Produced by The Online Distributed Proofreading Team at
https://www.pgdp.net (This file was produced from images
generously made available by The Internet Archive/American
Libraries.)






SIOUX INDIAN COURTS



AN ADDRESS DELIVERED BY

DOANE ROBINSON

OF PIERRE, SOUTH DAKOTA

BEFORE THE

SOUTH DAKOTA BAR ASSOCIATION

AT PIERRE, SOUTH DAKOTA

JANUARY 21, 1909



R. C. SESSIONS & SONS
SIOUX FALLS S. D.




SIOUX INDIAN COURTS


In their primitive life the Sioux Indians of North America had an
intelligent system of jurisprudence, varying somewhat in the different
bands, as our court practice varies in the several states, but
nevertheless recognizing the same general principles throughout the
confederacy.[1]

      [1] Most writers upon Indian life have noted the existence of
      these courts. Since undertaking this paper, I have consulted
      Hump, One Bull, Wakutemani and Simon Kirk, all intelligent Sioux
      and, save as otherwise noted, they are my authorities for the
      statements herein contained.

It is not an easy thing to determine the laws or the practices of an
unlettered people, who have abandoned the wild and primitive life to
live under regulations prescribed by their conquerors, and who must
depend upon tradition and recollection for the practices of the old
life; but fortunately intelligent observers have from time to time,
during the past two and one half centuries, noted their observations,
and these, supplemented by the recollections of the older men now
living, give to us a fairly clear understanding of the courts and the
legal practices of these people.

Primarily the Sioux government was by clans,--patriarchal; but within
the clan it very nearly approached the representative republican form.
The council was the representative body which gave expression to the
will of the people. True the council was selected by the chief of the
clan, but his very tenure of office depended upon his using the nicest
discretion in inviting into his cabinet the men of character, valor and
influence, so that the body was almost invariably entirely
representative of popular views and interests. Caste cut a considerable
figure; indeed it has been said by those most intimate with Sioux life
that there is as much caste among the Dakotas as among the Hindus.[2]
Only high caste men of course would be permitted to sit in the
deliberations, but when a council was to be convened the ordinary
practice was for the chief's crier to go out and announce to the camp
that a matter was to be considered in council, and the head men at once
assembled and seated themselves in the council circle as a matter of
course and of right.[3] The chief, unquestionably a man of courage and
physical power, was an executive officer who rarely asserted arbitrary
rule, particularly in civil affairs, for the Sioux were too high
spirited a people to tolerate anything savoring of despotism. Usually
he was suave, diplomatic and tolerant, and enjoyed the affection and
veneration of his people. Most public affairs were determined in the
general council, including many subjects naturally falling within the
jurisdiction of courts of justice, but aside from the council were two
distinct courts, one exercising jurisdiction in matters civil and
criminal in times of peace; the other taking the broadest and most
comprehensive jurisdiction of all things military, and in time of war
assuming jurisdiction in all of the affairs of the people, arbitrarily
placing the camp under martial law.

      [2] Miss Mary C. Collins, for thirty-three years missionary among
      the Tetons, especially the Hunkpapa and Blackfoot bands.

      [3] Letter of Dr. Thomas L. Riggs, to writer, June, 1903.

The judges of these courts were usually twelve in number and held their
places by hereditary right, though occasionally some low caste man,
through some brilliant exploit would break into this exclusive and
aristocratic circle and sometimes even exercised dominating influence
which the aristocrats dared not oppose, though he was still regarded as
a plebian upstart, and was despised by the upper ten, and his rank died
with him. Ordinarily from seven to twelve judges sat for the trial of
causes, but sometimes even a greater number were permitted. The civil
court in time of peace took cognizance of civil and criminal matters
arising in the band. Civil actions usually grew out of disputes about
the ownership of property and the court patiently heard the testimony
of the parties and witnesses and at once determined the ownership of
the article, delivered it to the successful litigant and the decision
was never reviewed or questioned. A majority of the court determined
the judgment.

