The Laws of War in the Southern Plains and Custer at Washita in 1868
Hon. Richard A. Dollinger is a retired judge of the New York Court of Claims and a member of the Little Big Horn Associates. He is a former New York State Senator and has authored numerous articles on historical topics. The views expressed in this article are his own. He thanks his editor Richard Glen Curtis, Esq. for his assistance and advice.
Appendix A: The billboard announcing Custer’s alleged “war criminal” status.
Introduction
Was George Armstrong Custer a war criminal?
The debate is charged by the controversy over the Custer statute in his hometown of Monroe, Michigan and allegations that Custer’s actions against Native Americans in the Plains Wars were “war crimes.”[1] In the detailing of Custer’s alleged war crimes,[2] The National Conference of American Indians adopted a resolution that describes Custer as “the Indian killer” who is widely perceived as “offensive and a painful public reminder of the genocide of Indigenous Peoples and present realities of systemic racism in our country.”[3]
The resolution states that Custer led the Massacre at Washita River of Cheyenne Chief Black Kettle and “was responsible for numerous other atrocities and crimes against humanity.” The resolution alleges that “before the ink was dry on the 1868 Fort Laramie Treaty protecting the Black Hills, Custer “deliberately publicized the gold which was present in the region.”[4] In perhaps the most sweeping assertions, the resolution states that Custer violated treaties between the United States and Tribal Nations[5] for a decade and “led ruthless attacks on compliant tribal nations involving raping, torturing, murdering innocent Native women and children.”[6]
Custer led the United States Seventh Cavalry in an early morning attack of a village of Southern Cheyenne Natives on November 27, 1868, on the shores of the Washita River in southwest Oklahoma.[7] As this article describes, Custer was under orders from his superiors to attack Native villages to stop depredations and attacks by Natives on settlers in this region. Women and children were killed in the battle at Washita and its exact circumstances remain in historical dispute, despite accounts from several of its participants and reminiscences by Natives and Army personnel.
The answer to the question of whether Custer’s conduct was a “war crime” depends, as it often does in a historical analysis, on what standards are imposed on the established or even-disputed facts of Custer’s conduct as a soldier and commander almost 150 years ago.
During Custer’s career, both in the Civil War and Plains Wars, there was no definition for the term “war crime.”[8] The concept of war crimes evolved slowly in the 19th Century when nation states, including, foremost the United States during the Lincoln administration, began to formulate a specific “common law of war.”[9] International conventions in Geneva and the Hague in the later 19th Century sought to agree on international standards but lacked acceptance by many nations.[10] The modern concept, which critics apparently seek to apply to Custer’s conduct during the Plains Wars, relies heavily on post World War II trials and theories.[11]
This article seeks to analyze the trends in the development of the rules of war during the mid-19th Century, the Civil War, and the Plains Wars and examines Custer’s conduct at Washita under that contemporary lens.
I. Evolution of the “Common Law of War” and the Articles of War
Before the American Revolution, the focus of much of the continental commentary on war conduct was premised on the notion of “just war” or one which belligerents, or combatants, had a moral justification for commencing or continuing warfare.[12] However, as wars raged across the continent, European jurists embarked on an analysis of the rules during a conflict that belligerents, in the form of nation states, could impose as a general “common law of war” that involved treatment of non-combatants, prisoners of war, the consequences of a surrender and similar provisions.[13]
As it evolved, the “common law of war” bore some relation to actual civil offenses — barring murder, theft, unjustified destruction of property, and assaults, including rape — that belligerents could agree were outside the scope of then-modern warfare and should consequently limit the collateral consequences of war to non-combatants and prisoners of war. Importantly, violations of these “common law” rules rested with military or other governmental authorities of the nation state or sovereign under whose flag the violators served. In short, the sovereign of the guilty party was obligated to enforce a punishment against the perpetrator who violated the common laws of war. In that respect, the formulation of a “common law of warfare” was, in a real sense, an academic exercise in which theorists described conduct outside the scope of legitimate warfare but left to nation states — who engaged in the underlying war — the discipline of those whose conduct violated the precepts.[14]
The Enlightenment theory of the “common law of war” was that the laws of war were binding on all parties to an armed conflict precisely because all parties — nation states — were members of the same common family of civilization. If the participants were all members of a common humanity, the common law of war flowed from natural law and bound everyone because of the dictates of “natural reason.” All sides of a military conflict were bound to follow certain precepts regarding their behavior that stemmed from maxims of "humanity, moderation, and honor," in Vattel's famous phrase.[15] The common law of war was “common” precisely because the law of war, via the shared element of civilization, was binding on all parties.
