Making Indian Country Safer: Colorado's "admirable" Experiment (essay)
| Publication year | 2009 |
| Pages | 21 |
| Citation | Vol. 38 No. 10 Pg. 21 |
2009, October, Pg. 21. Making Indian Country Safer: Colorado's "Admirable" Experiment (Essay)
October 2009
Vol. 38, No. 10 [Page 21]
About the Author
Troy A. Eid is a shareholder at Greenberg Traurig LLP in Denver and served as the U.S. Attorney for the District of Colorado from 2006 until early 2009. He is the first non-Ute tribal member ever to be ceremonially robed by the Tribal Council of the Ute Mountain Ute Tribe, which he represents as special counsel, and is an adjunct professor in American Indian Law at the University of Colorado Law School-eidt@gtlaw.com.
The most fundamental function of all governments is to ensure the safety of their citizens and maintain law and order. . . . The federal government has a legal trust responsibility to aid tribal nations in furthering self-government in recognition of tribes' inherent sovereignty. Unfortunately, the government has failed to live up to its obligation to help tribes maintain order.
-Sen. Barack Obama (2008)(fn1)
This is a story about heroes, leaders who dared trust one another against a backdrop of mutual suspicion and misunderstanding. The protagonists are Colorado crime fighters from different walks of life: tribal leaders, county sheriffs, police chiefs, federal agents, prosecutors, and judges. The story is still unfolding today on and near the reservations of two Indian nations in the Four Corners Region of Southwestern Colorado: the Southern Ute Indian Tribe, headquartered in Ignacio (a half-hour drive south of Durango); and the neighboring Ute Mountain Ute Indian Tribe, with its capital in Towaoc (pronounced "TOY-awk") south of Cortez. By coming together, the leaders writing this story are rising above the prejudices of the past to make Colorado safer.
The Brunot Agreement of 1874
Generations of members of both Ute Indian tribes have endured their share of injustices, thanks to their trustee, the federal government, and the surrounding off-reservation "border towns." General William T. Sherman, the Indian-fighter and treaty-maker, defined an Indian reservation as "a tract of land entirely occupied by Indians and entirely surrounded by white thieves."(fn2) In a statute first adopted in 1948, Congress chose the more prosaic term "Indian Country" to refer generically to all Indian reservations, allotments, dependent Indian communities, and other categories of Indian lands for purposes of federal jurisdiction.(fn3)
Although General Sherman was not speaking directly about the original Consolidated Ute Reservation in Southwestern Colorado, which later split into the two current reservations, his description dovetails with much of its history. Fred Taylor of Cortez recalled:
I drove the first mess wagon into Navajo Springs [now Towaoc] in the winter of 1883. The cattlemen wintered the cattle there, but it was on the Indians' territory and the cattlemen had no business being there at all.(fn4)
The Brunot Agreement of 1874, which drastically reduced the size of the original permanent Ute reservation created just five years earlier, pledged that the federal government would protect the Ute people from violent crimes committed by non-Indians.(fn5) Article V of the Brunot Agreement also expressly guaranteed the territorial integrity of the remaining reservation:
The United States now solemnly agrees that no persons, except those herein authorized to do so, and except such officers, agents, and employees of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article, except as herein otherwise provided, are hereby expressly re-affirmed, except so far as they applied to the country herein relinquished.(fn6)
"The Utes must go!"
