by James Horsley
If we summarize the chronologically organized events leading to the army's attack of Black Kettle's band while camped on the Washita River in Indian Territory, the following story emerges. Probably a number of stories could be generated out of the evidence presented. The foregoing is given as one possibly worthy of consideration. Indian Territory gradually became a relocation center for the Native American. Prior to and during the Civil War, scores of tribes ended up there, such as the "Five Civilized Tribes," as well as the Osage, the Kaws and others. They were shunted there to vacate those land bases desired by Euro-Americans, such as white plantation owners, settlers, frontiersmen and miners. Indians were forced out of such Southern states a Georgia, Arkansas, Alabama and Louisiana. With the closing of the Civil War, the white population of the Plains states, such as Nebraska, Kansas, Colorado and Wyoming, dramatically increased, driven by the same factors that had effected the South--the desire by whites for the exclusive control of the land considered habitable by whites. These forces for land acquisition became increasingly stronger over regions traditionally occupied by the Southern and Northern Plains Indian tribes.
Originally, to settle disputes over the land, the 1851 Treaty of Fort Laramie gave the members of the Plains Indian tribes--namely, the Sioux, Gros Ventre, Mandans, Arrickaras, Assinaboin, Blackfoot, Crow, Cheyenne and Arapaho--a vast area: roughly the area east of the Rocky Mountains, north of the northern lines of Texas and New Mexico and south and west of the arc of the Missouri River beginning near the Canadian border--an area that included the eastern half of Colorado and the western halves of Nebraska, Kansas, North Dakota and South Dakota. Essentially, this is the Great Plains.
This area traditionally had been inhabited in common by both whites and Indians--as well as the buffalo. However, as the region's white population grew, the common occupancy created a problem in the minds of at least some of the new settlers. The problem was that the region was under the control of the Native Americans. They were the landlords. This realization was particularly distressful to Colorado, which was experiencing a gold rush. But it was also distressful to Nebraska, site of the Union Pacific, and Kansas, through which the Kansas Pacific was headed. Added to this was the plight of the settler coming to these territories, who could not own land belonging to Indian tribes. And add to this the anxiety of the speculator, who needed to acquire land to sell to the settlers and who needed to have saleable land once it was acquired.
A series of dilemmas grew. If the land was seized from the Indians by force, the acquisition would probably be viewed as illegal. If it was taken legally, but by deception or trickery, its sequestration would be challenged by the Indians, who would attempt to drive off the settlers. Land threatened by Indian raids and depredations was not a profitable speculative venture. Since one of the major driving forces for the opening of these land was the railroad, Indian attacks on the railroad were a major economic threat to the territories across which the railroad was being laid. Often, purchase of the land by a railroad was achieved through the offering of shares of stock in the railroad company. If the land over which a railroad was scheduled to pass was the subject of constant Indian raids, investment in such stocks would be discouraged.
On the other hand, if the terms of the Treaty of Fort Laramie were observed, other factors contributed to further dilemmas. If the Indians were allowed to leave peacefully with the whites, the Indians would end up being in control of approximately half the areas of each of these territories. The settlers would be living on land that they could not own.
These dilemmas had one solution: removal of the Indian from the desired land base. This could either be done through physically moving the Indian peoples to another less desired area, or, through extermination. However, removal could not be done by simply forcing the Indian to leave. Certain legal steps had to be taken. One such step was by a treaty that shifted ownership from one area to another, and eventually from one state to another. By getting a tribe to agree to give up an area wanted by whites and go to an area less wanted, one created a domain which, by definition, could serve as a pooling area for the various tribal members. Thus, Colorado created the Fort Wise reservation. When Fort Wise was deemed to pose risks for the settlement of Colorado, the reservations of the treaties of 1865 were created in Kansas. When Kansas found that this reservation overlapped onto rich farm land and was too near the railroad lines, then another treaty was negotiated to a less desirable area, resulting in the treaties of 1867, giving the Cheyenne and Arapaho, as well as the Kiowas and Comanches, reserves in the greater reservation of Indian Territory.
However, if the Indians did not voluntarily go to their new reservations, not much could be done. And, if the treaties allowed hunting outside the reservation area, the reservation system provided virtually no solution vis-a-vis removal. All that it did was enable the settler to purchase land that the Indian still could hunt on, and, worse, land that the Indian still often considered his, because of misunderstandings regarding the terms of the treaties. The net result was conflict between the dispossessed Indian and the possessing settler--often to the point of physical violence.
Jurisdiction over the removal and management of the Indian belonged to the Indian Bureau. However, this was a governmental agency without the ability to coerce. It could only persuade the Indian to go to the various reservations and stay there through treaties and by the promise and supply of provisions. Many thought a better solution would be to give control of the Indian people to the War Department, which had the ability to use force, if so needed. However, under that system, the military did not have jurisdiction over the Indian--except in one instance: war. Thus, to have coercive control over the American Indian, the relationship between the Indian and the United States government had to be one of war, not peace. Logically speaking, it would be advantageous to find some way to wage war against the Indian so that the military could exercise control over them.
Colorado Governor Evans had realized that due to the territorial organic act, the territory's laws were not operative over the area encompassed by the Fort Laramie treaty, that is, half of the territory. Further, ownership of the various improvements, such as Denver itself and the gold mines, were in the hands of the Cheyennes and Arapaho. As indicated, if everybody got along, the Indians would win and the whites would loose, for the Indian would be the landlord.
One solution was to drive the Indian from the Territory of Colorado by means of terror. This, apparently, was the alternative chosen. A climate of terror was begun by first creating a problem to involve the Indian, namely, the problem over the taking of stock animals. When an officer attacked a group of Indians over this problem, they retaliated, beginning another "Indian War." When Evans issued a proclamation for all peaceful Indians to come into the vicinity of the various forts, those Indians who obeyed were not allowed to surrender, but were shot. No Indian was thus allowed to define himself as non-hostile. One's Indian-ness was interpreted as a self-declaration of being permanently an enemy to the white race. Then only response or act that could alter their fate was by becoming non-Indian. And the only way an Indian could become a non-Indians was to die. Choices were merely given to make their death easier, that is, those who offered to come in and surrender could be more easily shot. The offering of protection, with those seeking refuge finding death instead, created terror. For instance, a high level of terror was achieved at Sand Creek by the military pretending to be friendly, directing the Indians to the area of Fort Wise for protection, and then attacking and annihilating the tribe which went there in response to the directive, namely Black Kettle's band. The same method was followed at Fort Cobb. Such strategies followed closely the pattern of terror exemplified by the narrative concerning the Ku Klux--namely, of pretending to be friendly, inviting a group into one's confidence, then through a demonstration or horror and violence, terrorizing those present. It was effective because it was irrational, a total breach of faith, and a demonstration of the intent to exterminate.
