Tuesday, August 5, 2014

American Indians and the Law, part 4

Troy D. Smith

Last time, I said I would be discussing some Supreme Court cases that defined jurisdiction in Indian Country. That is an extremely important issue, as its interpretation reflects the degree of autonomy and sovereignty exercised by indigenous peoples.

One of the earliest cases, U.S. v. Rogers (1846), we already discussed in PART 2; I will quote from what I wrote then...

This case deals with the murder of Jacob Nicholson by William S. Rogers. A fairly simple and straightforward situation -except for one detail. Both men, U.S. citizens, had been adopted by the Cherokee Nation and lived among the Cherokees in Indian Territory. Rogers argued that the U.S. did not have the authority to arrest him, as he was a Cherokee citizen; his fate must be decided by the Cherokee courts. The Supreme Court ruled to the contrary; being adopted by an Indian tribe did not absolve an American of their responsibilities as a U.S. citizen. "

So then, if an Indian tribe adopted a white American -even if it was a tribe like the Cherokees, that had written laws and a constitution and whose "adoption" of the white person was in a legal, not ritual, sense and made him a Cherokee citizen in the Indians' eyes -that meant nothing in the eyes of the U. S. courts. Said person was still an American citizen, subject to American laws, no matter how many Indian nations made him their citizen.

The next really big question arose as a result of events that occurred in 1881 on the Great Sioux Reservation, which would later be known as Rosebud. One Lakota Sioux, Crow Dog, shot and killed another, Spotted Tail. The dispute was more complex than just two people not liking each other; Crow Dog was a traditionalist who had fought against the U.S. Cavalry, whereas Spotted Tail was a leader who had been a proponent of peace and was viewed by some as an accommodationist. Spotted Tail had fired Crow Dog from the tribal police after the latter had pointed a gun at him in a previous argument; the situation may have been exacerbated when Spotted Tail took the estranged wife of a crippled friend of Crow Dog's as his new bride. Witnesses had claimed that both men had it out for each other, and each feared the other would try to kill him.

Regardless, it was Spotted Tail who ended up dead. Crow Dog then followed a time-honored custom, "covering the dead" by paying a fine to the deceased kin, in this case including $600, eight horses, and a blanket. Spotted Tail's family accepted the gifts, thereby signifying there would be no further feuding. Both sides were satisfied, at least to some degree.

But the Sioux's white neighbors were not. Is a man's life so cheap you can kill him and buy your way out of punishment with a few horses and a blanket? There was a general outcry against the lawlessness of the reservation Indians. Crow Dog was arrested and tried in Dakota territorial court for murder, with the prosecution seeking the death penalty. The case garnered a good bit of publicity, being the first-ever occasion of the U.S. government trying one Indian for the murder of another. Crow Dog's appointed lawyers argued that their client had settled the matter according to their own laws, and that the U.S. had no jurisdiction on what Indians did among themselves, based on the decisions of the Marshall Court in the 1830s. The case went all the way to the Supreme Court, where it was known as Ex Parte Crow Dog (1883), which basically means "pertaining to Crow Dog."

The Court ruled unanimously that the federal government had no jurisdiction in this case, as there was no precedent in U.S. law for them to do so, and Crow Dog was released from custody.

Congress responded by passing new legislation: The Major Crimes Act (1885), which listed a number of criminal offenses concerning which, henceforth, the federal government would have jurisdiction over Indians. The number was initially seven, but over the years it has grown to fifteen. Here are the original seven:

  • Murder
  • Manslaughter
  • Rape
  • Assault with intent to commit murder
  • Arson
  • Burglary
  • Larceny

  • The following year, the government brought a case that was explicitly intended to be a test case for the new law: a Yarok Indian named Kagama stabbed another named Iyouse in Northern California, over a property dispute. In the case of U.S. v. Kagama (1886), Kagama's lawyer argued that the federal government has no constitutional authority to intervene in internal Indian affairs, as the only authority ascribed to the federal government over Indians (in what is known as The Commerce Clause of the Constitution) was controlling commerce and treaties. 

    The court ruled that The Major Crimes Act was in fact constitutional, based on the precedents of the Marshall Court having defined Indians as "domestic dependent nations" and like "wards to a guardian". In other words, since Indians (according to the legal language) are "uncivilized" and "dependent," they can't be trusted to make major decisions like how to deal with major crimes; in such serious cases the federal government has the power to step in and take care of things. Further, it was in this case that the Court first articulated that Congress has "plenary power" over Indians (which essentially means absolute power.)

    This may sound insulting and condescending- but it was far more than that. 

    Have you ever heard of The Dawes Act, also known as the Allotment Act? It called for an end to tribal property and government, and for lands to be divided into lots for individual Indians (not tribes) to use in their efforts to "become American" and be independent farmers (which led to a lot of Indian lands being "left over", which the government was then able to offer up to settlers.) This general approach included the idea of "killing the Indian to save the man," eventually leading to the speaking of native languages and practice of native religion becoming illegal, a situation that continued for decades.

    That act was passed in 1887- the year after U.S. v. Kagama.

    The Major Crimes Act was passed in reaction to Ex Parte Crow Dog, in which an Indian (from Americans' point-of-view) got away with murder; and then the U.S. v. Kagama ruling was designed to solidify the new laws and verify them as constitutional... basically saying that, when it comes to important matters, Indians are too primitive to make their own decisions and the U.S. government can legally do it for them. This led directly to the Dawes Act, in which it was decided that those "important matters" were, well, just about everything. The Dawes Act, later amended by the Curtis Act (1898) to include the "civilized tribes" as well as the "wild ones", led to the dismantling of the constitutional governments of the Five Civilized Tribes, and eventually to the incorporation of the state of Oklahoma (Choctaw for "Land of the Red People.") 

    That wasn't the worst part.

    The worst part was the concept of Congressional plenary power over Indians. It is the Supreme Court's job to decide whether any laws Congress passes are constitutional or not. But where Indians are concerned, they decided that ANY law passed by Congress is AUTOMATICALLY Constitutional, because Congress passed it. Some legal scholars have compared this to Indians having a loaded weapon aimed at them, which could go off at any time.

    Next time we'll look at what this would mean in the 20th Century.

    The earlier installments in this series can be found at the following links:

    Part 1
    Part 2
    Part 3

    Troy D. Smith, Ph.D., teaches Native American History, American Indian Legal History, and Cherokee History at Tennessee Tech University. He is a past winner and multiple nominee of the Spur and Peacemaker Awards, and the former president of Western Fictioneers. 


    1. They use of laws to govern people can have repercussions, as we know if we look, that resonate so deeply into futures. Many do not, or have not taken the time to learn these lessons and your sharing your knowledge helps to lessen that lack. I look forward to additional knowledge. Thank you. Doris

    2. WOW, Troy! I had no idea. This is one of those everything-connects-to-everything pieces of history. Thanks so much for all this information--I just love learning about all this. It's no wonder our Indian ancestors didn't want to sign up to be on the rolls--they must have been scared out of their minds to do so.

    3. I'm a late-comer to reading your series on American Indians--both about customs and about law. I have found your blog posts very interesting and consider them a great research help.

      I have had occasion to research the Algonquin and Iroquois tribal customs and beliefs for one of my novels and relied heavily on some of the works by Francis Jennings. I am curious to know if you generally share his outlook on those tribes, their customs and attitudes, or if you have a difference of opinion.