Indian-ness was conflated with foreignness, which placed Native Americans outside the nation—as foreigners in their own land.

—Robert Elias, The Empire Strikes Out: How Baseball Sold US Foreign Policy and Promoted the American Way Abroad, 2010

What would happen if the United States government made it illegal to practice religious beliefs, outlawed celebrations on the Fourth of July, and banned gift giving at Christmas? How would you feel if it were a crime for adults to tell their children about the Easter Bunny and the Tooth Fairy, and if those practicing such traditions were publicly chastised and labeled as ignorant for spreading superstitions? What if those convicted of these offenses were fined, thrown in prison, or forced to endure hard labor? Incredibly, just such an event occurred in 1883 when the American government issued the Code of Indian Offenses. The code was a watershed moment during which, virtually overnight, an array of customs and ceremonies that had been practiced for millennia were suddenly deemed to be crimes. While some resisted the new laws by worshipping in secret or fought the rules in court, most attempts at resistance were futile. The result was a decimation of Native American culture. It is a testament to the deeply ingrained prejudices of the era that the code was not abolished until 1933, fifty years after its inception.

By the 1880s, Native Americans were essentially displaced immigrants, strangers in their own land, who were moved onto reservations and would not be granted citizenship until 1924. The new policy, the Code of Indian Offenses, was designed to wipe out centuries of sacred tradition that many Christians believed were contaminating “white” values. The justification for such actions was “The White Man's Burden,” a term used by Rudyard Kipling in 1899 in his poem of the same name, which was used to describe the presumed moral responsibility of white Europeans to oversee the everyday affairs of nonwhites because the latter were seen incapable of governing themselves. Indian activist Walter Echo-Hawk writes that during this period, Native American cultures were viewed “as childlike, barbaric, or otherwise inferior and in need of European guidance for their own good.”1 Europeans justified these colonial conquests as noble acts of charity, but in reality the opposite was true—“the white man became the burden of the black, brown, yellow, and red men and women.”

Books on Native American history are filled with the words acculturation, assimilation, and civilization. They are but euphemisms for the systematic attempt to destroy Native American culture through government policies. These same books contain words such as displacement and geographical transition—which are different ways of saying forced removal. Terms like reservation and refugee are but code words for segregation and internment. The need to address the “backward” ways of Native Americans, which was fueled by Anti–Native American sentiments, had long been viewed by whites as a problem during the nineteenth century, with individual states and territories passing laws to control the perceived menace. These hostile views were evident at the highest echelons of political office. During his annual address to Congress in December 1833, President Andrew Jackson spoke of Native Americans in the most disparaging, subhuman terms: “They have neither the intelligence, the industry, the moral habits, nor the desire of improvement…. Established in the midst of another and a superior race, and without appreciating the causes of their inferiority…they must necessarily yield to the force of circumstances and ere long disappear.”2

WHAT'S IN A NAME?

Native Americans have been marginalized by the use of the word “red” to describe their skin color, which serves only to emphasize their perceived difference. Historian Nancy Shoemaker observes that eighteenth-century descriptions of American natives “tended to follow the pattern set by the earliest European explorers of the Southeast, the Spanish, who described them as ‘brown of skin.’”³ Native American law analyst Bethany Berger notes that they were not commonly referred to as “red” until the 1700s, with the most common description being “tawny”—orangish-brown or yellowish-brown. The earliest use of the term “red skins” came about because of their common use of red paint on their faces.⁴ While the father of botany, Carlolus Linnaeus, referred to American natives as Americanus rubescus (“reddish”), his actual description was “tanned.”⁵ Just how he had come up with the color red is still unclear. He may have read accounts of red-painted natives.⁶ The eventual adoption of the term “red” to describe them also has political roots. While some tribes described themselves as “red,” the meaning goes deeper. Berger writes that during diplomatic negotiations, tribes in the southeastern US typically described themselves as “the red people,” while the colonists were referred to as “the white people.” She continues: “For these tribes, red signified matters of war, while white signified domestic affairs. Tribal politics was divided between red chiefs who governed war and state, and white chiefs who governed internal matters. By calling themselves the ‘red people,’ these tribal negotiators were both establishing themselves as part of a complementary governmental system and downplaying English skill at war.” As a result, red became synonymous with Native Americans, even though their skin color was not.

