Why I Am The Wrong Speaker For Today: In Search of My Replacement

James D. Diamond

Address to the International Indigenous Peoples Cultural Conference, Roger Williams University, Bristol R.I. April 17, 2021.

I’m here to tell you why I should not be speaking here today. Don’t misunderstand me. I’m honored to have been invited and included. But as I reflected on the 400 year anniversary of the Treaty made, not far from here, between Ousa-mequin, the Massasoit, with his people and the settlers at Plymouth what I wanted to do was call for a new peace–a new kind of peace agreement between the United States, along with the state governments and the Indians of the Northeast.

I wanted to talk about a new peace agreement among and between the many indigenous people of the Northeast. The indigenous people of the Northeast, 383 years after the Pequot War, are still battling over territory.  And the colonial governments are still benefitting from a “divide and conquer” strategy. 

The battles today end up in the Courts, over who gets to build a casino, for example and where. Who gets to ask for the legal permission from the U.S., its States or local governments, to build and run games of chance?

I wanted to talk about the modern crisis of tribal governments denying tribal people of civil rights and the international human right of citizenship, often after tribal nations realize the benefits of gaming revenues. 

I wanted to talk about all of that that, but I said, “I can’t do that.” (I can’t be the person to do that). I’m not indigenous. I’m not an Indian. What right do I have to weigh in on these subjects? What credibility does a Jewish guy who grew up in the affluent suburbs of New York have with my audience? As a non-Indian lawyer and law professor, what right do I have to even suggest to Native Nations how to govern themselves? I understand that Native Nations need allies. Just yesterday Letitia Stover, District Court Judge for the Navajo Nation, Kayenta District, reminded me of the important role non-Indian “allies” play with Navajo people and played in her life and her career. 

But I wondered, how can I call for these new peace accords when the U.S. has never grappled with or acknowledged the unmitigated failure of the last 400 years of policy toward the indigenous peoples, and all done under the protective guise of the rule of law?

In considering the Treaty whose anniversary we are honoring today let’s examine the way the Indians of the Northeast felt about those early accords. My teacher, Robert A. Williams Jr. wrote about one such treaty, the treaty made in 1613 between the Haudenosaunee and the Dutch which would govern how the two peoples would treat each other and live together, in perpetuity.

The Haudenosaunee made a wampum belt to record this agreement, the Gus-Wen-Tah.  The wampum belt has two purple rows running alongside each other representing two boats.

One boat is the canoe with the Haudenosaunee way of life, laws, and people. The other is the Dutch ship with their laws, religion, and people in it. The boats will travel side by side down the river of life. Each nation will respect the ways of each other and will not interfere with the other.

“Together we will travel in Friendship and in Peace Forever; as long as the grass is green, as long as the water runs downhill, as long as the sun rises in the East and sets in the West, and as long as our Mother Earth will last.”

The birch bark canoe. Painting by Alfred Jacob Miller. Walters Art Museum Baltimore, MD.

That’s how the Indians felt about the peace treaty. But that’s not what happened. Not only did the two ships NOT proceed peacefully side by side down the river, the European vessel tried to sink the canoe!

Then, as more and more treaties were signed all the way into the middle of the 19th century it became the official policy of the United States to break the treaties. And they didn’t deny it as an official policy. 

When the Medicine Lodge peace Treaties of the 1860’s were abrogated by the U.S., as it satiated its voracious appetite for land and the simultaneous goal of assimilating the indigenous people the Supreme Court, in Lone Wolf v. Hitchcock (1903) said:  

“The contention that Congress could not divest the tribes of their lands except according to the terms of the treaty in effect ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States.”

and continued:

…“When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress…”

So, how I thought, can I call for a new peace accord before the U.S. has ever reconciled with that decision, which is still the law of the land, and treaty abrogation as an official nation-to-nation policy? 

And, as I wrestle with being a non-indigenous voice at an indigenous peoples conference I find myself in the awkward position of replicating the non-indigenous practice of thinking I know better.

In 1991 when Canada was examining the history of how its judiciary treated the Metis and other indigenous people of Alberta, the Chief Judge of the Provincial Court of Alberta said

“Everything that has worked when we’re dealing with natives has come from Natives. I don’t know of anything that has worked that has been foisted upon them from above.”