The editorial writer of the Omaha Weekly Herald had pointed out that:
We believe that the Chivington Massacre and other performances of Colorado radical politicians have had much to do to aggravate and continue an Indian War which was caused by wrongs and outrages committed against these Indians by Indian Agents...That such wrongs have been committed, the Governor admits. Why does he not state who committed them? Governor Evans knows, and so do we.
Who was it that had committed these wrongs? Who was it that had been an Indian Agent? Evans knew because in both instances the guilty person was most likely Evans, himself. He, along with Chivington, had instigated the Indian War. And Evans, himself, had been an Indian Agent.
The Fort Wise reservation proved not to be a solution to the problems created by the Fort Laramie Treaty. It was in Colorado and relatively close to Denver. If the Cheyennes and Arapahos were encouraged to congregate at Fort Wise, they would remain, obviously, in Colorado. This posed a continuing threat as to the ownership of the eastern half of the state, for many of the Cheyennes--in particular the Dog Soldiers--would not sign the Treaty of Fort Wise, still claiming the area assigned to them by the Treaty of Fort Laramie. By creating another treaty and another reservation outside of Colorado in southern Kansas, not only would the Treaty of Fort Laramie be nullified, but the physical setting of the reservation would be outside Colorado--along with the Cheyenne and Arapaho. The intent of the resulting treaty, the Treaty of the Little Arkansas in 1865, was not merely to remove the Indians from the Fort Wise reservation, but to crush the provisions of the Fort Laramie Treaty. The Treaty of the Little Arkansas was, in effect, a document that created a reservation on paper only for the purpose of having a nominative reservation in return for giving up the land specified in the Fort Laramie Treaty. The Treaty of the Little Arkansas did not mention the borders of the Fort Wise reservation, but did delineate the borders of the Fort Laramie Treaty that had been assigned to the Cheyenne and Arapaho, as well as to the Kiowa. According to the provisions of the document, it was this land, not the Fort Wise reservation, that the Treaty of the Little Arkansas sought to have relinquished.
That it was a paper document only is corroborated by the notation by the government compiler of the various treaties who wrote in 1899 that "this was intended only as a temporary reserve, the treaty providing that as soon as practicable a new reserve should be designated, no part of which should be within the state of Kansas." However, the compiler takes issue with the intent of the treaty being the relinquishment of the Fort Laramie lands, commenting that "This cession practically covers only the reserve assigned them by treaty of Feb. 18, 1861. The remainder of their country had already been ceded by that treaty and the cession is reiterated here only to satisfy a dispute by some of the Indians on that point." This is a puzzling statement when one recalls that the Little Arkansas treaty never mentioned the borders of the Fort Wise reservation. It is not so puzzling when one realizes that the treaty that ceded the Ft. Laramie reservation was historically considered by the government to be a temporary one, and thus essentially an inoperative document.
That the ownership of the Ft. Laramie land area was still under contention at the time of the signing of the Little Arkansas treaty is demonstrated by the Little Arkansas treaty itself. It provides that the Indians could temporarily reside in the area between the Arkansas and the Platte as assigned to them by the Fort Laramie Treaty, which, according to the Little Arkansas Treaty was "country they claim as originally theirs, which lies between the Arkansas and Platte rivers." It was temporary, in that they could only reside their until they went to their new reservation as delineated by the Treaty of the Little Arkansas, which provided for a reservation south of the Arkansas River in Kansas. However, as previously noted, due to Congressional amendments of that treaty, this reservation was also temporary, in that they were eventually to go to a reservation somewhere outside of Kansas.
The net result, if confusing to literate Euro-Americans who wrote the document, would have been impossible for the American Indian to understand or to carry out. Viz.: their new reservation was south of the Arkansas in Kansas. They could live in their old reservation between the Platte and the Arkansas until they went to their new reservation. Their new reservation, however, was only temporary, for their permanent reservation was going to be somewhere else. But, where that was, no one knew. What one knew only was that it would not be in Kansas. In effect, all areas set aside for their habitation were temporary. They had agreed to relinquish the land designated by the Fort Laramie treaty. They had agreed to give up the land between the Arkansas and the Platte when they moved to their new reservation. They had agreed to give up that new reservation also. And they had agreed to go someplace of unspecified location and undefined size. They had agreed to give all this up for a reservation that did not exist. In return for giving up half of Colorado, half of Nebraska, and half of Kansas, the Cheyenne and Arapaho were homeless.
While the treaty of Fort Laramie was one entered into by all the various tribes in the region, the attempt to nullify that treaty was done tribe by tribe, with the government treating with each tribe on an independent basis. This series of treaties attempted to preempt the Treaty of Fort Laramie. However, because they dealt with the various Indian nations independently, they appear to be of questionable legal validity in that the Treaty of Fort Laramie contained a provision which was joint in nature and thus, logically, could not be broken without a joint agreement. That provision was as follows:
It is, however, understood that, in making this recognition and acknowledgment, the aforesaid Indian nations do not hereby abandon or prejudice any right or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described. (Fay, 1971, p. 6).
Thus, for instance, if the Cheyennes gave up their reservation without an agreement with the other tribes, they were, in effect, abridging the privilege of the other contiguous Indian nations to hunt, fish and pass over those relinquished lands.
However, while these various factors may look at face value to be of questionable legality, in fact, fraud, the legality of the treaties may not be challenged. According to Elmer F. Bennett, Federal Indian Law , if Congress ratified a treaty it was law regardless of any violations associated with its enactment. The only way to correct a perceived wrong in a treaty is through a Congressional act. "If a wrong has been done, the power of redress is with Congress, not with the judiciary, and that body, upon being applied to, it is to be presumed, will promptly give the proper relief." (p. 142)
With the reservation established by the Treaty of the Little Arkansas being essentially a reserve on paper only, a new reservation was need. The Little Arkansas reservation had two fatal aspects to it with regard to its desirability to the settlers and railroad speculators. The first is that it allowed for the Indians to reside in the very area through which the railroads were scheduled to pass, the area between the Platte and the Arkansas. Second, since the actual land area for the Little Arkansas reservation was immediately south of the Arkansas River, it was relatively close to the railroads. Removal to that reservation would not significantly remove the Indian from the area of railroad construction.
