This week’s readings helped me to parse out some of the complexity surrounding federal Indian law and jurisprudence. While policy is a product of the prevalent cultural conventions of the time, Standing Bear and Crow Dog show that individuals have the power to act outside those social norms.
Harring argues that “nineteenth century judges carved out federal and state Indian law one case at a time. This process [was] often more opportunistic and pragmatic than doctrinal…” (1-2). While every case should be understood in its context, Crow Dog’s context was assimilation, and the Court’s ruling went against the grain. Congress’s 1871 act created the BIA, whose mission was assimilation. Like Standing Bear, Crow Dog proves that the courts are not necessarily subject to the racist prevailing attitudes of the day. This further incriminates courts that choose to give rulings based on ethnocentrism and racism.
I also see Crow Dog as important because the case’s author highlights the unjustness of common American practice until that point. This marks a departure from the approach in earlier cases. It seemed that the Marshall Trilogy relied upon exploitative precedent then try to defend it. Harring writes, “It is not coincidental that the development of a body of doctrine in U.S. Indian law did not occur until after the violent and illegal conquest of the tribes” (5). The author of Crow Dog, however, expressly recognizes the injustices of colonialism and ethnocentrism, rejecting “a standard made by others” and other laws that would be contrary to “the traditions of their history” (406). That said, the document contributes to the image of the “savage,” violent Indian, which is precisely what the Major Crimes Act tried to control.
Creel’s article teased apart the paradoxical dichotomy in the history of Indian law: that Indians are somehow simultaneously savages/children in need of the federal government; or that tribal sovereignty needs to be “respected.” Creel demonstrates how the two contrasting images of Indians are deployed when convenient, and how neither really escapes ethnocentrism or gives tribes sovereignty. If tribal courts could really stand in for state courts’ decisions (which, as she argues, erases over difference in a way that denigrates tribal sovereignty), then why couldn’t reservations use tribal law instead of federal law? Perhaps instead of “respecting” tribes by counting tribal court convictions in sentencing, we could view the tribal court as a legitimate means of retributive justice. This justice would be inherently different from the federal system, as “reproduce[ing] the dominant canon” would complete the process of colonization (Creel, 17). It struck me that the Courts of Indian Offenses and the “displacement of traditional justice systems” (Creel, 8) – and thereby uprooting a people’s system of values and morals – might be one of the most thorough forms of colonization. This article also highlighted for me the intersection between Indian law and issues of incarceration, racism in other groups, and the war on drugs.