Until recently, many of Missouri’s legal records were inaccessible and the existence of many influential, historic cases was unknown. The ten essays in this volume showcase Missouri as both maker and microcosm of American history. Some of the topics are famous: Dred Scott’s slave freedom suit, Virginia Minor’s women’s suffrage case, Curt Flood’s suit against professional baseball, and the Nancy Cruzan “right to die” case. Other essays cover court cases concerning the uneasy incorporation of ethnic and cultural populations into the United States; political loyalty tests during the Civil War; the alleviation of cruelty to poor and criminally institutionalized children; the barring of women to serve on juries decades after they could vote; and the creation of the “Missouri Court Plan,” a national model for judicial selection.
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About the Author
Kenneth H. Winn is the author or co-editor of a number of books and articles on Missouri political and cultural history, including Exiles in a Land of Liberty: Mormons in America, 1830-1846. He has taught history at Washington University in St. Louis and the University of Missouri-Columbia and ran a legal history internship program for the Missouri Supreme Court.
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Missouri Law and the American Conscience
Historical Rights & Wrongs
By Kenneth H. Winn
University of Missouri PressCopyright © 2016 The Curators of the University of Missouri
All rights reserved.
Testing the Limits of American Justice: Indian Trials in Nineteenth-Century Missouri
William E. Foley
WHILE RETURNING FROM THE Pacific in the fall of 1806, Captains Meriwether Lewis and William Clark hungered for news of events that had transpired during their twenty-eight–month absence. A brief encounter with veteran trader James Aird, then on his way up the Missouri, yielded several tantalizing tidbits, including word of the recent jailings in St. Louis of several Indians accused of murder. Two had been tried in Louisiana's territorial superior court, found guilty, and hanged. Far more than subjects for idle river gossip, the trials and executions conveyed a message of lasting import for Native Americans in the trans-Mississippi domains lately claimed by the United States. They signaled the U.S. government's resolve to subject the region's indigenous populace to the dictates of a legal system that differed markedly from the ways of customary Indian law.
Incarceration and hangings may have been the norm for Anglo-Americans intent on assigning blame and punishing offenders, but those practices seemed bizarre to Indian people who had developed systems of ritual recompense that deflected individual punishment and emphasized reciprocity. In the indigenous world, maintaining peace and harmony among the principal disputants was no less important than seeking retribution. While their judicial settlements typically employed restitution, compensation, and banishment as methods for satisfying grieving and injured parties, Indians were not immune from the desire for revenge. In cases of wanton murder, aggrieved tribal members believed it was justifiable to take other lives as recompense for their losses, so long as the retaliation was direct and proportional. The victims did not have to be the actual perpetrators, and that tolerance for substitutions affords a timely reminder that Indian justice was different but not necessarily more benign.
The 1806 trials and executions in St. Louis prefigured major changes to the policies and practices that had governed Indian-white relations in the Louisiana Territory during the French and Spanish regimes. Under their auspices the outnumbered local authorities typically acquiesced to native expectations and embraced restitution and compensation as the preferred solutions for all but the most wanton crimes. The willingness of mid-America's French Creole populace to respect the traditions and autonomy of their powerful Indian neighbors enabled them to coexist in relative harmony and to forge mutually beneficial trading partnerships.
Indian-white killings were a rarity in Upper Louisiana before 1804, but following the territory's transfer to the United States, an influx of land-hungry new settlers with an anti-Indian mindset increased the potential for violent clashes and casualties. When incoming Americans killed five members of the Kickapoo tribe on the Meramec River in 1804, three youthful and disgruntled tribal members struck back by taking the lives of two white hunters at the mouth of the Osage River. General James Wilkinson, Louisiana's newly appointed territorial governor, ordered Kickapoo leaders to hand over the perpetrators, but he made no effort to apprehend the white killers whose actions had provoked the retaliatory attack.
