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Russell: Getting along in Indian country

Rodney King is not an educated man, but his plaintive cry in the middle of the Los Angeles riots - ''Can't we all just get along?'' - is freighted with wisdom that goes far beyond book learning. I am reminded of my resolve to ''get along'' when I graduated from law school and became one of about 2,000 tribally enrolled lawyers at the time. I would never, I had told myself, sue another Indian or a tribal government. We receive enough harm from the dominant culture without adding to it among ourselves.

That resolve is long gone.

One of my early mentors, who was then a tribal court judge for a number of Western tribes, found himself blackballed for ruling in favor of a tribal citizen against his government. That was apparently perceived as biting the hand that fed him, so several tribes quit feeding him; and in spite of his stellar qualifications, he found himself passed over in favor of white judges who were apparently more pliable.

Then I was socializing with a professor from an Oklahoma tribe who was regaling us with stories of the corruption in his tribal government. Since I knew he was not ignorant of how to practice politics, I asked him: why not vote the bum out?

''Too many absentee voters.''

''So what? My tribe has absentee voters and we manage to run contested races. I'm an absentee voter.''

''Yeah, but in your tribe any candidate can get a voter registration list.''

True. He had me there. The bum in question was later removed by a method not completely unknown in Indian country - federal indictment.

Then I fell into another situation in a more personal way. A non-Indian administrator had essentially bought off an elected tribal government using the tribe's own funds from casino operations. Virtually the entire tribe signed a recall petition, but there was no called election and the tribal judge would not rule on anything that challenged the government. At the time I got involved, poor legal advice had led the tribal majority into state court, which is a result even worse than federal court for its impact on sovereignty.

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This contretemps was solved by massive civil disobedience followed by federal indictment, and the corrupt administrator was recently convicted. While I am glad that the citizens got their government back and pleased that the non-Indian schemer will be contemplating his sins in the Club Fed, there is one thing about the scenario that is less encouraging.

As I was advising the majority behind the scenes, I was also giving them a blow-by-blow on the flaws in their constitutions and what could be done in the future to avoid outside intervention - if indeed there were to be a future. They listened gratefully and I had high hopes that changes would be made.

In the end, the only change that was made was that the crooks were removed and replaced by honest people. This leads me to wonder what makes us think we are so much better than white people. How much evidence does it take until we understand that we are not; and the best government structure is one that assumes dishonesty - a government of checks and balances with no absolute power and no ability to do tribal business in the dark. Corruption hates sunshine. Having the right structure counts as much as electing the right people.

A couple of years ago, a colleague from another Oklahoma tribe found himself charged in tribal court with ''criminal libel'' for criticizing his government on the Internet. When he filed a request for a jury trial and a notice of intent to rely on truth as a defense, the criminal charges went away. It is worth mentioning that it is not certain that truth would be a defense. At common law, a libel case was made out by showing that a defamatory publication harmed someone's reputation and it was no defense that his or her reputation ought to have been harmed. The U.S. Supreme Court has established truth as a defense to libel of a public official as a matter of constitutional law, but a tribal court is under no obligation to follow the U.S. courts.

When the criminal prosecution failed, one of those criticized sued for civil libel in tribal court relying on the fact of tribal citizenship to confer jurisdiction over an Internet posting that happened in another state. With the defendants tapped out by the criminal case and unable to get representation from 750 miles away, the plaintiff got a default judgment. Now, if my colleague goes home, any property he might have with him is subject to seizure by tribal marshals to satisfy the judgment.

Lawyers are trained not to be quiet in the face of manifest injustice. There are still too few Indian lawyers and it seems to me they should have more productive things to do than sue other Indians. However, non-Indian lawyers are insensitive to the lines between tribal and state government, and generally ignorant of the paternalistic history of the BIA. They just see evil and want to correct it by any means. Perhaps Indian lawyers should see it the same way, and it is tempting to whack at sovereignty when there is a scoundrel hiding behind it, but there are legal tactics that even in a just cause are too destructive of sovereignty. Reluctance to use anti-sovereignty tactics is the positive value of Indians suing Indians.

''Non-Indians tend to elect morons,'' the late Vine Deloria Jr. said, and ''Indians tend to elect crooks.'' In context, the great man was talking about South Dakota; but a moron who claims global warming is a hoax currently represents Oklahoma in the U.S. Senate, and I think any Oklahoma Indian can name a few Indian crooks. After more than 20 years of watching these crooks in action, I'm ready to believe that Rodney King had a Cherokee grandmother. He was certainly giving Indians, no less than black people, correct advice.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and an associate professor of criminal justice at Indiana University - Bloomington.

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