Emerging from the Revolutionary War[16] and facing other European powers that had claims to the North American continent, the United States Congress enacted the Articles of War in 1806.[17] The Articles created a series of rules for the conduct of soldiers and the legal authority for the American military to hold courts-martial for violations of the Army’s disciplinary rules. The Articles are sprinkled with references to “the rules of war” and, by implication, the “common law of war” rules that evolved in Europe. Article 32 required officers to maintain “good order, and to the utmost of his power, redress all abuses or disorders, which may be committed by any officer or soldier under his command.” If a soldier beat or ill-treated “any person, the officer was required to ensure that reparations were made to the injured party.”[18]
Article 33 referenced the “known laws of the land” and required officers to “deliver soldiers who were accused of crimes of violence against the persons or property of any citizen to civil authorities for trial”[19] and prohibited the “malicious” destruction of property “belonging to the inhabitants of the United States.”[20] Similarly, Article 54 held that soldiers who destroyed property were subject to such ”penalties as they are liable to by law.”[21]
In Article 99, Congress created a catch-all for criminal behavior by soldiers, writing:
All crimes, not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a general or regimental court martial.[22]
The Articles did not mention any legal sanction for specific crimes against non-combatants like murder, rape, and theft. But Article 99 can easily be interpreted to grant officers broad authority to try soldiers for many acts contrary to “good order” but not expressly made unlawful by the statute.[23]
Importantly, Congress held in the Articles that American armies were subject, in some cases, to laws from other sources, in most cases state or local statutes involving criminal sanctions. Congress also recognized that there were other rules for armies involving “the law and usage of nations.” Article 101, Section 2 provides that spies “shall suffer death” by sentence of a general court-martial according to the “law and usage of nations.”[24] The use of the “law and usage of nations” language strongly suggests that Congress understood military engagements were governed, to some extent, by some form of military “law of nations.”
Although westward expansion triggered conflicts between Native Americans and the Army in the first half of the 19th Century, there was apparently little military attention to how the Articles and the common laws of war impacted the conduct of Army personnel in those conflicts.[25] The Articles dealt with how the Army should act to prevent wrongs to civilians and not how the military should wage war against an enemy.
The exact contours of the “common law of war” remained ill-defined, even almost a century after the enactment of the 1806 Articles. The lack of a precise definition was exhibited when it surfaced as a basis for the prosecution during the military trials of conspirators in the assassination of President Lincoln in 1865. In that trial, one of the defense counsels objected to a claim that the defendant could be found guilty under the common law of war. He noted: “This is a term unknown to our language . . . wholly undefined and incapable of definition.”[26]
It appears that what was a violation of the “common law of war” sixty years after the enactment of the Articles of War, depended on what military authorities in sovereign states, relying on a shared concept of natural reason seeking to enforce penalties, determined was the offending conduct.[27]
A. Native Sovereignty under the Constitution
Whatever the contours of the common law of war, as envisioned and expressed in the early 19th Century writings or even in the Articles of War, these principles did not apply to warfare conducted by non-state combatants who did not share the “dictates of natural reason” or the “common humanity.” Without those shared concepts, any restrictions on the conduct of a sovereign state against a non-nation state soldier were outside the common law of warfare.
