Categories
Commentary

Isolated Judgement

In Oregon, arrogant Judges and Justices made decisions that have had lasting detrimental impacts on remote Alaskan tribes and their sovereignty. This post focuses on summarizing some of Sydney L. Harring’s arguments contained in her chapter “The Struggle for Tribal Sovereignty in Alaska, 1867-1900.” The chapter discusses how one Supreme Court of Oregon decision, a subsequent District Court of Oregon decision, and a District Court of Alaska decision unfairly impacted tribes in Alaska.[1] The continuous refusal to recognize the sovereignty (through status as dependent wards) of the Tlingit, and other tribes within Southeastern Alaska, has had lasting ramifications on their recognition status.[2]

The Tlingit lived along a vast area of the southeast coastline of Alaska, rendering them especially vulnerable to United States colonization.[3] Russians colonized the area first, but did not encroach on Tlingit sovereignty directly.[4] The few Russians that actually settled there feared the Tlingit, and rarely disturbed them.[5] Russia sold Alaska to the United States in 1867 without informing the Tlingit of either the Russians claim to the land, or the United States’ claim to the land.[6]

The first disaster of a decision was made by Chief Justice Williams of the Oregon Supreme Court in United States v. Tom.[7] In this decision, Tom, an “Indian”, could be tried under Oregon law for selling alcohol to other “Indians”.[8]  The Court determined that the Indian Trade and Intercourse Act of 1834 (“1834 Act”) did not originally apply to Oregon, but that the act of Congress of June 5, 1850 extended to Oregon only “so far as its provisions may be applicable.”[9] This decision essentially allowed Oregon courts the authority to decide which portions of the 1834 Act would be followed. The Court noted that under the 1834 Act, Oregon was generally thought to be part of Indian Country but that “such is not the case.”[10] Chief Justice Williams reasoned that white interests greatly outweighed those of “savages”:

Is that provision prohibiting the sale of liquor to the Indians applicable? Very much of the act of 1834 is clearly unsuited to the present condition of the country. All which tends to prevent immigration, the free occupation and use of the country by whites, must be considered as repealed. Whatever militates against the true interests of a white population is inapplicable. Reference can be made to no law which, in express words or by implication, repeals the provision in question; and no good reason can be assigned why it should not be held applicable to our condition. If required in a country wholly inhabited by Indians, how much greater the necessity for its enforcement here, where defenseless white persons, women and children, are exposed to the violence of drunken savages.[11]

In the second case, decided in 1872, Judge Matthew P. Deady’s confusing reasoning in United States v. Seveloff led to the conclusion that the Alaska Act of 1968 did not incorporate the 1834 Act to Alaska.[12] Judge Deady used the decision of the court in United States v. Tom in United States v. Seveloff by determining that “Alaska was not Indian country” in part because Alaska was not yet a territory when the 1834 Act was created. [13] Judge Deady further determined that only laws related for commerce, customs, and navigation applied to Alaska, resulting in “no criminal law in effect in Alaska.”[14] Judge Deady called on Congress to correct his opinion if they meant to incorporate the 1834 Act.[15] Congress responded in 1873 by passing a law “extending the liquor control provisions of the Indian Trade and Intercourse Act to Alaska.”[16]

In United States v. Kie, Judge Ward McAllister Jr. followed the precedent set by Judge Deady that “Alaska was not Indian country” when he determined that the protection of tribal law in Crow Dog did not apply to Alaska.[17] Judge McAllister’s position was in direct opposition to what Justice Matthews intended for an expansive definition of Indian Country in Crow Dog.[18] The definition was broad enough that Alaska should have been recognized as Indian Country by Judge McAllister.[19]

Traditional Tlingit practices created a tension with federal law; Americans view these traditional practices as immoral and illegal. To illustrate, the Tlingit’s practice of punishing “witches” and the allowance of the murder, by husbands, of wives thought to be adulterous surely did not sit well with American settlers in Alaska. The narrow view of these incidents failed to recognize Tlingit tribal practices as a whole, which often resulted in peaceful resolutions and fair negotiations in disputes.[20] The continual resistance of the Tlingit to western law was not only justified but was evidence of their strong tribal identity. 

