U.S.

Colonization of Indian
Justice Systems
A Brief History
Carol Chiago Lujan and Gordon Adams

B efore the arrival of Europeans in the Americas, Indian nations

functioned under their respective and inherent principles of sovereign-
ty. 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 com-
plete 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
R E V I E W

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
S A

legal discourses stemmed from the Middle Ages when Christian

W I C A Z O

Crusaders sought to limit the self-government and land rights of “pa-

gans” and “heathens” with force based on religious justifications. Despite
the ill effects of these colonial impositions, Indian nations have refused 9
to abandon the struggle to maintain control of their lives and destinies.
FALL 2004

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. gov-
ernment’s relationship to Indian nations. Under external colonialism,
domination is usually achieved through aggressive military action by a
 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
of internal 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 so-
ciety, 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 gov-
ernments 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 ex-
isted 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
R E V I E W

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

“moccasin,” for his labor.2

W I C A Z O

The Cheyenne legal system also employed restorative justice.

For example, murdering another Cheyenne was considered a stain on
10 both the tribe and the murderer. Banishing the perpetrator for a term of
one to five years effectively deterred Cheyenne-on-Cheyenne violence.
FALL 2004

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.
R E V I E W

ENGLISH AND U.S. COLONIALISM

Beginning in the 1600s, Indians along the Atlantic seaboard encoun-

S A

tered European colonists. Trade with them brought Indians new mate-
W I C A Z O

rial goods, but it also contributed to their dependency on them. Driven

by an insatiable desire, these newcomers sought to appropriate land
and resources through treaties, laws, and military force. They justified 11
their actions with fictive claims of intellectual and cultural superiority
FALL 2004

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-
R E V I E W

mitting crimes on Indian land as each government saw fit.5 Describing

each government’s power and limits to power over one another, the
Treaty of Wyandot represents the first written agreement defining mu-
S A

tual rights of criminal jurisdiction in America.

W I C A Z O

The U.S. Constitution, adopted in 1789, references Indians in a

few, but important, ways. The Commerce Clause states that Congress
12 reserves the power to regulate commerce with the various states, for-
eign nations, and Indian tribes. The federal government reserved the
FALL 2004

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
R E V I E W

Cherokees as a domestic, dependent nation in a state of pupilage in a

relationship that resembled that of a guardian to a ward.
The following year Worcester v. Georgia reached the Supreme
S A

Court. This case involved the constitutionality of the arrest, trial, and
W I C A Z O

conviction in state court of several non-Indian missionaries for violat-

ing state law on Cherokee land. Marshall held that the convictions and
Georgia laws violated the Constitution, federal law, and treaties with 13
the Cherokees. Despite this decision, President Andrew Jackson re-
FALL 2004

fused to interfere, allowing Georgia to oppress the Cherokees. Before

the decade ended, federal troops rounded up those Cherokees who
refused to relocate, forcing them to move westward. Many Indian
nations experienced similar “trail of tears” episodes.
Marshall’s holdings in these cases provided a legal rationale for
 the federal government to assume sweeping powers not enumerated in
the Constitution in its initial framing of federal Indian policy. With the
United States pursuing an aggressive policy of territorial expansion to
carry out its “manifest destiny,” the federal government acted in ways
that drastically undercut the viability of Indian cultures, institutions,
and sovereignty. Put another way, the intended destruction of Indian
nations and cultures through coercive assimilation devastated Indian
sovereignty, governmental functions, civil and human rights, and ways
of living. Indian systems of justice were also targets for elimination.
With its assertion that Indians were wards of the federal government,
the Supreme Court demonstrated that it would not interfere with the
operations of Congress, leaving Indians essentially no legal recourse in
their relations with the U.S. government. The federal government had
institutionalized a policy of internal colonialism for Indian nations.

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-
R E V I E W

quences were so pervasive for Indians that it became exceedingly dif-

ficult, if not impossible, for them to recover traditional ways when
federal policy shifted to a more benign policy of internal colonialism
S A

during the next century.

