Courts of Indian Offenses, Courts of Indian Resistance

Alexandra Fay* March, 2026

In the late nineteenth century, the Department of the Interior created the Courts of Indian Offenses with the express goal of eliminating elements of Native culture through the coercive power of criminal law. The courts stood on dubious constitutional grounds, were almost universally replaced by tribal courts in the twentieth century, and have been widely derided as crude assimilationist tools.

This Article examines the Courts of Indian Offenses to study how law and legal institutions operate as sites of colonial struggle. The Courts of Indian Offenses were formally created to criminalize Native culture. In practice, they were more complicated. Native judges entrusted with Washington’s assimilationist designs frequently declined to enforce the “Indian offenses,” instead using the courts to resolve crimes and disputes recognized by their tribal communities.

This Article uses three decades of annual reports from the Commissioner of Indian Affairs and archival records from three Courts of Indian Offenses to illustrate the courts’ structure and function at the turn of the twentieth century. It engages with concepts from subaltern studies, tribal legal studies, and law and colonialism literatures to explore how tribal law adapted and survived despite the formal imposition of Anglo-American legal forms. The Article ultimately suggests that the Courts of Indian Offenses may be understood as contested institutions through which tribal leaders preserved tribal self-government against the imperatives of empire.

Introduction

In 2022, the Supreme Court heard a double jeopardy case with a striking imperialist history. In Denezpi v. United States, the Court considered whether the Courts of Indian Offenses—now universally known as “CFR Courts”¹—benefited from the dual sovereignty doctrine such that a defendant could be subsequently prosecuted in federal court.² The inquiry dredged up a “curious” episode in American legal history.³

The Courts of Indian Offenses were introduced in 1883, pursuant to a letter from Secretary of the Interior H.M. Teller to Commissioner of Indian Affairs Hiram Price.⁴ The Office of Indian Affairs implemented these reservation courts without any Congressional authorization.⁵ The courts were established for the express purpose of “civiliz[ing]” Indians: to make Native people abandon their “savage and barbarous practices” by imposing a criminal legal regime.⁶ The so-called “Indian offenses” included traditional dances, plural marriage, funerary rites involving the destruction of property, and the traditional practices of medicine men.⁷ Throughout the late nineteenth century, calls for “law for Indians”⁸ stressed the federal government’s obligation to “save this race from itself.”⁹ This blatantly racist, colonial project can be understood as a relic of its time. It may be a shock to the average American that the Courts of Indian Offenses still exist today. In fact, the Denezpi majority endorsed their continued operation and sovereign political status as tribal institutions.¹⁰

The Courts of Indian Offenses no longer prosecute the Indian offenses set out by Commissioner Price. In the twentieth century, the federal government retreated from its policy of coerced assimilation and allowed tribes to create their own judicial systems.¹¹ As a result, sui generis tribal institutions replaced most Courts of Indian Offenses. The few remaining courts underwent a dramatic transformation. Today’s CFR courts essentially operate as tribal courts, run by tribal judges, applying tribal law.¹² Although those tribal laws are technically assimilated into the Code of Federal Regulations¹³ and the Department of the Interior formally retains ultimate authority over the courts,¹⁴ one can persuasively argue that modern CFR Courts derive their ultimate source of power from the tribes’ inherent sovereignty.¹⁵ In Denezpi, the Court was convinced of as much.

In addition to the primary legal questions of dual sovereignty and double jeopardy, Denezpi raised questions concerning the actual historic function of the Courts of Indian Offenses. The dissent recited a conventional narrative lambasting the assimilationist imposition of criminal law that subjected tribal communities to the legalized tyranny of federal agents.¹⁶ But the law professor amici suggested a different story.¹⁷ The professors agreed on the imperialist federal impetus behind the establishment of the courts, observing that “[f]ederal officials hoped to leverage these courts to transform Native culture and extinguish traditional practices.”¹⁸ But they suggested a radically different reality: “In practice, these courts largely served as extensions of tribal communities, with Native judges—often elected by tribal members—enforcing tribal law with little regard to the federal regulations.”¹⁹ According to the amici, “the courts’ reality rarely corresponded to the agents’ assimilationist aspirations.”²⁰

In this way, Denezpi evoked a limited but longstanding literature on the contested function of the Courts of Indian Offenses. Throughout the 1880s and 1890s, Indian Affairs agents repeatedly lauded the courts as successful civilizing interventions.²¹ Yet the Meriam Report of 1928 suggested that hardly one in ten judges was familiar with the rules the courts purported to enforce.²² Ray Brown, one of the Meriam Report’s authors, wrote independently that the courts were very different from Anglo-American courts, especially in how “the deliberations of the judges are governed not so much by legal rules and principles as they are by the common sense and native intuition of the Indians who preside over them.”²³ In 1966, William Hagan, whom the professor amici regard as the courts’ “principal historian,”²⁴ described the courts as a fusion of legal traditions: “Anglo-Saxon legal concepts . . . buil[t] on native institutions.”²⁵

More recent scholarship has emphasized the ways in which the courts undermined customary tribal law. In 1983, Vine Deloria Jr. and Clifford M. Lytle described the courts as components of a “transitional period” in tribal governance, in which early reservation governments continued traditional forms of community oversight, “albeit in the whites’ institutional clothes.”²⁶ According to Deloria and Lytle, some of the courts had at times earned the respect of their reservation constituents.²⁷ However, Indian judges ultimately “served at the pleasure of the agent, not the community,” such that a majority of tribes were eager to “rid themselves of this hated institution” upon the arrival of the Indian Reorganization Act.²⁸ In 2021, Angelique EagleWoman described the courts as “instrumentalities of the assimilation policy” at odds with the guarantees of the federal Constitution.²⁹ In 2023, Kekek Stark described the Courts of Indian Offenses as colonial tools that served the broader process of destroying and replacing tribal law.³⁰

Stark and the other critics are undoubtedly right—the Courts of Indian Offenses were designed to refashion tribal social, spiritual, and legal traditions into an Anglo-American model with zero regard for tribal self-determination. The tribal law scholars mentioned above correctly recognize that the courts succeeded in uprooting and replacing traditional tribal legal procedure. At the same time, the early non-Native observers could also have been correct in concluding that the courts were far from carbon copies of their state, federal, or territorial analogs. The courts were undeniably transformative impositions, but the extent to which they articulated Anglo-American or tribal law remains disputed in the literature. The Denezpi professor amici presented one of the boldest assertions, claiming that the courts were essentially practicing tribal law.³¹

In this Article, I explore this departure of function from purpose. I take a deeper look at the claim of the professor amici to examine the actual procedure and substance of the Courts of Indian Offenses. My intervention combines the novel application of critical theory and methodology with a fine-grained focus on unexamined archives to understand how these courts operated on the ground. The Courts of Indian Offenses exemplify how American criminal law can operate as a colonial tool of coerced assimilation. Yet they are simultaneously instructive as to how colonized peoples can retain power through strategic accommodation. As Keith Richotte Jr. observed, “[W]hile tribal communities were certainly acted upon by colonial forces in the Allotment Era, they did not merely accede to happenings of the day.”³² Rather, they made difficult choices and strategic adaptations to preserve tribal sovereignty at a time when the federal government was utterly hostile to the notion of tribal survival.³³ I explore the Courts of Indian Offenses from this frame. I argue that the Courts of Indian Offenses are best understood as forums of Native resistance, in which tribal leaders preserved tribal autonomy within a colonial legal framework by formally working with federal agents.

This historical study finds that while the Courts of Indian Offenses frequently functioned as effective venues for resolving small claims and misdemeanors, they hardly achieved the Secretary’s overarching goals. A local Indian agent predicted this result just a year after the courts’ establishment. As John W. Scott, the federal agent assigned to the Ponca, Pawnee, and Otoe Agency in the Indian Territory, observed in 1884:

In settling the ordinary disputes and misunderstandings that occasionally arise among the Indians, I think they will be a great help and relief to the agent. As to their efficiency in preventing or punishing what are technically termed Indian offenses, such as bigamy, the sun-dance, giving away property at funerals, &c., I am by no means sanguine. I think it will be difficult to persuade Indian judges to regard and punish as crimes acts which they and their people have from time immemorial looked upon as perfectly proper and right. What is needed is a radical change of sentiment among the Indians, and this must be effected by moral means. Coercion will never accomplish it.³⁴

Agent Scott suggested that the Courts of Indian Offenses were fit for local dispute resolution but inadequate for the elimination of entrenched cultural practices. Instead, he recommended that missionaries and schools would be more effective at transforming Native culture.³⁵ Indeed, by the 1910s, the Commissioner’s reports hardly mentioned the Courts of Indian Offenses, instead focusing on educational initiatives as the best means to induce cultural change.³⁶

Scott’s observations are backed up by the court dockets included in agent reports, compiled in the Commissioner’s annual report to the Secretary of the Interior, as well as the local records of Courts of Indian Offenses. In the twenty-one years after the official advent of the courts, 1,565 discrete cases were catalogued in the Commissioner’s annual reports.³⁷ Of those, 28 were for plural marriage, 14 were for medicine practices or conjuring, 2 were for dances, and 41 were for the destruction of property or theft.³⁸ These Indian Offenses accounted for 1.79%, 0.89%, 0.13%, and 2.62% of the total reported cases, respectively, or 5.43% altogether. As these numbers show, the Courts of Indian Offenses were spending very little time prosecuting Indian Offenses. Instead, they managed property and family disputes, ordinary criminal offenses, and public intoxication.³⁹

The courts’ personnel further complicate the picture. Although agents often sought to fill the courts with judges and clerks they deemed “progressive” (i.e., willing to adopt white American norms and customs),⁴⁰ some prominent judges openly defied the professed goals of the Code of Indian Offenses. Judge Shorty White-grass served on the Court of Indian Offenses for the Blackfeet Nation. In 1899, his performance from the bench so impressed the Board of Indian Commissioners that they likened him to a member of the House of Representatives.⁴¹ In the very same paragraph, the Commissioners also noted that Judge White-grass was a respected medicine man who spent every Sunday practicing traditional religion with the “other conservatives of the tribe.”⁴² Judge Quanah Parker, a famed Comanche leader, served as a judge for the Kiowa Comanche Court of Indian Offenses. Despite an express ban on polygamist judges, Judge Parker assumed the bench with no fewer than five wives.⁴³ He married another woman during his tenure and maintained his position, despite outrage from Washington.⁴⁴ As these men demonstrate, Indian judges were not always models of assimilation, nor were they wholly under the control of federal agents.

As previewed above, this Article relies heavily on archival sources. First, I use the annual reports by the Commissioner of the Office of Indian Affairs to the Secretary of the Interior. These reports include summaries and policy commentary by the Commissioner as well as hundreds of pages of reports from federal agents in the field.⁴⁵ For this study, I use reports spanning from 1875 to 1915. Second, I use the local archival records of Courts of Indian Offenses for the Yakama, Pima, and Standing Rock Agencies. These records range from the 1880s to the 1920s, with more complete documentation from the early twentieth century. Each was chosen for the relative completeness of its records and for regional diversity. These courts are featured as case studies in Part IV.

In my use of these archival sources and engagement with the older secondary literature, I borrow methods and insights from subaltern studies, tribal legal studies, and the broader law and colonialism literature. Scholars in these fields work to recapture the lives, stories, and political relations of peoples who rarely controlled their representations in the archive. These fields attempt to reckon with the distortions of imperial historiography, find meaning in archival absences, and read the recorded past against the grain.

