Colliflower v. Garland (342 F.2d 369, 1965)

DUNIWAY, Circuit Judge:

Madeline Colliflower sought a writ of habeas corpus in the district court. That court concluded that it was “without jurisdiction to issue a writ of habeas corpus.” It therefore granted a motion to quash the writ and denied the petition for the writ. This appeal followed.

Madeline Colliflower is an Indian, a member of the Gros Ventre Indian tribe, which is a part of the Fort Belknap Indian community, located on the Fort Belknap reservation in Blaine County, Montana. In the return to the writ the following appears. Under date of June 20, 1963 Joe Plumage, Chief Policeman, filed a criminal complaint in the “Court of Indian Offenses, Ft. Belknap Jurisdiction, United States Indian Service,” under the title “Fort Belknap Indian Community v. Madeline Colliflower” in which he charged Mrs. Colliflower with “disobedience to lawful orders of the Court in violation of sec. 36, Chapter 5, Law and Order Code of the Fort Bel-knap Indian Community,” in that on June 13, 1963, within the Fort Belknap Indian Reservation, she “did disobey a lawful order of the Court by failing to remove her cattle from land leased by another person, after being ordered to do so by the Court, and against the peace and dignity of the Fort Belknap Indian Community.” On the same day, Cranston Hawley, Judge of the Court, issued a warrant directed “to any Police or Police Officer of the United States Indian Service,” reciting the filing of the complaint, and ordering the arrest of Mrs. Colliflower, and that she be brought before a judge of the court to show why she should not be held for trial.

There is also a transcript of the proceedings of the “Law and Order Court” on June 25, 1963. The court was presided over by the Chief Judge Cranston Hawley, and there were present the Chief of Police, Joe Plumage, an “Area Special Officer,” Mr. Willett, an “Agency Special Officer,” Mr. Reddog, an “Agency Special Officer, Crow Agency,” Mr. Joe Gray, and the defendant. The judge read the complaint to the defendant, and, following some discussion as to who was the lessee of the land in question, the judge stated: “I put out another order just after that to have your cattle removed, which was done, and the cattle were put back in the unit the same evening. Isn’t that correct?” To this, Mrs. Colliflower replied: “Yes.” The judge then inquired as to her plea and she pled not guilty. He then found her guilty and sentenced her to a fine of $25 or five days in jail. Mrs. Colli-flower, following a further colloquy, elected to take the jail sentence because she could not pay the fine.

In her petition, Mrs. Colliflower alleged that pursuant to the judgment of the court, she was committed to the custody of the sheriff of Blaine County, who is the appellee. She claimed in the district court, and she claims in this court, that her confinement is illegal and in violation of her constitutional rights, because she was not afforded the right to counsel, was not afforded any trial, was not confronted by any witnesses against her, and because the action of the court was taken summarily and arbitrarily, and without just cause. Her reliance is upon the due process clauses of Amendment Article 5 of the Constitution of the United States, and of the Fourteenth Amendment to the Constitution. The district court did not pass upon the merits of these questions because it decided that it did not have jurisdiction to issue a writ of habeas corpus for the purpose of determining the legality of the detention of an Indian who was committed by a tribal court, and it is th^e correctness of that decision that presents the sole question that is before us.

The solution of this question requires the recitation of some history. On September 17, 1851 a treaty was signed by the Blackfoot and Gros Ventre Indians and other tribes and the United States. It has been said that this treaty, which is known as the treaty of Fort Laramie, was not fully ratified. (See 11 Stat. 749) The text of the treaty appears in S.Doc. 53, 70th Cong., 1st Sess., p. 1065. The treaty was actually ratified on May 24, 1852, S.Doc. 53, 70th Cong., 1st Sess., p. 1065, and the Court of Claims, in two cases, Moore v. United States, 1897, 32 Ct.Cl. 593 and Roy v. United States, 1910, 45 Ct.Cl. 177, has held that the treaty is binding on the United States. See also Cohen, Handbook of Federal Indian Law, 1942, p. 62, where Mr. Cohen states that this is the first treaty between the Gros Ventres and the United States. The treaty deals largely with the territories of the tribes and an annuity to be paid to the Indians. It contains no reference to self-government by the Indians or to tribal courts.

On October 17, 1855, a second treaty was made with the Blackfoot nation, composed of Piegans, Bloods, Blackfeet and Gros Ventres. To this treaty the Flatheads and the Nez Perces were also parties. (See 11 Stat. 657) This treaty again is primarily concerned with the definition of boundaries, the prevention of disputes among the tribes, and the establishment of peace. There is no specific reference in the treaty to Indian self-government, although Article 11 contains certain provisions designed to secure the peace. It can fairly be said, however, that the treaty, like the many other Indian treaties made by the United States, is a recognition of the Blackfoot nation as a nation. There is at least one other treaty, not ratified. (S.Doc. vol. 27, 62d Cong., 2d Sess. (1913), p. 705)

Congress put a stop to the making of treaties with Indians by the Act of March 3, 1871, 16 Stat. 566 (25 U.S.C. § 71). This enactment, however, contains a proviso that it is not to be construed to invalidate- or impair the obligation of any treaty theretofore lawfully made and ratified with any Indian tribe or nation. Thus it would appear that these treaties are still in effect.

