The Round House

Chapter Three

Justice

August 16, 1987

Durlin Peace, Plaintiff

v.

The Bingo Palace, Lyman Lamartine, Defendants

Durlin Peace is a janitor at the Bingo Palace and Casino, and reports directly to Lyman Lamartine. He was fired on July 5, 1987, two days after an argument with his boss. A witness testified that the argument was overheard by several other employees and involved a woman dated by both men.

On July 4, the employee cookout was held in the back courtyard patio of the Bingo Palace. During this cookout, Durlin Peace, who had been repairing some equipment earlier that day, walked off the premises. He was stopped by Lyman Lamartine and asked to empty his pockets. In one pocket, six washers were found, worth about 15 cents apiece. Lyman Lamartine then accused Durlin Peace of attempting to steal company property, and fired him.

Durlin Peace said that the washers belonged to him. As there were no distinguishing marks on the washers, which were examined by Judge Coutts, there was no proof that the washers belonged to the Bingo Palace. As there was no valid basis upon which Durlin Peace could be fired, it was ordered that he be reinstated at the Bingo Palace.

Washers? I said.

What about them? said my father.

I looked back down at the file.

Although this was not one of the cases we marked out as important, I remember it well. Here it was. The weighty matters on which my father spent his time and his life. I had, of course, been in court when he handled these sorts of cases. But I’d thought I was being excluded from weightier matters, upsetting or violent or too complex, because of my age. I had imagined that my father decided great questions of the law, that he worked on treaty rights, land restoration, that he looked murderers in the eye, that he frowned while witnesses stuttered and silenced clever lawyers with a slice of irony. I said nothing, but as I read on I was flooded by a slow leak of dismay. For what had Felix S. Cohen written his Handbook? Where was the greatness? the drama? the respect? All of the cases that my father judged were nearly as small, as ridiculous, as petty. Though a few were heartbreaking, or a combination of sad and idiotic, like that of Marilyn Shigaag, who stole five gas station hot dogs and ate them all in the gas station bathroom, none rose to the grandeur I had pictured. My father was punishing hot dog thieves and examining washers—not even washing machines—just washers worth 15 cents apiece.

December 8, 1976

Before Chief Judge Antone Coutts, also Justice Rose Chenois and Associate Justice Mervin “Tubby” Ma’ingan.

Tommy Thomas et al., Plaintiffs

v.

Vinland Super Mart et al., Defendants

Tommy Thomas and the other plaintiffs in this case were Chippewa tribal members, and Vinland was and is a non-Indian-owned gas and grocery business, which, though located primarily on fee (former purchased allotment) land, is surrounded by tribal trust land. The plaintiffs alleged that during commercial transactions occurring at Vinland Super Mart a 20% surcharge was added to transactions involving tribal members showing signs of age-related dementia, innocence of extreme youth, mental preoccupation, inebriation, or general confusion.

The owners, George and Grace Lark, did not deny that on some occasions a 20% surcharge had been added to cash register receipts. They defended their action by insisting it was a way to recoup losses from shoplifting. The defendants claimed that the Tribal Court did not have personal jurisdiction over them or subject matter jurisdiction over the transactions, which were the basis for the plaintiffs’ complaint.

The Court found that although the gas station building itself was located on allotment #122093, the parking lot, garbage Dumpster, sidewalk, pumps, fire hydrants, sewage system, leach field, concrete parking barriers, outside picnic tables, and decorative flower planters were all located on tribal trust land, and that in order to enter the Vinland Super Mart, customers, 86% of whom were tribal members, had to drive and then to walk across tribal trust land.

This court claimed jurisdiction over the case and as there was no evidence presented to deny the surcharge had taken place found in favor of the plaintiffs.

My father had kept this one aside.

It seems like an ordinary enough case, I said. I tried to keep the disappointment out of my voice.

I was able in that case to claim limited jurisdiction over a non-Indian-owned business, said my father. The case held up on appeal. There was some pride in his voice.

That was satisfying, he went on, but that is not the reason I’ve pulled the case. I’ve marked it out to examine it further because of the people involved.

I looked back at the file.

Tommy Thomas et al. or the Larks?