Part I starts with a discussion of methods and assumptions. Part II reviews the pertinent legal and political context of the late nineteenth century, focusing on the state of jurisdiction in Indian country and the structure of the Office of Indian Affairs in the postbellum administrative state. This section uses studies of bureaucracy to examine the roles, interests, and powers of reservation superintendents and lower-level Indian Affairs employees, including Native appointees. Part III considers the Courts of Indian Offenses from the 1880s to the 1920s in terms of purpose, structure, and function. Part IV examines three Courts of Indian Offenses to better understand their origins, their relationship with tribal politics and tribal legal history, their typical caseloads and procedures, and their limitations. The Yakama Agency case study demonstrates how the Court of Indian Offenses was imposed onto an existing tribal court. The Pima Agency case study illustrates how the Court of Indian Offenses served as a space for tribal politics and how court actors appealed to the formal power of a largely absent agent to service internal tribal power struggles. Finally, the Standing Rock case study interrogates the meaning of resistance by exploring the Court of Indian Offenses’ role in the assassination of Sitting Bull and the violent suppression of the Ghost Dance movement. These three case studies add depth to the overarching story depicted in the Commissioners’ Reports. While all three cases feature tribal autonomy, they also underscore the significant variation across the Courts of Indian Offenses.

I. Tribal Law and Critical Historiography

This Part serves as methodological framing. First, I identify the problems with studying Indigenous law through colonial records, and I reach for methodological solutions. I recognize the necessary limitations of such a project and briefly discuss the significance of researcher positionality. Second, I address assumptions and expectations concerning the history of tribal law. In broad strokes, I discuss the historic invisibility of tribal law to Western observers, the disruption of tribal law in the process of colonization, and the survival and transformation of tribal law. Third, I engage with the law and colonization literature to draw out a nuanced conception of colonial law that frames this inquiry.

A. Reading Against the Grain

The colonial archive presents a historiographic problem. While colonial records are an essential resource for historical scholarship,⁴⁶ they are attended by significant limitations.⁴⁷ As Ranajit Guha remarked, “Historians know all too well how the contents of a series in an official archive or a company’s record room derive much of their meaning from the intentions and interests of the government or the firm concerned.”⁴⁸ Those records are mediated not only by conscious interests, but also deeply held “Eurocentric assumptions that periodize colonial populations and Europeans as pre-modern/modern and pre-political/political.”⁴⁹ Thus, nineteenth century federal Indian agents reported on both the remarkable, inherent peacefulness of Native peoples allegedly living with neither violence nor law,⁵⁰ as well as the great need to civilize Native peoples by imposing Anglo-American legal norms.⁵¹

Historians in the subaltern studies movement⁵² and adjacent colonial and Indigenous history fields⁵³ have developed critical historiographies to address the problems of the colonial archive and draw out truth from distortion. In its efforts to capture the lives and conditions of people at the lowest levels of imperial society, subaltern studies pursues textual analysis that “bend[s] closer to the ground in order to pick up the traces of a subaltern life in its passage through time.”⁵⁴ In a method commonly known as reading “against the grain,”⁵⁵ critical historians and literary theorists work to deconstruct texts “along lines of power and hierarchy.”⁵⁶ Reading against the grain requires interrogating the power relations that underwrite the historical sources before us.⁵⁷ This approach involves searching for meaning in the absences of those left out of the records and the processes that created them.⁵⁸ It looks not only for the experiences of individuals, but also for the power structures that constrained them.⁵⁹ Secondary literature can also be read against the grain. Throughout this project, I engage with William Hagan, “the principal historian” of the Courts of Indian Offenses. While I rely on his considerable research, I approach it critically, wary of how he implicitly endorses a developmentalist narrative of Native nations.⁶⁰

This historiographic approach attempts to make the most of the colonial archive; it does not pretend to rescue the past completely. Subaltern history is, in essence, the missing narratives that can never fully be recovered;⁶¹ in Gayatri Spivak’s famous formulation, “The subaltern cannot speak.”⁶² This fundamental limitation in colonial history informs my inquiry. As I attempt to recover the practices of and the political context for the Courts of Indian Offenses, I do not presume to depict a complete picture.

Just as the roles and identities of the record-making agents and court personnel influence the archive, the roles and identities of modern scholars inevitably influence their scholarship.⁶³ Past studies of tribal courts by non-Native researchers have at times featured unduly critical characterizations based on limited research and inadequate knowledge.⁶⁴ All researchers carry assumptions that impact their writing, especially when faced with an incomplete record. This Article is based on several conscious assumptions: first, that tribal law existed well before contact, though often in forms unrecognizable to Western law; second, that colonization is a violent and coercive process, and criminal law is often complicit; third, that tribal law survives colonization; and fourth, that Native people exercise agency despite colonial coercion, resulting in many forms of resistance and survival. The bases for these assumptions are explored in the remainder of this Part.

B. Studying Tribal Law

American attitudes toward tribal governments have long been informed by the mistaken notion that Native nations lacked law prior to colonization.⁶⁵ Even where Western scholars identified forms of social control analogous to Anglo-American law, they too often derided tribal systems as inferior.⁶⁶ This profound translation error can be explained by substantial differences in the operation of tribal and Anglo-American law, erosion of tribal law by the violent upheaval and dispossession of colonization, and potent European notions of racial superiority exacerbated by material incentives.

In many places, tribal law has looked very different from Anglo-American law.⁶⁷ As Val Napoleon asserted, “law is culturally bound,” such that “it is difficult to see and understand law in other cultures.”⁶⁸ Cultural context shapes the structure and operation of legal systems. Indigenous legal processes are more often implicit, informal, and decentralized compared to Western law and, hence, less cognizable to Western legal observers.⁶⁹ As Kekek Stark has described, tribal law is often better understood in terms of “social, kinship, and clan obligations and responsibilities,” as opposed to targeted prohibitions to restrain antisocial behavior in individuals.⁷⁰ Such systems of social obligation were often transmitted through storytelling and enforced through social pressure and social ridicule.⁷¹ Anglo-American law looks remarkably centralized and formal in comparison. Because of the relative invisibility of tribal law, American observers have at times noted the effectiveness of tribal law (i.e., in restraining antisocial behavior and preventing violence) without actually recognizing tribal law itself.⁷²

Tribal law underwent significant transformation due to the violent disruption of colonization. Following contact, tribal law had to adapt to significant social, economic, and political developments.⁷³ American history is an incredibly violent place.⁷⁴ Colonial technologies of violence remade Native social and political worlds, which were already rocked by the Old-World diseases that decimated Native populations.⁷⁵ When communities were thrown into crisis, when systems of social obligation were disrupted and laws were broken without recourse, tribal legal systems lost legitimacy and broke down.⁷⁶ Meanwhile, the forced relocation of Native nations to reservations further facilitated the destruction and transformation of tribal law.⁷⁷ Reservations cut across political boundaries, often dividing and grouping Native people in novel ways.⁷⁸

As the United States undermined tribal legal systems through policies of removal, Americans also constructed a racial expectation of Indian lawlessness. As Philip Deloria has described, Americans developed expectations of violent Indians,⁷⁹ expectations that enabled the American conceit of defensive conquest.⁸⁰ These notions of Indian violence and Indian lawlessness—distinct elements of the broader racist trope of Indian savagery—facilitated the expansion of the American empire by justifying dispossession⁸¹ and undercutting the legal force of tribal sovereignty.⁸² In the nineteenth and twentieth centuries, the specter of Indian lawlessness justified federal imposition of Anglo-American criminal law and legal norms onto Native nations, greatly undermining tribal law and tribal jurisdiction in the process.⁸³ Never mind that, in many instances, the bulk of violence around reservations came from white settlers.⁸⁴

Despite these compounding factors working to delegitimize and eliminate tribal law, tribal law survived. Transformed by American colonialism, tribal law often adapted to reflect Anglo-American legal norms and structures.⁸⁵ Tribal leaders, jurists, and scholars today work to articulate and enshrine traditional Indigenous legal principles in contemporary tribal legal systems.⁸⁶

C. Colonial Law as a Site of Struggle

Settler colonialism produces categories of colonizer and colonized—dominant and subaltern—characterized crudely by a dramatic power imbalance. While the general power relation is an essential feature of colonization, neither class is static nor uniform.⁸⁷ We should understand subaltern and dominant groups as mutually interdependent categories whose law and politics remain in dialogue.⁸⁸ And within subaltern or Indigenous classes, we should expect a multitude of strategies for survival and resistance.⁸⁹ Engaging with colonial law and colonial legal institutions is one well-documented strategy for contesting colonial domination.⁹⁰

Colonial law can be understood as both a coercive tool of empire and a critical site for struggle and subversion.⁹¹ Renisa Mawani observed that because colonial law is typically plural and inconsistent, it offers unique opportunities for contestation.⁹² In Part III, I argue that this expectation of regional and local variation coupled with local dependence by federal agents on Native leadership made the Courts of Indian Offenses likely sites of resistance through formal participation. Participation does not necessarily mean complicity.⁹³ According to Mawani, colonized peoples often “collaborated strategically with Europeans at the very same time that they resisted colonial legal rule.”⁹⁴ Even as engagement with colonial institutions can be subversive, it may also undermine movements for revolutionary change and collective liberation.⁹⁵

Even as it facilitates imperial goals, colonial law places limits on empire. As Sally Engle Merry asserted: “Law often serves as the handmaiden for processes of domination, helping to create new systems of control and regulation. At the same time, it constrains these systems and provides arenas for resistance.”⁹⁶ Merry identified a few ways in which colonial law can be used to constrain empire. Law can enforce limits on the brutality and exploitation tolerated by settler society.⁹⁷ Through colonial law, Native nations can “mobilize the ideology of the colonizers” to protect Native lands and Native rights.⁹⁸ Native nations can co-opt colonial law and make colonial legal forms compatible with Native social and political norms.⁹⁹ In these ways, local courts can serve as sites of colonial contest.¹⁰⁰

Of course, contesting colonization in the colonial legal arena is far from a fair fight. Merry noted, “[C]olonial officials and settler populations exerted vastly greater power than colonized groups.”¹⁰¹ Colonial law—and criminal law especially—serves settler sovereignty and generally undermines Indigenous rights.¹⁰² In nineteenth-century America, settler communities abused legal procedure to escape punishment for crimes against Native people, thus using the courts to legitimate colonial violence.¹⁰³ As Lisa Ford has argued, the theoretical perfection of settler sovereignty in the Anglophone world has demanded the supremacy of settler jurisdiction and the obliteration of Indigenous customary law.¹⁰⁴ Destruction and domination may well be the primary role of colonial law. This Article explores the historical limitations of that mission, paying particular attention to how Native adaptation and accommodation of colonial law managed to carve out spaces of resistance.

Accommodating colonial legal terms can be especially useful when it enables Native autonomy and, in effect, sovereignty. According to Lauren Benton, we should understand local autonomy by Indigenous political entities as a normal pattern of empire.¹⁰⁵ As Benton wrote, Indigenous authorities can “exercise something very close to the full range of sovereign prerogatives without posing a challenge to imperial rule precisely because their relation to sovereign power was defined as subordinate.”¹⁰⁶ In other words, formal legal subordination may actually allow for self-government. This model of “layered sovereignty”¹⁰⁷ was common across European colonies.¹⁰⁸

In all these ways, collaboration with colonial law can work to subvert the goals of empire and retain tribal sovereignty. This Article approaches the Courts of Indian Offenses with the expectation that Native participation in colonial institutions is often a means of survival and resistance. And it is politically very complicated.