Criminal matters of which the court took cognizance were assaults,
rapes, larceny and murder; all crimes against persons; and if committed
against a member of the tribe were severely dealt with. Sometimes it
was necessary to prove the crime by competent witnesses, and the court
was the judge of the credibility of these who testified, but rarely,
however, was it necessary to summon witnesses, for if the accused was
really guilty it was a point of honor to admit the offense and take the
consequences. Thus the real responsibility resting upon the court in
most cases was to determine the penalty. Usually a severe penalty was
imposed which could be satisfied by the payment of a certain number of
horses or other specific property to the injured party, or his family,
but if the offense was peculiarly repellent to the better sentiment of
the camp the court might insist upon the summary infliction of the
sentence imposed. This might be the death penalty, exile or whipping;
or it might be the destruction of the teepee and other property of the
convict. These latter penalties were, however, usually reserved for
another class of offenses; crimes which were against the community
rather than against an individual. These offenses were generally
violations of the game laws and the offender could expect little mercy.
How reasonable this policy was will be readily understood when we
recall that the subsistence of the entire nation depended almost
entirely upon the preservation of the wild game. The individual, who
would wantonly kill game fit for food, or frighten it away needlessly
from the vicinity of the camps was a public enemy and was treated
accordingly. He was fined, his property destroyed, he was whipped, or
if a persistent offender, he was reduced from his position as a hunter
and made to do the menial duties of a squaw; the latter being the most
humiliating and terrible sentence which could be imposed, deemed much
worse than death and if the convict was a man of ordinary spirit he
usually chose to commit suicide in preference.[4]

      [4] Interview with Joseph LaFramboise of Veblen, a Sisseton, at
      Sioux Falls, in October, 1900.

For some offenses a convict was exiled from the camp, given an old
teepee and a blanket, but no arms, and was allowed to make a living if
he could. Sometimes he would go off and join some other band, but such
conduct was not considered good form and he usually set up his
establishment on some small hill near the home camp and made the best
of the situation. If he conducted himself properly he was usually soon
forgiven and restored to his rights in the community. If he went off to
another people he lost all standing among the Sioux and was thereafter
treated as an outlaw and a renegade. The entire band of Inkpaduta, once
the terror of the Dakota frontier, was composed of these outlaws.[5]

      [5] Flandreau's Minnesota.

The camp policeman was a most important officer of the court and he
frequently took upon himself the adjudication of petty quarrels and the
summary punishment of small offenses committed within his view. He was
appointed by the chief for one or more days' service and he made the
most of his brief span of authority. In addition to executing the
orders of the court he was always on watch to preserve the tranquility
of the camp during the day and he stood upon guard at night. When
ordered to do a thing it was a point of honor to accomplish it or die
in the attempt. He was a peace officer, delighting to fight for peace'
sake at any time.[6]

      [6] Journal of Lewis and Clark September 26th and 27th, 1804.

While the civil court was composed of the "elder statesmen" the
military court was composed of the war chief and his most distinguished
braves, and, as has been before suggested herein, exercised unlimited
power in time of war and was implicitly obeyed. It took jurisdiction of
all matters growing out of infractions of the "Articles of War" and of
all the civil and criminal affairs of the tribe as well. There was no
appeal from its judgments and its sentences were summarily executed. An
anecdote will illustrate something of its practice: In the campaign of
1876, after the affair at Little Big Horn, Grey Eagle, a Hunkpapa
headman of good family and with a good military record, was charged
with stealing a horse from another warrior of the Sioux forces. He
denied the charge but the property was in his possession and he could
not satisfactorily explain his connection with it. He was placed upon
trial, witnesses summoned and he was convicted of the theft and
sentenced to be whipped, a punishment most befitting the mean estate of
a squaw. The sentence was executed in full view of the entire camp.
Grey Eagle continued in the campaign, fighting valiantly at every
opportunity, but he was filled with an intense desire for revenge
against the court and particularly against Sitting Bull, a plebian who
had compelled recognition from the aristocrats, and whom the convict
believed to be especially responsible for his humiliation. Though not
apropos to this discussion it may be of interest if I shall add that
after the lapse of fourteen years, one December morning in 1890 when a
party of native policemen, inspired very largely by the aristocratic
hatred for the presumptuous plebian, came down upon the home of Sitting
Bull and effected his arrest and were taking him away through an
excited throng of his friends, the voice of Grey Eagle, from out in the
darkness shouted: "Sitting Bull is escaping, shoot him, shoot him!"
whereupon began the outbreak which within the moment resulted in the
death of the old medicine man and seventeen of the police and
Indians.[7] It, too, may be of further interest to relate that at the
present time Grey Eagle is the Chief Justice of the native court at
Bullhead Station, South Dakota.

