Justice Denied in the 1870s

Equal protection under the law is a legal and social concept which has often not been viewed as applicable to American Indians.  During much of the nineteenth century Indians were not citizens and often state and territorial laws prohibited from testifying in courts of law. A number of instances during the 1870s illustrate how justice was denied to American Indians.  

Murdering Indians:

In 1875, an American began putting a fence around Eagle Robe’s garden in Idaho, claiming it as his own. When the Nez Perce objected, he was shot dead. The American was never brought to justice. The dying man told his people:

“Do not go to war. You will lose your country by it, and above all the loss of life will be greater.”

In 1875, four men were accused of murdering a Haida man in Washington. They filed a writ of habeas corpus which stated that

“the petitioners are white men, and no evidence was given … implicating these petitioners as the guilty persons, except by witnesses who are North American Indians.”

It was commonly felt that Indians should not be allowed to be witnesses in any case involving a non-Indian. In the hearing, the defendants’ lawyer argued that Indian testimony was not valid in cases with non-Indian defendants unless it involved the liquor laws. The judge denied the petition. The grand jury, however, did not return an indictment and the four men went free.

In 1876, some American settlers murdered a Nez Perce man, Blowing Wind, in Oregon. He was known as a quiet, peaceful man and his killers had a reputation as trouble-makers. The Nez Perce viewed this murder with a call for justice, not war. However, after several months, the American government failed to arrest the murderers and bring them to trial. Finally, the Nez Perce under the leadership of Chief Joseph issued an ultimatum: if the men were not arrested the Nez Perce warriors would burn down all American homes in the Wallowa Valley. In response to the Nez Perce threat, many Americans left the area and the army sent in a small force of soldiers to meet with Chief Joseph. The murderers were arrested, tried, and set free. Since there were no Indian witnesses who were willing to swear an oath to the Christian God, the men were able to plead self-defense.

In Oregon’s Wallowa valley, an American killed Wilhautyah, a member of Joseph’s Nez Perce band. Joseph spoke with the Indian agent and agreed to let the civil authorities deal with the matter. The agent informed the army that the killing was willful and deliberate murder. After considerable delay, the two Americans turned themselves in and were set free after the judge ruled that the shooting was in self-defense.


In 1875, charges of corruption were made against the Office of Indian Affairs (Bureau of Indian Affairs) regarding the administration of the Sioux Reservation in South Dakota. According to the charges, the Indians had been given inferior beef and flour; the pork issued to them was not fit for human consumption; and the freight contractor was paid for 212 miles while the actual distance is only 145 miles. The complaint was investigated by the government and the allegations were found to be groundless. The commissioners who investigated the charges either played down or failed to see the implications of much of the testimony they heard.

In 1876, a prominent Montana businessman was charged with attempting to defraud the government and the Crow. His alleged scheme involved double sacking flour so that each flour sack would be counted twice, providing the Crow with shoddy goods, and branding Indian cattle as his own. The grand jury refused to bring an indictment.

Theft and Trespass:

In 1874, a Nebraska district court ruled that local courts had no jurisdiction over crimes committed on reservations. While non-Indians had rarely been brought to justice for committing crimes on reservations, this decision gave them a virtual license to steal.

In 1877, the Oklahoma Cherokee attempted to collect a levy on cattle which were grazed on their lands by non-Indians. The case was tried in an American court in Fort Smith, Arkansas where the judge told the jury:

“The fact of a man being in the Indian country without a permit is no excuse for seizing his property. Neither the Indian Sheriff nor any other officers of the Indian country can seize or remove him or his property. If a citizen of the United States is in the Indian country without permission, as intruder, the authorities can report the fact to President Grant, who is backed by all the military power of the United States, and he can send soldiers to put him out.”

The jury found against the Cherokee Nation.

Trials Not Needed:

In 1875, the United States Army simply sent 72 Cheyenne, Commanche, Arapaho, and Caddo prisoners to a military prison in Florida. Originally, the army had intended to try the prisoners before a military commission, but the attorney general ruled that a military trial would be illegal as a state of war could not exist between a nation and its wards. Thus, the Indians were imprisoned without a trial. Many of the young men selected to be imprisoned had simply been selected at random from a lineup of Indians. There were no concerns as to whether or not they had actually committed any crime: they were Indians and therefore deserved to be in prison.

Indians Are People:

In 1879, a U.S. District Court ruled in the case of Standing Bear versus Crook that an Indian is a person under United States law and therefore has a right to sue for a writ of habeas corpus in federal court. The U.S. Attorney had argued that Indians were not persons under the law and therefore were not entitled to a writ of habeas corpus. The Court found that if Indians must obey the laws of the land, then they must be afforded the protection of these laws. The Commissioner of Indian Affairs responded to the judge’s ruling by noting that it

“is regarded by the Government as a heavy blow to the present Indian system, that, if sustained, will prove extremely dangerous alike to whites and Indians.”

The ruling was generally ignored in both state and federal courts.

Indian Justice in New York

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When one person kills another, it is often considered to be murder and certain legal sanctions can be brought against the killer. On the other hand, when an individual is killed on behalf of the government it is considered an execution and there are no legal sanctions against it. Indian nations had governments and laws long before the arrival of Europeans in North America. With the formation of the United States, there were at times conflicts between the traditional Indian law and that of the states. Part of this conflict was about jurisdiction: should murderers be punished under state law or tribal law.  