II. Indian Policy and Bureaucracy in the Late Nineteenth Century

In the late nineteenth century, the Courts of Indian Offenses operated simultaneously as instruments of federal policy and structures within a decentralized federal bureaucracy. This Part situates the courts and the judges who ran them in this context. First, I consider the courts in terms of law and policy. The Courts of Indian Offenses filled a perceived jurisdictional gap in the late nineteenth century.¹⁰⁹ They were also designed to be transitionary tools expected to complement allotment and, ultimately, Indian citizenship. Second, I consider the courts as extensions of a growing federal bureaucracy. I situate the Office of Indian Affairs in the nineteenth -century administrative state and describe its organization and personnel. I examine the roles, interests, and powers of the federal employees involved—the non-Native reservation agents, as well as the Native judges and police officers—to better understand their actions.

A. Indian Courts in the Assimilation Era

The history of federal Indian policy has long been divided into “eras” characterized by distinct federal aims.¹¹⁰ The exact number of eras and their periodization is not universally fixed; the 2024 edition of Cohen’s Handbook of Federal Indian Law, the classic treatise of federal Indian law, now identifies eleven policy eras—from early contact in colonial British North America (1607–1776) to the current era of “tribal resurgence and governance” (1980–present).¹¹¹ The period spanning the 1880s through the early 1900s is characterized by an incredible expansion of federal power and a federal commitment to assimilation.¹¹² The Courts of Indian Offenses served as instruments of federal intervention, designed to facilitate assimilationist goals and prepare Native people for American citizenship.

At this time, federal officials and legislators were no longer interested in a vision of America that allowed for tribal self-government and tribal separatism. Commissioner of Indian Affairs Thomas Jefferson Morgan (1889–1893) articulated this sentiment plainly in his 1891 Report to the Secretary of the Interior:

One great political truth has been made absolutely clear by the march of events, and that is that the people of the United States constitute one nation. There is no place within our borders for independent, alien governments, and the Indians must of necessity surrender their autonomy and become merged in our nationality. In requiring this we do not ask that they concede anything of real value to themselves, but only that for their highest welfare they abandon their tribal organizations, their provincialisms, their isolation, and accept in lieu thereof American citizenship and a full participation in all the riches of our civilization.¹¹³

While demanding Indians abandon their tribal identities and integrate into American civilization, Commissioner Morgan took the time to disparage tribal society. Morgan invoked the ward-guardian relationship established by the Supreme Court in 1831,¹¹⁴ asserting that many Native people were “in a stage of childhood . . . weak, ignorant, superstitious, and as little prepared to take care of themselves as so many infants.”¹¹⁵ Like children, Native people could not be allowed to govern themselves.¹¹⁶ Instead, paternalist federal interventions were deemed essential to the civilizing project: The allotment of reservations, compulsory Western education, and other efforts to eliminate tribal relations and “heathenish” practices were seen as necessary intermediate steps for the ultimate integration of Native people into American society.¹¹⁷

Thus, federal policymakers expected the Courts of Indian Offenses, like the entire Office of Indian Affairs, to be temporary institutions.¹¹⁸ The courts were introduced as transitionary tools, precursors to the total integration of Indians into mainstream American society.

B. Indian Courts in the Federal Bureaucracy

To contextualize this study of the Courts of Indian Offenses, one must also consider the federal bureaucracy in which they were embedded. In 1824, Secretary of War John C. Callhoun created the Office of Indian Affairs.¹¹⁹ In 1849, Indian Affairs was relocated from the War Department to the newly created Department of the Interior, where it has remained ever since.¹²⁰ In the 1880s, the chain of authority flowed down from the President of the United States to his Secretary of the Interior to the Commissioner of Indian Affairs to superintendents to local field agents.¹²¹ The Office of Indian Affairs had its central office in Washington, D.C., where it handled matters of general administration, national policy, and supervision of field offices.¹²² Local field agents enjoyed significant discretion and autonomy.¹²³ Indian Affairs only adopted its present system of regional offices in 1949.¹²⁴

Indian Affairs profoundly shaped the development of the administrative state.¹²⁵ The need for maintained diplomatic relations with tribes drove the expansion of federal administrative capacity in the Early Republic.¹²⁶ Tribal relations took up a major portion of the federal budget. According to Robert Lee, “Between 1791 and 1890, as much as 12 cents of every dollar spent by the federal government of the young United States of America went into the conquest of Indian country.”¹²⁷ Likewise, the sale of tribal lands made up a significant part of federal revenue.¹²⁸ Removal was an extraordinary administrative undertaking.¹²⁹ Maintaining the reservation system¹³⁰ and later the administering allotment were similarly enormous feats of federal management.¹³¹

Despite its historic centrality to federal administration, scholars of the administrative state often ignore Indian Affairs in their historical studies, which results in misleading accounts.¹³² Scholars such as Stephen Skowronek erroneously characterize the antebellum administrative state as a “state of courts and parties”—a highly local, highly partisan, minimalist system very foreign to our modern bureaucracy.¹³³ As Stephen Rockwell argues, attention to Indian Affairs debunks this story.¹³⁴ The myth of a small national government has long been propped up by the myth of America as wilderness.¹³⁵ In truth, the West was not an uninhabited wilderness—hundreds of Native nations, composed of millions of people, lived there.¹³⁶ Far-reaching, coordinated federal intervention, manned by a professional workforce, enabled westward expansion.¹³⁷

Indian Affairs enjoyed significant autonomy. Beyond matters of funding, Congress offered minimal oversight, instead deferring to the President and agents of the Executive Branch.¹³⁸ This pattern conforms with Jerry Mashaw’s account of late-nineteenth-century bureaucracy. According to Mashaw, the Gilded Age was an era of significant bureaucratic agency unrestrained by the legislative branch.¹³⁹ In the absence of detailed statutes, departments determined their own internal operation, including the creation of new bureaus and other forms of reorganization.¹⁴⁰ At this time, it was not uncommon for administrators to draft relevant legislation for Congress.¹⁴¹ Meanwhile, the federal judiciary was reluctant to intervene in agency decisions.¹⁴² When courts did review administrative action, they were concerned primarily with whether the officers in question were acting within their jurisdiction and whether those actions were consistent with the agency’s internal rules.¹⁴³ While this period featured efforts to reform civil service, most notably through the Pendleton Act of 1883, these efforts had little impact on Indian Affairs administration in the field.¹⁴⁴

The Courts of Indian Offenses arose in a period of tremendous bureaucratic expansion. In 1852, the Office of Indian Affairs employed a total of 108 employees—14 in the central office and 94 in the field.¹⁴⁵ In 1869, Indian Affairs had just over 500 employees in the field.¹⁴⁶ Over the next two decades, employment more than tripled to a total of 1,725 employees.¹⁴⁷ By 1897, the number reached nearly 4,000, and by 1912, Indian Affairs had 6,000 employees.¹⁴⁸ These figures are likely undercounts, as most records failed to include temporary positions, local contractors, and missionaries working for the agency.¹⁴⁹ Congressional appropriations for Indian Affairs likewise exploded—the budget for Indian education alone expanded from $75,000 in 1881 to over $2 million in 1895.¹⁵⁰

President Grant’s Peace Policy demanded significant federal investment in reservations and Indian schools.¹⁵¹ Subsequent administrations maintained and enhanced Grant’s assimilationist policies, justifying the tremendous growth of the Indian Office.¹⁵² Federal agents staffed Indian schools both on and off reservation. They served as reservation farmers, charged with instructing Native men in the proper ways of industry.¹⁵³ The Office of Indian Affairs employed women to monitor Native households and ensure Native women’s assimilation into white American familial and housekeeping norms.¹⁵⁴ In these ways, Indian Affairs pursued a far more invasive, labor-intensive approach to tribal relations in the Assimilation Era. This model of “intimate colonialism” interfered with family and household relationships to redefine ideas of gender, marriage, and labor.¹⁵⁵ The Code of Indian Offenses was designed to aid this mission of cultural imperialism.

In the early twentieth century, the Office of Indian Affairs experienced the national move toward standardization and professionalization. This was most evident in the proliferation of forms, reports, and circulars across the agency.¹⁵⁶ Reservation agents received regular copies of rules and regulations and were in turn required to keep more standardized records—all in the name of rationalizing Indian Affairs.¹⁵⁷ At this time, the Courts of Indian Offenses received recordkeeping forms to track cases, though not all courts appear to have adopted them.

At the turn of the twentieth century, over a third of Indian Affairs employees were tribal members.¹⁵⁸ Many of these people worked in Indian schools and in the Indian police forces.¹⁵⁹ The Office of Indian Affairs was keen on hiring Native employees—especially Indian school graduates—for a few reasons. First, the Native employees could teach specific skills and lead by example.¹⁶⁰ Second, federal employment was thought to keep Native people in civilized habits, to prevent them from “returning to the blanket.”¹⁶¹ Finally, Native participation in federal reservation policy was expected to undermine tribal authority.¹⁶² In 1880, the Office of Indian Affairs adopted a hiring preference rule: “No work must be given white men which can be done by Indians.”¹⁶³ However, white men still made up the majority of the service.¹⁶⁴

As Cathleen Cahill explains, Native employees had their own reasons for seeking federal jobs, including greater freedom to travel, privileges for themselves and their families, opportunities to serve their communities, and personal economic survival.¹⁶⁵ In some circumstances, tribal members actually sought federal employment to maintain traditional structures of tribal authority. As Cahill notes, the Pine Ridge Reservation Indian police force was composed of men who already served in the Lakota akicita role, a traditional form of law enforcement.¹⁶⁶ Meanwhile, other Native people expressly rejected federal employment. Carlos Montezuma, a Yavapai Apache activist and founding member of the Society of American Indians, was twice offered, and twice rejected, the job of Commissioner of Indian Affairs.¹⁶⁷

The Courts of Indian Offenses required cooperation between Native and non-Native federal employees. The courts were locally established by non-Native reservation agents and maintained under their formal authority. These local agents were beholden to distant federal managers in the Department of the Interior. Of course, the courts were actually run by Native judges and clerks. Thus, to understand court operations, one must consider the professional relationship between these actors.

Here we can borrow from the broader world of bureaucracy studies. Reservation agents and superintendents resembled the local actors Michael Lipsky described as street-level bureaucrats.¹⁶⁸ In his 1980 study of public service structures, Lipsky defined street-level bureaucrats as those civil servants who interact directly with the American people and exercise substantial discretion in the course of their jobs.¹⁶⁹ While legislation, regulations, and superior managers’ directions guide their duties, the human nature of civil-servant responsibilities combined with immense workloads inevitably results in discretionary decisionmaking and locally determined routines.¹⁷⁰ Street-level bureaucrats play such indispensable roles in their bureaucratic structures that they enjoy exceptional autonomy vis-à-vis their centralized managers.¹⁷¹

Like the teachers, school administrators, police officers, district attorneys, and welfare office workers Lipsky studied, reservation agents necessarily enjoyed significant discretion to address highly local, human problems.¹⁷² They were charged with managing schools, maintaining employee payrolls, obtaining provisions and furniture, securing and distributing treaty annuities, resolving interpersonal disputes, administering censuses, creating tribal rolls, maintaining law and order, holding prisoners of war, monitoring off-reservation travel, and upholding other responsibilities.¹⁷³ They were geographically far removed from their managers in Washington, and they often lacked the resources to adequately address every task assigned to them.¹⁷⁴ They worked with distinct tribal cultures, governed by distinct treaties and pressured by distinct local interests.¹⁷⁵ Discretionary authority and localized decisionmaking were essential to effective administration.¹⁷⁶ In the history of Indian Affairs, big government and local discretion were wholly compatible.

