Policing American Indians: a Unique Chapter in American Jurisprudence

Laurence Armand French,
University of New Hampshire;
Western New Mexico University



The ever changing landscape of Indian Country in the United States involving treaties, removal, allotment, termination/relocation and eventually a degree of “self-determination extends from the colonial era to the mid-1970s (French, 1994). During this time an internal battle raged between military and civilian authorities over who would manage Indian County (Sheehan, 1974; Stephanson, 1995).  Racist leaders prevailed in both camps with generals like Sheridan, Sherman, Crook, and (brevet) Custer eager to hunt down Indians deemed “renegades.” They competed with often corrupt politically-appointed Indian Agents and/or condescending religious zealots for control over the spoils that could be gained from federal contracts awarded for the care of Indian tribes forced (incarcerated) onto reservations that were virtually concentration/internment camps.  Included in this mix were agent provocateurs eager to ignite hostilities between Indians and whites, including those intruding into the so-called protected tribal domains in Indian Country.  Neither the U.S. Army nor the Indian Agents were interested in preserving the traditional cultures of the tribes they oversaw. Indeed, the U.S. Army was bent on physical genocide while their civilian counterparts were engaged in cultural genocide.  The idea of accepting American Indian culture and traditions as equal to those of the dominant white society was destroyed with Removal of the Five Civilized Tribes in the 1830s, a process that continued until the 20 th century and with new ramifications in the 1950s under Termination and Relocation (French, 2007; Jahoda, 1975).  The use of Indian scouts by the U.S. Army and Indian police by civilian agents emerged during the second half of the 19 th century, during the second phase of the U.S. Indian Wars – 1855-1890 (Stewart, 2001).

U.S. Army & the Indian Wars of 1865-1891

Indian wars per se began with during the colonial era and continued off and on up to the U.S. Civil War (Calloway, 1995; Collier, 1973; McDermott.1998; Prucha, 1962).  Nonetheless, the United States longest official war was the Indian Wars that began during the Civil War and lasted until the 1890s. Here, the U.S. Army’s official Indian Campaign Medal was awarded for: Service in enumerated campaigns or “against hostile Indians or in any other action in which the United States troops were killed or wounded between 1865 and 1891.   The eligible campaigns during the Indian wars include the following:

-??????? Southern Oregon, Idaho, northern California, and Nevada between 1865 and 1868.

-??????? Against the Comanche and confederate tribes in Kansas, Colorado, Texas, New Mexico, and Indian Territory between 1867 and 1875.

-??????? Modoc War between 1872 and 1873.

-??????? Against the Apaches in Arizona in 1873.

-??????? Against the Northern Cheyenne and Sioux between 1876 and 1877.

-??????? Nez Perce War in 1877.

-??????? Bannock War in 1878.

-??????? Against the Northern Cheyenne between 1878 and 1879.

-??????? Against the Sheep-Eaters, Piute, and Bannocks between June and October, 1897.

-??????? Against the Ute in Colorado and Utah between September 1879 and November 1880.

-??????? Against the Apaches in Arizona and New Mexico between 1885 and 1886.

-??????? Against the Sioux in South Dakota between November 1890 and January 1891.

-??????? Against hostile Indians in any other action in which United States troops were killed or wounded between 1865 and 1891.

The Indian Campaign Medal was issued only once regardless of how many battles or campaigns a soldier was involved in.  However, a silver citation star was attached to the medal for meritorious or heroic conduct.  This was the predecessor to the Silver Star, currently the third highest military award for heroism.  Eleven troopers were awarded the silver citation between 1865 and 1891.  The highest U.S. military award, the Congressional Medal of Honor, however was also awarded during the Indian campaigns.  Like many other military awards, the Indian Wars Medal was not authorized until 1907, the same time that the War Department created the Civil War Campaign Medal.  These metals were awarded retroactively.

The post-Civil War-Indian Wars era provided the United States with its first permanent four-star general, U.S. Grant in 1866.  The Confederate Army, however, created the four-star general for Robert E. Lee but this was considered a brevet rank like many of the generals of the Union including George Armstrong Custer.  When U.S. Grant became president of the United States, the sole four-star general rank was passed on to William T. Sherman and then to Philip H. Sheridan who were leaders during the Indian Wars in the west.  Ironically, William Tecumseh Sheridan was named after the great Indian warrior.  While the Indian Campaign Medal only covers battles and encounters between 1865 and 1891, the U.S. Army documents numerous battles between the Mexican War of 1846-1848 and the U.S. Civil War (1861-1865) including fights in the 1850s with the Apaches and Utes in New Mexico Territory; the Yakima, Walla Walla, and Cayuse in the northwest; Sioux in Nebraska; Cheyenne in Kansas; and Comanche in Oklahoma and Kansas.  During the Civil War, the U.S. Army pursued the Sioux in Minnesota in 1862 during the Great Sioux Uprising and in campaigns in the Upper Missouri River region in 1863-64.  The difference following the Civil War was the division of the western U.S. into combat regions like the U.S. military did a century later during the Viet Nam War.  The major structure for frontier defenses was the division of the western areas into the Department of Dakota; Department of the Platte; Department of the Missouri; Department of Texas; Department of Arizona; Department of California; and the Department of the Columbian.  During the Indian Wars the generals of the Army were Major General Winfield Scott (Indian Removal; Mexican War); Major General George B. McClellan; Major General H.W. Halleck; General Ulysses S. Grant; General William T. Sherman; General Philip H. Sheridan; Lieutenant General John McAllister Schofield in addition to five subordinate major generals and sixteen brigadier generals and numerous colonels and lieutenant colonels.  The U.S. Adjutant General was the administrative officer of the army (Stewart, 2001; McDermott, 1998).

