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"There Ain't No One in Washington Coming to Solve the Problem so Let's Quit Burning the Woodwork to Heat the House": Envisioning a Traditionally Rooted Due Process Based Solution for Indian Country

By the Hon. Ralph R. Erickson, Fargo, ND
United States District Court Chief Judge
District of North Dakota

Speech to the 3rd Annual
Tribal Consultation Conference

Coordinated by
United State's Attorney's Office, District of North Dakota
United Tribes Technical College
Bismarck, ND

      I am more than a little afraid to be here to day. So afraid that I didn't disclose the topic of my speech before I got here! My topic: "There Ain't No One in Washington Coming to Solve the Problem so Let's Quit Burning the Woodwork to Heat the House: Envisioning a Traditionally Rooted Due Process Based Solution for Indian Country" is monumentally disconcerting to most of the people in this room. Historically all of us, whether we work for federal agencies, the tribes, public interest groups or even the courts have believed that Washington was the lynchpin in solving the problems in Indian Country. We need to change that mind set. In this time of Washington gridlock, sequestration, budget freezes and plain old "us versus them" politics, it should be readily apparent that if we wait for a solution to come from Washington we will lose another generation–a result that is unacceptable to all of us.

Hon. Ralph R. Erickson, Fargo, ND - United States District Court Chief Judge, District of North Dakota

      Let's get the basics out of the way. The first thing you need to acknowledge is the 6 ton elephant in the room–The problems in Indian Country are the direct and proximate result of 500 years of failed policies, political oppression, cultural war and ethnic genocide. If we are ever going to help lay the ground work that is necessary to fix the problems besetting Native Peoples we must recognize what it is that we are up against. There has never been a time in this country when the people in power who made promises to Indians were in a position to keep them. This is not to say that the promises were always ill-intentioned or meant to be outright lies. In fact, I believe that many of them were very well-intentioned. But can we agree that any policy is deeply flawed that is in fundamental ways based on a papal bull (Sublimus Dei) from 1537 declaring that "Indians and other discovered people" are human beings and are not to be enslaved or dispossessed of their property without consideration (which by the way reversed a previous bull that basically said that non-Christians could be enslaved and liberated of their property), and a trilogy of cases holding: that Indians had no title to land that could be sold to private citizens–magically transforming whatever ownership aboriginal people had into a mere usufruct (Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823); a case that held that an Indian tribe is not a foreign state but rather a dependent domestic nation in some state of permanent guardianship relationship with the United States and that it therefore lacks standing to pursue any claim in federal courts unless authorized by Congress (Cherokee Nation v Georgia, 30 U.S. 1 (1831) and a case (Worcester v. Johnson, 31 US 515 (1832)) that held that the states could not enforce their laws as against the tribes without infringing the sovereignty of the tribe–but left the door open to the federal government's subsequent claim of a plenary power over the tribes effectively establishing as law–some might argue lawlessness–that the Federal Government is free to do whatever it pleases with tribal sovereignty. At this point can we at least agree that this is not a path to peaceful enlightened progress.

      None of these cases have ever been specifically over-ruled. All of them reflect the real problem with the Federal government's relationship to aboriginal people: (1) we know that justice demands that Native People be treated with dignity and respect; but (2) we didn't have the courage to do so in the face of overwhelming political and economic pressures. In short, as long as aboriginal people had something the dominant culture wanted, we figured out a way to take it–and now that those of us who labor in Indian Country are left standing on the rubble of genocide, assimilation, and extreme cultural degradation. We are at a complete loss to explain what happens next.

      It is not a pretty picture. Those politicians who claim that the United States is not responsible for the abject poverty on the reservations in the Northern Plains and that the tribes need to "get over it" are fools. The government of the United States created this problem and it bears some obligation to be part of the solution.

      Unfortunately, as we have already noted, no one is coming from Washington to solve the problem. Worse yet, the solutions that keep coming up are either culturally appropriate or unrealistic. It is all well and good to authorize change–but those authorized changes will not be fruitful if they are expensive and unfunded. I repeat my initial premise: there is no one coming from Washington with suitcases filled with money to solve the problem.