These local federal agents were guided by interests distinct from those of their superiors.¹⁷⁷ Lower-level workers usually have professional priorities that differ from those of their managers.¹⁷⁸ While managers focus on results and adherence to overarching policy goals, lower-level workers are primarily occupied with processing workloads.¹⁷⁹ This is particularly true of street-level bureaucrats who are assigned massive caseloads and provided with inadequate resources (e.g., public school teachers, criminal justice personnel, social workers, and late-nineteenth-century reservation superintendents). To handle such workloads expeditiously, street-level bureaucrats develop shortcuts and routines—not sanctioned by superior managers¹⁸⁰—to streamline work processing.¹⁸¹ They are primarily attuned to expediting the process, not the policy goals set out by statute and regulations.¹⁸² This emphasis on work processing is evident in many agents’ reports: They are grateful for the Indian courts first and foremost because they remove mundane dispute resolution from the superintendents’ list of responsibilities, freeing up more time for other pressing matters.

Street-level bureaucrats are also responsive to client resistance. While involuntary clients lack the power to exit the bureaucratic structure altogether, they retain means of resistance.¹⁸³ Most notably, clients can withhold compliance and burden one of street-level bureaucrats’ most treasured resources: their time.¹⁸⁴ The Native people subjected to federal agents’ discretion—like the low-income Americans involuntarily entangled in criminal proceedings, public school administrations, and welfare offices today—could also exercise this power of noncompliance. In this context, it is not surprising that local agents were willing to elide directions and goals set out by the Office of Indian Affairs to ensure client compliance and court function.

Thanks to their indispensable frontline roles, street-level bureaucrats are allowed to develop these shortcuts and local routines with greater freedom than other lower-level workers.¹⁸⁵ Thus, they can more often get away with routines and shortcuts in conflict with their managers’ interests. According to Lipsky, the relationships between street-level bureaucrats and their managers feature (1) reciprocal relations of mutual dependence with their managers, and (2) intrinsically conflictual interests.¹⁸⁶ Consequently, authority does not simply flow from superior officer to subordinate officer, nor can the subordinates be assumed to carry out the superiors’ objectives in a straightforward manner.

A couple of final insights from Lipsky are relevant to this study of reservation employees. First, the routines, shortcuts, and discretionary decisions made by frontline federal actors constitute federal policy—at least as much as the enabling statutes and regulations that formally govern the bureaucracy.¹⁸⁷ In other words, the local agent decisions and procedures, which established the Courts of Indian Offenses and governed their practice, should be recognized as federal Indian policy. The Code of Indian Offenses handed down by the Commissioner of Indian Affairs does not eclipse the import of actual practice. Second, street-level bureaucrats tend to modify their own objectives to fit their capabilities.¹⁸⁸ Over time, agents begin to accept and embrace these routines and shortcuts as elements of their policy goals. Thus, it is not surprising that the Commissioner’s annual reports feature local agents praising their Courts of Indian Offenses for apparently deviating from the Code of Indian Offenses’ assimilationist goals. As one agent happily reported in 1900, “[The court] has been of infinite assistance to the superintendent, relieving him of numerous vexations incident to the many quarrels and disputes trivial in their nature but very important to the individual Indian.”¹⁸⁹

What about the Indian judges? So far, I have applied Lipsky’s study of bureaucratic actors to the incentives and behaviors of non-Native reservation superintendents. The Indian judges, as federal employees appointed by reservation superintendents, also resemble Lipsky’s street-level bureaucrats. Their interests very often differed from those of their bureaucratic superiors, and they often benefited from discretion and autonomy. Given their unique access to tribal communities and client compliance, plus the aforementioned heavy workloads occupying reservation superintendents, these judges likely benefited from the dependence of their immediate managers. In this way, the street-level-bureaucrat analysis can operate on two levels.

In summary, applying Lipsky’s insights to the Courts of Indian Offenses warns us that the Indian judges, the reservation superintendents, and the Washington-based managers were each likely driven by distinct interests and pressures, and each acted within a web of mutual dependence. Based on this structural understanding, we can then consider the policies these interrelated actors produced.

III. The Courts of Indian Offenses

This Part explores the Courts of Indian Offenses from their formal establishment in 1883 to the 1910s, when agency courts were common and court records were most complete. I begin by exploring the federal government’s assimilationist goals for the courts. Next, I set out the courts’ structure—judicial appointments, jurisdiction, court sessions, official relationships with agents, infrastructure for punishment, and so on. I then look more closely at the practical function of the courts. This includes the nature of hearings, the types of cases that were heard, the reasoning articulated in judicial decisions, the punishments imposed, and the judges’ interactions with agents. I underline the striking absence of any reported enforcement of certain “Indian offenses” originally set out by Commissioner Price.

A. Purpose

In the late nineteenth century, federal observers expressed significant concern with the state of law in Indian country. In 1875, Commissioner of Indian Affairs Edward P. Smith asserted that tribal attempts at reservation governments were failing.¹⁹⁰ His annual report to the Secretary of the Interior complained that “this large population becomes more and more helpless under the increasing lawlessness among themselves and the alarming intrusion of outlawed white men.”¹⁹¹ The Commissioner was concerned with anarchy among both Native people and white frontiersmen, urging that “[Indians] ought not to be left the prey to the worst influence which can be brought to them in the life and example of the meanest white men.”¹⁹² Rather, “[t]hey deserve such guardianship and care on the part of the United States as will secure for them the powerful aid to elevation which comes from the presence of law.”¹⁹³ They deserved the civilizing gift of criminal law.

Commissioner Smith’s concern for the prevention of violent crime came with equal concern for the improvement (i.e., assimilation) of Native people. He was alarmed that state courts lacked jurisdiction to try Indians, remarking:

This state of immunity for crime by Indians is unfortunate for them and embarrassing to the service, and becomes increasingly so as a tribe approaches civilization, from the fact that every step in that direction loosens and disintegrates the old tribal government of authority by chiefs, and furnishes only anarchy in return.¹⁹⁴

In these terms, civilization necessarily entailed the abandonment of tribal law, tribal government, and traditional social relations. In other words, civilization meant alienation from tribal life and assimilation into white American society. The imposition of Anglo-American law was thus essential to replace traditional modes of social control.

Criminal jurisdiction was not only seen as a necessary consequence of civilization, but also as a facilitator of the civilizing process. According to Commissioner Smith, jurisdiction over Indian country would work to “make an Indian as amenable to law as any other subject of the United States,” and to “encourage and, if necessary, compel him to abandon tribal relations and act for himself as an individual.”¹⁹⁵ Along these lines, the courts were regarded as training grounds for American citizenship.¹⁹⁶ As Sidney Harring observed, the BIA’s slogan of “Law for the Indian” was a shorthand for a coercive program of assimilation in which courts and prisons were considered analogous to schools.¹⁹⁷ By 1880, the Indian police forces recruited to serve federal agents were already lauded as indispensable civilizing forces that weakened the power of traditional leaders.¹⁹⁸ The Courts of Indian Offenses were brought about to continue this work of alienating Native people from their cultures and preparing them for integration with white society.

In December of 1882, Secretary of the Interior Henry M. Teller wrote to Commissioner of Indian Affairs Hiram Price, urging the promulgation of rules prohibiting the practice of many Native traditions.¹⁹⁹ In particular, he hoped to abolish “the old heathenish dances,”²⁰⁰ plural marriages,²⁰¹ medicine men,²⁰² and funerary rites that involved the destruction of property.²⁰³ The following March, Commissioner Price introduced rules for establishing the Courts of Indian Offenses “with the view of having the evil practices mentioned by the honorable Secretary ultimately abolished.”²⁰⁴ In his annual report for the year of 1883, Commissioner Price asserted that there was “no good reason why an Indian should be permitted to indulge in practices which are alike repugnant to common decency and morality.”²⁰⁵ He instructed Indian agencies to organize Courts of Indian Offenses to “put a stop to the demoralizing influence of heathenish rites” and preserve “good order on the reservations.”²⁰⁶ The resulting Code of Indian Offenses would also be known as the Religious Crimes Code and the Civilization Regulations.²⁰⁷

All of Secretary Teller’s requests made it into the original list of five “Indian offenses.”²⁰⁸ Traditional dances and feasts were first among these offenses: “The ‘sun-dance,’ the ‘scalp-dance,’ the ‘war-dance,’ and all other so-called feasts assimilating thereto.”²⁰⁹ In Secretary Teller’s imagination, dances were “a great hindrance to the civilization of the Indians,”²¹⁰ promoting “falsehood, deceit, theft, murder, and rape” for the “demoralization of the young.”²¹¹ With this depiction of warriors boasting of “inhumanity,” Secretary Teller illustrated a common, racist expectation of Native violence and brutality.²¹² His focus on the transmission of customs and values from one generation to the next exemplified the Office of Indian Affairs’ obsession with educating and alienating Native youth.²¹³

Indian offenses also regulated marriage and sex. Secretary Teller was concerned with plural marriages as well as the casual dissolution of marital relations.²¹⁴ He remarked, “The marriage relation, if it may be said to exist at all among the Indians, is exceedingly lax in its character, and it will be found impossible, for some time yet, to impress them with our idea of this important relation.”²¹⁵ Commissioner Price’s rules asserted that “[a]ny plural marriage hereafter contracted . . . shall be considered an ‘Indian offense’”²¹⁶ and that any Indian who “fails, without proper cause, to support his wife and children” will likewise be considered an offender.²¹⁷ The rules for the Courts of Indian Offenses went beyond Secretary Teller’s suggestions to include an additional offense criminalizing the payment of money or goods for the “purpose of living or cohabiting with [a] girl or woman.”²¹⁸ In this way, the Courts of Indian Offenses were designed to police prostitution, extramarital sex, and the social roles of women through criminal law.

The rules criminalized the practices of medicine men, “[a]nother great hindrance to the civilization of the Indians.”²¹⁹ Secretary Teller recognized medicine men as powerful and respected figures who often led resistance to assimilation policies. In particular, the Secretary worried that these spiritual leaders would convince parents to keep their children out of school. Federal agents and missionaries widely dismissed the actual healing powers of Native medicine men, denouncing those men as conjurers and impostors.²²⁰ The rules for the Courts of Indian Offenses announced that “[t]he usual practices of so-called ‘medicine-men’ shall be considered ‘Indian offenses.’”²²¹ These offensive practices expressly included “any means to prevent the attendance of children at the agency schools,” the use of “the arts of a conjurer to prevent the Indians from abandoning their heathenish rites,” and any other practice deemed by the court to be “of an equally anti-progressive nature.”²²² In this way, the courts were ordered to take down traditional religion and traditional leaders whenever they stood against federal policy. Some local agents shared the Secretary’s animosity toward medicine men—for example, a Pine Ridge agent denounced these spiritual leaders as “barbarism personified” and “one of the principal obstacles in the way of civilization.”²²³

The Courts of Indian Offenses were also designed to punish property crimes. Secretary Teller was particularly concerned with traditions that involved the destruction or distribution of a deceased person’s property.²²⁴ The Secretary recognized this kind of funerary custom as part of a more communitarian conception of property, and he worried that it discouraged Indians from pursuing private property.²²⁵ Seeing that the embrace of private property was a marker of civilization, such traditions undermined the BIA’s mission to improve Indians.²²⁶ The resulting Indian offense was worded broadly to include all attempts to steal or destroy any property of another Indian. The rule specified that being a mourner offered no protection.²²⁷

The 1883 rules included additional clues about the courts’ intended purpose. In addition to the five enumerated Indian offenses, the courts were empowered to punish the sale and consumption of alcohol, other “misdemeanors committed by Indians belonging to the reservation,” and “civil suits where Indians are parties thereto.”²²⁸ In this way, the courts could introduce a formal, Anglo-American model of law to address crimes involving actual violence as well as private civil disputes like inheritance and land use. The Courts of Indian Offenses were not imposed on the Five Civilized Tribes²²⁹ because the Department of the Interior implicitly recognized and respected that the Five Tribes’ governments largely resembled the American model. As the moniker indicated, the federal government recognized the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole Nations as more civilized and, thus, less in need of federal intervention.