That astute observation is profound, and it’s even more true here in the U.S. than in Canada. But how would we expect to honor indigenous voices after the trauma U.S. forced the following six policies on the Indians:

1. Quantifying Blood Quantum-the amount of Indian blood as a system for deciding tribal citizenship, like you might for thoroughbred racehorses;    

2. Assimilation of Indians to become Christian farmers;

3. Allotment of parcels of land to farm as Christian farmers—which resulted in the eventual more loss of land to non-Indians;

4. Residential Boarding Schools as tools of assimilation-ended up as dens of mental, sexual and  cultural abuse, tore apart families;

5. Western Rule of Law and Courts: strict rules of evidence where storytelling or testimony of indigenous elders are considered not relevant or hearsay evidence;

6. Patriarchal systems that replaced matriarchal systems with resulting domestic and sexual violence;   

When you consider those failed policies forced on Indians, now consider the impact on indigenous voices on the following failures of U.S. K-12 education policy:

1. Failure of the U.S. to adequately fund education of Indians in school;

2. Taught an incorrect history;

3. Failed to hire indigenous teachers;    

4. Disciplined them at a far greater percentage than Non-Indians;

5. Insulted or demeaned them with stereotyping, and sponsored sports teams with insulting names and mascots;   

If you add in the failure of academia to promote indigenous scholars, PhDs, professors, and fellows, to fund scholarships and make Indians feel welcome on campus, how could we possibly expect to end up with sufficient indigenous voices?

As I reflect upon my own career, the subject of whether I belong where I am has come up over and over again. Take my interview a few years ago for the position as Chief Judge of the Hopi Tribal Court. Wayne Taylor, the Hopi former Chairman who grew up in the traditional Hopi Village of Shungopavi, asked me, “Mr. Diamond, shouldn’t we have a Chief Judge who is Hopi?” I said “yes, you should” and I didn’t get the job. I talked my way out of a good job. But I was honest. So, at Hopi I didn’t get an opportunity to find my replacement; they did it first and they were right.

The search for indigenous voices plays out quite frequently in tribal courts. You see it when tribal court judges are trying to weave tribal customs into a tribal common law. It’s a very challenging task under the best of circumstances, a task some indigenous scholars like Pat  Sekaquaptewa, (Hopi) cautions against attempting at all. But what emerges is a great skepticism of non-indigenous academics, of anthropologists, researchers or scientists. Standing Rock Sioux Scholar Vine DeLoria joked, “Indians are certain that Columbus brought anthropologists on his ships when he came to the New World. How else could he have made so many wrong deductions about where he was?”

Professor and Tribal Court Judge Matthew Fletcher, of the Grand Traverse Band of Ottawa and Chippewa Indians, writing about tribal courts and reliance on non-Indian anthropologists, scientists and researchers wrote: “There is a significant bias of Indian people against the work of these academics.” AndNavajo Nation Supreme Court Justice Tom Tso in a 1983 case said this about tribal courts relying on non-Indian academics:

“The Dine are the most accurate commentators on themselves. Studies of Navajo are incomplete, inaccurate or don’t reflect the current state of Navajo common law.”

So in my previous positions, Director of a tribal law school clinic, a tribal prosecuting attorney, and in my current positions as a law professor teaching indigenous law, dean of tribal trial advocacy college that trains survivors of violence to be victim advocates, and as a tribal court judge I have always trusted that my responsibility was to contribute what I can to right a 400 year historical wrong, to help reverse a 400 years of trauma to raise up an incoming generation of indigenous voices.

I can afford to talk my way out of jobs, as a person of privilege, educated at good schools and with a spouse who has an exceedingly generous corporate employer. I’m cognizant of the luxuries those privileges afford us and that’s why we can afford to volunteer and to give. Not everyone is in my position.

Another son of this region, President John F. Kennedy, recognized the debt of service. As he took the mantle of leadership, leaving Massachusetts, he addressed the judicial conference of Massachusetts saying the now famous words:

            “For of those to whom much is given, much is required.”

Then President Kennedy said each of us would be judged “at some future date” when “the high court of history sits in judgment on each one of us” our lives would be measured by a series of questions, the second of which was this:

“…were we truly men of judgment–with perceptive judgment of the future as well as the past–of our own mistakes as well as the mistakes of others–with enough wisdom to know that we did not know, and enough candor to admit it?

