“From here to where the sun sets, I will fight no more forever.”
The immortal words of Chief Joseph set the final nail into the coffin of Native American freedom. From that historic moment onwards, the proud people which once inhabited this land have been chased, hounded onto reservations and stripped categoriÃ?Âcally of rights and due process. Those that resisted were imprisoned or executed. The results have been at best mixed.
Until recently, the vast majority of tribes confined to reservation lands have been granted little enough federal aid that subsistence is made problematic. The traditional means of survival among the Plains Indian, hunting, fishing and gathering of herbs and other minor vegetables, was eliminated almost immediately. Into its place came the conÃ?Âcept of farming, well-known to the Indians of the upper Northeast, and completely forÃ?Âeign to the ways of the Western nations. The lands that had for so long provided bison and horses with grazing did not readily provide sustenance to a group of inept farmers, and the continuously shrinking size of their horse herds, reservation area and rights threatened the tribes to the edge of extinction.
With the additional pressure placed on them by a Congress eager to divest the payroll of tribal subsidizing, some tribes turned to what natural resources they had available. Indians in the Oklahoma/Texas region often had extensive oil and natural gas beds under their reservations, but many of these tribes had been bilked of the mineral rights by unscrupulous speculators which took advantage of the Indian ignorance of the rights they were signing away. A few of the wealthier tribes were able to pursue their cases and many won judgments against the speculators and the companies which operÃ?Âated the drills. The poorer tribes could not pursue this course of action, and many watched the precious oil that could possibly have reinvigorated their economy flow into the collection vats of oil companies which had purchased the illicitly obtained rights.
Some few tribes utilized tourism and crafts in an attempt to make tribal ends meet. Fewer still were successful, the Navajo being a single notable exception. The effects of the Great Depression were exacerbated on the reservations, as a combination of drought and loss of tourism and scholarly research monies hammered the Midwest tribes. Additionally, as the reservations remained the central living situation (in many cases the only such) available to the Native Americans, relocation was generally not possible for the already poor Indians. With the advent of New Deal programs, local intransigence, bigotry and xenophobia caused the Indians to be denied access to the most profitable proÃ?Âgrams, or enrolled in extremely small numbers.
With the resurgence of gambling fever among Americans, coupled with the booming economy, many tribes realized a new possibility for overcoming their financial woes, the use of reservation-based casinos. Local reactions were mixed, some groups enjoying the Vegas-style gambling offered somewhat nearer to home, while others piÃ?Âously decried the evils of gambling or were angered at the thought of the Indians receivÃ?Âing the lion’s share of the profit, while only a tiny portion trickled back into the local economy through the purchase of foodstuffs, increased utilities, luxury goods and construction maÃ?Âterials.
As Indian gambling became more widespread, states attempted to enact legisÃ?Âlation to control the casinos. Native American resistance to such laws was immediate and fierce, as many tribes saw their first true hope of financial recovery threatened. Claiming the treaty-granted right of sovereignty, the tribes appealed to the Supreme Court for injunctive relief.
In response, the Supreme Court affirmed the tribal reservation sovereignty. HowÃ?Âever, pressure was brought to bear on the tribes through the US Bureau of Indian Affairs (BIA), the central liaison between the authority of the Federal Government and the tribal leadership, to come to some sort of agreement with the states in which their reservations lay. Most agreed, stipulating that income would be used only to further reservation self-sufficiency, and that a portion would be remitted to the state in the form of gambling taxes. Certain groups did not accede to this pressure, however, the most notable of these in the Southwest being the Tigua tribe of western Texas. The failure of the Tiguas to reach a compromise, or indeed to pursue it, with the state of Texas has resulted in the Speaking Rock Casino closure. The tribe, fueled by the monies they had realized before the casino’s closing, has determined to pursue the matter. The results are yet to be seen.
However, as other cases have shown, additional problems are now arising in the reservations due to the lack of pre-existent law regarding the issues raised by open gamÃ?Âing and the impending collapse of traditional Indian courts of justice. This is becoming a major issue as cybercriminals and organized crime are seeing the lightly defended reserÃ?Âvation gaming as open territory.
A number of questions could be raised at this point from both a legal and social standpoint. The primary question from a legal theory standpoint must arise over the BIA mandate for state-level involvement. As the tribes are indeed sovereign, must they obtain approval for casinos from the states in which they reside, and should they be required to pay for the privilege through taxation, restrictive covenants and the like?