The Larks, though Grace and George are dead. Linda survives. And their son, Linden, who is not mentioned or involved here, but who figures in another action, one more emotionally complicated. The Larks are the sort of people who trot out their relationships with “good Indians,” whom they secretly despise and openly patronize, in order to prove their general love for Indians, whom they are engaged in cheating. The Larks were bumbling entrepreneurs and petty thieves, but they were also self-deceived. While their moral standards for the rest of the world were rigid, they were always able to find excuses for their own shortcomings. It is these people really, said my father, small-time hypocrites, who may in special cases be capable of monstrous acts if given the chance. The Larks, in fact, were shrill opponents of abortion. Yet at the birth of their twins, they had been willing to put to death the weaker and (as they thought at the time) deformed member, a baby girl. The whole reservation knew about it because one of the nurses at the hospital removed the damaged twin. A tribal member, Betty Wishkob, who was a night janitor, succeeded in adopting the infant. Which brings us to the other case.



In the Matter of the Estate of Albert and Betty Wishkob

Albert and Betty Wishkob, both enrolled members of the Chippewa Tribe and residents on the reservation, died intestate and with four children, Sheryl Wishkob Martin, Cedric Wishkob, Albert Wishkob Jr., and Linda Wishkob, who was born Linda Lark. Linda was informally adopted by the Wishkobs and raised among their family as an Indian. At the death of her adoptive parents, the other children, who had moved off reservation, agreed to let Linda continue living as she had in the home of Albert and Betty, which is situated on allotment #1002874, consists of 160 acres, and was returned to Tribal Trust after the Indian Reorganization Act of 1934. On January 19, 1986, the biological mother of Linda Lark Wishkob, Grace Lark, appealed to this court to allow her to assume guardianship of her now middle-aged daughter, Linda, in order to manage her affairs.

Grace Lark claimed that an illness contracted after Linda underwent a difficult medical procedure left Linda severely depressed and mentally confused. Grace Lark openly stated that she was interested in developing the 160 acres that she claimed had been left to Linda after her adoptive parents’ death.

The last paragraph was handwritten, an aside for my father’s eyes only.

As Linda is non-Indian by blood, as there is no legal evidence that the Wishkobs formally adopted Linda, as Grace Lark made no attempt to contact the other three inheriting children involved, and as, moreover, Linda Lark Wishkob, in the opinion of the court, was not only mentally competent but more sane than many who have come before this court, including her biological mother, this case was dismissed with prejudice.

Strange, I said.

It gets stranger, said my father.

How can it?

What you see is only the tip of a psychodrama that for some years consumed both the Larks, who gave their child up, and the Wishkobs, who in their kindness rescued and raised Linda. When the Wishkob children caught wind of the action, a clumsy, greedy, mean-minded attempt to raid and profit from an inheritance that never was, and land that never could be passed out of tribal ownership, they were furious. Linda’s older sister by adoption, Sheryl, took direct action and organized a boycott of Lark’s gas station. Not only that, she helped Whitey apply for a business grant. Everybody goes to Whitey’s now. Whitey and Sonja have put the Larks out of business. During this time, Mrs. Lark’s son, Linden, lost his job in South Dakota and returned to help his mother run the failing enterprise. She died of a sudden aneurysm. He blames the Wishkobs, his sister, Linda, Whitey and Sonja, and the judge in this case, me, for her death and his near bankruptcy, which seems now inevitable.

My father frowned at the files, passed his hand over his face.

I saw him in the courtroom. People say he’s quite a talker, a real charmer. But he didn’t say a word during the trial.

Could he be the . . . ? I asked.