SOPHISTICATED SAVAGES

The European newcomers typically viewed the natives as primitive, lawless, simplistic, and childlike people requiring the guidance and protection of the white settlers with their superior culture and laws. Fear of their heathen customs and strange ways drove the settlers, especially missionaries, to one conclusion: Native Americans needed the help of whites to become civilized by embracing Christianity and become productive members of the new society that Europeans had established in the New World. That could only happen through assimilation. In reality, Native American culture was as advanced as any in Europe. Before the arrival of the first known white settlers in 1492, their nations were structured under tribal laws. Governing bodies resolved conflicts, regulated land use, and exerted jurisdiction over criminal matters by norms and values that had existed long before the white man's arrival to their shores.

Before European contact, the Americas were a diverse place where millions of natives from an array of tribes and independent nations roamed. Yes, there was barbarity: war, slavery, and injustices committed by one tribe to another. However, similar acts of barbarism were common in Europe, which had long been plagued by war, atrocities, and intolerance of religious diversity, as well as political and ethnic injustice. There are many examples of just how sophisticated the justice systems of the “savages” were. Among the Yuroks in what is now northwestern California, crossers advocated for crime victims. Typically two nonrelatives from different communities would support an aggrieved Yurok who felt he or she had a legitimate complaint. The accused could equally employ the services of nonrelatives from a community that was not his or her own. Crossers mediated between the victim and the accused, weighing the evidence and reaching a verdict or setting a payment to compensate for damages according to a scale that was known to all members of the tribe. Each crosser was usually paid in shell currency called a moccasin.7 In the Great Plains, the Cheyenne employed restorative justice with a focus on preventing further harm to any party involved, reestablishing harmony to the community, and renewing damaged relationships. In contrast, the dominate retribution system in Western cultures was punishment. When one Cheyenne killed another, the murder was considered a stain on both the tribe and the murderer, with the perpetrator banished for between one and five years. As a result, only sixteen murders among the Cheyenne were recorded from 1835 to 1879, while in the coexisting frontier towns, homicides were a common sight, with offenders hanged in public. In these frontier towns, those found guilty of other crimes such as indebtedness, manslaughter, rape, arson, and assault were kept isolated in prisons under harsh and often unsanitary conditions. Little rehabilitation took place in these settings, and if a person had been falsely accused and was not a criminal before he went in, he likely would have been by the time of his release. In contrast, the Cheyenne justice system prized demonstrations of repentance and regret, the sorrow of the perpetrator being an indicator of his or her willingness to resume life by Cheyenne values.⁸ While we are not advocating one system over the other, we acknowledge that the Native American judicial schemes were not nearly as crude and simplistic as they are often portrayed in novels and Westerns.