W I C A Z O

Obedient federal agents on reservations carried out a campaign

of ethnocide against Indian life. They oversaw the placement of thou-
14 sands of Indian children in boarding schools located great distances
from their families and cultures. These schools subjected the youth to a
FALL 2004

harsh military and Christian regimen through an educational curricu-

lum that taught them that their religious traditions, languages, and
ways of life were not only backward and uncivilized, but outright evil.
Children were forced to attend Christian services, cut their hair, and
accept white American names. In these harsh settings, corporal punish-
ment was a commonplace response to Indians speaking a Native lan-
guage, refusing to march in formation, or voicing opposition to school
policy. By design, Native children were expected to accept the Euro-
American concepts of law, punishment, and justice.
The ongoing alienation resulting from this “education” is im-
measurable. Mary Crow Dog relates an incident that occurred in the
1960s when her teenage sister was beaten for attempting to run away
from the Catholic Indian boarding school she attended. Crow Dog
recalls, “The dorm was run by the Sisters of the Sacred Heart: She [the
nun] had a leather strap about a foot long and four inches wide fas-
tened to a stick, and beat the girls . . . the nun kept on beating and beat-
ing until her arm got tired.”7 In the history of Indian boarding schools,
beatings like this are hardly isolated events. Robert Chapman, presi-
dent of the Pawnee Nation of Oklahoma, recalled one of the “educa-
tors’ ” most cruel punishments: he was forced to run a “gauntlet” com-
posed of other Indian children at the Pawnee school.8 Clarice Feinman
researched domestic violence among the Navajos and contends that “in
boarding schools, children were reprimanded for behaving as Navajo
and for speaking Navajo. They were often beaten, thereby learning the
Anglo value that violence was an acceptable method of reprimand and
social control.”9
In 1883, the Bureau of Indian Affairs (BIA), the U.S. agency re-
sponsible for implementing federal policy, launched a direct assault on
traditional systems of Indian justice by establishing Courts of Indian
Offenses on most reservations. These courts sought to force Indian
peoples to “abandon traditional ‘heathenish’ practices,”10 to take up a
plow, and to assimilate. Individuals convicted of violations ranging
from participating in customary religious ceremonies to consulting a
medicine man could be jailed and have their rations cut off. This policy
significantly undermined Indian cultures and their traditional justice
systems. By the early 1900s, approximately two-thirds of all reserva-
tions were subject to this legal structure.
R E V I E W

However, many Indians preferred to live under their customary

systems of justice. On the Rosebud Reservation in South Dakota, the
Lakota inhabitants continued to resolve all crime—including murder—
S A

through restorative processes. In 1883, Crow Dog murdered Spotted

W I C A Z O

Tail on their reservation. Respecting Lakota law, the families of Crow

Dog and Spotted Tail met and agreed on the appropriate restitution
for the crime.11 Although Lakotas considered the matter resolved and 15
justice served, local whites thought otherwise. In fact, news of this
FALL 2004

arrangement angered the surrounding non-Indian population and terri-

torial officials. A U.S. marshal subsequently arrested Crow Dog for the
murder and a territorial court tried, convicted, and sentenced Crow
Dog to death under the General Crimes Act, though that statute ex-
plicitly excluded federal jurisdiction over Indian-on-Indian crime in
 Indian Country. Without legal grounds for the trial of Crow Dog, the
Supreme Court granted his petition for habeas corpus review, and he
was released.12 The Crow Dog case signaled a change both in American
sentiment and in federal Indian policy regarding the need to assimilate
Indians into the U.S. system of justice.
In 1885 Congress enacted the Major Crimes Act. This act inter-
fered with the operations of tribal self-government by imposing feder-
al jurisdiction over seven kinds of crime committed on Indian land:
murder, manslaughter, rape, larceny, arson, burglary, and assault with
the intent to kill. Historian Sidney Harring has commented that while
the Major Crimes Act represents a significant departure from existing
practices, it was consistent with the marked trend to move Indian poli-
cy from the earlier treaty-based version (which respected Indian sover-
eignty) toward policies of dependency and systematic assimilation.13
The following year, in Kagama v. United States, the Supreme Court
adopted the concept of plenary power to uphold the constitutionality
of the 1885 law. Plenary power meant that the guardian-ward relation-
ship enabled the federal government to exert virtually unlimited au-
thority over Indian life. For the next fifty years after Kagama, national
Indian policy and federal Indian law held tribes in the status of helpless
“wards” under the legislative control of Congress and the daily bureau-
cratic supervision of the BIA.14
In addition, Congress further eroded Indian justice systems with
the Dawes Severalty Act of 1887, also known as the General Allotment
Act. Although repealed in 1934, this act opened 138 million acres of
reservation land to non-Indian ownership. The influx of large numbers
of white Americans onto Indian land made it increasingly more dif-
ficult for Indians to carry on traditional ways, and, in legal affairs,
Indians treated unfairly by the federal government lacked a fair and im-
partial tribunal where they could petition for justice. In Lone Wolf v.
Hitchcock (1903), the Supreme Court held that Congress had plenary
power over Indians and that it could allot the Kiowa, Comanche, and
R E V I E W