However, another question also begs immediate attention. Federal law requires that those accused of crimes stand trial in the jurisdiction of the crime. With casinos, the number of non-tribal visitors on tribal lands has rapidly increased, and there has been an upsurge in crime perpetrated by these visitors. Should they, although not tribal members, stand trial in tribal courts?
Tribal sovereignty vs. States’ rights
There is no easy answer. The tribes of the United States have all been guaranteed, through treaty, legislation and Supreme Court ruling, the right to eternal sovereignty. Under the terms of those treaties, the Indian nations owe fealty only in a loose sense to the federal government, who is bound to protect and defend them against outside intrudÃ?Âers. By the same law which guarantees this right to self-rule, the states are granted mere autonomous direction and are dependent upon the federal government for the majority of the law or the formation, maintenance and dissolution of themselves as a member state. The state is not, per se, inviolate and self-ruling; it is not a sovereign nation. Under no law recognized by civilized nations has a sovereign power ever been expected to bow to the whim of a non-sovereign entity.
To argue that the reservation lands’ location within the political boundaries of the state entitles the state to some level of compensation is at best a difficult position to maintain. There is not a single state in the Union today which did not have, at some time, Native American tribesman living on and moving across it. In effect, then, all tribes have anÃ?Âcient right to the land itself, since they had occupied it for the requisite period and, in most cases, were not reimbursed for the full usable value of the land. The reservations are a pale shadow of the vast tracts of hunting and grazing land which the Indian tribesÃ?Âmen controlled prior to the European’s invasion. That they lie within the boundaries of the states is not the Indian’s problem. Where is the tribute, the rental monies due to the tribes for the usage of their land by the European?
It has been argued that the Native Americans neglected to improve their land and thus have ceded title by this failure. This argument presupposes, however, that the imÃ?Âprovements can be documented in terms of additional monetary wealth, for such is the European way. By such standards, indeed, the Indians failed to improve and cultivate land, or increase the amount of financial wealth that they possessed.
But the Native American way of life is not the European way. It is this critical point which is completely ignored by the above argument. Early conquistadores and explorers saw nothing of material value in the Indian way of life, and proceeded to crush its practitioners in the never-ending quest for wealth. But the cultural wealth of the indiÃ?Âgenous populations of the New World far outstrips that of the European continent. At no time did the New World sink into feudal vassalage and stifle reason, intellect and learnÃ?Âing. Native herb lore, conservation techniques and methods of survival in conditions inimical to life were scorned by early settlers and explorers, but the worth of these treasures was later proven beyond doubt.
It was traditional methods of farming which enabled the Puritan colonists of the Massachusetts Bay area to survive. It was the loss of the traditional clearing of brush and undergrowth in forested areas which allowed the devastating firestorms of the Northeast to occur. It was traditional medicinal knowledge which saved a large number of early explorers from debilitating diseases such as scurvy.
Thus, the cultural wealth of the New World far outstripped the lack of material development of the lands. Indeed, it was the continued lack of commercial development which allowed this wealth to expand and grow. The arrogant war of the Europeans upon the natural environment of the New World shattered forever the Native American way of life. And in a cruel twist of irony, the Indians actually gave the Europeans the chance to do the damage. Had the Indians not assisted the European colonists, none would have lived long enough to complete the job.
But from a larger point of view, one can indeed argue that the tribes owe at least a nod of acquiensence to the state. Consider for a moment that, treaty provisions notwithstanding, the Native Americans are in all actuality a conquered people. War was systematically purÃ?Âsued by these tribes against the Europeans, and the Europeans, by dint of technology, tactics and numbers, have subjugated the Indians. To argue that the tribes retain anything more than the bare bones of sovereignty is ludicrous, regardless of the words upon the treaties.
Moreover, the Native Americans are not capable of self-sustainment. They have bartered or frittered away those lands which were not taken by right of conquest. ConseÃ?Âquently, they are dependent upon the largess of the federal government and what employÃ?Âment might be available in the communities near their reservations. They work, they utiÃ?Âlize state and federal resources; why then should they be exempt from taxation and state law? It is true that the reservation is in itself not state land, but is held in trust by the fedÃ?Âeral government for the Indian tribes. In a larger sense, however, the land that they occuÃ?Âpy must be considered state territory. The numbers and names of the Indians are counted in censuses, and those numbers are included when apportionment of Congressional repreÃ?Âsentation is done. Furthermore, the expense of the health care for indigent Indians, and the maintenance of state roads and public utilities on the reservation is largely absorbed by the state.
