Regulating whites on Native American lands

Not all early Supreme Court decisions ruled against Native Americans. The earliest decision in Figure 6.5, Johnson v. M'Intosh (21US543), ruled that private (white) citizens could not purchase lands from Native Americans. Both the Oxford list and Wikipedia's list of landmark cases contain this case. Another early case in Figure 6.5 is Worcester v. Georgia (31US515), featured in Vile's (2010) discussion of essential Supreme Court decisions. Georgia enacted a criminal statute prohibiting non-Native Americans from being present on Native American lands without a state license. The Court ruled this law unconstitutional. In The Kansas Indians (72US737), the Court ruled Kansas could not tax lands of individual Native Americans of the Shawnee, Miami, and Wea nations.

Curtailing the authority of Native American courts

Ex parte Crow Dog (109US556) involved a conflict between two Sioux Nation members on reservation land. Crow Dog, a chief, killed another Sioux chief. Tried by a Native American council, he paid restitution: the case was settled under Native American law. However, a US court then tried Crow Dog for murder, sentencing him to death. A unanimous Supreme Court ruled federal courts had no jurisdiction after the Native American court had ruled on such cases. A writ of habeas corpus was issued. This decision, favorable to Native American sovereignty, led to white outrage. The Major Crimes Act of 1885 followed quickly. It placed murder, manslaughter, rape, assault with intent to commit murder, arson, burglary, and larceny under federal jurisdiction.[1] This greatly reduced Native American authority on their lands. Eroding this sovereignty has a very long history.

Reactions to Crow Dog are striking examples of the Court not always having the last word: any decision can prompt a law designed to undo it. Three years later, United States v. Kagama (187US294), also on the Oxford list, cited Ex parte Crow Dog. It concerned a Yurok Native American charged with murdering another Yurok. It was chosen to establish the constitutionality of the Major Crimes Act.[2] This decision cited Cherokee Nation v. Georgia, also in Figure 6.5.

A deeper intent lay behind the Major Crimes Act and Kagama: it was to affirm Congressional power to strip Native Americans of liberties and to reduce their sovereignty. They laid foundations for subsequent laws including the 1887 Dawes Act designed to eliminate Native American cultural identities and force their assimilation.

Figure 6.5 shows Lone Wolf v. Hitchcock, also on the Oxford list, citing Cherokee Nation v. Georgia. It affirmed Congress taking lands from Native Americans and its right to abrogate all treaties with them. From Hall (2005): 592: 'Lone Wolf has permitted the United States to appropriate tribal lands and resources under the guise of fulfilling federal trust responsibilities' and noted that 'it is impossible for tribes to obtain judicial protection in disputes with the United States.'[3] This set of cases showed the Court and Congress moving jointly in subjugating Native American nations.

  • [1] This list was expanded to include 15 crimes. As a very modern postscript, Erdrich (2013) points out that rapes of Native American women by non-Native American men cannot be tried in Native American courts. She notes: 'More than 80% of sex crimes on reservations are committed by non-Native men who are immune from prosecution by tribal courts' and most of the offenders remain immune because US courts seldom prosecute these cases.
  • [2] The local district attorney declined to prosecute citing Crow Dog but the District Attorney for Northern California decided to pursue the case.
  • [3] It quotes a federal judge in 1979 as describing Lone Wolf as the Native American's Dred Scott (see Section 6.6) and adds that it had 'not been repudiated by political events or judicial decisions.'
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