American Indians and the Law, part 1

Troy D. Smith

My mentor Fred Hoxie begins his American Indian Studies classes by asking students to name the first famous Native Americans they can think of off the top of their head. Aside from a few people shouting out Pocahontas or Sacajawea, most of the names are associated with warfare: Geronimo, Sitting Bull, Crazy Horse. And that makes sense. (In Illinois, the students yell out "Blackhawk!" Only in Illinois.)

In America, we have a tradition that goes back even further than James Fenimore Cooper: portraying, and thinking of, Indians as noble savages doomed to extinction before the inevitable wheels of progress -a tragedy, but a necessary one. The Vanishing American. And in our mind's eye the first Indians we think of are EITHER those who helped colonists/pioneers, who are often women (but not always- remember Squanto), OR fierce warriors who nobly fought a lost cause. In fact, whether you are looking at the words of Thomas Jefferson, Andrew Jackson, or Mark Twain, the Indians of the PAST were noble and admirable, while those of the speaker's present are pretty pathetic in comparison.

Hoxie wrote a book called This Indian Country: American Indian Activists and the Place They Made. (In fact, I was his research assistant for part of the book.) In addition to looking at such activists over the last two hundred years, Hoxie makes the point that -when Indians have achieved victories -it has often been in the courtroom, and almost no one thinks about that. It's a very good book, and I highly recommend it.

Buy it at amazon.com

 



One of the people it focuses on is James McDonald -a mixed-blood Choctaw active in the 1820s who was the first Native American lawyer. There would be many more.

I'm afraid this is going to devolve into a history lesson, I can feel it coming on.

For Indians east of the Mississippi, the U.S. winning the American Revolution was the worst thing that could have happened to them. Reason #1: for centuries, Indians had been able to gain political leverage by playing European colonial powers against each other. "If we don't like the deal the English offer, let's see what the French or the Spanish say- they all want our resources and our military aid." Post-Revolution, there was only one monolithic power to deal with. Reason #2: When England (or one of the other European powers) was in charge, their relationship with Indians was based on a big-picture approach designed to further the interests of their empire. Therefore, Parliament could ignore the short-term desires of American colonists who wanted to immediately settle the areas taken from the French. Knowing this would lead to endless conflict with the Indian tribes there, which would disrupt trade and require British intervention at a time when their military resources were greatly needed elsewhere, the Crown instead angered their American colonists by issuing the Proclamation of 1763, saying that all lands west of the Appalachian mountains were off-limits because they were for the Indians. Once the United States was established, there was a different governmental structure. Now, the politicians making decisions about the fate of Indian lands were NOT an ocean away, with an eye on maintaining a global empire. Now those politicians were local, and voted into office by local people- who wanted those Indian lands, and any politician who crossed their desires would not stay in office long.

For many Indians, the fighting that started with the American Revolution would continue for years afterward. In particular, by the early 1790s there were two major hotspots: Chickamauga Cherokees (and their Creek allies) were fighting settlers in the Southeast, and a confederation led by Miami chief Little Turtle and Shawnee chief Blue Jacket were fighting settlers in the Ohio country. The two were closely connected; in fact, the Shawnees in Ohio and the Cherokees in Tennessee had a sort of "warrior exchange program."

In 1794, though, both conflicts were brought to a halt by the decisive defeats of the Indians. The Shawnee would try again two decades later, and the Creeks would once more join in, but the Cherokees would not engage in organized warfare against the United States again. They realized it was too costly, and unwinnable, as did several other Southern tribes. And so when Shawnee leader Tecumseh (who as a young man had come South to fight with Cherokee leader Dragging Canoe in Tennessee) took a diplomatic tour of the Southern tribes just before the War of 1812, looking for allies, only an element of the Creeks were willing to join him. Cherokees, Choctaws, Chickasaws, and the remainder of the Creeks had a different idea in mind (and in fact they all allied with General Jackson against the hostile Creeks -who were known as Red Sticks, while the pro-America Creeks were called White Sticks.)

They would still struggle with all their might to maintain their land, their identities, and their nations. But they would no longer try to do it on the battlefield. They would fight the white man on his own terms.

In court.

Those Southern tribes began creating alliances by marrying their daughters to white traders. The resultant offspring would have one foot in each world, and have an inside track to understanding the white man's ways... but they would think of themselves as Indian. They would adopt many of the white man's ways- not in an effort to repudiate their Indianness, but as a way to protect it. They started having written laws, and police forces... and inviting missionaries to start schools to educate their children.

And when federal and state governments began agitating for Indian Removal, Cherokee Principal Chief John Ross didn't arm the warriors. He called his lawyers. Of course, Removal still came- in large part because of the fact that the executive branch (President Andrew Jackson) did nothing to enforce the decision of the legislative (the Supreme Court.)

In a second installment, I'll talk about what this would mean for the western tribes (the ones we as traditional western authors are more likely to write about in our work.)