PART III
All the means, not condemned as mean or cowardly (such as assassination or poisoning), which tend directly and adequately toward the destruction of the military power and resources of the enemy, must be regarded as legitimate. Such means cannot be condemned on the ground that they are terrible and sweeping in their destructive effect. On the contrary these are good reasons for their adoption, as tending to make the contest “short, sharp, and decisive,” and still more, as tending to prevent nations from going to war upon slight provocation.
—Major General John M. Schofield, 1881
Chapter 11
No modern state . . . can sanction . . . a resort to torture. . . . If it does, where is the line to be drawn? If the “water cure” is ineffective, what shall be the next step? Shall the victim be suspended, head down, over the smoke of a smouldering fire; shall he be tightly bound and dropped from a distance of several feet; shall he be beaten with rods; shall his shins be rubbed with a broomstick until they bleed?
—Judge Advocate General George B. Davis, 1902
Terrible! Say you? Well, yes. War ought to be terrible. The trouble is that it has ceased to be terrible to altogether too many men.
—Anonymous officer, U.S. Army, 1896
FRANCIS LIEBER DIED suddenly on October 2, 1872. He was seventy-four years old. Right up until his death, he had worked to expand the influence of the instructions he had written for Lincoln and the Union Army. Even as the Civil War raged, he launched General Orders No. 100 across the Atlantic. “Old Hundred,” he began to call it. His longtime correspondent, the prominent Swiss-born jurist Johann Caspar Bluntschli at the University of Heidelberg, translated the code and added the terms of a treaty signed by twelve European nations at Geneva in 1864. The resulting book produced an influential German code just in time for Prussia’s 1866 war with Austria. Lieber continued to develop the law of war back at home as well. When he died six years later, he left a sprawlingunfinished manuscript charting a future for Old Hundred and its terms in the world.
It fell to Norman Lieber to carry on his father’s efforts. Among the three Lieber boys, Norman alone had escaped the war unscathed, though he had fought in several of its terrible clashes. He had served as a judge advocate under Joseph Holt in the last year of the conflict. After the war, he had worked alongside his father in the rebel archives and then done a stint in the Department of Dakota in Minnesota, where the Army clashed with the Blackfeet and the Sioux Indians. By the late 1870s, he was back east teaching the laws of war at West Point. In 1884, Lieber became acting judge advocate general. In 1895, the War Department made his post permanent. By the time Lieber retired in 1901, he was the longest-serving head of the Judge Advocate corps in Army history, a distinction he still holds more than a century later.
With the younger Lieber presiding over the office of the Judge Advocate General, General Orders No. 100 began a new career. The code of 1863 took root in the inhospitable soil of the Indian wars in the American West. It shaped a new generation of lawmaking across the Atlantic. And it ventured gingerly into the Pacific. In 1862, the ideas that animated Lincoln’s instructions to the Union Army had been decidedly unorthodox; they had embodied Clausewitz’s fierce rejection of the rational Newtonianism of nineteenth-century military thought. Now Norman Lieber helped make such views the conventional wisdom of the Army officer corps.
But for all its success, one thing was certain. The code did not bring a stop to atrocities in combat. In that dismaying truth lay a clue to the nature of the law the Civil War had shaped.
ON APRIL 11, 1873, two small groups of men, one Indian and one white, walked toward one another in the boulder-strewn lavabed moonscape on the south shore of Lake Tule in northern California. For six weeks the men had been meeting on and off again to try to craft a resolution to an intractable standoff. On one side stood the U.S. Army; on the other, a band of 150 Modoc Indians trying to repossess their old lands after their exile to an unsuitable reservation in Oregon.
For months, 600 soldiers under Major General Edward Canby had tried to capture the Modocs by force, only to be turned back time and again by 50 warriors led by the Modocs’ chief, a man named Kintpuash, known to most as “Captain Jack.” Canby enjoyed superior numbers, but Jack’s men fought brilliantly from impenetrable positions in the fissures and caves of the lavabeds. And so, in early 1873, Canby resorted to peace negotiations. Captain Jack readily agreed to talk, in part because there seemed no prospect that he would be able to break out of the inhospitable rocky landscape without a negotiated peace. But unbeknownst to Canby, Captain Jack was locked in a struggle with dissident members of his own group who believed that peace negotiations were unwise.“You are like an old squaw,” his critics jeered. They said he was “not fit to be chief” because he had never killed a white man. And on the night of April 10, the dissidents had finally gained a decisive victory in internal tribe deliberations. Jack agreed reluctantly that the next day he would kill Canby and the other peace commissioners.
