The U.S. Supreme Court recently denied 'certiorari' in an Indian case. That means they won't entertain the appeal ? (they think the use of Latin lends their work dignity). You may not have heard the sound but there was a large sigh of relief throughout Indian country. A long saga had changed course unexpectedly. It was the classic "Indian stabs Indian, and violence gets done to the whole Indian world" story.
In 1988, a Torres-Martinez Mission Indian by the name of Albert Duro, while living on the Salt River Indian Reservation, attempted to shoot a man for some unknown reason but missed in his aim. The shot strayed and inadvertently killed a boy visiting Salt River from his own Gila River Indian Reservation. Duro was charged with an unlawful discharge of arms under the Tribal Code. He challenged the jurisdiction of Salt River's court. This case went to the Supreme Court of the United States.
Duro claimed that Chief of Police Edward Reina could not prosecute him because he was a non-member Indian being prosecuted on a reservation not his own. The Supreme Court agreed and as it did in a previous case involving a non-Indian suspect, a case called Oliphant v. Suquamish Indian Tribe, concluded that such exercise of criminal jurisdiction by the Salt River Pima-Maricopa Indian Community would "be inconsistent with its status as a domestic dependant nation". Duro was set free from tribal prosecution. The Court's opinion was exceedingly short of enlightenment ? it never explained why such exercise of authority would conflict with the Tribe's assumed status (or how the Supreme Court came upon its own authority to assign the Tribe such a status!).
Tribes nationwide saw the danger in the Supreme Court's banal use of legal language: all across the nation where Indian women could suffer the possibility of domestic violence from their non-member spouses or lovers, they could find little or no protection from Tribal government. The Tribes were quick to react, though, and they convinced Congress to pass legislation that bluntly stated that the Supreme Court was wrong and that Congress never intended to deprive Tribes of their inherent jurisdiction over non-member Indians. This 1990 Amendment to the Indian Civil Rights Act was given the unofficial title of the 'Duro-fix'.
Then, in a 1994 case similar to the Duro case, Michael L. Enas, a San Carlos Apache tribal member, stabbed and wounded a White Mountain Apache on the White Mountain reservation. He later pled guilty to White Mountain charges, but then fled from custody. Federal charges soon followed and Enas was caught in the ensuing dragnet. Enas, unlike Duro, however, challenged the federal authority to prosecute him, arguing that the Duro-fix was a delegation of federal authority to the Tribes ? he was claiming that he was being placed twice in criminal jeopardy by the same sovereign government, the United States of America. His argument urged the courts to conclude that a tribe got its power from the U.S. and that tribal powers did not come naturally, ? inherently.
It would be wrong to not notice the tragedy and irresponsibility of Indian-on-Indian violence. But this brief essay is about legal violence, and the maladies of a culture of law. The Enas case unsettled the Indian legal community. If he won, a tribe could not prosecute a non-member until it resolved the thorny question of whether the feds were willing to prosecute the same person. It would, worse, signal that tribes were further beholden to the federal courts and the federal criminal justice system just to maintain a decent measure of internal power.
But there were other things going on in this case. Did Michael Enas know or care that his case may affect the rest of Native America forever? Or, was this a situation where the federal public defense attorney ? in the expected zeal to win the case ? advised an unknowing Enas that he had a right to be free from a federal prosecution and that the argument they pursued was necessary to win? Was he ever told that if he won, he would be further sealing tribal jurisdiction in the feudal crypt to which it was pointed in the earlier Oliphant case? Was he told that his name could ever after be associated with the kind of evil that can only come in the guise of law? He probably didn't even have a clue.
Somehow, left out of this state of affairs was any thought to what was in the best interests of the White Mountain people, or all tribes for that matter. Did our federal government fail once more to fulfill any sense of Trust Responsibility when it recklessly chose to prosecute Enas? Who makes such a decision? Is there oversight given to those choices? The feds surely had the option to assist the Tribe in capturing Enas.
And then there's Enas. He pled guilty to the crime. Then he fled. He placed the entire Indian world at peril out of some misguided sense of 'right'. We certainly don't need individual Indians sacrificing the governmental powers of Indian Nations in favor of their own self interest ? that seems intuitively contrary to the communal lifestyle and the individual humility we cherish so deeply as Native peoples.
In these times it is hard to be heroic. In this case, the heroism would have been in a solitary decision to accept the penalty.
Judge Carey N. Vicenti, a member of the Jicarilla Apache Nation of northwest New Mexico, currently serves as an Assistant Professor of Sociology at Fort Lewis College in Durango, Colorado. He sits as a judicial official for several American Indian nations and is a columnist for Indian Country Today.