Indian Killers: Crime, Punishment, and Empire

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by Nick Estes

Last June the Westmoreland County Historical Society reenacted the 1785 hanging of Mamachtaga, a Lenape man. In a viral video (now removed), jeering white onlookers shouted at the “Native” actor playing the condemned: “It’s so hot today, we could just bake him!” “I got some salt and pepper!” “Let’s burn him! Let’s cut off his head and put it on a pike!”

Though horrific, the reenactment tells truths about the convergence of law, history, and mainstream perceptions about Indigenous peoples. Indian killing is not only sport but the cornerstone of “law and order” in the founding of a settler nation. This essay shows how Indian killing is imbued within the institutions of U.S. law, the police, gender norms, popular culture, and history.

The historical society’s executive director Lisa Hays defended the reenactment telling ICTMN that Native outrage misinterprets historical lessons: “Cruel punishments such as these led to [the] creation of the U.S. Constitution’s Eighth Amendment.” This is false. Public hangings as a form of capital punishment continued well into the twentieth century, and three states still permit it as a form of execution. In addition, the Eighth Amendment, which prevents “cruel and unusual punishment,” didn’t apply to Natives at the time who were often treated as prisoners of war not as citizens. Nor did it apply to the enslaved, the poor, or those viewed as “threats.” But to Hays’ credit, there are lessons to be learned.

Indigenous peoples were seen as savage, the opposite of Western civilization, and therefore lawless. On the frontier, law sanctions its own nonexistence. It’s no coincidence that Mamachtaga, a Lenape, was the first person convicted of murder west of the Allegheny Mountains. The mountain range marked the western frontier of the British Crown’s 1763 Royal Proclamation, which designated the territory west of the mountains an “Indian Reserve” and forbade white settling. The Revolutionary War was fought partially to open up these lands in the Ohio River Valley for further expansion. Although the Lenape largely remained neutral, in 1779 they waged war against the U.S. who had forcefully removed them from the east coast. Some Lenape, including Mamachtaga’s people, however, sided with the U.S. and were awarded protection. In spite of their allegiance, the Lenape still posed a significant threat to white colonists — they continued to live atop desired land. Sentencing Mamachtaga to death for the murder of a white man was part of securing control over Native bodies and lands in the region through the law. The result was outright genocide. After a string of broken treaties, many forced removals, and relentless warfare, by the mid-nineteenth century the Lenape population plummeted from about 25,000 to 1,000.

Indian killing authorized itself not only through law but also through treaty-making. While treaties typically established peace, alliance, and land cessions, they also attempted to weaken Indigenous governance. This had catastrophic consequences. For example, only Native men were engaged in diplomacy and treaty-signing, erasing women’s traditional political authority. These newly introduced gender divisions disciplined Native society, relegating women to inferior positions and to the private sphere such as the home where they could be properly “civilized.” As a result, Indigenous peoples were targeted as deviant and lawless in various ways for transgressing settler law by practicing traditional forms of governance. The policing and killing of Indigenous peoples, however, occurs not because settler society unconditionally hates Native culture or religions. Indigenous peoples are targeted because they obstruct access to the land. Gaining access to land requires not only annihilating Indigenous peoples, but also destroying their governance systems by imposing social structures according to colonial gender norms.

Some have called the hanging reenactment a lynching, an extra-legal murder by mob violence. Lynching as racial terror was mostly used to secure Black labor and to prevent Black mobility during slavery. Facing the loss of privilege after the Civil War, white elites used lynching to break up Black-white alliances that had formed in the South during Reconstruction. For the most part, it worked. Lynching photographs from the Jim Crow era show white families and entire communities, as if out for a picnic or a celebration, gathered around mutilated Black bodies. Collective acts of terror coincided with segregation and anti-miscegenation laws, solidifying white control over Black bodies and institutions of power. It told a murderous lesson: obey us or else.

For others considered non-white, such as Mexicans, Latinxs, or Chinese, lynching played a similar role. Even poor Italian immigrants, who at the time were not considered “white,” faced lynch mobs. Both the law and vigilante violence in each case worked in tandem to exclude, control, and murder with impunity.

While lynching operates both outside and alongside the law, more often than not Indian killing operates within the parameters of law. Consider former Deputy Assistant Attorney General John Yoo’s 2003 “torture memos” in support of torture in the War on Terror. As Chickasaw scholar Jodi Byrd notes, Yoo cited the 1873 Modoc Indian Prisoners Supreme Court opinion that justified the murder of Indians by U.S. soldiers. “All the laws and customs of civilized warfare,” the Court opined, “may not be applicable to an armed conflict to Indian tribes on our Western frontier.” “Indians” were legally killable because they possessed no rights as “enemy combatants,” as it is with those now labeled “terrorist.”

