The foundation of American law and the relationship between American government and Indian tribes is the Constitution. The Constitution recognizes American Indian tribes as sovereign nations and the Supreme Court, during the nineteenth century, had defined Indian tribes as “domestic, dependent nations.” Because they are sovereign nations, it is the federal government, not the governments of the various states and territories, which are to deal with the tribes. States are often the greatest enemies of the tribes located within their territories.
States and territories have long preferred to ignore the Constitution and the various Supreme Court rulings and have assumed that they have power over the tribes in their territories. The federal government often ignored violations of Indian sovereignty by state governments, local citizens, and corporations. Briefly described below are American Indian events in two territories in 1873, 150 years ago.
Montana
In 1864, Montana was formally organized as a territory of the United States. The many Indian nations within this territory were, of course, not consulted regarding this formal declaration. For the American settlers in the territory, Indians were seen as enemies which, like wolves, coyotes, and buffalo, needed to be eliminated if the territory was to become civilized.
In 1873, the newspaper in Bozeman, the Courier, continued to urge people to attack Indians. In one editorial, the paper claims:
“It is not our desire to create unnecessary alarm, but we wish to enjoin on our citizens … the necessity of making preparations to resist Indian raids into our valley this summer.”
A group of prospectors from Bozeman decided to travel down the Yellowstone Valley to the mouth of the Big Horn River where they planned to prospect for gold. This would put them near the Sioux who were often considered hostile. In his book Lost Fort Ellis: A Frontier History of Bozeman, Thomas Rust reports:
“They were also going near the more friendly Crow Reservation, which might also create problems. The settlers did not seem to have an accurate understanding of the complex tribal situation, seeing all Indians as a threat and for years had claimed frequent attacks to stir the military to action to rid the area of Indians. This appeared to be a not-so-subtle effort to force the army into action.”
Thomas Rust also reports:
“Civilians often fabricated, exaggerated, or provoked incidents with Indians to prod military actions. They were also willing to exert political influence to achieve their ends of removing the Indians.”
Washington
In 1853, Washington was formally organized as a territory of the United States. As a self-governing territory, one of the concerns centered around voting, and more specifically the rights of Indians within the Territory to vote.
The Washington Territorial Legislature made it an offense against public policy to induce, or attempt to induce, any Indian to vote. The act, however, excluded Indians who were citizens and were entitled to vote. The act was a response to concerns that politicians have been padding their vote counts by recruiting unqualified Indians to come to the polls.
A territorial district court ruled that Indians could not become citizens by simply severing tribal connections. According to the court, citizenship for Indians required a naturalization act by Congress. In addition, the court ruled that the Fourteenth Amendment to the Constitution did not apply to tribal Indians.
In addition to voting rights and citizenship, another concern was the application of American and Territorial law on Indians. In many Territories and States in 1873 Indians were not allowed to testify in court.
One of the interesting court cases in Washington Territory in 1873 concerned Harry Fisk, a mixed blood interpreter for the Indian Department, who had killed Squaxin medicine man Doctor Jackson in front of several Indian witnesses. Fisk believed that his wife Susie had become ill because of Doctor Jackson’s sorcery. According to historian Brad Asher, in his book Beyond the Reservation: Indians, Settlers, and the Law in Washington Territory, 1853-1889:
“Fisk’s trial for murder marked a turning point in Washington Territory’s legal history. It was one of the first cases in which the territorial courts successfully asserted their power to regulate intra-Indian conflict.”
The defense argued the Fisk had killed Doctor Jackson to save the life of his wife. The prosecution urged the jury not to indulge the Indians’ irrational beliefs. In an article in the Western History Quarterly, Coll-Peter Thrush and Robert Keller report:
“While nineteenth-century American jurisprudence was not known for allowing shamanic self-defense as a justification for murder, the trial proceedings were marked by an attempt to understand native concepts of justice, and the all-white jury acquitted Fisk after only eight minutes of deliberation.”
More American Indian histories
Indians 101: Indian reservations 150 years ago, 1873
Indians 101: Southwestern Indian Reservations 150 years ago, 1873
Indians 101: American Indians and the Army 150 years ago, 1873
Indians 101: Indian reservations in Washington, Oregon, and California 150 years ago, 1873
Indians 101: American Indians and religion 150 years ago, 1873
Indians 101: Visiting Washington, D.C. 150 years ago, 1873
Indians 101: Negotiating peace 150 years ago, 1872
Indians 101: Indian affairs 150 years ago, 1872