The Cheyenne and Arapaho were being pushed further and further south. They had been removed from Colorado. They now had to be removed from Nebraska and Kansas. Since the new reservation had to be outside of Kansas, what was left further south was Indian Territory. However, as noted, Indian Territory for the Indian had associated with it a history of suffering, being a resavoir for those Indian nations forced out of the old South, many who had left behind established farms and who had experience the death of family members as they marched on foot to their new location. In short, it was not an attractive place to go for the Plains Indian. And worst of all, it was not a land base that contributed to their survival, for it was far removed from their traditional hunting grounds between the Platte and Arkansas rivers.
This incompatibility with the needs and desires of the Cheyenne and related tribes was obviously apparent to the government and to the military. However, it was vital to the interests of the government to eliminate the disadvantages posed by the presence of the Native American along the lines of the railroad pushing across the United States at that time. With the various tribes forced out of Colorado, they had been shoved into the strategically important area between the Platte and Arkansas Rivers.
This was completely unacceptable to the government, to the military and to the financial interests connected with the railroads. Moreover, it was unacceptable to those private interests who would benefit from the establishment and prosperity of the railroads.
Who were these private individuals? As we have seen among them were persons of immense power: General Sherman, Colorado Governor Evans, General Perry, and the Ewings, Thomas Sr., Thomas Jr. and Hugh. The list is probably much more extensive. Thomas Ewing Sr. owned land surrounding Leavenworth, through which the Kansas Pacific ran. Ewing's sons Thomas and Hugh also were owners in the Leavenworth area land tracts. Both Thomas Ewing Jr. and Hugh Ewing were leading investors in the Kansas Pacific Railroad. Ewing Jr. and Sherman were partners in a law firm in Leavenworth. Sherman had been a president of a railroad company. Ewing Jr. was a leading attorney for the dispossession of Indians of their reservation lands in Kansas. Both General Perry and Governor Evans were seeking to unite the terminus of the Kansas Pacific at Sheridan with Denver. Governor Evans had strong financial interests in railroads. Ewing Sr. was a skilled attorney, arguing often before the Supreme Court. He was also during the Indian Wars an Ohio Senator. General Sherman's brother was a Congressman. General Sherman's wife was Ellen Ewing. This made Ewing Sr. both Sherman's step-father and his father-in-law. And Ewing Jr. his step-brother, brother-in-law and business partner.
Coming out of a war that had seen combined fatalities of 600,000, and being the leading figure responsible for the winning of that war, Sherman was not about to let the national interests, as he saw them, and those interests associated with his own personal life be defeated by several thousand Indians. Behind him, and in unison with him, were settlers, miners, frontiersmen, politicians, speculators, military men, owners of companies (such as the railroad lines) and family members. The Native Americans could not withstand this combined wave of interests.
But they persistently attempted to do so. The military found that with the guerilla warfare tactics of the Indians, with their raiding and retreating, with their attacks on remote settlements and points along the railroad, it was almost impossible to provide adequate defense. The key disadvantage was that the military could not find the Indian after making an attack. As one newspaper pointed out, they Indian villages were "mirages." Further, the Plains were for various periods of time peaceful, with little conflict. This gave the military no excuse to attack the Indians--even if they could find them.
So what would be a logical solution to a military mind such as Sherman? One would be to gain jurisdiction by the military over the Indian through an Indian War. This meant starting a war. Once the war had begun, it meant finding the Indians to attack. How could this be done? One of the successful methods of vanquishing the South was to march through its territory, i.e. the famous march to the sea by Sherman. Sherman marched his troops back and forth across the Plains during 1867 with few strategic results. His attempt to get Hancock to start a war succeeded, but still the Indians could not be located. Custer never could catch the Indian men, women and children who had fled from the village Hancock had burned.
There was another problem with regard to waging wars against the Native American. Some people, namely those who were often called "humanitarians," objected to the harsh treatment of the Indian, believing only hostile Indians should be warred against, and that ideally, disputes should be settled by negotiations and treaties. To accede to their views, it meant that if Sherman was going to wage war, he could only wage it against those who were hostile.
He thus came up with the idea of segregation--an idea borrowed partially from Wynkoop. He decided to congregate all those who were peaceful around Fort Cobb in Indian Territory. In this manner he could separate the hostile from the peaceful. While this solved the problem of being able to discern those Indians who wanted war from those Indians who wanted peace, it still did not solve the biggest problem--finding the elusive Indian. Still out there, somewhere in that vast plains area, were those who would not come into Fort Cobb, the hostile Indians.
The solution was simple. Since one could not find the hostile Indians, one would attack those Indians that could be found, the peaceful Indians. This had a number of instrumental advantages. It struck terror into the recipients of the attack, because they had come to Fort Cobb for promised sanctuary. Now nowhere was safe. It demonstrated the vulnerability of the American Indian. By charging the inhabitants of one camp in the winter and rushing the thousands of others in the other camps down the Washita, it caused all those congregated along the Washita to abandon their lodges, instantly impoverishing them and subjecting them to death through exposure. Large numbers of men, women and children could thus be annihilated.
The military, being at least logically sensitive to the need to observe humanitarian ethics during war, evidently realized that something had to be done with regard to warding off the damaging public image it would produce if it launched another "Chivington" attack. It would not look good to have five columns of troops converge on peaceful Indians and wiping them out. The need to create an acceptable public image led to the instigation of the "Osage trailers" and the public relations stunt of trailing the hostile Indians to their camp. Their actual use, however, was as fighters, e.g. in a letter to General Sheridan by General Hazen, Hazen mentioned that "I am decidedly of opinion that this force (Indian scouts)...would be of twice the service to you in actually making war than an entire regiment of equipped cavalry (Carroll, ed., 1978, p. 248)."
Trailing was evidently done for the effect it would have in the newspapers--that is, of creating the image of Sheridan, Custer and his men intently following the Indians on the war-path to their village and heroically attacking them. However, it was an image only.
