Inventing the Savage

The Social Construction of Native American Criminality

Luana Ross

• Verlag: University of Texas Press
• Jahr: 2010
• ISBN:
  9780292787681
• Thema: Social Sciences
• Thema: Native American Studies

"Her book offers many insights into the criminality of Native people, as well as that of women or anyone else who is poor and oppressed." — Canadian Woman Studies Luana Ross writes, "Native Americans disappear into Euro-American institutions of confinement at alarming rates. People from my reservation appeared to simply vanish and magically return. [As a child] I did not realize what a 'real' prison was and did not give it any thought. I imagined this as normal; that all families had relatives who went away and then returned." In this pathfinding study, Ross draws upon the life histories of imprisoned Native American women to demonstrate how race/ethnicity, gender, and class contribute to the criminalizing of various behaviors and subsequent incarceration rates. Drawing on the Native women's own words, she reveals the violence in their lives prior to incarceration, their respective responses to it, and how those responses affect their eventual criminalization and imprisonment. Comparisons with the experiences of white women in the same prison underline the significant role of race in determining women's experiences within the criminal justice system. "Professor Ross, through painstaking phenomenological analysis, has unmasked some of the ways in which (race, class, and gender) prejudices, and their internalization by individuals targeted by them, exert enormous influence on the processes and outcomes of the American criminal justice system... This book will be of tremendous import to a broad, interdisciplinary audience." —Franke Wilmer, Associate Professor of Political Science, Montana State University

PART I
COLONIZATION AND THE SOCIAL CONSTRUCTION OF DEVIANCE

The United States may not have written the book on ethnic cleansing, but it certainly provided several of its most stunning chapters—particularly in its treatment of the American Indian. . . . Americans, as de Tocqueville long ago recognized, are a future-oriented people with a short historical memory. And the accepted, widely taught versions of history are written by the victors, presented in schools as sanitized costume pageantry. This is especially true when the victory is as total as that of America’s forefathers over the American Indians, who were nearly “cleansed” from an entire continent—an outcome the likes of which Bosnia’s Serbs can only dream.

KENNETH DAVIS
“Ethnic Cleansing Didn’t Start in Bosnia”

One
WORLDS COLLIDE

NEW WORLD, NEW INDIANS

The more [Indians] we can kill this year the less will have to be killed the next war, for the more I see of these Indians, the more convinced I am that they all have to be killed or be maintained as a species of paupers.

GENERAL WILLIAM T. SHERMAN, 1867 (quoted in Sharon O’Brien, American Indian Tribal Governments)

Once, all Native American tribes were largely free of the impositions of external social forces. These indigenous people did not live in isolation, although each nation had separately constructed a unique world. But their meetings, even when conflictual, never followed the notion of absolute dominance by means of total war that justified European and Euro-American invasion and occupation (Jaimes and Halsey 1992).

When Europeans first came to this country, there were approximately ten to twelve million indigenous people living on the land that became the United States (Dobyns 1983). These indigenous people were divided into numerous autonomous nations, each with its own highly developed culture and history. Politically, the indigenous people were not weak, dependent groups of people but rather powerful equals whom the early colonists had to deal with as independent nations.

Over the years, Native people have been stripped of most of their resources by the aggressive “settlers” who subjected them to unilateral political and economic exploitation and cultural suppression (Talbot 1981; Weyler 1982). Although Native nations are still politically distinct from the United States, under the definition of colonial theory today’s Native nations are colonies. One of the main motives of colonialism is economic exploitation, and cultural suppression almost invariably accompanies colonialism (Blauner 1972; Talbot 1981). Cultural suppression is a legal process that involves deculturation—eradication of the indigenous people’s original traditions—followed by indoctrination in the ideas of the dominators so the colonized may themselves assist the colonial project (Talbot 1981). The process, in which the colonized are removed from their cultural context through enslavement or transplantation, involves the abandonment of culture and the adoption of new ways of speaking, behaving, and reasoning.