As the two parties came together, Captain Jack drew his pistol and shot Canby dead. A frightful slaughter ensued. Two others in the U.S. delegation were killed almost instantly and a fourth white commissioner was badly wounded. The peace talks had come to a violent end.
With hopes of a peaceful resolution dashed, President Grant and General William Sherman (now the commanding general of the U.S. Army) authorized the “utter extermination” of the Modocs. Sherman called on General Jefferson C. Davis to root out the tribe. Davis (who was no relation to the Confederate president) had commanded one of Sherman’s corps on the March to the Sea in 1864, and his conduct there suggested that he was unlikely to be held back by mawkish humanitarianism. In December 1864, Davis hadordered a pontoon bridge pulled up after him, leaving hundreds of freedpeople to the mercy of the Confederate forces trailing him. An unknown number of them drowned trying to swim across the river. Now Sherman ordered Davis to “shoot the leaders” of the Modoc band, to “hang the murderers,” and to disperse the remaining tribe members so that the memory of the Modoc tribe would be erased within a generation.
Davis finally caught up to Captain Jack in June 1873 when the Modoc dissidents defected and led him to the Modoc chief’s hideaway. With Jack in custody at last, Davis assumed he would simply execute the Indian as a killer without the formality of legal process. Newspapers around the country had called for no less as a response to Captain Jack’s act of treachery. The New York Herald had predicted confidently that there would be “no desire to stay the hand of retribution.” The National Republican in Washington, D.C., had urged that the Modocs should “be exterminated, root and branch.” Even supporters of President Grant’s recently inaugurated peace policy toward the Indians conceded that the Modocs should be killed.
Within hours of Captain Jack’s capture, Davis issued orders for the Modoc chief’s execution. He scheduled the hanging for the next day at sunset. But as Davis drew up a list of those he intended to execute along with the Modoc chief, news arrived from Washington. The president ordered Davis to hold the Modoc prisoners pending further instructions.
THE INDIAN WARS of the post–Civil War West threw American views of the laws of armed conflict into a vast confusion. After 1871, Congress moved away from treating Indian tribes as independent nations by announcing that the United States would no longer enter into treaties with Indian tribes. Strangely, the treatment of Indians in armed conflict drew ever more heavily on principles drawn from the laws of war—laws that had typically applied only in armed conflict among civilized states.
The instructions of 1863 seemed to have excluded Indians from their scope; international law, Lieber’s text explained, protected only those who lived in modern organized sovereign states. Nonetheless, early signs of a turn toward the laws of war in Indian conflicts arose during the Civil War in the treatment of the Dakota Indians in Minnesota.
In August and September 1862, Dakota warriors associated with the Sioux Nation had launched a bloody series of assaults to reclaim land they had ceded to the United States. Disputes had arisen over payment for the land. The Dakota attacked white settler homesteads across the southwestern part of the state, killing 358 settlers in all, including women and children.
The American response was swift and ferocious. Major General John Pope, still smarting from his humiliating defeat at the Second Battle of Bull Run and now virtually exiled to the Military Department of the Northwest, ordered Colonel Henry Hastings Sibley to treat the Dakota “as maniacs or wild beasts,” and declared his intent “utterly to exterminate” them. Pope’s attitude was shared widely. “Nits,” one soldier told Colonel Sibley, “make lice.”
Yet in September and October, when he took into custody some 2,000 Dakota Indians, Colonel Sibley did not execute them summarily. Instead, he convened a five-officer military commission and tried the Dakota for murder and related crimes. Minnesota settlers complained bitterly about the delayed retaliation against the Dakota. (“Daniel Boone,” one newspaper editor protested, had “instituted no trial by jury when he caught a savage.”) But the settlers did not have to wait long. The military trials began two days after Sibley had begun to take the Dakota into custody. On the first day, the commission tried sixteen men, sentencing ten to death by hanging and acquitting six others. When the trials concluded on November 3, the commission had heard charges against 392 Dakota for murder, rape, and robbery. The commission convicted 323 warriors, 303 of whom it sentenced to death.
The log cabin behind these Dakota-Sioux Indian prisoners was the site for military commission trials of 392 warriors, some 303 of whom were initially sentenced to death.