      [7] Related by Miss Mary C. Collins, April, 1908.

Among the duties of this court was to determine the limits of each
day's march when out upon a campaign, and to regulate the camping
places. This was an important function, for the army subsisted off the
country and unless the utmost care was exercised "the base of supplies"
would be frightened away and the band subjected to starvation.

A court very similar to the military court was likewise organized for
each great hunting expedition and given absolute control of the general
movement, but this hunting court did not interfere with the ordinary
jurisdiction of the civil court in matters of personal disputes,
personal injuries and the like. In 1841, General Henry H. Sibley, of
Minnesota, proposed to the Indians residing about his home at Mendota
that they go down to the "Neutral Strip" in Northern Iowa for a long
hunt. The Sioux were agreeable, and to get the matter in form Sibley
made a feast to which all of the natives were invited. After eating and
smoking several hundred painted sticks were produced and were offered
for the acceptance of each grown warrior. It was understood that
whoever voluntarily accepted one of these sticks was solemnly bound to
be of the hunting party under penalty of punishment by the soldiers if
he failed. About one hundred and fifty men accepted. These men then
detached themselves from the main body and after consultation selected
ten of the bravest and most influential of the young men to act as
members of the hunting court. These justices were called soldiers.
Every member bound himself to obey all rules made by the court. A time
was then fixed for the start. At the appointed time and place every one
appeared but one man who lived twelve miles distant. Five of the court
at once started out to round him up. In a few hours they returned with
the recalcitrant and his family, and with his belongings packed upon
his horses. He was duly penitent and not subjected to punishment,
though he was severely threatened in case he again failed. General
Sibley thus tells the story.[8] "We," Sibley and his white friends,
"became subject to the control of the soldiers. At the close of each
day the limits of the following day's hunt were announced by the
soldiers, designated by a stream, grove, or other natural object. This
limit was ordinarily about ten miles ahead of the proposed camping
place and the soldiers each morning went forward and stationed
themselves along the line to detect and punish any who attempted to
pass it. The penalty attached to any violation of the rules of the camp
was discretionary with the soldiers. In aggravated cases they would
thresh the offender unmercifully. Sometimes they would cut the clothing
of the man or woman entirely to pieces, slit down the lodge with their
knives, break kettles and do other damage. I was made the victim on one
occasion by venturing near the prohibited boundary. A soldier hid
himself in the long grass until I approached sufficiently near when he
sprang from his concealment and giving the soldiers' whoop rushed upon
me. He seized my fine double barreled gun and raised it in the air as
if with the intention of dashing it to the ground. I reminded him that
guns were not to be broken, because they could be neither repaired or
replaced. He handed me back the gun and then snatched my fur cap from
my head, ordering me back to camp, where he said he would cut up my
lodge in the evening. I had to ride ten miles bareheaded on a cold
winter day, but to resist a soldier while in the discharge of duty is
considered disgraceful in the extreme. When I reached the lodge I told
Faribault of the predicament in which I was placed. We concluded the
best policy, would be to prepare a feast to mollify them. We got
together all the best things we could muster and when the soldiers
arrived in the evening we went out and invited them to a feast in our
lodge. The temptation was too strong to be resisted." They responded,
ate their fill, smoked and forgave the "contempt of court," which
indicates that the judiciary, even in that primitive time, was not
wholly incorruptible.