The destruction of indigenous cultures includes the eradication of their judicial systems. Law has repeatedly been used in this country to coerce racial/ethnic group deference to Euro-American power. Understanding this history of colonization is essential because Native criminality/deviancy must be seen within the context of societal race/ethnic relations; otherwise, any account of crime is liable to be misleading. Any explanation of Native criminality that sees individual behavior as significant overlooks the social and historical origins of the behavior. A thorough analysis of Native criminality must include the full context of the criminal behavior—that is, their victimization and the criminalization of Native rights by the United States government.

NATIVE WORLDS

As with other social worlds, Native societies are the result of the world-building activities of their members. This unending pursuit contains a variety of aspects, some of which are included in a social phenomenon known as social control. This area, which includes the concept of deviance and the manner and appearance of its construction, is my concern.

There is a widely held belief that the Americas’ indigenous people were completely lawless. Nothing could be further from the truth. Although the standards of right and wrong varied widely, as did the procedures for punishing transgressors, Native groups all exercised legal systems founded upon their own traditional philosophies.¹ The law was a part of their larger worldview (Barsh and Henderson 1980; Deloria and Lytle 1983, 1984; Yazzie 1994). According to Rennard Strickland, “law” is more than statutes and balanced scales:

Law is also a Cherokee priest listening to the spirit world while holding the sacred wampums in hand and the Cheyenne soldier-society warrior draped in the skin of a wolf. In fact, a command from the spirit world can have greater force as law than the most elaborate code devised by the most learned of men. For law is organic. Law is part of a time and a place, the product of a specific time and an actual place. (1975, xiv)

As Deloria and Lytle write,

Indian tribes, as we shall see, were once primarily judicial in the sense that the council, whether it was that of a village, a league of tribes, or a simple hunting band, looked to custom and precedent in resolving novel and difficult social questions that arose. . . . The task of the council, when it had a difficult question to resolve, was to appeal to that larger sense of reality shared by the people of the community and reach a decision that the people would see as consonant with the tradition. Few new laws or customs were needed and when these occasions presented themselves the homogeneity of the community made the adoption of the innovation simple. (1983, xi)

We are reminded that Indian Country² had no prisons:

. . . as Native people, we believe in truth, and not the facts. That is why we never had to sign a receipt, because we knew we were dealing with each other in an honest way. . . . We never had locks on our tipis . . . go ahead and dig all you want to search for the history of the Americas, and you will never find evidence of prisons. (Deere 1980; quoted in Weyler 1982, 98)

Native people continue to survive and reach forth, extending, building Native worlds as best they are able. Part of these efforts concerns the recuperation of Natives whose path takes them outside the natural order or across Euro-American legal lines. It is these Natives and the manner of their contact with other Natives and Euro-Americans, especially the “official” ones, that is now our concern. The United States has the distinction of incarcerating more of its people than any other country. Natives are now locked up in great numbers, jailed in buildings constructed in line with the system of legislated law, which the United States proudly and forcefully imposes on Natives.

Prior to the coming of this law and its jails, Natives were free to follow laws seen as coming from a natural, external place instead of flowing from the pens of men. On occasion, Natives did not follow Native ways. How much this happened is difficult to ascertain, but it surely was little compared to the deviance apparent in today’s society. Natives involved in these situations knew what was amiss and met together to search out a remedy. These meetings, authorized by the wise—whose age, gifts, and spirit were acknowledged—looked for a path that would compensate for the injured and recuperate the offender.

The primary goal was simply to mediate the care to everyone’s satisfaction. It was not to ascertain guilt and then bestow punishment upon the offender. Under Anglo-American notions of criminal jurisprudence, the objectives are to establish fault or guilt, and then to punish. . . . Under the traditional Indian system the major objective was more to ensure restitution and compensation than retribution. (Deloria and Lytle 1983, 111)

Precontact Native criminal justice was primarily a system of restitution—a system of mediation between families, of compensation, of recuperation. But this system of justice was changed into a shadow of itself. Attempts were made to make Natives like white people, first by means of war and, when the gunsmoke cleared, by means of laws—Native people instead became “criminals.” Criminal meant to be other than Euro-American. We will see that Euro-Americans sought to delegitimize Native worlds and attacked their constructs, including Native justice systems, which were systematically torn down, eroded, and replaced.