Historians of the Dakota conflict have focused on the procedural shortcomings of the military commissions, which were considerable. Most trials were extremely short: some lasted no more than five minutes. Key evidence was often provided by cooperating witnesses who otherwise faced execution themselves. No defense counsel appeared.
But the more interesting question is not whether the military commission trials were paragons of civil libertarian virtue (they were not), or even whether they lived up to the already dubious standards of trials in nineteenth-century courts (they did not). The real question is why U.S. officials held trials at all.18 Summary executions, after all, had been standard practice for American soldiers capturing Indians since the seventeenth century. In 1777, George Rogers Clark had executed Indians with an ax in full view of British forces at Fort Vincennes along the Wabash River. Forty years later, in the First Seminole War in Florida, Andrew Jackson executed Francis the Prophet and Homathlemico without even the pretense of a trial. In the Black Hawk War of 1832 in which Lincoln had played a small role, frontier volunteers had killed even Indian children without a second thought. “Kill the nits and you’ll have no lice,” said a member of the Illinois militia.
As recently as the 1850s, American armed forces in the West had been executing Indians summarily without compunction. In northern California, U.S. troops had trapped Indians on islands and killed them in what one officer described as natural slaughter pens. Colonel William S. Harney, known as “Squaw Killer,” forced nearly 200 Nebraska Sioux into caves and killed 85 of them after a member of the tribe killed a white settler’s cow. Even Ethan Allen Hitchcock, who was sharply critical of Harney and sympathized with many Indians, led an expedition along the Coquille River in Oregon that killed an entire Indian encampment in revenge for the killing of five white traders. Indeed, by 1862, some commanders in Missouri were applying the policy of summary execution not only to Indians but to Confederate guerrillas.
Yet even as summary executions continued, Indian campaigns after the Mexican War had begun little by little to adopt the trappings of a different approach. In the Oregon Territory in the 1850s, for example, Major Granville O. Haller, a veteran of the Mexican conflict, used hastily convened military commissions like those Winfield Scott had employed in Mexico to justify the execution of Wenneste Indian warriors accused of killing white settlers.
The military leadership in Minnesota had probably not learned about military commissions first-hand in Mexico. Henry Hastings Sibley had no military experience to speak of. But he may have heard talk of the Mexican commissions. He almost certainly got wind of the military commissions taking place in 1862 in Missouri under General Henry Halleck, who had just been promoted to general-in-chief of the Union Army. Only days before Sibley ordered the Minnesota trials, newspapers around the country had published Lincoln’s September 24 proclamation authorizing military commission trials of rebel insurgents and “their aiders and abettors.” By the last week of September 1862, military commissions were becoming standard practice in the U.S. armed forces. Sibley probably convened the commission for the Dakota simply because the idea of military commissions was in the air.
Once military commissions were in place in Minnesota, the laws of war began to shape the fate of the Dakota prisoners. Even though Francis Lieber had excluded Indians from the protections of the laws of war, he insisted that there were limits to what armies could do to them or any civilized enemy. Lieber thought that torture, for example, would clearly be beyond the pale, even if Indians inflicted it on U.S. soldiers first. Torture, he warned, would turn an army into a savage force like the one it was fighting. Now Secretary of the Navy Gideon Welles cautioned Lincoln against executing 300 Indians on similar grounds; it would, he warned, make the United States as much like “barbarians” as the Indians themselves. The Commissioner of Indian Affairs worried similarly that punishing men “who have laid down their arms and surrendered themselves as prisoners” would be “contrary to the spirit of the age.” At a moment when the South had captured thousands of Union soldiers, when Lincoln’s critics pilloried him for initiating a barbaric war of servile insurrection, the North could not afford to draw the charge of cruelly executing prisoners of war. And so, after agonizing over the cases for a month, Lincoln resolved them by applying a principle drawn from the laws of war. Distinguishing between those Indian warriors who had participated in massacres and those who had fought against soldiers and militia, he approved the death sentences of thirty-nine Dakota warriors and left the sentences of the others unresolved.
The implications of the formal framework of the laws of war became still clearer a year later when Sibley convened another military commission to try a sixteen-year-old Dakota named Wowinape, who had fled north to escape capture in 1862. The commission sentenced Wowinape to death by hanging for murders in the massacres of August 1862. But taking a cue from Lincoln’s attention to the distinctions of the laws of war, General John Pope reversed the conviction on the basis of a legal technicality (a “technical difficulty,” he called it) in the military commission that had convicted him.19 Rarely if ever had U.S. military force against Indians been so closely regulated by law. But then, the United States had rarely been prepared to execute so many Indian warriors at once, by law or otherwise. The military commissions had served to restrain the use of sheer force. But commissions had also been a legitimating device, a way of moving forward with mass executions on an unprecedented scale.
