Much of the history of federal Indian policy is a story of failed attempts to make Native peoples give up what makes them distinct. The complement of this history is the way Native peoples resisted each of these attempts, often using the implements of federal policy in doing so. Failure of U.S. treaty negotiators to recognize differentiation between tribal groups led some Native peoples to develop centralized political structures to coordinate their response. The devastation of federal boarding schools created a generation of Native people who formed the Society of American Indians, the first modern pan-Indian advocacy group, and communicated their resistance in ways familiar to non-Native policymakers and the public had to acknowledge. Mid-twentieth century relocation of Native people from their tribal homelands into American cities brought together people from many tribes to unite against Termination Policy. This is not a triumphal history—many lives, lands, and lifeways were lost in the process. But it underscores the ways that Native people have transformed the tools designed to destroy them to survive and fight back.
In Courts of Indian Offenses, Courts of Indian Resistance, Professor Fay adds to this history. She examines how Native people transformed the Courts of Indian Offenses created by the Department of Interior in the late nineteenth century. Interior created these courts for the express purpose of “civilizing” the Indians, directing them to punish the practices of medicine men, plural marriage, religious dances, and other “heathenish rites and customs.” Although their judges were tribal members, local federal agent appointed these judges and could remove them. Most tribes have now replaced these courts, and the old rules criminalizing tribal culture no longer exist. But five such courts still exist, serving sixteen tribes; their judges are still appointed by the federal government, and their current title, “CFR Courts,” reflects the federal regulations that govern them.
This history reached the Supreme Court in Denezpi v. United States, 596 U.S. 591 (2022). Denezpi considered whether a federal prosecution of a man that the Southern Ute Tribe’s CFR Court had already prosecuted violated the Double Jeopardy Clause. The majority of the Court held that it did not, relying on the dual-sovereignty doctrine to hold that because the federal and tribal laws criminalizing the conduct were “defined by separate sovereigns” the two courts “proscribe separate offenses.” Id. at 599. Justice Gorsuch, however, joined by Justices Sotomayor and Kagan, dissented, using the blatantly colonizing federal origins of the courts in support of a conclusion that CFR Courts prosecuted federal crimes. Id. at 612 (Gorsuch, J. dissenting).
Professor Fay examines archival records of these courts to argue that they were in fact “a means of maintaining tribal self-government by accommodating the assimilationist designs of federal bureaucrats.” Almost none of their convictions, she shows, were for the “heathenish” crimes they were created to police. The need to select judges with authority in tribal communities meant that the judges did not necessarily embrace assimilationist goals. More than one, for example, had multiple wives, although not being a polygamist was one of the few qualifications for such judges, and polygamy itself was one of the few crimes they were intended to police. Although the courts were created at the height of the assimilationist era in federal Indian policy, Professor Fay argues that compulsory education and military intervention played far larger roles in suppressing Indigenous tradition.
Of course, little of this history is new. As Professor Fay notes, the 1928 Merriam Report, The Problem of Indian Administration, noted the courts’ departure from federal commands in favor of local norms, William Hagan thoroughly plumbed this history in William Hagan’s Indian Police and Judges: Experiments in Acculturation and Control (1966), and an amicus brief in Denezpi of Federal Indian Law Scholars and Historians that I participated in summarized this history as well.
But Courts of Indian Offenses, Courts of Indian Resistance is the first standalone history of the courts since Hagan’s, and as Fay notes, Hagan regarded the courts as “vanguards of a more highly developed civilization.” Fay, quoting Hagan at 168. Fay further places the history in conversation with scholarship in other fields, including subaltern studies, the history of the administrative state, and Michael Lipsky’s examination of street level bureaucrats. Fay also painstakingly compiles available data regarding the courts to show exactly how few of their cases fell into the categories the Department of Interior sought to punish. Out of 1565 cases reflected in federal records, she finds, only 2 concerned dances or feasts, 28 concerned plural marriage, and 14 concerned medicine men. She also provides case studies of the Yakama, Pima, and Standing Rock Sioux courts. As Fay notes, the absence of prosecution of religious dances at Standing Rock is particularly significant because federal efforts to suppress the Ghost Dance there contributed to the 1890 massacre at Wounded Knee.
It is the case study section of the article that I hope Professor Fay will expand as she finalizes the article. Although the Pima case study includes tantalizing hints of the intersection of prosecutions with community politics, otherwise the article has few examinations of the actual cases the courts decide or the particular judges who decided them. Nor does it currently engage in the broader history and cultures of the three Indigenous communities she examines, which is important in understanding the roles of the courts in those communities. It would also be useful to consider the relationship between the courts and contemporary tribal courts; although few CFR Courts exist today, many present-day tribal courts had their origins in Courts of Indian Offenses. I hope to see more of that kind of examination in the published work.
But the article already makes an important contribution as a modern archival examination of failed efforts of assimilation. This kind of history is particularly relevant now, in the face of unprecedented efforts to destroy existing norms and institutions of the rule of law. May the example of tribal people, who took a tool intended to destroy them and used it to continue their traditions, inspire us in the days ahead.