Apache reservations in violation of treaty stipulations. The court held

that because the United States broke treaties with foreign nations, it
could also do so with Indian nations.
S A

The 1903 decision paved the way for Congress to dissolve the
W I C A Z O

governments and justice systems of the Cherokees, Choctaws, Semi-

noles, Creeks, and Chickasaws. In Oklahoma, federal policy enabled
16 the state to assume jurisdiction over Indians. These policies left
many Indians impoverished, in poor health, confused by the assaults
FALL 2004

on their cultures, poorly educated, and landless. Another legacy of the

allotment act is the “checkerboarding” of many reservations, where
Indian and non-Indian lands often lay intermixed within the bound-
aries of reservations. Jurisdictional issues continue to arise from this
pattern.
 I N D I A N R E O R G A N I Z AT I O N
A N D T E R M I N AT I O N

In 1934, Congress ended the allotment policy when it passed the

Indian Reorganization Act (IRA). The nation, devastated by the Great
Depression yet increasingly receptive to diversity, had become some-
what sympathetic to the harmful impacts of the allotment and assimila-
tion policies on Indian life, landholdings, and economic stability. The
intent of this statute was to support Indian culture and sovereignty.
Among other things, it enabled Indian governments to adopt constitu-
tions and bylaws and to run their own court systems under their inher-
ent powers of self-government. On most reservations, new courts
replaced the Courts of Indian Offenses. Under this new system, the
judges’ accountability shifted from the BIA to the reservation govern-
ment, meaning that the courts functioned more to meet the needs of
the reservation than to fulfill the expectations of federal policy. More
closely resembling state courts in appearance and purpose than tradi-
tional Indian systems of justice, these courts have grown over the years
to handle criminal and civil matters.
In the mid-1940s, as public opinion moved away from diversity
to conformity, Congress decided to resolve the “Indian problem”
through a policy called “Termination.” Enacted in 1953, termination,
or P.L. 280, was by far the most significant intrusion of state criminal
law into Indian Country. This statute enabled five states—California,
Minnesota, Nebraska, Oregon, and Wisconsin—to unilaterally assume
criminal and some civil jurisdiction over cases arising in Indian Country
involving Indians.15 Other states subsequently extended their laws or
components of their jurisdiction over Indian lands. Termination ended
the federal government’s trust and guardian-ward relationship with
over 109 Indian nations and bands, abolishing the functions of tribal
governments and courts and leaving Indians under the jurisdiction of
the various states. Relocation incentives were offered to tribesmen, and
R E V I E W

cities were soon inundated with unemployable, dislocated Indians.

The 1968 amendments to the Indian Civil Rights Act added trib-
al consent as a prerequisite to assumption of state jurisdiction and pro-
S A

vided for retrocession of jurisdiction undertaken by either mandatory

W I C A Z O

or discretionary states.16 Because of the increased costs of assuming

criminal jurisdiction over Indian lands and the demands of highly vocal
Indian nations and organizations to govern themselves, several states 17
retroceded all or part of the criminal jurisdiction they had assumed
FALL 2004

under P.L. 280.

Although P.L. 280 is a limited grant of federal jurisdiction to
states, the effect of the statute has been to significantly diminish the
ability of many Indian nations to engage in meaningful self-government.
This statute states that American Indian nations retain the ability to
 engage in self-government over all matters within their inherent sover-
eign jurisdiction. However, sovereignty is difficult to maintain when
states exercise authority over the tribal land base. Moreover, policing
Indian land was not a priority for many state police departments,
meaning reservation residents could not rely on police to address crimi-
nal activities. As we shall see, Indians still cannot rely on state or feder-
al police.

