James M. Redwine

Native Americans

Not Rocket Science

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The Rule of Law is not the stuff of artificial intelligence and differential equations. It is not about the James Webb telescope that may help disclose where and when we came from. It is not about a cure for COVID. No, the Rule of Law is far more complex, and perplexing, than any of those things. However, if properly applied, the Rule of Law can help us understand and deal with these challenges and others.

Law sounds simple. Treat others the way you wish to be treated. Respect the person and property of others. These principles are easy to say but thousands of years of human history prove they are extremely difficult to apply. Our Declaration of Independence sets out the basics of our legal system, “…[A]ll men are created equal,” and all men have the right to life, liberty and the pursuit of happiness. When Thomas Jefferson penned those simple ideals he owned slaves, and had children he did not acknowledge by at least one of those slaves. Also, women could not vote and the property rights of Native Americans were not even an afterthought. Were Jefferson and the rest of the 1776ers evil? No, they were human. We call these concepts ideals because the realities are nearly impossible to achieve. That is why we need the Rule of Law, to encourage us to try.

Our Constitution sets forth America’s aspiration to form a more perfect union. Surely none of our Founders was naïve enough to believe perfect self-government was achievable. That is not why goals are set. Just as it is the struggle of life that can separate us from all other animals and, perhaps from some humans, it is government’s role to help us strive for perfection. We have often fallen short and we always will. But just as we are fighting the war on COVID in fits and starts we can face our past failures in how we have behaved and strive to be better. There will never be a cure for our occasional imperfect collective missteps. That is why we need to acknowledge our past failures and seek to avoid future sins. We should do this together.

In her book, On the Courthouse Lawn, Sherrilyn Ifill points out the irony of many lynchings being carried out by large numbers of a community right at the seat of justice, the county courthouse. Also, our courthouses are often the site where the legal system has been used to deny human rights, such as through the separation of Native American families and establishment of some guardianships that led to murder.

Community recognition of these subversions of the Rule of Law is important. Monuments that show society admits its wrongs, even if long past, can help people heal and avoid new injustices.

Name, Image, Likeness

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As of July 02, 2021 the NIL of collegiate athletes are no longer the property of their school and the National Collegiate Athletic Association. Each student athlete, depending upon many factors such as the laws of the state where their school is located, may sell his or her fame to the highest third-party bidder. Colleges may provide stipends designed to “enhance education” but may not pay athletes to play. However, third parties such as wealthy boosters as well as corporations may.

Until six months ago it was an unpardonable sin for amateur athletes to be caught acting as though they owned their own financial souls. In the land of the free and the home of individual liberty, beginning in 1906 when the NCAA was founded, Big Brother was in charge of amateur athletics, especially at the collegiate level. Of course, Americans being Americans, countless ways were found to transgress the rules without paying any price. The unpunished sins of many were paid for by the examples made out of a few, the greatest amateur athlete in the world for one.

Jim Thorpe was a Native American born on the Sac Fox Nation in Indian Territory (Oklahoma) in 1887. Thorpe was taken from his family when he was ten years old and sent to Haskell Indian Institute in Kansas then at age sixteen to Carlisle Indian Institute in Pennsylvania. During parts of the summers of 1909 and 1910 Thorpe was paid $2.00 per game to play semi-professional baseball. In the Olympics of 1912, where baseball was not an event, Thorpe won gold medals in both the pentathlon and decathlon. The 1912 Olympics were held in Stockholm, Sweden. Sweden’s King Gustav V in awarding the medals to Thorpe said to him, “Sir you are the greatest athlete in the world.” In 1913 the Olympic Committee took Thorpe’s medals away from him and expunged his records because of his semi-pro baseball participation. The medals were returned to Thorpe’s family in 1983, thirty years after Thorpe’s death. I guess it is true, “Timing is everything”. Had Thorpe won his medals after July 01, 2021 no sin would have been assessed. In fact, under the new NIL rules Thorpe would have probably made millions, legally, while still an “amateur”.

The management of NIL and amateur athletics in schools now falls under the same entities that have been charged with addressing COVID. The federal government, each state, counties, cities and schools have a say and a role. What could go wrong?

