Ho-Chunk Justice and Court Systems work to Maintain Tribal Sovereignty: Defining Sovereignty

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Ho-Chunk Tribal Court Chief Judge Jo Deen Lowe and Senior Tribal Counsel Wendi Huling work to define what Ho-Chunk sovereignty is in the real world.

Part 1 of 2

By Jonathan Gramling

Article I, Section 8 of the U.S. Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”

This clause along with other constitutional clauses have been served as the basis for the recognition of the now 574 federally recognized tribes in the United States. It has taken centuries of experiences, treaties, administrative rulings and U.S. Supreme Court decisions to decide what sovereignty means. It is still a work in progress.

The treaties were basically one-way streets with the terms dictated by the U.S.

 

“Yeah we had treaties, but there was no communication,” said Wendi Huling, senior tribal counsel for the Ho-Chunk Nation. ‘This is what I am going to give you. Here I’m going to draw it out in the dirt for you,’ which is what they did. They had a stick, drew it out and put four stick posts and said, ‘Here you go. You stay there. Let me put you there. There you go. There’s your parcel of land. You stay here. Here are some diseased blankets. Here’s diseased lard and boll weeviled flour. We don’t care if they are left over from the war. We’re not going to feed them to our troops, but we sure are going to give them to you. This is will be a form of our side of a genocide. Let’s give it to you all. We don’t know who you are. We don’t understand who you are. We see that some of you have different hair. Some have Mohawks. Other tribes have balding heads. Other tribes are full of hair and it is flowing. It just depends. Some are darker than others depending on where they come from.”

And the reservations created by the treaties, reservations that shrank or changed location with each subsequent treaty, were typically land that was not desirable for the European settlers. In 1881, after being banished to Nebraska by a previous treaty, some of the Ho-Chunk settled in the area near Black River Falls.

“They pushed us to Jackson County,” Huling said. “It is the poorest of the poorest land within the state because it is nothing but sand. What are we going to harvest here in Jackson County? Nothing! If we go to the outlying areas, which is fine, if you get off the bluff, the land is better. But when I go out and try to plant a rose bush, I can’t because it is sand. We have to build so much top soil down, feet and feet, before we could put a stable building there.”

The relationship between the Ho-Chunk and the federal and state governments is complex. Much of the relationship is delineated in the U.S. Constitution, the treaties and U.S. Supreme Court decisions, starting with the landmark Marshall Court decisions.

“The issue is the ‘Almighty Father’ still holds the strings and can still puppet the states or the tribes,” Huling said about the Federal Government. “The other issue is that just with the case law that we have and John Marshall and the Canons of Construction and the Marshall Trilogy started those cases.”

And so to some extent, sovereignty is defined by the Federal Government according to the interests of the Federal Government at the time.

“Sovereignty entitles us to govern ourselves to the extent that the Federal Government allows us to,” Huling said. “They can come in at any time and can still partake of anything they want. They can dictate things. If you have a tribe that is having problems internally and is maybe out of control. It may have corruption going on in it or economic issues or enrollment issues. The BIA, the Bureau of Indian Affairs, can step in and say, ‘I’m going to put my foot down and you need to stop.’ It’s like an adult telling children to stop or we are going to do something to you. They still have the ability to come in if they want to put a tribe in receivership. It could be that the tribe messed up. Or it could be that the BIA messed up. And if the Department can’t determine, the Congress will determine. You’ll have people with no idea of what they are speaking on speaking.”

And yet sovereignty gives the Ho-Chunk some decision-making ability as a separate nation from the U.S. and the state of Wisconsin. And it allows them to tell their own story.

“We have ‘Harvest Day,’ which everyone calls it now instead of Thanksgiving,” Huling said. “And then we have Ho-Chunk Day, the day right after to celebrate ourselves, to think about the treaties and where we have come from then to now that we can name our own holiday and we can name any holiday that we want, put it in our laws, codify it in our laws and be able to go from there is wonderful, the idea of being able to do that, the idea of being able to teach your children right from wrong. I’ve taught my children all along that whatever they are teaching you, you aren’t going to be taught. You’re not going to be in that classroom because that is not what happened. I will teach you what happened historically. I will teach you about treaties where we ceded lands, where we were reorganized, where we were moved. I’m going to teach you about you.”

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