In 1801, George Peters, a member of the Brothertown tribe (a group of “praying” or Christian Indians who had moved to New York from New England), killed his wife with a club. He was arrested, tried, and convicted in state court. His conviction was appealed on the grounds of tribal sovereignty: the case should have been adjudicated at the tribal level rather than in state court. The State Supreme Court ruled narrowly that the state had murder jurisdiction over the Brothertown Indians because they were an especially small, weak, and vulnerable people unable to defend their autonomy. In other words, the state did not recognize the sovereignty of small groups of Indians.  The following year George Peters was hung, becoming the first Indian executed by the State of New York.

In 1802, a Seneca known as Stiff-Armed George got into a drunken fracas outside of a tavern. He was beaten and pursued, but then pulled a knife and stabbed two non-Indian men, one fatally. Reluctantly, the Seneca chiefs surrendered him to state authorities. According to Seneca leader Red Jacket:

“Did we ever make a treaty with the state of New York, and agree to conform to its laws? No. We are independent of the state of New-York.”

Red Jacket then presented the state’s governor with a copy of the Treaty of Canandaigua which clearly placed the case in federal jurisdiction. However, the governor wanted to prove state jurisdiction over all of the Indians in New York and the federal government declined to intervene.

The following year, Stiff-Armed George was found guilty of murder in a state court. The jurors, fearing that execution might lead the Seneca to seek revenge, recommended that George be pardoned. The governor suspended the sentence and recommended to the state legislature that George be pardoned. The legislature pardoned Stiff-Armed George provided that he leave the state and not return.


One of the crimes under traditional Iroquois law is that of witchcraft: using supernatural forces to cause harm to another person. The traditional punishment for witchcraft was death. In 1821, the Seneca tribal council convicted Kauquatou of sorcery. Acting on behalf of the tribal council Chief Tommy-Jemmy cut her throat. In response, the state of New York prosecuted Tommy-Jemmy for murder. Red Jacket and Tommy-Jemmy’s court-appointed attorneys argued that the death of Kauquatou was not murder under New York law because it was a legal execution under Seneca law, on Seneca land, by the sovereign Seneca people. The circuit court referred the case to the New York State Supreme Court which noted that no law extends state murder jurisdiction over the Iroquois.

In 1822, the state legislature in response to the murder trial of Seneca chief Tommy-Jemmy passed legislation giving the state sole and exclusive jurisdiction over murders committed within its boundaries. Tommy-Jemmy escaped execution because the new law could not be applied retrospectively to his killing Kauquatou.

Federal Law:

While the federal government was not involved in the early nineteenth century New York cases described above, by the end of the century the Supreme Court ruled that state criminal law did not extend over reservations. As a result, Congress passed the Indian Crimes Act which made murder on a reservation a federal offense.


Indians 101: Murder in Montana (19th Century)

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photo credit: Aaron Huey

The West in the nineteenth century was at times violent and this violence was sometimes expressed in murder. This was particularly true with regard to interactions between Indians and Americans. Often, Americans who murdered Indians escaped any legal consequences for their actions. On the other hand, Indian violence, or even the threat of violence, against Americans was met with retaliation against which ever Indians were nearby with no concern about their identity or guilt. In addition, many incidents were blown up into full scale massacres by the press, even when these incidents hadn’t happened. These can be seen in a series of events that took place in the mining town of Bannack City, Montana in 1863.  

It began when a miner bought an Indian woman (perhaps a Sheepeater or Bannock). It was not uncommon at this time that Indian women would be taken captive and then sold. On the other hand, it was also common for the husband in an arranged marriage to pay a bride price to the family of the bride. Not understanding the meaning of this, Americans would often feel that they had purchased a wife. It is not clear which kind of purchase happened here.

The Bannock woman left the American miner, claiming that she had been mistreated. An Indian elder came to her defense when the miner protested. A group of drunken Americans who witnessed the event then declared that they were not afraid of Indians. They followed the elder to his camp on the edge of town. They shot into his tipi, killing the old man, a boy, and a baby.

Later a group of American “road agents” came across Lemhi Shoshone Chief Snag bathing in a creek. One of the men drew his gun and shot the chief, killing him. The next day, Tendoy was elected chief by the Indians in accordance with the wish of the dying Chief Snag.

Tendoy then rode his war pony into the town of Bannack and stopped in front of the general store. He waited there for the townspeople to gather. He reminded them that as war chief for the Lemhi Shoshone he had protected them against assault from hostile Indian tribes. He told them that he has come to find out why they have killed his uncle, Chief Snag. Did this mean that they have declared war against their friends? If so, Tendoy told them, then he would accept the challenge. The townspeople responded by telling the new chief that the killings were the actions of a few bad men and that the good people in the town deplored the act. After a long conversation, Tenday returned to the band, called for his warriors to maintain the peace, and then led them on a long buffalo hunt.

While the Americans took no action against the drunken miners who had killed three Indians outside of town, they did “arrest” the men who had been involved with the killing of Chief Snag. At the trial before a local jury, the men simply explained that they had killed the chief in revenge for the killing of some of their friends by Indians during the 1849 California gold rush (14 years earlier). The jury completely exonerated them.

Following the trial, the Deseret News in Salt Lake City reported that, in retaliation, the Indians had killed 24 miners. The miners then organized a militia which attacked and killed 17 Indians. According to the paper, some 300 miners were now looking to take the scalp of Paiute Chief Winnemucca (who had nothing to do with any of the events).  However, an investigation found that the reported retaliations between the Indians and the miners did not actually take place. During this time period, it was fairly common for newspapers to print totally fictitious accounts of Indian attacks, “wars,” raids, and massacres.

Bannack and Bannock:

Bannack, now a ghost town operated as a Montana State Park, was named after the Bannock Indians who are related to the Northern Paiute. The Bannock were later moved to the Fort Hall Reservation in Idaho. Shown below are pictures of the ghost town and the Bannock Indians.

Bannack 3

Bannack Courthouse

Bannock Indians