De facto law enforcement, known as vigilantism, is generally directed toward outside groups and arises when traditional policing is either deemed inadequate or undesirable, such as the Union army occupation of the former Confederacy. While the Ku Klux Klan is a prime example of this form of extralegal social control, the Eisenhower Report notes its long existence in American society, extending to the colonial era:
Vigilantism arose as a response to a typical American problem: the absence of effective law and order in a frontier region. It was a problem that occurred again and again, beyond the Appalachian Mountains. It stimulated the formation of hundreds of frontier vigilante movements. On the frontier the normal foundations of a stable, orderly society—churches, schools, cohesive community life—were either absent or present only in rough, immature forms. The regular, legal system of law enforcement often proved to be woefully inadequate for the needs of the settlers.
Fundamentally, the pioneers took the law into their own hands for the purpose of establishing order and stability in newly settled areas. In the older settled areas the prime values of person and property were dominant and secure, but the move to the frontier meant that it was necessary to start all over. Upright and ambitious frontiersmen wished to reestablish the values of a property holder’s society. The hurtful presence of outlaws and marginal types in a context of weak and ineffectual law enforcement created the spectre and, often, the fact of social chaos. The solution hit upon was vigilantism. A vigilante roundup of ne’er-do-wells and outlaws followed by the flogging, expulsion, or killing of them not only solved the problem of disorder but had crucial symbolic value as well. Vigilante action was a clear warning to disorderly inhabitants that the newness of settlement would provide no opportunity for eroding the established values of civilization. Vigilantism was a violent sanctification of the deeply cherished values of life and property.
Because the main thrust of vigilantism was to reestablish in each newly settled area the conservative values of life, property, and law and order, vigilante movements were usually led by the frontier elite. This was true of the greatest American vigilante movement—the San Francisco Vigilante Committee of 1856—which was dominated lock, stock, and barrel by the leading merchants of the city. Again and again it was the most eminent local community leaders who headed vigilante movements.
“Vigilance Committee” or “Committee of Vigilance” was the common name of the organization, but originally—and far into the nineteenth century—vigilantes were known by the now obsolete term of “regulators.” Variant names for vigilante groups were “slickers,” “stranglers,” “committees of safety,” and, in central Texas, simply, “mobs.” The duration of vigilante movements varied greatly, but movements which lasted as long as a year were long lived. More commonly they finished their business in a period of months or weeks. Vigilante movements (as distinguished from ephemeral lynch mobs) are thus identifiable by the two main characteristics of 1) regular (though illegal) organization and 2) existence for a definite (though possibly short) period of time.1
Brown went on to point out problems with frontier law enforcement and justice. Poor resources for hiring law enforcement officers at the local and country level, coupled with poor transportation and holding facilities, contributed to the sense of inadequate justice. Political corruption also played a critical role in the lack of faith in the judicial system, especially when a member of the “out-group” was on trial or a member of the “in-group” was accused of an offense against an “out-group” member. Post–Civil War neo-vigilantism went on to target “out-group” members, including Catholics, Jews, Blacks, immigrants, laboring men and labor leaders, political radicals, advocates of civil liberties, and nonconformists in general. Similar to vigilante groups was the emergence of para-police, like the Pinkerton National Detective Agency, who felt themselves above the law, using techniques now patently illegal such as the “third degree” and summary executions. Indeed, they set the stage for what is commonly known as “police brutality.”2
