Ruffled feathers: The Dakota Sioux; Sioux legal systems

This program was produced by our national educational radio under a grant from the National Home Library Foundation and was compiled through the subtleties of the radio at the University of South Dakota. This is a story of ruffled feathers. The Lakota Sioux in transition. This is the 11 when a series of programs dealing with the Dakota or Sioux Indians in South Dakota to date we have dealt with history culture religion education and economics as they pertain to the Dakota Indians. This program is concerned with the governmental and judicial organization among the Indian people on the reservations in South Dakota long before the Indians came into contact with the traitor the settler or the army. The Indian people had a very carefully developed system of law and order. Well in the old days the Plains Indians really had effective

systems of law with the warrior societies acting as police. Now the warrior societies were clubs and every adult man belonged to one or another might be the shield soldiers the Buffalo Soldiers the fox soldiers. The elks soldiers each one of these clubs had its own ceremonies and dances. But during the summer particularly in each year when the sun dance was performed the club of the person who was sponsoring the Sundance became the police for that summer. And they had the responsibility of policing the dance when it was in progress and a policing the buffalo hunt that followed it and of generally looking after law and order in the tribe. The actual trial of individuals would ordinarily be carried out by the peace chiefs. This is

one thing that's quite interesting. The American Indians almost in every instance had two types of Chiefs. The peace chiefs normally called the tribal chiefs. We call them civil chiefs like the governor and the military chiefs the generals and the military chiefs where the officers heading up the warrior societies the peace chiefs were usually order man with reputations of being able to settle quarrels. They would then determine whether or not the individual was guilty of violating the law. And then they would put it up to the military society that was in charge of policing for that summer to see to it that the sentence was carried out. This was the ordinary way of doing it so the tribes were not disorderly. As a matter of fact one of my old Cheyanne friends put it quite nicely. I was concentrating on the study of old Cheyanne law and he was bothered by

the questions that I was asking because they seemed to be emphasizing disorder and trouble but I was interested in what was done about trouble and he finally got the notion and then one day when you're out on Lame Deer Creek at lunch time we're just sitting there and he said well the Indian on the prairie before there was the white man to put him in the guard house had to have something to keep him from doing wrong. And this was it. He did have something to keep him from doing wrong he had his own policing and his own law enforcement system and it was very effective in the old days. The punishment of the offender in the traditional Dakota culture was usually by nature of goods. You know for instance one man damaged another's property he might be made to pay for his damage in horses or animal pelts or some other such payment. This is very much like the fines inflicted in contemporary courts. You have however the aggression by one party upon another was of a very serious nature. The punishment was more severe let's say that someone had learned one of these young people

if they don't have to custom. Ha the good of gathering a big log cabin I have committed and you know you have that if you find the time you have to go out in the wilderness. That was the best way you can. If you can't show that you are there and come back you'll come back and have a good time I think that's what I would think that if anything it's good they threw it at a home and they could give it back to me and I think that that's one way. In some respects the enforcement of law upon the reservation lands was not changed to any great extent from when the Indians roamed the vast Dakota prairie's the Indians are unique in this modern society in that they have a separate legal system from the rest of the state. Here we have our own tribal tribal court our law system a legal system where the law enforcement is done by a

tribal police and FBI police we have tribal judges and we also have a judge. He is well used to be I guess he may be paid by to be but he is the chief judge he's a non-Indian Mr D from MA When are you loyal there. But we have our I guess a unique guy I guess is unique in a way. But here again we're just the laws. It's the same laws of having as they have in a state such as speeding and reckless driving all that stuff. It's we have the same thing here and not on a reservation. Not only that but we're governed by you or some of the laws here are the law enforcement officers such as the. Highway Patrol has the authority to come on a reservation. It's really it's really a joint effort between the tribal council or the Rosebud Sioux tribe and the state to make this thing work.