      [8] Minnesota Historical Collections, Vol. III.

                    *      *      *      *      *

The modern Sioux Courts, organized under the authority of federal law
and in accordance with the rules of the Indian Department, are perhaps
of more interest to lawyers than the courts of the primitive tribes.
The modern courts were first proposed by General William S. Harney, in
1856 and were provided for in the treaty made at Port Pierre in March
of that year, which unfortunately was not ratified by the senate.[9] It
can scarcely be doubted that had Harney's scheme for making the Sioux
responsible to the government for the conduct of their own people been
adopted, much bloodshed and treasure would have been saved.

      [9] This treaty was not ratified because of the large expenditure
      which would be demanded to uniform and subsist the police force.
      Afterwards we spent in a single year for the subjugation of the
      Sioux sufficient money to subsist the police for a century.

It was not until after the Red Cloud war ended in 1868 that the courts
for Indian offenses, equipped by the Indian themselves, began to be
tried at some of the agencies in a small way. The Sissetons and Santees
were first to give them a trial and eventually they were supplied to
all the Reservations except the Rosebud, which, for some reason of
which I have been unable to secure information, has never had them.

The following general rules governing courts of Indian Offenses
pursuant to the statute have been adopted by the Indian Department:[10]

      [10] Rules and Regulations of the Indian Office governing Indian
      Reservations. Letter of Hon. John R. Brennan, agent at Pine
      Ridge, April, 1908.

    First: When authorized by the Department there shall be established
    at each agency a tribunal consisting ordinarily of three Indians,
    to be known as "the Court of Indian Offenses," and the members of
    said court shall each be styled "judge of the Court of Indian
    Offenses."

    Agents may select from among the members of the tribe persons of
    intelligence and good moral character and integrity and recommend
    them to the Indian Office for appointment as judges; provided,
    however, that no person shall be eligible to such an appointment
    who is a polygamist.

    Second: The court of Indian Offenses shall hold at least two
    regular sessions in each and every month, the time and place for
    holding said sessions to be agreed upon by the judges, or a
    majority of them, and approved by the agent; and special sessions
    of the court may be held when requested by three reputable members
    of the tribe and approved by the agent.

    Third: The court shall hear and pass judgment upon all such
    questions as may be presented to it for consideration by the agent,
    or by his approval, and shall have original jurisdiction over all
    "Indian offenses" designated as such by rules 4, 5, 6, 7 and 8 of
    these rules. The judgment of the court may be by two judges; and
    that the several orders of the court may be carried into full
    effect, the agent is hereby authorized and empowered to compel the
    attendance of witnesses at any session of the court, and to
    enforce, with the aid of the police, if necessary, all orders that
    may be passed by the court or a majority thereof; but all orders,
    decrees, or judgments of the court shall be subject to approval or
    disapproval by the agent, and an appeal to and final revision by
    the Indian Office; _Provided_, that when an appeal is taken to the
    Indian Office, the appellant shall furnish security satisfactory to
    the court, and approved by the agent, for good and peaceful
    behavior pending final decision.

    Fourth: The "sun dance," and all other similar dances and so-called
    religious ceremonies, shall be considered "Indian offenses" and any
    Indian found guilty of being a participant in one or more of these
    offenses shall, for the first offense committed, be punished by
    withholding from him his rations for a period not exceeding ten
    days; and if found guilty of any subsequent offense under this
    rule, shall be punished by withholding his rations for a period of
    not less than fifteen days nor more than thirty days, or by
    incarceration in the agency prison for a period not exceeding
    thirty days.

    Fifth: Any plural marriage hereafter contracted or entered into by
    any member of an Indian tribe under the supervision of a United
    States Indian Agent shall be considered an "Indian offense"
    cognizable by the court of Indian offenses; and upon trial and
    conviction thereof by said court the offender shall pay a fine of
    not less than twenty dollars, or work at hard labor for a period of
    twenty days, or both, at the discretion of the court, the proceeds
    thereof to be devoted to the benefit of the tribe to which the
    offender may at the time belong; and so long as the Indian shall
    continue in this unlawful relation he shall forfeit all right to
    receive rations from the government. And whenever it shall be
    proven to the satisfaction of the court that any member of the
    tribe fails, without proper cause, to support his wife and
    children, no rations shall be issued to him until such time as
    satisfactory assurance is given to the court, approved by the
    agent, that the offender will provide his family to the best of his
    ability.