By an executive order of July 5, 1873, a Blackfoot Indian reservation, very large in size, was established in what is now the State of Montana. On April 15, 1874 Congress established a reservation for the various Blackfoot tribes (18 Stat. 28). This was a smaller territory than that established by the executive order. There were subsequent executive orders modifying the boundaries of the reservation, on August 19, 1874, April 13, 1875 and July 13, 1880. By Act of May 1, 1888 (25 Stat. 113) Congress ratified an agreement with the Indians whereby the Blackfoot reservation was divided into three parts, one of which is the Fort Belknap Reservation. A description of this reservation appears in Fletcher, Indian Education and Civilization, 1888, S. Exec. Doc. 95, 48th Cong., 2d Sess., at p. 453.

The first reference to tribal courts such as that at Fort Belknap which has been brought to our attention is contained in the annual report of Commissioner of Indian Affairs to the Secretary of the Interior, 1885:

“Under date of April 10, 1883, the then Secretary of the Interior gave his official approval to certain rules prepared in this office for the establishment of a court of Indian offenses at each of the Indian agencies, except the agency for the five civilized tribes in the Indian Territory. It was found that the longer continuance of certain old heathen and barbarous customs, such as the sun-dance, scalp-dance, polygamy, etc. were operating as a serious hindrance to the efforts of the Government for the civilization of the Indians. * * *

“There is no special law authorizing the establishment of such a court, but authority is exercised under the general provisions of law giving this Department supervision of the Indians. The policy of the government for many years past has been to destroy the tribal relations as fast as possible and to use every endeavor to bring the Indians under the influence of law.” (P. xxi)

Congress took cognizance of these courts in 1888, in an Appropriation Act, 25 Stat. 217. This act, in addition to appropriations of $1,000 for the pay of an Indian Agent at Ft. Belknap (pp. 217-218) and of sums for “subsistence and civilization” of the Gros Ventres (p. 230), appropriates money for the employment of Indian police and for compensation of judges of Indian courts (p. 233). In the Commissioner’s Annual Report for 1889, the following statement appears:

“Prior to the last fiscal year there was no fund for maintaining these courts, nor any law recognizing their existence, although this office had made repeated and urgent recommendations that provision be made for the pay of judges of the courts * * * the Appropriation Act of June 29,1888, contains the following item: ‘For compensation of judges of Indian Courts, at such rate as may be fixed from time to time by the Secretary of the Interior, five thousand dollars, or so much thereof as may be necessary.’

“Under this legislation it is practicable to make important changes and improvements in the organizations of the courts of Indian offenses and- the methods adopted therein. * * * ”

The 1889 report also states:.

“Since 1882, what is known as a ‘court of Indian offenses’ has been established and maintained upon a number of Indian reservations. It has been a tentative and somewhat ■ crude attempt to break up superstitious practices, brutalizing dances, plural marriages and kindred evils, and to provide an Indian tribunal which, under the guidance of the agent, could take cognizance of crimes, misdemeanors and disputes among Indians, and by which they could be taught to respect law and obtain some rudimentary knowledge of legal processes. Notwithstanding their imperfections and primitive character these so-called Courts have been a great benefit to the Indians and of material assistance to the agents.”

There appears to be no mention of the creation of a tribal court at Fort Belknap earlier than 1899. (See Annual Reports of the Department of the Interior, 1900 — Indian Affairs — Report of Commissioners, p. 270).

A contemporary judicial view of these tribal courts appears in United States v. Clapox, D.Ore., 1888, 35 F. 575, at 577, as follows:

“These ‘courts of Indian offenses’ are not the constitutional courts provided for in section 1, art. 3, Const., which congress only has the power to ‘ordain and establish,’ but mere educational and disciplinary instru-mentalities, by which the government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian. In fact, the reservation itself is in the nature of a school, and the Indians are gathered there, under the charge of an agent, for the purpose of acquiring the habits, ideas, and aspirations which distinguish the civilized from the uncivilized man.”

In 1934 the congress passed the Wheeler-Howard Indian Reorganization Act, (48 Stat. 984, 25 U.S.C. § 476). This statute permits an Indian tribe to or-ganise for its common welfare and adopt an appropriate constitution and by-laws which are to become effective when ratified by the members of the tribe and approved by the Secretary of the Interior. The statute further provides:

“In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local Governments.”

According to House Report No. 2503, 82nd Cong., 2d Sess., 1953, Table I, page 48, the Gros Ventres are governed by an administrative body and an administrative board subcommittee organized under the foregoing Act. Their constitution and by-laws were approved by