S E L F - D E T E R M I N AT I O N

As the harm of termination became evident, the country embarked on a

new policy dubbed self-determination. Under this policy shift, tribal
governmental entities could apply for federal grants that would enable
them to provide jobs for their people and to establish courts, police
forces, and stronger governments. Despite its name, self-determination
actually continued to erode tribal sovereignty and the power of Indian
justice systems, and Congress did so further by enacting the Indian
Civil Rights Act of 1968 (ICRA).17 As separate sovereigns that pre-
existed the formation of the United States, Indian courts were not bound
by U.S. constitutional provisions, such as the Bill of Rights, which is of
course intended to limit the power of the federal government or the
states to abridge individual rights.18 Ostensibly, the federal govern-
ment enacted the ICRA to assure the civil rights of Indian people.
Although the ICRA is not coterminous with the Bill of Rights, it does
provide limitations on the power of Indian governments to interfere
with certain fundamental individual rights, such as free speech, free ex-
ercise of religion, equal protection, and due process.19 Most individuals
must use the Indian courts to adjudicate claims that their rights under
the ICRA have been abridged.20 However, the ICRA specifically pro-
vides a remedy in federal court for claimants seeking a writ of habeas
corpus to protest an allegedly illegal detention by an Indian nation.21
The negative effect here is that some view the habeas corpus
R E V I E W

remedy as yet another element of colonialism designed to destroy the

integrity of tribal court systems. Prior to enactment of the ICRA,
S A

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

sions as meaningless because their rulings can be appealed to and

18 overturned by a non-Indian court. The ICRA also undercut tribal sov-
ereignty by limiting the criminal penalty an Indian court may impose
FALL 2004

on a defendant. Initially the maximum was $1,000 and/or six months

in jail, and in the 1980s it was increased to $5,000 and/or one year
in jail.22 Other barriers to the development of the tribal justice sys-
tem exist in Indian Country. One widespread fear among many non-
Indians is that tribal judges are biased against them, and this un-
founded attitude has led to unprecedented court decisions in the area
of tribal criminal jurisdiction.23
Two Supreme Court decisions—Oliphant and Duro—emphasize
the vulnerability of tribal criminal justice systems under the federal
trust relationship. Nothing is more fundamental to a culture’s govern-
mental integrity than its right to protect itself from outside intrusion.
However, in 1978 the Supreme Court took a major step toward dis-
empowering Indian nations in Oliphant v. Suquamish Indian Tribe. Tribal
police arrested Mark Oliphant, a young white man, for drinking and
assaulting a tribal police officer. Oliphant, however, petitioned the
Rehnquist Court to consider his challenge to the tribal court’s mis-
demeanor jurisdiction over a non-Indian. Despite the constraints of
the ICRA, the Supreme Court’s majority declared it inconsistent for
Indians to exert criminal jurisdection over non-Indians on tribal land.
Oliphant went free. Oliphant strikes directly at the heart of a tribe’s
ability to protect itself by institutionalizing discourses that deny tribal
police the protections and authority that every other community in
America bestows on their police.
In 1990, the Supreme Court extended the Oliphant doctrine to
nonmember Indians in Duro v. Reina. In that case, Albert Duro, a Cahuilla
Indian, shot and killed a Gila River Pima on the Salt River Pima-
Maricopa Indian Community (SRPMIC) in Arizona. When federal of-
ficials refused to prosecute the case, tribal prosecutors, limited by
the ICRA, charged Duro with the illegal discharge of a firearm. When
his case went to the Supreme Court on appeal, Duro argued that the
SRPMIC lacked jurisdiction over him because he was not a member of
the tribe. The Supreme Court agreed with Duro, and he was released.
Outraged by this adverse decision, Indian leaders from across the na-
tion appealed the decision to Congress, stating that chaos would erupt
in Indian Country if the decision were allowed to stand. Fortunately,
Congress overturned this holding in an amendment to the Indian Civil
Rights Act that defined Indian nation powers of “self-government” to
R E V I E W

include the “inherent powers of Indian Tribes . . . to exercise criminal

jurisdiction over all Indians.”24
Two other cases decided by the U.S. Supreme Court in 2001
S A

proved detrimental to tribal court powers—Nevada v. Hicks and Atkinson

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
FALL 2004

Nation could not impose hotel occupancy taxes on nonmember guests

in hotel rooms that were located on non-Indian fee land within the ex-
terior boundaries of the tribe’s reservation. Where Oliphant and Duro
stripped criminal jurisdiction from tribal courts, Atkinson and Hicks re-
stricted civil jurisdiction.
 I M PA C T S O F I N T E R N A L C O L O N I A L I S M

