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Unequal Law for Native Americans

There is a distinct relationship between colonialism and the overrepresentation of Native Americans in prison. The abuse of power by the legal system stems from the region’s colonial past. Native Americans were suppressed and controlled because they threatened the plan of western expansion, and the government continually redrew and limited the judicial boundaries in their favor. Colonization erased Native Americans’ self-determination, and they were especially constrained by federal law that undermined their political freedom. They were also dehumanized, and the use of the label “savage” was legitimized as a proper justification of the unnecessary killing of Native people. The ideology of this inferiority fueled the mistreatment of the Native community as criminals. Through the law, leaders were able to legitimize their power and solidify expansion over Native land and its people.


What was once a self-governing group was overtaken by European settlement. The victimization and criminalization by the US government started with the complete destruction of their judicial system and replacement with white-friendly laws.[i] Cultural suppression within the legal system is evident in the erosion of the judicial system that favored the government and went against Native Americans. For example, genocide against the Native people was never considered murder under law. Also, California’s “The Act for the Government and Protection of Indians” in the 1880s allowed the government to take Native children as indentured slaves.[ii] Similar to the millions of African Americans that were enslaved for hundreds of years, the Native population was brutally massacred and taken advantage of before the government recognized them as legitimate people under the law. Once the formal acknowledgement of each group was established, the government still found ways to suppress the groups through the criminal justice system. Control and abuse to these groups was no longer in the blatant form of lynchings and massacres, but rather in the form of arrests and incarceration.


Legal accountability is tricky to navigate on Native land, as there are overlapping and competing laws with reservation, local, and federal jurisdiction, yet the US government maintain control over Native Americans through racist policy and legislation. Reservations that were labeled as “lawless spaces” opened the door for the government to reduce their political authority by replacing tribal law with their own definition. The General Crimes Act of 1817 granted the government federal jurisdiction over Indigenous people.[iii] While tribes maintained jurisdiction in cases in which both the offender and victim were Native, the government accumulated vast jurisdiction of many cases involving Natives. The 1825 Assimilative Crimes Act also expanded the number of crimes that could be tried by federal courts.[iv] This corruptive nature was evident throughout new laws and policies that took advantage of Indigenous peoples’ rights. Similarly, Non-Natives are immune from tribal prosecution due to the 1978 Supreme Court ruling in Oliphant v. Suquamish.[v] The tribal police are limited to only Native Americans, whereas US police officers are entitled to jurisdiction over most Native lands. This unequal balance of power explains the increasing arrests of Indigenous peoples. If there is not cross-deputization, many non-Natives go unpunished. Still, the overlap of political boundaries created confusing layers during prosecution making it hard for Indigenous people to know what their full rights are and easier for officers to take advantage.


The government does not recognize Native Americans as a sovereign group capable of self-government and helps explain why the government is able to justify their actions towards racial disproportionality in policing. Resistance to this reconstruction was taken as evidence that the group was violent and lawless.[vi] This, in turn, justified the alteration of laws and construction of racialized judicial systems that aimed to restrict and imprison Native Americans. Their lands were legally stolen and its people were legally murdered under the law, exemplifying how the law was manipulated to undermine political authority and the constructions of Native "savagery" was used to justify prejudice, and often unlawful, actions.



[i]Ross, Luana (Confederated Salish and Kootenai). 1998. “Part 1: Colonization and the Social Construction of Deviance: New Worlds, New Indians” in Inventing the Savage: The Social Construction of Native American Criminality. Austin: University of Texas Press. (PDF) [ii]Ross, Luana (Confederated Salish and Kootenai). 1998. “Part 1: Colonization and the Social Construction of Deviance: New Worlds, New Indians” in Inventing the Savage: The Social Construction of Native American Criminality. Austin: University of Texas Press. (PDF) [iii]Ross, Luana (Confederated Salish and Kootenai). 1998. “Part 1: Colonization and the Social Construction of Deviance: New Worlds, New Indians” in Inventing the Savage: The Social Construction of Native American Criminality. Austin: University of Texas Press. (PDF) [iv]Ross, Luana (Confederated Salish and Kootenai). 1998. “Part 1: Colonization and the Social Construction of Deviance: New Worlds, New Indians” in Inventing the Savage: The Social Construction of Native American Criminality. Austin: University of Texas Press. (PDF) [v]Ross, Luana (Confederated Salish and Kootenai). 1998. “Part 1: Colonization and the Social Construction of Deviance: New Worlds, New Indians” in Inventing the Savage: The Social Construction of Native American Criminality. Austin: University of Texas Press. (PDF) [vi]Stark, Heidi K. (Turtle Mountain Ojibwe). 2016. “Criminal Empire: The Making of the Savage in a Lawless Land.” Theory & Event 19(4): in press. (PDF)

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