The European legal system originated in the Middle Ages when the church tried to limit self-government by pagans and heathens, using force to justify its actions on religious grounds. Before Martin Luther pursued the Reformation of the Catholic Church and the Protestant movement grew stronger in Central Europe, the Catholic Church dominated European society. Dissenting religious beliefs were brutally suppressed and persecuted. While there can be no doubt that some forms of tribal justice were cruel and savage by any standard, they could not have been any worse than the legacy of European Christianity. For instance, during the notorious witch persecutions that took place across continental Europe between 1400 and 1650, historian Rossell Robbins estimates that upward of two hundred thousand died, while sociologist Erich Goode places the death toll closer to half a million.9 During this period, men, women, and children were brutally tortured, shot, drowned, poisoned, starved, hacked to death, or burned alive at the stake for the imaginary crime of witchcraft. Even the most barbaric system of Native American justice would not have surpassed this butchery that was sanctioned by the European legal system. The circumstances under which one could find oneself accused of practicing witchcraft were so vague as to be absurd. Jules Baissac writes that neither piety nor virtue offered immunity from suspicion: “A careless gesture, look or word, whether one was rich or poor, great or lowly…could pass for malignant spells if that gesture, look or word happened to coincide with one of the thousand and one accidents of human life: none could feel safe….”¹⁰ Qualities such as “beauty, talent, artistic skills were grounds for suspicion; a fortune rapidly acquired could be the devil's work. Everything and anything in everyday life could furnish a pretext for an accusation of sorcery; nothing, absolutely nothing, guaranteed anyone's immunity.” Given the above, it is ironic that Europeans failed to appreciate the complex social control mechanisms in many tribal societies.

A CLASH OF CIVILIZATIONS: BUILDUP TO THE ACT OF 1883

When European colonizers arrived in the New World and expanded onto Native American lands, the natives were confronted with people who were not used to cultural diversity and who sought to force European laws, customs, and beliefs onto the inhabitants. Europeans perceived the world through racial categories and saw Native Americans with their nature-centered beliefs and rituals as culturally and intellectually inferior. This worldview made it easier for whites to claim their lands and undermine their judicial systems.¹¹ The first encounters between Europeans and Native Americans occurred during the 1600s along the Atlantic seaboard. The initial interactions were positive. Europeans brought clothes, metal pots, and weapons, and they traded with the natives, who in turn, provided the strangers with food and local knowledge of how to live off the land. But despite having signed treaties with many tribes, relations soured, and Native Americans were soon treated like second-class citizens.12

After the founding of the United States, tribal nations continued to be recognized as sovereign and independent. In 1787, the Northwest Ordinance proclaimed that the United States had the best intentions in dealing with the natives. Two years earlier, the newly formed republic had signed the first written agreement describing the power and limits to power of both the US government and a Native American government. In the Treaty of Wyandot, it was agreed that natives who committed crimes on US soil would be punished by US law, while crimes committed by settlers on native lands would fall under tribal law.¹³ The treaty gave the impression that these tribes were equals with the settlers. This would soon change. A few years later, the government started diluting the regulations in the treaty when it signed the General Crimes Act in March 1817, stating that federal crimes committed on native lands fall under US law.

During the 1820s, the state of Georgia passed laws declaring that operations of the Cherokee government were illegal, including their court system. The Cherokee took the matter to the Supreme Court. In Cherokee Nation v. Georgia (1831), the court declared that the Cherokees were not a foreign nation as defined in the Constitution, but rather a dependent nation, and therefore it could not file suit in a federal court.¹⁴ Under this pretext, a few years later, the Cherokee were rounded up by federal troops and forced to move westward.¹⁵ More and more native nations were deemed wards of the government. After the Indian Removal Act of 1830, many tribes were forced onto reservations, which was essentially a form of apartheid.¹⁶ Public anxiety over the threat posed by religious minorities increased in the decades after the Civil War, as more and more citizens demanded that the government intervene and address the issue.¹⁷ Protestant Christians in particular demanded that the state take action on heathen rituals in the form of Christian sects, metaphysical movements, and Native Americans,18 as such group members were viewed as “religious criminals.”¹⁹ While Christian organizations and state authorities worked together to end slavery, other practices were targeted as moral depravity, including polygamy, which was practiced among many native tribes and Mormons.²⁰