During the U.S. Civil War, Confederate prisoners-of-war (POW) were recruited to fight Indians in the west for the Union forces.  Here, southern POWs were offered the opportunity to join the Union to fight in the western Indian wars with the promise that they would not be fighting fellow confederates.  These galvanized Yankees had to swear allegiance to the Union and would receive a full pardon in exchange for their successful service with the U.S. Army.  Freedmen, liberated former black slaves, were also recruited by the U.S. Army to fight in the Indian wars.  They became known as Buffalo Soldiers, a name given them by the Indians because of their bravery and similarity between the hair and color of black soldiers.  The Buffalo Soldiers, like the Galvanized Yankees, were enlisted men led by white northern officers.  The Buffalo Soldiers fought in the Indian Wars and the Spanish American War, producing twenty-three Medal of Honor recipients for their valor (Brown, 1963/1985; Schubert, 1997).

Indeed, General John (Black Jack) Pershing, leader of U.S. forces during World War I and later named “General of the U.S. Armies” – the highest military rank in the U.S. (a status shared only with George Washington) This rank warrants four gold stars, outranking the silver five-stars created during World War II and ended with the death of Omar Bradley in 1981.  Pershing was one of the officers in charge of Buffalo Soldier units both during the Indian Wars and in the Spanish American War, hence his nick name, Black Jack.  Interestingly, George Armstrong Custer, former brevet major general during the Civil War, was offered the higher rank of full-colonel if he led a Buffalo Soldier unit.   He declined, hence his lower rank of lieutenant colonel.  Pershing led the 1916 U.S. Punitive Expedition into Mexico following General Villa’s attack on a U.S. Army base in Columbus, New Mexico transforming the U.S. Army into a mechanized force (Smythe, 1986).

Indian Police and Policing Indian Counrty: Military versus civilian jurisdictions

The practice of using Indian scouts usually involved employing traditional enemies such as Custer’s use of Crow scouts in his battles with the Sioux and Cheyenne; or the use of same tribe Indians who were lured into service because they were “progressives” who wanted to be on the winning side as illustrated by General Crook’s Apache scouts (Bourke, 1971).  In some instances, Indian scouts also served as Indian police.  At any rate, the Indian scout held more status and was better paid than his Indian police counterpart.  Indian law enforcement, regardless if it was imposed by the Army or civilians relied on the unique judicial and administrative rules that governed Indian Country, a process that evolved rapidly from the earlier Trade and Intercourse Acts.  In the early years the War Department provided the enforcement arm in Indian County, while the Indian agent, later upgraded to the title of Commissioner of Indian Affairs in 1832, determined which issues required adjudication.  The regulation of non-Indians within federally-protected Indian Country was first established by Congress in 1817 with the Federal Enclaves Act, also known as the General Crimes Act.  The purpose of this act was to extend federal law into Indian Country given that the federal government held exclusive jurisdiction in Indian County (French, 2007).

At the same time, Indian tribes were struggling for legal parity during this era of diminished tribal authority and increased control and regulations placed upon them, a process which was clearly one-sided, with whites having a substantial legal advantage over Indian clients.  A landmark case reflecting this dilemma was that of Standing Bear who filed a writ of habeas corpus before the federal courts questioning his forced incarceration in Indian Territory (Oklahoma).  His tribe, the Ponca, was removed from its traditional home in eastern Nebraska so as to make room for the forceful removal of the Santee (Dakota) Sioux following the uprising in Minnesota in the early 1860s, which led to the largest federally-sanctioned execution in the United States with thirty-eight Sioux warriors hanged together on December 26, 1862 (Hassrick, 1967; Heard, 1864; Hyde, 1956; Meyer, 1967; Oehler, 1959: Roddis, 1956). Standing Bear and his followers left the horrid conditions of their new reservation in Oklahoma and headed home to Nebraska, now the home of the interned/removed Santee Sioux (Standing Bear, 1975).  The group was subsequently arrested by General Crook’s forces and it was at this time that Standing Bear presented his habeas corpus writ to the U.S. Circuit Court, District of Nebraska.  In a land mark decision, Judge Elmer S. Dundy, on May 12, 1879, ruled in Standing Bear’s favor essentially granting American Indians the official status of human beings (persons), albeit not U.S. citizens. American Indians no longer had to be referred to as bucks, does, and fawns in official military reports, but rather as men, women, and children (Standing Bear, 1879).