There was Cleveland scribing law enforcement organization of rosebuds South Dakota Kerman describes the type of organization found on the Pine Ridge Reservation. We have yeah. Each tribe has its own tribal codes that govern the legal operations on the reservation. Currently however work is being done to expand the tribal codes and also to clarify them. Professor Oliver layman of the University of South Dakota School of Law and his staff are working on a project which is attempting to bring about the creation of a more complete set of codes for the use of the Indians on the South Dakota reservations. Professor layman has explained that the purpose of the project is very simply to give the Indians a more up to date code in an attempt to do this his staff

endeavored to compile a collection of attitudes onto South Dakota's reservations. The Lower Brule and Crow Creek reservations although the average Indian has in the study indicated a desire for a change in the tribal codes. He has little to offer as to just what should be changed the codes that most of the reservations operate under have been unchanged since they were adopted as part of the Wheeler Howard or Indian Reorganization Act of 1934. They were at that time of necessity simple. Unfortunately they have remained relatively unchanged to this time. The tribal codes are characterized by an almost complete lack of provisions dealing with civil law and concern themselves with criminal law. The proposed code will have specific provisions in all areas of civil law in addition to clarifying and expanding the present criminal law codes. The study headed by Professor Lehmann is being carefully carried out and should be in complete form within the next year. Drs will then be able to decide whether they want to accept the new revised codes accept only part of them or completely reject them. The acceptance or rejection of the codes will probably not be noticed very much by the Indian who does not concern

himself with the issue. Since the Indians as a general rule do not understand the general concept of law as fostered in our society as has been mentioned the reservations have their own self-contained legal units both police and courts. There is one thing that the tribal court cannot do here and that's try and Ananya if a person is picked up there for maybe drunken driving or some place will pick them up and hold him for the county officials to come or where the deputy sheriff and then they transport him back to mission or maybe to enter for a court. The problem of having Indians go through tribal court or federal court and non-Indians only through city county or state court in most instances. I was brought about in recent years a move to have the state of South Dakota assume legal jurisdiction on the Indian reservations. This would eliminate the problem of two parallel court systems. The Indian people did not support the proposed change in the change I wanted. That was when it was that the BSI police and. The tribal police be put away and

the tribe or the rosebuds who tribe or the Rosebud Reservation going to the jurisdiction of the state. And there's a great many reasons why the people didn't want. You might or might not have be properly protected. It's stands to reason you take up a perfect place as large as a reservation. And. Tried to put it under the jurisdiction of the state. You've got problems right now not only for the in themselves or the individuals but for the state because in order to supply law enforcement officers for the size of the places size of this nation are going to have to probably raise taxes in a state where you have to appropriate money to pay for these law enforcement officers. If you get one sheriff or deputy sheriff and station and say let's play someplace and mission and if something happens in maybe spring creek. Which is 30 35 miles away. These people have doubted what's going to happen if we have just only one law for a law enforcement officer. What's going to happen if there's

something some crime is committed on here or if we need protection or help of some kind. Alison can this magnet. Not only sprinklers but he has a large area to protect or to take care of or some place to enforce the law and this question's been asked and dances. Why cannot why can't the communities themselves. Supply their own policeman. By this I just wasn't brought up. To me I think by. Several on an internet NG but here again. If a if a person or place does not have. The funds to hire their own a law enforcement officer. Then you are going to have law enforcement. You just like you take a community maybe. A small community maybe outside the reservation in a state even and. You're not going to find adequate protection or more police protection if you can't afford to pay a man if man's and one voluntary basis to do things like this and is just dance reason that you might not do you may you may but again you'd probably not get the

protection you really need the Dakota people united in a drive against a drug addiction on the reservations. And there were a few main contentions upon which they base their opposition. One was the question about a quick production Jake Herman espouses another that I think that the fake had no jurisdiction here. We didn't feel like we should be given something that people don't know about. We thought like that that a younger generation come up with one name on it and all I think when you think of all I think you know at the time. But you will never feel that way again. One of the reasons we're assuming jurisdiction on the reservation seems to be simply that the state does not now have that opportunity and many legislators felt it was necessary. The state has no jurisdiction whatsoever except for