      The response of the tribes so far, has been a traditional one as well. They scrape together what they can, they try and follow the mandates where possible. They beg for more money to do what they have been asked to do. They send their leaders to Washington who remind them that all of the Western Dakotas are part of the Great Sioux Reservation and that a trillion dollars has been taken from their land without compensation. And Washington has done what they always do. They express concern, they promise to help where they can, they hold conferences like this one where people speak hopefully but hold out few real solutions. The Department of Justice and the Bureau of Indian Affairs are desperately trying to keep the promises that have been made–but lets face it unless they can weave straw into gold they've got a huge problem. And the facts on the ground remain unchanged. To paraphrase the Who: "Meet the New Vision–same as the old Vision."

      You see, Washington nearly always works this way. In fact, it almost has to. In this day of the 24 hour a day news cycle nothing can hold Washington's attention for very long. And in this age of limitless demands for taxpayer dollars and terrifying national debt, the money situation isn't going to get better. Even so, Washington wants people to feel like they are being heard–so they pass laws. If the tribes wait to have someone show up from Washington, however, with enough money to fix what ails Indian Country, they will be waiting until the Second Coming. It's just not happening until all the rivers run dry and the stars fall from the sky.

      So now what? Now what, indeed.

      I hope that we can agree that (1) We have made a huge of mess of it; (2) we can't fix it with federal dollars because they simply are not coming; and (3) if we keep stumbling along the current path we will be condemn our children and grandchildren to live like hamsters on a wheel–in a cage filled with crime, addiction, suicide and despair. With apologies to Patrick Henry–I think our response must be:

Forbid it, Almighty God! We know not what course others may counsel–but as for us, we will not rest, we will not waiver, until native children have the same rights and opportunity as the rest of America.

      From here it gets much more difficult. Anyone with any knowledge, insight and empathy could have said what I've said so far. Well intentioned people who know the facts, would, I think, agree with most of what's been said.

      But the solutions open to us require an openness to what is possible. In my previous life as a lawyer I was once called on to listen to a group of Native Americans who sought justice regarding the taking of their lands in contravention of both the constitution and the treaties their ancestors had signed. It was enough to break your heart. Old men, with tattered pieces of yellow paper signed by long dead men, with long abandoned promises, made by men who lacked the legal authority to make them. As we spoke about what was possible–the response of the old ones was not surprising, they weren't interested in more promises they wanted their land.

      Well, I knew and deep down they had to have known as well, that this wasn't going to happen. Even so, they weren't interested in what was possible–they were interested perfect justice. While an understandable answer, this is a problem.

      Some will counsel the people not to give an inch–trying to be cooperative is what has gotten them to where they are now. These people will argue persuasively that promises have been made and they need to be kept. They will point out that all the roads built by the government lead off the reservation–that even now, the government is more concerned with the Chamber of Commerce than they are with native children.

      Some will counsel open resistence. They will set up shadow governments, issue illicit orders and when caught they will be prosecuted. Some of these folks might even resort to violence. They will not help the cause of the children in any way.

      To you, the leaders of your people, I ask that you reject these paths–because in the end the most well-meaning of them will be ineffectual and the least well-meaning is flat out dangerous. To you I offer a different path. One that draws from history, demands cultural fidelity, and still holds out hope for a brighter future. I don't know that it will work, but I do know that what we're doing now isn't working.

      The Aboriginal peoples of North America are not the first subjugated people in the history of the world. The world is filled with ethnic groups that have been defeated and subjected to conquest. There are nearly as many examples of this as there are ethnic groups. Nations, tribes and clans have been conquered in the past–and will be in the future. How they respond to conquest is varied and the results run a wide gamut. Some people have simply ceased to exist–they have been subjected to complete annihilation and assimilation. Have you ever met a Hittite or an Etruscan? Some tribes have gone this route–there are no Patuxet Indians left, for example. Their language is dead, their traditions are dead, and their people are dead. They exist only in history books.

      Some have harbored generations and even centuries of resistence vacillating between the Scylla and Charybdis of passive aggression and armed resistance. These are the nations of people who for a thousand years lay in wait for the day that they will have their revenge–historic examples abound, the Armenians in Turkey, the Serbs in Yugoslavia. This seems to be a recipe for continued oppression until you get the chance to be the oppressor–which I hope doesn't seem very attractive to you.

      And some have simply fallen into isolation, economic deprivation, and endless victimization. They cling to bits of their language and culture but are seemingly trapped in a never ending alternating cycle of being grudgingly accepted and viciously persecuted. An example of this might be the Copts in Egypt.

