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1884: Not Crow Dog, saved by an ex parte

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January 14 was supposed to be the hanging day in 1884 for the Sioux Crow Dog — but instead of being executed he was busy making caselaw.

A sub-chief of the Brule Lakota, Crow Dog on August 5, 1881, met — intentionally? — the tribal chief Spotted Tail on a road in the Rosebud Reservation and shot him dead with a rifle.

The killing was adjudicated the very next day within the Brule community, at a council where the killer and the survivors of his victim agreed together on the appropriate compensation, and paid up.* But the U.S. Indian agent on the scene also arrested Crow Dog a few days later, and had him tried for murder in a non-Indian court in the the frontier town of Deadwood.

Sidney Harring, who would expand this review to book length with Crow Dog’s Murder: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century, argued in a 1988/1989 paper** that the needless white court’s trial was staged from the outset as a test case by the Bureau of Indian Affairs, angling for new legal tools to break the doctrine of tribal sovereignty which dated back to Worcester v. Georgia (1832). Although that anti-sovereignty cause would suffer a tactical setback in this case, it would very soon carry the day.

Condemned to death early in 1882, Crow Dog had various appeals, respites, and delaying actions that stretched the case out for nearly two years until the U.S. Supreme Court at last stepped in ahead of a scheduled January 14, 1884 execution to adjudicate the question of whether a murder within a tribe, on that tribe’s own reservation, was within the proper jurisdiction of non-Indian courts like the one that tried Crow Dog. Its Ex parte Crow Dog resoundingly answered in the negative, a milestone in the legal framework around Indian sovereignty in the U.S. To execute Crow Dog under the white court’s verdict, the justices ruled, would require Anglo law to be

extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man’s revenge by the maxims of the white man’s morality.

The legal doctrine at work here holds that although conquered, native tribes still possess internal sovereignty. And with Ex parte Crow Dog it became clear and settled American jurisprudence that one attribute of that remaining sovereignty was plenary — that is, absolute — power over purely internal affairs.

At least, for a year.

White America was discomfited by the abrogation of its morality-maxims over the revengeful red man, and the situation invited moral panic around any malfeasance in Indian country. The Washington D.C. Evening Star would complain months later (June 5, 1884) that Ex parte Crow Dog “has had the effect of creating the idea among the Indians that there is no law to punish an Indian for a crime committed on a reservation.” And the Supreme Court itself had slyly noted that it was obliged to make such rulings absent “a clear expression of the intention of Congress” to take a bite out of Indian sovereignty — an intent “that we have not been able to find.”

So in 1885, the U.S. Congress decided to express that intent and voted the Major Crimes Act placing Indians under federal, not tribal, jurisdiction for seven major types of crimes — including, of course, murder. “We all feel that an Indian, when he commits a crime, should be recognized as a criminal,” Michigan Congressman Byron Cutcheon urged on the legislation’s behalf. “It is an infamy upon our civilization, a disgrace to this nation, that there should be anywhere within its boundaries a body of people who can, with absolute impunity, commit the crime of murder, there being no tribunal before which they can be brought for punishment.”

This briefest interim between Ex parte Crow Dog and the Major Crimes Act was in a sense the high water mark for tribal sovereignty. Following the Major Crimes bill, white politicians began almost systematically reaching onto the reservations to legislate, picking away at tribal sovereignty until another much more infamous case, Lone Wolf v. Hitchcock, disastrously declared that plenary power now resided in Congress.

Crow Dog went on to become a major figure in the ghost dance movement. Present-day American Indian Movement activist Leonard Crow Dog is a descendant; he’s written a book connecting back to his famous ancestor called Crow Dog: Four Generations of Sioux Medicine Men. Meanwhile, South Dakota’s Sinte Gleska University is named for Spotted Tail.

* The price was $600, eight horses, and a blanket.

** Sidney Harring in “Crow Dog’s Case: A Chapter in the Legal History of Tribal Sovereignty,” American Indian Law Review, Vol. 14, No. 2 (1988/1989) — also the source of the preceding footnote.

