(Relevant FAQ link)

Banishment and corporal punishment were hardly the only means of dealing with criminals in Native societies. Here I'll be dealing with such societies in the early colonial period east of the Mississippi (with a bit of spill-over into the Plains) and setting aside later developments like the Cherokee National Prison which was established in mid-1800s.

There are two major philosophical stances that can be applied, generally, to the justice systems of the region. First, crime is not a matter between individuals but between families, clans, towns, nations, etc. So if you commit a crime, it's not just your immediate victim that will be seeking justice, but the victim's community; and it's not just you that takes the heat for the crime, it'll come back on your entire community too. Second, the indigenous justice systems are geared more toward restitution than retribution. It's less about punishing the criminal, and more about restoring the balance between the two communities. Admittedly, the difference between restitution and retribution can become a bit fuzzy at times.

Banishment and corporal punishment aren't the only means of achieving these goals. More often, an exchange of goods or services will be made to compensate the victims for their losses.

Let's get into some specific examples:

• Wendat: Also known as the Huron Confederacy, the Wendat lived between Georgian Bay (part of Lake Huron) and Lake Ontario at the time of European contact. Many were absorbed into the Haudenosaunee (Iroquois Confederacy) during their 1649-50 war, while others fled to the west and south, merging with other Iroquoian nations to become the Wyandot. In this post, I discussed the four major categories of crimes among the Wendat in the early half of the 1600s: murder, theft, witchcraft, and treason. Here, I'll just summarize. Murder was resolved by the exchange of a certain number of gifts, each valued as equivalent to a beaver robe. The typical number of gifts were 30 for a male victim and 40 for a female victim. The older custom of revenge killings was seen as a greater crime than the original murder and absolved the murderer's clan from needing to pay anything. Lesser injuries were dealt with in the same way, though the number of gifts needed were far less than murder. The punishment for theft involved the members of the victim's longhouse being allowed to take whatever they desired from the thief's longhouse. Those accused of witchcraft would be judged by a secret council of elders who could authorize their execution; anyone who killed a suspected witch without such authorization would be treated as a murderer. Traitors were executed in secret in a way that made it appear as though they had been killed by the enemy nation they were working with.

• Haudenosaunee: The Haudenosaunee system was similar to that of the Wendat, with some differences. Murder was typically resolved with a similar exchange of gifts, but the murderer's community might refuse to pay these on behalf of the murderer if he was did not confess or atone for his crime (such as being a repeat offender), which would usually cause the murderer to flee from justice. The victim's family then could pursue the murderer's execution by either performing it themselves or acquiring a sort of bounty hunter to do it for them. A suspected witch could be killed if caught in the act, but otherwise the witch would be tried before a public council. A confession and a pledge to abandoned witchcraft would allow the witch to go free with merely a loss of social standing; otherwise the trial continued and if he was found guilty, the witch would be executed. Treason is defined in the Gayanashagowa (the constitution of the Haudenosaunee) as neglecting or violating the law of the Gayanashagowa in such a way that threatens the integrity of the confederacy; first time offenders receive a warning and are to be driven away on their second offense. The Gayanashagowa also has several laws concerning the behavior of the members of the Grand Council and the Clan Mothers as well as the punishments they should receive for breaking them. Typically this results in impeachment, but in the case of the “pine tree chiefs” they were allowed to retain their titles but were no longer granted an opportunity to speak at the council.

• Creek: In the case of murder, the victim’s family had the right to pursue justice themselves but typically would bring the case before the talwa council for mediation. If, for some reason, the victim’s family didn’t opt for mediation at first, the accused could flee to one of several sanctuary towns where they’d be safe until the Green Corn Ceremony concluded. During the Green Corn Ceremony, all crimes other than murder were forgiven. This would give the murderer’s family time to negotiate with the victim’s family. Once negotiations began, if the murder is something more like what we think of as manslaughter, the usual outcome is that the murderer would work for the victim’s family for a negotiated period of time, or be banished from the community entirely. For true murder, the murderer would typically be executed, but could negotiate the manner and the executioner. The Creek also have a class of conservation laws that put restrictions on hunting, which fell under the jurisdiction of the various Creek clans. For example, the Bear Clan governed how bears could be hunted; you couldn’t kill a pregnant bear, a hibernating bear, or cubs. If you found to have done any of those, you either had to negotiate restitution to the Bear Clan or the Bear Clan would take you before the talwa council for arbitration.

