Panel 3: Native Peoples and the Federal Government: Litigation & Policing

Bethany Berger
Histories of Native encounters with U.S. law often must rely on how those encounters appear in U.S. legal documents and reporting. This paper examines three common dimensions that these documents miss.  First, some of the litigants in important civil rights cases like Corrigan v. Buckley (US 1926) and Medway v. Needham (Mass 1819), although understood as involving African Americans, in fact involved people with Indigenous heritage in ways important to these cases.  Second, many important cases depicted as about the property and efforts of Indigenous men—from the Privy Council’s Mohegan Case, to United States v. McGowan, to Williams v. Lee, to Bryan v. Itasca County—in fact were driven by Indigenous women or concerned their property.  Finally, these documents hide the important ways that the source of lawyers shaped the litigation of these cases, from the tribally-controlled Worcester v. Georgia and Williams v. Lee, to the assimilationist-reformer-driven Standing Bear v. Crook and Elk v. Wilkins, to the importance of legal services for the poor in shaping McClanahan v. Arizona and Bryan v. Itasca County.  The paper urges researches to look for these hidden elements in landmark litigation.

Bonnie Cherry
This paper explores the legal origins and administrative evolution of the Shadow Wolves: an “all-Native” patrol unit of U.S. Immigration and Customs Enforcement (ICE) located on the Tohono O’odham Nation. Established in 1973 during the “self-determination” era of U.S. federal Indian policy with the express permission–and material support– of the Tohono O’odham Nation, the Shadow Wolves unit emerged as a strategic, adaptable response to ostensibly urgent threats and exemplifies the interplay between Native sovereignty and federal border security operations. Broadly, this paper asks how and to what extent the Shadow Wolves unit represents interagency cooperation between Native nations (the Tohono O’odham Nation in particular) and the federal government in the context of national security. It also explores how Tribal sovereignty and lawmaking have shaped networks of security production in the Tohono O’odham borderlands for the last fifty years.

Mikaela Gerwin
On the World War II home front, the federal government and the American Social Hygiene Association (ASHA) escalated a decades-long effort to prevent the spread of sexually transmitted diseases (STDs) through criminalization. By the 1940s, federal and state laws across the country had entrenched a legal system, often referred to as “the American Plan,” that allowed for forced STD testing, medical treatment, and incarceration of women. Historians have shown how local officials and law enforcement disproportionately targeted women of color and working-class women under the American Plan. How did this penal regime impact Native women during the World War II period? With a focus on young Lakota, Blackfeet, and Winnebago women in the Midwest and West, this paper demonstrates that wartime conditions undoubtedly created new opportunities for Native women to leave reservations and become “American” through social and sexual pursuits. This paper argues however that federal authorities, local law enforcement, and even tribal leaders worked in tandem to circumscribe Native women through STD prevention in the form of racialized surveillance, invasive medical testing, incarceration, and punitive attempts at returning Native women to reservation internment. I focus additionally on how the federal Bureau of Indian Affairs (BIA) manipulated public health concerns around transmission of STDs to bolster its own power, extending its influence outside the reservation and cementing its authority on the reservation. Together, BIA officials, local, and tribal leaders employed a diverse array of carceral spaces to control sexually active Native women and girls, from local jails, hospitals, boarding schools, to the reservation itself. I also depict women’s methods to evade these actors and the law, including by appealing to other sources of authority. The primary archival sources are BIA Records from 1941-1945 and contemporary memoirs of Lakota, Blackfeet, and Winnebago tribal members.

Katrina Jagodinsky
Three cases (Kansas Supreme Court, 1868/9; Nebraska District Court, 1879; Washington Territorial District Court, 1880) reveal remarkable overlap among Indigenous men’s invocation of masculine rights to tribal sovereignty AND federally-protected civil rights. Their habeas petitions echo one another in Kansas and Nebraska, and the Washington petition articulates a challenge to the fundamental source of the Office of Indian Affair’s authority over off-reservation Native people. The response of jurists to these petitions reflects the promise and failure of the Reconstruction era, with Kansas jurists enthusiastically endorsing Indigenous sovereignty and civil rights simultaneously, Nebraska jurists severing sovereignty from civil rights though acknowledging that both exist, and Washington jurists rejecting sovereignty and civil rights entirely. The paper will examine these cases in detail to put them in conversation with one another, but will also consider them as fundamental steps in the overall debate over sovereignty and rights regarding Native people between the Civil War and the Indian Citizenship Act of 1924. In addition to applying critical legal analysis, this is also a gendered study, since each petitioner invoked their status as men as the basis of their rights while Indigenous women did not generally face arrest for leaving their reservation even if they encountered anti-Indian violence when they did so.

Chair: Gregory Ablavsky, Stanford Law School