    Sixth: The usual practices of so-called "medicine men" shall be
    considered an "Indian offense" cognizable by the court of Indian
    offenses, and whenever it shall be proven to the satisfaction of
    the court that the influence of a so-called "medicine man" operates
    as a hindrance to civilization of a tribe, or that said "medicine
    man" resorts to any artifice or device to keep the Indians under
    his influence, or shall adopt any means to prevent the attendance
    of children at the agency schools, or shall use any of the arts of
    the conjurer to prevent the Indians from abandoning their
    heathenish rites and customs, he shall be adjudged guilty of an
    "Indian offense," and upon conviction of any one or more of these
    specified practices, or any other, in the opinion of the court, of
    an equally anti-progressive nature shall be confined in the agency
    guardhouse for a term not less than ten days, or until such time as
    he shall produce evidence satisfactory to the court, and approved
    by the agent, that he will forever abandon all practices styled
    "Indian offenses" under this rule.

    Seventh: Any Indian who shall wilfully destroy, or with intent to
    steal or destroy, shall take and carry away any property of any
    value or description, being the property free from tribal
    interference, of any other Indian or Indians, shall, without
    reference to the value thereof, be deemed guilty of an "Indian
    offense," and, upon trial and conviction thereof, by the court of
    "Indian offenses," shall be compelled to return the stolen property
    to the proper owner, or, in case the property shall have been lost
    or destroyed, the estimated full value thereof, and in any event
    the party or parties so found guilty shall be confined in the
    agency guardhouse for a term not exceeding thirty days; and it
    shall not be considered a sufficient or satisfactory answer to any
    of the offenses set forth in this rule that the party charged was
    at the time a "mourner," and thereby justified in taking or
    destroying the property in accordance with the customs or rites of
    the tribe.

    Eighth: Any Indian or mixed blood who shall pay or offer to pay any
    money or other valuable consideration to the friends or relatives
    of any Indian girl or woman, for the purpose of living or
    cohabiting with said girl or woman, shall be deemed guilty of an
    "Indian offense," and upon conviction thereof shall forfeit all
    right to government rations for a period at the discretion of the
    agent, or be imprisoned in the agency guardhouse for a period not
    exceeding sixty days; and any Indian or mixed blood who shall
    receive or offer to receive any consideration for the purposes
    hereinbefore specified shall be punished in a similar manner as
    provided for the party paying or offering to pay the said
    consideration; and if any white man shall be found guilty of any of
    the offenses herein mentioned he shall be immediately removed from
    the reservation and not allowed to return thereto.

    Ninth: In addition to the "offenses" hereinbefore enumerated, the
    court of "Indian offenses" shall also have jurisdiction (subject to
    the provisions of rule 3) of misdemeanors committed by Indians
    belonging to the reservation, and of civil suits where Indians are
    parties thereto; and any Indian who shall be found intoxicated, or
    who shall sell, exchange, give, barter or dispose of any
    spirituous, vinous, or fermented liquors to any other Indian, or
    who shall introduce or attempt to introduce under any pretense
    whatever any spirituous, vinous, or fermented liquors on the
    reservation, shall be punishable by imprisonment for not less than
    thirty days nor more than ninety days or by withholding of
    government rations, therefrom, at the discretion of the court and
    approval of the agent.

The civil jurisdiction of such court shall be the same as that of a
justice of the peace in the State or Territory where such court is
located, and the practice in such civil cases shall conform as nearly
as practicable to the rules governing the practice of justices of the
peace in such State or Territory, and it shall also be the duty of the
court to instruct, advise and inform either or both parties to any
suit in regard to the requirements of these rules.