Notwithstanding his forceful response, Governor Wilkinson remained mindful of the residual power and influence of the western tribes and the limited military forces at his disposal. Both he and his Indian counterparts had to walk a fine line. Not wishing to further exacerbate tensions with the Americans, the Kickapoo eventually heeded Wilkinson's directives and surrendered Ouipinicka and Ouabesca to the authorities in St. Louis. While conferring with U.S. officials, tribal leaders invoked the time-honored custom of offering compensation to atone for their misdeeds. In a ritual of recompense intended to settle the matter, a Kickapoo spokesman presented Governor Wilkinson with a white wampum belt and extended his hand in friendship to the American president:
My father I pray you to listen to me today. I give my hand to my great Father who lives far east on the sea coast and I bring with me this belt to cover the blood which has been spilled with the blood of my father and to erase it from the ground. It is in this way our differences have always been arranged. It is this white belt, which we have always used for this purpose. We therefore hope for your attention.
This was not what the officials in St. Louis had in mind. They were focused on having the U.S. government mete out blame and punishment. Under questioning by the governor in the presence of the Kickapoo leaders, Ouabesca and Ouipinicaka acknowledged their participation in the 1805 Osage River killings. In an effort to shield his tribal elders, Ouabesca stated that he had acted like a fool and lamented that his folly had caused them great pain and grief. For his part, Ouipinicaka simply claimed that he had fallen victim to bad advice. From the governor's point of view, their confessions justified his actions.
In a parallel case, a deputation of Winnebago (Puant) headmen delivered two youthful tribesmen accused of killing a French trader in the Indiana Territory. During an audience with the governor, one frustrated Winnebago elder complained that it was becoming increasingly difficult to restrain the excesses of youthful warriors acting under the influence of alcohol. His lament, no doubt, was intended to suggest that by allowing the illicit liquor traffic to flourish in the Indian country largely unchecked, the American authorities shared the blame for these incidents. Kennebec, one of the accused, admitted that he had been drunk, while the other, Saramenie, attributed his actions to anger emanating from a domestic dispute. Unmoved, Governor Wilkinson, acting under the authority of an 1802 federal statute authorizing U.S. territorial courts to try cases involving Indians who committed crimes within their jurisdictions, issued a commission of oyer and terminer directing Louisiana's superior court justices to empanel a grand jury to consider the charges.
Indians routinely came and went in St. Louis, but the lingering presence of Winnebago and Kickapoo delegations waiting to learn the fate of their incarcerated tribal brothers provoked an unfortunate altercation between Samuel Hammond, Jr., and Maichiwaighe, a visiting Kickapoo chieftain. When the inebriated Indian brandished his tomahawk in a menacing way, Hammond overreacted by first shooting him and then stabbing him to death. A hastily summoned coroner's jury quickly exonerated the young American who insisted he had acted to defend Colonel Return J. Meigs, Jr., a superior court justice who was standing nearby.
The following week a grand jury indicted the Kickapoo and Winnebago prisoners on charges of murder, but not surprisingly it declined to present a bill against Hammond even though the territory's attorney general had recommended charges against him as well, albeit for partisan political motives unrelated to the case. The next day Judges Meigs and John B. C. Lucas placed the cases of U.S. v. Ouabesca and U.S. v. Ouipinicaka on the docket for trial. The absence of any further action in the Winnebago cases suggests that the justices had decided that their jurisdiction did not extend to crimes committed in a neighboring territory.
The judges appointed attorneys to represent the Kickapoo defendants, and following brief trials, juries found both guilty of murder. The next morning Judge Meigs sentenced the condemned Indians to be hanged and their executions were carried out four days later. The Americans took satisfaction in the outcomes, but Governor Wilkinson wisely chose to grant Hononquise, also implicated in the Osage River killings, a full and complete pardon. The governor's decision signaled his awareness of Indian adherence to the principle of lex talionis, requiring equal and direct retribution. Any attempt to execute three persons for causing the deaths of only two would have been a blatant violation of customary Indian practices.
Notwithstanding this partial nod to native judicial precepts, the 1806 proceedings laid bare the stark differences between the Indian and white systems of justice and conflict resolution and hampered U.S. relations with the powerful Kickapoo nation for years to come. On the eve of the War of 1812, a Kickapoo chief reminded the Americans of the grave injustices his tribe had suffered at their hands:
We some few years ago went to St. Louis to deliver up murderers, and lost one of our Chiefs at that place — He was killed by one of your young men and you did not deliver up the Murderer, or punish him yourself — You ask us to do justice — You did not do us that justice you ought to have done. How can you suppose that the red skins can have sense, when you, the White skins have none, by not giving us satisfaction for the death of our Chief?