RESERVATIONS AS A MEANS OF CONTROL

During the Second World War, the Nazis rounded up Jews and herded them into ghettos where they could be supervised and more easily controlled. Placing Native Americans onto reservations served a similar purpose. By the 1870s, most Native Americans were confined to reservations, where they could be more easily converted to the white man's religion and customs. Once there, tribes were an easy target for missionaries and state officials who served as guardians to guide them to become “civilized Christians.”²¹ Natives were told that their ways of life, religion, and customs were sinful. During this time, the state was viewed by most white citizens as the protector of public morality. It was only logical that the government felt responsible for the so-called civilization of natives by its own agents and Christian missionaries. Many Native American children were sent away to schools far from their families. There, secluded from their culture, they were forced to adopt Christianity, accept Anglo-Saxon names, forget their native languages, and accept Euro-American laws and customs.²²

FROM THE COURT OF PUBLIC OPINION TO COURTS OF LAW

In 1883, the Bureau of Indian Affairs established the Courts of Indian Offenses on most reservations, with the purpose of forcing Native Americans to abandon their “primitive” practices and assimilate into wider society.²³ The courts had the power to enforce a criminal and civil code as well as the Indian Religious Crimes Code; the latter allowed agents to imprison and withhold rations from any Native American who practiced traditional religious customs that were deemed to be undermining the state's civilization project.24 Suddenly, marrying more than one wife was illegal, as was participating in customary religious ceremonies, or serving as a medicine man. These crimes were punishable by jail time or reduced rations.²⁵ After being corralled onto reservations and having their buffalos hunted to near extinction, many natives were dependent on the government for food rations. Whoever chose to follow the traditional ways risked starvation.²⁶

Legal historian Robert Clinton equates these reservations to concentration camps.²⁷ He observes that by the time the code was invoked during the early 1880s, Native American society was quickly transformed into a welfare state dependent on the government for its very existence. He gives the plight of the nomadic Plains tribes as an example: “Their traditional hunting lifestyles had been effectively destroyed by such confinement, as well as the deliberate federally sponsored eradication of the buffalo [bison] on which they depended. This forced change in tribal economies resulted in the nation's first welfare state, in which the tribal members became completely dependent on federal rations.”²⁸ The penalty set out in the code for practicing the old ways was often the denial of rations, something that would be considered a basic human right today. Clinton writes that “the federal government's message to tribal Indians in the late nineteenth century was crystal clear—abandon your traditional culture and comply with the Code of Indian Offenses or starve.” In this regard, the Code was more than a series of laws governing reservations; it was a policy of government-sponsored ethnocide with the goal of exterminating a series of ancient cultures.

There was another factor that equally drove the wish to establish a Western system of law on the reservations: Interior Secretary Henry Teller. He despised many Native American religious and cultural practices, which the new code characterized as “evil,” because it was feared that native customs threatened civilized society. Teller's goal was to end “old heathenish dances” that were “intended and calculated to stimulate warlike passions.”29 Hence, the code stated: “The ‘sun-dance,’ the ‘scalp-dance,’ the ‘war-dance,’ and all other so-called feasts assimilating thereto, shall be considered ‘Indian offenses.’”³⁰ The enforcement of these rules prompted heartbreaking and demoralizing scenes on reservations. Lucy, the daughter of Black Elk, a well-known spiritual leader, recalls how her father was called to cure a sick boy. In the tent where the little boy lay, Black Elk took off his shirt and made a sacred offering of tobacco while pounding his drum and called upon the spirits to heal the boy. Then a priest who had already baptized the boy and given him last rites disrupted the ancient ritual. Father Lindebner gathered up Black Elk's offerings and tossed them into a stove. He grabbed the drum and rattle and threw them out of the tent, then took her father by the neck and said: “Satan, get out!” The once-proud and respected Black Elk sat outside the tent “as though he lost all his powers.”³¹ Following this incident, Black Elk turned to Christianity and gave up his traditional medicine practice.³² While sad and pathetic, this story pales in comparison to others, in which ethnocide was replaced by genocide, such as the massacre at Wounded Knee in 1890. Three hundred Lakota men, women, and children, were slaughtered at Wounded Knee, demonstrating how those who were following their own customs and religion met a bloody end.³³