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1894: Chief Two Sticks, Ghost Dancer

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On this date in 1894, Sioux Chief Cha Nopa Uhah (“Two Sticks”) was hanged in Deadwood, S.D., for instigating the murder of white ranchers on the Pine Ridge Reservation.

The story begins little more than two years after one of the most tragic and emblematic events in the white conquest of North America — Wounded Knee:

By early 1893, the “Ghost Dance” religious movement that had animated the Lakota people had not disappeared … nor had the futile dream of armed resistance to white domination.

A band under Chief Two Sticks, a leader described as resistant to settled white civilization and inclined towards retaining the traditional nomadic life, raided a white cattle ranch. The raid was not deadly, but its consequences were.

Indian police dispatched to arrest the raiders were killed in a shootout, after which the raiders again attacked the ranch — looking this time for men, not cattle. Four white cowboys were killed.

A number of additional Indians died when tribal authorities deployed in force to stop Two Sticks’ followers, perhaps narrowly averting much worse — as it’s a given that federal authorities would not have countenanced Two Sticks’ continued liberty.

The chief himself was severely wounded in the process, and only after a lengthy recovery was he well enough to stand trial in the white men’s courts in Deadwood.

His last words, according to an impressive HistoryNet retelling of Chief Two Sticks’ tale with a great deal of detail about his last hours (including an attempted suicide, so that he could die by Indian hands), denied responsibility for the violence.

My heart is not bad. I did not kill the cowboys; the Indian boys [meaning White Faced Horse, Fights With, Two Two and First Eagle] killed them. I have killed many Indians, but never killed a white man; I never pulled a gun on a white man. The great father* and the men under him should talk to me and I would show them I am innocent. The white men are going to kill me for something I haven’t done. I am a great chief myself. I have always been a friend of the white man. The white men will find out sometime that I am innocent and then they will be sorry they killed me. The great father will be sorry, too, and he will be ashamed. My people will be ashamed, too. My heart is straight and I like everybody. God made all hearts the same. My heart is the same as the white man’s. If I had not been innocent I would not have come up here so good when they wanted me. They know I am innocent or they would not let me go around here. My heart knows I am not guilty and I am happy. I am not afraid to die. I was taught that if I raised my hands to God and told a lie that God would kill me that day. I never told a lie in my life.

The killing and execution are related (from the white settlers’ point of view) in The Black Hills trails : a history of the struggles of the pioneers in the winning of the Black Hills by Jesse Brown and A.M. Willard.

* Earlier that day, Two Sticks had received word that President (and former hangman) Grover Cleveland had denied him clemency.

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1862: 38 Sioux

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On this date in 1862, 38 rebellious Sioux were hanged in Mankato, Minnesota, in the largest mass execution in U.S. history.

Fully 303 had been condemned to die in drumhead trials after the five-week Dakota War, one of the numerous native conflicts sparked by the march of European settlers across North America.

Abraham Lincoln — in a political risk — commuted all but 39 sentences* adjudged “to have participated in massacres, as distinguished from participation in battles,” essentially defining a special category for what today might be considered “war crimes.”

Lincoln had more pressing business on his hands, to be sure, but seems to have been affected by the plight of the natives that drove them to wage hopeless war on encroaching settlers:

“[Bishop Henry Whipple] came here the other day and talked with me about the rascality of this Indian business until I felt it down to my boots. If we get through this war, and I live, this Indian system shall be reformed!”

Fateful “if” — but politicians say many things, after all, and it was long before Lincoln went to Ford’s Theater that the tribes had been forced out of Minnesota, scattered to wasteland reservations and subsequent clashes with the American army.

On this day, all that doleful future was prefigured in the 38 who hanged together in what is now Mankato’s Reconciliation Park, an event that after a century’s time has become a moment for commemoration.

Two academics’ pages on the Dakota War and its aftermath are here and here.

*One of those was subsequently spared over uncertainty of the evidence against him.

Part of the Themed Set: The Spectacle of Public Hanging in America.

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