Sectarian, ethnic, and class objects of judicial prejudices aside, the major targets of severe, often violent, discrimination and extrajudicial abuses during the nineteenth century were racial minorities—blacks, American Indians, Asians, and Mexicans, noticeably Mestizos. While Asian discrimination was mainly focused on Chinese coolies being brought here to engage in dangerous work in the West like the construction of railroads or to work in mines, and Mexican discrimination was focused on territories gained from Mexico in the 1840s and 1850s, discrimination and intimidation of both blacks (slaves and freedmen) and American Indians were more pervasive during the era following the U.S. Civil War. Indeed, the Jim Crow South, with its history of extralegal abuses stemming from the Ku Klux Klan and lynchings, was legitimized by the U.S. Supreme Court in 1896 in the Plessy v. Ferguson decision, upholding the so-called separate but equal Jim Crow laws and obviating the Fourteenth Amendment’s equal protection clause for blacks.3
Terror was endemic within the former Confederacy, with lynching being the major tool of engendering fear among freed blacks—an extralegal social experiment that lasted a hundred years until the Civil Rights Acts of the 1960s. Again, the Eisenhower Report created following the civil unrest of the 1960s on violence in America provides a curt historical review of lynching in the United States:
Lynch law has been defined as “the practice or custom by which persons are punished for real or alleged crimes without due process of law.” The first organized movement of lynch law in America occurred in the South Carolina back country, 1767–69. It appeared again in the Virginia Piedmont during the latter years of the Revolutionary War near the present city of Lynchburg. The Virginia movement was initiated by Colonel Charles Lynch and was employed against Tory miscreants. Well into the 19th century lynch law meant merely the infliction of corporal punishment—usually 39 or more lashes well laid on with hickory withes, whips, or any readily available frontier instrument. By the middle of the 19th century, lynch law had, however, come to be synonymous, mainly, with hanging or killing by illegal group action. . . . By term “lynch-mob” is meant an unorganized, spontaneous, ephemeral mob which comes together briefly to do its fatal work and then breaks up. The more regular vigilante (or “regulator”) movements engaged in a systematic usurpation of the functions of law and order.
Lynch-mob violence (in contrast to vigilante violence) was often resorted to in trans-Appalachian frontier areas before the Civil War, but it became even more common after the Civil War. In the postwar period (down to World War I) lynch-mob violence was employed frequently in all sections of the country and against whites as well as blacks, but in this period it became preeminently the fate of Southern Negroes. From 1882 to 1903 the staggering total of 1,985 Negroes were killed by Southern lynch mobs. Supposedly the lynch-mob hanging (or, too often, the ghastly penalty of burning alive) was saved for the Negro murderer or rapists, but the statistics show that Negroes were frequently lynched for lesser crimes or in cases where there was no offense at all or the mere suspicion of one. Lynch-mob violence became an integral part of the post-Reconstruction system of white supremacy.4
Ralph Ginzburg, in 1962, documented accounts of lynchings in the South from 1859 to 1961. He documents those mutilated, tortured, hanged, and burned alive. His documentation includes a public statement of a Harvard College professor advocating for the legalization of lynching (Albert B. Hart, December 30, 1900), and the 1919 lynching of the mayor of Omaha, Nebraska, when he tried to intervene with a lynch-mob hanging of a black prisoner. Ginzburg includes a February 29, 1904, letter to the New York Tribune from Booker T. Washington and his concerns over the extralegal lynching of blacks:
These burnings without trial are in the deepest sense unjust to my race. But it is not this injustice alone which stirs my heart. These barbarous scenes are more disgraceful and degrading to the people who inflict the punishment than to those who receive it. If the law is disregarded when a negro is concerned, it will soon be disregarded when a white man is concerned, and, besides, the rule of the mob destroys the friendly relations which should exist between races, and injures and interferes with the material prosperity of the communities concerned.
