by Clara NiiSka

In August 1881, Crow Dog, “belonging to” the Brule Sioux Band, killed Spotted Tail, who signed the treaty of 1868 as the principal Chief of the Brule Sioux.  “The killing,” according to court records, “took place at their agency upon the Great Sioux Indian reservation, in the first judicial district of Dakota Territory.”  Crow Dog was convicted of murder by the district court of Dakota territory, and sentenced to death.

In November 1883 the U.S. Supreme Court heard arguments on writs of habeas corpus and certiorari filed on behalf of Crow Dog.  In the case Ex Parte Crow Dog, decided December 1883, the Supreme Court reversed the territorial court decision, and ruled that, “the First District Court of Dakota is without jurisdiction to find or try an indictment for murder committed by one Indian upon another in the Indian country, and a conviction and sentence upon such indictment are void, and imprisonment thereon is illegal.”

The Supreme Court’s decision in Ex Parte Crow Dog includes a fine-grained analysis of the jurisdiction of the district courts of the Territory of Dakota, sections of the revised U.S. statutes pertaining to “crimes arising within the maritime and territorial jurisdiction of the United States,” the provisions of the treaty of April 29^th, 1868 and an agreement with “certain bands of the Sioux Indians, &c.” approved by Congress February 28^th, 1877.

The eighth article of the 1877 agreement provided that the signatory Sioux “be subject to the laws of the United States, and each individual shall be protected in his rights of property, person and life.”  The Supreme Court decided that the words of that agreement “can have no such effect as that claimed by them”—that the Sioux were subject to U.S. law, “not in the sense of citizens, but … as wards subject to a guardian … as a dependent community who were in a state of pupilage.”

In 1871, Congress ended U.S. treaty-making with Indians.  United States Indian policy underwent a transformation in the 1870s and early 1880s: from President Grant’s “peace policy”—“Indians who did not go willingly to the reservations would either be driven there by force or exterminated in the process”—to a long-range agenda of “assimilation.”  As Senator Dawes, better-known for the General Allotment Act, put it, the “Indian people will not remain as a separate race among us … He is to disappear in the midst of our population, be absorbed in it, and be one of us and fade out of sight as an Indian …”

The assimilationists’ agenda of Christianization and the use of “education” to “kill the Indian … and leave the man and the citizen” was countered by the philosophy expressed by the Supreme Court in Ex Parte Crow Dog: that Indians were “… aliens and strangers … a community separated by race, by tradition, by the instincts of a free though savage life …”  During the 1870s, most U.S. Indian reservations remained under military control—Indian agents were often also officers in the U.S. Army.  Excerpts from the annual Report of the Commissioner of Indian Affairs provide a glimpse of the foundations of present U.S. Indian policy:

1878, Indian police:

By Act of May 27, passed at the last session of Congress, provision was made for the organization at the various agencies of a system of Indian police …  Too short a time has elapsed to perfect or thoroughly test the workings of such a system, but the results of the experiment at the thirty agencies in which it has been tried are entirely satisfactory, and commend it as an effective instrument of civilization. … The police organization should be followed up by the adoption of a code of laws for Indians, and peace and good order among them will result.

1879, law for Indian reservations:

In the last three annual reports of this office urgent appeals have been made for the enactment of laws for Indian reservations.  The following bill was introduced at the last Congress …

… That the provisions of the laws of the respective States and Territories in which are located Indian reservations, relating to the crimes of murder, manslaughter, arson, rape, burglary and robbery shall be deemed and taken to be the law, and in force within such reservations; and the district courts of the United States … shall have original jurisdiction over all such offenses which may be committed within such reservations. …

It is a matter if vital importance that action should be taken to secure the passage of the above bill, or of some measure of equal efficiency to provide law for Indians, to the end that order may be secured.  A civilized community could not exist as such without law, and a semi-civilized and barbarous people are in a hopeless state of anarchy without its protection and sanctions.  It is true the various tribes have regulations and customs of their own, which, however, are founded on superstition and ignorance of the usages of civilized communities …  To supply their place it is the bounden duty of the government to provide laws suited to the dependent condition of the Indians. … the wonder is that such a code was not enacted years ago.