In 1892, the Commissioner added a criminal offense of vagrancy. According to that directive, “[I]f an Indian refuses or neglects to adopt habits of industry, or to engage in civilized pursuits or employments, but habitually spends his time in idleness and loafing, he shall be deemed a vagrant.”²³⁰ This addition has been compared to contemporaneous Southern vagrancy laws aimed at maintaining white supremacy and the racist plantation economy.²³¹ Labor and industry were key elements of the BIA’s program for civilization—from boarding school curricula,²³² to the purported promises of allotment,²³³ to the arguments against fulfilling treaty rights and delivering services.²³⁴ The Indian vagrancy offense essentially recruited the penal power of criminal law to enforce this vision of progress.

The architects of the Courts of Indian Offenses intended to “abolish rites and customs so injurious to the Indians and so contrary to the civilization that they earnestly desire.”²³⁵ They created a Code of Indian Offenses designed to interfere with fundamental aspects of Native culture and tribal self-governance. They sought to eliminate tribes’ social rules, practices, and worldviews, replacing those customs with Anglo-American, Christian norms and values. By setting up systems of judges and police who answered to federal agents, they hoped to weaken and ultimately destroy traditional tribal government.²³⁶ In other words, they attempted to eliminate tribal law and impose Anglo-American law in its place, all in the name of civilization.

B. Structure

Under the founding rules, reservation agents held tremendous power over Courts of Indian Offenses. The agent was responsible for appointing judges.²³⁷ Judges were subject to removal at any time at the discretion of the Commissioner, who almost certainly relied on the agents’ reports. Agent approval was required for setting the time and place of court sessions and for convening any special sessions. Under the rules, the agent had the power to review all cases and determine which to refer to the court.²³⁸ Alternatively, the agent could choose to grant the court original jurisdiction over all Indian offenses. The subpoena power lay not with the court, but with the agent.²³⁹ The agent also possessed the ultimate power to enforce court decisions.²⁴⁰ Most importantly, “all orders, decrees, or judgments of the court shall be subject to approval or disapproval of the agent.”²⁴¹ Punishments involving the withholding of government rations were subject to agent approval.²⁴² Litigants could appeal decisions to the Bureau of Indian Affairs, but only with agent approval.²⁴³ Considering this expansive power over court operation vested in individual agents, it is no surprise that the most common contemporary critique of the Courts of Indian Offenses was the “agent’s capacity for tyranny.”²⁴⁴

For the selection of judges, the 1883 rules dictated that “[t]he first three officers in rank of the police force at each agency shall serve as judges . . . when practicable.”²⁴⁵ If the agent determined that the officers were not fit and competent, he could select instead “from among the members of the tribe persons of intelligence and good moral character and integrity,” though “no person shall be eligible to appointment as a member of said court who is a polygamist.”²⁴⁶ Each agency was to have one court consisting of three Indian judges.²⁴⁷

While some agents immediately created courts that began reviewing cases in 1883,²⁴⁸ many others reported difficulty finding judges. Some agents—like those assigned to the Rosebud Agency, the Quinault Agency, and the Indian Territory—reported that no reputable men were willing to serve as judges because they objected to the Indian offenses. According to the Rosebud agent, “From [the] Indian standpoint the offenses as set forth, and for which punishment is provided, are no offenses at all, and [it is] doubt[ful] if one could be found willing to punish another for the offenses as set forth in the rules governing such.”²⁴⁹ He concluded that “the checking of the so-called Indian offenses must be gradual, and done, if at all, by the agent.”²⁵⁰ The Quinault agent reported that the community adamantly objected to the criminalization of medicine men and that no one would serve as a judge.²⁵¹ An agent for the Indian Territory reported that most of the tribes were similarly reluctant to establish a Court of Indian Offenses, “fearing that it might interfere with some of their ancient customs or traditions.”²⁵²

There was an even more serious problem for the retention of judges: No one wanted to do the job without pay. The founding rules specified that “the judges herein provided for shall receive no money consideration on account of their services in connection with said court.”²⁵³ Police officers were expected to take on additional duties without any change in their salaries, and other judges were asked to work as unpaid volunteers. Pine Ridge Indian police lieutenant Standing Soldier argued that police officers already “incurred the enmity of many of our people” for “adopting the white man’s ways.”²⁵⁴ To also act as judges would “still further endanger our lives and increase their enmity”—consequences that no officer wanted to take on without compensation.²⁵⁵ In the years following the courts’ advent, Commissioner Price repeatedly asked for funds to pay judges twenty dollars a month.²⁵⁶ He noted that some agencies paid judges out of court fines, observing that “it is not a wise or safe policy to have the salary of an officer contingent on his own decisions.”²⁵⁷ Moreover, appropriations for judge salaries would allow the courts to be wholly independent from the police forces—a desirable change.²⁵⁸ In 1888, Congress finally appropriated funds to support the Courts of Indian Offenses,²⁵⁹ and by 1890, judges were receiving wages ranging from $3 to $8 a month.²⁶⁰ The Department of the Interior continued to call for reasonable salaries.²⁶¹

The rules gave minimal guidance on actual court operations. They required the courts to hold at least two regular sessions every month, where they could decide cases by a two-judge majority.²⁶² The rules specified that when reviewing civil cases, “the practice . . . shall conform as nearly as practicable to the rules governing the practice of justices of the peace in such State or Territory.”²⁶³ But no such guidance existed for reviewing Indian offenses. The Code of Indian Offenses was silent as to attorneys, evidentiary rules, or any other court rules. It appears many courts operated without any attorneys.²⁶⁴ In the wake of the 1888 appropriations bill, the Commissioner announced a few additional guidelines. Given the new funding for judge salaries, police officers would no longer be eligible to serve.²⁶⁵ Every court was to have a marshal, and the jury system was to be implemented wherever possible. It is unclear how common juries were in Courts of Indian Offenses; some courts apparently never implemented this directive.²⁶⁶

In terms of punishment, the founding rules specified incarceration, manual labor, fines, and the withholding of rations.²⁶⁷ Sentences were capped at thirty, sixty, or ninety days of imprisonment, depending on the type of offense.²⁶⁸ Exile was available for non-Indians: “[I]f any white man shall be found guilty of any of the offenses herein mentioned[,] he shall be immediately removed from the reservation and not allowed to return thereto.”²⁶⁹

The Courts of Indian Offenses were never uniform nor universal. By 1890, twenty-eight agencies had courts, employing a total of ninety-three judges.²⁷⁰ At least one agency boasted multiple courts for the several tribes on the shared reservation—the Puyallup Agency had sixteen judges for seven courts.²⁷¹ In 1894, the Grand Ronde Agency only had one judge.²⁷² Most agencies had a single court run by three judges.²⁷³ In 1900, the Courts of Indian Offenses reportedly reached their height: About two-thirds of the fifty-one agencies had courts.²⁷⁴ The number of courts declined after the passage of the 1934 Indian Reorganization Act, as tribes chose to replace the Courts of Indian Offenses with tribal courts.²⁷⁵

C. Function

Courts drew authority from both the coercive power of the agents and the constructive power of community respect. These sources of legitimacy appeared in varying measures across different agencies. Agents wielded the punitive threat of criminal law—the power to detain people in agency headquarters and withhold government rations. The agent commanded the police force to aid in enforcing court orders and other rules.²⁷⁶ However, this power was not absolute. There were documented occurrences of Indian police refusing to carry out orders, especially when agents ordered police officers to force children into boarding schools.²⁷⁷ In at least one case on the Southern Ute Reservation, an Indian police captain led the opposition against a new boarding school.²⁷⁸ In 1892, the Pima agent reported that the Indian police were particularly resistant to making children attend school, opining that the police “think more of the good will of their people than they do of the positions they hold.”²⁷⁹ It appears that customary norms, or perhaps even customary law, still influenced the Pima police officers’ actions.

An episode from the Cahuilla Reservation further underscores agents’ limited power. Superintendent William Stanley opposed the popular Cahuilla leader Leonicio Lugo and his calls for Cahuilla self-government.²⁸⁰ According to California ethnohistorian Tanis Thorne, Stanley was not uniquely hostile or authoritarian in managing the Reservation. But he embodied the Office of Indian Affairs’ stubborn insistence on federal control.²⁸¹ On May 2, 1912, a confrontation between Lugo and the Indian police turned into a gun fight, and Lugo’s supporters shot and killed Stanley.²⁸² The Superintendent may have held ultimate power over the Reservation on paper, but, in reality, he was always vulnerable to Native opposition.

Community respect was hardly a sure thing for the courts. The Commissioner expressed concern that judicial appointments would reduce respected members’ influence and popularity.²⁸³ Some agents would bend or wholly ignore rules from Washington to recruit tribal leaders to the bench.²⁸⁴ From the Courts’ first year of operation, agents reported modifying the Commissioner’s rules.²⁸⁵ In this way, agents were forced to compromise with tribal leaders, drawing together the formal police power of the agency with the social and political legitimation offered by tribal leadership.

In practice, agents could not wield the unchecked power suggested by the 1883 rules. To be sure, agents formally held tremendous authority, causing observers, including Commissioner T.J. Morgan, to worry that the police forces and Courts of Indian Offenses made agent power “almost absolute.”²⁸⁶ But on the ground, agents were in many ways dependent on Native cooperation and community acceptance to effectively implement federal policy.²⁸⁷ After all, courts could only be established with willing judges.²⁸⁸ While agents formally had the power to review and approve all court decisions, it appears they rarely overruled a court order, typically deferring to the judges’ decisions.²⁸⁹ The 1928 Meriam Report asserted that while some courts may have been dominated by the agents, “[a]t many other places, however, the decision of the Indian judges is untrammeled, and the only interference by the superintendent is an occasional diminution of punishment.”²⁹⁰ Indeed, the Meriam Report was far more concerned with agent inaction and tribal court autonomy.²⁹¹ In terms of incoming caseload, there is limited evidence that agents exercised much discretion in restricting which cases went before the courts.²⁹² And as for the appointment of judges, agents on several reservations delegated selection to democratic elections, giving the tribes the power to choose their judges.²⁹³ Some of the most successful courts developed “[w]here agents chose to share their power and authority.”²⁹⁴

While Washington wanted judges who modeled assimilation in all areas of life, conformity with white norms was not a uniform requirement. Many agents highlighted the “progressive” attributes of their judges in their reports. Those for the Umatilla and Colville Agencies lauded their judges who dressed in Western clothes, lived in Western-style homes, and supported allotment and schooling.²⁹⁵ Meanwhile, an agent for the Ponca Agency described his newly established Court of Indian Offenses by celebrating one judge in particular who did not speak any English and only wore Western clothes occasionally.²⁹⁶ The 1883 rules asserted that polygamists were ineligible to serve, but this explicit disqualification was ignored. As Hagan documented, Judge Quanah Parker not only had five wives at the time of his appointment,²⁹⁷ but he also blatantly committed an Indian offense by marrying another wife during his tenure on the Kiowa Comanche Court of Indian Offenses.²⁹⁸ Despite pressure from the BIA, Judge Parker never gave up his plural family structure.²⁹⁹ He also used peyote, wore his hair long, and refused to enforce bans on traditional dances.³⁰⁰ He was never removed for any of these transgressions because he was invaluable to the court as a revered tribal leader.³⁰¹

In their reports to Washington, agents focused less on judges’ attitudes toward assimilation and more on their judicial abilities. According to a Siletz agent, “The judges are men of intelligence and discernment and their verdicts are, in the main, just and impartial, and it is by far the most important factor in preserving order . . . .”³⁰² An agent for the Fort Berthold Reservation reported, “In all cases justice is impartially administered, and although the judges may not possess the wisdom of Solomon nor the legal knowledge of Blackstone they are as fair a body as any court in the land.”³⁰³ According to a Tulalip agent, the “judges have been, as a rule, careful, conscientious, worthy, and consistent in all cases.”³⁰⁴ A Yankton agent reported that the judges “exercise justice with perfect impartiality.”³⁰⁵ An agent for the Crow Reservation noted that the judges were “sober, industrious men” who always acted “wisely and impartially.”³⁰⁶ Since these annual reports were sent by agents to the Commissioner for presentation to the Secretary of the Interior, perhaps it is not surprising that agents emphasized the success of the courts far more than any disappointments or deviations from the Commissioner’s rules.

