Crime and American Indians

HISTORICAL CONSTRUCTIONS

CITIZENSHIP

TWENTIETH-CENTURY LAWS, CRIME, AND VIOLENCE

VIOLENT CRIME AMONG NATIVE AMERICANS

BIBLIOGRAPHY

The racial concept of American Indians, extending back some 500 years, has always included labels of the “alien Other” or the “hostile enemy,” as well as a general criminalization of any resistance to conquest, cultural domination, or the discriminatory systems put into place to maintain their subordination in segregated, oppressed areas called “reservations.” These exclusionary and discriminatory policies criminalized the cultural and social practices of Native nations and turned the reservations into internal colonies, while also causing high levels of violence, poverty, and crime on most Indian reservations. Luanna Ross, who has studied the “social construction of Native American criminality,” calls this process “inventing the savage.”

HISTORICAL CONSTRUCTIONS

Violence accompanied the initial expansion of Europeans into the Americas. The indigenous population, given the racial designation of “Indians,” or “los Indios,” was at times sold as slaves for the Western nation-states advancing into the Caribbean. The invasion was called “discovery” by the Europeans, and it was supported by great military might and technological superiority. Early notions of race and “savagery” branded “Indian” peoples as the “Enemy,” and thereby criminal, for their resistance to land-takings. The Native population was excluded as the “Other,” as distinct from the settlers, colonizers, or civilized citizens of newly created nations, including colonial forebears that became nations such as Mexico, Canada, and Cuba. This treatment was evident in the genocidal conquest of Hispaniola (later called Haiti), and in the destruction of the peoples of Mexico by Spanish conquistadors. Skin-tone visibility, compounded by vast cultural differences, allowed the dominating groups permanent recognition of status through “race” stratification. Racial hierarchies would continue to be used for three centuries by the Spanish, until they became essentially unmanageable. However, the effect on native peoples in the “New World” was always the same: outright genocidal destruction or racial subordination with a loss of culture, and a more powerful loss of sovereignty, freedom, and society.

The English colonies in North America imported their institutionalization of the Irish, designating Indians as “savage” and the Other in their own lands, and subsequently barring Native peoples by religion and “national” (cultural) origin from any real participation in colonial development preceding the United States, including at Jamestown or Plymouth. Both of these colonies, critically important to Anglo-Saxon laws that were inherited by the United States, treated Indians as aliens in their own lands, as either a potential enemy or an inferior Other. Thus began the legal underpinnings of treating Indians as “Hostiles.” Both Virginia and Massachusetts slipped into genocidal warfare against Native nations, blurring any distinction between the “criminal” and the alienated enemy resisting further invasion and land-takings. This also became a legacy of United States law, enshrined in the Constitution as “Indians not taxed” (and therefore not citizens) and in U.S. congressional rights to make (and break) treaties with Indian Nations. Indians thereby existed outside the legal protections of citizens of the new republic, yet they retained the dangerous, demonic labels of Enemy, Other, Alien, and Hostile.

CITIZENSHIP

United States law enforcement, and its attendant influence over violence and crime among and against American Indians, is reliant on historical relations between the nation-state and Native nations or tribes. In addition to wars, treaties, land-takings, the development of the Indian Reservation system, and legal restrictions, the key issue in respect to crime has been the nature of citizenship for Indian people. The U.S. Constitution criminalized the American Indian in ways remarkably similar to modern designations of “enemy combatant” under military law. Relations between the Native peoples and the United States can be divided into four basic historical periods of about a half century each. The first extended from the original era of treaty making through completion of the Indian Removal policies. The second period began with the Civil War and lasted until the killings at Wounded Knee and the end of the “frontier” around 1890. The third period covers the first half of the twentieth century, whereas the fourth, modern, period comprises the rising of social movements and U.S. policies that determine issues of sovereignty. Each period is marked by changing laws, enforcement, violence, and criminology relating to the changing legal position of American Indians, Native nations, and indigenous peoples.