      But there are cases where subjugated people have had a tremendous impact on the cultures that conquered them. For example, the Greeks may have lost the wars with Rome, but they most certainly changed its culture. The Angles and Saxons were certainly over-run by the Normans, but the common law stands as a clear break from the civil law traditions of the Normans. Our legal traditions are in fact a synthesis of three very different legal traditions: those arising out of the Roman Codes and its successors on continental Europe; those arising out of the Canon Law; and those arising out of northern European traditions of the Angles and Saxons.

      The reality is plain to anyone who studies the question: whether it be juries, grand juries, the limited power of the monarch or the right to be free from double jeopardy–these are traditions arising from the will of conquered peoples, the Saxons and Angles. Face it–politically powerful people don't need Grand Juries to protect them from the state or double jeopardy to keep from being repetitively prosecuted. These are rights fought for and secured by people with limited power–who assert rights to limit the power of a unlimited government.

      If we look beyond the history of Europe and focus in on our own situation in Indian Country, we should note two things: (1) things are not what they should be; and (2) Indian history and traditions might well be the salvation for all of us.

      With their history of talking circles, communal dispute resolution, respect for all who are victims or accused, traditional court practices hold promise for a more therapeutic court system.

      There is fertile ground in these traditional models. It has at its core a desire to make the community whole, rehabilitate the offender, and render the community safe. These are the goals of any humane legal system.

      The great Anglo-American contribution to law is it's deep appreciation for the rule of law and due process. Whoever would try and recreate the tribal justice and governance systems must appreciate that no one involved in the Federal Courts or the broader Federal Government will tolerate any type of legal system that doesn't meet the minimums required by Due Process.

      Friedrich Hayek described the Rule of Law and Due Process as having four fundamental attributes. First, the laws must be general. This is the attribute of having laws that apply to everyone in the society. Due process demands that when a law is enacted it must not be directed to a single individual. It is not a means of personal retribution against an unpopular person. It must on its face, be predictable as to whom it will apply. A law may be limited in its scope to some subset of the society, for example it may well say all plumbers must have a license–which is of no concern to you if you're not a plumber–but to those within its scope, it must be universally applied. Likewise, a law can be in violation of Due Process if it only applies to a single person–say we enact a law that only punishes a particularly unpopular person–say Mr. Zimmerman.

      Second, there must be equality under the law. This is the attribute that the law is no respecter of persons. That everyone who appears in the court will be treated with equal dignity and the laws will apply equally. There will not be one set of rules for people who are favored by the government–and another for those who are disfavored. It must make no difference if the President of the United States or the homeless person living under the bridge is charged with a crime–each must face the same process and procedures.

      Third, the law must possess certainty. This means that the law is not in a constant state of flux. If you make a decision today on what the law is going to be next week, Due Process requires that at least most of the time the law remains the same. The law must possess this sort of continuity. It can't change every time there is an election.

      Finally, due process and the rule of law requires that independent review be available for legal decisions. Thus, due process demands that the judge who makes the decision in the first instance is free from outside influences–that is that he or she fairly calls the balls and strikes. And that on appeal the people conducting the review are free and independent–not lackeys subject to outside pressures. Appellate courts must not be courts where the tribe always wins–they must be courts that conduct full and searching independent reviews.

      As tribal leaders, I urge you to adopt a deep commitment to due process. I would submit that a good starting point is to take the politics out of your courts. This means letting cases proceed to conclusion without interference. This means not removing judges for reaching conclusions you disagree with. This means setting up a meaningful appeals system that has no political agenda–simply a commitment to following the law.

      A failure to meet these goals is devastating. No one from outside will ever do business on the reservations if they believe that the tribal members always win. economic improvement will not occur on a reservation because the tribe adopts the U.C.C. unless there is a court system that fully conforms to Due Process. Having the UCC without due process is like painting the walls, replacing the carpet and renovating a hotel without heat or running water. It looks nice but whoever you expect to attract isn't going to show up. Unless you fix the impression of unfairness and unpredictability–there can be no long term solution to what ails Indian Country.

      Since I've already said something to irritate nearly everyone in the room–I will go one step further. Corruption, real or perceived is a problem as well. I was recently told by someone whose judgment I value extremely highly, "Judge corruption isn't part of our culture–it was taught to us by corrupt Indian agents and government officials." I can't really argue with that one. I mean our government sent people out here to work with native people who said things like "let them eat grass and dung" and who gave them blankets that they knew carried smallpox virus. Good lord, the example the government set. What kind of government does this to its own citizens?