In considering the common law of war among sovereign states as applied to the Plains Wars, the concept of Native sovereignty in the West was — as was common with other legal concepts in the new republic — in legal flux before the Civil War.[28] In 1823, the Supreme Court held in Johnson & Graham's Lessee v. McIntosh, that the Native right to complete sovereignty as independent nations was necessarily diminished by the national government’s ultimate right to ownership of Native territory.[29] Soon thereafter, the Supreme Court in Cherokee Nation v. Georgia in 1831 held that a Native tribe within the United States was a "domestic dependent nation" and not “a sovereign foreign state.”[30] A year later, Chief Justice John Marshall held in Worcester v. Georgia, that the “several Indian nations” were “distinct political communities,” having “territorial boundaries within which their authority is exclusive.”[31] and having a “right to all the lands within those boundaries which is not only acknowledged, but guarantied, by the United States.” Under this formula, Justice Marshall concluded that Native tribes had a limited sovereignty that allowed them to be involved in matters of war and peace.[32]
Later, Chief Justice Roger Taney held otherwise in the unanimous Supreme Court opinion in United States v. Rogers declaring that Native tribes did not possess any of the characteristics of an independent sovereign.[33] While subsequent commentators have severely criticized the Rogers opinion as a misreading of history and misinterpretation of prior doctrine, the Taney opinion indicates that the status of Natives as sovereigns was ill-defined at the dawn of the Civil War.[34]
The confluence of these opinions strongly dictates that Native tribes, while possessing a right of occupancy and capable of consenting to treaties, were not “sovereigns” in all respects equivalent to the continental nation-states that commentators referenced in defining the emerging rules of war in the mid-19th Century, the Articles of War, or the Constitution. In view of the lack of legal clarity from the nation’s highest court, the federal government’s reaction to Native aggression in the West during the mid-century similarly lacked any coherent legal consensus on whether the tribes should be accorded the broadening rules of warfare under any of the then-extant legal doctrines.
B. The Mexican War and Actions Against Guerillas
The Mexican War in 1846 resulted in new legal challenges to the conduct of the American army during the war and the scope of the 1806 Articles. During the war, commanding General Winfield Scott encountered a new brand of combatant which was seemingly untethered to any rules for the common law of warfare. Scott issued General Order 20, which constituted the Army’s response to “atrocious bands called Guerrilleros and Rancheros who under instructions from the late Mexican Government or authorities, continue to violate every rule of warfare observed by civilized nations.”[35] Scott's order observed that the 1806 Articles contained no provisions for "injuries which may be inflicted upon individuals of the army, or their property, against the laws of war, by individuals of a hostile country." Scott’s order reasoned that under the authority of the "unwritten code" of "martial law it was important to protect inhabitants and their property from "injuries contrary to the laws of war."[36]
The General Order provided that “no quarter”[37] should be given to such guerillas and that a Council of War[38] should be convened to try any such offenders "falling into the hands of American troops." The Council could condemn a prisoner to death for "flagrant" violations of the laws of war "on satisfactory proof that such a prisoner, at the time of capture actually belonged to any party or group of known robbers or murderers or had actually committed murder or robbery upon any American officer or soldier or follower of the American Army."[39]
The language of Scott’s order related to “bands” of guerillas and introduced the notion of “collective culpability,” in that by “actually belonging” to a group of guerillas, an individual was responsible for the group’s crimes. In this formulation, the Order not only permitted swift deadly reprisals against individual guerillas but also similar reprisals against those who “actually belong” to the offender’s band or gang regardless of proof of their individual culpability.[40] In Scott’s order, the demands of war and protection of his own troops seemingly justified harsh consequences to warriors who fought outside the common laws of warfare and similar consequences to anyone who belonged to a group that exhibited such actions. Scott’s order in Mexico drew a distinction between national armies, fighting under the common law of warfare, and other combatants who engaged in actions that were criminal in nature and directed against the Army or any “follower,” which, presumably could include non-combatant civilians.
Scott later adopted a second order, General Order 372, which specifically addressed enemy violations of the “laws of armed conflict.” The order applied to Mexican marauders and guerilla fighters, and authorized summary councils of war for offenders and punishment of death — “no quarter” for “flagrant violations of the laws of war.”[41] By the end of the Mexican War, the American Army had established a forum — councils of war for enemy combatants, and war commissions for disciplining American soldiers and citizens — for violations of the “laws of war;” even those “laws” were ill-defined and apparently left to the discretion of commanders in the field.[42]
Scott’s differentiation between the conduct of wars by nation states governed by “the common law of war,” and the “no quarter” approach to guerrilla warfare later provided, in part, the military and legal foundation for the Army’s “total war” campaign against Natives in the West.