The first two periods, from the founding of the United States (with its acceptance of colonial notions of race and racism) to the last genocidal acts of violence by U.S. military and militia forces, were marked by massive land-takings and a slippage into genocide and culturicide whenever outright theft or dishonest treaty-making could not accomplish the alienation of Indian lands. This included extending colonial claims of sovereign domination through two “legal” principles: the “Right to Conquest” and the “Doctrine of Discovery” (see Deloria and Lytle 1984). These amounted to little more than legal cover for conducting war, eliminating Indian resistance, and taking Native lands that stood in the way of U.S. westward expansion. The overall effect of these policies was to place American Indian people outside the citizenship rights of the new nation-state but provide little recognition of any indigenous rights.

Exemplifying these changing systems of criminality, including the use of genocidal policies arising to the level of war crimes, was the practice of “Indian Removal,” especially regarding the “Five Civilized Tribes” (the Cherokees, Chickasaws, Choctaws, Creeks, and Seminoles). Local states, especially the Carolinas and Georgia, took umbrage at Indian resistance and began taking Cherokee land by force and unilateral declaration, leading to new rounds of official relationships between the United States, its own “states,” and Indian Nations. Individual Indians had a Faustian choice of remaining in the United States, with little to no protection, or to being forcibly removed to new lands, with a minimum of rights and the certainty of future struggles. The Cherokees took legal action to resist continued state encroachment into their lands, leading to a set of U.S. Supreme Court decisions on this issue. The first was Johnson v. McIntosh (1823), in which the court acknowledged a limited “sovereignty” but sided with individual states. Following this was the moot Cherokee Nation v. Georgia (1831), in which the Court called the Cherokees “domestic dependent nations,” further attempting to define the status of Native American tribes.

Finally, in Worcester v. Georgia (1832), the Court ruled against Georgia and, in a limited way, for Indian Nations. However, President Andrew Jackson broke with constitutional law and began removing Indian peoples from the southeastern states, cajoling Congress into passing the Indian Removal Act of 1830. This act led to the forced removal of the Cherokees to Oklahoma in 1838. About 4,000 Cherokees died on the forced march during the brutal winter months, a journey now memorialized as the “Trail of Tears.” Jackson based his actions primarily on essentialist notions of the “race” of American Indians, and he essentially eliminated indigenous legal rights. The “Indian” was functionally criminalized as either an enemy or an alien. They were thus criminals on their own lands, and Native nations were targeted for elimination.

The U.S. rejection of its own treaties and laws continued until the 1871 Treaties Statute prohibited the nation from entering into treaties with Indian tribes. The 1868 treaty clearly gave certain rights to the Lakota and Indian peoples, as well as recognition of nations and treaty boundaries, and was thus unexceptable to the U.S. congressional elimination of these rights. This marked the end of a dialogue between nations and the beginning of relations between a dominant nation-state and its internally colonized Indian peoples. U.S. policies shifted from a focus on treaties to one on individual laws, including the Indian Offenses Act of 1883, and the recognition of “tribal” courts with tribal jurisdiction. This was formalized under the Major Crimes Act of 1885, which made U.S. law dominant over tribal law in seven major criminal offenses (expanded to fourteen crimes in 1888).

These policies outlawed many cultural practices, even traditional religious and educational practices, with the ostensible purpose of assimilating Native peoples into mainstream, dominant, “white” American society, albeit without citizenship or other polity rights. The Sun Dance, a peaceful spiritual gathering, was specifically made illegal, further criminalizing Lakota indigenous religious practices. Coercive assimilation against group property and kinship holdings, which was finally ended by the land allotments required by the 1887 Dawes Act, was in fact a form of cultural genocide. The Dawes Act

broke up collective land rights and allowed simple patent fee “rights” causing individually held land to be sold to non-Indians.

