Courtroom Cultural Arrogance

WHEN THE LONG and controversial Mashpee trial finally ended last week, the Wamponoag Indians of Mashpee, Massachusetts had ample cause to doubt the white man's system of justice. And his logic: the federal jury of eight white men and four white women ruled that the Wamponoags were not a tribe on four legally crucial dates, but were a tribe on four legally crucial dates, but were a tribe on two other dates. The confusing and contradictory decision proved a fitting ending to a trial ineptly-handled at best, and morally questionable at worst. The jury's verdict and the conduct of the trial bring into question the ability--and the right--of white men to evaluate the Indians' culture.

The trial, which has dragged on for over 40 days, is the first step in the process of adjudicating the Indians' claim to 11,000 acres in Mashpee land appraised at $30 million. If the judge, Walter F. Skinner, decides on January 20 to dismiss the case, the Indians face a long series of appeals that will further exacerbate the tension between the whites and the Indians in Mashpee. The Indians' lawyers insist the jury's decision is so illogical that the judge will have no recourse but to order a new trial; the defense lawyers jubilantly term the decision a "clear victory."

Whatever the outcome on January 20, the case raises a number of disturbing questions. One important question concerns the structure of the trial itself. The judge instructed the lawyers and the jury that the trial was to have two parts, and in the first part the Indians would have to prove their legal status as a tribe. It is unclear why the judge felt it necessary to determine the legal status of Wamponoags at all, for the Massachusetts state government and the federal government have both implicitly recognized the Wamponoag's tribal status.

Lawrence D. Shubow '44, the chief counsel to the Indians, cites Gov. Michael S. Dukakis' 1976 executive order declaring the Wamponoag a tribe, and Richard McCann, HEW regional commissioner of the Office of Education in Boston, offers another example. He reports that the Wamponoags of Mashpee have not been rejected in their application for federal aid under part B of the Indian Education Act of 1972, which stipulates tribal status as a prerequisite for accepting applications, and that the Wamponoags have already received aid under part A of the act, which offers an entitlement program based on the number of Indians enrolled in the public schools. McCann says these grants alone show the federal and the state government accept the Wamponoags as a tribe.

BEYOND THE LEGAL QUESTION of the Wamponoags' tribal status lies a more serious moral question. Is it possible for a group of people unconsciously conditioned by their own cultural and racial assumptions to judge objectively an alien racial and cultural group? Do they have the right to sit in judgment at all? Ellsworth Oakley, tribal chief of the Mashpee Wamponoags, posed this very question: "How can a white jury decide for us? We know who we are." The sessions of the trial consistently revealed the difficulty of cross-cultural evaluation. At one point during the proceedings, James D. St. Clair, chief counsel for the town of Mashpee, asked an Indian witness to define for the jury what being an Indian witness to define for the jury what being an Indian meant. The witness replied: "If I were to sit here all day explaining it to you, you still would never understand."

In any attempt at understanding a different culture, it is vital to consciously suspend one's cultural biases. The arguments and cross-examination of St. Clair, whose previous clients include a disgraced former president, actively violated this standard throughout the trial. St. Clair deliberately and subtly appealed to the prejudices--cultural and racist--of the jury. In his opening statement, St. Clair specified cultural assimilation, especially Indian intermarriage with blacks and whites, as one example of the Indians' failure to comprise a tribe. The ploy was an insidious one--St. Clair skillfully appealed to whatever prejudices the jury may have entertained against blacks or against intermarriage between races.

St. Clair also tried to discredit the Wamponoags' tribal government by appealing to white American notions of what constitutes a governing body. He cited the lack of an internal court system, ignoring the fact that the Indians have less institutionalized ways of enforcing community morals. In questioning one witness about the tribal meetings, St. Clair focused on the decision-making process. He asked the witness if the tribal chief made a decision or whether the meeting as a whole voted. The witness hesitated, at a loss to explain an Indian preference for consensual decision-making in the context of St. Clair's questions.

Many Indians found St. Clair's attitude toward them and their culture condescending and demeaning. He asked witnesses questions about the number of occasions on which they wore Indian dress, the number of words of Algonquin they knew, the number of times they held certain meetings. He tried to make these factual points the standards by which to judge a group of people with a complex religion and culture.

Not only was St. Clair's behavior high-handed, culturally biased, and subtly racist, his argument of cultural assimilation proved logically contradictory. In arguing that the Indians' loss of their native language, their intermarriage, their informal government, and their conversion to Christianity dissolved their tribal status, he ignored the stark fact that Indians, at least in the East, have to live in a white man's society and by white man's rules. Indians survived by undergoing cultural assimilation, and now they are being penalized for adapting to necessity.

St. Clair's arguments are only one symptom of a widespread cultural arrogance and intolerance that emerged all too clearly in this trial. The trial itself, more than the jury's inconclusive decision, demonstrated how difficult the attainment of judicial impartiality is in a society biased toward a cultural norm many groups cannot understand or accept.