C. Lieber’s Doctrine on Guerilla Warriors – Impact on Military Responses
In the early phases of the Civil War, skirmishes with bands of confederate raiders clashing with civilians in Kansas and Missouri brought associated questions before Union authorities. The Quantrill Raiders engaged in the same form of guerilla tactics that Gen. Scott had experienced in Mexico: killing civilians and soldiers, looting property, and avoiding direct military confrontations.[43]
General Henry W. Halleck, in command of Union troops in the Department of the Missouri, had explored the legal issues involved in justifying certain “retaliatory” conduct during military engagements. In 1861, Gen. Halleck (soon to be the General-in-Chief of the Union Army) praised retaliation against lawless combatants as more than merely "vindictive." Halleck's treatise on international law described reciprocity and retaliation as the central enforcement mechanisms regulating peace and war between States. "Redress," he wrote, "must then be sought from retaliation." Retaliation among independent States, he insisted, was "not to be considered as vindictive," but instead as "the just and equal measure of civil retribution."[44] In response to the prevalent guerilla warfare in Missouri, on December 4, 1861, just three days after Halleck was granted authority to declare martial law, he issued General Order No. 13 which authorized the trial of civilians by military commission, reading, "[c]ommissions will be ordered from these headquarters for the trial of persons charged with aiding and assisting the enemy, the destruction of bridges, roads, and buildings, and the taking of public or private property for hostile purposes."[45]
Halleck, after publishing his own comments on “retaliation” as a form of justified war conduct and combatting guerilla warfare, sought further advice on how to deal with these non-government warriors. In response, Columbia Law Professor Franz Lieber produced Guerrilla Parties Considered With Reference to the Laws and Usages of War, Written at the Request of Major-General Henry W. Halleck (1862).[46] In the document, Lieber differentiated between wars carried on by nation states and conflicts involving “an irregular band of armed men, carrying on an irregular war, not being able, according to their character as a guerrilla party, to carry on what the law terms a Regular war.” These guerilla warriors, Lieber said, engaged in conduct unjustified by the conventional rules of war.[47] He noted:
Guerrilla bands cannot encumber themselves with prisoners of war; they have, therefore, frequently, perhaps generally, killed their prisoners, and of course have been killed in turn when made prisoners, thus introducing a system of barbarity which becomes intenser in its demoralization as it spreads and is prolonged.[48]
Guerrilla parties, Lieber concluded, did not enjoy the full benefit of the laws of war. He added that “they are annoying and insidious, that they put on and off with ease the character of a soldier, and that they are prone, themselves, to treat their enemies who fall into their hands with great severity." The guerillas were “self-constituted sets of armed men,” who were “not integrant parts of the organized army . . . take up arms and lay them down at intervals.” The guerillas were engaged in “petty war . . . chiefly by raids, extortion, destruction, and massacre, and who cannot encumber themselves with many prisoners, and will therefore generally give no quarter.”[49]
From Lieber’s point of view, the guerillas were not soldiers. For Lieber, soldiers wore uniforms identifying themselves and distinguishing them from civilians, followed a command structure that could enforce discipline and had the capacity to take and keep prisoners. Soldiers were also paid and provisioned by an army, which reduced their tendency to pillage, and the threat of discipline constricted their tendency to engage in criminal activity outside combat.[50]
Lieber differentiated these “guerilla bands” from coordinated, nation-inspired military actions that sought to “repel invasions.” The latter groups were described as war-rebels and, Lieber declared, based on “recent publicists and writers on international law,” that these war-rebels were entitled to status as “prisoners of war, so long as they openly oppose [the invader] in respectable numbers, and have risen in the yet uninvaded or unconquered portions of the hostile country.” Lieber argued that this differentiation was accepted by “the most humane belligerents in recent times.”[51]
In essence, war-rebels were organized military units that were operating under the principles governing nation-states.[52] In contrast, the guerilla warriors in Mexico (as described by Gen. Scott) and Quantrill’s Raiders in Missouri and Kansas, were, as a result of their unconventional tactics, not entitled to any of the protections of the laws of war.[53] Under this analysis, Lieber reiterated the dichotomy codified in Scott’s Order 20 during the Mexican War. In considering when combatants were entitled to the protections of the “laws of warfare;” a guerilla, acting through random criminal acts directed against civilians, was outside the protections, but a militia, acting in a military capacity, was entitled to those protections. This differentiation in military response to “guerillas” provides a further theoretical foundation for the Army tactics against Native raiders in the Plains Wars.