Variations on the criminalization and exploitation of American Indians existed in other parts of the country as well, notably in California, where an extensive set of local militias were systematically destroying the native population. Vagrancy laws legitimated indentured servitude under state law, which kept surviving Indian peoples under constant duress, just as the Fugitive Slave Act kept blacks in a state of duress in the pre–Civil War United States. The shortage of white women exacerbated the sexual exploitation of many Native women during this period, creating legitimized violence across California.

This period ended in 1890 with the quasi-genocidal killings at Wounded Knee, aptly described by Dee Brown in his book Bury My Heart at Wounded Knee. Brown’s title refers to the imprimatur of Euro-American domination and the end of the “frontier,” or the world of Indian peoples. Essentially, the aforesaid cultural and religious practices of resisting tribes, such as the Lakota in the Dakotas, were made illegal and were being repressed when a vast social revitalization movement, dubbed the Ghost Dance, spread across the western and northern regions of the United States. The U.S. Indian Commissions asked for and received military assistance to “put down” the Ghost Dance in Lakota country, and it was made illegal as an extension of the Indian Offenses. Indian agents gave lists of names to the government of those to be arrested, leading to the killing of Sitting Bull and some of his supporters on the Standing Rock Reservation. The survivors fled southward and surrendered, along with many Lakota from Cheyenne River, as they entered the Pine Ridge Reservation. Near the end of the disarmament the soldiers opened fire and butchered more than 300 people, signaling the end of American Indian freedom and independence. Civilian and military authorities in the U.S. predicted that Indian nations and tribes would disappear forever in the twentieth century (see Cadwalader and Deloria 1984). However, such reports of the demise of Indian nations were both premature and untrue. Of course, there is not a single case in which a “white man” was brought to justice for killing Indians, although many certainly did, while any violence toward non-Indians were prosecuted to the fullest extent of the law, or by vigilantes.

TWENTIETH-CENTURY LAWS, CRIME, AND VIOLENCE

Military violence subsided as the United States, having centralized federal sovereignty, maintained effective control over the social institutions within the purview of the states, especially through taxation, the judicial system, public education, transportation, and many economic enterprises. This meant that in any conflict (or act of cooperation) between federally recognized Indian nations tribes, the Indians were dealing with two sovereign entities, and were in fact acting as sovereigns themselves (not fully recognized for another fifty-plus years). Among the most contested relationships in twentieth-century America was that between the tribal sovereignty and individual state sovereignty. The general public, meanwhile, continued to racially identify indigenous peoples as “Indians.” Confusion over racial, political, and ethno-national identities persist in the twenty-first century, with ambiguous and changing laws applied to American Indians as individuals and as members of tribes or nations.

Finally, in 1924, the U.S. government passed citizenship laws that included Native Americans, perhaps as a last attempt to dissolve tribal sovereignty. In the twentieth century, two distinct forms of struggle over sovereignty began to emerge: sociopolitical sovereignty, related to Supreme Court decisions and jurisdictional relationships, and “cultural” sovereignty, expressed as the ability of a people to speak their own languages, practice their spirituality, and raise their families with “traditional” values. Arising after the civil rights movement and the urbanization of Indian families in the United States, Native social movements converged in the form of the American Indian Movement (AIM). By 1975 there were arrests, false imprisonment, selective assassinations, and a virtual prison industry against American Indian activists across the nation, finally coming to a head on Pine Ridge, when two FBI agents were killed in a conflict with AIM members. Suppression increased as the sovereignty movements of the 1980s became strong. Yet Native activism stayed alive, along with cultural retention struggles.

Complex governmental policies reflect the development of various forms of internal colonization, with laws unequally applied in and around Anglo communities near Indian reservations, very violent environments for Native people, and separate laws constructed for Indian nations. As the United States moved out of the third general time period, following World War II, American Indians began to protest the highly discriminatory systems they found in and around the reservation system and in large urban areas. At the same time, forms of crime that were not common in previous periods became more frequent, including the rise of domestic violence and assault. One example is instructive here. On the Standing Rock Reservation, which has a high rate of violent crime, death, and suicide, internalized and fratricidal violent assault increased in the second half of the twentieth century. Yet domestic abuse was relatively rare in traditional Native society, because a woman’s family would be present in living situations and the entire community would be responsible for the welfare of children. As forced assimilation confined Native peoples to the nuclear family structure, private property, and personal accumulation, internal struggles and assaults increased.