The Federal Enclaves Act was subsequently replaced with the Assimilative Crimes Act of 1825, the Major Crimes Act of 1885, and Public Law 280 in 1953.  The Assimilative Crimes Act stipulated that offenses in Indian Country, while still under federal jurisdiction, would now use state or territorial statutes and sentences as a guide for federal jurisdiction, mainly for offenses committed in Indian Country by non-Indians.  Tribal customs and traditions remained the mainstay for intra-tribal matters.  Thus, the local, state, or territorial laws where the reservation was located would be used by the federal government for those crimes not specified by federal code.  While the intent was for tribal justice to operate within Indian Country for crimes by Indians against Indians, the white Indian Superintendent held virtual absolute authority in dealing with all issues within his authority (Brakel, 1978; Canby, 2004).  Most significantly, he had the resources of the U.S. Army at his disposal as an enforcement agent.  In the constant friction between the U.S. Army and the Department of the Interior, Indian Agents began creating their own reservation police forces.  Thomas Lightfoot, the Indian agent for the Iowa, Sac, and Fox tribes in southeastern Nebraska is credited with the movement to recruit Indians as police in Indian Country outside the Five Civilized Tribes who continued to use their police and court systems once removed to Indian Territory, doing so in 1869.  Three years later, in 1872, the military special Indian commissioner for the Navajos organized a horse cavalry of 130 Navajos to guard the newly drawn up reservation following the Navajo’s return from incarceration at Fort Sumner (the Long Walk, 1863-1868). Meanwhile the Cherokee Nation created the position of High Sheriff in 1875. (French, 1994; Hagan, 1966).

  At about the same time, Indian Agent, John Clum was experimenting with his own Indian police force on the San Carlos (Arizona) Reservation.  Clum did this mainly as an attempt to wrest civilian control from the military in Indian Country given that he subscribed to the cultural genocide policy spelled out in Grant’s Quaker or Peace Policy where church groups were incorporated to teach the heathen Indians the superiority of Christianity.  Although not entirely successful, agents Clum and Lightfoot were successful in establishing a parallel Indian police, albeit poorly paid and trained, in Indian Country.  The Apache police, as did many of their colleagues in other tribes, also served as scouts when operating with the U.S. Army (Kneale, 1950; Hagan, 1966).

Two years following the Cherokee initiative and those of Indian Agents, Clum and Lightfoot, U.S. Indian Commissioner Ezra A. Hayt officially petitioned the U.S. Congress for authorization for more Indian police on reservations.  Based on Commissioner Hayt’s recommendations, the U.S. Congress, in 1879, authorized pay for 430 Indian privates supervised by 50 white officers.  Forth-three men served on the Indian police in Indian Territory (Oklahoma), a vast territory providing each police officer a 712-square-mile jurisdiction.  Moreover, the Indian police had to work with the U.S. Marshals and other police in bringing law to this vast haven for outlaws.  Indian police were greatly restricted by the U.S. Congress.  Indian police actually acted under the direction of the white Indian Agent administering his form of Marshal Law as against enforcing written federal, state, or territorial laws.  Congress deliberately set the pay for Indian police way below that of others working for the government in Indian Country.  They were paid $5 per month and had to provide his own horse, gun, and other equipment needed for the job.  Indian teamsters and Indian scouts were earning three-times that amount and with better benefits.  As late as 1906, Indian police earned only $20 per month.  A further stigma was that Congress would only authorize the use of poorly maintained, used pistols fearing that if they had rifles they could use these in a rebellion (Hagan, 1966; French 2003).. 

Congress also forced them to wear grey uniforms like those of the defeated Confederate soldiers instead of the Union blue worn by soldiers and even Indian scouts. Hagan noted that pistols that wouldn’t fire, starvation wages, and shoddy uniforms plagued Indian police while, at the same time, forcing them to be janitors and handymen to the Indian Agent.  Clearly the Indian police were used to enforce and protect the administration of the white Indian agent in charge of the reservation.  Agent John Clum’s success was that he was able to consolidate the five Apache agencies in Arizona Territory into one large concentration at San Carlos, appeasing both the federal government, making it easier to hunt down “hostile” Apache; and the local white settlers, notably the “Tucson Ring,” which benefitted from having the Apache being restricted to one area.  Altruism or compassion for Apache culture never entered into the equation. Indeed, it was clear that the appointment of Indian police and Indian judges by Indian agents was a clear attempt to abrogate traditional tribal authority and traditions and to replace these with Euro-American ways (Clum, 1936; Hagan, 1966; Luna-Firebaugh, 2007).

As could be expected, some of the Indian police were also outlaws or accused of crimes, as was Sixkiller.  Bob Dalton, of the infamous Dalton gang, served as a U.S. Deputy Marshal and as chief of the Osage police.  He was forced out of these positions when he and his family were exposed as bootleggers.  He then used his talents in robbing banks and trains.  On the other hand, police heroism was exemplified in Sam Sixkiller, son of Redbird Sixkiller, former High Sheriff of the Cherokee Nation and later a captain in the Union Agency Indian police and U.S. Deputy Marshall who was killed in the line of duty in the streets of Muskogee in 1886. Both Dalton and Sixkiller illustrate the turbulent situation in Indian Country where lawlessness prevailed and agent provocateurs agitated Indian unrest setting the stage for another unique chapter in American jurisprudence, that of the court of no appeal (Hagan, 1966; Harrison, 1951).