D. Lincoln’s Response to Guerilla Warfare by Native Tribes
In 1862, as the Civil War dragged into its second year, President Lincoln faced one of his initial challenges in applying the common laws of war and the 1806 Articles to engagements between the Army and Native Americans. After a series of attacks on settlers by the Dakotas in Minnesota in August 1862, the Army intervened, and eventually, 2,000 Dakotas, including a majority of non-combatants, surrendered, and were taken captive. Hastily convened military councils followed. Spurred by the outrage of Minnesota’s citizens and elected officials, the trials proceeded against more than 300 Natives, who often did not understand English and lacked legal counsel. Trials were short. Some consumed less than 10 minutes. Constitutional guarantees of a trial by jury or the right to counsel were ignored. Justice was swift and more than 300 Dakota were sentenced to death.[54]
The 1806 Articles of War did not justify the trials of combatants for raising arms against American citizens. Legally in the eyes of Army officials and apparently under the logic of Gen. Scott’s 1848 order to allow justice against “guerillas” and Lieber’s logic in his guerilla warfare pamphlet to Gen. Halleck, the Dakota Natives were not considered prisoners of war from a nation state and instead could be — and were — tried for civil crimes in military tribunals without the constraints of constitutional considerations.[55]
However, the Dakota War did not bear all the incidents of a guerilla-style war, as described by Scott and Lieber. The Dakotas, after a series of battles, surrendered. The tribal leadership was able to deliver the tribe — combatants and non-combatants — to the military. In that respect, the Dakotas were engaged in a war that had the trappings of a conflict between two sovereigns. Under those circumstances, the Dakotas had a claim to sovereign status and the captives would have been entitled to prisoner of war status and not been subject to any summary war council tribunals.[56] In the furor of settler anger and government officials in Minnesota, the Natives were never accorded the rights of a sovereign, even though under the state of the common law of war, they should have been entitled to it.
The death sentences were sent to President Lincoln. Lincoln eventually pardoned most of the convicted Natives in a gesture that was widely criticized among Western states and territories. Not all the warriors were spared: Lincoln permitted the execution of 38 Dakota men. In reviewing the cases, Lincoln made a sharp distinction between Indian soldiers, who simply participated in combat, and those who raped, killed women and children, or killed prisoners.[57] In this decision, Lincoln, in essence, held that Natives who committed crimes were provided “no quarter” just like the guerilla warriors that Gen. Scott described in Mexico and that Halleck and Lieber described in Missouri.[58]
Therefore, by the end of 1862, the policy of the United States toward guerilla warriors and Native combatants, confirmed by the commander-in-chief, affirmed that guerillas and Natives could be executed for crimes against civilians without any constitutional protections in military tribunals without a jury. In instances in which Natives acted as “guerilla” warriors — raiding settlers, murdering unarmed women and children, and looting — the military response was not limited by the “conventional rules of war” and severe reprisals — including summary executions — were justified. These conclusions, drawn from the rules of the Mexican War and the Dakota uprising in 1862, further propelled the Army down the path to the tactics that Custer implemented at Washita.[59]
II. The Lieber Code and the New Rules of Warfare
The limitations of the 1806 Articles of War were apparent to Lincoln in the early stages of the Civil War.[60] As the War progressed, Lincoln sought new guidance on the rules of warfare for and the conduct of the two competing armies. Several incidents propelled the President’s quest for new rules of warfare. First, the presence of guerillas in Missouri and the West challenged the limitations of the Articles of War, even as revised when the War began. Second, Lincoln permitted the muster of African American troops in the war effort. However, the move had tragic consequences for Black troops that were captured by the Confederates. As a standing policy, the Confederates refused to deal with Black Union troops as prisoners of war. Confederate officers ordered the shooting of white officers of Black troops and Black soldiers were sold back into slavery.[61]
Third, General George McClellan in pushing the Army of Potomac in Virginia in 1862, encountered Confederate guerilla tactics similar to those in Kansas and Missouri, with Confederates not wearing uniforms and launching attacks from civilian structures.[62] He complained to Lincoln that the war should not focus on subjugating civilians but instead defeating the Confederate Army and the political machines that supported it. He, too, argued for a code of war that would minimize the brutality and cruelty inherent in war, especially for non-combatants.[63]
Meanwhile, Lieber, working with a team of military leaders, prepared a new series of rules for the Union Army as it entered the third year of the war. Lincoln, seeking some more specific legal approach to these unrestrained forms of warfare, formally adopted Lieber’s Code of Conduct: Instructions for the Government of Armies of the United States in the Field, in 1863.[64] Several components of the Code are especially pertinent when discussing the rules of war applied to the Plains Wars.
