Iron Crow v. Ogallala Sioux Tribe

• Decision Date: 24 February 1955
• Docket Number: Civ. No. 456.
• Citation: 129 F. Supp. 15
• Parties: Thomas IRON CROW, Marie Little Finger and David Black Cat, Plaintiffs, v. The OGALLALA SIOUX TRIBE OF THE PINE RIDGE RESERVATION, SOUTH DAKOTA, Moses Two Bulls, Charles Little Hawk and Peter Mesteth, Defendants.
• Court: U.S. District Court — District of South Dakota

129 F. Supp. 15

Thomas IRON CROW, Marie Little Finger and David Black Cat, Plaintiffs, v. The OGALLALA SIOUX TRIBE OF THE PINE RIDGE RESERVATION, SOUTH DAKOTA, Moses Two Bulls, Charles Little Hawk and Peter Mesteth, Defendants.

Civ. No. 456.

United States District Court, D. South Dakota, W. D.

February 24, 1955.

John C. Farrar, Rapid City, S. D., for plaintiffs.

Richard Schifter, and Arthur Lazarus, Jr., Washington, D. C., Clinton G. Richards, U. S. Atty., Sioux Falls, S. D., H. R. Hanley, Rapid City, S. D., for defendants.

MICKELSON, Chief Judge.

In this case counsel have raised several defenses, which may have merit. However, because of the pendency of several similar cases and the importance of a decision upon the questions involved, I prefer to direct my attention to and decide this case upon the questions hereinafter discussed.

Part I.

Marie Little Finger and David Black Cat, two of the plaintiffs herein, were tried and convicted in the Ogallala Sioux Tribal Court of the crime of adultery under the provisions of Sec. 61, of the Revised Code of the Ogallala Sioux Tribe. Jurisdiction was exercised under Sections 1 and 1.2 of said Code, they both being enrolled members of the Ogallala Sioux Tribe and the crime having been committed on the Pine Ridge Reservation. The tribal court after reaching a verdict of guilt imposed fines on both defendants and sentenced David Black Cat to thirty days in jail, said jail sentence being suspended on condition of the payment of the fine and good behavior for one year. The fines have not been paid and the tribal authorities intend to proceed with the enforcement of the sentences.

These plaintiffs have brought this suit to enjoin the tribe and its officers from proceeding as intended, alleging that the tribal court did not have jurisdiction to try and convict them of the crime of adultery, and that enforcement of the sentences of the tribal court would deprive said plaintiffs of liberty and property without due process of law, in violation of the Fifth Amendment to the Constitution of the United States. The facts which were the basis for the verdict of guilt in the proceedings before the tribal court and the fairness of the procedures of that tribunal are not disputed or involved in this case. The question presented is whether the Ogallala Sioux Tribal Court is a duly constituted court having jurisdiction to try, convict and punish enrolled members of the Ogallala Sioux Tribe for the crime of adultery committed on the Pine Ridge Reservation.

Defendants maintain that the Ogallala Sioux Tribal Court in law and in fact is a duly constituted judicial tribunal having jurisdiction to try and convict enrolled members of the Ogallala Sioux Tribe for the crime of adultery committed on the Pine Ridge Reservation. They contend that the tribal court derives its authority from two sources, either of which is sufficient to clothe it with the powers it now exercises, the first of these sources being from various federal statutes enacted by Congress pursuant to powers vested in it by the "Indian Commerce Clause" of the United States Constitution. Secondly, that the Ogallala Sioux Tribal Court derives its responsibility for and jurisdiction over the maintenance of law and order among Indians in Indian country as a necessary attribute of original tribal sovereignty, which is recognized in the Constitution of the United States and the various treaties with this tribe of Indians.

Plaintiffs, on the other hand, suggest that the Ogallala Sioux Tribal Court is a recent creation foisted upon members of the tribe through adoption of its Constitution in 1936, and that there is no authority under the Constitution, statutes or treaties for the maintenance of such tribal courts. A review of the historical background of the Ogallala Sioux Tribal Court is both interesting and helpful in arriving at a decision in this case.

From time immemorial the members of the Ogallala Sioux Tribe have exercised powers of local self-government, regulating domestic problems and conducting foreign affairs, including in later years the negotiation of treaties and agreements with the United States. Report of Commissioner of Indian Affairs, 1881, p. XVIII.

