Among the duties of this court was to determine the limits of each day's march when out upon a campaign, and to regulate the camping places. This was an important function, for the army subsisted off the country and unless the utmost care was exercised "the base of supplies" would be frightened away and the band subjected to starvation.
A court very similar to the military court was likewise organized for each great hunting expedition and given absolute control of the general movement, but this hunting court did not interfere with the ordinary jurisdiction of the civil court in matters of personal disputes, personal injuries and the like. In 1841, General Henry H. Sibley, of Minnesota, proposed to the Indians residing about his home at Mendota that they go down to the "Neutral Strip" in Northern Iowa for a long hunt. The Sioux were agreeable, and to get the matter in form Sibley made a feast to which all of the natives were invited. After eating and smoking several hundred painted sticks were produced and were offered for the acceptance of each grown warrior. It was understood that whoever voluntarily accepted one of these sticks was solemnly bound to be of the hunting party under penalty of punishment by the soldiers if he failed. About one hundred and fifty men accepted. These men then detached themselves from the main body and after consultation selected ten of the bravest and most influential of the young men to act as members of the hunting court. These justices were called soldiers. Every member bound himself to obey all rules made by the court. A time was then fixed for the start. At the appointed time and place every one appeared but one man who lived twelve miles distant. Five of the court at once started out to round him up. In a few hours they returned with the recalcitrant and his family, and with his belongings packed upon his horses. He was duly penitent and not subjected to punishment, though he was severely threatened in case he again failed. General Sibley thus tells the story.[8 ] "We," Sibley and his white friends, "became subject to the control of the soldiers. At the close of each day the limits of the following day's hunt were announced by the soldiers, designated by a stream, grove, or other natural object. This limit was ordinarily about ten miles ahead of the proposed camping place and the soldiers each morning went forward and stationed themselves along the line to detect and punish any who attempted to pass it. The penalty attached to any violation of the rules of the camp was discretionary with the soldiers. In aggravated cases they would thresh the offender unmercifully. Sometimes they would cut the clothing of the man or woman entirely to pieces, slit down the lodge with their knives, break kettles and do other damage. I was made the victim on one occasion by venturing near the prohibited boundary. A soldier hid himself in the long grass until I approached sufficiently near when he sprang from his concealment and giving the soldiers' whoop rushed upon me. He seized my fine double barreled gun and raised it in the air as if with the intention of dashing it to the ground. I reminded him that guns were not to be broken, because they could be neither repaired or replaced. He handed me back the gun and then snatched my fur cap from my head, ordering me back to camp, where he said he would cut up my lodge in the evening. I had to ride ten miles bareheaded on a cold winter day, but to resist a soldier while in the discharge of duty is considered disgraceful in the extreme. When I reached the lodge I told Faribault of the predicament in which I was placed. We concluded the best policy, would be to prepare a feast to mollify them. We got together all the best things we could muster and when the soldiers arrived in the evening we went out and invited them to a feast in our lodge. The temptation was too strong to be resisted." They responded, ate their fill, smoked and forgave the "contempt of court," which indicates that the judiciary, even in that primitive time, was not wholly incorruptible.
The modern Sioux Courts, organized under the authority of federal law and in accordance with the rules of the Indian Department, are perhaps of more interest to lawyers than the courts of the primitive tribes. The modern courts were first proposed by General William S. Harney, in 1856 and were provided for in the treaty made at Port Pierre in March of that year, which unfortunately was not ratified by the senate.[9 ] It can scarcely be doubted that had Harney's scheme for making the Sioux responsible to the government for the conduct of their own people been adopted, much bloodshed and treasure would have been saved.
It was not until after the Red Cloud war ended in 1868 that the courts for Indian offenses, equipped by the Indian themselves, began to be tried at some of the agencies in a small way. The Sissetons and Santees were first to give them a trial and eventually they were supplied to all the Reservations except the Rosebud, which, for some reason of which I have been unable to secure information, has never had them.
The following general rules governing courts of Indian Offenses pursuant to the statute have been adopted by the Indian Department:[10 ]
First: When authorized by the Department there shall be established at each agency a tribunal consisting ordinarily of three Indians, to be known as "the Court of Indian Offenses," and the members of said court shall each be styled "judge of the Court of Indian Offenses."
Agents may select from among the members of the tribe persons of intelligence and good moral character and integrity and recommend them to the Indian Office for appointment as judges; provided, however, that no person shall be eligible to such an appointment who is a polygamist.
Second: The court of Indian Offenses shall hold at least two regular sessions in each and every month, the time and place for holding said sessions to be agreed upon by the judges, or a majority of them, and approved by the agent; and special sessions of the court may be held when requested by three reputable members of the tribe and approved by the agent.
Third: The court shall hear and pass judgment upon all such questions as may be presented to it for consideration by the agent, or by his approval, and shall have original jurisdiction over all "Indian offenses" designated as such by rules 4, 5, 6, 7 and 8 of these rules. The judgment of the court may be by two judges; and that the several orders of the court may be carried into full effect, the agent is hereby authorized and empowered to compel the attendance of witnesses at any session of the court, and to enforce, with the aid of the police, if necessary, all orders that may be passed by the court or a majority thereof; but all orders, decrees, or judgments of the court shall be subject to approval or disapproval by the agent, and an appeal to and final revision by the Indian Office; Provided, that when an appeal is taken to the Indian Office, the appellant shall furnish security satisfactory to the court, and approved by the agent, for good and peaceful behavior pending final decision.