The disruptions of indigenous societies by the forces of internal colo-

nialism continue to impact Indian nations as evidenced by various social
problems that Indians must confront including racism, unemployment,
alcohol-related problems and crime. In February 1999, the Bureau of
Justice Statistics (BJS) released its first compilation and analysis of data
on the effects and consequences of violent crime among Indians and
announced its “findings reveal a disturbing picture of Indian involve-
ment in crime as both victims and offenders.”25
American Indians are victims of violent crimes at a per capita rate
more than twice that of the U.S. resident population. Fifty-two per-
cent of violent crimes against Indians occurred among the twelve- to
twenty-four-years age group. Indian women were victims of violence
at a rate 50 percent higher than black males. Ninety percent of Indian
victims of sexual assault and rape and 70 percent of Indian victims of
violence in general described their attackers as non-Indian.26 However,
BIA and tribal police records indicate most violent crimes on the reser-
vation are committed by Indians against Indians.
Racial stereotyping by law enforcement and judges contributes
to Indians being arrested more often, sentenced to longer prison sen-
tences, and receiving probation sentences at a lower rate than some
other racial groups. The reasons for this vary. Judges apparently inter-
pret the reluctance of Indian defendants to speak as a lack of remorse
or a sign of guilt. Additionally, Indians are often unfamiliar with the
justice system and their rights. Consequently, many of them plead
guilty, even if they are not, without the benefit of counsel.

SURVIVING COLONIALISM
AND EMPOWERING THE FUTURE

After European contact some Indian nations opted to alter their legal
R E V I E W

structures and functions to conform to the expectations placed on

them by U.S. society. During the early 1800s, the Cherokee Nation
modified its justice system by integrating traditional values with Euro-
S A

American judicial procedures. However, no amount of acculturation

could stop their removal from Georgia to Oklahoma in the late 1830s.
W I C A Z O

In other cases, Native nations have refused to adopt Euro-American

20 structures and have sought to retain or revive traditional judicial sys-
tems. Pueblos of New Mexico, for instance, use traditional courts to
FALL 2004

enforce customary and often unwritten normative codes of justice.

Despite the numerous laws and policies developed to force Indian
nations and peoples to assimilate into mainstream America and to limit
their sovereign status, Indians are vigorously challenging the colonial
impositions and structures that have affected their lives so profoundly.
They are attempting to define their place within American society, to
shape their own future, and to determine how they intend to coexist
with the non-Indian population. Their perseverance is evident in how
tribal courts are being redesigned to include indigenous methods of jus-
tice. Within the last twenty years, many Indian courts are incorporating
traditional forms of justice into a contemporary scheme.
Some tribes adopted their own terminology in naming their new
court system. Early names were Wellness Court, Healing Court, Treat-
ment Court, Alternative Court, and Tribal Wellness Court. To incorpo-
rate two important Indian concepts—healing and wellness—the name
of Healing to Wellness Courts finally stuck on some reservations.
Other tribal courts, however, drew from the language of their people.
For example, the Diné applied the term Hozhooji Naat’aanii, meaning
“talking things out in a good way,”27 or Peacemaker Courts. Sentencing
circles are another approach to justice that is being revived in America
and Canada. Sentencing circles involve a wide array of interested par-
ties, including those closest to the victim and offender and others like-
ly to affect their future.
For nearly two hundred years, the U.S. government attempted
to destroy Indian cultures and their justice systems. Ironically, indige-
nous methods of resolving conflict are now of keen interest to Euro-
Americans who want to update their courts by integrating the concept
of restorative justice into their own legal system.

CONCLUSION

Beginning in the late 1400s, colonizing Europeans set out to take

Indian land and resources. Now called genocide by Indians and oth-
ers in the world community, acts of violence, coercive assimila-
tion, and forced removals from ancestral homelands perpetrated by
the colonizers attempted to debilitate the dignity and self-respect of
Indian peoples. These acts have had far-reaching ramifications. Evi-
R E V I E W

dence and symptoms of the continuing effects of internal colonialism

can be observed in various social problems that modern Indian na-
tions must confront. However, despite the catastrophic impacts of
S A