Indian Territory became a haven for outlaws following the U.S. Civil War gaining the titles, “Robbers Roost”, and “the land of the six-shooter.” In an attempt to bring some justice to the territory a unique form of justice prevailed, one in which the U.S. District Judge performed both the petit court and appellate court functions, hence federal courts of no appeal.  Judge Isaac Parker, the Hanging Judge, best illustrates this phenomenon.  He was appointed to the U.S. Court for the Western District of Arkansas at Fort Smith with jurisdiction over all of Indian Territory (Oklahoma).  Judge Parker became known as the hanging judge and this image eventually led to changes.  In 1883, the U.S. Congress split up his district, assigning the western half of Indian Territory to the U.S. Judicial District of Kansas and the southern region to the Northern District of Texas (Croy, 1952). In 1889, Congress acted to abolish the circuit court powers of the district courts with all capital cases tried before a U.S. court requiring review of an appellate court before judgment could be exercised.  State law replaced territorial jurisprudence when Indian Territory became the state of Oklahoma in 1907. This still gave Judge Parker authority over the Five Civilized Tribes.   He was appointed at age 35 and served in this capacity for 21 years (1875-1896) adjudicating 13,490 cases with 344 capital offenses of which 160 were sentenced to death.  Shirley described Parker’s judicial reign as follows:

The death penalty was prescribed more often and for more flagrant violations of law than anywhere on the American continent.  That Judge Parker’s administration was stern to the extreme is attested by the fact that he sentenced 160 men to die and hanged 79 of them.  His court was the most remarkable tribunal in the annals of jurisprudence, the greatest distinctive criminal court in the world; none ever existed with jurisdiction over so great an area, and it was the only trial court in history from the decisions of which there was, for more than fourteen years, no right of appeal.  …In cases of homicide, his tribunal functioned as a circuit court, and federal statutes made no provision for having his findings reviewed by the Supreme Court of the United States.  To that extent his court was greater than the Supreme Court, for it possessed both original and final jurisdiction.  His decisions were absolute and irrevocable (Shirley, 1968: 139).

The U.S. Marshal represented the federal law enforcement presence in Indian Country since 1804 Congress designated the southern Mississippi Valley the Territory of Orleans and provided it with a U.S. district court along with a U.S. Marshal’s office.  President Thomas Jefferson appointed Francis J. L. D’Orgenay, a creole, as marshal of the territory, making him the first “western” marshal.  Among the duties of the western marshals was the policing the vast territory obtained under the Louisiana Purchase including all the Indian tribes located in this newly acquired Indian Country.  While tribes addressed their own internal disputes, the 1834 Indian Intercourse Act extended the general laws of the United States into Indian Country where Indian/white cases were now brought before the U.S. courts of Missouri and the Territory of Arkansas.  Here, the U.S. Marshal and his deputies, supported with the U.S. Army, had the primary duty of enforcing federal laws as well as acting as officers of the federal court.  Judge Parker relied on the U.S. Marshal and his deputies to police his vast jurisdiction as did other federal judges in Indian Country.  Sixty-five deputy U.S. Marshals died during the 20 year tenure of Judge Parker carrying out his law in Indian Territory.  Of these noted lawmen was Marshal Crawley P. Dake’s deputy, Virgil Earp in Tombstone and who also presided over the Lincoln County War and the pursuit of Billie the Kid, and Marshal Zan L. Tidball, Marshal of Arizona Territory during the Geronimo and San Carolos episodes (Ball, 1978).

 In 1883, the Courts of Indian Offenses were established under the influence of President Chester A. Arthur’s Secretary of the Interior, Henry M. Teller.  Teller approved a code of Indian Offenses designed to prohibit American Indian traditional ceremonial activities throughout Indian Country, notably traditional customs, dances, and plural marriages, that now could be prosecuted by the Courts of Indian Offenses.  These courts also adjudicated minor offenses in Indian Country already defined by the Federal Enclaves and Assimilative Crimes Acts.  The idea behind the Courts of Indian Offenses was to appoint “progressive” Indian judges, those dedicated to the promotion of Euro-American customs as against traditional “heathenish” practices.  One of the most notable and colorful Indian judges was Quanah Parker who was appointed in 1886 to the First Court of Indian Offenses for the Kiowa and Comanche.  He was later dismissed for continuing to practice certain traditional practices (Brakel, 1978; Canby, 2004; French, 2007; Hagan, 1966).

During this time the Crow Dog incident was progressing through the U.S. courts. Preliminary to this case was the strong anti-Indian sentiment in the U.S. fueled by Custer’s Last Stand at the Little Big Horn in 1776.  The Crow Dog case was equally sensational in that it involved the killing of federally sponsored Sioux leader, Spotted Tail, by a former Indian police chief, Crow Dog.  Both were Brule Sioux from the Rosebud Reservation in South Dakota just north of the Nebraska border.  Given that the newly established Courts of Indian Offenses only dealt with minor cultural infractions and was not in effect at the time of the incident, the murder of Spotted Tail was left to be handles by tribal custom and protocol.  Spotted Tail was the head chief of the Brule at the time of the treaties of the 1860s that established the Great Sioux Reservation and was favored by the U.S. government because he kept the Brule Sioux out of the 1876 uprising that led to Custer’s defeat.  Crow Dog was a traditional Sioux and respected warrior and leader of the Big Raven Band.  He was a close associate of Crazy Horse and accompanied him when he surrendered in 1877.  He was also a close associate of Sitting Bull.

