James M. Redwine

Special Judge

Death Is Swallowed Forever (Isaiah 25:8)

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Barbara Taylor Pease & Jim at Echoes of Our Ancestors: The Secret Game Book Signing OCHS

Barbara (Taylor) Pease passed away ten days after my brother Phil Redwine. Their Baptist Christian services were similar in several comforting ways. They were also differing as Phil’s funeral was in Norman, Oklahoma and Barbara was honored as a member of the Osage Nation in Indian Camp in Pawhuska, Oklahoma. Peg and I had attended Barbara’s mother, Judy Taylor’s, funeral in 2016 and were moved by the Osage graveside rites. Perhaps the coincidence of my appointment as a Special Judge in a recent Indian law case made Barbara’s services even more impressive to Peg and me. I know I was surprised about how little I knew of Osage traditions even though I was born and raised in Pawhuska.

As part of my legal research into an area of the law completely new to me I went to my personal library and reviewed my autographed copy of John Joseph Mathews’ book, The Osages, Children of the Middle Waters. Mr. Mathews was well known to my parents and, at our mother’s request, Mathews signed a copy of his book “with special pleasure” to my brother Phil and me. Mathew’s extensive scholarship into Osage traditions brought out the beauty and solace of Osage burial rites.

Barbara’s services included former Osage Chief Johnny Red Eagle fanning over Barbara’s body with an eagle-tail fan. This impressive ritual reminded me of the following passage in Mathews’ book that described a burial of several Osage members of a hunting party who were killed by a lightning strike:

“The survivors came into the village carrying their comrades and singing their song of death. The Little Old Men looked at the sky in fear, then fanned away the evil spirit from the bodies with an eagle-tail fan…”

See Page 68

At Barbara’s services Palee Redcorn sang beautiful, haunting and comforting acapella renditions of hymns in the Osage language and then transitioned seamlessly into English versions. One of those death songs was the traditional Christian hymn, “Amazing Grace”. At my brother’s funeral his youngest son, Ryan, who is an ordained Baptist minister, sang a deeply felt acapella version of “Amazing Grace” from the pulpit.

Of course, Ryan also gave a marvelous and inspiring message under the most difficult of emotions to honor his father much as Reverend Scott Kohnle of the Indian Camp Baptist Church spoke for Barbara. I do not know if Ryan’s mother’s Native American heritage influenced Ryan’s message for his Dad, but I do know Ryan and Scott both captured the essence of Barbara’s family’s and our grief and pride in our loved ones. Barbara and Phil were similar in their kindness and generosity and in their steadfast pride and support of their numerous grandchildren.

To lose two such priceless members of our small circle within ten days of one another was a lot to bear, but the thoughtful and heartfelt services helped. Peg and I now better understand the communal support of family and tribe.

Tribal Court

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Chief Joseph

After forty years of serving as a judge in the white man’s courts I was recently honored to be asked to serve as a Special Judge by appointment of the Court of Appeals of the Stockbridge-Munsee Community of the Mohican Nation. The appointment of an outside judge was necessary because the case involves questions of tribal membership and the regularly sitting Native American judges for the Tribe had conflicts of interest due to the judges’ personal connections to the issues.

As I had no experience with Native American law, I had to first familiarize myself with the particular Tribe’s particular Constitution, procedural rules and statutes that applied to my assigned case. What I found was the bedrock issues for the Indian judicial system are remarkedly similar to the legal system I learned in law school and sat as a judge in. When I looked closely at tribal law, I came to the same conclusion attorney Abraham Lincoln did. Lincoln said the primary purpose of all courts and lawyers should be to:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer (judge) has a superior opportunity of being a good person.”

If one reads some newspaper editors or listens to cable news anchors, he or she might conclude compromise is anathema to the American body politic’s well-being. Conflict and strife with unyielding single mindedness are the watchwords for national media and federal, and many state, office holders. This way of addressing our personal and national problems seems rather discordant when a majority of Americans apparently believe their preferred law giver said:

“Blessed are the peacemakers, for they will be called the children of God.”
Matthew 5:9

It is ironic that those, many of whom champion Jesus the ultimate practitioner of compromise, so often call for obstinance and conflict. I guess the concept of situational ethics passes them by.

