Academic journal article ATQ (The American Transcendental Quarterly)

Co-Habitation and Co-Optation: Some Intersections between Native American and Euroamerican Legal Systems in the Nineteenth Century

Academic journal article ATQ (The American Transcendental Quarterly)

Co-Habitation and Co-Optation: Some Intersections between Native American and Euroamerican Legal Systems in the Nineteenth Century

Article excerpt

The importance of studying intersections between Native American and Euroamerican legal systems in the nineteenth century cannot be underestimated. While the two legal systems had undoubtedly had contact before that time, it was during the middle and late 1800s that Euroamerican policy-makers began to take notice of the indigenous legal systems around them and then began to see what they viewed as flaws in those systems of justice. By the end of the nineteenth century, Native Americans found that their justice systems had essentially been replaced by a Euroamerican-inspired system that was foreign to them.

Focusing on the transformation of Native American to Euroamerican justice serves multiple purposes. First, such a focus helps us understand the past and adds contextual meaning to everyday modern activities. Such intersections also provide a lens through which to view Indian-White policy. Finally, the actions taken historically and the results then obtained served as a blueprint for the future (which includes the current day).

This article presents information on two important intersections where the legal systems of the two sovereigns clashed. The first briefly traces the progression of tribal justice systems from systems based entirely in Native thought to blended indigenous systems which contained elements from both Native American and Euroamerican philosophies to systems nearly devoid of Native American practices. The second intersection deals with the effects of a changing legal system on the Osage Nation as a case study. This section focuses on the effects felt by Osages, especially Osage women. Together, the two intersections illustrate the intense effects of law on Native Americans.

The Co-optation of Tribal Justice Systems in the Nineteenth Century

One of the few things that can be said about pre-Columbian Native American justice systems is that they were free of white influence. Because each tribal nation had its own legal norms and ways of dealing with deviance, many variations of justice existed in what was later to become the United States. An emphasis on restorative justice characterized most indigenous legal systems so that violations of another person or another's property necessitated some form of compensation for the victim (Meyer, 1998) and shame and public ridicule were common ways tribal members sought to ensure conformity by their fellows (Young 23). While some systems included punitive elements (e.g., corporal penalties, banishment, or death), these sanctions did not appear to be the central focus of the justice system, and punishment tended to be reserved for acts that were profoundly serious. Of interest, no tribal justice system relied on the use of incarceration as a penalty.

When Europeans first arrived on this continent, some commented that there was no justice system, but that crime among Native Americans seemed rare (e.g., Yazzie 8; Zion & Cloud 8). Despite their failure to see or understand indigenous justice systems, however, the first Euroamericans tended to view justice as the purview of each respective Native nation. As such, Native American justice systems were safe from meddling, for a time.

As time progressed, however, Euroamericans began to take more of an interest in tribal justice. Classification of some tribal justice responses as barbaric (e.g., the carrying out of some gruesome death sentences was reported in elaborate detail in the media and other print outlets) or overly lenient (e.g., restitution ordered for what were categorized as capital crimes in the colonies) reminded Euroamericans of the presumed superiority of their own systems. Euroamericans were also bothered by the seemingly lax approach taken by Native Americans; justice system leaders tended to be informally selected from among tribal elders rather than formally appointed and trained personnel. Finally, Euroamericans who lived in communities bordering Native American lands were sometimes outraged at the perceived lack of justice among their neighbors, especially when members of their own communities were victimized by Native Americans. …

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