One can, of course, argue facilely that the state is not a sovereign entity, and in truth it is not. Yet the state still possesses autonomy and the Tenth Amendment to the Constitution spells out the fact that the state maintains those rights and powers which have not been specifically dedicated to the federal government. Although law prohibits the secession of states from the overall Union, it denies the same right to the Native American reservation. Treaties and water laws, as an example, routinely force states to seek each other’s permission before undertaking extensive changes to infrastructure; the same analogy could be narrowly applied to the reservation-state relationship.
The Native Americans, in turning to gaming, have developed a resource which can be conÃ?Âsidered inimical to the livelihood of the state. States which already possess a governÃ?Âment-sponsored lottery have had their revenue diminished due to the Vegas-style casino entertainment of the tribes. Other states, in which gambling is illegal or restricted, are forced to either sit idly while their statutes are flaunted or attempt to reason with the tribal leadership. As the Supreme Court has done little to assist the states in this matter, the imÃ?Âpetus for agreement must be applied through another avenue, in this case the Bureau of Indian Affairs.
Furthermore, the majority of the patrons of Indian gaming establishments are not Indian. As such, the Indians are reaping the benefits of societal resources and state funds without a return to the state. In such a case, it behooves the state to attempt to recoup some of the loss. No one begrudges the Native Americans a better lifestyle of improved living conditions. Nor should the insistence that the monies be used for such betterment be construed to mean that the Indians would use the money for alternate purposes. HowÃ?Âever, with the social impact which casino gambling is known to cause, it is imperative that the state take steps to safeguard, inasmuch as is possible, the social future. As the state is responsible for support of treatment of gambling addicts, intervention on broken homes and families due to gaming, and numerous other social ills which can easily arise from the presence of casinos, it is only meet that a small portion be returned to the state. A tax of 5-8% on casino takings is not excessive when one considers that the casino is exempt from state property and gross receipts tax.
Opening a casino takes more than just running up a building, setting out tables and buying a few hundred decks of cards. The planning and commitment to such an entÃ?Âerprise, if it is to be successful, is immense. Consequently, the tribes see no real reason to turn over any of the hard-earned wealth to the state, which has done nothing to earn it. The state, on the other hand, maintains that the majority of the social problems land squarely upon its pocketbook, and hold that the return of the money they will need to lay out is only fair.
There is, of course, merit in both viewpoints. However, basing the answer solely within the theory of the law, the imposition of state regulations and reÃ?Âquirements in an area of sovereignty is insupportable. The law which spawned and supÃ?Âports the treaties clearly states that the tribes are to have full sovereign rights, subject only to the federal government. The states, on the other hand, have no such rights, as was proved conclusively by the Civil War and the reabsorption of the seceding states. With this fact clear, it then follows that the law supports the tribes in the use of whatever reÃ?Âsources are available to them to improve their standards of living. Many of the tribes have managed, some for the first time ever, to become self-sufficient. Health care, living conditions, schools and a total way of life on the reservation: all have improved due to the institution of Indian casinos.
That having been said, there is a compelling argument that the Native Americans have a moral obligation to accept the bitter with the sweet, to attempt to provide for the social ills which gambling inevitably brings in its wake. This could mean that the Indians should sponsor intervention groups for problem gamblers, or contribute toward a fund dedicated to helping those injured by the availability of open gaming. A tax should not be required as such, since the money available under taxes can be spent on half a hundred projects and needs without addressÃ?Âing the problem areas. But a superfund, dedicated to working with gaming victims, is definitely possible and should be pursued.
Tribal Courts and Non-Tribal Offenders
It is a basic tenet of the American judicial system that the trial of an individual is held in the location where the crime was committed (or alleged to have been committed). By this logic, then, any crime which occurs on a reservation is subject to the tribal court of justice, regardless of the race of the offender. Furthermore, until quite recently, this has not been an issue; it has been raised only because of the increasingly large numbers of non-tribal offenders which are bound over for trial in the reservation courts.
To justify the stance that non-tribal members should be tried off reservation propÃ?Âerty, one must logically conclude that the reverse is also binding: namely, that tribally affiliated Indians are exempt from trial while off the reservation. This would, however, necessitate that the tribal court system be extended to include district courts with federal jurisdiction, a step which is insupportable under current law. Since such a proposal is impossible to accept as binding, it therefore follows that the tribal court’s jurisdiction is binding terriÃ?Âtorially rather than racially.
