Attorneys Campaign to End Civil Rights Abuses in Tribal Legal Systems

After persistent reports of civil rights abuses by Indian tribal governments, federal attorneys are quietly pressing to close loopholes that deny constitutional protection to Indians on reservations.

“We have complaints of people who have lost property or liberty without due process,” Brian Miller, counsel for the U.S. Civil Rights Commission, said in an interview. “We have evidence of undue influence on judges.”

He said the commission would hold hearings this week in nearby Flagstaff, then prepare a report for the White House including evidence from four previous hearings held around the country since August, 1986.

The new hearings will focus on the Navajo, the largest Indian tribe, but complaints come from many of the nation’s 260 reservations, Miller said.

Meanwhile, the Justice Department is seeking an amendment to the 1968 Indian Civil Rights Act that would allow federal courts to review civil rights decisions taken by Indian tribal courts.

“We see a lack of checks built into the tribal government process,” said James Schermerhorn, attorney for the Justice Department. “Violations are continuing, hence the need for federal review.”

Abuse, Favoritism

Miller and Schermerhorn said they had received widespread allegations of election abuse and favoritism based on political or blood loyalties.

In interviews on reservations, Indians who described themselves as victims and private lawyers repeatedly likened the tribal governments to small “dictatorships” or “police states.”

Stephen Pevar, a professor of Indian law at Denver University, asked to comment on tribal governments he had visited, replied: “The situation is an abomination.”

Dennis Ickes, former deputy undersecretary of the Interior and an Indian law specialist in Salt Lake City, told the Civil Rights Commission earlier this year: “This is our Gaza Strip.”

He said tribal members are second-class citizens because “they have no recourse to a judicial system that is not subordinate to the tribe’s political body.”

The issue is fiercely controversial because is revolves around Indian sovereignty, established in a series of laws since reservations were established in the last century.

All 1.37 million Indians have U.S. citizenship, but in 1978 the Supreme Court determined that tribal courts had the final word on civil rights cases for the 332,000 Indians living on reservations.

One problem, federal lawyers contend, is that Indian judicial systems are often rudimentary and vulnerable to pressure from tribal authorities.

As a result, they say, a strong tribal chairman amounts to president, chief justice and speaker of the House and is in a position to control his own reelection.

Only 2 Law Degrees

In the Navajo system, generally regarded as the best among tribal courts, only two of 14 judges have law degrees, and no tribal constitution sets out a separation of powers.

Peter MacDonald, chairman of the 200,000-member tribe, told the Associated Press that federal court appeal would violate Indians’ sovereign status.

He acknowledged that he was the final authority in the Navajo Nation. “It is an awful responsibility for one man,” he said, “but it is in our customs and traditions.”

Former Navajo chairman Peterson Zah, locked in a legal dispute over what he calls arbitrary actions by MacDonald, takes a different view.

“I am against the idea (of federal court appeal) because it diminishes the sovereignty of Indians,” he said. “But this government’s actions have made it necessary. We will suffer, but we have no choice.”

One witness expected to testify to the commission is Robert Walters, a Navajo judge fired by the tribal government. He said in an interview that judges are controlled by threats.

“It is not a free country up there,” he said. “It is a socialistic state. They tell you what to do.”

Problems are general throughout much of Indian country, said Butch O’Neal, an Indian development consultant and a Sioux who lives on the Navajo reservation.

“It is scary when you think of it,” he said. “If you anger someone, your whole family suffers. If deprived of property or anything else, you have nowhere to go beyond the tribe.”

O’Neal left his job as director of the Crownpoint, N.M., Institute of Technology when Peter MacDonald took over as Navajo chairman in 1986 because, O’Neal said, he expected to be forced out for political reasons.

“When (U.S.) presidents go, a lot of people lose their jobs, but not the secretaries and janitors,” he said. “Here everyone can get nailed.”

In January, Assistant Atty. Gen. John Bolton wrote to the Senate Select Committee on Indian Affairs about “serious tribal deficiencies in applying and enforcing” the Indian Civil Rights Act.

More recently, Justice Department officials have been preparing a memo to Congress requesting legislation to allow federal review.

Bolton’s letter cited testimony from commission hearings at Rapid City, S.D., in August of 1986, that alleged flagrant abuse on several Northern Plains reservations.

Former Chief Judge Trudell Guerue of the Rosebud Sioux in South Dakota said that in one 5-month period prior to the hearings, he found more than 300 people arrested but not brought to court.

“We had people who’d stay in jail for 10 days without charges being filed,” he said.

Testified Against Self

Ray Springer, a former Cheyenne River Sioux police officer, testified that he was forced to be a witness against himself in a tribal court: “If you’re politically in, you’re probably all right,” he said. “(Otherwise) it runs right between fear and horror and just total awe in the people.”

Indians are divided sharply on federal court review.

One proponent is Charley John, one of two judges MacDonald fired in 1978 after they refused to allow him to use $70,000 to pay F. Lee Bailey for defending him against an Internal Revenue Service audit.

“Most of the (tribal) judges are fearful,” he said. “I think one good case brought before federal courts would put the fear of accountability back into tribal government.”

Another Navajo former judge, Tonny Bowman, told his non-Indian interviewer: “You have more rights on a reservation than Indians do.”

But John Chapela, a lawyer dismissed as head of the Navajo Housing Authority with the change in leadership, said: “I would benefit personally, but Indians would be the losers. We must settle these things ourselves.”

Chapela argues that the Navajo should adopt a constitution, allowing them an effective recall process.

A sampling of private attorneys with experience in Indian law showed widespread if reluctant sympathy for at least a limited form of a federal review.

Richard Hughes, a former Indian legal aid attorney now practicing in Albuquerque, N.M., said: “Suppression of political dissent is the way of life” with many tribes. “That kind of problem is what gives rise to the critical civil rights issues.”

Attorneys pressing for federal court review complain of resistance from the Senate Indian Affairs committee and the Bureau of Indian Affairs, which they allege are interested is preserving the status quo.

‘Iron Triangle’

Some of the attorneys refer to the entrenched posture of the Senate committee, the BIA and tribal governments as “the iron triangle.” The result, they say, is that Indians suffer at Indian hands.

But officials who oppose federal review argue that Indians should be left alone to run their tribes.

Sen. Daniel K. Inouye (D-Hawaii), chairman of the Senate committee, repeatedly criticizes what he calls the imposition of unsuccessful solutions on Indians.

“We are convinced that the solutions are in Indian Country,” he told a group of tribal leaders last fall in Miami. “It’s about time Indians decided on how to solve their own problems.”