Complex criminal law further complicated law enforcement on most Indian reservations. After the Major Crimes Act, and the ensuing federal court decisions, most criminal cases involving Indians were prosecuted under federal guidelines. Jurisdictional issues had to determine whether it was Indian-on-Indian crime. Further, if non-Indians were involved, it had to be determined whether state laws applied. These “inter-racial” cases were often settled without considering Indian law or tribal codes, at least until relatively recently. The Navajo Nation developed a Peacemaker Court system that relies on traditional justice systems, and some other indigenous civil codes have evolved. Tribal court systems arose on most of the larger reservations, with Indian police enforcing laws for Indian peoples, though with mixed results for non-Indians: Questions arise over jurisdiction of tribal police over non-Indians and resulting prosecution and civil laws. “Code of Federal Regulations” (CFR) courts oversee tribal courts. One policy arising from the earlier termination era, that of designated Public Law 280 states, was meant to cause states to provide law enforcement and other services where Indian peoples could not, often because of size or lack of institutional development. However, many, if not most, states interpreted this policy as giving them jurisdiction, and this interpretation often created “lawless” areas for non-Indians. Because tribal law would apply, under federal guidelines non-Indians were not subject to tribal law or police, and local or state police were often not patrolling or enforcing these areas, thus creating lawlessness (see Goldberg 1999).

VIOLENT CRIME AMONG NATIVE AMERICANS

As noted earlier, violent crime rates among Native populations rose during the last decades of the twentieth century, both internal to the reservation system and in towns and cities near reservations. When the U.S. Department of Justice finally studied these rates, they were surprised to learn that American Indians were the most likely racial group to be victims of violent crime, with a crime rate of two and a half times the national average, and many rates are even higher on reservations (see Table 1). Further, Indians were found to be the only victims of violent crime to have the perpetrators come primarily from another racial group, Anglo-Americans. Indeed, about seven out of ten violent victimizations of American Indians involve an offender described by the

victim as someone of a different race; this is a substantially higher rate of interracial violence than experienced by white or black victims (see Greenfield and Smith 1999, Perry 2004). More alarming is the finding that more than one-third of all Native American women will be raped at least once in their lifetime, and nearly two-thirds will be victims of violent assault. Yet, with few exceptions, tribal law enforcement cannot pursue and prosecute non-Indians, who are the most likely perpetrators of this violence (see Eid 2007).

All forms of crime have increased on most Indian reservations, with the notable exception of more well-off tribes with casino wealth. Violent crime is consistently high in communities near larger reservations, with much of the crime perpetuated by non-Indians on Indian victims. There is substantial hate crime as well. Drug use and alcoholism are very problematic and accompanied by the attendant criminal activity, with a shocking 25 percent of federal drug and alcohol prosecutions emanating from “Indian Country” (ironically, this term came into use during U.S. military invasions). Methamphetamine use and production has also posed particular issues for rural Native communities. Law enforcement systems have been underfunded and misdirected, and there are ongoing misunderstandings (and sometimes conflicts) between local and state police jurisdiction over American Indians on sovereign Native territory.

Overall, one can trace four hundred years of violent domination and changing criminal justice systems in the United States, including the limited and coerced assimilation of most American Indian tribes. Traditional justice systems have been suppressed and often eliminated, with only limited inclusion into the dominant social system, and this inclusion has usually proven to be discriminatory. Tribal law enforcement systems have become stronger since the 1970s, as Indian law has developed over a wide range of crime and social control. This may point to a future increase in cross-national justice that respects the sovereignty and cultures of indigenous peoples and Native nations.

SEE ALSO American Indian Movement (AIM).