colonialism, Indian nations have not only survived but are thriving.
W I C A Z O

Their cultures continue to provide strength and guidance in virtually

all aspects of Native life including education, government, communi-
ty, and justice. 21
The policies of the U.S. colonizer have shifted from government-
FALL 2004

to-government relations, to ethnocide, to reorganization, to termina-

tion, and finally to self-determination. Indian nations and their people
have not only withstood the devastating impact of colonialism, but as a
whole they are one of the youngest and fastest-growing populations in
the country. These facts mean that Indians have maintained the will to
 exist (and flourish) as separate, distinct, and sovereign peoples. Addi-
tionally, a number of tribal governments are experiencing significant
gains in economic development and cultural revival. There has been a
simultaneous growth of interest in the revitalization of culturally ap-
propriate systems of justice that focus on restoring harmony to the
community rather than emphasizing punishment. Yet, the shadow of
the discovery doctrine looms largely over federal Indian law in such
concepts as plenary power, diminished sovereignty of Indian govern-
ments, and the guardian-ward relationship. Let us hope that history
does not repeat itself and that the federal government never again em-
ploys any of these principles as a justification to eradicate the existence
of Indian governments.

N O T E S

1 Robert N. Clinton, “Criminal Juris- 10 Clinton, “Criminal Jurisdiction

diction over Indian Lands: A Jour-
ney through a Jurisdictional Maze,”
Arizona Law Review 18 (1976): 553.
2 E. Adamson Hoebel, The Law of
Primitive Man: A Study in Comparative
Legal Dynamics (Cambridge, MA:
Harvard University Press, 1954),
140.
over Indian Lands,” 553.
11 The families of both men met and
arranged for payment to the vic-
tim’s family of $600 in cash, eight
horses, and one blanket.
12 Ex parte Crow Dog, 109 U.S. 556
(1883).

3 Ibid., 152. 13 Sidney L. Harring, “Crow Dog’s

4 Robert Yazzie, “The Navajo Re-
sponse to Crime,” paper presented
at “Concepts of Restorative and
Reparative Justice,” the American
Judicature Society Symposium,
November 2–3, 1997, Arizona
State University, Tempe.
5 Vine Deloria Jr. and Clifford M.
Lytle, American Indians, American
Justice (Austin: University of Texas
R E V I E W
Case: A Chapter in the Legal
History of Tribal Sovereignty,”
American Indian Law Review 14
(1989): 230.
14 David H. Getches, Charles F.
Wilkinson, and Robert A.
Williams Jr., Federal Indian Law:
Cases and Materials, 3rd ed. (St.
Paul, MN: West Publishing,
1993), 187.

Press, 1983), 164. 15 Carole Goldberg-Ambrose, Plant-

ing Tailfeathers: Tribal Survival and
6 Act of March 3, 1817, ch. 92, 3 Public Law 280 (Los Angeles: UCLA
Stat. 383. American Indian Studies Center,
S A

1997), 1.
W I C A Z O

7 Mary Crow Dog and Richard

Erdoes, Lakota Woman (New York: 16 Ibid., 2.
Grove Weidenfeld, 1990).
22 17 25 U.S. Code 1301–3 (1968).
8 Robert Chapman, personal inter-
FALL 2004

view with Gordon Adams, Septem-
ber 18, 2002, Phoenix, Arizona.
9 Clarice Feinman, “Women Batter-
ing on the Navajo Reservation,”
International Review of Victimology 2
(Summer 1992): 137–46.
18 Talton v. Mayes, 163 U.S. 376 (1896)
held that the Fifth Amendment
does not limit the Cherokee Na-
tion’s powers of self-government.
19 25 U.S. Code 1302 (1968).
 N O T E S

20 Santa Clara Pueblo v. Martinez, 436 24 25 U.S. Code 1301(2) (1968).

U.S. 49 (1978) held that there is
no implied cause of action in fed-
eral court to enforce provisions of
the ICRA.
21 25 U.S. Code 1303 (1968).
25 American Indians and Crime, Bureau
of Justice Statistics, U.S. Depart-
ment of Justice, Office of Justice
Programs (Washington, DC,
1999), iii.

22 25 U.S. Code 1302(7) (as amended 26 Yazzie, “Navajo Response to

in 1986). Crime.”

23 Getches, Wilkinson, and Williams, 27 Ibid.

Federal Indian Law, 522.

R E V I E W
S A
W I C A Z O

23
FALL 2004