• Chickasaw: The Chickasaw system is similar to the Creek system, with a few exceptions. The most important was that the victim’s family could trade up if the victim was of a higher social standing than the murderer. The murderer’s family would have to provide someone of equal social standing as the victim to be executed. If the murderer or his replacement failed to show up for the appointed day of the execution, it was seen as the height of cowardice as such an action could result in tragedy for their family in this life and the next.

• Lakota: There were various policing societies among the Lakota known generically as akicita. They were mostly concerned with maintain professionalism during war, but they did interact with “civilian” life on various occasions when a large number Lakota gathered together, especially during the buffalo hunts. There were an assortment of rules governing such hunts, mostly concerning how and when someone could initiate the hunt (as to avoid preemptively scaring the buffalo and scattering them). Those who violated these rules would be punished by the akicita. Typically this involved the destruction of personal property, including the person’s tipi. However, if the offender showed remorse, the akicita would also take up a collection from the community to replace in kind the items that had been destroyed. In some case, the offender would be flogged instead. Theft was said to be incredibly rare, and it was a highly stigmatized crime, regarded as something that no intelligent adult would do. In those rare cases where someone was caught stealing, the thief would receive harsh public censure and ostracism. For murder, it was generally left to the victim's family to avenge, though if the murderer had a particularly high social standing he might be effectively untouchable without some cunning maneuvering. The murderer might flee to another tipospaye where he could be sheltered by his relatives there until a Wicasa (one of the highest ranks in Lakota society) could guide the murderer through penance and purification and arbitrate a peaceful resolution between the victim's and murderer's family, usually through the exchange of horses (obviously this a post-Columbian tradition) donated by the murderer's family and the leaders of the murderer's community.

As already mentioned, the answer is going to differ wildly across different societies, but I can give you an idea for Pueblo societies in New Mexico and Arizona based on ethnographic work (largely from the 19th and early 20th century).

For the most part, the principles /u/Reedstilt outlined for the East (quoted below) apply equally to Pueblo society.

There are two major philosophical stances that can be applied, generally, to the justice systems of the region. First, crime is not a matter between individuals but between families, clans, towns, nations, etc. So if you commit a crime, it's not just your immediate victim that will be seeking justice, but the victim's community; and it's not just you that takes the heat for the crime, it'll come back on your entire community too. Second, the indigenous justice systems are geared more toward restitution than retribution. It's less about punishing the criminal, and more about restoring the balance between the two communities. Admittedly, the difference between restitution and retribution can become a bit fuzzy at times.

Particularly, in Pueblo society a lot of "criminal" law is geared towards correcting spiritual imbalances that impact the entire community. In general, these community problems (such as drought) are caused by taboo breaking or negligence of ceremonial duties, or less frequently, by witchcraft (which is an intentional harm rather than one due to negligence like taboo breaking). Breaking ritual taboos or witchcraft are serious charges because they negatively influence the entire community.

In most Pueblo societies, historically, the war captain(s) and their lieutenants would be in charge of handling capital punishment or other severe punishments (such as torture). These sorts of punishments were mostly reserved for equally severe crimes that were crimes against the community. Witchcraft in particular was one of few crimes that would often result in capital punishment, as an intentional harm caused to the community rather than harm due to negligence. There is some archaeological evidence dating back to around AD1200 and later that fits the description of executions of Pueblo witches, suggesting a greater antiquity to the ethnographically attested practices.

In terms of other serious crimes, the documentary record is fairly sparsely populated with instances of murder in Pueblo villages suggesting that it was fairly uncommon. The actual rate of murder is probably higher than reported, but still not at all common.

As for lesser crimes, particularly taboo breaking, shaming was a preferred method for correcting the behaviors of the "criminal". The idea here being to correct behavior and so remove the negative influence on the community that the offending behaviors represent. As noted, crime is mostly conceived of as offense against entire communities or segments of communities rather than as a wrongs done to individuals.

Shaming could simply take the form of town gossip, but there are other formal methods of shaming that involve "clown" kachinas. Kachinas are Pueblo spirits usually representing specific land forms/environmental features or ancestors/mythic beings. During public kachina ceremonies, participants dress in the role of a particular kachina (usually determined by their position within certain religious societies) and in some ways take on or channel the supernatural aspect of that kachina during the ceremony.

The "clown" kachinas are most prominent among the Western Pueblos (Zuni and Hopi, and Laguna and Acoma to a lesser extent), but are present among most Pueblo groups. For instance, the "mudhead" kachinas from Zuni or the iconic black-and-white striped Hopi "clowns".