BIBLIOGRAPHY

Berkey, Curtis G. 1992. “United States–Indian Relations: The Constitutional Basis.” In Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution, edited by Oren Lyons and John Mohawk. Santa Fe, NM: Clear Light Publishers.

Berkhofer, Robert, Jr. 1978. The White Man’s Indian: Images of the American Indian from Columbus to the Present. New York: Random House.

Cadwalader, Sandra D., and Vine Deloria Jr., eds. 1984. The Aggressions of Civilization: Federal Indian Policy since the 1880s. Philadelphia: Temple University Press.

Champagne, Duane. 1992. “Organizational Change and Conflict: A Case Study of the Bureau of Indian Affairs.” In Native Americans and Public Policy, edited by Fremont Lyden and Lyan Legters. Pittsburgh, PA: University of Pittsburgh Press.

Coffey, Wallace, and Rebecca Tsosie. 2001. “Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations.” Stanford Law & Policy Review 12, no. 2: 191–221.

Deloria, Vine, Jr., and Clifford Lytle. 1984. The Nations Within: The Past and Future of American Indian Sovereignty. New York: Pantheon Books.

Deloria, Vine, Jr., and David E. Wilkins. 1999. Tribes, Treaties, and Constitutional Tribulations. Austin: University of Texas Press.

Dippie, Brian W. 1982. The Vanishing American: White Attitudes and U.S. Indian Policy. Middletown, CT: Wesleyan University Press.

Dunbar-Ortiz, Roxanne. 1984. Indians of the Americas, Human Rights and Self-Determination. London: Zed Books.

Eid, Troy. 2007. “Criminal Justice in Native America.” Indian Country Today, June 7. Available from http://www.indiancountry.com.

Fenelon, James V. 2002. “Dual Sovereignty of Native Nations, the United States, and Traditionalists.” Humboldt Journal of Social Relations 27 (1): 106–145.

———. 1998. Culturicide, Resistance, and Survival of the Lakota (Sioux Nation). New York: Garland.

Goldberg, Carol. 1999. “Public Law 280 and the Problem of ‘Lawlessness’ in California Indian Country.” In Contemporary Native American Political Issues, edited by Troy Johnson. Walnut Creek, CA: AltaMira Press.

Greenfield, Lawrence, and Stephen Smith. 1999. American Indians and Crime. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Available from http://www.ojp.usdoj.gov/bjs/pub/pdf/aic.pdf.

Johnston-Dodds, Kimberly. 2002. “Early California Laws and Policies Related to California Indians.” Sacramento: California Research Bureau, California State Library. Available from http://www.library.ca.gov/crb/02/14/02-014.pdf.

Lazarus, Edward. 1991. Black Hills, White Justice: The Sioux Nation versus the United States, 1775 to the Present. New York: Harper Collins.

Perry, Stephen W. 2004. “American Indians and Crime: A BJS Statistical Profile, 1992-2002.” Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Available from http://www.ojp.usdoj.gov/bjs/abstract/aic02.htm.

Ross, Luanna. 1998. Inventing the Savage: The Social Construction of Native American Criminality. Austin: University of Texas Press.

Smedley, Audrey. 1999. Race in North America: Origins and Evolution of Worldview, 2nd ed. Boulder, CO: Westview Press.

Trafzer, Clifford E., and Joel R. Hyer, eds. 1999. Exterminate Them: Written Accounts of the Murder, Rape and Slavery of the Native Americans during the California Gold Rush, 1848–1868. East Lansing: Michigan State University Press.

Wallace, Anthony F. C. 1993. The Long, Bitter Trail: Andrew Jackson and the Indians. Philadelphia: Hill and Wang.

Wilkins, David E., and K. Tsianina Lomawaima. 2002. Uneven Ground: American Indian Sovereignty and Federal Law. Norman: University of Oklahoma Press.

Wright, Ronald. 1992. Stolen Continents: The Americas through Indian Eyes since 1492. Boston: Houghton Mifflin.

James V. Fenelon