The treatment of Tlinglit members in Judge Deady’s court led to the Tlingits’ sobering recognition of the “bias of white justice.”[21] Judge Deady gained a reputation for dismissing charges against whites for assaults and murders of tribe members while failing to show the same mercy to the Tlingit for similar crimes.[22] In one example, Kot-ko-wot was unrepresented by any tribal member in Judge Deady’s court and was sentenced to execution by hanging for murder; Judge Deady further ordered that Kot-ko-wot’s body to be dissected by a medical school.[23] The Tlingit tribe took issue not with the execution but mainly with the dissection of his body and Kot-ko-wot’s lack of Tlingit representation.[24] The Tlingit felt that the dissection went beyond what was necessary for proper retribution because, according to Tlingit belief, the mangling of Kot-ko-wot’s dead body through dissection would affect him in the afterlife.[25] This treatment led to the Tlingits’ having a deep mistrust of white settlers and tribal members feeling disrespected and unprotected by the courts.[26] United States Navy Captain Beardslee was the only one that even came close to striking a proper balance between federal law and the respect of Tlinglit law. However, he was forced to do so “extralegal[ly].”[27]

Chaos and disaster struck after a Tlingit Shaman was killed when a bomb used for whaling accidentally exploded while he was working as a crew member.[28] The Tlingit were outraged and retaliated by taking two white hostages (who were treated “honorably”), a whaling boat and demanded payment of two hundred blankets.[29] The captain of the whaling boat wanted to teach the Tlingit a lesson and refused to settle the matter according to Tlingit law, which was the general practice Beardslee put into place. The Captain of the whaling boat asked the United States Navy to retaliate and an opportunistic Captain Marriman responded to the call by enacting his deadly plan in Angoon:

As soon as Merriman anchored in the harbor, the Tlingit released the hostages and the property. Merriman, in turn, captured some Tlingit “ringleaders” and demanded four hundred blankets in tribute. When the Tlingit refused, Merriman responded first by destroying forty canoes and later by burning the village. The Navy expedition then shelled a nearby village, and a landing party burned all the houses, except for a few belonging to Indians known to the Navy as “friendly.”[30]

The extralegal actions of the Navy likely resulted from inconsistent Court opinions which ultimately led to chaos in the Tlingit region. After the horrifying Angoon incident, Congress finally stepped in and created a more stable federal court system in Alaska.[31] The United States government failed to recognize the sovereignty of tribes in Alaska and their status was akin to that of whites.[32] It was only in 1936 that two tribes, the Tlingit and Haida, were recognized when the Indian Reorganization Act of 1934 was amended to include Alaska. Alaska’s southeastern tribes’ sovereignty should have been recognized but the failure of several rogue Judges to recognize the area as Indian Country prevented that and spun the area into chaos.

By: Paige Diem


[1]  Sidney L. Harring, The Struggle for Tribal Sovereignty in Alaska, 1867-1900, in Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century, 207-50 (1994).

[2]  Id. at 207-08.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] United States v. Tom, 1 Or. 26, 27 (1853).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] United States v. Seveloff, 1 Alaska Fed. 64, 65 (D. Or. 1872).

[13] Harring, supra note 1, at 214-15.

[14] Id. at 215.

[15] Seveloff, 1 Alaska Fed. 64, 65.

[16] Harring, supra note 1, at 215.

[17] Id. at 219.

[18] Id.

[19] Id.

[20] Id. at 220-21.

[21] Id. at 217.

[22] Id.

[23] Id.

[24] Id. at 225.

[25] Id. at 226.

[26] Id. at 225.

[27] Id. at 228.

[28] Id. at 229.

[29] Id. at 230.

[30] Id.

[31] Id.

[32] Id. at 233.

By Tribal Law Journal Blog

The Tribal Law Journal was established in fall 1998 for the purpose of promoting indigenous self-determination by facilitating discussion of the internal law of the world’s indigenous nations. The internal law of indigenous nations encompasses traditional law, western law adopted by indigenous nations, and a blend of western and indigenous law. Underscoring this purpose is the recognition that traditional law is a source of law.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s