Custer, Keim and Barnitz all state that heavy snowfall obliterated the trail. Only Sheridan, who did not accompany Custer on the march to the Washita River, stated that the trail was visible. Custar, in fact, wrote that the snow was so deep that he had to use a compass to find the way. However, how could Custer have used a compass to determine the direction of a trail? A compass is only useful if you know where you want to go and have a map. If one is guided to a destination by back-tracking a trail, one can find that destination only by following the trail, for it is the trail that is determining whether you go left or right, not the compass needle. Custer must have known where we was going, trail or no trail, because he employed a compass and a map during the snow storm.
Moreover, to find a person at a location that one orders a person to go to, one is not required to follow that person there. Because the destination was pre-arranged (the vicinity of Fort Cobb), one simply meets that person there. That Custer did know where he was going is substantiated by the report by correspondent Keim, who said that Custer had been given more specific orders than those merely "general in terms," as Custer claimed. Keim said Custer had been ordered to go to the vicinity of the Antelope Hills, which is where the non-hostile Indians were gathering. It is also substantiated by Custer himself, who stated in his report following the attack on the Washita that he knew it was indent of the of the military to congregate the Indians at Fort Cobb.
Not only was the location of each tribe known, but also their disposition regarding peace, which was being meticulously tracked by Alvord. He submitted several extensive reports to military authorities, recording the status of those Indian tribes that had come to the vicinity of Fort Cobb. He summed up his report with a table that listed the name of the tribes that came in according to their "proportion for peace." that is, if the tribes were either "certain," probable" or "possible" regarding peace, as well as their present location.
As previously pointed out, numerous tribes had been listed as certain for peace, located "near Fort Cobb." Others were also listed as certain for peace, their location stated as "thirty-five miles north of Fort Cobb." The Kiowas were listed as probable for peace, their location "near Antelope Hills," while a band of Apaches and part of the Cheyennes were also listed as probable for peace, their location being also near Antelope Hills. Finally, the Arapahos were listed as all certain for peace, also near Antelope Hills, for a total number of 8,500. None were listed as merely "possible" for peace. Alvord specifically stated that "Black Kettle and Black Eagle, with their people, are now just north of the Antelope Hills."
The existence of these government documents by Alvord recording the peaceful status of the various tribes as they congregated at Fort Cobb have never been mentioned in any of the sources investigated. For some reason, either due to collective denial or inattention by reporters and later by historians, these documents, which consume several pages of Congressional reports, were never mentioned anywhere beyond those governmentally printed pages.
Obviously, the army did not have to resort to trackers and trailers to find Black Kettle's camp near Antelope Hills, since they had 1.) sent out a general order warning all Indians who did not want war to congregate near Fort Cobb (Antelope Hills was near Fort Cobb), and because the Indian agents had documented their location, sending it to those in command of the district.
Moreover, Black Kettle, on arriving at Antelope Hills, had visited General Hazen at Fort Cobb on November 20, 1868, saying that he wanted to surrender: "We all want peace, and I would be glad to move all my people down this way; I could then keep them all quietly near my camp." He also disclosed the location and size of his camp: "My camp is now on the Washita, 40 miles east of the Antelope Hills, and I have about 180 lodges."
What was known specifically about Black Kettle's band of Cheyennes was extensive. The army knew the exact location of his camp, the size of his village, that Black Kettle desired to surrender, that he had offered to surrender at Fort Cobb, that he was waiting for permission to come to Fort Cobb to surrender from General Hazen, that if General Sheridan should encounter their tribe, that they were to request permission to surrender from him directly.
However, the impression one gets from reading the accounts of Keim, Custer and Sheridan is that no one knew where the hostile Indians were, nor, for that matter, the friendly Indians, and that only by backtracking a trail would it be possible to locate a hostile village.
If government records indicated that the military had precise knowledge of the location of Black Kettle's village, but if, on the other hand, the reports of the government and at least a portion of the press created the impression of the army as romantic sleuths on the trail of a hostile enemy, it would appear that the army was creating information to color its real mission: to massacre Black Kettle's band, regardless of whether it was in a state of surrender or not. The military induced the tribes under the pretext of protection to go to Fort Cobb. They concealed their real objective of annihilation in order to achieve cooperation, cooperation both from the Indian regarding location and cooperation from the public regarding acceptance of the resulting attack.
That this is the case is further substantiated by the statements by Wynkoop and by the press release from the Indian Bureau that announced that five columns were converging on peaceful Indians. In addition, government reports and news reports published following the Washita attack reveal that the Cheyenne and Arapaho had begged for peace, and yet had been attacked by Evans near the Wichita Mountains.
To further conceal the intent of the military, Sheridan in his conversation with correspondents termed the southern Indians brave and the northern one's cowards. However, bravery or cowardice was not an issue here. The tribes that were amassing in the south were doing so not because they were brave or cowardly, but because they were seeking to be identified with those wanting peace. Those who remained north, the Dog Soldiers, refused to go south and were, in fact, the "hostile" Indians, those who were determined to fight for their land. To associate the word "brave" with those tribes gathering at Fort Cobb was simply a rhetorical smoke screen to rationalize the military's eventually attack of those in that vicinity.
Directives by the military or by the territorial governments, such as the offering of protection at Fort Wise, the proclamations of Evans for non-hostile to surrender and the establishment of Fort Cobb as a refuge were, in actual effect, double edged swords. Swung one way, they cut through the problem raised by humanitarian elements. Such orders gave the appearance of being even-handed toward the Indians. Swung the other way, the Indians' compliance with the orders made it much easier to achieve the final purpose of destroying them. Mis-information to the reading public, such as articles about following "hostile" Indians by trailing (when no trail was needed because the Indians were not hostile) and articles naming non-hostile Indians brave and hostile Indians cowards functioned to achieve popular compliance with the acts of the military in their destruction of the Indian people.
War could have been avoided if the guilty parties had been brought to justice. As stated by Sherman, that was one of the intents of having the Indians give themselves up at Fort Cobb, that is, to separate the guilty from the innocent, and to punish the guilty. However, a court of justice did not await anyone. Instead, all those assembled there were attacked and disbursed.
Based on the chronological of events in the various primary and secondary sources, one can conclude:
All these factors would lead one to think that an investigation similar to the investigation into the Sand Creek Massacre would have been conducted regarding the Washita attack. But no investigation transpired. One of the basic reasons is because Sheridan reported that he had found evidence proving that Black Kettle and his band had been hostile. He said the proof was in evidence found at the battle site, namely, items from the settlements along the Saline and Solomon Rivers, such as scalps, photographs and mail. He also claimed to have found a pictographic history of all the band's depredations.