Furthermore, the concept of unrestrained bias has already had a mechanism emÃ?Âplaced to handle the situation. Change of venue proceedings are already available, should the defendant believe that the level of media coverage has prejudiced his or her chance of receiving a fair and unbiased trial. Finally, it must be noted that the tribal courts have only been granted limited levels of jurisdiction, falling somewhere between a magistrate and a district court in their power. Thus, any cases which fall outside of that jurisdiction are automatically transferred to the nearest district court, which is nearly always off reservation lands.
However, the tribal courts are primarily designed to allow the Indians of a reservation to perpetuate their traditional way of life. As such, they are granted a startling level of power, but such was intended solely as a concession from Congress to allow for certain tribal oddities and was probably never intended to govern off the reservation lands.
Furthermore, there is no reason to require such a jurisdiction. Magistrate and district court boundaries include all of every reservation; the tribal court merely supersedes such established courts in cases of Native Americans. Ergo, the concept of jurisdiction is innately false, since jurisdiction is shared by both tribal and standard courts.
Consider also the fact that the majority of the reservations are quite small in terms of population, and the residents are in unusually close contact. It is therefore manifestly impossible to alleviate bias in the reservation courts; this is inherent and is recognized in the construction of the tribal court system. Tribal courts are furthermore exempted from certain clauses of due process, i.e. a person can bring civil litigation against another oralÃ?Âly rather than in writing, and the justice which hears the case need not be an expert in the field of criminal or civil law, but only in tribal law and custom.
Thus any person who is not of the tribe and who therefore does not subscribe to the customs, traditions and peculiarities of the tribal law is at a supreme, perhaps insurÃ?Âmountable, disadvantage. The tribal courts are not so structured as to provide full knowÃ?Âledge of obscure legal precepts and points of case law. Therefore, any person whose attorney attempts to rely upon established case law and legal premises is again disadvanÃ?Âtaged by the ignorance of the court. Finally, it would be quite obviously impossible to generate a jury of one’s peers when the jury pool is taken from the residents of the reserÃ?Âvation and the accused is neither a member of the tribe, nor a resident of the reservation.
If such an argument became necessary, then, one could point out that the tribal courts are inadequate for the job they are attempting to undertake. They cannot provide the full protection of the law and have no means of generating a jury pool without supreme bias and a distinctive mindset alien to nonÃ?Â-tribal accused offenders. Additionally, as jurisdictional boundaries overlap, the alleged offender may be tried in whatever court holds jurisdiction for the locale and the nature of the crime, without requiring the procedure of a change in venue.
The primary point in question here is the nature of the tribal courts as defined under the Indian Reorganization Act. Quoting from the principal body of the Act:
“Sec. 16. Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by a majority vote of the adult members of the tribe, or of the adult Indians residing on such reservation, as the case may be, at a special election authorized by the Secretary of the Interior under such rules and regulations as he may prescribe. Such constitution and bylaws when ratified as aforesaid and approved by the Secretary of the Interior shall be revocable by an election open to the same voters and conducted in the same manner as hereinabove provided. Amendments to the constitution and bylaws may be ratified and approved by the Secretary in the same manner as the original constitution and bylaws (Wheeler-Howard Act, 1934).”
The tribes were allowed, and even encouraged, with the passage of this act, to form their own laws and legal systems. Later Supreme Court cases (cf. Williams V. Lee, 358 U.S. 217, 1958) upheld this, stating that the Indian had a right to his own laws and his own methods of justice. Of the nearly 300 reservations currently within the U.S., only 23 have failed to do so and still rely upon Code of Federal Regulations courts. The reÃ?Âmainder have tackled the problem successfully.
The National Tribal Justice Resource Center offers the fact that traditional courts of tribal justice are not inherently adversarial. Instead, decisions are made by consensus of the justices present, rather than by the application of legal precedent and case law. As such then, the offender of non-tribal descent is indeed at a major disadvantage, since the system in totality is alien to the concept of European justice. With the influx of non-native influence, some tribal courts have become more similar to the justice system seen outside the reservations; others have held to the traditional forms. Most have, however, blended the two forms with varying degrees of success.