These "clown" kachinas generally have the role of pointing out social transgressions and correcting behavior. On the one hand, individuals taking on the role of a "clown" kachina during a ceremony have some license to act in socially unacceptable ways and thereby demonstrate "correct" behavior through it's negation. Additionally, during kachina rituals, the "clowns" generally work around or outside the dances and serve the function of correcting any errant behavior within the ritual dance and otherwise just facilitating the dance (for instance, by picking up dropped ritual items and reattaching them to dancer's costumes).

Finally, and more to the point of your question, the "clowns" have a certain leeway to publicly shame or satire individuals in the community for deviant or improper behavior, and especially for negligence of ceremonial duties or taboo violations (such as giving water to an individual who should be abstaining as part of a society initiation). In the guise of a supernatural kachina, the clown's mockery become depersonalized: a supernatural, on behalf of the entire community, is castigating the rule-breaker rather than any individual within the community. This helps smooth over the social friction caused by correcting unacceptable behavior and puts the focus on an individual changing their actions willingly rather than through coercion (threatened or otherwise) as in Western justice systems.

This question is actually harder to answer than you might think. Native American culture spans thousands of years and dozens of different biomes. Given the way that human societies adapt to their environment and way of life, this could mean that what is true for a society of trappers and small game hunters in the far north does not apply even remotely to nomadic herdspeople of the Great Plains. Furthermore, a lot of previous history has been based on the accounts of European settlers, ignoring the fact that contact, even very early contact, changed the indigenous way of life substantially. At first through trade for luxury items, but then even more so as this trade came to dominant traditional hunting and gathering as the means for sustaining life. I can shed some light for Native Americans (or Canadians) within the Cree and Naskapi-Innu groupings, as well as some generalities about hunter-gatherer societies globally.

First, it should be noted that “law”, while used by a substantial number of anthropologists and historians, is actually not the most useful of terms to apply here. It certainly helps to explain things to laypeople since there’s a general understanding of “Oh, law! That’s to do with crime and punishment!” but in truth, most hunter-gatherer societies did not have “laws” as we know them. They certainly had social norms to guide conduct, they certainly had ideas of right and wrong and they certainly had ways of dealing with people who violated social norms. However, there was not the same sense of “rules backed up by force and legitimate authority figures” that law today suggests. Additionally, “law” was not particularly separate from other spheres of life such as religion, family or decision-making in the same way that it is often divided today. Social regulation, such as kinship groupings, were seen as inextricably linked with what we might today call rules. As a rather strange illustration of this, take the observations of early missionary Le Jeune. He noted that disputes of morality were rare, if not non-existent, in the Naskapi peoples he observed. Today, if someone is accused of murder they have two essential arguments to make: 1) a FACTUAL argument: “I didn’t kill that person” and 2) a NORMATIVE argument: “the murder was justified because X”. The latter form of argument seems to have been largely absent within Naskapi society, near universal agreement on right and wrong seems to have been the norm. When accused of a violation, people often simply accepted the group’s decision, acknowledging their wrongdoing.

As for actual “crime and punishment”, you’re quite correct about the lack of prisons and the consequences of this. Most hunter-gatherers, particularly the nomadic majority, simply lacked the material resources to isolate individuals and support them while also preventing them from significant contribution to the group. In this sense, hunter-gatherer punishments can seem quite harsh by Western standards, corporal punishment and exile being far more common (see, for example, early commentaries on Aboriginal Australian punishments available in (Clark, Angus and Robertson, Select Documents in Australian History, 1788-1850, or a multitude of examples in Chris Harman, A People’s History of the World). However, Naskapi culture (among others) was also far more forgiving of minor transgressions. People’s shortcomings were often more casually accepted and punishment was usually determined by calm, group decision in which any interested parties might participate. The idea of “crime X results in punishment Y” is actually fairly recent in human history (coinciding roughly with sedentary cultivation, as opposed to the nearly 200 000 years prior to this). Hunter-gatherer decisions, being far fewer is number, had the luxury of taking into account personal circumstance, context of the transgression, etc. in a far more comprehensive way than most modern legal systems. However, common elements of punishment could involve ceremonial chiding (since respect was highly valued) and restriction from luxuries. Also notable is that they had far less actual crimes than modern societies. Marriage, distribution of resources, parentage and other aspects of life were substantially different to modern (and even post-neolithic European) life. Eleanor Burke Leacock has pulled together dozens of accounts by early Jesuit missionaries and fur traders to give a better picture of Native American society which you might find useful. Apologies that I can’t elaborate in detail on some other Native American societies which were substantially different, often involving far greater inter-tribal conflict and kinship mingling.