Worst of all, these outrages take place in communities where there are Christian churches; in the midst of people who have their Sunday schools, their Christian Endeavor societies and Young Men’s Christian Associations; where collections are taken up for sending missionaries to Africa and China and the rest of the so-called heathen world. Is it not possible for pulpit and press to speak out against these burnings in a manner that shall arouse a public sentiment that will compel the mob to cease insulting our courts, our Governors and our legal authority; to cease bringing shame and ridicule upon our Christian civilization.5
Following the Civil War, more severe punishments emerged, most directed toward freedmen and other racial minorities, especially in the former Confederate states. A unique institution in the Jim Crow South was the chain gang. Prior to the Civil War, there were no state prisons, and all punishment was dispensed at the county or local level. Jails were used only as temporary holding facilities. Following the Civil War, the chain gang was developed. Here, prisoners were placed in enclosed, barred wagons, which could be transported from job to job. Shackles and chains, as well as the ship and sweatbox, were the normal and legal method of control. These controls were enforced by county officials, who originally regulated the chain gang system, and most of the convicts were convicted of misdemeanor offenses. Felons, on the other hand, were sentenced to the newly created state prisons. Barnes and Teeters referred to the Southern chain gang as “the American Siberia,” stating that they were not only discriminatory but manifested some of the cruelest punishment and inhumane treatment ever recorded in American penal history. Transients were arrested for loitering and sentenced to the chain gang merely to supply the county with cheap labor. The guards were white while blacks made up the vast majority of offenders who were sentenced to the chain gangs.6
Jesse Steiner and Roy Brown, on the faculty at the University of North Carolina, wrote one of the earlier studies on the Southern chain gang, in 1927:
One of the most common types of movable prisons still in use in many of the counties is the wooden or steel structure mounted on wheels which is popularly spoken of as the cage because of its resemblance to the cages in which wild animals are sometimes confined. In size, these so-called cages are usually 18 feet in length and 7 to 8 feet in height and width, designed to provide sleeping quarters for eighteen men. When constructed of steel, the roof, floor, front and rear ends of the cage consist of solid steel of sufficient thickness to provide security, while the two sides are enclosed by a close network of flat steel bars, thus providing plenty of ventilation. In bad weather, the sides of the cage are covered with a tarpaulin which gives protection against rain and cold, but interferes with ventilation and leaves the interior in darkness. The cage is entered through a solid steel door in the rear made secure by a padlock on the outside. The interior of the cage is fitted up with three three-decker bunks on either side of a narrow passage way about two feet wide. A small stove is crowded usually in the front end or middle of the cage and a kerosene lantern is swung from the ceiling. Each bunk is provided with blankets and a cheap mattress ordinarily not covered with a sheet. A night bucket and a pail of drinking water complete the equipment. When the cage is filled to capacity, there is no place for the men except in their bunks which are too low for a sitting posture. Since the men are locked in these cages not only at night, but on Saturday afternoons, Sundays, and on days when bad weather makes work impossible, it is obvious that such cramped quarters are particularly objectionable.7
Steiner and Brown addressed the use of corporal punishment for minor infractions for chain gang inmates. The nineteen infractions included the use of profane or vulgar language, smoking during working hours, wasting food, or trading between convicts. The punishment for the first violation was solitary confinement in a dark cell for forty-eight hours, while a second infraction warranted flogging. It was noted that whippings were often severe, some resulting in death. The prisoners were chained to ankle shackles, some with spikes attached. Guards were allowed to shoot to kill any convict they suspected of attempting to escape. Steiner and Brown noted that this essentially was giving the death sentence for an individual convicted merely of a misdemeanor.8
Policing Indian Tribes: U.S. Army, Buffalo Soldiers, Indian Scouts, and U.S. Marshals
During the U.S. Civil War and immediately following, America was caught in an internal battle between military and civilian authorities over who would manage Indian Country. Racist leaders prevailed in both camps, with generals like Sheridan, Sherman, Crook, and (brevet) Custer eager to hunt down Indians deemed “renegades.” They often competed with 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 virtual 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. Militias often acted with considerable license in their pursuit of Indian groups, including nonhostiles. A glaring example is the Sand Creek Massacre of November 29, 1864. Looking for Indians to punish for an alleged attack on a white family near Denver, the territorial governor, John Evans, incited local whites to kill and destroy hostile Indians. John Chivington, a preacher and militia colonel in the Union army who viewed killing Indians as a God-given mandate, heeded Governor Evans’s call to punish local Indians. The Indians at Sand Creek were on designated reservation lands and adorned their teepees with white flags denoting their peaceful intentions. Nevertheless, hundreds of cavalrymen under Chivington attacked without provocation, killing at least two hundred Indians, mostly women, children, and the elderly. Tony Horwitz noted that what distinguished this massacre from many like it was that the atrocity was reported by U.S. Army personnel who witnessed the wanton murder of these peaceful Indians, challenging Chivington’s claim that he and his troops engaged some 1,000 fully armed warriors. Chivington and his men also had the scalps they took displayed in Denver where their attack was lauded as another great military success in the Indian wars. Chivington was allowed to resign from the army in lieu of a court martial.9
Neither the U.S. Army nor the Indian agents appeared interested in preserving the traditional cultures of the tribes they oversaw. By all appearances, 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 the removal of the Five Civilized Tribes in the 1830s, a process that continued until the twentieth century and with new ramifications in the 1950s under termination and relocation. The use of Indian scouts by the U.S. Army and Indian police by civilian agents emerged during the second half of the nineteenth century, during the second phase of the U.S. Indian Wars—1855–1890.