Not every agent celebrated the courts and their judges. In 1893, the Mescalero Agency reported that “these Indian judges and courts are the greatest farces that were ever conceived.”³⁰⁷ According to the agent, the court was totally ineffective because all the offenders “hold all Indian judges and courts in the greatest contempt, and the judges, being afraid of the class of prisoners brought before them, generally discharge them, no matter what the crime.”³⁰⁸ The agent reported that he rarely referred cases to the court. Instead, he “acted as judge and jury [himself] . . . dealing with all petty cases and punishing them as [he] thought best.”³⁰⁹

The regularity of court sessions varied from agency to agency. Some courts operated twice a month as specified by the 1883 rules.³¹⁰ Some met as little as once a month,³¹¹ while others met every week, and still others held variable sessions.³¹² Some courts had minimal formal roles.³¹³ An agent for the Quapaw Agency reportedly advised would-be litigants to bring their disputes to the tribal council for resolution and to come to the court only as a last resort.³¹⁴ A Fort Berthold agent reported that the court “has been called upon to try very few cases” and that instead, “the judges of the Indian court have lent their influence to the adjustment of dispute out of court.”³¹⁵ A Mescalero agent similarly reported, “The court of Indian Offenses has had but little to do in its official capacity, but members of the court as individuals have wielded a good influence among the tribe.”³¹⁶ One cannot help but wonder whether these observations reflect the perpetuation of the more decentralized form of law described by tribal law scholars Kekek Stark and Val Napoleon.³¹⁷ In contrast, other courts had substantial dockets, formally trying over seventy cases a year.³¹⁸ At least one court acted as a legislature. As an agent from the Ponca, Pawnee, and Otoe Agency reported, “When there are no cases to be tried the court frames and makes laws to govern the reservation.”³¹⁹ Another guided general council meetings.³²⁰ In this way, court practice varied tremendously.

Federal observers typically described court proceedings as fair but decidedly different from state and federal courts. Most courts were not strictly bound by any written laws, rules, or precedents.³²¹ They called witnesses³²² but followed no documented rules of evidence.³²³ According to the 1928 Meriam Report, court procedure was generally informal,³²⁴ and decisions depended “not upon code or precedent, but upon that subtle quality of the mind called common sense and upon an understanding of the current native ideas of property and justice.”³²⁵ Some federal observers regarded this departure from state and federal courts as valuable.³²⁶ As one agent remarked, “No guilty party ever escapes punishment on account of a technicality of the law.”³²⁷ Another noted that the court’s “decisions are very often based upon the broadest principles of equity, but are uniformly just and sustained by the facts.”³²⁸ Court sessions could be very casual.³²⁹ While court records might be kept in English, proceedings were typically conducted in Native languages.³³⁰

Collectively, the Courts of Indian Offenses heard hundreds of cases every year, yet remarkably few Indian offenses were reported. The Meriam Report found that “the usual matters” involved “drunkenness, sexual offenses, minor assaults, domestic troubles, and personal property disputes.”³³¹ To be sure, sexual offenses and domestic troubles can sometimes fit within the Indian offenses targeting polygamy, extramarital sex, desertion, and prostitution. Similarly, theft is technically an Indian offense that was not uncommon. However, there is a striking absence of the other Indian offenses. The Meriam Report remarked that “it is doubtful whether one in ten of the judges has ever read any [of the rules that are supposed to govern their jurisdiction].”³³² Hagan also observed that, while extramarital relations were regularly before the court, medicine men and traditional dances almost never appeared.³³³ Some judges also wholly avoided interfering with polygamy and funerary customs.³³⁴

The annual reports overwhelmingly follow this pattern. The table below seeks to capture these trends using the limited available data. The table represents original analysis of archived cases reported in the Commissioner Reports from 1884 to 1904.³³⁵ These numbers come from the following agencies: Colville, Crow, Devil’s Lake, Flathead, Fort Belknap, Hoopa Valley, Lemhi, Muckleshoot, Nevada, Nez Perce, Mescalero, Moqui Pueblo, Pima, Pine Ridge, Ponca, Santee, Standing Rock, Tulalip, Turtle Mountain, and White Earth. Not every agency reported caseload breakdowns every year. Most agents described the courts in qualitative terms, referring to trends in caseloads without offering concrete figures. The numbers represented below come from those exceptional reports in which agents gave precise breakdowns of offenses tried.³³⁶ Over the years, such specificity became increasingly rare, with very few distinct crimes reported in the 1900s. The results are further skewed by the fact that some agents reported only the criminal cases while referring vaguely to many other unquantified civil cases. This approach is admittedly unsatisfying, but it nonetheless demonstrates an obvious absence of Indian offenses in the record.

Table 1

These figures, rough as they are, underline a striking absence of Indian offenses. Despite agents’ fretting about Indian dances, especially during the Ghost Dance movement,³³⁷ only two cases based on dances were reported in any of the itemized caseloads. Both cases were reported by the Flathead Agency in 1896.³³⁸ Crimes based on the practices of medicine men or conjuring were also quite low, amounting to a total of 14 out of 1,565 reported cases in this period. Marital and sexual crimes were far more common. The broadest count of Indian offenses—including all reports of theft, desertion, adultery, bastardy, and illegal cohabitation—results in 237 plausible Indian offenses over this twenty-one-year period, or 15.1% of the total reported cases. Excluding the fuzzy, overinclusive category of adultery/bastardy/illegal cohabitation, the count is down to 102 cases, or 6.52% of the reported cases.

The Nez Perce Court of Indian Offenses published the most complete docket records in annual reports for the thirteen years the court operated, from 1884 to 1897. These reports documented a total of 268 criminal cases, including 14 cases involving plural marriage and 7 cases involving medicine men.³³⁹ That translates to 5.22% and 2.61% respectively, or together, 7.84% of the total criminal docket for the entire run of the court. No cases of property destruction, dances, feasts, or prostitution were ever listed.

A more comprehensive year-by-year approach reveals similarly low rates of Indian offenses. Consider the agent reports for the year 1892. The Fort Hall Agency asserted that about half the cases tried by the court were for “promiscuous cohabitation, an evil which it seems impossible to break up.”³⁴⁰ The Standing Rock Agency reported 72 cases in total, only 30 of which were criminal cases.³⁴¹ Of those 30, only 9 might be considered Indian offenses—8 for extramarital sex (adultery, seduction, bastardy) and 1 for larceny.³⁴² The Colville Agency reported 58 criminal cases, featuring only 12 possible Indian offenses: 6 cases of adultery, 3 cases of larceny, and 3 cases of robbery.³⁴³ The Tulalip Agency reported 79 criminal cases, featuring only 5 possible Indian offenses—all adultery.³⁴⁴

Occasionally, the reports make clear that Indian offenses were occurring, even if they never made it onto the dockets of the Courts of Indian Offenses. In the early 1900s, the Fort Apache Agency repeatedly reported problems with medicine men, yet the Fort Apache Court of Indian Offenses apparently never convicted a single medicine man. In 1903, the agent described the residents of Fort Apache as extremely superstitious and lamented that their faith in medicine men “interfere[d] with progress in civilization.”³⁴⁵ He noted that “[t]he medicine man is usually the shrewdest man of the band, and he combats the schools, for intelligence is against his business.”³⁴⁶ In the same report, the agent stated that the Court of Indian Offenses only reviewed cases involving theft, drunkenness, and fighting that year.³⁴⁷ In 1904, the Fort Apache agent described medicine men as “a menace to civilization or training in any useful industry.”³⁴⁸ He went on: “The other Indians are afraid to testify against these medicine men, fearing that sickness and death would be the penalty for such testimony. . . . When they are brought before the court for disturbance they meet the charge by saying that they are praying to God.”³⁴⁹ The agent also observed that the Indian police were protective of these men.³⁵⁰ Thus, it is not surprising that the sixty-one cases punished by the Court of Indian Offenses that year were for “mainly drinking, fighting, stealing, adultery, and divorce.”³⁵¹

Some courts saw far more civil cases than criminal. In 1900, the Turtle Mountain Agency reported that “[t]hirty-two cases were tried during the year, none of a criminal character, being mainly disputes over debts, over land and meadows, and family troubles.”³⁵² In 1906, the Warm Springs Agency reported that “[t]he court of Indian offenses has very little work here. No serious crimes have been committed during the year. Family and property disputes and cases of drunkenness have constituted the bulk of the business of the court.”³⁵³ The same year, the Lower Brule Agency reported “very few cases, just settling a few family differences,”³⁵⁴ and the Lemhi Agency reported that its court’s docket “has been very light, consisting chiefly of settling the ownership of horses.”³⁵⁵ To be sure, the line between civil and criminal is not always clear nor consistent with modern Anglo-American legal categories.

In terms of punishment, sentences for hard labor were particularly common.³⁵⁶ Many agencies lacked prisons, so agency headquarters were often used as makeshift jails.³⁵⁷ Many prisoners were required to spend only their days in confinement and were allowed to go home at night.³⁵⁸ Some agencies used nearby army guard posts as temporary prisons.³⁵⁹ The Devils Lake Agency reported that “after having received a sentence from said court to the guardhouse at labor, the guardhouse needs no lock or key, and the labor is faithfully and cheerfully performed.”³⁶⁰ While reports demonstrate imprisonment, labor, and fines, there is little record of agencies withholding rations.³⁶¹ The Meriam Report asserted that the “chief criticism” of the courts was their “inadequacy in dealing with serious cases or hardened offenders,” considering their “quasi-paternal admonitions and slight punishments.”³⁶²

As the generalizations and many exceptions recounted above demonstrate, it is challenging to characterize the many Courts of Indian Offenses. There was significant variation among the courts—variation that may have impeded the courts’ founding assimilationist goals. As Renisa Mawani remarked, the plurality and inconsistency of colonial legal systems make such systems ripe for contestation and resistance.³⁶³ The absence of an expectation of uniformity allowed for federal agents and tribal leaders to compromise and accommodate each other’s priorities. In this way, variation can be seen as evidence of divided control and retained tribal autonomy.

