“Give the Red Man a Chance”

September 24, 1881

Thomas Nast

“Give the Red Man a Chance”

American Indians; Crime and Punishment; U.S. Supreme Court; Voting Rights;

No 'People' indexed for this cartoon.

American West;

Make him a citizen, with all the privileges which that implies

Thomas Nast supported citizenship and voting rights for Native Americans, and their cultural assimilation into American society.  In this cartoon, however, the artist's emphasis on the privileges of citizenship is sarcastic, encompassing the jurisdiction of American courts to try accused murderers and impose the death penalty.  The image was inspired by the slaying of Spotted Owl, a Sioux chief, by Crow Dog, another Sioux, on a reservation in the Dakota Territory.  The question of legal jurisdiction over the incident led to an important court case, Ex Parte Crow Dog, concerning the status of American Indians within the American legal system.

On August 5, 1881, Spotted Tail visited the reservation's Indian agent to discuss the chief's scheduled trip to Washington, D.C., as an official representative of the Sioux nation.  It was decided that Spotted Tail would depart the next morning, so he convened a meeting that afternoon to solicit the tribe's views on the issues under consideration at the Washington conference.  After the council adjourned, Crow Dog approached Spotted Tail, shot and killed the chief, and then left for his camp nine miles away.  At that point, two very different systems of justice--Native and European American--went into motion.  

The Sioux called a tribal council to decide proper restitution and to reconcile the families of Spotted Tail and Crow Dog.  The situation was resolved by agreeing that Crow Dog's family would give $600 cash, eight horses, and one blanket to Spotted Owl's family, and that Crow Dog was thereafter responsible for supporting Spotted Owl's family as long as he lived.  He was not, however, subject to execution.  On the other hand, the federal Indian agent ordered the killer of Spotted Owl arrested under the authority of an 1868 treaty.  In 1882, after almost a year in jail, Crow Dog was tried and convicted of murder in a territorial court, and sentenced to death by hanging.

Crow Dog's lawyer sued for his client's release under a writ of habeas corpus, arguing that the tribe, not the territorial government, had jurisdiction over crimes committed on reservations by Indians against other Indians.  Lawyers for the U.S. government argued that treaties in 1868 and 1877 granted such authority, and therefore overrode an earlier statute that denied it.  In a unanimous U.S. Supreme Court decision in 1883, Justice Stanley Mathews declared that the territorial government did not have jurisdiction over inter-Indian crimes committed on reservations.  The ruling did not mean that Congress could not legislate an expanded jurisdiction over Indians on reservations, but that it had not done so in either the 1868 or 1877 treaties.  The Court also expressed concern about imposing "an external and unknown code [of] ...the white man's morality" on the Indians. 

Reformers (like Nast) who favored the assimilation of the Indians into the broader American society were shocked by the decision, which they saw as letting a convicted murderer go free.  Consequently, as part of an appropriations act in March 1885, Congress specified that Indians on reservations were subject to federal law for crimes such as arson, burglary, manslaughter, murder, and rape.  (Today, there are 14 such crimes legislated.)  Nevertheless, Crow Dog continues to be a major precedent in relations between the federal government and Native Americans in two important ways:  1) the interpretation of laws and treaties concerning American Indians should give favorable preference to tribal self-government and property rights; and 2) the tribe does not have to embody any certain model of social or political organization in order to retain federal protection.

Robert C. Kennedy

“Give the Red Man a Chance”
July 14, 2024

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