Attacker, I don’t know. He’s troubling for sure. After his mother died, he got into politics for a while. During the trial, he probably became unpleasantly aware of the jurisdiction issues on and surrounding the reservation. He wrote a crank letter to the Fargo Forum. Opichi clipped it. I remember it was full of the usual—let’s dissolve reservations; he used that old redneck line, “We beat them fair and square.” They never get that reservations exist because our ancestors signed legal transactions. But something must have sunk in because, next I heard, Linden was raising money for Curtis Yeltow, who was running for governor of South Dakota and shared his views. I’ve also heard—through Opichi, of course—that Linden is involved in a local Chapter of Posse Comitatus. That group believes the powers of the highest elected official of government should reside with the local sheriff. Lark lives in his mother’s house, last I heard. He lives very quietly and goes away a lot. Down to South Dakota, it’s supposed. He’s become secretive. Opichi says a woman is involved, but she’s only been seen a few times. He comes and goes at odd hours, but so far, no sign he’s dealing drugs or in any way breaking the law. I do know that the mother had a way of inciting emotional violence. Other people absorbed her anger. She was a frail-looking little old white lady. But her sense of entitlement was compelling. She was venomous. Maybe Lark moved on, or maybe he absorbed her poison.

My father went out to the kitchen to fill his mug. I stared at the files. Perhaps it was then that I noticed that every one of my father’s actual published opinions was signed with a fountain pen, the ink a lyric shade of indigo. His handwriting was meticulous, almost Victorian, that spidery style of another age. I’ve learned since that there are two things about judges. They all have dogs, and they all have some special quirk to make them memorable. Thus, I think, the fountain pen, even though at home my father used a ballpoint. I opened the last file on the desk and began reading it.

September 1, 1974

Francis Whiteboy, Plaintiff

v.

Asiginak, Tribal Police, and Vince Madwesin, Defendants

William Sterne, Attorney for the appellant, and Johanna Coeur de Bois, Attorney for the respondents.

On August 13, 1973, a Shaking Tent ceremony was conducted at the old round house just north of Reservation Lake. The Shaking Tent is one of the most sacred of Ojibwe ceremonies, and will not be described here except to say that the ceremony served to heal petitioners and to answer spiritual questions.

That night there were over a hundred people in attendance, several of whom, at the edge of the crowd, were drinking. One of those who were drinking was Horace Whiteboy, brother of Francis, the appellant in this case. The leader of the ceremony, Asiginak, had asked Vince Madwesin of the local tribal police to act as security for the ceremony. Vince Madwesin asked Horace Whiteboy and the others who were drinking to leave the premises.

It is culturally unacceptable, even offensive, to drink at a Shaking Tent ceremony, and Madwesin behaved appropriately in asking the drinkers to leave. Several of the drinkers, realizing they were in gross breach of sacred etiquette, did leave the grounds. Horace Whiteboy was seen to stumble away from the ceremony with those drinkers, down the road. However, as affirmed by several witnesses, the spirit in the tent inhabited by Asiginak warned those listening that Horace Whiteboy was in danger.

Horace Whiteboy was found dead on the afternoon following the ceremony. Having apparently left the group of drinkers on the road, he had turned around and attempted to return to the round house. At the bottom of the hill, he apparently decided to lie down. He was found beneath some low bushes, lying on his back, and had choked to death on his own vomit.

Francis Whiteboy, brother of Horace, charges negligence in the actions of Asiginak (who was in the tent and had knowledge from the spirits that his brother was in trouble) and Vince Madwesin (who was off-duty in his capacity as security and not paid).

The court found that Asiginak’s only responsibility was to allow the spirits to voice, through his presence, what they knew. This responsibility was carried out.

Vince Madwesin’s actions to guarantee the security of the Shaking Tent ceremony were appropriate and as he was off-duty and unpaid this case cannot be brought against the tribal police. Madwesin’s responsibility was to make certain that inebriates were warned away. He was not responsible for the actions of the drinkers.

An individual who drinks himself into a state of stuporous sickness runs the risk of succumbing to accidental death. The death Horace Whiteboy suffered, though tragic, was the outcome of his own actions. While compassion for alcoholics should be the rule, caring for them as one must care for children is not the law. Horace Whiteboy’s behavior resulted in his death and his own decisions guided his fate.

The court ruled in favor of the defendants.

Why this one? I asked, when my father returned.

It was late. My father sat down, took a sip of coffee, removed his reading glasses. He rubbed his eyes, and perhaps in his exhaustion spoke without thinking.

Because of the round house, he said.

The old round house? Did it happen there?

He did not answer.

What happened to Mom, did it happen there?

Again, no answer.

He shuffled away the papers, stood up. The light caught the lines in his face and they deepened to cracks. He looked a thousand years old.