Chapter One Excerpt for The Worst Trickster Story Ever Told
ONE
The Mystery
When did plenary power become constitutional?
For those of you whose eyes didn’t roll so far in the back of your head as to pass out at the deep, scholarly pretentiousness of the previous sentence, I thank you for your perseverance. Please allow me to explain why we need to ask and answer such a question by engaging in a simple trick: Rather than conceptualizing it as a question, let’s begin by thinking about it as a mystery—one with two critical clues.
As with many good mysteries, this one begins with a murder. In the early 1880s Crow Dog, a member of the Sicangu Lakota Oyate (or Brulé Lakota or Brulé Sioux in older literature) ambushed and killed Spotted Tail, who was also Sicangu Lakota.1 The event took place on tribal land, which was increasingly surrounded by colonizers yet still very remote from what then constituted much of the United States. The motivation for the killing was assuredly political in nature—both men vied for leadership authority within the community—but it may have had personal elements as well.2 Nonetheless, the heinous act created a rift within the community, one that the community sought to repair. Shortly after the killing, a tribal council sent peacemakers who helped the families negotiate a settlement.3 The issue was resolved within the community to its satisfaction when Crow Dog and his family agreed to pay Spotted Tail’s family six hundred dollars, eight horses, and a blanket, an astounding sum that testified to the significance of the family’s and community’s loss.4
As should be clear after only these few, short paragraphs, my career as a mystery writer is not off to an auspicious start. Not only do we know whodunit, but we have a sense of why hedunit, and we have encountered a resolution that did not involve a climactic chase or fight scene or any other details or action that would get the blood pumping. Fortunately for this book (although not so much for Native America), the story does not end here nor is this the mystery with which I am concerned. Rather, the true mystery is furthered by how and why American law developed as a response to Spotted Tail’s death.
Although the matter was settled to the community’s satisfaction under Sicangu Lakota Oyate law, federal officials seized on what they regarded as an opportunity. At the time, in the 1880s, the federal government was in the early stages of what is regularly referred to as the Allotment Era of federal policy. Over the course of American history, the federal government has decided upon a number of thematically driven methods with which to engage with Native America, which scholars have grouped into eras to better understand and explain them. The Allotment Era, lasting from approximately 1871 to 1934, was defined by attempts by the federal government, philanthropists who believed they were doing right, and those who sought tribal lands and resources to destroy tribal nations and tribalism.5 The Allotment Era included, among other things, the process of allotment that fundamentally changed and reduced tribal land holdings, boarding schools that sought to eradicate tribal ways of life by forcing Native children into a Western mode of life, and Indian police and Indian courts that enforced Western law and norms in Native spaces.6 The most famous quotation from the era that best sums it up comes from Richard Henry Pratt, a military man who built a second career as an educator when he opened the first Indian boarding school in Carlisle, Pennsylvania. Pratt stated that his goal for Native people was to “kill the Indian in him, and save the man.”7 It would be difficult to overstate the amount of time, energy, and resources that were directed toward eradicating tribal ways of life during the Allotment Era or the lasting harm that the era’s efforts continue to cause.
Law, particularly criminal law, was a major arena in which the federal government (and others) recognized an opportunity to radically transform Native understandings and governance during the Allotment Era. Briefly, criminal law is different from its major counterpart, civil law, in that civil law governs relations between private parties whereas criminal law is perpetuated and enforced by a government.8 Certainly, federal authorities and others were also interested in civil law but were especially interested in criminal law because of the direct threat of coercion through jail time or other punishments that lie at the heart of Western forms of criminal law. By forbidding tribal behaviors (such as dancing and ceremonies) and otherwise sanctioning or requiring Western behaviors (such as state-recognized marriages) through criminal law, the forces that sought to destroy tribal nations and tribalism could directly further their goal. Shortly after the matter was settled among the Sicangu Lakota Oyate, the federal government arrested Crow Dog under the pretense that a “public outcry” demanded that the killer be brought to justice.9 The true purpose for arresting Crow Dog, however, had little to do with public opinion. Rather, the federal officials tasked with engaging with Native peoples wanted to develop a test case—a case that ascertained the state of the law.
At the time, federal officials tasked with engaging with Native peoples wanted to exercise criminal jurisdiction over Native peoples on Native lands. Put directly, jurisdiction simply means authority. If a court (or other governmental body) has jurisdiction over certain subject matter, lands, or persons, then that court (or other governmental body) can rightfully act within or upon that subject matter, lands, or persons. If it lacks jurisdiction, then it can’t rightfully act. Thus, federal officials were hoping to exercise the authority, or jurisdiction, to employ American criminal law over Native peoples on Native lands. In one respect, the sovereignty and nationhood of Native peoples made this seem absurd—much like it would be absurd if the United States tried to extend its criminal law over peoples living in Canada or Mexico. Yet, tribal nations were increasingly surrounded and imposed upon by the growing colonial force that was the United States. Under these circumstances and within the spirit of the Allotment Era, forcing American criminal law on Native peoples on Native lands felt less like an absurdity to many federal officials and more like a necessity.
