And now:Ish <[EMAIL PROTECTED]> writes:
Champion of the American Indian
threatens hard-won autonomy
http://www.boston.com/dailyglobe2/037/nation/Champion_of_the_American_India
n_threatens_hard_won_autonomy+.shtml
By Kate Zernike, Globe Staff, 02/06/99
o many, Russell Means is the emblem of the American
Indian, storming Plymouth Rock, leading the Sioux
uprising at Wounded Knee, running alongside Daniel Day
Lewis in ''The Last of the Mohicans,'' and giving voice to
Pocahontas's Daddy.
As the first leader of the American Indian Movement, he
championed Indian sovereignty and self-determination,
turning his trial after the Wounded Knee uprising in the
1970s into a forum for righting the wrongs of whites against
indigenous people.
But if Russell Means once embodied Indian sovereignty,
now, it seems, he is bent on destroying it.
With a dramatic trial of the Navajo Supreme Court to take
place at Harvard Law School today, Indian country is
watching in horror at the prospect that the man who has
come to symbolize the American Indian will argue that
Indians do not have the right to police crime on their own
lands.
With Means threatening to take his case to the US Supreme
Court, today's trial is reverberating across native lands where
Indians are struggling with increased violent crime and
questions of who controls lands that, more and more, aren't
home to just Indians but to intermingling, intermarrying
populations.
Means, an Oglala Sioux, was arrested in 1997 at his home in
the Navajo Nation in Arizona for threatening and assaulting
his father-in-law and another Navajo man.
He is being tried in the Navajo Supreme Court, according to
a 1991 law under which Congress gave Indian tribes the
right to prosecute non-member Indians. But Means and his
lawyer argue that Congress didn't have the authority to do
that. The US Supreme Court has already ruled that Indians
can't prosecute non-Indians. To allow prosecution because
he is Indian, Means claims, discriminates against him
because he is not, say, white or black.
The Navajo Supreme Court, in existence since 1959 and put
under Navajo common law in 1985, is conducting its trials at
universities across the country to curry credibility for the
Indian justice system with the American public. The court
selected this case to bring to Harvard because of the
expected significance of the ruling.
If Means and his lawyers pursue the issue to the US
Supreme Court, as they say they intend, Indian-law
specialists say it could become a defining case for questions
about the legitimacy of the Indian justice system and the
powers that Congress has given to American Indians. And
with a conservative court, the Navajo fear that they are
almost certain to see those rights erode.
That the nascent Navajo court system will hold trial in the
nation's oldest and most establishment law school is perhaps
the least of the curious twists in the Means case.
The crowning irony is that it is Russell Means accusing the
Indians of racism. While many Indians still hold him as a
hero, his most recent fight has made many see him as a
fraud.
''In Navajo country, a lot of people believe in prophecy and
events coming together, synchronicity, and they think there
is something of that going on here,'' said Robert Williams, a
University of Arizona law professor who is a visiting
professor at Harvard this semester. ''With the irony of it all,
it's as if the Creator is sending a message. That the best
known Indian advocate could have his name on the case
which undermines the protection of Indian rights - from an
Indian perspective, all the signs are for something horrible to
happen.''
Even the American Indian Movement he founded has
recently proclaimed that it is ''distancing'' itself from
Means.
Means himself won't be at the Ames Courtroom at Harvard
when three Navajo justices sit in their black robes to hear his
case. An announcement on his Web page says he is in
Ecuador fighting for the rights of indigenous people.
Means's case began with a complaint filed on Dec. 28, 1997,
charging him with threatening and assaulting the two men.
But the facts of the alleged assaults aren't the matter in
dispute. At issue in the Navajo Supreme Court is whether it
has the power to decide the case.
Indian-law specialists say the US Supreme Court expanded
the power of Indian courts from the 1950s to the 1970s.
There are now 150 Indian trial courts in the United States,
the Navajo the largest of them, hearing 70,000 cases a year,
about 55 percent of those criminal.
But the US courts began restricting the power of Indian
criminal prosecutions in 1979 when it ruled that Indian
courts could not prosecute non-Indians. In 1990, the courts
ruled further that tribal courts could not prosecute Indians
who were not members of the tribe.
A year later, Congress passed a law reversing that decision.
And the lawyer who won the Supreme Court case, John
Trebon, began looking for a case with which he could
challenge Congress.
''Russell Means,'' Trebon said yesterday, ''is that case.''
The Navajo say because Means had lived on their nation for
a long time when he allegedly assaulted the two men - he has
since remarried and moved to southern California - he
consented to Navajo custom, becoming what is known as
''hadane'', which loosely translated means a kind of
common-law Navajo.
Trebon argues this is a ''legal fiction.''
''Why would non-member Indians be inherently members,
and not non-Indians, if they both have the same consent
relationships? It's just because of race that we [as whites]
can't be subjected to Indian jurisdiction but non-members
can. That just doesn't compute.''
Trebon says the federal government should be prosecuting
crimes by non-member Indians, as they do with whites. But
others argue this is unrealistic.
''We're a couple of hundreds of miles from the nearest
sizable town. When we're dealing with the level of crime we
are, are we expected to send for someone there? It creates a
problem of control,'' said James Zion, solicitor for the
Navajo Nation.
If anything, some say, increased intermarrying and
movement among Indian nations argues for increased Indian
jurisdiction.
''The theory has been that if two bad white men had a
shootout, the sheriff comes in and takes care of it,'' said
Bobo Dean, a lawyer who specializes in Indian law in
Washington, D.C. ''That was probably in some cases a good
thing. But it presupposed the absurd notion that if two white
people had a shootout in the middle of an Indian town, that
it didn't involve the Indians who had to duck and get away.
That basic principle was wrong.
''There is so much movement back and forth that just as it
undermines Indian law to have white people immune from
tribal law, it undermines it to have non-members be
immune.''
The Navajo Supreme Court is expected to issue a ruling in
several months.
To Chief Justice Robert Yazzie, the issue is broader than the
Means case, and broader even than jurisdictional issues.
''The thing that works against us as a nation is ignorance,
indifference, and arrogance,'' he said. ''There's not been a
recognition or respect for Indian tribal courts, and again
that's out of arrogance and indifference. We have all the
foundations to run a fair system, and we think that should be
recognized.''
The ultimate goal of the Navajo court, he said, is to restore
relationships that have ''fallen to pieces.''
''The more respect is restored to a disrupted
relationship,'' he
said, ''the better chance there is to restore stability in
individuals, in families, in communities.''
But many Navajo doubt there can be any restoring of the
relationships between them and Means.
''I think it is a valid court, and certainly when I discussed
that with Russell Means, he clearly, out of respect for the
Navajo Nation, wanted to take this issue to them,'' Trebon
said.
''I can see why people would think it's an irony,'' he added.
''I run into people who know Russell and have a great deal
of respect for him, he's a colorful figure who creates
controversy everywhere he goes. He's a Native American,
he has lots of respect for the institutions and processes. I
don't think him bringing this action undermines that belief
whatsoever.''
This story ran on page A01 of the Boston Globe on 02/06/99.
© Copyright 1999 Globe Newspaper Company.
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Unenh onhwa' Awayaton
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