While it is the right thing to finally put the ownership of an athlete’s Name, Image and Likeness where it belongs, with the athlete, there will undoubtedly be much to consider. Some will be good. For example, my alma mater, Indiana University, has labored in the football vineyards unsuccessfully for years. But one of IU’s alumni is billionaire Mark Cuban who is a rabid IU fan. I say “Go, Mark!” And Harvard, not known for football for a hundred years, has celebrated drop-outs, Bill Gates and Mark Zuckerberg. Do you think the honorary doctorate committee may take note? Then there is Princeton alum, Jeff Bezos, America’s wealthiest possible booster. What Jeff did for Amazon perhaps he can do for Princeton athletics. After all, Princeton played in the first college football game against Rutgers in 1869. Renewed glory may await if NIL swag can be offered and the transfer portal can be properly greased.

And please let me say I am fully in favor of everyone being the sole owner of their own NIL. If athletes can market themselves, my only objection is that my high school sports career was of no value to anyone. I believe capitalism and individual liberty is a good system. And if chaos at the top of college sports caused by NIL is good for college sports and if money in the hands of alumni is the mother’s milk of NIL, the future of college sports looks exciting.

My position is athletes should have control over their own images. And call me cynical, but I believe imaginative schools and boosters can find ways to categorize practically anything from books to private jets as “educationally enhancing”.

As for regulating NIL and putting that regulation in the hands of the same people who for the past two years have attempted to address COVID, I say, “Please leave it alone, let the free-market system work it out”. However, I am a little concerned with the effect collegiate NIL laissez-faire competition might have on amateur sports below the college level. When Tee Ballers start threatening to enter the Little League Transfer Portal unless their parent coach provides a new bicycle, we may need some way to reign things in.

Hot Lead or Cold Water

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At the Washita Battlefield, November 21, 2021. Photo by Peg Redwine

Charles Brill’s account of the November 27, 1868 incident between Black Kettle’s Cheyenne tribe and U.S. 7thCavalry troops led by Lt. Col. George Custer is entitled, Conquest of the Southern Plains: Uncensored Narrative of the Washita and Custer’s Southern Campaign. Brill’s 1938 publication relied on eyewitness accounts from aged Indian survivors of the conflict. Brill personally took Cheyennes Magpie and Little Beaver and Arapaho Left Hand along with government interpreter John Otterby, a.k.a. Lean Elk, to the site of the attack. This article relies on the 2001 republication of Brill’s accounts by the University of Oklahoma Press re-titled Custer, Black Kettle, and the Fight on the Washita.

The fertile Washita River valley area on the western edge of Indian Territory (Oklahoma) had been a common peaceful wintering ground for numerous Indian tribes for countless years before 1868. There was an abundance of water, game, shelter and vegetation. It was also an area set aside for the Indians in several treaties with the United States between Black Kettle’s Cheyenne and other tribes. On the bitterly cold, snow-covered morning of November 27, 1868 the Indians’ only concerns were keeping warm and tending to their horses. Then Custer’s seven hundred mounted soldiers came charging at the sleepy Indians from all sides with rifles blazing and sabers slashing.

Black Kettle & Medicine Woman Later Crime Scene. Photo by Peg Redwine

Black Kettle was alerted by a woman who had been tending to the horses and first saw the approaching soldiers. When she yelled out “Soldiers, soldiers!”, Black Kettle fired a warning shot with his rifle to awaken the camp. Then Black Kettle drew his wife, Medicine Woman, up behind him on his pony and attempted to flee as he and Medicine Woman shouted warnings to the camp. He and Medicine Woman were then shot and killed. Magpie, one of the eyewitnesses Brill relied upon, heard Black Kettles’ warning shot and exited his lodge just as he heard a trumpet blast from the nearby trees and then saw the mounted soldiers charging into the village from all sides. Magpie was shot in the leg but managed to escape death by entering the freezing water and hiding in the brush along the banks.

As reported by Brill at page 159:

“From every side came the heavy report of carbines. Occasionally an Indian rifle answered. But these were notable for their infrequency. So sudden had been the attack, only a few of the red men had opportunity to arm themselves. Most of those who did so had only bows and arrows. They were powerless to offer serious resistance. Flight was their only objective.

Those villagers whose tepees stood nearest the stream fared better than their friends in the center and on the south side of the camp. First to dash through the icy waters of the Washita and scramble up the opposite bank found themselves running into scouts and sharpshooters who had deployed in the timber there. They also encountered troopers, mounted and dismounted. Seeing escape shut off in that direction, the fugitives accepted the only avenue left open to them, the channel itself. It was misery to wade its ice-fringed waters, but it was either that or bullets.

Women and children, as well as braves, plunged into the stream. Most of them were scantily clad. Many were without moccasins on their feet. Frequently the water reached to the armpits of adults who had to carry the children through these deep pools to prevent their drowning. Desperately they splashed their way beyond the lines of their enemies.”