One damaging effect of colonization has been its influence on the structure of Native governments. The expansion of Euro-American legality contributed greatly to the further decline of tribal systems, already rocked by foreign invasion. For instance, except in a few early treaties, in regulating Native-white relations, Euro-Americans insisted that disagreements and crimes be disposed of in Euro-American fashion.³ Consequently, political discretion, generally handled in Native societies by a council of elders and the clans, came to be assumed by Euro-Americans, greatly weakening the traditional councils.

FENCING INDIAN COUNTRY: DISRUPTIVE POLICY AND LEGISLATION

By the end of the eighteenth century the newly independent United States had cleared the eastern seaboard of most of its original inhabitants (Josephy 1984). At the turn of the century, the most intense wave of westward migration began in earnest, driven by land speculation. Speculators, often backed by New England and European banks, cheaply purchased large tracts of land from the federal government, who had procured it (often forcibly) from Native nations. The land was sold in smaller tracts, at considerable profit, to white settlers (Johansen and Maestas 1979).

Colonialism, thus, did not end with the Declaration of Independence. The United States continued colonizing after its revolutionary war. All the characteristics of colonialism—unilateral political control, economic exploitation, and cultural oppression—were present in Euro-American expansionism in the nineteenth century. Colonialism remained, albeit manifested more subtly.

Racialized oppression, then as now, was not a discrete phenomenon independent of larger political and economic tendencies. Nineteenth-century laws and their enforcement can readily be seen as instruments for maintaining social and economic stratification created in the centuries before. In a greedy, expanding young nation building law and custom on the ownership of property, crime control was part of the maintenance of that sacred foundation. Law-enforcement officials were not simply bystanders in this history; they participated in and encouraged lawlessness in the interests of suppressing minorities. As remaining Native lands were seized and resisting tribes massacred, federal officials often looked the other way or were actively involved (Brown 1970). Genocide against Native people was never seen as murder. Indeed, in the Old West the murder of Natives was not even a crime (Heizer 1974; Hurtado 1988; Schwartz and Disch 1970). Native men and women, their humanity cast aside, were commonly referred to as “bucks” and “squaws.” Those not exterminated faced dire circumstances. For instance, the state of California enacted “The Act for the Government and Protection of Indians” in 1850, amended in 1860. Despite the title of the act, it allowed white people to simply take Native children, those orphaned or supposedly with parental consent, as indentured slaves (Hurtado 1988). The law also “virtually compelled Indians to work because any Indian found ‘loitering or strolling about’ was subject to arrest on the complaint of any white citizen, whereupon the court was required within twenty-four hours to hire out arrestees to the highest bidder for up to four months” (Hurtado 1988, 130).

During early contact with Europeans, tribes retained exclusive jurisdiction over such issues as law and order. This right followed the assumption that tribes possessed complete sovereign powers over their members and lands. Tribal sovereignty, as defined by Euro-American law, was upheld in two early major U.S. Supreme Court cases: The Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832). Tribes did not intend to give up their culture, social organization, or self-government; therefore, according to treaties, tribes were to retain their system of criminal justice (Ortiz 1977).

Native legal and political status changed, however. One factor in this transformation was the view Europeans and Euro-Americans historically had, and continue to have, of Natives. Indigenous people’s land and other resources were desired by ethnocentric Europeans and later Euro-Americans, who expressed their cultural superiority as the justification for the expropriation of Native lands. Natives were regarded as “savages,” legitimizing the removal of Natives from the westward path of civilization’s progress (Berkhofer 1978). The ideology of Native inferiority was used to justify both genocide and attempts to supposedly assimilate Natives into the dominant society. Whatever the intent, the common denominator was the assertion that Native societies were lower on the evolutionary scale. Accordingly, the stereotype of the “savage, inferior” Native was carefully developed, and Natives were seen and treated as deviant. In this manner, the ground was prepared for the entry of “modern, rational” Euro-American law into Indian Country.