Until the Meriam Report of 1928, federal attention to the Courts of Indian Offenses significantly decreased in the early nineteenth century. In the 1910s, the Commissioner of Indian Affairs’ annual reports to the Secretary of the Interior stopped showcasing the Courts of Indian Offenses altogether. The Commissioner continued to discuss assimilationist ends but focused on alternative means. In the 1916 Annual Report, the Commissioner triumphantly wrote that “[t]he antipathy of the Indian woman to the white man’s hospital is fast being overcome and the medicine man will soon be only a memory.”³⁶⁴ Notably, there was no mention of the Courts of Indian Offenses nor their criminalization of medicine men. Instead, the Commissioner credited schools, women’s associations, Indian Service hospitals, and “baby shows” at agricultural fairs.³⁶⁵ Of course, the Bureau of Indian Affairs had not wholly abandoned the project of using criminal law to forcibly assimilate Native people. In the very same report, the Commissioner called for an expansion of the Major Crimes Act to prosecute Indian crimes against society and morality in federal court.³⁶⁶ But the Courts of Indian Offenses made no appearance, and educational and social approaches to assimilation took center stage.

IV. Case Studies

This final Part presents three case studies based on an original analysis of the archival sources. The first focuses on the Yakama Agency, where a formal, recorded reservation court system predated the 1883 Courts of Indian Offenses. The second concerns the Pima Agency, featuring uniquely detailed records that offer a snapshot into the political and interpersonal dimensions of the Courts of Indian Offenses in the early twentieth century. The third focuses on the Standing Rock Agency, where the assassination of Sitting Bull and the Wounded Knee Massacre demonstrate the limits of the Courts of Indian Offenses. These three case studies represent distinct tribal cultures from three different regions, further illustrating how Courts of Indian Offenses actually operated around the turn of the twentieth century.³⁶⁷

A. Yakama

The Confederated Tribes and Bands of the Yakama Nation have lived in the Pacific Northwest since time immemorial.³⁶⁸ The Nation ceded much of its aboriginal land to the United States in the Treaty of 1855, establishing the 1.13 million-acre Yakama Reservation in southern Washington.³⁶⁹ According to the 1880 census, 3,400 Indians resided on the Reservation.³⁷⁰

Indian police records held by the National Archives describe a Yakama court dating back to at least 1879.³⁷¹ The police records describe the tribal council convening as a court with the federal agent presiding.³⁷² The records document criminal cases from 1879 to 1882, featuring crimes of theft, adultery, and arson.³⁷³ The court empaneled juries and examined witnesses.³⁷⁴ One defendant was acquitted “for want of evidence.”³⁷⁵ When the jury rendered guilty verdicts, the court announced sentences consisting of various combinations of confinement in irons and whipping.³⁷⁶ When the Commissioner and the Secretary promulgated the founding rules for the Courts of Indian Offenses, the Yakama Reservation already had a formal justice system endorsed by the local federal agent.

In his 1883 annual report, agent R. H. Milroy described establishing an “Indian judiciary” loosely in line with the Indian Bureau’s new rules for Courts of Indian Offenses.³⁷⁷ Milroy divided the reservation into districts such that the people of each district elected the chiefs who served as justices of the peace. The agent appointed a three-judge panel to serve as “a reservation court of original and appellate jurisdiction.”³⁷⁸ Any party tried before a justice of the peace had the right to appeal to the court.³⁷⁹ Milroy admitted to deviating from the Indian Bureau’s rules: “I found said rules mainly proper and applicable for the guidance of the court of this reservation . . . but in several particulars I found said rules inapplicable, and so instructed the court.”³⁸⁰ Milroy asserted that he retained the right to review court decisions and correct errors but that he expected the court to “get along without [his] presence.”³⁸¹ The following year, Milroy reported that judges and court clerks would be elected in the same manner as the justices of the peace.³⁸²

From 1885 to 1902, the records of the Yakama court grew thin,³⁸³ until the local records of the court picked up in 1903. The twentieth-century court departed from the court of the 1870s and 1880s in terms of both the substantive content of their cases and the kinds of punishments they administered.

While the court still spent much of its time reviewing claims of adultery and bigamy, the twentieth-century court’s docket was full of horses and alcohol. Out of the 71 cases recorded from 1903 to 1905, there were 18 cases of bigamy, 9 cases involving horse ownership, 8 cases of assault and “cruelty,” 4 cases of adultery, 4 cases involving disputed property (not horses), and 28 other or unspecified cases.³⁸⁴ The next batch of recorded cases from 1912 to 1915 includes 128 cases total, featuring: 44 cases of intoxication, 27 cases involving horse ownership, 10 cases of assault, 5 cases of property disputes (not horses), 4 cases of adultery, and 1 case of bigamy.³⁸⁵ The remaining 37 cases included instances of cohabitation without marriage, petty theft, debt collection, and various uncommon and unspecified crimes.³⁸⁶

While the early court relied on corporal punishment and incarceration, the twentieth-century court relied far more on fines and restitution through goods. Fines, fees, and debt suffuse the court records. Disguised the brand on your neighbor’s horse? $10 fine plus $15 court fee.³⁸⁷ Committed assault and battery? $10 fine plus $20 court fee.³⁸⁸ Stole barbed wire? $15 to the plaintiffs plus $10 court fee.³⁸⁹ One defendant paid off his court debt with a horse and a saddle.³⁹⁰ Fines and fees were the norm, but occasionally, criminals received other punishments. Interfering with the police resulted in eight days in jail.³⁹¹ A drunken fight resulted in fifteen days’ labor for both participants.³⁹²

As recounted above, the Yakama Court of Indian Offenses deviated from Secretary Teller’s vision in various ways. The court was built upon a preexisting tribal court, and its officers were elected democratically. The reservation agent happily allowed the court to conduct its business without oversight, and the court spent its sessions considering the ownership of horses rather than medicine men, dances, or feasts.

B. Pima

Based in Sacaton, Arizona,³⁹³ the Pima Court of Indian Offenses governed the Akimel O’odham (Pima), Tohono O’odham (Papago), and Piipaash (Maricopa) peoples of the Gila River Valley.³⁹⁴ The O’odham and Piipash first encountered Spanish missionaries and explorers in the seventeenth century, and many members converted to Catholicism.³⁹⁵ As in many tribes of the Southwest, traditional spirituality and ceremonies persisted alongside Catholic ritual.³⁹⁶ The O’odham and Piipash had longstanding agricultural traditions and were regarded by Europeans as relatively friendly allies in the nineteenth century.³⁹⁷ The United States formally annexed the Gila River Valley in 1854 through the Gadsden Purchase.³⁹⁸ Under American rule, Akimel O’odham, Tohono O’odham, and Piipaash peoples were relegated to the Gila River Reservation, the Salt River Reservation, and the San Xavier Reservation—all under the supervision of the Pima Agency.³⁹⁹ By the 1880s, the Pima Agency oversaw nearly 7,000 Indians, including about 4,000 Akimel O’odham, 2,000 Tohono O’odham, and 300 Piipash.⁴⁰⁰

The first reference to the Court appears in the superintendent’s annual report for 1887, in which he asserted that “the wisdom of [the Courts of Indian Offenses] has been fully exemplified. The court has met regularly every two weeks, and many vexed questions of land ownership, damages from stock, etc., has been satisfactorily adjusted.”⁴⁰¹ He noted that the judges require both sides of every dispute to present evidence, and that they relied on the superintendent for relevant rules in American law.⁴⁰² He proudly reported that “there is not now a single case of polygamy on this reservation” and that desertion of one’s spouse without divorce had been largely reduced.⁴⁰³ As of 1890, the court had three judges, each paid $8 per month.⁴⁰⁴

The local records of the Court of Indian Offenses offer a clearer picture of court procedure. The records now held by the National Archives begin in 1913. By that time, the court was meeting weekly, rather than every other week. The court still had three judges at every sitting, though occasionally a judge would be recused and a substitute would take his place.⁴⁰⁵ As the superintendent initially reported, the court spent a lot of time reviewing evidence. Trials often involved multiple witnesses and sometimes lasted many days.⁴⁰⁶ When parties did not present sufficient evidence, the cases were dismissed.⁴⁰⁷ For cases involving disputed property boundaries, judges personally inspected the land or chattels in question.⁴⁰⁸ Private parties brought the vast majority of cases, both civil and criminal.⁴⁰⁹ Punishments typically involved jail time at the agency headquarters and hard labor, though fines were also assessed occasionally.

One of the longest cases took up six sessions before the court. The case of Kittie Elsmere, a pregnant twelve-year-old girl, began on February 14, 1914, and continued weekly through March 14, 1914.⁴¹⁰ The court ultimately transferred the rape case to the superintendent on March 30, 1914. The court heard between three and fourteen witnesses each day, including repeat witnesses.⁴¹¹ Yet the court declined to pass a judgment on the defendant’s guilt. Upon transfer, Superintendent Thackery found the defendant guilty and sentenced him to six months of jail time with hard labor.⁴¹² The court typically delivered its decision orally, after reviewing all the evidence. On occasion, it transferred to the superintendent particularly divisive cases and cases involving federal employees.⁴¹³ In this period, the superintendent appears not to have intervened in the court except when invited by the judges.

The records offer not only insight into court procedures, but also the substance of their caseload. Between 1913 and 1918, the court records include 117 discrete cases. 38.5% addressed property disputes. 23.1% were about violent crimes such as assault, murder, and rape. 17.9% concerned marital relations—adultery, desertion, divorce, and alimony cases. 9.4% involved intoxication or the introduction of liquor to the reservation. 7.7% were cases of theft. 1.7% involved libel.⁴¹⁴ Additionally, there was a case in which the court was called upon to resolve a disputed election.⁴¹⁵ In this period, there were no documented cases of plural marriage, though perhaps the agent was correct in claiming that the practice had ended in the 1880s. There were no cases involving dances or feasts. The only mention of a medicine man in the entire record appeared in an inheritance dispute: A medicine man had died, and his heirs were fighting over his possessions.⁴¹⁶ In other words, Indian offenses were uncommon in the Court of Indian Offenses. Those that did appear involved desertion and theft, fitting the broader pattern outlined in Part III.

At the Pima Agency and elsewhere, the Court of Indian Offenses was not only a space in which judges made and administered law, but also a forum for internal tribal politics. A series of hearings in 1913 showcased how various tribal leaders used the court forum for political or even personal conflicts. The saga began in January 1913, when Indian policeman John G. Whittier was accused of public drunkenness. Three witnesses testified against the officer: One claimed to have consumed liquor alongside Whittier on January 4, and the other two asserted they had heard Whittier was drunk that day.⁴¹⁷ While the usual panel of judges consisted of Meacham Hendricks, John Makil, and Juan Chiago, for this case, Chiago was replaced by Charles Matthews. Instead of serving as a judge, Chiago testified as a witness in support of the defendant.⁴¹⁸ Despite the support of Judge Chiago, the court found Officer Whittier guilty of drunkenness. The court ordered that he be discharged from the office of Indian police and jailed until Superintendent Thackery returned to the Agency. Because Whittier was a federal employee, the Superintendent was to have final say on his sentence.⁴¹⁹ Though Thackery’s ruling does not appear in the record, it seems Whittier was ultimately removed from the police force.

