“Making Peace with Crow Dog’s Ghost: Racialized Prosecution in Federal Indian Law”
Discussion | Summary
In his essay "Making Peace with Crow Dog’s Ghost: Racialized Prosecution in Federal Indian Law," Steve Russell examines key Indian Law events—Crow Dog, the Major Crimes Act of 1885, and Kagama—through the lens of racialized criminal justice. Russell argues that these cases were used to erode tribal sovereignty, portraying tribal citizenship as race privilege. He highlights the Court's role in expanding and then contracting Indian national sovereignty, ultimately suggesting that only Congress or the Court can restore Indian jurisdiction over their lands.
Key Events: Crow Dog, Major Crimes Act of 1885, Kagama.
Racialized Criminal Justice: Examination of the legal events.
Erosion of Sovereignty: Portrayal of tribal citizenship as race privilege.
Court's Role: Expansion and contraction of Indian national sovereignty.
Restoration of Sovereignty: Congress or the Court must act to restore jurisdiction.
Discussion | Full Text |
Fall 2016
In his essay “Making Peace with Crow Dog’s Ghost: Racialized Prosecution in Federal Indian Law,” author Steve Russel explores the succession of Indian Law events, first Crow Dog, then the Major Crimes Act of 1885, and finally Kagama, through the lens of “racialized criminal justice”.[1] Citing the “alacrity”[2] with which Congress moved to abridge tribal sovereignty, having been alarmed by Crow Dog, legislators passed the Major Crimes Act. Russel notes that with equal speed the Court, in Kagama, was willing to rubber stamp these newly enumerated plenary powers by subjecting two Indians to U.S. criminal courts. Subsequent cases including Oliphaunt and especially Duro v. Reina would further tear at sovereignty as the Court leveraged and played on “the ‘unspoken assumption’ in U.S. dealings with Indians and the ‘implicit loss’ of criminal jurisdiction because of their dependent status.”[3] Because the decisions first broadened the scope of Indian national sovereignty, then shrunk it back to shelter non-Indians from this curious form of double-jeopardy, Russell claims that lawmakers and activists used, and continue to use, these cases as a pretext “to portray tribal citizenship as nothing but race privilege supported by a history of…racial segregation.”[4] For example, after starting out on a path of supporting sovereignty in Crow Dog, splits on the court in future cases indicate that “the current state of the law…would allow the death penalty to turn on the jurisdictional fact of whether a defendant is Indian.”[5] Russell concludes that the only hope for shoring up sovereignty eroded by these three events is for “Congress or the Court to pull back from the abyss of racialized criminal justice and return Indian jurisdiction over Indian land.”[6]
Bibliography
Russell, Steve. "Making Peace with Crow Dog's Ghost: Racialized Prosecution in Federal Indian Law." Wicazo Sa Review 21, no. 1 (2006): 61-76. Accessed October 19, 2016. doi:10.1353/wic.2006.0010.
[1] Russell, Steve. "Making Peace with Crow Dog's Ghost: Racialized Prosecution in Federal Indian Law,” p. 64.
[2] Ibid., p. 62.
[3] Ibid., p. 66.
[4] Ibid., p. 69.
[5] Ibid., p. 72.
[6] Ibid., p. 73.