The first step taken by the Department of the Interior to modify the existing tribal system by regulating law and order on the Pine Ridge and other Indian reservations was to create a reservation police force as reported in the Commissioner's Report for the year 1878. By the express terms of Article IX, of the Sioux Agreement of 1877, 19 Stat. 254, and sustained by the Supreme Court in the case of Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030, the Ogallala Sioux Tribe and other Sioux Tribes constituting the Sioux Nation agreed to "`* * * loyally endeavor to fulfill all the obligations assumed by them under the treaty of 1868 and the present agreement, and to this end will, whenever requested by the president of the United States, select so many suitable men from each band to co-operate with him in maintaining order and peace on the reservation as the president may deem necessary, who shall receive such compensation for their services as congress may provide.'" 19 Stat. 257, quoted in 109 U.S. 565-566, 3 S.Ct. 402.

In order to carry out the federal government's part of the foregoing agreement Congress in the following year, 1878, and every year since has appropriated federal funds, tribal funds or both, for the maintenance of order and peace on the reservation in accordance with this agreement. See annual Indian Department Appropriation Acts and Reports of the Secretary of the Interior.

No substantial change appears to have been made in the operation of the Indian courts from 1892 until 1936. In 1936 the Department of the Interior promulgated a set of new regulations governing Indian courts. The changes were described in the Report of the Secretary of the Interior for 1936 in the following terms:

"Indian Justice Administration Reorganized.

"Since 1884, reservation Indians have been subjected to arrest, trial, and imprisonment by Indian Service officials and by judges chosen and removable by the superintendent of the reservation. This system has been subject to continued criticism by Indians, by members of Congress, and by Indian welfare societies. Several earlier administrations initiated studies designed to reform the administration of justice on the Indian reservations, but none of these studies resulted in any substantial reforms.

"Under the new law and order regulations, Indian Service officials are prohibited from controlling, obstructing or interfering with the functions of the Indian courts. The appointment and removal of Indian judges on those reservations where courts of Indian offenses are now maintained is made subject to confirmation by the Indians of the reservation. Indian defendants will hereafter have the benefit of formal charges, the power to summon witnesses, the privilege of bail, and the right to trial by jury. The offenses for which punishment may be imposed are specifically enumerated, the maximum of 6 months labor or $360 fine being imposed for such offenses as assault and battery, abduction, embezzlement, fraud, forgery, misbranding and bribery. These offenses are not punishable in any State or Federal court when the offense is committed on reservation land and when only tribal Indians are involved.

"In addition to this criminal jurisdiction, the Indian courts will, in the future, have authority to handle civil cases between tribal Indians.

"The revision of law and order regulations is one step in the program of the present administration to eliminate obsolete regulations and bureaucratic procedures governing the conduct of Indians, and to endow the Indian tribes themselves with increased responsibility and freedom in local self-government."

In line with the policy enunciated in the last paragraph of the above report the Ogallala Sioux Tribe of the Pine Ridge Reservation adopted and the Secretary of the Interior approved on January 15, 1936, a tribal constitution under the provisions of the Indian Reorganization Act, 48 Stat. 987, 25 U.S.C.A. 476, Sec. IV (k) of which authorized the tribal council to assume responsibility for the establishment of a tribal court. In the exercise of its authority under the tribal constitution, the tribal council thereafter enacted a Code of the Ogallala Sioux Tribe which was approved by the Secretary of the Interior on March 20, 1937. A 1952 revision of that code is now in effect.

Under the provisions of the new code the "Pine Ridge Indian Reservation Court" became the "Ogallala Sioux Tribal Court of the Pine Ridge Reservation." Aside from the change in name the only basic difference between the new court and the old one is that the judges of the present court are elected by the Ogallala Sioux Tribal Council while the judges of the old court were appointed by officials of the Bureau of Indian Affairs. Under the new arrangement the federal government and the tribe continued to work in close harmony as indicated by the Secretary's Report for 1938, p. 236; 1942 Report, p. 247; 1943 Report, pp. 284 and 285.

The close cooperation between the federal government and the tribe in law enforcement work is further exemplified by the fact that even after 1937 the operations of the tribal court were financed partly by federal funds. Federal contributions to the Court were continued until 1947 when a sharp cut in appropriations caused the Acting Commissioner of Indian affairs to order a cut in law and order expenditures on the Pine Ridge Reservation. Thereafter the Ogallala Sioux Tribe assumed full responsibility for paying the costs of operating the tribal court. Changes in the code under which it functions continued to be subject to review by the Secretary of the Interior. Constitution of the Ogallala Sioux Tribe, Article IV, Sec. 1, (k).

From this recital of the record it is apparent that...