Two months later, the court heard another, more scandalous case involving tribal leadership. On March 1, 1913, Emma Wiston brought a prosecution against Judge Juan Chiago for the alleged rape of her young niece, Lizzie Johnson.⁴²⁰ Once again, Judge Chiago was recused, this time replaced by an Antonio Juan. In the one-day trial, the court heard testimony from Lizzie Johnson and her doctor. The court found Chiago guilty and suspended his judgeship. Just as in Whittier’s case, the court deferred to Superintendent Thackery for final judgment.⁴²¹

Exchanges after the trial complicate the story. On March 4, 1913, M.J. Chiago wrote a letter to Superintendent Thackery.⁴²² M.J. Chiago was Juan Chiago’s wife as well as Lizzie Johnson’s older sister. M.J. Chiago urged the Superintendent to reverse the court’s ruling, claiming that the rape accusation was manufactured as part of a “campaign for revenge” against Chiago for failing to protect John Whittier in the drunkenness suit.⁴²³ M.J. Chiago also asserted that Emma Wiston was not Lizzie Johnson’s legal guardian and should not have been allowed to bring the suit on her behalf. The real guardian was their uncle, Lewis Wood. Chiago lamented that Wiston did not have the girl’s best interests at heart and that she had “lead [sic] my sister Lizzie Johnson to spoilation [sic] in character,” by convincing her to “plead strong false statement in their favor of revenge.”⁴²⁴

That same day, Judge Chiago also penned a letter to the Superintendent. He told the same story: “If wasn’t for John G. Whitter [sic] and her Aunt Emma Wisten gone for her she could have told the straight truth . . . . [They] mislead [sic] the young girl to aid strong purgery [sic] in this favor, on a fake charge of criminal libel.”⁴²⁵ Juan Chiago asserted that “[t]he judges are not crafty enough to know that this suit against me [was for] revenge.”⁴²⁶ He claimed that he and another witness could prove that Lizzie’s story was not factual, but the judges would not hear them at the trial.⁴²⁷

Why would Emma Wiston be doing John Whittier’s dirty work? While neither Chiago offered an explanation, a later case from June 20, 1913, revealed that Emma Wiston and John Whittier had been in a longstanding intimate relationship.⁴²⁸ He had apparently promised to divorce his wife to be with Wiston but never followed through. So, Wiston eventually sued him too in the Court of Indian Offenses.⁴²⁹

On April 12, 1913, Superintendent Thackery reversed the court’s decision.⁴³⁰ Citing the existence of contradictory testimony, Thackery vacated the ruling against Chiago. It is unclear whether the Superintendent was convinced by the Chiagos’s story of revenge, was supporting a favored colleague, or was simply acting in adherence to strongly held convictions about the burden of proof in criminal cases—or perhaps all of the above at once. Chiago was relieved from criminal punishment. However, his name did not return to the roster of judges.⁴³¹

As the Wiston/Whittier/Chiago drama illustrates, the Pima Court of Indian Offenses featured return players who used this legal forum to contest leadership positions and address longstanding grievances. The court was not only a site for ordinary conflict resolution, but also for tribal politics. The largely absent superintendent had a role to play—at least when invited to intervene by one of his judges.

C. Standing Rock

This last case study concerns the Lakota and Dakota people of the Standing Rock Sioux Tribe. The Standing Rock Sioux were a party to the 1868 Fort Laramie Treaty, which established the Great Sioux Reservation, spanning approximately half of South Dakota.⁴³² In subsequent years, the United States failed to uphold the treaty, allowing miners to flood the sacred Black Hills, ultimately inciting the Great Sioux War of 1876 and the famous Battle of the Little Bighorn.⁴³³ In 1877, Congress unilaterally abrogated the treaty to take the Black Hills.⁴³⁴ In 1889, Congress divided the Great Sioux Reservation into six smaller reservations, including the Standing Rock Reservation straddling the border between South and North Dakota.⁴³⁵ In this tumultuous time, the Standing Rock Agency established a Court of Indian Offenses.

In 1884, the Standing Rock Agency reported the successful creation of the Court of Indian Offenses, installing a panel of judges described as “good men who command respect and have the confidence of the Indians.”⁴³⁶ These judges were selected from the police force as instructed, and the agent described them as “just and impartial.”⁴³⁷ The court met every other week, and the agent interfered mainly to “guard against the severity of punishment imposed.”⁴³⁸ In 1886, the agency characterized the court as indispensable,⁴³⁹ and in 1888, the agency approvingly reported that the court continued to command respect from the reservation community, holding biweekly sessions without need for agent interference.⁴⁴⁰ According to the report, the court was so helpful “in maintaining order and in aiding our work that I would regard it as a serious loss to the service were it discontinued.”⁴⁴¹ In 1890, the agency reported a court docket of 91 cases. This count included 5 cases of plural marriage (3 cases involving second wives, 2 cases involving second husbands), 8 cases of adultery, and 14 other cases involving marital problems (desertion, seduction, and elopement). In addition to these marital cases, there were 4 cases of larceny, 1 ambiguous case of “evil speaking,” and nothing else that resembled an Indian offense.⁴⁴² There was no mention of dancing or medicine men. In 1891, the agency reported that the court had altered its schedule, meeting triweekly for two days at a time.⁴⁴³ The report listed 106 cases tried, though only 8 could be identified as Indian offenses—6 cases of bigamy and 2 cases of larceny.⁴⁴⁴ Again, there was no mention of any cases involving dances or medicine men.⁴⁴⁵

This absence in the court record is notable, as the same report of 1891 spent many pages detailing the Ghost Dance and its violent suppression by the United States.⁴⁴⁶ Dubbed the “Messiah Craze” by the Commissioner of Indian Affairs,⁴⁴⁷ the Ghost Dance was a spiritual movement drawing from both traditional Indigenous worldviews and Christianity, foretelling for Native people a new world premised on the revitalization of tradition.⁴⁴⁸ In the words of Keith Richotte Jr., the Ghost Dance was “an intertribal movement that promised peace, prosperity, and a reunion with lost relatives to those who adhered to ceremonies and a tribally centered lifestyle.”⁴⁴⁹ Wovoka, the movement’s prophet, was the son of the Paiute medicine man to whom God revealed a sacred dance that would enable Native people to survive the world’s impending transformation.⁴⁵⁰ According to Rani-Hendrik Andersson, the Ghost Dance can be understood as part of a larger pattern of American colonialism, in which Anglo-American cultural domination met Indigenous resistance, and syncretic prophetic leaders combined the cultures to inspire mass movements, seeking to subvert the dominating culture and restore traditional ways of life.⁴⁵¹ Such a movement was particularly powerful among the Sioux in the late 1880s: The recent suppression of the sun dance⁴⁵² had created a vacuum in spiritual life, and harsh cuts to rations in the relatively new reservation system had produced famine and epidemics across the Sioux reservations.⁴⁵³ The Ghost Dance and its participants did not pose a military threat to the United States; rather, they threatened federal control over reservation life and the greater civilization project.⁴⁵⁴

When the Ghost Dance arrived at the Standing Rock Reservation in 1890, federal agents quickly identified Sitting Bull as the movement’s local leader.⁴⁵⁵ Sitting Bull was a medicine man, deemed nonprogressive for his opposition to federal assimilation policy.⁴⁵⁶ Starting in July 1890, Standing Rock Agent James McLaughlin repeatedly asked the Commissioner for the authority to remove Sitting Bull from the Reservation.⁴⁵⁷ The authorization would not come until December,⁴⁵⁸ after months of alarmist reports to Washington from McLaughlin’s coworker at the Pine Ridge Agency, Agent Daniel F. Royer.⁴⁵⁹ In this time, the movement had spread to all the major Sioux reservations.⁴⁶⁰

With the military standing by for backup, McLaughlin sent a force of thirty-nine Indian policemen and four Indian volunteers to Sitting Bull’s camp on December 15, 1890.⁴⁶¹ When Sitting Bull attempted to escape, a skirmish broke out between the police and Sitting Bull’s followers. Shots flew from both sides. The police shot and killed Sitting Bull, while his followers fatally wounded an Indian police lieutenant and first sergeant.⁴⁶² In total, six Indian police officers and seven Ghost Dancers died in the failed arrest.⁴⁶³ The survivors fled the Standing Rock Reservation and joined a neighboring band led by Spotted Elk, only to be confronted by the military at Wounded Knee two weeks later.⁴⁶⁴ Thus, the police killing of Sitting Bull led to the infamous massacre of men, women, children, and infants⁴⁶⁵—and the end of the Ghost Dance movement.⁴⁶⁶

The Indian police played a starring role in the Ghost Dance suppression saga. Agent McLaughlin praised the police force in exuberant terms, lauding the officers for remaining “loyal to the Government in maintaining order and obeying its mandates.”⁴⁶⁷ McLaughlin and Commissioner Morgan both called for a raise in police wages.⁴⁶⁸

But where was the court in all this? As mentioned above, the Court of Indian Offenses was holding regular sessions. Despite the 1888 change in personnel rules, the court might still have been made up of police officers who may have played a role in the assassination of Sitting Bull. One prominent figure in the aftermath of the Wounded Knee Massacre was a judge for the Pine Ridge Court of Indian Offenses—Tasunka Kokipapi.⁴⁶⁹ Yet Tasunka Kokipapi served in a diplomatic role, negotiating with the federal government.⁴⁷⁰ None of these judges engaged with the Ghost Dance suppression in their judicial capacities. Sitting Bull was to be arrested and removed from the reservation, not brought before the Court of Indian Offenses. None of his followers were prosecuted in the Court of Indian Offenses for illegal dancing. In one of the most violent instances of cultural repression in this era, the Court of Indian Offenses was at most tangentially involved via the Indian police.

This episode demonstrates how the courts were neither a primary means of forced assimilation nor reliable instruments of resistance. Faced with a movement that directly confronted and threatened the American assimilation project, the court’s officers only marginally aided the federal government.

Conclusion

For many Native leaders in the late nineteenth century, the Courts of Indian Offenses offered opportunities to maintain tribal self-government by accommodating the assimilationist designs of federal bureaucrats. In practice, Native judges took up some aspects of Anglo-American law, particularly in policing marriage and sexual relations, individual property rights, and formal procedure. Yet in other areas—dances, ceremonies, and medicine men—they wholly ignored directives from Washington.

This Article carefully combed the colonial records of the Courts of Indian Offenses to find a striking absence of Indian offenses. In this negative space, the Article sought to reconstruct the subaltern story of the courts. By applying a critical lens, reading against the grain, and borrowing insights from other studies of both bureaucracy and tribal law, this study uncovered an overlooked chapter in tribal legal history—one of complex, contested, quasi-tribal legal institutions.

The courts should be understood as local institutions in a decentralized national bureaucracy, operated by local actors and dependent on tribal cooperation. In this context, federal agents were often eager to delegate their formal authority to Native judges for the courts’ daily operation. As the case studies from the Pima and Standing Rock Agencies demonstrate, Native judges were also individual actors with individual motivations, not necessarily stand-ins for universal tribal opinions. These judges operated within the formal colonial confines set out by the Office of Indian Affairs. To maintain a space for tribal autonomy, they co-opted the so-called tools of civilization. The Courts of Indian Offenses were neither bastions of revolution nor draconian instruments of assimilation. They were contested spaces of colonial law and resistance.

* Alexandra Fay is an assistant professor at the University of Tulsa, College of Law. She is grateful for feedback and support from Henry Ishitani, Seth Davis, Bethany Berger, Matthew Fletcher, Kevin Washburn, Greg Ablavsky, Maggie Blackhawk, Angela Riley, Tanner Allread, Stephen Galoob, Marc Roark, Gwen Savitz, Blake Emerson, and the Gathering of Indigenous Legal Scholars. She is especially thankful for her research assistants, Madison Foster and Jacob Stork.