The unhappy events in Louisiana's territorial capital six years earlier remained indelibly imprinted on the tribal memory, and the lingering resentments engendered by those recollections no doubt helped persuade the defiant Kickapoo to join the Indian confederacy organized by the Shawnee chieftain Tecumseh for the purpose of resisting further American usurpation of their lands and livelihoods.
Murder cases evoked strong passions on both sides of the Indian-white divide and remained by far the toughest to adjudicate. A spate of killings along the lower Missouri in 1808 renewed alarm in the American settlements and produced calls for immediate action. Governor Meriwether Lewis, who had replaced Wilkinson, was quick to condemn the killings and reprimand Sac and Ioway leaders for failing to place the alleged perpetrators in U.S. custody. Eventually they acceded to his demands. The Ioway identified Mera Nautais and MaxúThka (also known as Mashashka and White Cloud) as members of the band that had killed the two French traders, but when transferred to American custody both men claimed self-defense, arguing that they had come under attack and not returned fire until their assailants wounded one of their companions.
The Sacs, for their part, initially declined to hand over Little Crow, who was wanted for an unrelated killing. In traditional Indian fashion they offered instead to ransom him by paying any number of horses demanded by the deceased victim's family. Their plea fell on deaf ears even though U.S. agents regularly resorted to "covering the dead" with gifts when whites killed Indians and went unpunished. This legal double standard was common enough for the secretary of war to authorize two hundred dollars as the usual payment for each wrongful Indian death. After the Americans rejected the Sac offer and threatened to use armed force, tribal authorities relinquished Little Crow to territorial officials under protest, insisting that the killing had been accidental.
Judge Lucas summoned a grand jury to consider the charges against the alleged felons and instructed the jury panel to treat the accused Indians as they would any citizens. His admonition proved no match for the locally pervasive anti-Indian sentiment. Grand jurors rushed to indict all three of the accused on charges of murder, and the sheriff hired a hangman even before the trials got under way. Judge Lucas appointed attorneys to represent the defendants and ordered the clerk and the sheriff to adhere to established legal procedures.
The Ioways, White Cloud and Mera Nautais, were the first to be tried, and juries found them both guilty. When the condemned men returned to the courtroom for sentencing three days later, their court-appointed defense attorney Rufus Easton spent nearly two hours raising legal objections justifying a motion for a new trial. The justices took his request under advisement and proceeded to the trial of Little Crow. Once again a jury returned a guilty verdict, but in this instance the judges immediately sentenced the Sac defendant to be hanged two days later. The hasty sentencing and the silence of his attorneys suggests that the evidence of Little Crow's guilt was a good deal more palpable than the case for convicting White Cloud and Mera Nautais.
The following day Judges Lucas and Otho Shrader granted Easton's request for a new trial in the Ioway cases. Under the circumstances, Governor Lewis felt compelled to stay Little Crow's execution pending a final verdict in the Ioway trials. With representatives of both tribes regularly in the courtroom, he was eager to avoid any appearance of favoritism. Attempts to expedite a second trial went awry as wrangling over jury selection forced a postponement. As the legal maneuvering dragged on, local residents grew impatient, and the hundred or so Ioway and Sac Indians who had come to observe the trials beseeched Governor Lewis and U.S. Indian Agent Clark to end the ordeal with pardons. Experience had taught them that a plea for executive clemency was probably their best hope.
During the second Ioway trial the judges' insistence on a careful screening of potential jurors and their silencing of courtroom outbursts from spectators shouting "hang them, hang them!" moved one observer to comment that their "conduct in this trial and some of their decisions therein would grace even Westminster Hall." After finally receiving the case the jurors deadlocked, with five of them initially favoring acquittal. Their willingness to defy popular opinion suggests that the defendants likely had fired in self-defense. Unable to reach a verdict, the jurors adjourned their deliberations at 1:00 a.m. The following day the holdouts eventually relented and agreed to convict.
The final chapter in these cases was yet to be written. When the defendants were brought back into the courtroom for sentencing, their attorneys filed a barrage of legal challenges. The judges dismissed most of them, but they agreed to take under advisement an assertion that the 1802 law regulating Indian intercourse with the United States failed to assign U.S. officials jurisdiction over Indians who injured whites in Indian country. After carefully reviewing the pertinent federal statutes, Judge Lucas sustained defense pleas to arrest the judgment and dismiss all charges.