1880, legislation needed:

… The enactment of suitable laws for Indian reservations.  In the annual reports of this office for some years past the necessity for a judicial system or code of laws for the Indians has been specially commented upon …

It is of the utmost importance that some such measure … should be passed, not only in the interest of peace and good order among the Indians, but also as a necessary factor in the work of their civilization.  Under the present system, outside of the five civilized tribes, crimes and offenses committed by one Indian against the person and property of another are remitted to tribal laws or customs for punishment.  It is time that this relic of barbarism should cease.  The Indian should be taught to know and respect the same law which governs the white man, and to recognize the fact that, while he is amenable to the law, he is equally entitled to its protection and privileges.

1881, the enactment of laws for Indian reservations:

Various measures looking to this end have been introduced in Congress, among the latest being House bill No. 350, Forty-sixth Congress, second session …  This bill, as well as others of a kindred nature, died a natural death at the close of the last Congress.

I … earnestly hope that Congress will find time to bestow attention upon this important subject. …

1882, laws for Indians:

For years past urgent appeals have been made by this office for such legislation as will insure a proper government of the Indians, by providing that the criminal laws of the United States shall be in force on Indian reservations, and shall apply to all offenses, including those of Indians against Indians; and by extending the jurisdiction of the United States courts to enforce the same; in short to make an Indian as amenable to law as any other subject of the United States.

From time to time various measures looking to this end have been introduced in Congress; but from some cause or other … they have invariably fallen through, so that to-day the only statutes under which Indians are managed and controlled are substantially those created in 1834, known was the trade and intercourse laws. … As civilization advances and the Indian is thrown into contact with white settlers the authority of the chiefs proportionately decreases.  It is manifest that some provision of law should be made to supply this deficiency and protect Indians in their individual rights of person and property.  At the same time, the Indian should be given to understand that no ancient custom, or tribal regulation, will shield him from just punishment for crime. …

I again respectfully recommend that the attention of Congress be called to the subject, with a view to such legislation as it may deem expedient.

1883, laws for the government of Indians:

In the annual reports of this office for several years past, attention has been invited to the urgent necessity of some suitable code of laws for Indian reservations.  Indians in the Indian country are not punishable for crimes or offenses committed against the persons or property of each other.  Such offenses are generally left to the penalties of tribal usage … or the offenders are subjected to a few weeks or months arbitrary confinement in an agency guardhouse or military fort.

The Indian is not a citizen of the United States.  He cannot sue or be sued under the judiciary act of 1789, and only gets into Federal courts as a civil litigant, in occasional instances, by favor of special law, and in many of the States and Territories he has no standing at all in court. …

No action has been taken by Congress … asking for the enactment of a general statute putting Indians under the restraints and protection of law …

… Congress should confer both civil and criminal jurisdiction on the several States and Territories over all Indian reservations within their respective limits, and make the person and property of he Indian amenable to he laws of the State or Territory in which he may reside … and give him all the rights in the courts enjoyed by other persons. …  What is required is a law for the punishment of crimes and offenses among the Indians themselves, one which shall make the Indian equally secure with the white man in his individual rights of person and property, and equally amenable for any violation of the rights of others.

Court of Indian Offenses

On the 10^th of April last you [the Secretary of the Interior] gave your official approval to certain rules governing the “court of Indian offenses,” prepared in this office in accordance with instructions contained in your letter of December 2 last.  These rules prohibit the sun-dance, scalp-dance and war-dance, polygamy, theft, &c., and provide for the organization at each agency of a tribunal composed of Indians empowered to try all cases of infraction of the rules. … I am of the opinion that the “court of Indian offenses,” with some few modifications, could be placed in successful operation at the various agencies, and thereby many of the barbarous customs now existing among the Indians would be entirely abolished.

