted for the Constitutional amendment on term limits.
This presents an odd situation for the Rosebud Sioux Tribe. The 20 elected members of the tribal council and the four elected officers can only stay in power if they ignore the Constitutional amendment blocking them from more than two terms in office. The Tribal Court judges are selected by a Judiciary Committee that is appointed by the Tribal Council. In other words, the jobs of the judges are in the hands of the Tribal Council and few people, if any, can recall the last time the Rosebud Tribe or a Tribal official lost a case in Rosebud Tribal Court.
The big problem is one that was overlooked by legal scholars and a BIA wearing blinders: The Rosebud Tribal Council refused to implement the decision of the voters for an independent tribal court.
According to the dictates of the Indian Reorganization Act of 1934, the authenticity of tribal constitutions is the law of the land.
One tribal official described it this way; “In 2008 at least 217 criminal cases were dismissed at the demand of the Rosebud Judiciary Committee because the arresting officers had not properly renewed their certification under a tribal ordinance. The lesson is clear, if minor failure to comply with a tribal ordinance leads to a dismissal of criminal cases, what is the obvious remedy for blatant violation of the Rosebud Constitution?”
There are those members of the Rosebud Sioux Tribe who see no effective remedy. They fear that during the next election more council members will be elected to serve third consecutive terms in direct violation of the Rosebud Constitution.
Todd County (home of the Rosebud Reservation) beat out Shannon County (home of the Pine Ridge Reservation) as the second poorest county in America. Shannon County came in a very close third. Rosebud receives an estimated $150 million annually from the federal government to sustain a variety of tribal programs including the judiciary.
When tribal governments ignore the dictates of their own Constitutions, and this is happening at Pine Ridge also, they also ignore the rights of their own people. Constitutions are written by the people for the people and they are the foundation of legitimate governments.
Every tribal member should ask for a copy of their tribal Constitution. Read it and memorize it because those Constitutions are the basis of your freedom and rights. A tribal judge is only as strong as his or her fear of losing a job because of conflict with the tribal council.
If the tribal council is also the boss over the tribal judges they also have the right to fire them at will. This is exactly the thing the Lakota Women for Change had in mind when they brought this touchy issue to an election to get it changed. Remember, 71 percent of the Rosebud voters approved the change. Does the RST Supreme Court have the authority to overrule the Constitution of the tribe?
One RST members said that the problem is not the Indian people: The problem is the Indian government.
Tim Giago, an Oglala Lakota, is President of Unity South Dakota. He was a Nieman Fellow at Harvard with the Class of 1990. His weekly column won the H. L. Mencken Award in 1985. He was the founder of The Lakota Times, Indian Country Today, Lakota Journal and Native Sun News. He can be reached at UnitySoDak1@knology.net