Equality for the Red Man

Many of the most important Supreme Court decisions in recent years have afforded minority groups, particularly Negroes, new constitutional protections. Effective as they may have been, the high-court rulings have resulted in precious little improvement for one sizable minority group--the American Indian.

Hindering the Indian's rise to legal equality are many factors, among them Indian ignorance of the law, lethargy, and a reluctance to be completely assimilated by 20th century white society. But the most significant reason is the special status enjoyed--and suffered--by 370,000 reservation Indians. Although these Indians have been U.S. citizens since 1924, the reservations they live on are still considered by the Federal Government to be quasi-sovereign entities entitled to self-government and self-regulation. Thus the reservation Indian has constitutional rights, like any other citizen, but those rights have often been denied him by tribal law and by tradition.

Morass of Jurisdiction. In addition to state and federal law, reservation Indians are governed by sundry legal systems applicable only to them. Federal courts deal with such felonies as murder, arson and armed robbery committed on the reservation. States have jurisdiction over nonfederal crimes committed by the red man off the reservation. More than 50 tribal courts, run mostly by ill-trained Indian officials, decide small civil cases, misdemeanors and some felonies that occur on the reservations throughout the U.S. Complicating this complexity are Indian customs and traditions of justice, which include such warlockery as the divination--by observed hand trembling--of witches and thieves.

A typical battleground in the clash between white man's and red man's law is the 25,000-sq.-mi. Navajo territory (pop. 110,000) of Arizona, New Mexico and Utah. Philosophically, Navajos see little difference between accidents and premeditated crime; they tend to believe the opposite of "innocent until proven guilty." Because professional lawyers have long been forbidden to represent Navajo litigants in tribal courts, Indian lay counselors, largely without legal training, advise them instead. Indian judges, none of them lawyers, constitute the majority of the judiciary in a court system where few have ever heard of writs of habeas corpus.

Hazy Rights. When a Navajo, or almost any other reservation Indian, is tried in a state or federal court, more often than not he is represented by a white lawyer with little knowledge of Indian customs or attitudes. And, although Congress granted the red man U.S. citizenship over 40 years ago, the constitutional rights of reservation Indians have not always been enforced.

Madeline Colliflower, a 48-year-old member of the Blackfoot nation, helped bring the U.S. Indian closer to constitutional equality with white citizens in a precedent-setting 1965 case. Arrested by an Indian policeman on Montana's Fort Belknap reservation for ignoring a tribal-court order, Mrs. Colliflower was sent to jail for five days without a trial. Flouting tradition, she sought habeas corpus from the federal courts on the ground that she had been denied due process as guaranteed in the Fifth Amendment. She won when a U.S. court of appeals ruled that tribal courts, while largely independent, were essentially instruments of the Federal Government. Thus, the court said, they were subject to habeas-corpus review by the federal courts.

Recently, a U.S. Supreme Court decision further helped the Indian cause. Claiming that the Skelly Oil Co. had wasted natural gas on leased tribal lands, a group of Comanche elders sued the company for damages in 1961. Oklahoma's state courts upheld Skelly's lawyers, who argued that only the Secretary of the Interior could file such a suit on the Indians' behalf. The Comanches rode a seven-year legal warpath to the Supreme Court, which has now ruled that Indians can indeed sue to protect their land rights.

Rework the Codes. Other improvements are in the wind for the Indians. They are specifically mentioned in the civil rights bill now before Congress. Last month more than 100 judges, lawyers and tribal-law experts met at the University of Arizona at Tucson to discuss conflicts between white man's and red man's law. At the meeting, Burton G. Hirsch, a Department of the Interior lawyer, urged that tribal codes be reworked to conform with state civil law. And a forthcoming Harvard Law Review article proposes the establishment of new courts empaneled with specialists in Indian law in order to accelerate improvement of the red man's legal condition.

In the past two years, the Office of Economic Opportunity has established legal assistance agencies serving 14 reservations. Last year its Dinebuena Nahilna De Agaditahe (Navajo for "attorneys who help revitalize the people") began working for the Navajos. Headed by Harvard Law School Graduate Ted Mitchell, the agency is still hamstrung by the rule that bars professional attorneys from tribal courts. "What we should be doing here," says Mitchell, "is tackling the white traders who prey on these people and working in state courts to ensure the Indians' rights. Instead we're stuck trying to sort out the tribal legal system."

Reinforcement may be on the way for Mitchell and his counterparts across the nation. Arizona State University's new law school, which opened in September, has admitted two Indians on scholarships. U.C.L.A. has started giving classes in Indian law. At New Mexico last summer, 17 Indians and an Eskimo member of the Alaska state legislature signed up for an eight-week prelaw program supported by OEO and the Bureau of Indian Affairs. In September, seven of them returned to pursue an L.L.B. The Indian lawyers may be able to spur a revision of the codes and traditions that keep them out of most tribal courts--and keep their brethren beyond the reach of rights enjoyed by the white man.

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