Both Spotted Tail and Crow Dog were vying for leadership positions the new Rosebud agency carved out of the once promised Great Sioux Reservation.  The federal government favored Spotted Tail who they saw as a “progressive” Indian to Crow Dog who remained a “traditionalist.”  These ideological differences aside, the actual altercation leading to Spotted Tail’s demise was most likely over a woman, Light-in-the-Lodge.  Accordingly, Spotted Tail was seen as attempting to entice Light-in-the-Lodge away from her disabled elderly husband and Crow Dog took it upon himself to right this wrong.  On August 5, 1881, the forty-seven year old Crow Dog shot fifty-eight year old Spotted Tail as they approached each other on a road near the agency.  Since this was seen as an intra-tribal matter, it was presumed to be exempt from federal or territorial jurisdiction under the existing Federal Enclaves/General Crimes Act regulating Indian Country.  The matter was subsequently resolved in a traditional fashion between the respective clans representing both Spotted Tail and Crow Dog with the Crow Dog’ clan compensating Spotted Tail’s clan with a restitution of $600, eight horses, and a blanket.

While this restored balance to the Brule Sioux, it did not resonate well with the federal Indian agents and the U.S. Army.  Crow Dog was then arrested under the orders of Indian Agent John Cook. . Crow Dog was brought to Fort Niobrara in Nebraska for trial with the blessings of the U.S. Attorney General.  At the federal trial, Crow Dog was portrayed as a bad Indian like his colleagues Crazy Horse and Sitting Bull deserving to be executed for his crime.  Given these sentiments from the prosecution there was little doubt that the all-white male jury would find Crow Dog guilty of capital murder and sentenced by Judge G.C. Moody to be executed by hanging.  In his appeal (remember Indians are now “persons”), the First Judicial District Court of Dakotas upheld his sentence with G.C. Moody again presiding.  The case then went to the U.S. Supreme Court (something that would not have happened in Judge Parker’s jurisdiction).  In its December 17, 1883 decision, Ex parte Crow Dog upheld Crow Dog’s petition and had him released from incarceration.  Essentially the U.S. Supreme Court agreed with Crow Dog’s contention that there were no federal laws relevant to his case and that the District Court did not have jurisdiction in an internal tribal case ( Ex Parte Crow Dog, 1883; French, 2007; Harring, 1994)

The U.S. Congress responded to the Crow Dog decision passing the Major Crimes Act in 1885.  This represented a significant encroachment on tribal authority providing overlapping jurisdiction with the Federal Enclaves Act by applying federal jurisdiction to any offender in Indian Country.  U.S. Marshals could now arrest Indians and non-Indians alike for major offenses in Indian Country, subsequently bringing them before a federal court for adjudication. The original seven major crimes outlined in this law were: murder; manslaughter; rape; assault with intent to kill; arson; burglary; and larceny.  These soon became known as the seven Index Crimes.   The Major Crimes Act was challenged in 1886 in United States v. Kagama but upheld by the U.S. Supreme Court. In March 1893, U.S. attorneys were provided original jurisdiction in representing all federal Indian wards of the United States (Canby, 2004; Major Crimes Act, 1885; Prucha, 1962; 1990; U.S. v. Kagama, 1886). 

This policy clearly established the superior weight of the U.S. and white interest in Indian Country. An obvious problem with the law was that American Indians did not have equal weight before the courts, especially when cases were being adjudicated before a white judge and jury.  Keep in mind that it would be another thirty-nine years before American Indians were granted federal citizenship.  Even then this did not guarantee equal legal status in local jurisdictions, notably those where American Indians did not enjoy state citizenship.  This practice continued until the Eisenhower administration and the imposition of Public Law 280 unilaterally (without tribal consent or input) allocating certain states primary legal authority in Indian Country existing within their boundaries.  Clearly, the imposition of white-dominated law enforcement in Indian Country set the stage for allotment and the end of Indian Territory and other land areas set aside specifically for American Indians through treaties (French, 1994; 2007).

J. Edgar Hoover, the former head of the Federal Bureau of Investigation (FBI) used the Major Crimes Act to expand the authority of the FBI throughout the United States.  The Index Crimes provided the basis for federal data collection presented in the Department of Justice’s annual, Uniform Crime Report: Crimes in the United States with the FBI director (Hoover) taking credit as the author.  Eventually, the seven major crimes were expanded to thirteen offenses with: carnal knowledge of any female, not his wife not yet age 16 (statutory rape); assault with the intent to commit rape; incest; assault with a dangerous weapon; assault resulting in serious bodily injury; and robbery, many of these mere refinements of the original seven Index Crimes.  The Major Crimes Act allowed for the FBI to have jurisdiction in Indian Country beginning with it origin in 1908.  However, J. Edgar Hoover did little to publicize the presence of the FBI in Indian Country until it took on the American Indian Movement (AIM) in 1973 on the Pine Ridge Reservation in what became known as Wounded Knee II (Canby, 1998; French, 2003; 2007).