CRIMINALIZING CUSTOM: THE GHOST DANCE

In the same year as the Wounded Knee tragedy, white police were involved in the murder of the Lakota Holy Man Sitting Bull, whom they suspected of supporting the revitalization of a new ritual known as the “Ghost Dance.”³⁴ Native American rituals posed a serious threat to the power of the state and were a hindrance to the dependence of the natives on the US government. These rituals were also feared for being “primitive” and whipping up religious excitement. No ritual was deemed more frightening than the Ghost Dance. It arose during the late 1800s in the Great Plains, at a time when many natives were being converted to the oppressor's god.35 Within this backdrop of cultural devastation, the Ghost Dance flourished between 1889 and 1891 and promised the dawning of a new era for Native Americans. The dance was a religious movement that reenacted a series of visions by Wovoka, a medicine man from a tribe in Nevada, who, while experiencing visions induced by small pox, prophesized a golden age. During this new period of rebirth, the natives would regain control of their ancestral lands and live in harmony with non-natives. It was believed that performing the dance was necessary to fulfill the prophecy. Participants had to sing certain songs while performing the ritual and wearing “ghost shirts.”³⁶ The dance had to be performed over five consecutive nights and repeated at six-week intervals. Many settlers were frightened by this strange new religion, which featured dancers who trembled violently or fell into trances and told of having been taken to the Happy Hunting Ground, where they met ancestors.³⁷ The Bureau of Indian Affairs became alarmed by the rapid spread of the Ghost Dance and called in the cavalry to regain control.³⁸ The movement collapsed after settlers thought that the natives were using the dance to prepare for a war with whites. Feeling it necessary to strike first, on December 29, 1890, the Seventh Cavalry surrounded a band of Ghost Dancers at Wounded Knee Creek in South Dakota and ordered them to surrender their weapons. A scuffle ensued between a native and a soldier. A shot rang out. By the time the shooting stopped, three hundred Indians—half of whom were women and children—and some sixty soldiers lay dead or wounded.³⁹

The biggest enemy of the missionaries were the wakan men, important spiritual leaders.⁴⁰ Missionary Gideon Pond wrote that “until they are put down by the mighty operations of the Divine Spirit, through the word of Christ, they…will effectually baffle any effort to elevate and civilize the Dacotas.”⁴¹ Episcopal missionary Henry Swift reported: “It is the constant effort of the church to break up Indian customs, encourage industry, educate, purify the marriage relation in conjunction with and as a part of its [C]hristianizing work. In the sphere of our influences dancing and conjuring have ceased.”42 By the early 1900s, the US government and the missionaries had achieved an important goal on their way to assimilating the Native Americans: about two-thirds of all reservations were by then subject to the Courts of Indian Offenses.

A LAST ATTEMPT TO SAVE NATIVE CUSTOMS

Unable to protect their culture and customs in battle, Native Americans tried to combat the prohibition of tribal ceremonies in court on the grounds of religious freedom and compared their religious practices to those in Christianity. In 1917, when Commissioner of Indian Affairs Cato Sells planned to shorten the three-day “Medicine Dance” to one day, the Blackfeet compared their ceremony to the Christian Holy Week of Easter.⁴³ The tribal representative Wolf Tail compared painting the skin of babies to baptism. The Ojibwe on the Red Lake Reservation in what is now northwestern Minnesota demanded that the government allow them to practice prayer and healing, just like Christians who were allowed to worship God through singing and music.⁴⁴ Native Americans were not granted US citizenship until June 1924, so how could they expect to be treated equally to Christians in US courts? Their natural reaction was to look for other ways to bypass the rules.⁴⁵ One strategy to evade the prohibition on religious dances was to claim that they merely had a social purpose or were performed for onlookers interested in “old Indian ways.”⁴⁶ Many tribes cleverly linked the dances to American holidays to increase the likelihood of having them approved by the Bureau of Indian Affairs. The Lakotas, Blackfeet, Kiowas, and Shoshone, for instance, practiced ceremonial dances on the Fourth of July. The government's fear that these dances might threaten European morals decreased as soon as they seemed secular.⁴⁷ Red Cloud, a Lakota chief on the Pine Ridge Reservation, continued practicing the Sun Dance together with other Lakotas. Whenever an agent broke up the ceremony on one reservation, the Lakotas moved on to another agency.48