Sometimes the fog of history eventually is pierced by uncomfortable facts. The Washita massacre was originally reported as a great military victory over savage foes by courageous heroes. Those reports originated from the “heroes”. The facts managed to slowly ooze out over a great deal of time. Those facts established the betrayal of morality and violations of treaties. They do not tell us, “Why?” The reasons may be explained by Pawnee attorney and scholar of law and history Walter R. Echo-Hawk in his book on bad court cases involving Native American treatment by the dominant white culture.

In the Courts of the Conquerors, The 10 Worst Indian Law Cases Ever Decided contemplates the roots of the doctrine of Manifest Destiny and its raison d’être, The White Man’s Burden:

“A popular justification for colonialism among the colonizing nations was the white man’s burden. Originally coined by Rudyard Kipling, the term is a euphemism for imperialism based upon the presumed responsibility of white people to exercise hegemony over nonwhite people, to impart Christianity and European values, thereby uplifting the inferior and uncivilized peoples of the world. In this ethnocentric view, non-European cultures are seen as childlike, barbaric, or otherwise inferior and in need of European guidance for their own good. As thus viewed from European eyes, colonization became a noble undertaking done charitably for the benefit of peoples of color.” See p. 16

The concept of exterminating Native American culture as justified because it was replaced with the blessings of Christianity and civilization is hardly a new idea. The Romans by force of arms visited their supposed superior culture on “lesser” peoples as have many dominate societies for thousands of years. The germ of “destroying a culture to save it” is easily discovered by any powerful society that wants to take what some weaker society has. However, that there was ample precedent for the massacre at the Washita does not expiate Custer’s assault and does not obviate the moral imperative to remember it.

Washita Battlefield. Photo by Peg Redwine

November Re-Visited

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As first light appeared on the snow covered ground the morning of November 27, 1868, Cheyenne Chief Black Kettle emerged from his tepee as a woman came running across a stream of the Washita River screaming, “Soldiers, soldiers!” Black Kettle must have thought he was re-living the morning of November 29, 1864 on the banks of Sand Creek, Colorado Territory. That is when and where Colonel John Chivington and seven hundred troops of the U.S. Cavalry massacred a large number of Black Kettle’s tribe.

Black Kettle had settled his tribe at Sand Creek at the suggestion of U.S. Cavalry Major Scott Anthony based on the Ft. Wise Treaty of 1861 signed three years earlier. Major Anthony gave Black Kettle a white flag of truce to display to any soldiers who might come upon Black Kettle’s tribe and mistake its members as hostiles. Chivington ignored it. Only three years after the Sand Creek betrayal, Black Kettle and the United States at the Council of Medicine Lodge, Kansas reached another peace treaty ensuring safety and hunting rights for the Cheyenne along the Washita River Valley in Indian Territory (Oklahoma).

During the Sand Creek incident Black Kettle’s wife was shot several times but survived. His wife and he were not so fortunate at The Washita. Lieutenant Colonel George A. Custer and members of the U.S. Cavalry were acting on orders from General Philip H. Sheridan to: “Kill or hang every warrior. Bring back all women and children.” Both Black Kettle and his wife, Medicine Woman, were shot dead while trying to flee.

Oklahoma history professor Arrell Morgan Gibson (1921-1987) in his widely used textbook, The History of Oklahoma, first published in 1972, at page 94 describes The Washita incident:

“During 1868 the tribes of western Indian Territory had been slow in settling on their reservations assigned by the Medicine Lodge treaties. Some warrior bands had raided settlements on the border. To punish these Indians, the Seventh Cavalry, led by George Armstrong Custer, rode out of Fort Supply (in what is now western Oklahoma) in late November 1868. At daybreak on November 27, Custer and his troops reached the Washita River and made a surprise attack at Black Kettle’s Cheyenne camp. The Seventh Cavalry killed more than one hundred warriors and took fifty women and children as prisoners. The soldiers burned the village and captured a large herd of horses. Chief Black Kettle was among the dead. The Battle of the Washita was more of a massacre than a battle.”

There are other descriptions of The Washita incident. One of the versions most sympathetic to the Indians is contained within Oklahoma historian Charles J. Brill’s (1888-1956) account, Custer, Black Kettle and the Fight on the Washita, that was first published in 1938. Brill reported that Custer’s plan was to use his five-to-one advantage over the Cheyenne and surround the sleeping Indians:

“Custer was not long determining his plan of attack. This time (unlike Sand Creek) there would be no opportunity for his intended victims to escape by flight. Before morning he could surround the village. At a given signal the encircling battle line would converge on the unsuspecting Indians, who then would be completely at his mercy. It would be a wipe-out.”