Thus, Crow Dog’s arrest and trial were intended to produce a test case that would provoke American courts to decide whether the federal government had jurisdiction to exercise American criminal law over Native peoples on Native lands. Had it not been Crow Dog to provide the opportunity for this test case, then it would have been one of the other half-dozen or so cases that federal officials were also working on at the time.10 The trial was swift, Crow Dog was convicted in a territorial court and sentenced to hang, and federal officials had their test case that was soon to be heard by the Supreme Court.11 According to legend, Crow Dog managed to convince a federal marshal to let him go free for a period of time to arrange his affairs. The day Crow Dog promised to return was cold and snowy, and few if any expected him to keep his promise. Nonetheless, he showed up on time, making him a local hero.12
Before considering Crow Dog’s fate at the Supreme Court, it is worth taking some time to consider two aspects of this situation that deserve further attention. First, what were federal officials hoping to accomplish with this test case? The most direct answer is that they were hoping to win the case and receive sanction from American courts to extend American law over Native peoples on Native lands. However, even a loss in the test case held potential for federal officials. The hope was that a loss would provoke Congress to take action to extend American jurisdiction through legislation over Native peoples on Native lands, which federal officials had previously tried, without success, to convince Congress to do.13
Second, what do we make of Crow Dog and his divergent fates in two very different legal regimes? This is more difficult than it might seem since assessing the incident with a contemporary perspective is likely to obscure the purpose behind the Sicangu Lakota Oyate’s actions.14 A modern reader—Native or not—might be tempted to dismiss Crow Dog’s substantial payment to Spotted Tail’s family as another rich guy seemingly buying his way out of justice (albeit in an unfamiliar circumstance). Yet, the choices and methods employed by the Sicangu Lakota Oyate and the federal government allow us to take a step back and think about criminal law more wholistically. Thus, we might ask, through the prism of Crow Dog, what is the purpose of a criminal justice system?
Put simply, Crow Dog’s situation allows us to recognize that the American, or Western, system of justice is focused on punishing the offender. Crow Dog, under this vision of criminal justice, needed to feel a roughly equivalent amount of harm that he caused. Federal officials sought the death penalty and were incensed when he “went free” under tribal law. However, for the Sicangu Lakota, and for many tribal nations, the focus of the criminal justice system was not on punishing the offender but rather on making the victim (or the victim’s family) as whole as possible. Restoring a sense of balance and harmony within the community was the foremost goal and best accomplished through restitution rather than punishment.15 Consequently, under the Sicangu Lakota system, Crow Dog was not buying his way out of or otherwise avoiding justice but fully and meaningfully participating in effectuating it.16
Every single court case, from the biggest to the smallest, is just a question that is seeking an answer: Did the accused commit the crime for which she or he is on trial? Did the company breach its contractual obligations? Is a tomato a fruit or a vegetable?17 Consequently, the key to reading and understanding court opinions is to discern the question that the court is trying to answer. When the test case that emerged from Crow Dog’s situation reached the Supreme Court, the question to be considered was blissfully uncomplicated and likely obvious by this point in the chapter: Did the federal government have jurisdiction to enforce American criminal law over Native peoples on Native lands?
Notes
1. Sydney L. Harring, Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (New York: Cambridge University Press, 1994), 109.
2. Ibid., 108–9.
3. Ibid., 110.
4. Ibid.
5. See “Chapter 5—The Allotment Era,” in Federal Indian Law and Policy: An Introduction, by Keith Richotte, Jr. (St. Paul, MN: West Academic Publishing, 2020), 93–112.
6. Ibid.
7. Richard H. Pratt, “The Advantages of Mingling Indians with Whites,” in Americanizing the American Indian: Writings by the Friends of the Indians, 1880–1900, ed. Francis Paul Prucha (Cambridge, MA: Harvard University Press, 1973), 261.
8. This is why civil law is sometimes referred to as “private law” and criminal law is sometimes referred to as “public law.” It is also why suits between private parties are titled something like Smith v. Jones while criminal cases are often titled [Name of a state] v. Johnson or The People v. Edwards.
9. Harring, Crow Dog’s Case, 110.
10. Ibid., 115.
11. Ibid., 118–26.
12. Vine Deloria Jr. and Clifford M. Lytle, American Indians, American Justice (Austin: University of Texas Press, 1983), 168–69. Sydney L. Harring, the foremost historian of this incident, acknowledges this story but does cast some doubt upon its veracity. Harring, Crow Dog’s Case, 125.
13. Harring, Crow Dog’s Case, 115.
14. As Harring has noted, “The dispute between Spotted Tail and Crow Dog cannot be understood in contemporary U.S. cultural terms.” Ibid., 107.
15. Richotte, Federal Indian Law, 123.
16. I leave it up to you to decide which system is more civilized.
17. Nix v. Hedden, 149 U.S. 304 (1893).