      But remember at that time corruption was not unknown in the Dakotas. Alexander McKenzie and his cronies were not exactly paragons of virtue. Widespread illegal activities like prostitution, gambling and illegal liquor sales were tolerated in our states well into the last century. I remember being in law school and having a former justice of the North Dakota Supreme Court telling us to be careful when relying on cases decided by the territorial courts and the first supreme court of the North Dakota because they "weren't very good judges." At the time I thought he was telling us that they weren't very smart. It wasn't until much later that it dawned on me that he was telling us that they were corrupt and the McKenzie men always won–except when they weren't in power–at which time they always lost. Well that period of history ended in our state governments when the people demanded good government.

      Those good government movements in history provide us with some meaningful advice. At a minimum if we choose to have the rule of law flower in Indian Country need to accomplish three foundational tasks.

      First, the spoils system must be eliminated. Government cannot be viewed as a vehicle to reward your family and your friends. The agencies within the government must be filled with professional civil servants–civil servants who will follow the policies established by the government so long as they are consistent with law. Think about it–my clerks of court do the same job whether a Republican is President or a Democrat. They follow the same laws and policies that are duly enacted regardless whether they like the president or don't like him. When given an illegal order–hopefully that never happens–but if they are given such an order they won't follow it. If their supervisor tries to fire them, a process is in place that protects them. More often than not the person who gave the illegal order is the one to go. The lesson is simple, each of us owes a duty to the public–not just some favored segment of it. Just as the states had to turn away from corruption, bribery and spoils–so must the tribes.

      Second, the judges must be independent. While this is already a fact on some reservations it is not true on all of them. The bottom line is a judge should not be removed from office because you disagree with his or her decision on the law–that's why there are appeals courts. If an unpopular decision is affirmed–the answer is to change the law, not the judge. My own philosophy in this regard was always simple–I never worried about losing an election, I made a living before I became a judge and I'd do it again–but there was no way I was going to compromise my integrity by pandering to the electorate. The same must be true about the men and women the tribes entrust with judgeships. Tribal councils must appreciate that separation of powers is good for them because it is good for the people. The time for bullying judges passed away in the states decades ago and it must pass from Indian Country now.

      Third, courts must be given adequate resources to do their work. Courts cost money–and doing justice isn't cheap. Even so, the costs of not having a functional court system are much higher. If you think that the you can't afford the cost of justice, I would only point out that the price of injustice is always higher. If you sew injustice you will reap despair, disharmony and lawlessness. While I understand that elections are lost by doing the right thing sometimes–it is better to have lost doing the right thing than preserving a system that will predictably fail your children.

      It is true, however, that you will never be able to raise enough revenue to have you courts operate exactly like the federal courts and that's good news. Federal Courts would be culturally inappropriate in Indian country. Our courts operate on a theory that incarceration is a preferred method of punishing crime. Tribal courts should reject that notion for two reasons. First, you don't need more of your sons and daughters in prison. You need more of your sons and daughters clean, healthy, sober, educated and employed. The systems of justice you operate should be designed to do just that. Do not be seduced by the siren song that says what the Federal and the States are doing is right for you. Tribal Judicial systems must reflect your traditional values of restitution, rehabilitation and reintegration.

      Second, you must reject the notion that you should be like the state and federal courts because the our system is terribly expensive, hopelessly inefficient, and exacts a dreadful toll in human terms. You also must not be mislead into believing that "rehabilitation" means spending six months in a half-way house or in a treatment center. While that might be true in some very hard cases–for the most part it means simply holding people accountable. In some cases this might mean fines and incarceration–but in many others, if not most, it might be accomplished by making the convicted person give back to the communities. If you look at the reservations there are no shortages of projects that need doing–and you should not hesitate to do them through the use of creative sentencing, where appropriate. This is not a quick solution. It is not an easy solution. But this much I know–if you begin to do the hard work of rebuilding your communities, if you implement plans that make crime victims whole while holding the perpetrators accountable and reintegrating them back into the community you will find partners.