One product of colonialism is, thus, the controlling of indigenous people through law. The values that ordered Native worlds were naturally in conflict with Euro-American legal codes. Many traditional tribal codes instantly became criminal when the United States imposed their laws and culture on Native people. New laws were created that defined many usual, everyday behaviors of Natives as “offenses.” The continuous clashing of worlds over the power to control Native land and resources constantly brought Native people in conflict with the legal and judicial system of the United States, which demonstrates the political intent and utility of Euro-American laws.

Crucial to understanding Native criminality is knowledge of the disruptive events brought about by assimilationist, racist policy and prohibitive legislation mandated by federal, state, and municipal governments. These policies and accompanying criminal statutes were concerned with cultural genocide and control as the tenacious Euro-Americans, seeking to replace tribal law and order with their own definitions of criminality and due process, increasingly restricted the power of Native nations.

The Euro-American surge to gain legal and judicial control over tribes included the creation of the Bureau of Indian Affairs (BIA). To relieve the military while retaining control of tribes, the federal government created the BIA within the War Department in 1824. In 1849 the BIA was transferred to the Department of the Interior. Additionally, the early part of that same century saw the federal government’s first attempts to impose federal criminal laws on nonconsenting tribes. The effort to facilitate Euro-American encroachment on Native lands was led by the U.S. Congress, which awarded itself federal jurisdiction over Natives by passing the General Crimes Act in 1817. The tribes retained exclusive jurisdiction only over offenses in which both the offender and the victim were Native (Barsh 1980). In all other cases, tribes now held concurrent jurisdiction with the federal government.

Another intrusion by the federal government into Native affairs was launched in 1825, when Congress passed the Assimilative Crimes Act. This act expanded the number of crimes that could be tried by federal courts when offenses were committed on Native land. The act is limited to interracial crimes and is not applicable when crimes are committed between Natives on reservations (Deloria and Lytle 1983).

From the mid– to late nineteenth century, the overriding task of the federal government was, in theory, the “civilizing” or “Americanizing” of tribes (Prucha 1973). In practice, the goal seems to have been to obtain Native land and resources. This era featured the “Friends of the Indians,” a group of Euro-Americans that worked in common to “save” Natives from their “primitive” ways. This well-placed group, which can be likened to Howard Becker’s (1963) moral crusaders, applied considerable political pressure in an effort to get their reforms enacted. The reformers, solidly agreeing that the Americanization of Indians required that they be brought under the protection and restraints of Euro-American law, worked to bring a special set of courts and procedures to the reservations. These procedures were to hasten their illusive assimilation.

The influential reformers pressured the Department of the Interior to take action against the “savage and barbarous” practices of the Natives (Prucha 1973). The vehicle chosen to accomplish this task was the Court of Indian Offenses. These courts were composed of Native judges, handpicked by BIA Indian agents, who satisfied the agents, not tribal communities (Deloria and Lytle 1983). The judges were supposed to be men with high moral integrity who “engage in civilized pursuits”; the requirements stated also that “no person shall be eligible to such appointment who is a polygamist” (Morgan 1882; quoted in Prucha 1973, 301).⁴ Preference was given to those who read and wrote English. The judges were to bring Natives “under the civilizing influence of law” (Teller 1883; quoted in Prucha 1973, 299). Indirect rule, along the British colonial model, was thus established with the formation of Indian police and judges in the latter part of the nineteenth century (for a full description, see Hagan 1966). These men were employed to police other Natives according to Euro-American law in another attempt to Americanize indigenous people.

The regulations for the Court of Indian Offenses were drawn up in 1883 by Thomas Morgan, then Commissioner of Indian Affairs. Morgan listed offenses and the appropriate punishments. The following constituted offenses: plural or polygamous marriages; immorality; intoxication; destroying property of other Natives (this speaks to mourning practices: destroying the property of the deceased was customary in many tribes); any Native dance “intended and calculated to stimulate the warlike passions of the young warriors of the tr...

Inhaltsverzeichnis

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgments
• Introduction
• Part I. Colonization and the Social Construction of Deviance
• Part II. Creating Dangerous Women: Narratives of Imprisoned Native American and White Women
• Epilogue
• Appendix: Violations and Descriptions
• Notes
• Bibliography
• Index