Not pleased, Governor Lewis ordered the prisoners returned to the local jail to await a review of the controversial decision. The deputy attorney general asked Judge Lucas to provide the governor with a full explanation of his ruling, but the response failed to satisfy Lewis who communicated his unhappiness to superiors in the national capital. Lucas, however, was on firm legal ground, and his ruling stood.
The outcome occasioned far less outrage on the Potomac than it did in St. Louis. Jefferson urged Lewis to exercise caution noting that:
We find it difficult, with our regular government, to take & punish a murderer of an Indian — Indeed I believe we have never been able to do it in a single instance. They have their difficulties also, & require time — in fact it is a case where indulgence on both sides is just and necessary to prevent the two nations from being perpetually committed to war by the acts of the most vagabond & ungovernable of their members.
For its part Congress waited until 1817 to change the law and finally grant U.S. officials jurisdiction over crimes committed in the Indian country. Believing that Indians would view any leniency as weakness, Governor Lewis refused to free the Ioway prisoners and dissuaded the territorial judges from issuing a writ of habeas corpus for their release. As a result White Cloud and Mera Nautais languished in the St. Louis jail for nearly a year until their escape, perhaps with assistance, finally ended the stalemate.
A short time later Lewis departed for Washington, D.C., but died while en route to the capital. Acting Governor Frederick Bates, who had long been at odds with Lewis on most matters, countermanded the 1808 arrest warrant after noting the folly of returning the Ioway to U.S. custody, since federal officials lacked legal authority to try them. He concluded that under the circumstances, "the transgression ought to be forgotten as silently as possible."
Bates's action closed the case on the Ioways, but Little Crow still remained in jail. Since the murder for which he had been convicted was committed at a place within the court's jurisdiction, Little Crow's attorney could not use the legal argument that had freed the Ioways. Prior to his departure Lewis had remained noncommittal about the condemned man's future, fearing no doubt that his execution would incite Sac revenge/retaliation. In all likelihood he simply intended to detain him indefinitely, but Bates's decision not to pursue the Ioway fugitives forced a reassessment of the prisoner's status.
Indian agent William Clark recommended that President James Madison pardon him in return for Sac promises of future good behavior. The presidential pardon ended Little Crow's personal ordeal, but Clark's recommendation for clemency came back to haunt him during his unsuccessful 1820 gubernatorial campaign when his opponents used it to label him an Indian lover. The protracted and costly litigation in these cases left a sour taste in almost everyone's mouth. While the defendants avoided execution, tribal members viewed their lengthy incarceration and public humiliation as cruel and inhumane. By contrast most whites decried a judicial process that abetted killers and allowed them to escape their just deserts.
Excerpted from Missouri Law and the American Conscience by Kenneth H. Winn. Copyright © 2016 The Curators of the University of Missouri. Excerpted by permission of University of Missouri Press.
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Table of Contents
Introduction: Searching for Rights in Missouri History Kenneth H. Winn 1
Chapter 1 Testing the Limits of American Justice: Indian Trials in Nineteenth-Century Missouri William E. Foley 9
Chapter 2 The Frown of Fortune: George Sibley, Breach of Promise, and Anglo-Francophone Conflict on the Missouri Frontier Kenneth H. Winn 35
Chapter 3 The Politics of Slavery and Missouri's First Elected Supreme Court: Died Scott v. Emerson Paul Finkelman 63
Chapter 4 The Judicial Ouster Ordinance of 1865 and Radical Reconstruction in Missouri Dennis W. Belcher 85
Chapter 5 Disfranchised and Degraded: Virginia L. Minor and the Constitutional Case for Women's Suffrage Bonnie Stepenoff 105
Chapter 6 Missouri's Long Road to Juvenile Justice Douglas E. Abrams 129
Chapter 7 The Living Example: Laurance M. Hyde and the Missouri Nonpartisan Court Plan Kenneth H. Winn 161
Chapter 8 Constitutional Mollycoddling: How Women Won the Right to Serve as Jurors in Missouri (but only if they wanted to) Karen Anderson Winn 181
Chapter 9 Shaking the Shackles: Curt Flood's Challenge to Baseball's Reserve Clause James R. Devine 215
Chapter 10 In the Midst of All Such Excitement: The Nancy Cruzan Case Edward "Chip" Robertson, Jr. 243