THE DAKOTA TRIALS loomed in the background in June 1873 when General Jefferson C. Davis reluctantly called a halt to the swift execution of Captain Jack and the Modoc warriors in Oregon. General John M. Schofield of the Army’s Division of the Pacific expressed grave concerns about the propriety of summary military executions under the laws of war. (Schofield had received a personalized copy of General Orders No. 100 from Henry Halleck ten years before.) Summary executions troubled William Tecumseh Sherman in Washington, too. But the military men were just as uncomfortable with Oregon governor LaFayette Grover’s proposal to try Captain Jack and his confederates as ordinary criminals in state court. Neither path seemed right.
It fell to U.S. Attorney General George Henry Williams to craft a legal strategy for the Modoc case. As a senator from Oregon a few years before, Williams had been a core member of the radical wing of the Republican Party and an author of the 1867 Reconstruction Act with its broad reauthorization of military commissions. He had introduced the Tenure of Office Act, which aimed to seize congressional control of the War Department from Andrew Johnson, and he had been a principal advocate of Johnson’s impeachment when the president tried to reclaim his authority. Now, building on his work in 1867, Williams advised President Grant that a military commission was the right way to proceed. Citing the prosecution of Henry Wirz and relying heavily on Attorney General Speed’s opinion in the Lincoln assassination case, Williams argued that General Orders No. 100 from the Civil War established the legal authority of military commissions to try violations of the laws of war. Its Article 13, he said, recognized a “common law of war” between nations. Its Articles 40 and 41 rejected the existence of any other body of law between nations at war with one another. And its Article 59 expressly allowed the prosecution of a soldier for offenses against the laws of war.
On the ground in Oregon, Davis could barely believe that dealing with Indians warranted such legal care. “I thought to avoid an unnecessary expense and the farce of a trial,” he told a reporter, “by doing the work myself.” But to his disgust, Grant approved Williams’s proposal for military commissions in the Modoc case. The United States charged Captain Jack and five other Modocs with murder in violation of the laws of war. After five days of trial at Fort Klamath in Oregon, the commission convicted them and sentenced each of them to death. Three months later, after the president commuted two sentences and approved the remaining four, the U.S. Army executed Captain Jack and three of his fellow Modocs on a gallows built especially for them. A newspaper correspondent at the scene reported that “Everything connected with the execution was in most perfect order and was performed in strict military precision.” The “majesty of the laws,” he added, had “been vindicated.”
IN MOST INDIAN CONFLICTS, the majesty of the law more often gave way to a mix of tragedy and farce.
When General Nelson A. Miles captured the Apache leader Geronimo in 1886, chaos broke out at the highest reaches of the U.S. government because no one could understand the Apache renegade’s legal status. President Grover Cleveland expressed the hopethat Miles would simply hang him. The acting secretary of war contended that Geronimo should be tried and punished for murder by the civil authorities of the Territories of Arizona and New Mexico. General O. O. Howard objected that the terms of Geronimo’s surrender ruled out both of these possibilities. But no one was sure exactly what those terms were, and no one had thought to write them down at the time. Weeks later, an embarrassed President Cleveland was forced to ask Geronimo what he had understood to be the terms of his own surrender.
Ultimately, the War Department shipped Geronimo and his small band of warriors off to Fort Pickens in Florida as prisoners of war. For the next twenty-five years, the band would live in captivity, first in Florida, then in Alabama and later Oklahoma, held as prisoners of war from a conflict that had long since ended. But this was a prisoner of war status like few others. Their ranks included not only men captured in arms with Geronimo, but also women and children (400 people in all). Dozens of children born into captivity became prisoners of war at birth. The adults moved freely around the towns in which they were confined from sunup until sundown. They raised cattle and grew crops. Until he drank himself to death in 1909, Geronimo traveled around the country to take part in Wild West exhibitions hawking cheap souvenir bows and authentic Geronimo autographs, all while formally a prisoner from the Indian wars of the 1880s.
