American Indians in the justice system

Significance: As members of distinct political communities with limited sovereignty, American Indian tribal people share a legal status unique among American citizens.

When Europeans first reached the Americas, they encountered native peoples whose ancestors had occupied the entire landmass for more than twenty thousand years. The numerous North American tribes used many different legal systems that functioned successfully under natural law without police, formal courts, or prisons. Decisions affecting individual rights were resolved in a manner that gave considerable weight to the best interests of the group and sought restoration of community harmony and balance. Around the fifteenth century, the indigenous peoples encountered Europeans holding different views of legal rights and posing a serious threat to native sovereignty and rights.

The Old Colonialism

English colonizers in North America generally pursued the treaty-making process as the chief means for acquiring land. Their diplomacy recognized Indian tribes as sovereign foreign nations. When the American Revolution ended British rule in the thirteen seaboard colonies, the new American republic displaced England and continued the old colonialism in its diplomatic relationships with the tribes. The United States initially viewed American Indians as members of small nations who would remain permanently outside American political institutions.

Tribal Sovereignty and Indian Rights

Early American statesmen, including Thomas Jefferson, formulated ideal rules for the peaceful and voluntary extinction of Indian title through legal land purchases. Government policy encouraged Native Americans to enter the mainstream of the dominant culture and live alongside white settlers.

The United States abandoned this policy when it concluded that the tribal lands were too valuable to recognize Indian rights within them. Presidential administrations responded to pressure from anti-Indian frontiersmen and the desire of new southern states to appropriate Indian lands and dismantle tribal governments. Between 1815 and 1840, most eastern and southern tribes were removed—with great hardship and loss—west of the Mississippi, to the southern plains region designated Indian Territory.

As removal proceeded, a defining moment in the legal relationship between tribes and the United States came with the Cherokee court cases of the 1830s. The Cherokees, a highly advanced and acculturated southeastern tribe that was implementing Jefferson’s advice, sought justice through the US legal system, resisting impending removal from Georgia and the state’s effort to dissolve their government and subject them to its laws. In Cherokee Nation v. Georgia (1831), Chief Justice John Marshall ruled that the case was not eligible to be heard by the Supreme Court because Indian tribes did not qualify as independent foreign nations. This decision characterized Indian tribes as “domestic dependent nations” whose relationship with the U.S. government was that of a ward to its guardian.

In a second case, Worcester v. Georgia (1832), Marshall reached different conclusions using the same legal background. He cited earlier treaties with the Cherokee recognizing their national character and right to self-government as distinct, independent political communities retaining natural rights as the original possessors of the soil. Georgia’s actions interfered with the federal government’s exclusive authority to make treaties with Indian tribes and were therefore invalid. The Cherokee legal victory was short-lived, as President Andrew Jackson refused to enforce the ruling, and the tribe was removed forcibly to Indian Territory within a few years. Yet on this important decision, cited frequently in later cases, hinged issues such as Indian title to lands, tribal independence, and the validity of treaty rights.

Dispossession and Warfare

Unexpectedly rapid American expansion westward beginning in the 1840s jeopardized the political autonomy and security of person and possessions that had been promised to removed tribes in their new lands. A final round of violent confrontation played out after 1860, as American movement into tribal lands of the West and Great Plains forced further cessions and destroyed the tribes’ traditional economic base. Tribal sovereignty received a new setback in 1871, when the United States ceased negotiating treaties with tribal nations. Although previous treaties were to remain valid, from this point onward the federal government would unilaterally subject the tribes to congressional legislation and presidential orders.

The New Colonialism

Under this new colonialism, the situation of American Indians reached its lowest point. Tribal peoples were confined to reservations under authoritarian paternalistic control; there the government ruthlessly pursued assimilation goals through forced acculturation, while corrupt US Indian agents plundered tribal resources. Furthermore, the General Allotment Act of 1887 forced tribal members to break up communal holdings by accepting 160-acre tracts and opened unallotted reservation land to sale. The eventual result was loss of both “surplus” land and many private allotments to whites.

By 1934, this process had reduced the tribal estate from 138 million to 48 million acres, half of which was desert. The Native American population, once numbering more than 10 million, fell to 250,000 toward the end of the nineteenth century. By the 1920s, tribal peoples suffered from impoverishment, poor health conditions, and lack of education—a situation from which they have not fully recovered.

After 1870, court rulings and congressional legislation upheld Marshall’s legal precedents but further refined and narrowed the scope of tribal sovereignty. Moreover, the Bill of Rights did not protect tribal peoples’ rights. In legal disputes with the government, Indians were denied freedom of choice of counsel (Sixth Amendment). The First Amendment right to assemble was violated through forced confinement on reservations, which Indians were unable to leave without permission. Cultural genocide and loss of property contradicted the Fifth Amendment.

The late 1870s and early 1880s witnessed the creation of tribal police forces and courts as instruments to enforce the government’s determined assault on traditional Indian culture. The tribal courts’ authority soon became controversial because of the Supreme Court ruling Ex parte Crow Dog (1883). Tribal magistrates on the Rosebud Reservation in South Dakota allowed a murder case to be handled in the traditional manner of restitution to the victim’s family. Federal officials then arrested the assailant, Leonard Crow Dog, and convicted him of murder in the territorial district court. On appeal, the Supreme Court ordered him released on grounds that a federal court had no jurisdiction over crimes committed by Indians against other Indians on reservation land. In response, Congress passed the 1885 Major Crimes Act, which placed seven serious crimes under federal jurisdiction even when they were committed on reservation land. This list of crimes was further expanded in the twentieth century, leaving tribal courts with jurisdiction only over minor offenses.