Under these rules the courts are organized and hold their sittings at
such times and places as will be most convenient for the people, as for
illustration, upon the Cheyenne River Reservation one judge sits at
each substation at each semi-monthly ration issue, and if for any
reason a party is dissatisfied with his decision, he has a right to
appeal his case to the entire bench which sits for the purpose at the
agency at regular intervals[11].

      [11] Letter of Prof. C. W. Rastall, Superintendent at Cheyenne
      River, April, 1908.

Persons convicted of such offenses as come within the jurisdiction of
the court are committed to the guard-house for a stated period, and are
required to work in keeping up the grounds about the agency or
substation, as the case may be. They make very little trouble and
rarely does one attempt to escape, though they work without guard.[12]

      [12] Letter of T. W. Lane, agent at Crow Creek, April, 1908.

The Indian people generally have great respect for the judges of their
courts and the latter show much wisdom and discretion in their
decisions, though they do not always place the white man's estimate
upon the relative enormity of offenses. I was present at a session of
the Cheyenne river court in 1892, when two parties accused with crime
were brought before it. One was charged with stealing a picket pin of
the value of thirteen cents and he got thirty days in the guard-house,
while the other, convicted of a rape, got ten days.

Formerly the judges were not compensated, but now they receive a
nominal salary,--from five to ten dollars per month,--and their board
while sitting. It is regarded as a great distinction to be chosen
to the bench and the courts administer the law, as they understand
it, with dignity and firmness.[13] There are no lawyers upon the
reservations but a friend may appear for a party to an action, or one
accused of an offense and the trials are conducted with much formality
and the pleas are frequently shrewd and eloquent. Every Indian is an
orator by nature, and the courts afford the best modern opportunities
to display their gifts.

      [13] Letter of Major Brennan.

The police force upon all of the reservations is composed of the
natives and they are highly efficient and render great assistance to
the courts in preserving the peace and in bringing offenders to
justice. It is a point of honor for a Sioux policeman to do his whole
duty regardless of obstacle and neither kin nor friend can expect
leniency if he stands in the way of duty, and this is equally true of
the courts. It is not an infrequent thing for the judge to try his son
or near relative and in such cases the accused is sure to get the limit
of the law.[14]

      [14] Interview with Solomon Two Stars, hereditary chief of
      Sissetons, August, 1901. Monthly South Dakotan, December, 1901.

Without exception the Indian authorities commend the native courts and
policemen for fidelity and effective administration of justice.




Footnotes


[1] Most writers upon Indian life have noted the existence of these
courts. Since undertaking this paper, I have consulted Hump, One Bull,
Wakutemani and Simon Kirk, all intelligent Sioux and, save as otherwise
noted, they are my authorities for the statements herein contained.

[2] Miss Mary C. Collins, for thirty-three years missionary among the
Tetons, especially the Hunkpapa and Blackfoot bands.

[3] Letter of Dr. Thomas L. Riggs, to writer, June, 1903.

[4] Interview with Joseph LaFramboise of Veblen, a Sisseton, at Sioux
Falls, in October, 1900.

[5] Flandreau's Minnesota.

[6] Journal of Lewis and Clark September 26th and 27th, 1804.

[7] Related by Miss Mary C. Collins, April, 1908.

[8] Minnesota Historical Collections, Vol. III.

[9] This treaty was not ratified because of the large expenditure which
would be demanded to uniform and subsist the police force. Afterwards
we spent in a single year for the subjugation of the Sioux sufficient
money to subsist the police for a century.

[10] Rules and Regulations of the Indian Office governing Indian
Reservations. Letter of Hon. John R. Brennan, agent at Pine Ridge,
April, 1908.

[11] Letter of Prof. C. W. Rastall, Superintendent at Cheyenne River,
April, 1908.

[12] Letter of T. W. Lane, agent at Crow Creek, April, 1908.

[13] Letter of Major Brennan.

[14] Interview with Solomon Two Stars, hereditary chief of Sissetons,
August, 1901. Monthly South Dakotan, December, 1901.