I think there maybe they may have some just action powers insofar as in pursuit of someone on a state highway going that was made travel to the reservation. Other than that there has not been any powers. The state does not have any powers at all and reservation obviously in the interests of legal expediency the state would like the convenience of the right of jurisdiction with regards to Indian reservations. However the Indian demand for adequate protection carries with it the added financial responsibility on the part of the state. Well I think this is primarily a distrust of the people of having a state take over jurisdiction primarily because I do not think they have not seen any indication of the state legislature of assuming those same law and order the costs of law and order which the federal government now contributes. I just don't think the less the state will provide funds and continue the same the amount of law enforcement which is now present on the reservation. I don't I

don't feel that jurisdiction would be of much value because it just would not be enough law enforcement which is needed on overall basis to properly carry out the laws and codes that the tribes have. Perhaps the idea of a parallel court system and a hassle over jurisdiction seems rather silly in this land where everyone is supposed to have equal protection of the same laws. The Indian situation grew out of the formulation of government policies and dealing with the Indian people. When the Indians were originally dealt with they were dealt with through treaties and they were concerned they were considered to be sovereign nations because of land area and their own legal system which they had at the time which is much different then which was much different I suppose than what we had today. What we have today is what we consider the legal system if a particular members of the tribe do not like the rules and laws and whatnot that the tribal chieftains would would set down they had the very obvious alternative of just leaving the tribe and going somewhere else. But once the year

in his report on the reservation they were given the they were given the legal codes and laws of the of the white populace and as a consequence are legal. Status was somewhat changed they were not. They were no longer dealt with as independent sovereign nations or. Or anything of that sort they were dealt with through legislative action. As a consequence the as considered as wards of the government they were dealt with through legislative acts. In this sense they no longer had the opportunity to determine what rules and regulations that they were to follow. The current situation has been brought about by the policy of the government many times modified but never really changed in dealing with the Indian people. They have been considered separately under the jurisdiction of the federal government and apart from the state their outdated codes may soon be brought up to date until the state can solve at least the financial problems of assuming legal jurisdiction over the reservations. The status quo will continue in its present form. Richard

Brown of the University of South Dakota provides a brief summary of the government's actions with regard to the Indians and their governmental proceedings. He begins with the Dawes Act of 1877 but the Dawes Act actually did was to take. Indian lands instead of an entire reservation system and divide it up into allotments and instead of a tribal property being one total let's say of a hundred thousand acres it divided up into maybe a thousand acre allotments and divided this amongst the tribal families. And as a part of this allotment system the tribes the families were unable to sell the land when they wanted to. And as a consequence many of the Indians who were not the land was basically used for agricultural purposes and as a consequence many of the Indians and particularly the Sioux Indians that we have in South Dakota were nomadic hunters were not farmers. And so while they couldn't produce the goods which they needed but had become depended upon through the federal government because of the reservation system initially most of them sold their way and needed cash. And as a consequence

by this most there was a 90 1 million acres of land was lost and nine ninety thousand Indians were landless by 1933. But another aspect of the Dawes Act was that the act conferred citizenship on the unions. Those Indian to renounce their tribal allegiance and that by doing so by and renouncing their tribal legions they would receive these allotments and one of the some of the results I suppose a person could say of the Dawes Act was that it totally destroyed for the most part Indian social and political forms of government which were traditionally Indian and tried to completely break down the Indian cultural social system so that they could more easily assimilate into the white the nonunion or the whites for the most part this. This policy has been regarded as a failure from eighteen eighty seven to 1930 after 47 years under a policy set up in the Dawes Act an attempt was made to implement a

