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Colonization of Indian
Justice Systems
A Brief History
Carol Chiago Lujan and Gordon Adams
hearing and considering all the evidence, the crossers rendered a deci-
sion for damages according to a well-established scale that was known
to all. A crosser usually received a piece of shell currency, called a
S A
Only sixteen murders among the Cheyennes were recorded from 1835
to 1879, an extremely low number in comparison with that of the co-
existing rough and rowdy frontier towns where acts of deadly violence
were commonplace and execution of the murderer by hanging was the
norm. Penitentiaries isolated people in dreary conditions from society
for such infractions as indebtedness, manslaughter, rape, arson, and
assault. The Cheyenne justice system prized demonstrations of peni-
tence, regret, and sorrow by the perpetrators as indicators of their
repentance and their willingness to resume life in accordance with
Cheyenne values, customs, and beliefs. According to anthropologist
E. Adamson Hoebel, “An act of contrition, an open confession of error,
and an expression of humility” were accepted as proof of a restored
individual.3
Restorative justice often focuses on ending any further harm to
any parties. Perhaps it can best be explained by comparing it with
American retributive justice. Restorative justice is founded on the con-
cept of restoring harmony to the community, while retributive justice
is based on revenge. The retributive model focuses on offenders and
punishment while the restorative model addresses the victim and com-
munity. According to the Honorable Robert Yazzie, chief justice of the
Navajo Nation, restorative justice is “the process for renewing dam-
aged personal and community relationships.” Reparative justice is “the
process of making things right for those affected by an offender’s be-
havior. In other words, how can we help victims?”4
Although restorative justice techniques promote internal tran-
quility and group harmony, European colonists often failed to recog-
nize or appreciate the social control mechanisms that operated in
Indian societies. They viewed the world through racial categories that
cast cultures different from European standards as inferior and un-
worthy of existence. They believed Indians to be culturally and intel-
lectually inferior to themselves. Their incessant use of such disparag-
ing words as “savages,” “beasts,” “squaws,” and “wild men” illustrates the
Eurocentricity of their worldview. They crossed the Atlantic to obtain
land and resources knowing full well that the territories they entered
belonged to others. Their quest for land required them to develop poli-
cies for colonizing the indigenous populations.
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tered European colonists. Trade with them brought Indians new mate-
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over Indians and a preemptive right to the land by divine right and
discovery. Yet, Indian nations, except those scattered and weakened
by European diseases, forced the English to deal with them on a
government-to-government basis. The concept of Indian Country re-
sulted from this mutual recognition of one another’s political rights
and governance according to their respective normative views. Re-
gardless of these attempts at diplomacy, English expansion kept push-
ing westward, overwhelming, absorbing, and eradicating smaller, weaker
Indian nations.
Conquest occurred on a singular rather than a universal basis. As
individual Indian nations lost their ability to resist through the effects
of disease, starvation, and warfare, they fell one by one under the laws
and customs of the invaders. The victors often sold the indigenous sur-
vivors into slavery, confined them in praying towns, or relegated them
to a marginal status within colonial society. Those in New England and
Virginia whose land lay in the path of English expansion experienced
devastating losses in terms of their landholdings, independence, and
populations. The resulting wars not only took lives on both sides, but
also encouraged the British Crown to seize control of Indian affairs at
the conclusion of the French and Indian War in 1763.
The new American republic that surfaced in the 1770s adopted
the English model of colonialism that recognized Indian nations as
sovereign and independent, centralizing responsibility for Indian af-
fairs in the federal government. Enacted by Congress in 1787, the
Northwest Ordinance proclaimed that the United States would em-
ploy the utmost good faith in its dealings with Indians, but the fledg-
ling new country had already began pushing westward into Indian
lands, causing bloodshed and violence.
Treaty making nonetheless became an important aspect of the
federal-Indian relationship. Treaties are agreements made between
sovereignties and are the supreme law of the land. To highlight the im-
portance of treaties, the treaty made at Ghent between the United
States and England ended the American Revolutionary War in 1783.
Early treaties with Indians drew boundary lines, provided for peace and
trade, and addressed issues of jurisdiction. For example, in 1785 in the
Treaty of Wyandot it was agreed that U.S. law would punish Indians
committing crimes on U.S. land, and Indians would punish settlers com-
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exclusive right to enter into treaties with foreign nations and Indians.