Allotment involved dividing up tribal lands into individual and family allotments of homestead acres (40 to 160 acres) with the excess or surplus lands opened up to white settlers to homestead.  Moreover, Indian lands, not actively being tilled, were to be managed by the U.S. Department of Interior with monies made from leases (made to white ranchers and mining, petroleum/uranium, or timber corporations) to be held in a government fund known as the Individual Indian Money (IIM) trust.  The General Allotment Act (Dawes Act) was passed on February 8, 1887 over the objections of Henry M. Teller, the 15 th U.S. Secretary of the Interior (1882-1885) and former U.S. Senator from Colorado, otherwise a strong proponent of “civilizing the savages.”  He feared that Allotment was designed to end the communal ownership of Indian lands and treaty obligations with the manifest purpose of opening Indian Country to white settlers and homesteaders.  His prophesy was correct.  Indian owned land under Allotment decreased from 138 million acres in 1887 to 48 million acres in 1934.  The Dawes Act was followed by a number of similar acts leading to the State of Oklahoma and dissolving of Indian Territory – the promised refuge for removed tribes.  In order to better police the evicted Indians, the U.S. Congress, in July 1892, authorized the President to appoint U.S. Army personnel as Indian Agents.  The 1898 Curtis Act effectively destroyed tribal governments while opening tribal lands to outside mineral and timber exploitation.  In May 1906, the Burke Act reduced the length of federal protection for Indian allottees, making their holdings ripe for white exploitation as Henry Teller feared.  In March 1907, the Lacey Act authorized the Individual Indian Money (IIM) trust giving the Department of the Interior the Indian’s right to unilaterally Indian allotments.  Less than a year later, Oklahoma became the 46 th U.S. state.  Following the First World War, where American Indians served honorably, U.S. Congress finally conferred federal citizenship to all American Indians in 1924 (Canby, 1998;; French, 2007; Prucha, 1990).

The Post-Indian War Era

The 1977 American Indian Policy Review Commission, Final Report outlined the devastating results of the General Allotment Act in Indian Country:

The greatest threat to Indian survival resulted from the land policy imposed by the General Allotment Act of 1887, which in the years following its enactment reduced Indian land holdings in total disregard of future Indian needs.  The damage was not confined to a shrinking land base, however; Indian social organization, belief systems, and moral vigor were all related to land, to a universe defined by myth and ritual.

In brief summary: The preceding 100 years had wrought incalculable damage to Indians, their property, and their societies.  Tribes had been moved about like livestock until, in some cases, the original homeland was no more than a legend in the minds of old men and women.  Children had been removed from the family, by force at times, and kept in close custody until they lost their mother tongue and all knowledge of who they were, while parents often did not know where the children had been taken or whether they even lived. Tribal religious practices, when they were not proscribed outright, were treated as obscenities. 

…The failure of the Federal Government as trustee had become so notorious by the 1920’s as to compel public action…which in 1926 led President Coolidge’s Secretary of the Interior, Hubert Work, to request the privately endowed Institute for Government Research (later the Brookings Institution) to investigate the conditions of Indian life.  The investigation resulted in the report of Lewis Meriam and Associates, entitled “The Problem of Indian Administration,” published in 1928 (Abourezk, 1977: 70-71).

Indian Reorganization Act (IRA-Wheeler Howard Act)

The Meriam Report influenced President Franklyn D. Roosevelt (FDR) to take action in order to attempt to preserve what was left of Indian Country.  It was FDR’s selection of John Collier as Indian Commissioner under Interior Secretary, Harold Ickes that forged dramatic changes in Indian policy.  President Roosevelt’s sentiments for American Indians differed markedly from those of his 8 th cousin, Theodore Roosevelt, who saw allotment as a “mighty pulverizing engine to break up the tribal mass.” (Getches, et.al., 1998: 191).  Collier, however, saw that the sole purpose of the allotment policy was to undermine the tribal sovereignty principles established early in the U.S. by Chief Justice Marshall.  The Indian Reorganization Act (IRA) attempted to curb, and reserve, these attempts at tribal annihilation Meriam, 1928).

The Indian Reorganization Act (IRA, or Wheeler-Howard Act) established the rules for tribal government, standards that continue to the present despite another era of attempted tribal annihilation in the 1950s during the Eisenhower administration.  The IRA ended the continued partitioning of Indian Country into individual plots outside the traditional federal trust protection of tribal collectivism. The IRA provided the framework for tribal governance, a process modeled on the U.S. legislative format.  While limited in its jurisdictional scope, tribal government became the norm, if only because it was compulsory for continued federal support.  The IRA spelled out the governmental structure and its respective authority as well as allowances for developing tribal-specific amendments to these standards.  These tribal government standards also specified eligibility for tribal membership (blood degree…).  Under this reorganization, many tribes divided their constituency according to clan, town, or region.  And while the elected head of the tribe was/is commonly called the “tribal chairman”, chief, governor, and president are also used by various tribal organizations (French, 2007).

Ironically, certain elements of the IRA set the stage for the devastating methods introduced during the Eisenhower presidency to again dissolve Indian Country in favor of capitalistic interests.  The vehicle here was the option for tribes to incorporate which would terminate federal supervision.  Another factor for the Termination, Relocation, and Public Law 280 initiatives was the anti-communism fervor of the time with Indian Country representing a historical and traditional form of communism – that of holding lands in common use as against private ownership.

Termination, Public Law 280 & Relocation 

In 1953, newly elected president Dwight D. Eisenhower reappointed Dillon Myer, the former head of the Japanese-American Relocation Centers, to be his BIA (Bureau of Indian Affairs) commissioner.  Myer was noted for his dictatorial methods which were equated with those of General Scott during the forced Removal of the Cherokees in 1838 ( trail o Tears) and with the deadly force Colonel Kit Carson used in forced Removal of the Navajos in 1864 (the Long March).   Hence, the initiative of the new Eisenhower administration and his Republican Congress for the termination of Indian Country began in August 1953 with passage of two complementary Congressional Acts: House Concurrent Resolution 108, which was designed to end federal responsibility among designated tribes, and Public Law 280 (PL-280), which replaced federal civil and criminal jurisdiction over Indian Country with that of the state in which the reservation is located. 

