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61 Chapter 4 Murder Most Foul Native Americans and the Evolution of the Death Penalty Vanessa Gunther T he issue over how to treat native people in the United States was a problem that vexed Europeans since their first attempts at colonization in the sixteenth century. Early settlers who arrived on the shores of what would become America were simultaneously repelled by and curious about the indigenous people they came into contact with. Despite their fascination, however, the assumption of their own cultural superiority colored all interactions between the two groups. Coming from a tradition where life was harsh and short, and transgressions against social norms were punished with unstinting barbarity , it would hardly seem surprising that the early colonists were not paragons of liberalism. The early settlers reflected a culture that sought to impose control, by any means necessary—a trait that they extended not only to their judicial traditions, but to their settlement patterns and interactions with the native people they encountered as well. The decision to endure an arduous journey across the Atlantic to escape privation or persecution did not imbue the settlers with a great deal of empathy for the people they encountered. On the contrary, in America it seemed the more persecuted an individual was in the Old World, the more likely he was to persecute in the new. The social traditions of the Europeans contrasted sharply with those of the native people of the New World. While each of the more than five hundred estimated native groups in America at the time of contact were uniquely distinct from each other, they also shared many similarities. One of those similarities was a perpetual striving for balance—a balance between members of the tribe, and between the tribe and the world that surrounded it. Since the majority of native people livedinsmall,interdependentgroups,thebenefits to be gained from inter- and intratribal cooperation were obvious. Harmonious relations could make life safer, more profitable, and certainly more pleasant. Tribal bands that averaged fifty to a hundred individuals were interdependent on each other for protection and the continuation of their shared culture. The loss of even one individual could negatively impact the survival of the whole group by denying the tribe not only the protection that individual offered, but the goods he or she made or the knowledge of tribal history and custom that he or she held. To deal with these issues, Native Americans developed legal traditions that show a remarkable similarity across all regions in what would become the United States of America. In dealing with what many 62 Vanessa Gunther would consider the most antisocial of crimes— murder—tribes focused not on punishment of the perpetrator, but on restoration of harmony within the tribal group.1 This does not mean that native people did not value life—quite the oppositewastrue .Murderwastheonecrimethatcould threaten the safety and longevity of the tribal society from within. Dealing with it required the Indians to both exact punishment and maintain social integrity, something the larger European societies at the time seemed unable to comprehend. The early colonists mention this “restorative justice ” in their encounters with many of the native groups they dealt with. One such account, which occurred in 1719, dealt with the Dakota people.2 According to Dakota legal tradition, when a murder occurred the nearest relative(s) of the victim was expected to take revenge. However, this exercise in private justice could have resulted in a perpetual feud among the bands of the Dakota and severely disrupted the harmony within the tribe. To prevent further bloodshed, the elders of the families involved ordered the capture of the murderer and presented him to the victim’s family . It was here the victim’s family was presented with a choice: kill the offender or settle on a blood price, or compensation for the loss of their family member. A blood price was agreed upon and a feud was avoided.3 The Dakota were not alone in their treatment of murderers within their tribal groups. However, there were some variations in how strongly tribes viewed the crime of murder. Among the Cheyenne, murder was considered such a heinous crime that it brought shame not only on the criminal, but on the tribe as a whole. Such antisocial behavior resulted in what many Cheyenne considered fair punishment, expulsion from the tribal group for up to five years.4 To the American mind, such a penalty seems paltry in comparison with the loss of a human...

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