The Apache case was especially prolonged, but it was not unique in its halfhearted incorporation of the laws of war. Indians were held in circumstances that would never have justified prisoner of war treatment of southern soldiers in the Civil War. The sixty-nine Dakota Sioux acquitted in the Minnesota trials of 1862 were not released. They were simply imprisoned in Fort Snelling along with all the other fighting-age male Dakotas, without regard to whether the war in which they had fought was over. In the 1870s, the startling inclusion of children among the Indian prisoners of war led to the establishment of a school in Carlisle, Pennsylvania, to educate child prisoners from conflicts with the Cheyenne and Comanche. In the early 1890s, Judge Advocate General Lieber sustainedthe indefinite detention of an Apache chief named Eskiminzin, who had been arrested for aiding his son-in-law, a renegade scout in the U.S. Cavalry named Apache Kid. Lieber approved Eskiminzin’s captivity even though he could not say that there was a war and even though he could not identify a federal crime that the Apache might have committed.
Nor could the United States bring itself to enforce the laws of war strictly against its own soldiers in Indian conflicts. At Sand Creek in Colorado in 1864, the 3rd Colorado Volunteers slaughtered and mutilated some 200 Cheyenne and Arapaho Indians. Colonel John Chivington had ordered the deaths of men, women, and children alike. “Kill and scalp all, little and big,” he told his men. “Nits,” he scowled, echoing the now familiar refrain, “made lice.” A court of inquiry recommended a formal denunciation of the massacre, but levied no punishments against anyone involved.20
None of this could be squared easily with the ordinary laws of war. One problem, as Attorney General Amos Akerman put it in 1871, was the peculiarity of the legal status of Indians more generally. Indians were at once independent nations capable of going to war and making peace, and domestic dependencies under the authority of the U.S. Congress and the president. Some critics chafed at such contradictions and puzzles and urged a more thoroughgoing adoption of the rules of war as the blueprint for American policy. Men like O. O. Howard thought the best way to spread “the blessing of a knowledge” of the European laws of war among the “savage races” would be to set a good example. Others like Chivington and Davis could not understand the new application of law of war principles to the Indian conflicts at all. Summary execution and simple massacre, in their view, had been the standard tools of Indian fighting.
In the end, however, the postwar Army’s partial embrace of the laws of war in Indian conflicts fell somewhere between the two poles. This new ad hoc middle ground, between the virtually unbounded violence of the age of Jackson and the civilized limits of the Enlightenment laws of war, resembled Lincoln’s pragmatic and partial adoption of the laws of war in the first year of the Civil War. Just as Lincoln had embraced the laws of war in the very months in which the Union was ratcheting up the destructiveness of its war effort, now officers learned to put the language of humanity and law to work as a justification for violence against Indians on the western frontier.
Some historians have argued that Sherman and the U.S. Army learned a form of total war in the conflict with the South and then applied it in the Indian campaigns of the West. Others object that the Army had employed brutally destructive tactics against the Indians long before the Civil War and that the Army’s conduct at places like Sand Creek in 1864 and Wounded Knee in 1891 was far more indiscriminate and violent than anything directed against the South. Both positions misunderstand what the Civil War contributed to the postwar Indian campaigns. There was of course plenty of terrible violence used against Indians in the decades and centuries before the Civil War. What was new after the war—and what came out of it—was a confidence that the rules of civilized war no longer put undue restraints on the soldiers who sought to wage it. General Philip Sheridan (to whom the infamous phrase “the only good Indians I ever saw were dead” is usually attributed) justified violence in the Indian West in 1873 by asking whether it consisted of anything more than what the laws of war had been understood to permit in the South. “During the war, did any one hesitate to attack a village or town occupied by the enemy because women or children were within its limits? Did we cease to throw shells into Vicksburg or Atlanta because women or children were there?” Robert K. Evans, a recent graduate of the Military Academy at West Point and later a commander of the Army’s Philippine Department, argued a few years later that anyone who actually sat down and read General Orders No. 100 would understand that the laws of war endorsed retaliation against savages. Only the mawkish humanitarians of the East, Evans complained, prevented the Army from vindicating the stern vision of the 1863 code Lincoln had approved.
Francis Lieber and Abraham Lincoln had helped make the laws of war safe for Indian fighting. Hostilities with Indians could now be brought under the umbrella of the laws of war because the United States’ authoritative statement of those laws—a statement that carried with it the imprimaturs of Emancipation and Union victory—no longer interfered with the tactics employed in Indian conflicts. For some of the same reasons, many were beginning to ask whether the Civil War instructions might transform the international law of war in Europe as well.