Thursday, September 25, 2014

Robert N. Clinton

Robert N. Clinton, Foundation of Law Professor at the Sandra Day O’Connor College of Law at Arizona State University, will be honored with a Lifetime Achievement Award from the Native American Bar Association of Arizona (NABA-AZ). The award is given annually to honor an individual for his or her contributions to the field Indian law in Arizona.

Clinton serves as chief justice of the Winnebago Supreme Court and as an associate justice for the Colorado River Indian Tribes Court of Appeals, the Hualapai Tribal Court of Appeals, and the Hopi Court of Appeals. He also serves as a judge pro tem for the San Manuel Band of Serrano Mission Indians.

Clinton has taught Indian Law for more than 40 years, beginning his career in 1973,when he joined the faculty at the University of Iowa College of Law.

“Bob has been an outstanding teacher and scholar of Indian Law,” said former ASU professor and past NABA-AZ lifetime achievement award recipient, William C. Canby. “One of the great victories of the Indian Legal Program at ASU was to entice Bob to join the faculty. He has been thoroughly dedicated to teaching Indian Law, and to working with both students and tribes to advance their understanding of the subject and to make use of that knowledge to their benefit.”

Professor Patty Ferguson-Bohnee, faculty director of the Indian Legal Program at ASU, agreed that Clinton’s work as a professor has made enormous contributions to the field.

“Bob has been instrumental to the development of Indian law and is the most cited scholar in the field,” Ferguson-Bohnee said. “It is fitting that NABA-AZ recognize Bob for not only his tremendous scholarly contributions but also his dedication to developing and guiding future advocates of tribal law and federal Indian law.”

Colleagues have seen Clinton’s work in the classroom up close.

“I know Bob as a classroom teacher with a reputation for teaching at an exceptionally high level,” said fellow ASU law professor, Charles Calleros.

Two alumni of ASU’s Indian Legal Program also will be honored at the event. The Community Service Award will be presented to Diane Enos (Class of ’92), president of the Salt River Pima-Maricopa Indian Community, and the NABA-AZ Member of the Year Award will be presented to Diandra D. Benally (Class of ’05), assistant general counsel for the Fort McDowell Yavapai Nation.

The NABA-AZ Seven Generations Annual Awards Dinner and Silent Auction will be held from 6 p.m. to 10 p.m. on Saturday, Sept. 27, 2014, at the Radisson Fort McDowell Resort in Scottsdale, Arizona.

For years scholars have described the Code of Indian Offenses, first adopted by the federal government in 1883, as a reservation criminal code designed to cover lesser misdemeanors. The Code of Indian Offenses helped create the Courts of Indian Offenses, which at their height imposed on perhaps two-thirds of the nation’s Indian reservations a federally dominated western style court composed of tribal members picked by and responsible to the federal Superintendent of the Reservation. The few surviving Courts of Indian Offenses, many of which are Oklahoma, are now known as CFR Codes. The Code also helped establish the Indian Police, also composed of tribal members selected, paid, and supervised by the federal Superintendent of the Reservation. Perhaps the most notorious act of the Indian Police involved their murder of Tatanka Iyotake (Sitting Bull — pictured above) the great Hunkpapa Lakota holy man and leader in 1890 at Standing Rock as a result of federal concerns over his support for the religious revitalization Ghost Dance movement among the Lakota. Clearly, the Courts of Indian Offenses and the Indian Police involved efforts by the federal government to substitute a federally controlled western style colonial government for the traditional governance structures and leadership of the tribes. A good summary of that effort is found in William T. Hagan, Indian Police and Judges: Experiments in Acculturation and Control (1966).

Considerably less attention has been paid to the actual content of the Code of Indian Offenses. About a decade and half ago, my efforts to locate the original copy paid off. When I received it, I was startled to discover that very little of the Code of Indian Offenses actually dealt with matters which would be classically regarded as crimes in western societies then or today. In fact, most of the Code of Indian Offenses was directly aimed at outlawing Indian culture. Thus, the practice of medicine men, Indian dances, the giving of gifts to compensate and honor a family for the a daughter given in marriage, potlaches and other traditional reciprocal gift-giving, polygamy and other Indian customary practices were all made punishable offenses by the Code of Indian Offenses. In fact, the reference to other misdemeanors was the last item listed and the one to which the least attention was paid.

Also remarkable were the penalties prescribed in the Code of Indian Offenses. By the time of the Code of Indian Offenses was promulgated most of the nomadic plains tribes had been corralled onto reservations, early examples of internment or concentration camps. Their traditional hunting lifestyles had been effectively destroyed by such confinement, as well as the deliberate federally sponsored eradication of the buffalo (bison) on which they depended. This forced change in tribal economies resulted in the nation’s first welfare state, in which the tribal members became completely dependent on federal rations (the development of Indian frybread being the most obvious and long lasting by-product of this change in subsistence habits). In this context, the penalty prescribed by the Code of Indian Offenses for practicing traditional and customary ways often involved the denial of rations. Thus, the federal government’s message to tribal Indians in the late nineteenth century was crystal clear — abandon your traditional culture and comply with the Code of Indian Offenses or starve. The Code of Indian Offenses therefore was not an early criminal code for Indian Reservations, as it is sometimes portrayed, but, rather, the clearest evidence of a deliberate federal policy of ethnocide — the deliberate extermination of another culture.

The shocking evidence of such federal ethnocide is found in the federal government’s own words in the original Code of Indian Offenses. Because of the difficulty I originally had in locating it, I have chosen to publish it to the internet here.

The Code of Indian Offenses was finally amended when John Collier assumed the role of Commissioner of Indian Affairs in the administration of President Franklin D. Roosevelt in 1933. He eliminated all references to the bans on dances, such as the sacred Lakota Sun Dance, and other customary Indian practices. The modern incarnation of the Code of Indian Offenses is found at 25 C.F.R. Part 11 and it, unlike the original version, does provide a basic criminal code for lesser crimes committed by Indians on reservations covered by these provisions.