Portland State University. Department of History
Date of Publication
Master of Arts (M.A.) in History
Indians of North America -- Oregon -- Legal status, Laws, etc., Indians, Treatment of -- Oregon
1 online resource (91 pages)
Indian-white relations in early Oregon are often viewed in terms of warfare and treatymaking, but these are only the most obvious aspects of a larger struggle to resolve cultural conflicts, settle land disputes, and establish order in a new territory. Additional understanding of both white attitudes toward Indians and of Indian exasperation with the settlers may be gained from a study of how criminal justice applied to the red man during the turbulent pre-reservation era.
Prior to the coming of America settlers, Oregon Indians knew the justice of the Hudson's Bay Company. In dealing with personas accused of harming HBC personnel or property, Dr. John McLoughlin acted with firmness and persistence while taking cognizance of the Indian's own ideas of just treatment, The American leaders of later years sometimes imitated McLoughlin's firmness but failed to recognize the importance of Indian tradition. Dr. Elijah White, after bring appointed the first U.S. Indian agent for Oregon in 1842, presented the natives with a law code which largely ignored their own traditions and confused them by making major offenses of what had formerly been viewed as minor infractions.
Dr. White assured his charges that the new law code came from God and was recognized by all civilized nations. A similar smugness was apparent in later leaders who were convinced that the court proceedings against Indian troublemakers could not help but make a deep and beneficial impression on the defendants' fellow tribesman. Such assurance sometimes blinded the whites to inequities in their application of justice to Indian-white disputes and this blindness contributed to friction between the races.
Criminal justice for Indians was a more complex matter during Oregon's territorial period than it had been during the HBC era. To the Indians, the British had been trading partners, but the Americans were dispossessors. A sizable influx of settlers preceded the signing of the Indian treaties, and the presence of two divergent cultures on the same disputed ground made necessary some means of dealing with the disagreements which inevitably arose. But civil officials, army officers, judges, and Indian agents were still working out their respective spheres of influence while new settlers might be many miles away from any hands. The belief expressed by leading figures in the army and the Indian Bureau that whites were to blame for outbreaks of violence did not encourage irate settlers or miners to rely on these agencies to settle disputes with Indians, and citizens' courts, minors' committees, or indiscriminate reprisals were often only forms of "justice" employed.
Indians noted the infrequencies of prosecution for whites who committed crimes against them and complained that the whites had one set of laws for themselves and another for the red man, Adverse public opinion worked against the efforts of Indian superintendent Joel Palmer to correct this grievance, and lawyers sometimes questioned whether Indian were, in fact, "persons" or whether their mistreatment could constitute a crime. Even Dick Johnson, a successful Indian farmer who abandoned his native culture and won the support of Palmer and of Jesse Applegate in his efforts to model his life on white men's ideals, had so little legal identity that his suspected murderers were not tried and one of them was allowed to take his farm.
Segregation of land and of peoples was the distraction in which both the law and public opinion pointed in Oregon Territory. Consciously and unconsciously, whites encouraged Indians to accept a reservation solution to the problems generated by land-hunger and culture clash, and among these problems legal discrimination and vigilante justice figured prominently. Hatred of the Indians among many of the settlers contributed substantially to distortion and non-application of criminal justice, but even with favorable public opinion, as in the case of Dick Johnson, the law itself was insufficient for an Indian who did not remove himself from white society and accept the treaty protections of the reservation.
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Ferrell, John Samuel, "Indians and Criminal Justice in Early Oregon, 1842-1859" (1973). Dissertations and Theses. Paper 1601.