      It is much easier to get people to help you when you can point to some half-finished job that is being done exceptionally well and say, "look what we've done. Isn't it amazing? Imagine what we could do with just a little outside help." Believe me, when good things start happen in Indian Country there will be people who are willing to help. Right now, everyone is paralyzed by the scope of the problem. No one knows where to turn. But the truth is–this isn't much different than walking into a house that has been seriously damaged in a flood.

      The first thing you need to do is grieve–you stand in the doorway and cry. Maybe you are too overwhelmed to do much the first day–maybe all you accomplish is grieving. On the second day when you arrive you can do one of two things, you can decide to wait for "adequate resources" to get the job done–or you can start cleaning things up–one bucket of muck at a time. If you wait for the resources to arrive, it probably never gets done. If you start hauling out the much one bucket at a time, you'll be surprised how many folks will show up before the job is done. Lots of folks are willing to help someone who is helping himself. Many are standing there confused about what needs to be done next.

      I think that the people in Indian Country have grieved long enough. I think the time for sorrow is over. I think the time to start rebuilding is now. But what I think is unimportant–the real question is: "What do you think?"

      You have one great resource that no one can take away from you–your people. The people in Indian Country are heroic survivors. You have withstood the storm, You have survived the assault–and now You must be about the business of rebuilding. I do not ask You to forget the promises that have been made to you–instead I ask you to shame Washington into doing what they've promised.

      This job seems awfully crazy in some ways. But the truth is always stranger than fiction. I believe that the government is well intentioned–but they too are overwhelmed. This much we do know the federal government has an obligation to prosecute the major crimes and the assimilated crimes–and they have promised to honor this obligation. The Courts and the DOJ they take their job seriously. But you should remember that the job of the DOJ is to deal with the third class of offender–the ones who are too dangerous to live in the community.

      This frees up the tribes resources to concentrate on mid-level and low-level crime. These are the areas where you need to focus. Why? Because these are the crimes that just plain old wear people down. They are the crimes that promote despair in your community. You see and hear the complaint of low level crime unprosecuted every day–why bother they'll just do it again tomorrow. So the graffiti goes uncleaned, the people shrink from the drunk and disorderly, and the convenience stores raise prices to 40% more than they are 15 miles away to deal with the shrink due to shoplifting.

      This cycle can be stopped by taking this crime seriously. A system that puts people to work mitigating the effects of crime and putting children first can begin to change Indian Country a little at a time. By creatively approaching sentencing the tribes can develop a system of tribal justice that makes neighborhoods clean, safe and drug and alcohol free. It really can be done–but it is only going to happen one house, one neighborhood at a time. Remember, our goal here is to intervene in the lives of low level offenders who really don't know any better before they develop into violent or hardened criminals.

      It is often said that the states are the laboratories of democracy and this is in fact true. But in our justice system, the tribes can be the laboratories of rehabilitative, reintegrative and restorative justice. The days of trying to build prison cells to fix our problems are coming to an end. Creative ways of making our communities safer without spending buckets full of money are going to be the order of the day. Because of their size, the tribes are uniquely placed to provide experimentation on how to save our communities.

      The tribes also have a great underutilized asset in this effort–their people. Your people want to make their communities safer and better–they just don't know what to do first. It's just like standing there in the doorway of the flooded house looking at the muck–no one is likely to just plunge in without some direction. Tribal government needs to be the catalyst for this change. Tribal government must not allow the perfect to become the enemy of the good. In a perfect world a promise made would always be kept–and perhaps some day they will be kept. But for now, we need to save our children–one at a time if need be. If this is done–the tribes will become beacons of light and hope–and might well be an inspiration for the rest of America. As I said, the tribes just might be our best hope to get off the endless cycle of incarceration.

      The choice set before you is simple. Either you will continue the current path or you will strike out in a new direction. I suggest that the best new direction, isn't very new at all. It is reintegrating the values you've always held in a modern way to meet the current needs of your people. I would remind you of something I learned decades ago when I first got sober–it wasn't money or power or prestige that ailed me when I was still very sick–it was my heart. Fix the heart of the tribe–fix the child's world, make the place they live safe and clean and sober–and you will fix the world. It will not be easy, but it can be done–one family at a time.

      Thank you for your kindness. I hope that in the course of your life you laugh often, love much and rest in the joy of knowing a job well done.


Click here to listen to the audio of the Hon. Ralph R. Erickson's speech
(MP3 format, 12.77MB)




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