When we possess the wisdom to admit our mistakes then we will be ready to begin to confront the painful past and make a new peace. And yes, indigenous voices ARE here in Rhode Island and in neighboring Massachusetts and Connecticut.  My friend, Shannon O’Loughlin, the Director of the Association on Indian Affairs (Choctaw) told me: “Native Americans have been made invisible in so many places. Not the kind of invisible where we aren’t there. The kind of invisible where we ARE there – standing right in front of you and you still don’t see us.”

You ARE on the program and in the audience here today. I see you. We see you, and we honor you. Thank you.  


A Prayer For Peace

In 2013, while pursuing my degree in Indigenous Law, I was asked by Navajo Nation Justice and Professor Raymond Austin to preside over a peacemaking session. I did. It was instructive. This is the prayer I wrote and delivered to start the session. I cannot take all of the credit, I arranged the thoughts, but with inspiration from several Lakota, Navajo, indigenous and Jewish prayers and concepts.

 

PEACEMAKING PRAYER  

By James D. Diamond

 

Great Spirit, whose voice we hear in the thunder on the mountains.

Today as we sit together in this place let us surround this family with a canopy of peace.

Let the wisdom of our ancestors fill our minds.

Give us sharp ears to hear your voice,
and eyes to see the light and the truth and the wisdom that is hidden in the earth.

Make us wise so can understand how the lessons you taught our ancestors answer the questions of today.

Help us find kindness and compassion owed to our brothers and sisters.

We ask you to restore to strength to anyone who is in pain or who suffers.

And give us the strength not to battle each other but to conquer the monsters that dwell within ourselves.

 

 

Copyright 2013: James D. Diamond

Will California Execute A Native American Female Mass Shooter?

Cherie Lash-Rhoades murdered four people and critically injured two others in a 2014 shooting spree in the tribal headquarters of the Cedarville Rancheria, a small American Indian tribe in Northern California. It all happened during a meeting at the Alturas headquarters where tribal leaders were discussing the banishment of Lash-Rhoades. Lash-Rhoades was tried in Modoc County, California, and sentenced to death by Judge Candace Beason on Feb. 20, 2014, for killing her brother Rurik Davis, 50, her niece Angel Penn, 19, her nephew Glenn Calonicco, 30 and Sheila Russo, 47, the tribal administrator who handled tribal evictions.

Cherie-Lash
Cherie Lash-Rhoades 

Lash-Rhoades is awaiting execution at the Central California Women’s Facility in Chowville, California, where there are 21 women awaiting execution. But Lash-Rhoades and the other women are among the nearly 750 inmates who have been sentenced to death in California, and California has not executed any inmates since 1992. The status of the death penalty in the state is complicated by a series of voter propositions affirming it, while Gov. Gavin Newsome has imposed a moratorium on executions.

Lash-Rhoades was chairman of the small tribe, a tribe embroiled in a leadership dispute involving her own family, which led to an accusation that she had stolen more than $60,000 in tribal funds. Those allegations led to an eviction, and Lash-Rhoades came to the tribal headquarters where a hearing about the eviction was scheduled. Instead of a hearing, what followed was a harrowing murder spree.

Her conviction will be appealed to the California Supreme Court—an automatic appeal under California law. If her case is like other capital litigation, it is likely the appeal will languish for decades. California’s death row is the largest in the United States and likely the largest in the Western hemisphere.

The Cedarville Rancheria rampage killing should be viewed in the context of a disturbing move, largely on the West Coast of the U.S., where tribes are disenrolling thousands of their citizens. I wrote about the crisis in a friend of the court brief with the United States Supreme Court in the case of Aguayo v. Jewell where I explored the profound psychological impact tribal disenrollment has on native self-esteem. In that brief, I wrote: “Disenrollment thus perpetuates historical trauma by creating a loss of community, culture, tradition and identity that is associated with historical loss. Historic loss has been strongly associated with depression, post-traumatic stress disorder, and poly-drug use in Native youth.”

Disenrollment is thorny legal and political matter that poses civil rights squarely against the imperatives of native sovereignty. My colleagues Gabriel Galanda and Ryan Dreveskratch wrote a groundbreaking and expansive law review article on the subject in the Arizona Law Review: “Curing the Tribal Disenrollment Epidemic, in Search of a Remedy. 

