War crimes, Sand Creek and the South – a talk at DU law school

      The Native American Laws Students Association at DU invited me to give a talk on John Evans and Sand Creek last fall (h/t Aubrey Bertram).  The tape is here (h/t to Ryan Goehrung).
      In the question period, Professor David Akerson   a former prosecutor for the United Nations – see here – asked whether Evans was guilty of war crimes (the DU committee as a whole had thought Evans was profoundly morally and politically culpable for uniquely creating the conditions for or instigating the Massacre  but had not dealt directly with the issue of legality beyond noting that he was forced to resign). 

        On August 11, 1864, Governor Evans issued a Proclamation – also as superintendent of Indian Agents in Colorado, charged with making peace with indigenous people, and without any direct military appointment or authority – which calls all white residents to “kill and destroy” every Indian still on the Plains.  This is an incitement to murder, including of women and children, by a public official.  It is pretty much what was done at Sand Creek, to determinedly peaceful Cheyennes and Arapahos who had every reason to think that they had made peace and were under the protection of the army (John Evans and John Chivington had deceived them at Camp Weld).  
       Inciting the murder of innocent people by those in authority is a criminal offense under the law of the time – not that officials were prosecuted for such things… – and given the facts, decent people at the time might have arrived at this verdict.
            Professor Akerson later invited me to a class of law on war crimes trials to talk about facts of  the case,  The students had read our Committee’s report here; they then offered arguments about which features of modern law might apply.
        During the Civil War, the Federal government hanged 38 Santee Sioux for attacking settlers in Minnesota.  President  Lincoln risked his reelection in 1864 to have two attorneys review the 303 death sentences handed down in Minnesota, and reduced the number dramatically to those against whom there was some evidence.
        This mass hanging, the largest in US military history, stands out in two ways.  First, not one of the leaders of the Confederacy, who fought the Civil War to preserve bondage, a systemic form of murder and physical and sexual abuse of innocents, was hung.
      Now both John Evans and John Chivington were Unionists and opposed slavery (Chivington was threatened as a minister in Missouri with being tarred and feathered, and went to preach that Sunday, a big man, with two revolvers next to his bible).  When the Ku Klux Klan ran Colorado in 1924 (Mayor Ben Stapleton and Governor Morley), the two racisms merged.  See here.  In the brief opening of the Colorado History museum exhibit on Sand Creek grotesquely named “Collision,” an older white man accosted me about how the facts about the Massacre were “the Indian’s point of view.” I looked at him and said, “no, it’s the truth.” He later proclaimed the secession for slavery “the war for Southern independence”…
      Today in the South, there are still Jefferson Davis Highways (see below and here).  Davis was responsible, even in the War, for the order to murder black soldiers captured as prisoners of war, as in the Fort Pillow Massacre.  Murdering prisoners of war has been a great crime since the Greeks…
      Yet in the twin genocides against slaves and indigenous people (the latter occurred from Coast to Coast from 1638 and the Pequot Massacre in Connecticut on – see here for a year by year map), no American official was ever indicted for even a single murder.  That is perhaps the most remarkable fact about the American “legal” system. Despite the grandeur of the Bill of Rights, American history is “exceptional” largely for murderousness, and we have just – for instance, with Governor Hickenlooper’s apology to indigenous people on the steps of the State Capital last December 3rd – begun to strike out on a new and more hopeful course.  See here.
     Second, Little Crow, the Sioux leader,  had settled down and become a Christian as had others.  But the starvation of the  people, in violation of federal treaty obligations, and the catering of the military in Minnesota only to  those who starved them, was angering and frightening. When two indigenous young men  murdered a white family and took food, the Government would strike back, and the war was on…
     But the character of the war was determined primarily by the American conquest of that territory in the first place – morally, the crime of aggression (see Michael Walzer, Just and Just Wars).  Indigenous people had the right, under European/settler law, to defend their property and themselves against their conquerors – their lands were being held by illegitimate force.  In addition, coerced starvation is a great crime. 
    What the young men who initiated the war did was also a crime against a small number of innocents (jus in bello), but what the United States Government did, both in the conquest and in breaking the treaties signed, through starving the Santee, was a series of mass war crimes (jus ad bellum).  The Native Americans had a just cause.
      Put differently, the Civil War in the South was a war against genocide (bondage) but the Civil War in the West was a war of genocide…
       For a talk to the Northwestern students of Gary Fine, an Evans professor who has told the truth for years, listen here.
       For a talk to the Unitarian Church on founding myths/amnesias in the US, Israel and Tibet, see here.
        For a series of reflections on Evans and Sand Creek, see the left side of this page.
“Reader supported news
Lynching and Jeff Davis Highway
February 12, 2015
Exclusive: Many parts of the South, including Arlington, Virginia, just outside the U.S. capital, still honor Confederate President Jefferson Davis by attaching his name to important roadways. But a recent study on lynching puts the motive for honoring that white supremacist in a sickening new light, writes Robert Parry.
By Robert Parry
A new study of Southern lynching of blacks, sharply raising the total to nearly 4,000 victims, adds some context to the decision in 1920 to attach the name of Confederate President Jefferson Davis to parts of Route One, including stretches near and through African-American neighborhoods. That period was a time when the number of lynchings surged across the South and whites were reasserting their impunity.
According to the study by the Equal Justice Initiative, the use of lynching – mob killings and mutilations of blacks by hanging, burning alive, castration, torture and other means – was nearly as high around 1920 as it was in the latter part of the Nineteenth Century. There was a gradual decline in lynchings in the early Twentieth Century, but the pattern reversed and the use of lynching surged to about 500 during a five-year period heading into 1920.