A devastating blow to sovereignty came in the court case Lone Wolf v. Hitchcock (1903). This litigation involved the Kiowa tribe and its chief Lone Wolf and their attempt to halt the sale of “surplus” reservation lands based on a former treaty guarantee requiring the signed consent of at least three-fourths of male occupants. Ignoring the Constitution’s Fifth Amendment protection of life, liberty, and property, the Supreme Court upheld lower court opinions that Congress had full authority over tribal land, an authority that superseded treaty guarantees.

In 1924, the government bestowed US citizenship on American Indians. This gesture did not halt the loss of lands to whites or the campaign to suppress Indian culture. Moreover, some states successfully prevented these new citizens from voting.

The Indian New Deal

A major policy shift followed the election of President Franklin D. Roosevelt in 1932. The Indian Reorganization Act, or Indian New Deal, the inspiration of Roosevelt’s Bureau of Indian Affairs chief, John Collier, ended allotment, helped tribes purchase some lost land, encouraged the recovery of traditional native culture, and attempted to revitalize the tribal system of self-government. The act improved conditions for Native Americans and gave them new hope; it is still considered the most important piece of Indian legislation in US history. About half of the tribes refused participation, however, resisting Collier’s paternalistic attempt to impose guidelines for US-style constitutions. They preferred traditional forms of self-rule.

Termination

After World War II, a conservative Congress mounted the most serious threat to date against tribal sovereignty under the label “termination.” This policy’s most ominous components were congressional bills authorizing termination of various designated tribes, thereby liquidating federal treaty obligations and payments, and Public Law 280, which authorized states to assume jurisdiction over criminal and civil cases involving Indians.

Termination failed badly. States faced escalating welfare costs and were often reluctant to assume the added expense of policing or taking control of judicial matters in Indian country. As the injustice and impracticality of this policy became clear, it was put on hold after 1960. Congress eventually restored the status of most terminated tribes, and Public Law 280 was amended to the point where it ceased to be a threat to tribal sovereignty.

American Indian Civil Rights Act

Earlier rulings recognizing tribes as distinct political entities exempted their courts from external regulation. Concern that basic rights guaranteed to other Americans were sometimes violated in tribal judicial proceedings prompted passage of the American Indian Civil Rights Act. The legislation extended many (though not all) constitutional protections to tribal members. Some Indians welcomed this measure, and most tribal courts already adhered to its provisions. Traditionalists, however, saw it as another attempt to force the dominant white culture on tribal peoples with distinct sociocultural traditions. The legislation did give rise to some situations in which procedures consistent with Native American culture were challenged in court by both Indian and non-Indian litigants.

Post–1970 Developments and Issues

The period since the late 1960s has been marked by mixed success for Indian rights and tribal sovereignty. The late 1960s gave rise to political militancy among urban Indians who reacted against racism and sought to reconnect with their roots. Pride in being Indian and efforts to seek renewal through the recovery of language, religion, and other traditions, nearly eradicated by past US policy, have contributed to a Native American cultural rebirth.

President Richard M. Nixon denounced termination and handed the Taos Pueblo tribe a major victory with the return of its sacred Blue Lake area. Renewed tribalism and self-determination empowered tribes by allowing them to contract with the government to assume management of numerous government programs and services on the reservation. Although contested at every step, tribes have also had some success in asserting control over natural resources.

During the presidency of Ronald Reagan, Indian rights suffered a setback in Supreme Court rulings that restricted First Amendment religious freedoms. In Lyng v. Northwest Indian Cemetery Protective Association (1988), the new conservative Court majority ruled against Native American efforts to protect sacred sites from development. A 1990 decision threatened the traditional use of the sacramental plant and drug peyote in religious ceremonies of the Native American Church, likened to the use of wine in the Christian Communion rite.

Since 1990, progress has occurred on the sensitive issue of repatriating the remains of tribal people from museums and private and government collections. Nevertheless, the exercise of tribal sovereignty and treaty rights continues to bring tribes into conflict with state and local interests. Also uncertain is the future of tribally owned gambling casinos on reservation land, a financially successful business venture for many tribes which is regulated under the Indian Gaming Regulatory Act of 1988. The long struggle of Native Americans to defend and preserve their rights in American society continues.

Bibliography

Debo, Angie. A History of the Indians of the United States. Norman: U of Oklahoma P, 2013. Print.

Hagan, William T. American Indians. Chicago: U of Chicago P, 2012. Print.

Hanson, Lindsey. "American Indian Poverty on Reservations." Encyclopedia of American Indian Issues Today. Russell M. Lawson, ed. Santa Barbara: Greenwood, 2013. 75–84. Print.

Newton, Nell Jessup, Felix Cohen, and Robert Anderson. Cohen's Handbook of Federal Indian Law. San Francisco: LexisNexis, 2012. Print.

Pevar, Stephen. The Rights of Indians and Tribes. New York: Oxford UP, 2012. Print.