Mass shootings on American Indian reservations are exceedingly uncommon. In light of the death penalty political turbulence in California, and its reluctance to execute anyone, is it possible it will ever execute a woman killer who is an indigenous Native American?

 

 

 

Change Is Coming for Victims of Domestic Violence on American Indian Reservations

Sexual and domestic violence in Indian country continues to be a crisis, with grave law enforcement challenges. There is progress, however. I recently published an article in the A.B.A. Criminal Justice magazine about the changes made in federal law to help Indian tribes address the problem. You can read the entire article here. Here is the section of the article detailing the Violence Against Women legal changes:

In 2013, President Obama signed into law the re-authorization of the Violence Against Women Act (VAWA), a federal statute that addresses domestic violence and other crimes against women. (Pub. L. No. 113-4, 127 Stat. 54 (2013).) When originally enacted in 1994, VAWA created new federal offenses and sanctions, provided training for federal, state and local law enforcement and courts to address these crimes, and funded a variety of community services to protect and support victims.

President Obama listens to Lisa Lyotte (Sicangu Lakota Ospaya tribe) who was raped and beaten, prior to signing the Tribal Law and Order Act on July 29, 2010. PHOTO: UPI/Kevin Dietsch

Most significantly, the amended version of VAWA recognizes that tribal courts have jurisdiction over criminal cases brought by tribes against nonmembers, including non-Indians, that arise under VAWA. Significantly, this is the first time since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe that Congress recognized tribal courts’ criminal jurisdiction over non-Indians. (435 U.S. 191 (1978).) This change in the law represents a major change for native communities and especially native women. Native American and Alaska Native women experience sexual violence at a rate two and a half times higher than other women in the United States. (See Nat’l Inst. of Justice, U.S. Dep’t of Justice, Public Law 280 and Law Enforcement in Indian Country—Research Priorities (2005).)

The special domestic violence criminal jurisdiction recognized under the VAWA reauthorization not only provides an additional tool to address violence in Indian country, but also strengthens tribal courts and tribal sovereignty. Congress’s recognition of tribal criminal jurisdiction comes with limitations and places obligations on tribes. Tribes wishing to take advantage of VAWA’s jurisdictional provisions may need to amend tribal law and hire new judges and public defenders. Further, there remain significant limitations on who can be prosecuted in tribal courts. VAWA pilot programs and prosecutions of non-Indians in domestic violence cases have commenced in select tribal courts in the following states: Arizona, Michigan, Montana, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota and Washington, and it is extremely likely that more will follow.

Cherokee Billboard

Here is a summary of the new law’s requirements and limitations:

Limitations of the Enhanced Jurisdiction under VAWA 

Types of offenses. Under the amended statute, tribes can prosecute “domestic violence” or “dating violence” by a person who is or has been in a “dating or domestic relationship” with the victim. Tribes can also prosecute violations of protection orders that occur in Indian country as long as those protection orders were issued to prevent (1) violent or threatening acts, or (2) contact, communication or physical proximity with or to the victim.
Types of defendants. Tribes can only prosecute VAWA cases against a non-Indian defendant if he or she has one of the following connections to the tribe’s reservation or lands: (1) resides in Indian country, (2) is employed in Indian country or (3) is the spouse, intimate partner or dating partner of an Indian living in Indian country or a tribal member. The last category includes former spouses, individuals who share a child in common and individuals in
social relationships of a romantic or intimate nature. With one very limited exception, this new jurisdiction does not apply to tribes in Alaska, who under the Alaska Native Claims Settlement Act (ANCSA) are governed by 12 regional corporations. (See 43 U.S.C. §§ 1601 et seq.) These new jurisdictional rules also have very limited impact with nonrecognized tribes.

Types of victims

Tribes can only use the jurisdictional provisions of VAWA to prosecute crimes against Indian victims. This new law does not recognize tribal authority to prosecute non-Indians for violent acts against non-Indian victims.