However, we may ask, as did Manypenny, how did he know that these items were there prior to the attack? He could not have. The trail that he was following of the so-called "war party" was a trail that he was backtracking. Backtracking means that the trail is headed in the opposite way one is following it. Custer could not have followed anyone physically to Black Kettle's camp by following that trail, since the party making that trail had not returned. The fresh trail in the snow followed from the Canadian and leading to Black Kettle's camp was simply one of the many trails made in the area by the Indians settled in that vicinity. Following such a trail would prove nothing about guilt. Further, according to Barnitz, that particular trail at the Canadian, while possibly made by a war party, was impossible to identify as to what tribe or against what party, that is, whether it was a war party against another Indian tribe or against whites. In addition, that specific trail had been found at the end of the march in a locality where Indians were known to be congregating. And lastly, that trail was noted as being almost impossible to following, and according to Barnitz later merged with a number of trails traveled by "travois," the lodge poles dragged behind horses to carry family goods. Custer was following families to Black Kettle's camp. Thus, the evidence was, at best, a lucky find. But, was it found, at all?
Again, as Manypenny said, why was this evidence not reported by Custer and by others. Custer made a detail list of the items found at the camp site following the attack. He then burned everything. Keim, on the return several weeks later to the battle field noted that all had been destroyed. He did not record any finding of such evidence as reported by Sheridan. The only item he did report was a medal. Moreover, even if the pictographic history had been found, how did Sheridan establish that it recorded the various events that he said it indicated? He gave no evidence of who translated that pictographic history or how he knew what it said.
According to Utley the so-called evidence found in Black Kettle's camp was laid before Custer by his men during the fight at the Washita. According to Rister, "troopers" found the evidence. However, the only mention in primary sources of finding the items is in a letter by Sheridan to Sherman, stating that the evidence was found in Black Kettle's camp. That the evidence was laid before Custer or that it was found by troopers are suppositions by both authors. Neither Custer nor Keim recorded any such evidence, nor anyone else in addition to Sheridan.
For these reasons, the evidence is suspect. Much was to be gained from "finding" such evidence, namely, the avoidance of a Congressional hearing. It is likely that Sheridan simply acquired such items from sources other than the battlefield, claiming, however, that they had been acquired at Black Kettle's village.
However, even if that evidence did exist, their presence in the camp would not justify attacking Black Kettle's village. Black Kettle and his band had offered to surrender. If certain members of his band had committed depredations, it was to be expected, for the military and the various tribes were involved in a conflict. In an attempt to resolve that conflict, the military had directed all those who wanted to surrender to come to the Fort Cobb area. If they brought evidence of that conflict with them, it had nothing to do with the status of Black Kettle's village as one of surrender, for surrender is self-defined, not other defined. If one surrenders, one is not automatically killed without a trial in a civilized society. Only if one does not surrender is one subject to being attacked and killed by an enemy, for the point of warfare is supposedly defense or subjugation, not wanton killing. If one surrenders, one has been subdued.
While historically antecedent to the incident under study, the Peleus Trial relating to World War II illustrated this distinction. According to the Juridical Review (1951), during that trail it was established that several members of the crew of a German submarine, acting under the orders of their commander Eck, had fired on and killed most of the survivors of a torpedoed Allied merchant-vessel, the Peleus . The seamen were in the water and clinging to rafts and floating wreckage. The Judge Advocate stated that:
Is it not fairly obvious that if in fact the carrying out of Eck's command involved the killing of those helpless survivors, it was not a lawful command, and that it must have been obvious to the most rudimentary intelligence that it was not a lawful command, and that those who did that shooting are not to be excused for doing it upon the ground of superior orders?
The article concluded that "officers and soldiers are expected to realize that acts such as the killing and ill treatment of prisoners of war, the mass extermination of civilian inhabitants of occupied territories, and the wanton devastation and pillage of property in such areas are manifestly unlawful." (Dunten, 1951, p. 255)
However, in the case at hand, only Major Wynkoop refused to comply with the orders to assist in the attack on Black Kettle's village.
To order, as Sherman and Sheridan had done, an attack on a group of people attempting to surrender, should be clearly identifiable as being a crime against humanity. If there is any doubt, one may compare a similar order by Hitler during World War II, the Order of Hitler of October 1942, called the "Commando" Order. It stated in paragraph 3 that:
All enemy troops encountered by German troops during so-called commando operations in Europe or Africa, though they appear to be soldiers in uniform or demolition groups, armed or unarmed, are to be exterminated to the last man, either in combat or in pursuit...(and that) if such men appear to be about to surrender, no quarter should be given them on general principle.
The article concluded that "it is clear that such an Order was manifestly contrary to established principles of international law and humanity." (Dunten, 1951, p. 257)
The conflict that initiated the Plains Indian wars stemmed from the 1851 Treaty of Ft. Laramie. By being asked by the government to give up the Ft. Laramie reservation for a temporary reservation, and, at the same time, being allowed to live on a portion of the Ft. Laramie reservation until they could move to the temporary reservation, which was not to remain in Kansas, the Indians were agreeing to an impossible course of action and to empty ownership. If, then, members of a tribe attacked settlers an the area under dispute, say those settlers residing in the Solomon and Saline valleys, and if war resulted, who was to blame for that war? The government. Recall that correspondent Stanley wrote after the signing of one of the Medicine Lodge Treaty:
And yet, if a white man, acting under the knowledge that all that country belongs to the whites, will go and make a home for himself, it will soon be a burning brand--a signal for war. If war is once thus commenced who are to blame? The commissioners.
The commissioners were not only representatives of the government but consisted of a majority of military officers, including Sherman. To enforce the terms of the treaties written after the Ft. Laramie treaty was to enforce a swindle and could have no other conclusion but conflict with the Native American. To then use that conflict as an excuse to wage a war of aggression against the various tribes was simply, as Harper's Weekly pointed out, to allow the military to do so with impunity.