PL-280 affected Indian Country located in 16 states: Alaska (except Metlakatla Indians); California; Minnesota (except Red Lake Reservation); Nebraska (except Omaha Reservation); Oregon (except Warm Springs Reservation); and Wisconsin (mandatory states) and Arizona; Florida; Idaho; Iowa; Montana; Nevada; North Dakota; South Dakota; Utah; and Washington (option states).  The mandatory states held full state jurisdiction on the reservations while optional states had more conditions placed on the state.  While in theory state and tribal authority was supposed to be concurrent, both the Federal Enclaves laws and the Major Crimes were taken from federal authority and wholly supplanted by the states hence giving these states the authority to enforce their regular criminal and civil laws inside Indian Country.  A major problem that led to a double standard of justice was the caveat that these states were not allowed to tax tribal governments for the services they were authorized to provide under the federal turnover.  Later, in 1968, tribes were finally provided the opportunity to opt out of PL-280 while states also had the option to engage the retrocession clause.

Altogether some 190 tribes were affected, involving 1,362,155 acres in Indian Country and 11,466 tribal members resulting in the shrinkage of federal Indian trust lands by 3.2 percent.  Tribal lands were appraised and sold by the U.S. government to non-Indian bidders, often involving collusion, with the proceeds credited to the tribe minus the processing fees determined by the Secretary of the Interior.  All exceptions from state taxes also ended with termination as well as all federal programs discontinued, placing the tribal members at the mercy of the white-dominated political and law enforcement apparatus.  All tribal sovereignty was essentially ended with Termination (French, 2007; Luna-Firebaugh, 2007; Wilkinson & Biggs, 1977).

The companion to Termination was Relocation.   With Indian veterans returning from World War II, the government saw an opportunity to further cull the population of Indian Country by relocating tribal members to magnet cities surrounding the Navajo Nation, notably Denver, Salt Lake City, and Los Angles.  Using the Navajo as the prototype for the larger Relocation effort, Dillon S. Myer initiated these moves in 1951.  The relocation initiative, like termination, was continued under Myer’s successor, Glenn Emmons.  The majority of the first applicants came from the Great Plains tribes, followed by tribes from the southwestern regions.  By 1954 Relocation centers were in place in San Francisco, Oakland, San Jose, St. Louis, Dallas, Cleveland, Oklahoma City, Tulsa, and Chicago with over 6,000 American Indians resettled in these urban settings.  Without adequate housing, training or jobs, the Relocation centers quickly became urban Indian ghettos (French, 1994; 2003; 2007).

The combined policies of Termination and Relocation posed additional challenges to policing American Indians, now extending the long arm of the law to include state police, county sheriffs, and local police agencies, many which fostered strong anti-Indian sentiments.  While the BIA police and FBI held primary jurisdiction in the remaining Indian Country, the status of relocated Indians returning to Indian Country, if only to visit relatives, added another complications regarding who had jurisdiction over these individuals.  One major difference from the 19 th century was the omission of the U.S. Military in the policing of Indian Country up until the turbulent 1960s and 1970s when social unrest and riots flared up throughout the country.  The policies of Termination, Relocation, and Public Law 280, during the 1950s and 1960s served to strip a number of tribes of their criminal justice authority and set the stage for another era of Congressional inaction relevant to both criminal and social justice for American Indians.  Essentially, Public Law 280 represented a last-ditch effort in the twentieth century enforcing cultural genocide in Indian Country (Barker, 1998; Brakel, 1978; Fixico, 1986/1992; French, 2007).. 

The pretense for extending state criminal jurisdiction into Indian Country was lawlessness on the reservations further challenging the limited jurisdiction of tribal police.  This neglect on the part of federal and state governments led to the creation of the self-fulfilling prophecy of American Indians as being lesser humans. The elements of Public Law 280, along with the extension of civil jurisdiction to states without any corresponding rationale or funding, was seen as an attempt for the federal government to abrogate treaty responsibilities to the tribes.  The states involved were not pleased with this unfunded mandate and tended to neglect and harass their Indian charges.   Matters did not improve until the Civil Rights era of the 1960s and the advent of the Indian Self-determination movement in the 1970s.  The American Indian Policy Review Commission explained the dilemma facing both tribal police and courts during the turbulent era from Allotment to Termination/Relocation.

Indian agents, as part of the assimilation process, wished to further erode and undercut the remaining power and authority of the traditional leaders and the system they represented.  Commissioner of Indian Affairs, Price in 1881 referred to the new police and court system as; “…a power entirely independent of the Chief.  It weakens, and will finally destroy, the power of tribes and bands.”  By 1890, there were Indian police in nearly all the agencies and Courts of Indian Offenses in two-thirds of the agencies.  The Indian police and Courts of Indian Offenses were not always successful.  …Neither the Indian police nor the courts were able to eradicate the influence of traditional Indian culture or Indian custom, as some of the assimilationists has hoped.  …In some areas, in fact, non-Indians created the principle problems faced by Indian police and courts.  In western Oklahoma, for example, much of the Indian police effort was directed at removing non-Indian herds from Indian lands.  …Congress addressed the issue finally in 1934 when the Indian Reorganization Act (IRA) was passed providing a system of reestablishing tribal governments.  The Act provided for federally chartered institutions with constitutions and court systems.  …But since the termination era abated during the late 1950’s and especially during the 1970’s, the definite thrust of tribal policy has been toward a greater use of their powers of self-government.  The terminated and nonfederally recognized tribes have sought to develop their existing rights and have attempted to reestablish the full Federal-tribal relationship.  The federally recognized tribes, taken as a whole, have moved forcefully and responsibly in the direction of developing their governmental systems (Abourezk, 1977: 162-163).