See p. 148

And there are those who observed The Washita incident in more generic terms. In his The Battle of the Washita historian and professor Stan Hoig (1924-2009) says of Sand Creek and The Washita:

“That both events were massacres-which utilized the element of complete surprise against a people who did not consider themselves to be at war in which troops who had orders to kill anyone and everyone before them made no attempt to allow surrender-is hardly deniable by any accepted use of the word ‘massacre’.”

See p. xiii.

Professor Hoig told the story of The Washita as a clash between cultures:

“At stake were the will and conscience of the United States in resolving the great dilemma of the American Indian. It was an issue in which no middle ground was begged, and one for which history offered no definitive answer concerning the rightness or wrongness of one society and people overcoming and displacing another. At hand was not only the question of human morality but also the march of empire and the inevitable contest between barbarism and civilization.”

See p. 184

Oklahoma in November can range from the temperate to the freezing such as occurred on November 16, 2021 (76℉) and November 19, 2021 (31℉). That there was a foot of ice and snow surrounding Black Kettle’s village on November 27, 1868 is not without precedent and that much more died that day than principle and morality is neither.

A special thank you is due to Cheryl Salerno, Librarian of the Oklahoma Wesleyan University Library
 in Bartlesville, Oklahoma for her courtesy and assistance.

Tribal Court

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Chief Joseph

After forty years of serving as a judge in the white man’s courts I was recently honored to be asked to serve as a Special Judge by appointment of the Court of Appeals of the Stockbridge-Munsee Community of the Mohican Nation. The appointment of an outside judge was necessary because the case involves questions of tribal membership and the regularly sitting Native American judges for the Tribe had conflicts of interest due to the judges’ personal connections to the issues.

As I had no experience with Native American law, I had to first familiarize myself with the particular Tribe’s particular Constitution, procedural rules and statutes that applied to my assigned case. What I found was the bedrock issues for the Indian judicial system are remarkedly similar to the legal system I learned in law school and sat as a judge in. When I looked closely at tribal law, I came to the same conclusion attorney Abraham Lincoln did. Lincoln said the primary purpose of all courts and lawyers should be to:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer (judge) has a superior opportunity of being a good person.”

If one reads some newspaper editors or listens to cable news anchors, he or she might conclude compromise is anathema to the American body politic’s well-being. Conflict and strife with unyielding single mindedness are the watchwords for national media and federal, and many state, office holders. This way of addressing our personal and national problems seems rather discordant when a majority of Americans apparently believe their preferred law giver said:

“Blessed are the peacemakers, for they will be called the children of God.”
Matthew 5:9

It is ironic that those, many of whom champion Jesus the ultimate practitioner of compromise, so often call for obstinance and conflict. I guess the concept of situational ethics passes them by.

What I discovered in researching tribal law was what legal scholars have known since the days of Socrates: all courts are here to resolve controversies. That is their only charter, not to provide fodder for the gossip mill or entertainment for the afternoon or late-night talk show crowd. Judges, whether in the white man’s legal system or the Indian’s, have one main mission, that is to help people help themselves, if they can, to make peace.

I grew up on an Indian reservation but my experience with the kids I played ball with, fought with and dated was they were just like me. Therefore, I was not surprised Native American courts had the same mission as the one I presided over in the white man’s world. On the other hand, it is comforting to think should I for some reason get caught up in a tribal legal system it will be about the same as the social system I have always known. And I am glad America is finally getting around to recognizing what should have always been the case.

The tribal law I researched reminded me of laws enacted from the times of ancient Rome, ancient Greece and English and French legal philosophers, such as John Locke and Voltaire and American Founding Fathers, such as Thomas Jefferson and James Madison.

Another great philosophical legal leader was Chief Joseph of the Nez Perce (1840-1904). Chief Joseph engaged in peaceful resistance until he was forced to surrender which he did based on certain representations from the white man’s government. Those representations were not honored. However, Chief Joseph upheld his end of the peace agreement and he was greatly admired as a peacemaker.

Chief Joseph’s legal philosophy is remarkedly similar to that of our earlier mentioned judge: Jesus said, “do unto others as you would have them do unto you.”  Chief Joseph said:

“If the white man wants to live in peace with the Indian, he can live in peace. Treat all men alike. Give them the same law.”

As a tribal judge, even if only for one case, I feel quite at home with this court mission statement from Chief Joseph.

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