Labeling Natives as “criminals” against the law diverts attention away from the U.S.’s own illegality and criminal behavior, as Ojibwe scholar Heidi Kiiwetinepinesiik Stark reminds us. While bitterly embattled over the question of slavery during the Civil War, the U.S. also waged relentless wars against the Dakota, Navajo, and Apache to secure its Western frontier. Violently crushing Native resistance in the 1862 U.S.-Dakota War, Dakota people were expelled from their homelands in Minnesota Territory. Abraham Lincoln authorized the hanging of 38 Dakota prisoners as punishment — in what became known as the largest mass execution in U.S. history — the same week he signed the Emancipation Proclamation. Also during this time, thousands of Navajos and hundreds of Mescalero Apaches were interned at Fort Sumner, exiled from their homelands in the Southwest to clear the land for white settlement. Fort Sumner was a death sentence. Thousands starved to death or died prematurely as a result of the concentration camp’s brutal conditions. In each case, however, the crime was resistance, exerting Indigenous self-determination, and defending the land in response to the U.S. violating its own treaties.

The “criminal” acts for which Natives were subsequently hanged or imprisoned for were extensions of their own commitments to bare survival. These collective acts of punishment were meant to terrorize Indigenous resistance, to discourage all forms of Native rebellion and life on its own terms.

Imprisonment and execution inaugurated settler law over Indigenous peoples and lands. The first Native person executed by colonial law took place in 1639 in Connecticut when Nepauduck, a Pequot, was beheaded by military authorities for murdering a white man. The execution was the result of genocidal, settler warfare inflicted upon the Pequots that indiscriminately targeted man, woman, and child. Sociologist David Baker notes, since Nepauduck’s execution, more than 450 Natives — eight were women — were executed under death penalty jurisdictions. The vast majority were hanged and 35% of all executions were carried out during the early colonial period. Baker’s exhaustive study concludes: “death penalty jurisdictions have exposed American Indians to lethal sanctioning when Indians challenged the U.S. government’s policies and campaigns to annihilate tribal people.”

Although capital punishment plays a significant role in exerting legal jurisdiction over Native lands and bodies, less studied is the role of policing. 2016 was deadly and violent year for Natives. According to the Guardian’s The Counted, which tracks police killings in the U.S., police killed 24 Natives, an average higher than all racial groups. Thirteen were young men, at a rate six times higher than the national average. Five were women, at a rate nearly seven times higher than the national average. All but one were killed off-reservation by non-Native law enforcement. Each one of these killings was sanctioned by law to uphold a colonial legal order.

Policing Native bodies off-reservation, however, is not without history. In 1883, the Secretaries of the Interior implemented the “Civilization Regulations,” criminalizing the sun dance and other Indigenous practices. Cheyenne and Muscogee intellectual Suzanne Shown-Harjo documents how violating the Regulations brought stiff punishments, such as starvation and imprisonment, and disallowed Natives from “going off the reservation,” unless they received prior permission or they were enrolled in “civilizing” institutions such as boarding schools. The impact of this “civilizing” endeavor is under-appreciated in how it informs the broad strategies of policing Natives off-reservatiom. Since nearly four of five Natives live off-reservation, most are subject to non-Native jurisdictions.

“Going off the reservation” is a phrase current in political and military circles. It means to enter hostile territory without orders or to deviate from the norm. For Native people, it historically meant those who defied colonial borders were usually hunted down, summarily shot, hanged, or imprisoned.

Recently, more than 570 Water Protectors have been arrested and many more brutalized by police near the Standing Rock Sioux Indian Reservation in protest of the Dakota Access Pipeline. Although most were arrested within the unceded territory of the 1851 Fort Laramie Treaty, they were apprehended by non-reservation law enforcement, primarily the Morton County Sheriff’s Department. As the #NoDAPL movement proves, questions of Native criminality, territory, and sovereignty are hardly settled. And there is nothing “settled” about the history of Indian killing in the U.S. It remains an active element to continue to “possess” lands and “civilize” people not entirely conquered.

Breaking the law for the collective good (in this, case stopping a pipeline) is labeled “criminal.” But the criminal act assumes minor importance. As captives of the law for political acts, Natives are political prisoners. The mass arrest, incarceration, and killing of Indigenous peoples continues to define U.S. empire. Yet, just because Water Protectors, everyday Native people, and Land Defenders surrender their bodies to the law often by the barrel of a gun and the locking of a jail cell, they don’t surrender the spirit of Indigenous resistance that ensures our continued existence.

Even while the Westmoreland Historical Society and the Washington football team reenact and celebrate the killing, mutilation, and destruction of Native bodies to the jeers and cheers of a settler nation, Native activists, writers, educators, artists, filmmakers, and musicians substitute these images of Native death with the imaginings and real stories of Native life and collective resistance. What if we removed images celebrating Indian death that serve no purpose other than to dehumanize, mock, and degrade? What would we see? Would throngs of a settler nation gathered to celebrate another Indian killing for sport and entertainment and the institutions of law that justify it come into clearer focus?

As someone recently said to me, “The narrative is changing. We are living in sacred times.” Indeed, we are. And now’s the time to critically reflect, fight back against the centuries of horror inflicted upon us, and abolish all oppressive institutions, if we and our planet are to have a future.

Hecetu Welo!