Indian backlash; emergence of Pan-Indianism & self-determination

The Self-Determination movement grew out of the civil unrest of the 1960s and early 1970s which also saw radicalism among both urban Indians and traditional reservation Indians.  The early 1960s witnessed a movement against the combined effects of termination and relocation and the emergence of the American Indian Movement (AIM).  This radicalism influenced the November 1969 takeover of the abandoned federal prison, Alcatraz, located on an island in the San Francisco bay.  Here, seventy-eight American Indians made a dramatic predawn raid on Alcatraz Island, focusing worldwide attention on AIM.  At its peak, some 600 Indians representing over fifty tribes occupied the island which lasted 18 months later.  This was a precursor to the occupation of the BIA offices in the Interior Department in Washington, DC in 1972.  Indian radicalism came to a head with the ill-fated ten-week AIM takeover of the 1890 Wounded Knee site on the Pine Ridge Sioux Reservation in 1973.  Later, on June 16, 1975, during a firefight between AIM members and FBI agents in June 1975, two FBI agents were killed.  Leonard Peltier, an AIM leader is currently serving a life sentence at Leavenworth Federal Penitentiary in Kansas for his alleged involvement in the killing of the FBI agents (French, 1994: 72-112).

Not everyone in Indian Country, or its urban ghettos, agreed with the actions taken by AIM at what became known as Wounded Knee II.  A positive outcome was the establishment of the Native American Rights Fund (NARF) which drew on the Indian Civil Rights Act of 1968 to battle Indian injustices within the United States.  The U.S. Congress also took notice of the abuses AIM was fighting against leading to the Indian Self-Determination and Education Assistance Act of 1975 as well as the Indian Crimes Act of 1976.  Essentially, the Indian Civil Rights Act of 1968 extended the U.S. Bill of Rights to Indian Country, allowing tribes to apply for retrocession to the imposed dictates of Public Law 280.  The Indian Self-Determination and Education Assistance Act was passed in January 1975 providing avenues for leaders in Indian Country to contract with federal agencies so that they could receive grants to fun their own programs under the U.S. trust obligations.  This was an effort to end the corruption and general ineptitude of federal agencies mandated to provide quality services to American Indians and Alaskan Natives.  In a similar fashion, the Law Enforcement Improvement Act of 1975 addressed police and correctional abuses in Public Law 280 states.  The Indian Crimes Act of 1976 expanded the Major Crimes Act of 1885 extending the number of federally exclusive crimes from seven to fourteen (Civil Rights Act of 1968).

Even then landmark challenges to tribal law enforcement jurisdiction within Indian Country persisted setting the stage for a number of U.S. Supreme Court challenges.  In 1976, the high court heard Oliphant v. Suquamish Tribe.  In this case, Mark Oliphant, a non-Indian residing on the Port Madison Reservation, was arrested by tribal police and charged with resisting arrest and assaulting a police officer.  The defendant claimed that he was not subject to tribal authority given that he was not an American Indian.  His appeal was upheld by the U.S. Supreme Court in 1978 concluding that Indian tribal authority does not extend to non-Indians.   Twelve years later, in its 1990 Duro case, the High Court extended their Oliphant decision to include not only non-Indians arrested in Indian Country, but to Indians who were not-enrolled members of the tribe where arrested.   Albert Duro, an enrolled member of the Torres-Martinez band of the Cahuilla Mission Indians in California, was convicted under the Major Crimes Act of killing another Indian on the Salt River Pima-Maricopa Indian Reservation in Arizona in 1984.  The High Court reversed the lower court decisions, again citing the Civil Rights Act of 1968.  Tribes were outraged by these High Court decisions that they felt were attempts at weakening tribal sovereignty.  Congress intervened by passing Public Law 102-137 that amended the Civil Rights Act of 1968 reinstating the power of Indian tribes to exercise misdemeanor criminal jurisdiction over all Indians, regardless of tribal enrollment status, within their tribal jurisdiction (Public Law 102-137, 1991).

BIA police training intensified following passage of the 1968 Indian Civil Rights Act.  The first BIA Indian Police Academy (IPA) was established in Roswell, New Mexico in 1969.  The PIA moved to Brigham City, Utah in 1973 and then moved to Marana, Arizona in 1985.  In 1992, the IPA moved to its present location at the Federal Law Enforcement Training Center in Artesia, New Mexico.  The current BIA police training protocol is based on the 1990 Indian Law Enforcement Reform Act (Public Law 101-379).  The BIA Office of Law Enforcement Services (OLES) is situated in the Office of the Commissioner of Indian Affairs and is under the authority of the Deputy Commissioner of Indian Affairs within the U.S. Department of the Interior.  The Director operates under the authority of Public Law 101-379 and is administrated through its various divisions: Criminal Investigation Division; Drug Enforcement Division; Internal Affairs Division; Police and Detention Division; Special Investigation Division; and the Training Division (Indian Police Academy) (Dorgan, 2010; French, 2003; Luna-Firebaugh, 2007; Wakeling, et. al., 2001).


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