U.S. Army and the Indian Wars of 1862–1898
As previously noted, Indian wars began during the colonial era and continued off and on up to the U.S. Civil War. Nonetheless, the United States longest official war were the Indian Wars that began during the Civil War and lasted until the 1890s. Interestingly, President U. S. Grant (1869–1877) played a major role in fueling the ongoing Indian conflicts that preceded his administration. Like the first president, Grant followed Washington’s “Trickery by Treaty” policy of deceit while publicly promoting his so-called Peace Policy and, at the same time, clandestinely promoting war with the Western tribes, a program he delegated to his favorite Civil War generals, William T. Sherman and Philip H. Sheridan. The Indian Bureau, under the Interior Department, was complicit in this diabolic plan, writing bogus complaints against the Lakotas so as to justify labeling “non-treaty Sioux”—those who chose to maintain their traditional ways with the Great Sioux Reservation—as “hostiles,” hence opening the Black Hills to white gold prospectors and settlers. According to Peter Cozzens:
He [Grant] had no legal reason for seizing the Black Hills, so he invented one, convening a secret White House cabal to plan a war against the Lakotas. Four documents, held at the Library of Congress and the United States Military Academy Library, leave no doubt: The Grant administration launched an illegal war and then lied to Congress and the American people about it. . . . During four decades of intermittent warfare on the Plains, this was the only instance in which the government deliberately provoked a conflict of this magnitude and it ultimately led to the Army’s shocking defeat at the Little Bighorn in 1876—and to litigation that remains unsettled to this day.10
Here, the 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 U.S. troops were killed or wounded between 1865 and 1891. The eligible campaigns during the Indian wars include the following:
The Indian Campaign Medal was issued only once regardless of how many battles or campaigns a soldier was involved in, much like the current National Defense Medal. 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, 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 medals were awarded retroactively.
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 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 army pursued the Sioux in Minnesota in 1862 during the Great Sioux Uprising and in campaigns in the Upper Missouri River region in 1863–1864. The difference following the Civil War was the division of the western United States into combat regions like the U.S. military did a century later in Vietnam (1959–1975). 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, and 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. The punitive expedition against the Navajo in 1863, known as the Long Walk, and the Black Hills Gold Rush of the 1870s are a few of the significant events fueling the United States’ longest war—the Indian Wars of 1813 to 1898, with eruptions in 1973 with Wounded Knee II. The last official military campaign of the Indian Wars occurred at the Leech Lake Reservation in northern Minnesota in October 1898.