A critical point becomes whether the military, or a portion of the military, sought the subjugation of the Indian people or, in fact, their extermination. White (1947), considered subjugation to be the intent of the military. However, if the military imposed conditions that took the lives of Indian people regardless of how those people responded to demands made of them by United States governmental authorities, then what transpired would not be subjegation, for, as pointed out, by surrendering one is already subdued. Nor would it even be an example of a massacre, for a massacre implies an isolated single event of mass killing. Instead, if one finds evidence of a series of massacres or mass killings of non-resisting people, one is witnessing historically an attempt to eliminate a group of people. What may be said to have transpired is a governmental policy of extermination, or, to use a relatively newer term, a term that did not exist in the 1800s, a governmental policy of genocide.
To determine if extermination or genocide was committed at the Washita, one must determine precisely what is extermination or genocide. Extermination, strictly speaking, means the killing of pests. A more descriptively accurate term is genocide. The word genocide comes from the Greek genos , meaning descent, kind, or race, and is related to such meanings as offspring, mother and father. Cide is Latin for killing. Thus genocide is race killing, killing according to membership in a group, aimed at destroying the genos, those capable of generating that group.
Ward Churchill in Indians Are Us?: culture and genocide in Native North America stated that Article II of the United Nation's 1948 Convention on Punishment and Prevention of the Crime of Genocide, specifies five categories of activity to be genocidal when directed against an identified national, ethnical, racial or religious group, and therefore criminal under international law. He noted that only one of these instances involves outright killing. They are:
Churchill noted that Article IV states that all persons shall be held accountable for acts catagorized as either genocide, conspiracy to commit genocide, direct or public incitement to commit genocide, an attempt to commit genocide or complicity in genocide, whether they are constitutionally responsible rulers, public officials or private individuals. (p. 14)
He pointed out that this means not only are people punishable for committing the specific act of genocide, but for inciting it, as well, citing the Nuremberg Trials' death sentence of Julius Streicher. Churchill observed that while Streicher was not a Nazi, he was sentenced to death because he published virulent anti-Semetic articles in his newspaper Der Sturmer , articles and cartoons that dehumanized the Jews, encouraging people to think in terms of their liquidation, and thus complicit to genocide. (p. 76)
The Western newspapers, in particular the Rocky Mountain News under the editorship of Byers, repeatedly incited the use of extermination against the Native Americans.
Berel Lang, in Act and Idea in the Nazi Genocide , stated that "what distinguishes the concept of genocide in its extreme form, then is its requirement of the physical destruction of a group of people as a consequence of their membership in an allegedly 'natural' (biologically defined) group. There are two implications which follow... The first implication is that...no personal deed or possession of the victims is at issue; the persons who constitute the group can do nothing, short of revising their biological history, to alter the terms of genocidal intention. They cannot affect that intention by renouncing a cultural or religious identity, or by proposing ransom or compensation; they cannot ask or be offered the options of exile or conversion or assimilation... Genocide singles them out by their identification with a group... (The second implication is) "that the agent of genocide requires nothing from his victims except their destruction... Not self-determination or individual identity or the capacity for shared discourse is admitted for members of the group... There is no use that the agent wishes to make of his victim...except to deprive him of all claims of selfhood. In the act of physical destruction on the basis of group identity, all claims of the individual are denied." (pp. 14, 18-9)
One may conclude that, indeed, genocide was committed on the Washita because neither Black Kettle, nor his band, could do anything to alter their fate other than become non-Indians. Complying with military directives to go to the Fort Cobb area as signification that he and his band wanted no part of the war would not do. Attempting to surrender to the military would not do. Returning to camp and waiting, as directed, to make peace with Sheridan when he came would not do. Since they were members of the Cheyenne tribe, nothing was required of them other than to give up their lives. Only their death would do. The same judgment holds true for Sand Creek. And for the military attacks immediately following the Washita.
Accompanying the act of genocide was a concurrent destruction of rationality. Recall that the Kiowas and Apaches had originally come to that area under the guidance of Hazen, that they had camped along the Washita above Fort Cobb following the directive of the government, and that these vary Indian villages along the Washita had been attacked by the army. Yet, in his report, Custer talks about the refusal of the Cheyenne to surrender. If the army had directed them onto the reservation, then attacked them, the army's subsequent invitation would have obviously been viewed by the Indians as suspect.
Custer in his report boasted on his strategy to compel the Kiowas and Apaches to go to Fort Cobb following the attack on the Washita. Yet, Custer would not have had to resort to threatening the chiefs with hanging to get the tribe to go to Fort Cobb if he had not attacked the Indians there in the first place. They were already at Fort Cobb. He even admitted that Fort Cobb was the designated place to go to begin with, noting in his report after visiting the battle ground on his return tripe that he believed the Indians camped along the Washita were headed to Fort Cobb for protection. In addition, Custer wrote in his report that he knew it was Sheridan's original intent to assemble the Indians at Fort Cobb and attack them there.
Logically speaking, Black Kettle and his people were given no choice to which they could reasonably respond. All their choices ended in their death. According to the rules of symbolic logic, the following statements are equivalent, that is, semantically they mean the same thing:
a. If H then A means the same thing as
b. either not H or A, which means the same thing as
c. not both H and not A. (Ambrose, Morris, 1948, Fundamentals of symbolic logic )
This can be applied to the case of the Cheyenne Indians with regard to their state of being hostile in relationship to their being attacked. In other words,
a. if they are hostile, then they will be attacked; or
b. either they are not hostile or they are attacked; or
c. it can not be the case they will be both hostile and not attacked or it will not be the case they can be both not hostile and attacked.
Black Kettle thus had a number of reasonable choices, depending on his logical perspective. If he and his people were hostile, then they could be expect to be attacked. Or, he could reason, either they could be not hostile or they would be attacked. Or, on the other hand, they could not be both not hostile and attacked at the same time. But they were not hostile by virtue of the fact that they had offered to surrender, yet they were still attacked. Black Kettle and his people were not allowed to define themselves as not hostile, even by going to vicinity of Fort Cobb to signify their non-hostile status, even by asking to make peace, even by surrendering, even by placing themselves in the position of prisoners of war. They were driven into a logical nightmare of unreason. Further, the other tribes who had assembled down the river were subjected to the same unreason. It was recorded that these various tribes were there because they had been directed to be there to avoid war. However, that they went there did not alter the intentions of the military. Regardless of that choice, they were charged by Custer's forces.
