We Had a Religious Crimes Code from 1883 to 1933.

This Eagle Shaman photographed in 1908 by Edward Curtis may have violated the Religious Crimes Code of 1883.


There’s concern lately about how a religion like Islam fits into American life. The present administration is strongly anti-Muslim, and some communities have prevented mosques from being located nearby.  In researching the topic, I was surprised to discover a somewhat similar situation in which we did in fact define religious activities as crimes. Those affected were the native tribal peoples, subject from 1883 to 1934 to the Religious Crimes Code. To me, this means that yes, it happened here and could happen again. Knowing about the past helps us keep a wary eye on the present.

The Code applied to many American Indians. It was codified by the Commissioner of Indian Affairs, Hiram Price, and signed by the Interior Secretary. Commissioner Price instructed all Indian Agents (the Agent was effectively the administrative head on a reservation) to take steps to prevent dances, feasts, and to take steps to deal with medicine men and their “heathenish” practices. Penalties were to include up to ten days withholding of rations and up to ten days in jail for a first offense, and withholding of rations and incarceration for at least ten and no more than thirty days for a second offense. Withholding rations could be drastic because there were few other sources of food, and many reservations were then (and are still) located in harsh climates.

The Commissioner thought that dances, particularly the Sun Dance, were intended to get the young men into fighting mood. Policy was aimed at settling Indians on reservations, teaching them to farm and become Christians. This may sound innocent enough, even if arrogantly assuming the utter superiority of white culture. But this kind of thinking, coupled with alarm over the Ghost Dance, resulted in the Army being brought in to quell the dancing, and resulted in the 1890 massacre at Wounded Knee, in which more than 300 Dakota were killed. Enforcement was in the hands of the Agent and his enforcers, the reservation tribal police. It’s also important to remember that the word “genocide” covers the deliberate destruction of a culture, not just killing its members. The code excepted the so called “Five Civilized Tribes”: the Cherokee, Choctaw, Chickasaw, Creek and Seminole.

Indian courts were set up, with either the top three officers of the tribal police, or three appropriate persons selected by the Agent. The mindset can be seen in the following text, written in 1883 by the Interior Secretary Henry M. Teller:

….Many of the agencies are without law of any kind, and the necessity for some rule of government on the reservations grows more and more apparent each day. If it is the purpose of the government to civilize the Indians, they must be compelled to desist from the savage and barbarous practices that are calculated to continue them in savagery, no matter what exterior influences are brought to bear on them. Very many of the progressive Indians have become fully alive to the pernicious influences of these heathenish practices indulged in by their people, and have sought to abolish them; in such efforts they have been aided by their missionaries, teachers, and agents, but this has been found impossible even with the aide thus given. The Government furnishes the teachers, and the charitable people contribute to the support of missionaries, and pended by their elevation, and yet a few non-progressive, degraded Indians are allowed to exhibit before the young and susceptible children all the debauchery, diabolism, a savagery of the worst state of the Indian race.

Teller was in some ways pro-Indian, being against allotment of Indian lands, but he was also strongly opposed to aspects of traditional culture. It was the practitioners of dances and other traditional religious activity that were defined as criminals. Essentially, the crime was not trying hard enough to mimic whites. (Note: the source for the quote is the North Dakota item listed below). Tribal courts still exist for some reservations and tribal units.

The Code was rescinded in 1934 by Commissioner of Indian Affairs John Collier in Circular 2970, “Indian Religious Freedom and Indian Culture.” Native peoples’ freedom of religion got firmer legal protection under the 1978 American Indian Religious Freedom Act (AIRFA).

Some aspects continue to be regulated. Eagle feathers are important in some tribal traditions, but these have been difficult to obtain since the 1940 restriction on the taking, possession and transporting of Bald and Golden eagles, or their parts. The feathers are available under certain conditions for qualified applicants (determined by tribal membership and availability).

There are a sizable number of unresolved issues involving various tribal peoples, often involving lands sacred to their religion. The classic case is the Black Hills in South Dakota, sacred territory taken by the government more than a century ago. There are currently 562 nations that are federally recognized. Reservations can have similarities to other impoverished areas, with high rates of unemployment, suicide, domestic abuse, alcoholism and drug use, and incarceration.

Some sources

–1978 American Indian Religious Freedom Act (Wikipedia).

–Lee Irwin, “Freedom, Law,  “Freedom, Law, Prophecy.” Prophecy.” Good context on Indian law. This is a PDF download.

–North Dakota state government on Indian Courts (seems objective, has relevant excerpts from the 1883 annual report of the Secretary of the Interior).

–On tribal courts  tribal courts,  from Tribal Court Clearinghouse.

–On control of eagle feathers and parts, from National Eagle Repository (US Fish & Wildlife).

Indian Reorganization of 1934 (Wikipedia, an important New Deal event that did improve things).

–National Congress of American Indians on religious freedom and sacred places .

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