The Code of Indian Offenses

The instrument was not an Act of Congress and was never voted on. In 1883 the Secretary of the Interior, Henry M. Teller, directed the Commissioner of Indian Affairs to establish courts on the reservations and to draw up rules for them, and the resulting code was issued as departmental regulation. Its authority rested on the agency's control of the reservations and of the rations, annuities and supplies on which the people there had been made to depend after the destruction of the buffalo herds.

The offences it created were of two kinds. Some were ordinary: theft, drunkenness, destruction of property. The rest were ceremonial and social. The sun dance, the scalp dance, the war dance and other similar feasts or dances were prohibited, and participation was punishable by withholding rations for a period or by imprisonment. The practices of medicine men were prohibited, on the stated ground that they hindered the adoption of civilised habits and discouraged families from sending children to school. The destruction or giving away of property at a death, which is the mourning practice of many nations, was prohibited. Plural marriage was prohibited.

The judges of these courts were themselves Indians, appointed by the agent and removable by him, which is a feature of the design worth noting: the enforcement was placed inside the community it acted on.

The code was revised in 1892 and the prohibitions were sharpened rather than softened, with graduated penalties running to thirty days' imprisonment for a first offence. It was enforced with varying energy across agencies for half a century, and its practical effect was to make open ceremony a matter of an agent's tolerance.

The nations did not comply and did not simply defy. Ceremonies moved. Some were held in remote places or at times when the agency was not watching. Some were relabelled as Fourth of July celebrations, which the agents encouraged, so that a permitted patriotic gathering carried a prohibited ceremony inside it. Some elements were separated out and continued alone. Where a ceremony required a specific season, a specific site or a specific number of participants, the interruption did real damage, and several were reconstructed later from the memory of people who had seen them as children.

The change came from inside the same department. John Collier became Commissioner of Indian Affairs in 1933 and issued Circular 2970 in January 1934, on Indian religious freedom and Indian culture, directing that no interference with Indian religious life or ceremonial expression would thereafter be tolerated and that the cultural liberty of Indians was in all respects to be considered equal to that of any other population. The Indian Reorganization Act followed in June.

The Courts of Indian Offenses still exist under federal regulation. What was removed was the list of ceremonies.