Procedural safeguards

Tribes will need to guarantee that their criminal codes and rules of criminal procedure provide defendants with certain procedural safeguards. These include the right to a trial by an impartial jury of members of the community, from which non-Indians may not be excluded. Whenever a tribe intends to impose imprisonment, it must provide counsel/public defenders for indigent defendants. It must guarantee that proceedings are presided over by a law-trained judge. It must make publicly available the tribal criminal statutes and rules of procedure, and the criminal proceedings must be recorded. Defendants ordered detained under VAWA must be informed by the tribal court of their right to file federal habeas corpus petitions. Tribes must comply with all provisions of the Indian Civil Rights Act (ICRA) and guarantee “all other rights whose protection is necessary under the Constitution of the United States” in order to exercise this criminal jurisdiction. (See 25 U.S.C. §§ 1302, 1304.) It has not yet been established precisely what “other rights” this refers to. The guarantee of these fundamental rights may very well end up becoming the topic of future defense challenges and litigation.

Pilot programs

As a result of the new federal legislation, in February 2013 the Justice Department announced a pilot program with three initial tribes, giving them jurisdiction over non-Indians in domestic violence cases on their reservations. Those tribes were the Pascua Yaqui tribe of Arizona, the Tulalip tribes of Washington and the Umatilla tribes of Oregon. As of Feb. 20, 2014, the tribal courts in those three jurisdictions began to exert their newly
enhanced jurisdiction. In 2015, two additional tribes were approved to begin exercising special domestic violence jurisdiction as part of the pilot program: the Assiniboine and Sioux tribes of the Fort Peck Indian reservation of Montana and the Sisseton Wahpeton Oyate of the Lake Traverse reservation of North and South Dakota.

Since 2015

After 2015, another 10 began to exercise the special domestic violence jurisdiction: Little Traverse Bay Band of Odawa Indians of Michigan, Seminole Nation of Oklahoma, Eastern Band of Cherokee Indians of North Carolina, Muscogee Creek Nation of Oklahoma, Chitimacha tribe of Louisiana, Alabama-Coushatta tribe of Texas, Kickapoo tribe of Oklahoma, Nottawaseppi Huron Band of Potawatomi of Michigan, Standing Rock Sioux tribe of North Dakota and Sault Ste. Marie tribe of Chippewa Indians of Michigan. The 10 tribal courts are at varying stages of exercising the approved jurisdiction, but it is likely they will all begin prosecuting cases shortly, if they have not already done so. It is extremely likely that many more tribes will soon adopt the enhanced VAWA domestic violence jurisdiction.

For more:

Practicing Indian Law in Federal, State, and Tribal Criminal Courts and an Update on Recent Expansion of Criminal Jurisdiction Over Non-Indians

Criminal Justice, Volume 32, Number 4, Winter 2018

 

The Deadly Trend of American Indian Disenrollment

Four people are dead and two critically injured after a recent shooting spree in the tribal headquarters of the Cedarville Rancheria, a small American Indian tribe in Northern California. It all happened, police say, during a meeting at the Alturas headquarters where tribal leaders were discussing the banishment of Cherie Lash Rhoades—who has been arrested for the violent acts—and her son. Frustrations are boiling over in tribal membership disputes, reaching epidemic proportions, and this was only the most recent sign.

Cherie-Lash
Cherie Lash Rhoades. Photo courtesy of Modoc County Sheriff’s Dept.

In the case of most American Indian tribes, historically the tribes have had the power to determine tribal membership. For centuries tribes “banished” people as punishment for serious offenses. In recent years, however, a trend has been evident with tribes canceling membership, or “disenrolling” tribal members due to claims of inferior membership qualification.

Continue reading “The Deadly Trend of American Indian Disenrollment”

Madison Avenue Insights: American Indian Gaming

August 1, 2013        I was interviewed recently by Ron Urbach about  the impact of American Indian Gaming and casinos. Ron is the Chairman of Davis & Gilbert, one of the pre-eminent advertising law firms. He writes a very popular advertising/marketing industry blog called Madison Avenue insights. You can read the interview here: MADISON AVENUE INSIGHTS.

Tax Law: Another Setback For Seneca Cigarette Seller

Robert Gordon has lost another round in his legal battle to distribute tax free cigarettes from his upstate New York Indian reservation. Last week United States District Court Judge Jesse M. Furman denied the Gordon’s motion to dismiss a lawsuit filed by the City of New York aimed at enforcing the “Prevent All Cigarette Trafficking Act” (PACT) on their cigarette sales.

Continue reading “Tax Law: Another Setback For Seneca Cigarette Seller”