The attack by Custer had far greater ramifications than the destruction of Black Kettle's village. Over 8,000 members of various tribes had been camped along the Washita, including women and children. By Custer charging these camps in the dead of winter, with snow knee-deep, many assuredly perished from exposure and starvation as they abandoned the protection of their villages.
However, to make the attack against the peacefully assembled tribes along the Washita look like an act of bravery by the military, not mass killing, Custer talked as though bewildered about the gathering forces of Indians that came against him. He stated that despite the Indians' overwhelming numerical advantage, they were successfully repulsed. The most probable reason that they were "repulsed" was that they were friendly Indians encumbered by their families, had come to the vicinity of Fort Cobb to signify their peaceful status and fled when Custer started his charge down the Washita.
According to Raphael Lemkin in Axis Rule in Occupied Europe: laws of occupation, analysis of government, proposals for redress , genocide has two phases, "destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor." (p. 79) One of the first methods of nationalizing an area is through colonization of that area. (p. 83) Thus settlers were the vanguard for the domination of the land base originally occupied by the Indian. Usurpation of sovereignty is another element associated with genocide. The sovereign status of the Indian nations was eliminated by the United States without the consent of the Indian nations.
Another feature of genocide according to Lemkin is the "destruction of the foundations of the economic existence of a national group." The elimination of the buffalo contributed significantly to the demise of the Native Americans' ability to sustain themselves, as it was both the source of shelter, clothing, utensils and food.
According to Lemkin, genocide also involves "the physical debilitation and even annihilation of national groups in occupied countries" carried out mainly by racial discrimination in feeding, endangering of health and mass killings. Thus, the withholding of rations, the attack on camps in the winter and the mass killing of Indians all contributed to meeting the definition of genocide.
Moreover, Lemkin stated that genocide was the "antithesis of the Rosseau-Portalis Doctrine, which may be regard as implicit in the Hague Regulations," pointing out that the doctrine held that "war is directed against sovereigns and armies, not against subjects and civilians. In its modern application in civilized society, the doctrine means that war is conducted against states and armed forces and not against populations." It was this concept that was verbally celebrated in an 1868 article in Harper's Weekly in its discussion of humanity in war. In practice, however, its celebration was not observed vis-a-vis the Native American.
One of the most characteristic aspects of genocide is the attempt to conceal it. According to Lang (1990) governments involved in genocide often seek to hide what they are doing to achieve cooperation on the part of those who the government is seeking to destroy as well as cooperation on the part of those who may learn of the means of destruction. (pp. 42-3) The military apparently attempted, and succeeded in that attempt, to hid its attacks on those Indians it had directed to supposed sites of refuge.
What was a possible cause of such genocide? Practically speaking, the Indians' presence on land originally assigned to the Plains tribes put that land in jeopardy in relationship to white ownership. In addition, the Indians' presence on their traditional hunting grounds between the Platte and Arkansas rivers was particularly troublesome since that was the area through which the Union Pacific and Kansas Pacific were being laid. Their presence threatened investments in the area. Subtract the presence of the Indian from those areas in question and you solve the associated problems. Subtraction of the Indians' presence by relocation would not be as permanently effective as subtraction by extermination. Thus genocide had a strong instrumental advantage.
However, there may be as even more sinister causative factor--race alone. As noted, prior to Sand Creek, the Plains Indians had lived relatively peacefully with the whites in the vicinity of Denver. Reporters noted that vast amounts of goods had been shipped by the whites through the territory without conflict. What history has shown us is that what was wanted by the white occupants was not cooperation with the original inhabitants, but exclusive possession. And this meant the elimination of the Cheyenne and Arapaho from that area.
Genocide appears to not only destroy a group physically, but also mentally. Lang, in Act and Idea in the Nazi Genocide , reasoned that "it is the mind, together with bodies, that genocide acts to destroy." (p. 100) The Indians' will to resist was effected in a major way by such attacks as the one on the Washita. As Custer mentioned in his report, the Indians after the attack would agree to anything. When surrender to an enemy and compliance with an enemy's orders does not save one from destruction, the victim enters a world of non-reason. If retaliation is not possible, anything will be agreed to, whether reasonable or not. All leverage in favor of the Indian is eliminated, including treaty rights or land possession. Genocide gives absolute dominion over those being oppressed and thus absolute cooperation.
Philosophically, genocide may have as a genesis such Enlightenment philosophers as Immanuel Kant, who encouraged the idea that what was socially good was what was good for the community. Personal differences that were in opposition to the rational and moral ideals of commonality were destructive to the community and thus should not be permitted. (Lang, 1990, p. 183) The philosophies of Hegel, Fitche and the transcendentalists were similar expressions of this world view. It was exemplified, for instance, in the belief that science had as its end the betterment of society, and since the railroad was a manifestation of scientific progress, it was a benefit to mankind.
But what happened to those who did not buy into a given community's ideals or who, in fact, simply did not belong to that community? What happened to those who were in opposition to the railroad, or to mining interests, or to the settlement of the prairie? They were, in effect, standing in the way of the natural progression of mankind. As Sherman observed, the problems connected with the Indians was in the "nature of things." He reasoned that people "had no conception that in ten years the region north of Laramie and east of the Rocky Mountains could become habitable to the white race... If our Indian policy has failed, we should seek for the cause elsewhere, in the nature of things, rather than in a systematic desire to do wrong." However, it was the "white race" that was the definition of community. Anyone outside that definition remained undefined. They ceased to be "mankind" in the eyes of the definer.
"To place anyone outside that domain is to open the way to arbitrariness, not only in the first judgment of who has or has not the right to a civic identity, but also in the subsequent judgment of how those who do not have that right are to be treated." "Exclusion from the first group means that virtually no control remains for the determination of the status (or rights) of those who are excluded. This does not by itself ensure that the consequences of such exclusion will be severe, but it does mean that there are no limits in principle to what those consequences may bring." (Lang, 1990, p. 187)
Lang then makes a significant statement with regard to the issue under study. "The fact of difference becomes in effect a prima-face justification for whatever response is made." By the very fact that Black Kettle was not a white American in the end justified whatever treatment he and his followers received by the white Americans and their representative coercive force, the military. Regardless of whether he fought for peace and attempted to surrender numerous times, his difference determined his death. His attempts to surrender, in fact, did not mitigate in favor of his life, but assured that it would be taken, since by declaring his peaceful status he also announced his and his band's location.