What I discovered in researching tribal law was what legal scholars have known since the days of Socrates: all courts are here to resolve controversies. That is their only charter, not to provide fodder for the gossip mill or entertainment for the afternoon or late-night talk show crowd. Judges, whether in the white man’s legal system or the Indian’s, have one main mission, that is to help people help themselves, if they can, to make peace.

I grew up on an Indian reservation but my experience with the kids I played ball with, fought with and dated was they were just like me. Therefore, I was not surprised Native American courts had the same mission as the one I presided over in the white man’s world. On the other hand, it is comforting to think should I for some reason get caught up in a tribal legal system it will be about the same as the social system I have always known. And I am glad America is finally getting around to recognizing what should have always been the case.

The tribal law I researched reminded me of laws enacted from the times of ancient Rome, ancient Greece and English and French legal philosophers, such as John Locke and Voltaire and American Founding Fathers, such as Thomas Jefferson and James Madison.

Another great philosophical legal leader was Chief Joseph of the Nez Perce (1840-1904). Chief Joseph engaged in peaceful resistance until he was forced to surrender which he did based on certain representations from the white man’s government. Those representations were not honored. However, Chief Joseph upheld his end of the peace agreement and he was greatly admired as a peacemaker.

Chief Joseph’s legal philosophy is remarkedly similar to that of our earlier mentioned judge: Jesus said, “do unto others as you would have them do unto you.”  Chief Joseph said:

“If the white man wants to live in peace with the Indian, he can live in peace. Treat all men alike. Give them the same law.”

As a tribal judge, even if only for one case, I feel quite at home with this court mission statement from Chief Joseph.

The Physical Plant

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Tuesday, April 03, 2018 Chief Probation Officer and court factotum Rodney Fetcher and I met with the Posey County Board of Commissioners to discuss the auxiliary courtroom on the first floor of the courthouse. You may recall we have been working toward creating a small but fully functioning courtroom that can greatly enhance public access to court services while aiding the Posey Superior and Circuit Courts to concentrate on other important matters of concern.

The elements of an American courtroom have changed little since the 1600’s: a judge’s bench and judge, places for the opposing parties (usually two), a court reporter with means to keep a record, a witness area and some public seating.

If citizens from Salem, Massachusetts were to hold a witch trial in a contemporary courtroom it would require only a few minutes for them to acclimate to the electricity and technology because these are simply ways we now enhance the attempted delivery of justice; the same justice sought for hundreds of years. Of course, justice is not always the result, but the physical plant is not to blame.

In Posey County, Indiana we have two fully functioning courts of general jurisdiction that often need to have people appear who are incarcerated or may be expert witnesses who have to travel great distances. Our goal of a newly refurbished courtroom would have video conferencing availability connected with our new jail and perhaps unlimited other locations. There would no longer be a need for several sheriff’s deputies to transport inmates to court for most preliminary matters. Trials would still be in person but most other hearings would not. Money and time would be saved while security would be enhanced and public humiliation lessened.

Indiana law allows for Senior Judges, Special Judges and Magistrates to hold hearings while the regular judges are conducting other proceedings. However, in Posey County we need another court facility for such use. Normally a new or renovated courthouse would be quite expensive. But we in Posey County have the opportunity to enhance justice, public service, security and fiscal responsibility by creating one new court reporter position and using some of our historical courthouse furnishings in an existing room in our historical courthouse. And we can have such a courtroom in operation quickly.

The immediate plan is to set up the courtroom for hearings and video conferencing. I estimate we can establish such a courtroom at a cost of less than $50,000 for the courtroom furnishings now plus the salary of one court reporter (approximately $40,000 per year plus regular county benefits to start January 1, 2019). Of course, such decisions are within the purview of the Commissioners and County Council with consultation with the judges.

An intermediate goal is to have Senior Judges, who are paid by the State, Posey County currently uses two on a case-by-case basis, or Special Judges selected for particular matters, conduct hearings in the small courtroom while both regular courtrooms are in session with the regular judges. Initial hearings in criminal matters and confidential family court cases normally do not involve many people. Such matters are well suited to our new small courtroom.

Long term goals might involve the creation of a full-time or part-time Magistrate to have a regular schedule in the new courtroom. On such issues I will defer to the sound judgment of future county officials unless I am requested to engage on this issue. For now, I respectfully suggest it is in Posey County’s best interest to implement the immediate and intermediate plans.