successful policy in regard to the Indians in the 1930s. The government realizing that the assimilation was not going to take place because the unions recovering more wards in under the paternalistic policy of the government could not. Make a go of their own because they just were not either skilled or particularly had the interest of becoming farmers which the which the allotment act was attempting to make them. So in 1934 as a result of a study done the Congress passed the real Howard act which is better known I think to most people as the Indian Reorganization Act of 1934. This was mostly the result of an increased government concern for the social economic and political development of the Indian people and of the Indian population. For the most part the IRA did it did a number of things I'll try to list just a few of these briefly. First I did away with the

allotment system that was set up because of the Dawes Act and it also provided for acquisition of additional lands by the tribes and individuals that is the land which was lost because of the individual allotment which is set up by the initial general allotment Act of 1887. I think the most important important leave this act permitted tribes on reservations to adopt self-governing constitutions by majority vote of those who are members of the tribe enabling from the enabling legislation for them to set up self governing bodies that set up a tribal councils. On the reservations which had a number of powers there are critics of the Indian Reorganization Act who maintain that the act inhibits rather than catalyzes the process of assimilation in that it encourages segregation of Indians into governmental units. The Act to provide for a governmental unit at each reservation the governing bodies are known as tribal governments and travel governments revolve around what is known as tribal councils tribal governments are primarily responsible to the federal government in much the same

matter as a county. I mean it's a pally is responsible to the state government which granted it its powers and so tribal government set up through the Indian Reorganization Act has enabled the Indian people to now have their own governing body re-establish some sort of political stability on the reservation which the Indian people themselves can elect representatives and the tribal council serves as. The governing body representing the Indian people they have contact with the state government federal government and local local and municipal governments. Americans pride themselves on their interest in their governments on the many levels by participation in the political arena voting and whatnot. People may assume that because of the motivational problems many Indians face that the Indian would not be active politically. The Department of Government at the University of South Dakota undertook a study recently that examined the political activity on the reservation. I think one of the conclusions is which could be for both Pine Ridge and Rosebud which I'm most familiar is that there is a tremendous interest in the political activity

on the reservation and as a result I think the study showed that on the Pine Ridge Reservation there is more political instability. That is to say the outs are always trying to tear down those who are in and as a consequence it somewhat hurts the development of the reservation and her some of the programs which the administration which is in at that particular time is attempting to achieve. Now in contrast the Rosebud Reservation is somewhat more stable. Sense nine hundred sixty for instance Kate of Alondra who is the tribal president has been president and their elected tribal presidents by the way are elected for two year terms. The political system on Rosebud has had much more political stability than that in Pine Ridge. As a consequence they've been able to progress on their programs and projects which they've attempted to do such as housing and other tourism and recreation facilities and community and the attraction of industry have been they've been able have a carry through from one administration to another. All there are some changes within

the tribal council for the most part they remain relatively stable. All of the Tribal Councils powers are diverse. They fall into six general categories first Tribal Councils represent the tribes in their dealings with the federal state and local governments. The councils also can levy taxes in appropriate tribal monies and they can create subordinate boards or agencies for economic activities and other purposes purposes it deems necessary This would include some of the planning commissions. This would include housing authority in a number of other commissions which would fit into this category the councils also have the power of eminent domain and they can regulate the domestic relations the members of the tribe this would and this would include that they have a legal code they can. They can serve as a legal body for divorce suits and that things of that nature. The council also can provide for the maintenance of law and order and administration of justice in creating their own police and court systems. And this is a case on both reservations.

They have a tribal court system in which these they have a tribal judge rose but now they now have a regular lawyer who who is who is not an Indian who interprets the law. The particular legal status of the Indian the Indian reservations is such that they have total legal powers other than those covering the major crimes which are preempted by the federal government such as murder and robbery. It is perhaps hard to visualize the actual place of the reservation governmental unit. The Tribal Council when trying to relate it to the municipal county and state organizations that we are most generally used to tribal governments enjoy a high spot in the eyes of the federal government even though the courts decided over a century ago that the Indian nations were not sovereign independent nations but the federal government has continued to treat the Indian communities as near to separate entities as possible tribal governments have only those powers which the federal government has enable it to have and it is directly responsible to the federal government.