There is no good reason why an Indian should be permitted to indulge in practices which are alike repugnant to common decency and morality; and the preservation of good order on the reservations demands that some active measures should be taken to discourage and, if possible, put a stop to the demoralizing influence of heathenish rites …

1884:

In his annual Report, 1884, the Commissioner of Indian Affairs once again wrote that, “a law is badly wanted for the punishment of crimes and offenses amongst Indians themselves.”  The Commissioner referred to Crow Dog, “at large upon the reservation unpunished,” as illustrative of the “necessity for amendment of the law,” and commented that, “the average Indian may not be ready for the more complex question s of civil law, but he is sufficiently capable to discriminate between right and wrong, and should be taught by the white man’s law to respect the persons and property of his race, and that under the same law he himself is entitled to like protection.”

Despite his apparent pleas for equal protection under the law for Indians, in the same 1884 Report, the Commissioner also extolled the newly-established court of Indian offenses for being “instrumental in abolishing many of he most barbarous and pernicious customs that have existed among the Indians from time immemorial,” specifically including such “heathenish customs” as the sun dance.  His report included quotations from the reports of several Indian agents, including at White Earth Agency, Minnesota: “The court here has relieved me of many trying cases … it is only a question of time and it will become a permanent fixture and recognized as the only way to settle the little differences” among Indians.  He also recommended a Congressional appropriation of $50,000 to pay the salaries of Indian court judges and “other necessary expenses,” and urged that, “it would be a matter of economy to the Government in saving the expense heretofore incurred of suppressing crimes which are now included in the jurisdiction of the court of Indian offenses.”

1885:

U.S. Congress enacted the precursor to the Indian Major Crimes Act as the ninth section of the Indian Appropriations Act of March 3, 1885.  That act “gave” U.S. courts jurisdiction over the Indians accused of the crimes of murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny.  In his 1885 Report, the Commissioner described the legislation as a “step in the right direction,” and once again expressed the notion that “Indians should eventually become subject to and enjoy the protection of all laws in the same manner and to the same extent as other persons.”

(Congress’ assertion of federal jurisdiction was upheld the following year by the U.S. Supreme Court in the case United States v. Kagama, involving a murder on the Hoopa Valley Reservation in California.  The grounds upon which the Supreme Court affirmed federal jurisdiction rested on the notion of Indian “pupilage,” and, as the Court wrote: “The power of the General Government of these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell.  It must exist in that government, because it has never existed anywhere else … because it has never been denied, and because it alone can enforce its laws on all tribes.”)

The Commissioner also addressed the court of Indian offenses in his 1885 Report, writing: “Under the date of April 10, 1883, the then Secretary of the Interior gave his official approval to certain rules prepared in this office for the establishment of a court of Indian offenses at each of the Indian agencies …  It was found that the longer continuance of certain old heathen and barbarous customs, such as the sun-dance, scalp-dance, war-dance, polygamy, &c., were operating as a serious hindrance to the efforts of the Government for the civilization of the Indians. …

“There is no special law authorizing the establishment of such a court, but authority is exercised under the general provisions of the law giving this Department supervision of the Indians.  The policy of the Government for many years past has been to destroy the tribal relations as fast as possible, and to use every endeavor to bring the Indians under the influence of law.  To do this the agents have been accustomed to punish for minor offenses, by imprisonment in the guard-house and by withholding rations, but under the present system the Indians themselves, through their judges, decide who are guilty of offenses under the rules, and pass judgment in accordance with the provision thereof.  Neither the section in the last Indian appropriation bill [granting federal jurisdiction over major crimes] … nor any other enactment of Congress reaches any of the crimes or offenses provided for in the Department rules, and without such a court many Indian reservations would be without law or order, and the laws of civilized life would be utterly disregarded.

“At each agency, where it has been found practicable to establish it, the reports of the Indian agents show that the court has been entirely successful, and in many cases eminently useful in abolishing the old heathenish customs that have been for many years resorted to, by the worst elements on the reservation, to retard the progress and advancement of the Indians to a higher standard of civilization and education. …”