In some situations, the white man's quest to civilize the natives took an unexpected turn, enabling them to continue their traditions under the guise of federal jurisdiction, as tribal elders were made judges. They often found ways to mute the white man's code of punishment. During the nineteenth century, among the Crow people, Bear Claw was a tribal judge. That often meant disciplining young warriors who sneaked out of camp to go hunting or engage in sexual escapades. Perpetrators were usually flogged by a native who was in the service of the state, and ordered to hand over their weapons. All the people brought in front of him on the charge of adultery were younger than twenty-five. While it was the judge's duty, under federal law, to sentence these young men for a deed that was defined as criminal by Western culture, Bear Claw was able to follow a semblance of tribal custom. With each verdict, tribal judges such as Bear Claw strengthened their own status and the relationship to the youths of their tribe.⁴⁹ One example is the case of Robert Red Deer, who had been accused of “cohabiting” with twenty-two-year-old Amy Bear. Red Deer was sentenced to ninety days in a Native American agency guard house—a small prison operated on the reservation by the natives under the direction of the federal government. Bear Claw released him after just sixty-eight days. Even more remarkable is that this was Red Deer's fourth conviction for the same offense: cohabiting with Amy Bear. None of his previous convictions had sustained a penalty of more than a month in the guard house. For her part, Amy Bear was not charged. Bear Claw might have empathized with Red Deer's actions, as records reveal that he had been previously married five times! Native American scholar Frederick Hoxie writes that “Red Deer and [Amy] Bear emerged from a world where, as one old man told anthropologist Robert Lowie, ‘women are like a herd of buffalo, and a husband who cleaves to one wife is like a hunter who has killed the last of the fugitive animals and stays by the carcass because he lacks spirit to pursue others.’”50 Hoxie observes that public drunkenness convictions were “equally mild.” He continues, “One tribal member found that on his fourth conviction for inebriation, the fine had been reduced from ten dollars to five dollars. What seems to have been at least as important as the punishment was the reinforcement of the relationship of elder to youth. Authority and prestige were the judge's reward for his service, and these could be renewed at each session of the court regardless of the presence of ‘repeat offenders’ or the persistence of ‘immoral’ conduct.”⁵¹ Despite different forms of resistance, Native American culture continued to be suppressed for decades. The code was not amended until 1933, under President Franklin Roosevelt, when all bans on dances and other customs were eliminated.

The criminalization of native customs was a form of ethnocide, prompted by a belief in European superiority, that is responsible for the devastation of Native American culture. Natives were seen as needing help and guidance from the missionaries and, later, the government, to become acceptable citizens of the newly formed United States. But Native Americans adjusted to their new reality and found ways to bypass the white man's laws or used them to their own favor. Native American history is an example of adjustment, resistance, and survival, since some traditions and customs are still practiced today, despite efforts to destroy them. In reflecting on the systematic attempt to wipe out tribal customs and spiritual beliefs, we would do well to heed the words of religious scholar Jeremiah Gutman, who observes that when foreign practices appear strange or unpopular, “A religion becomes a cult; proselytization becomes brainwashing; persuasion becomes propaganda; missionaries become subversive agents; retreats, monasteries, and convents become prisons; holy ritual becomes bizarre conduct; religious observance becomes aberrant behavior; devotion and meditation become psychopathic trances.”⁵² After the arriving Europeans failed to wipe out American tribes through violence and war, the Code of Indian Offenses succeeded by exterminating a significant portion of their age-old customs and beliefs.