The Constitution & Mrs. Colliflower

Congress in 1924 capped the conquest of the American Indian by granting U.S. citizenship to all Indians born from that year on. Until then, tribal Indians had been considered "wards of the Government." But the gesture by no means fully extended the U.S. Constitution to about 70% of the country's Indians--the 380,000 tribal members who now live on 399 reservations and enclaves maintained by the Federal Government.

Because the law still regards Indian tribes as quasi-sovereign nations, state courts have no jurisdiction over reservations; federal courts try only major reservation crimes, such as murder. The vast majority of lesser crimes are left to 56 tribal courts manned by Indian judges, who are usually picked by tribal councils, but have little or no legal training. Tribal defendants cannot appeal to outside courts; they have even been consistently denied writs of habeas corpus. As a result, tribal judges have been free to ignore constitutional rights.

Guilty Without Trial. Fortunately, this situation is bound to improve--all because of Madeline Colliflower, 46, a stubborn member of the Gros Ventre tribe (part of the Blackfoot nation) on Montana's Fort Belknap reservation. In 1963 the tribal court ordered Mrs. Colliflower to quit pasturing her cattle in someone else's field. Having apparently ignored the order, she was arrested by the reservation's Police Chief Joe Plumage and Officer Lyle Reddog, and haled before Indian Judge Cranston Hawley. She pleaded not guilty. But without ever giving her a trial, Judge Hawley offered her the choice of a $25 fine or five days in jail.

Mrs. Colliflower chose jail--and thereby aroused the sympathy of the Rev. Francis Conklin, a Jesuit law professor at Spokane's Gonzaga University. Claiming a patent denial of due process, Father Conklin petitioned Montana's U.S. District Judge William J. Jameson to spring Mrs. Colliflower on a writ of habeas corpus. Judge Jameson dismissed the case on the ground that he was "without jurisdiction."

Chance for Defense. Father Conklin went to the U.S. Court of Appeals for the Ninth Circuit, which last February broke precedent by holding that Judge Jameson had jurisdiction. However sovereign Indian tribes may be in theory, ruled this court, tribal courts are obviously "in part" arms of the Federal Government and are thus apparently bound by minimal standards of constitutional fairness.

Last week Judge Jameson heard the case and granted Mrs. Colliflower's petition. Because she was sentenced with no chance to defend herself, said the judge, "I must conclude that there was a lack of due process under the Fifth Amendment." Mrs. Colliflower is not exempt from retrial and possible conviction, but her victory will sharply curb the power of tribal courts.

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