- U.S. Colonization of Indian Justice Systems:A Brief History
Before the arrival of Europeans in the Americas, Indian nations functioned under their respective and inherent principles of sovereignty. They governed, policed, regulated land use, and resolved internal conflict in accordance with their norms, values, and customs that had in many instances existed since time immemorial. They exerted complete and absolute jurisdiction over criminal matters occurring within their lands. With the expansion of the European colonizers into their lands, however, Indians confronted an expansionistic-minded people who typically not only loathed cultural diversity but also sought to force Indians to conform with European laws, customs, and beliefs. These newcomers, proclaiming superior rights, used their power, laws, and courts to erode the sovereignty of Indian nations and to curtail their ability to exert jurisdiction over all peoples on their lands. The European legal discourses stemmed from the Middle Ages when Christian Crusaders sought to limit the self-government and land rights of "pagans" and "heathens" with force based on religious justifications. Despite the ill effects of these colonial impositions, Indian nations have refused to abandon the struggle to maintain control of their lives and destinies.
We will examine internal colonialism and its impacts on Indian nations, particularly in relation to their justice systems. Colonialism is a concept used by Native scholars and others to describe the U.S. government's relationship to Indian nations. Under external colonialism, domination is usually achieved through aggressive military action by a [End Page 9] powerful country against a weaker country. The invading nation seeks to gain control of the land, resources, and lives of the host population. External control accompanied England's domination of Australia, India, and North America. Internal colonialism occurs when one group (or government) subjugates another within the same country. Examples ofinternal control in the United States include the enslavement of Africans and the treatment of Indian nations.
To gain an understanding of Indian justice in contemporary society, it is important to provide an overview of the process by which laws and statutes have eroded the sovereignty of tribal justice systems. We begin with a description of some early cases and move into a review of more recent laws and legislation. We then reflect on the insidious impact that early federal policies and legislation had on Indian nations. Finally, we conclude with a brief discussion on the growing trend for tribal governments to return to a more culturally appropriate justice system.
Indian Systems of Justice
Before 1492, the Americas were a diverse geographic setting where millions of Indians thrived in thousands of independent nations and cultural groups. Indian people controlled their own lives and cultures through inherent powers of government. Their concepts of law, crime, criminal behavior, social controls, restitution, and community differed dramatically from those of Europe.1 However, some commonalities existed between the European and indigenous justice systems, such as the importance of fair and unbiased judges.
Among California's Yurok Indians, "crossers" facilitated help for victims. When an aggrieved Yurok felt he had a legitimate claim, he engaged the services of two non-relatives from a community not his own. Similarly, the accused could employ the services of non-relatives from another community. These men were called "crossers" because they mediated impartially between the victim and the accused. After hearing and considering all the evidence, the crossers rendered a decision for damages according to a well-established scale that was known to all. A crosser usually received a piece of shell currency, called a "moccasin," for his labor.2
The Cheyenne legal system also employed restorative justice. For example, murdering another Cheyenne was considered a stain on both the tribe and the murderer. Banishing the perpetrator for a term of one to five years effectively deterred Cheyenne-on-Cheyenne violence. Only sixteen murders among the Cheyennes were recorded from 1835 to 1879, an extremely low number in comparison with that of the coexisting 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 [End Page 10] for such infractions as indebtedness...