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diff --git a/26021.txt b/26021.txt new file mode 100644 index 0000000..693bb1f --- /dev/null +++ b/26021.txt @@ -0,0 +1,938 @@ +The Project Gutenberg EBook of Sioux Indian Courts, by Doane Robinson + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Sioux Indian Courts + An address delivered by Doane Robinson before the South + Dakota Bar Association, at Pierre, South Dakota, January + 21, 1909 + +Author: Doane Robinson + +Release Date: July 10, 2008 [EBook #26021] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK SIOUX INDIAN COURTS *** + + + + +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. + + + + + + +End of the Project Gutenberg EBook of Sioux Indian Courts, by Doane Robinson + +*** END OF THIS PROJECT GUTENBERG EBOOK SIOUX INDIAN COURTS *** + +***** This file should be named 26021.txt or 26021.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/2/6/0/2/26021/ + +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.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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