The catalyst for the Brunot Agreement-the discovery of gold in the San Juan Mountains-meant non-Indian settlers were soon pouring into Southwestern Colorado, both on and off the new permanent Ute reservation. Despite the federal government's promise, Colorado politicians were soon petitioning the U.S. President and Congress to confine all Utes to their reservation and open those lands to non-Indian settlement. Ute hunters attempting to exercise their off-reservation rights, which the Brunot Agreement had solemnly guaranteed, "so long as the game lasts and the Indians are at peace with the white people," were driven off and sometimes murdered.(fn7) The slogan of the day was "The Utes must go!" and the general sentiment was that the Utes should be removed entirely from Colorado to the Indian Territory or to New Mexico or Utah.(fn8) Locals launched raids to steal livestock from Ute lands and vowed to kill any Ute leaving the reservation.(fn9) The Denver Daily Times captured the public's mood in an 1879 editorial:
Either [the Utes] must go or we go, and we are not going. Humanitarianism is an idea. The Western Empire is an inexorable fact. He who gets in the way will be crushed.(fn10)
Increasingly unpopular though it was, the legal protections promised by the Brunot Agreement were virtually all that stood between the Ute people and those who might crush them. Congress in 1874 had expressly reaffirmed Article 5 of the original Ute Treaty of 1868, which in turn had optimistically provided that:
If bad men among the whites or among other people . . . shall commit any wrong upon the person or property of the Indians, the United States will . . . cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.(fn11)
The resilience of the Ute people would be tested in the decades ahead. The federal government would consistently fail to provide the basic resources necessary to enforce such treaty provisions or to carry out the criminal laws in Indian Country. This disparity with off-reservation communities, where criminal justice services can be regulated through local elections and funded through property and sales taxes (which federally recognized tribal governments generally are denied), was apparent from the beginning and, as discussed below, persists to the present day.
The Case of "Man Who Cries"
One early Colorado case that illustrates this point involved a tribal member named Tse-ne-gat, a Ute name that translates as "Man Who Cries." In 1914, Harry B. Tedrow, U.S. Attorney for the District of Colorado under President Woodrow Wilson, obtained a federal grand jury indictment in Denver against Tse-ne-gat for allegedly murdering a non-Indian sheepherder, Juan Chacon, near present-day Towaoc. Tse-ne-gat maintained his innocence, but area residents vowed to kill him, and he fled from the reservation into Utah. Tse-ne-gat eventually was confronted in a canyon near Bluff, Utah. After a bloody shoot-out with a local posse in which two Utes were killed, he escaped to Navajo Mountain near present-day Lake Powell. It took a military expedition by Brigadier General Hugh L. Scott to bring in Tse-ne-gat and place him in federal custody in Denver.(fn12) When U.S. Attorney Tedrow finally brought his murder charges in United States v. Tse-ne-gat, the defendant was acquitted.(fn13)
Incredibly, the posse and its backers in the surrounding border towns used the massive manhunt for Tse-ne-gat as a pretext to steal the private property of 160 Ute people living off-reservation. This is painstakingly documented by the late Denver journalist Parkhill Forbes in The Last of the Indian Wars.(fn14) Posse members were organized by U.S. Marshal Aquila Nebeker of the District of Utah, ostensibly searching for Tse-ne-gat but acting without any legal authority and in apparent defiance of Utah's own U.S. Attorney. The posse descended on Indian families who were ranching and farming on their own private property in Southeastern Utah.(fn15) Many had acquired lawful patents to their property under the General Allotment Act.(fn16) They had done exactly as Congress insisted: they left the reservation system, became ranchers and farmers, and paid property taxes.(fn18)
Marshal Nebeker's posse and resulting campaign of terror drove these innocent families at gunpoint from their own homes and private property onto the reservation, where they would later be criticized for living on the federal dole. They never were compensated for this illegal taking of their private property under color of law.18 Forbes estimated the cost of Nebeker's posse at $60,000-enough to provide federal payments to all Ute tribal members living on the reservation for ten years.(fn19)
Inconsistent federal law enforcement priorities and the so-called Indian Country "resource gap" familiar in Tse-ne-gat's day endure to this day. According to a report in 1997 by the Clinton Justice Department and in 2006, when the Interior Department's Bureau of Indian Affairs (BIA) commissioned its own analysis during the Bush Administration,(fn20) on average, Indian Country across the United States is served by roughly half as many police officers per capita as similarly situated rural communities.(fn21) Patrol officers, criminal investigators, tribal court judges...
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