In short, because Black Kettle, and, in fact, all Indians fell outside the domain of the white race, they lost the right to possess not only their land, buy their lives.
As Harper's Weekly observed, the popular view equated the Indian with "vermin." As pests they were relegated to the level of a nuisance, worthy of extermination. By the very fact that the land north of Laramie and east of the Rocky Mountains became habitable to the whites, it was the right of the whites to inhabit it. And how they came to eventually habitate it, so Sherman claimed, was not done through a desire to wrong Indians, but was just in the nature of things. Under the influence of a Kantain or Hegelian ethic, the capacity to decide what should be done to achieve what was in the "nature of things" resided in the personality of the autocrat or monarch, who spoke and acted for the state. Such a person was Sherman.
In opposition to this view were such persons as Major Wynkoop, Rev. Whipple Peace Commissioner Tappan, and the members of the Indian Bureau--Murphy and Taylor. Members of the Indian Bureau tried to warn the public through newspapers that the various Indians tribes who had surrendered at Fort Cobb were likely to be attacked there. They noted that the decision to attack was up to Sheridan. Their warnings were largely ignored. When the facts surrounding the attack on Black Kettle's band at the Washita became known, Whipple called for an investigation, but to no avail. The Cherokee nation also called for an investigation, but to no avail. Wynkoop resigned his military commission, refusing to take part, as he said, in the murder of innocent people--a decision proposed as a duty under similar circumstances at the Nuremberg International Tribunal. (Dunten, 1951, p. 258) He vowed to bring the Washita attack to the attention of Washington, but in the end his efforts also failed to launch an investigation. As Harper's Weekly noted, the Indian question was "very uninteresting, and few care to understand it."
What would the United States have been like if the Treaty of Fort Laramie had been allowed to stand? One can only guess. As the newspaper of that era indicated, the relationship between the settlers and Indians had been one of friendship and peace. Possibly a relationship would have developed similar to the type that exists between the Lapps and the Swedes. The Lapps are essentially nomadic and follow the cariboo. Possibly we would have retained a relationship with the Indian that permitted a nomadic life as they followed the buffalo. One can only surmise. However, a certain justice has followed. The Euro-American's desire to get something that is not his is enriching the Indian nations through the burgeoning of casinos. And the dominion over the vast land acquired, such as the badlands, often is being subsidized by the federal government, spending millions each year for farmers to grow grass on land that has little value other than buffalo pasture. Yet, no buffalo roam there.
What would be an appropriate redress in the face of such historical evidence of genocide? Lake, (May 1991) noted that much of what is being said today by government officials delegitimates efforts to correct historical injustices regarding Native Americans by dissociating their relevancy to contemporary problems and protests with a kind of "'spilled milk' tactic." For instance, he pointed out, during the 1973 occupation of Wounded Knee, South Dakota, Interior Secretary Morton said that "There is no way that I or any other Secretary can undo events of the past. If it was wrong for the European to move on to this continent and settle it by pioneerism and combat, it was wrong. But it happened and here we are."
The United States legally can maintain this attitude because it occupies the land over which it committed genocide. It is not a defeated country and thus the plight of the Native American does not fall under International law. Moreover, the treaties of this era can not be rectified under national law, either. However, is this the kind of example we want to set as a nation? Recall that Rev. Whipple said with regard to the Washita:
You know and the whole world knows the sin of the original cause of strife is at our door. We are guilty before God of winking at robbery; we know it, Congress knows it, the people know it. Will we escape the sure retribution of God's eternal justice by seeking to murder every Indian?
Note that the example we as a nation set may have actually ended in a kind of retribution. According to Norman Rich in Hitler's War Aims, Hitler's self proclaimed model for domination was not that of his former Habsburg rulers, with their indiscriminate annexation of people of different races and religions, "but that of the Nordics of North America, who had ruthlessly swept aside lesser races to ensure their own ethnic survival." (p. xlii)
One redress would be the return of property sequestered during the genocide. The United Nations issued a declaration against Germany in which they reserved the right "to declare invalid any transfers of, or dealing with, property, rights and interests" in territories under occupation that had been subject to "illegal measures of dispossession, devices in buying up properties, as well as the use of duress in reconveying titles." That same principle could be applied to the land lost to the tribes participating in the Treaty of Fort Laramie. According to the principles ascribed to by Lemkin with regard to a country that has acquired land through genocide, "The occupant has the right only to the usufruct of real property belonging to the state in the occupied country; he has no right to dispose of such property and convey title to it to other persons. Consequently, the property given by the occupant to the colonists should be returned to the original owners." (p. 45) This would mean giving back all the country east of the Rocky Mountains, south of the Missouri River and north of the New Mexico, Texas border--namely, the Great Plains. The appropriate course would be a Congressional act.
That non-Indian America has the right to retain that land is probably legally sound. But, as an example of sound moral precepts, it would appear that America has the obligation to return the land it extorted from the Native American through genocide. And, added to the moral obligation, is a practical one. The Great Plains has traditionally suffered from population and economic decline. As Deborah Epstein Popper and Frank J. Popper, Jr. point out in "The Fate of the Plains" (Marston, ed., 1989, pp. 98-113), with both governmental subsidies and markets weakening here, private interests are rapidly leaving the land.
"In retrospect, only the Indian hunter-gatherers knew how to live lightly on the land," the Poppers maintain. "The frequent harshness of landscape, climate, and economy has always meant that the region chooses its own; now there will be no one left to choose. The rural Plains will be virtually deserted." (pp. 108-9)
The solution is to return the area to its pre-white condition, according to the Poppers--and "to make it again the commons the settlers found in the nineteenth century." (p. 110) They recommend, as one alternative, to return the land to the Native American, and to "tear down the fences, replant the short grass, and restock the animals, including many buffalo." They recommend as a plan for the twenty-first century to "recreate the nineteenth century: to reestablish the Buffalo Commons." (p. 112)
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Wise, D. (1973). The politics of lying, government deception, secrecy, and power . New York: Random House.
Wooster, R. (1988). The military and United States Indian policy (1805-1903) . New Haven: Yale U. P.
Wynkoop, E.W. (1994). The tall chief: the autobiography of Edward W. Wynkoop . Monographs in Colorado. Denver, Colorado: Colorado Historical Society.
Washita - Chapter Three
Washita - Chapter Two
Washita - Chapter One
Cumulative First Nations Site Index
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