Another key point must also be raised: the concept of cybercrime and trial locÃ?Âations. Under federally accepted guidelines, prosecutors may decide which jurisdiction to charge the accused in court, assuming that the alleged crime took place at least in part in the jurisdiction chosen. To exemplify this, consider the case of DataStream Cowboy:
“DataStream Cowboy was the screen name of Roland Appersett, a 19-year-old hacker in southern Georgia. From his house, DC attacked and defeated the computers at the naval base in Annapolis, MD. Using this as a base, he then accessed NASA’s Johnson Space Center in Houston, Texas. He also engaged in online chat and email correspondence with a senior hacker known as Kijui. Kijui was located in California, while the online forum, where the two exchanged tricks and tips on hacking, with complete knowledge of each other’s activities, was located on a server in Nebraska. Had he been caught at the time when he accessed JSC, DataStream Cowboy could have been charged in any of five locations, Georgia, Maryland, Texas, California (where his accomplice was located) or Nebraska. (Power, 2000)”
According to security professionals at Vegas casinos, the cyber infiltration of computer systems is a critical problem (Stradling, 1999). Estimates range as high as 300 attempts per month, or an average often per day. Although the attacks are largely unsuccessful, this is probably due to the high level of security in place at the financially monumental casinos of Vegas. It is not possible to identify the number of attacks made upon tribal casino computers in any given year. Nor is it possible to determine what percentage of those attacks meet with success. One thing is certain, however. Such a crime is open in jurisdiction, permitting a federal prosecutor, if he or she so wished, to attempt to declare the tribal court as the venue, with all the attendant disadvantages to the accused.
Is it then possible to justify the use of tribal courts based solely on jurisdiction? No. Tribal courts are for the tribes, not the great unwashed masses which surround the reservation. They are a system, possibly better, certainly older, than the hybrid European-based court system in place in America, but they are a system alien to the European mindset, as the Indian way of life is alien to us.
Furthermore, tribal courts are not equipped (and cannot be equipped readily) to deal with the growing menace of cybercrime and future crime. The tribal customs con~ tam nothing that is even remotely analogous. To utilize them as if they were indeed capable of handling the abstractedness of cybercrime is a great disservice to society at large and to the Indians themselves.
There are additional arguments that can, and indeed have, been raised on both of these issues. Most notable is the problem that Utah is currently having with the three reservations in their state which have opened casinos. Utah’s constitution, a memorial to the Mormon influence of the state, specifically outlaws gambling in any form. But the tribes have managed to secure judgments that the reservation land is exempt from the provisions of the state constitution. Furthermore, as any compromise between the state and the tribe has been ruled to violate Utah’s constitution, Utah is unable to come to terms regarding the casinos and the money that they produce. The stalemate has been disastrous for the state/tribe relationship.
However, for good or ill, Indian gaming seems here to stay. The reservations are seeing a tremendous influx of much-needed revenue, and many are for the first time able to grant more than simple subsistence to their people. However, the tribes must take care not to overreach themselves. All courts are not created equal, and the traditional manner of Native American justice is not capable of assimilating the new crimes. Theft, assault, murder: certainly the tribal courts are competent to rule in such cases. Cybercrime, fraud, and embezzlement are beyond the scope of traditional courts. As in anything, compromÃ?Âise is essential: the Native Americans get to keep the only thing which has allowed them to prosper, and the white man’s courts deal with the crime of the white man.
References and Works Consulted
Deloria, Jr, V. & Lytle, C.M. (1994). American Indians, American Justice. Austin: UT Press.
Deloria, Jr., V. (1969). Custer Died For Your Sins: An Indian Manifesto. New York: Avon.
Nabakov, P. (ed). (1991). Native American Testimony: A Chronicle of Indian-White Relations from Prophecy to the Present, 1492-1992. New York: Penguin.
Power, R. Tangled Web: Tales of Digital Crime from the Shadows of Cyberspace. Indianapolis: MacMillan.
Ross, L. (1998). Inventing the Savage: The Social Construction of Native American Criminality. Austin: UT Press.
Stradling, J.P. (1999).Computer Crime and the Casino Entertainment Industry. Non-published article.
United States Congress. The Wheeler-Howard Act (Indian Reorganization Act). Passed 18 June 1934. Retrieved from the Web on 24 Oct 2005 by James Sherwood from http://www.infca.org/tribes/IRA.htm.
Weatherford, J.M. (1988) Indian Givers: How the Indians of the Americas Transformed the World.. New York: Crown.
Weatherford, J.M. (1991). Native Roots: How the Indians Enriched America. New York: Crown.
Wunder, J.R. (1994). “Retained by the People”: A History of American Indians and the Bill of Rights. Oxford: Oxford University.