It does have some contact with the state government in the sense that maybe through welfare programs or most recently The 7 0 1 program which enables communities and. Poverty stricken areas and what not to set up particular planning programs for reservation development. That way they work through the state but they're not in any any way responsible to the state government. The tribal government may then work with the state government but is not in any way responsible to the state government with the exception of filing papers necessary to carry out state programs within the Indian community. The state government and the reservation government serve as objects of comparison I think for the most part they can be compared to most closely to state governments. In other words the state governments have those powers which are given to them or not taken away from them or not granted to them by the Constitution United States. The Indian tribal governments have those powers which the federal government has given to them through acts of Congress are not. Are not taken away from them or not given to them as specifically stated in particular

legislation. So I would I would say that the travel government and state governments tribal government can be most best compared to best comparable to state governments governmental provisions relating to political activity on the reservations are found in the Indian Reorganization Act of 1934. It was taken until relatively recently for the units of government provided for in that act to sufficiently develop and function to the benefit of the Indian people. These benefits are found in the planning commissions that have been set up on the reservations in the sixties. Now planning has for the most part always been done by the federal government through either the like we've mentioned previously the Dawes Act or the Indian Reorganization Act. But for the most part formal planning which my thesis is primarily concerned is has been done has been started only since 1960 and by comprehensive planning I mean a coordinated and orderly development of the reservation in three primary areas. These areas will be economic development social and cultural development and physical community development. Now the tribe

has the legal authority through the IRA act in the act which would follow that since 1934 to set up planning commissions and a tribal council as the legal governing body on the reservations have set up. Planning Commissions these commissions have been concerned with the economic social and cultural and community physical development on the reservations. Our examination of the governmental and legal units on the reservations has been far too brief to explain any more than the basis of organization and some of the very current activities in the two areas. Summarizing briefly the concepts mentioned today both the political and legal systems found today on the Indian reservations grew out of the government's policy toward the Indian people over the decades. Although the Indian peoples were viewed as a domestic problem rather than foreign governments they have been treated as a unique situation and have been placed under the jurisdiction of the federal government and only the federal government the duly constituted legislature of the state of South Dakota has

an option to assume jurisdiction on the Indian reservations. However there is opposition on the grounds that there would be an equitable differences between present and proposed practices on the reservations and that the state would not be able to assume the financial burden that such an act would create. The state would like to be able to assume jurisdiction to simplify legal problems and disputes with Indian parties and to facilitate a less complex law enforcement system but is not able to show that it would be able to assume law enforcement to the degree the federal government does now. The Wheeler Howard act or Indian Reorganization Act of 1934 allowed the Indians to set up their own governmental units called Tribal Councils the tribal councils are comparable to a state government and are responsible only to the federal government. Recently the tribal councils have formed planning commissions which work with the various federal and state agencies and work in the areas of economic and social development on the reservations the governmental legal system that the Indian people in South Dakota are associated with is very complex and in some ways very dated. The tribal codes may soon be revised expanded and updated

through work being done in the University of South Dakota School of Law next week ruffled feathers explores the differences between a life on or off the Indian reservation. I would like to thank Dr. E. Adams and whole regions professor of anthropology at the University of Minnesota Jay Kerman of Pine Ridge Cleveland this of Rosebud and Richard Brown of the University of South Dakota for information used on this program. This is Arlen Dimond speaking. With you good with ruffled feathers. The Dakota zoo in transition was produced through the facilities of KUSA the radio at the University of South Dakota. A grant from the National Home Library Foundation has made possible the production of this program for our national educational radio. This is the national educational radio network.