Campaign medals were issued for the U.S. soldiers involved in the numerous Indian Wars. Indeed, those soldiers who operated the machine guns (Hotchkiss gun—a version of the hand-crank Gatling gun) that killed some three hundred unarmed Indian men, women, and children at Wounded Knee in December 1890 received the Congressional Medal of Honor—the nation’s highest military honor. U.S. Army Private Oscar Burkard was the last to receive the Medal of Honor during the Indian Wars, doing so at the Leech Lake Reservation battle in 1898. It was not until 2010 that the U.S. government decided to change the markers at “Commutative Sites” that mark U.S.-Indian engagements involving unarmed Indians from a “battle” status to that of a “massacre” site. Included here is the November 1864 Sand Creek Massacre and the numerous deadly forced removals (ethnic cleansing) under the guns of the U.S. Army.11
During the Civil War, Confederate prisoners of war (POWs) were recruited to fight Indians in the west for the Union forces. 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. 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 nickname, 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.12
Indian Police and Policing Indian Country: 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. 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 Country, 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 Country.
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 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, 1862.13 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. 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 landmark 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.14
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 intratribal 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.15 While the intent was for tribal justice to operate within Indian Country for crimes by Indians against Indians, the white Indian superintendent virtually held absolute authority in dealing with all issues within his authority. Most significantly, he had the resources of the army at his disposal as an enforcement agent. In the constant friction between the 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, 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 1875.16
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 force, 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 army. 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. Forty-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 martial law, as against enforcing written federal, state, or territorial laws. Congress deliberately set the pay for Indian police far below that of others working for the government in Indian Country. They were paid five dollars per month and had to provide their 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 twenty dollars 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.17
Congress also forced them to wear gray 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.18
Some of the Indian police were also outlaws or accused of crimes. 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 by Sam Sixkiller, son of Redbird Sixkiller, former high sheriff of the Cherokee Nation, a captain in the Union Agency Indian Police, and a 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.19
Indian Territory became a haven for outlaws following the 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 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. 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 thirty-five and served in this capacity for twenty-one years (1875–1896), adjudicating 13,490 cases with 344 capital offenses of which 160 were sentenced to death.20 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.21
The U.S. Marshal represented the federal law enforcement presence in Indian Country since 1804 when Congress designated the southern Mississippi Valley the Territory of Orleans and provided it with a federal 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 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 federal courts of Missouri and the Territory of Arkansas. Here, the federal marshal and his deputies, supported with the 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 marshals died during the twenty-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, 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 Carlos episodes.22
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.23
During this time, the Crow Dog incident was progressing through the federal courts. Preliminary to this case was the strong anti-Indian sentiment in the United States fueled by President Grant’s clandestine actions against the Sioux, resulting in 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 handled 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 that 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 intratribal 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 Crow Dog’ clan compensating Spotted Tail’s clan with a restitution of six hundred dollars, 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 sentence him to be executed by hanging by Judge G. C. Moody. In his appeal (remember Indians are now deemed “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.24
The U.S. Congress responded to the Crow Dog decision by 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.25
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. It would be another thirty-nine years (1924) 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 26
J. Edgar Hoover, the former head of the 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 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 sixteen (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 its 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.27
Utley and Washburn summarized the post–Civil War Indian problem, noting the blatant government corruption and the hardships associated with forced reservation accommodation:
Few government agencies lent themselves more readily to patronage politics and corruption than the Indian Bureau, and none achieved a worse reputation. Blanketing the nation, it afforded hundreds of government jobs in which the consequences of bad appointments fell chiefly on people who had little effective means of protest. . . . The bureau offered special opportunities for fraud. Annual appropriations of $7 million were customary. Most of this sum went for the purchase of food, clothing, and other goods for issue to the Indians. From factory to agency warehouse, corrupt alliances enriched government officials and suppliers and penalized the Indians in both quantity and quality of issue. . . . The reservation system featured a concerted effort to destroy tribal organization and identity and emphasize the individual, to root out the beliefs and customs of the old life and substitute new ones from the white man’s culture, and to carve up the reservations into individual homesteads, returning “surplus” lands to the public domain for white settlement. Coercion marked this program. The agent controlled rations and could cut off issue to the uncooperative. Indians working as police and judges backed his authority and sought to enforce a long list of “Indian offenses”—such . . . as feasts, dances, plural marriages, and the medical and religious practices of the medicine men.28