A Civil War-era African-American soldier and his family. (Photo credit: Encyclopedia Virginia)
A Civil War-era African-American soldier and his family. (Photo credit: Encyclopedia Virginia)

That period also marked a determination by many Southern whites to reaffirm the rightness of the Confederate cause and to reassert white supremacy. Thus, in 1920, to drive home the point of who was in charge, the Daughters of the Confederacy had Southern states name portions of Route One after Jefferson Davis, who was hailed as the “champion of a slave society” when he was chosen to lead the Confederacy in 1861.
Besides honoring a dyed-in-the-wool white supremacist who favored keeping African-Americans in chains forever, the Daughters of the Confederacy saw these designations of Route One as a counterpoint to plans in the North for a Lincoln Highway in honor of assassinated President Abraham Lincoln.
But bestowing this honor on Jefferson Davis was also a political message of pro-Confederate defiance that was not limited to the brutal era of 1920. The Jefferson Davis designation was extended to parts of Route 110 near the Pentagon in Arlington, Virginia, in 1964 as Martin Luther King Jr. and the Civil Rights Movement were pressing for landmark civil rights legislation to end segregation and as white Virginian politicians were vowing to resist integration at all costs.
A year or so ago, I wrote to the five members of the Arlington County Board and urged them to seek an end to this grotesque honor bestowed on a notorious white racist. When my letter went public, it was treated with some amusement by the local paper, the Sun-Gazette, which described me as “rankled,” and prompted some hate mail.
One letter from an Arlington resident declared that it was now her turn to be “RANKLED by outsiders like Mr. Parry who want to change history because it is not to his liking. … I am very proud of my Commonwealth’s history, but not of the current times, as I’m sure many others are.”
I was also confronted by a senior Democratic county official at a meeting about a different topic and urged to desist in my proposal to give the highway a new name because the idea would alienate state politicians in Richmond who would think that Arlington County was crazy.

But the new study on the terrorism of lynching reminds us that attaching Jefferson Davis’s name to roadways wasn’t just some romantic gesture to honor an historical figure beloved by Southern whites who in 1920 still pined for the ante-bellum days when they could own black people and do to them whatever they wished.
The years around 1920 marked a violent revival of the carnival-like scenes in which whites treated the lynching of blacks as a moment for community hilarity and celebration, often posing with their children for photographs next to the mutilated corpses. Stamping Jefferson Davis’s name on a highway that passed near and through black neighborhoods was another way to send a chilling message to African-Americans.
In my 37 years living in Virginia, I have always been struck by the curious victimhood of many Southern whites. Because of the Civil War, which some still call “the War of Northern Aggression,” and the Civil Rights Movement, which finally ended segregation, they have been nursing grievances, seeing themselves as the real victims here.
Not the African-Americans who were held in the unspeakable conditions of bondage until slavery was finally ended in the 1860s and who then suffered the cruelties of white terrorism and the humiliation of segregation for another century. No, the whites who lorded over them were the real “victims” because the federal government finally intervened to stop these practices.

Yet, while some white Virginians remain “very proud” of that history, there has been a studied neglect of other more honorable aspects of Arlington’s history, including the role played by Columbia Pike as an African-American Freedom Trail where thousands of former slaves, freed by Lincoln’s Emancipation Proclamation in 1863, traveled north to escape slavery.
Many were given refuge in Freedman’s Village, a semi-permanent refugee camp along Columbia Pike on land that now includes the Pentagon and the Air Force Memorial. Some of the men joined the U.S. Colored Troops training at nearby Camp Casey before returning to the South to fight for freedom, to end the scourge of slavery once and for all.
As blacks joined the Union Army, Confederate President Jefferson Davis ratified a policy that refused to treat black men as soldiers but rather as slaves in a state of insurrection, so they could be executed upon capture or sold into slavery.
In accordance with this Confederate policy, U.S. Colored Troops faced summary executions when captured in battle. For instance, when a Union garrison at Fort Pillow, Tennessee, was overrun by Confederate forces on April 12, 1864, black soldiers were shot down as they surrendered. Similar atrocities occurred at the Battle of Poison Springs, Arkansas, in April 1864, and the Battle of the Crater in Virginia. Scores of black prisoners were executed in Saltville, Virginia, on Oct. 2, 1864.

Yet, while Jefferson Davis’s name remains on roadways through Arlington — and as the Confederate president is effectively honored whenever people have to use his name — there is still no commemoration of Freedman’s Village (though something is supposedly being planned) and no one apparently even knows the precise location of Camp Casey, arguably one of Arlington’s most significant and noble historical sites. (Camp Casey is believed to have been located close to where today’s Pentagon now is,  an area that in the 1860s was called Alexandria County before being renamed Arlington County in the Twentieth Century.)
Apparently, recognizing the place where free African-Americans were trained and armed to defeat the Confederacy and end slavery might “rankle” some white Arlington residents.

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s.