In this respect, the Constitution acknowledged the status of Indian na-
tions as separate and distinctive nations and that Congress had limited
authority over Indian affairs. It did not provide for a policy of internal
colonialism over Indians. Congress initially acted with restraint in terms
of imposing federal jurisdiction over Indian lands, limiting its role to
regulating commerce through the Indian Trade and Intercourse Acts.
In the act of March 3, 1817, which would later become the General
Crimes Act, Congress established the first legislative expression of fed-
eral jurisdiction over Indians who commit federal crimes against non-
Indians and over non-Indians who commit federal offenses against
Indians in Indian Country.6 It is important to note that this statute
excludes federal jurisdiction over all crimes involving only Indians in
Indian Country.
In the late 1820s, the state of Georgia sought to extend its laws
over the Cherokee Nation. Among other things, these laws declared
that the operations of the Cherokee government, including its court
system, were illegal. Rather than using law as a “civilizing” force,
Georgia sought to make life so miserable for the Cherokees that they
would “voluntarily” move westward, leaving their lands for the sole
benefit of U.S. settlers.
Viewing Georgia’s actions as violations of the U.S. Constitution,
federal law, and their treaties with the United States, the Cherokees
went to the Supreme Court in an attempt to preserve their sovereign-
ty from the oppressive laws of Georgia. Chief Justice John Marshall
headed this tribunal. Previously, Marshall had demonstrated that the
Supreme Court functioned within the worldview of the colonizer, and
that that body would use imperialistic legal doctrine to subvert the
rights of Indians. In Johnson v. Mclntosh (1823), Marshall held that with-
in the discovery doctrine, land titles passed from the indigenous land-
holders to the discoverer. He defined Indians’ stake in the land at the
moment of discovery as a mere right of occupancy that could be ac-
quired by purchase or conquest. In Cherokee Nation v. Georgia (1831), the
court refused to strike down the Georgia laws that extended state
jurisdiction over Cherokee land, declaring that the Cherokees could
not file suit in federal court because they were not a foreign nation
within the definition of the U.S. Constitution. Marshall defined the
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Court. This case involved the constitutionality of the arrest, trial, and
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R E S E RVAT I O N S , A L L O T M E N T S ,
A N D F O R C E D A S S I M I L AT I O N
By the late 1870s, the U.S. government had largely accomplished the
often bloody and always destructive task of confining Indians to res-
ervations. With few exceptions, such as the Cherokees who adopted
white American systems of government, most Indians preferred to
practice their customary jurisprudence. In the last quarter of the nine-
teenth century, Congress responded to the continuance of Indian cul-
ture through both legal and military aggression. In the process, U.S.
policy bestowed federal agents with dictatorial powers, enabling them
to control and regulate virtually every aspect of Indian life and govern-
mental decision-making processes. The aim of this assimilation policy
was to remake Indians in the image of white Americans by acts of
coercion such as boarding school education and the criminalization
of American Indian spirituality. Its implementation undermined the
Indians’ traditional systems of justice, values, and norms. The conse-
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The 1903 decision paved the way for Congress to dissolve the
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S E L F - D E T E R M I N AT I O N
Indian court decisions were final. With habeas corpus review inserted
into their system, however, many tribal people view their courts’ deci-
W I C A Z O
v. Shirley. In Hicks, the Supreme Court ruled that federal law did not pre-
vent state officers from entering Indian reservations to investigate or
prosecute off-reservation violations of state law and that tribal courts 19
were not courts of general jurisdiction. Atkinson held that the Navajo
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SURVIVING COLONIALISM
AND EMPOWERING THE FUTURE
After European contact some Indian nations opted to alter their legal
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CONCLUSION
colonialism, Indian nations have not only survived but are thriving.
W I C A Z O
N O T E S
1997), 1.
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view with Gordon Adams, Septem- 18 Talton v. Mayes, 163 U.S. 376 (1896)
ber 18, 2002, Phoenix, Arizona. held that the Fifth Amendment
does not limit the Cherokee Na-
9 Clarice Feinman, “Women Batter- tion’s powers of self-government.
ing on the Navajo Reservation,”
International Review of Victimology 2 19 25 U.S. Code 1302 (1968).
(Summer 1992): 137–46.
N O T E S
R E V I E W
S A
W I C A Z O
23
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