First, Lieber borrowed an invocation from Vattel that soldiers should be strictly guided by the principles of justice, honor, and humanity.[65] Lieber’s Code draws on the notion of the “usages of war,” and the natural law tradition. Article 40 of his Code that "[t]here exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land.”
Lieber’s Code did not make just a general reference to the rules of war: Lieber instead examined the battlefield choices that armies make in warfare and provided a prescription for which forms of military conduct are permissible in battle. In this respect, Lieber advanced a new rubric for armies involved in difficult wars against intransigent foes.[66] In reaching this conclusion, Lieber was, no doubt, aware of the enormous losses and carnage that characterized the first two years of the Civil War and could easily foresee that without decisive and overpowering military force directed against not just Confederate forces but the entire Southern states and their population, the war could be lost.[67]
Lieber’s Code must also be understood under the military and political circumstances at the time. Working over the winter of 1862, Lieber would have also been aware of declining support in the North for the war effort as he compiled the Code. Although the Union had won a partial victory at Antietam in September 1862, the cost had been enormous. Subsequent Union defeats at Fredericksburg and the ill-fated Mud March in January 1863 forecast a bleak future. Lincoln was dismayed: “we are now on the brink of destruction. It appears to me the Almighty is against us, and I can hardly see a ray of hope.”[68]
Many of Lincoln’s commanders had been trained by Jacksonian Democrats at West Point, had Southern sympathies for their former classmates and colleagues who were leading the Confederate armies and, like McClellan, favored a European-style war —an occasional battle followed by peace talks and a treaty in which some reparations were paid and some minor territory traded.[69] The American war experience, before Fort Sumner, was conducted on the same pattern. The Treaty of Paris, which settled the War of Independence, simply granted recognition of the United States by Britian, decided access to the Mississippi River and ceded certain fishing rights in the Atlantic Ocean. The Treaty of Ghent, which ended the War of 1812, required the trading of some lands between Britian and the United State but the boundaries remained essentially the same. The Treaty of Guadalupe Hidalgo, which resolved the Mexican War, brought the United States territory in the southwest and the United States paid Mexico $15 million for the new territories.
These treaties enmobdied the notion of “limited war” – conduct military operations until further war is unjustified, negotiate a settlement by treaty, trade some lands or money and the war is nover. Lincoln, seeking first to restore the Union and then end slavery, could not, as thw War progressed, make or even entertain territorial or financial concsessions to end the Civil war. He needed the South to surrender, end slavery and rejoin the Union; a “total war” was the only approach to achieve those objectives.
While waiting for the Code to be completed, and looking for a new more vigorous approach in the East, Lincoln removed Gen. McClellan from command of the Army of the Potomac in late 1962. After Fredericksburg and the ill-fated Mud March, he fired Gen. Ambrose Burnside from the same position in January 1863 and was losing confidence in his successor Gen. Joseph Hooker.
After Antietam, Lincoln took two steps that further riled the legal and political landscape. In September 1862, Lincoln proposed the Emancipation Proclamation which was circulated throughout the North and South. While the South was outraged, Northern anti-war Copperheads argued that the war, once justified to preserve the Union, was now solely for the emancipation of slaves and that Lincoln had changed his motivation for the bloody and seemingly unending conflict. By the time Lieber’s Code was adopted, the Proclamation was already in force, having been issued on January 1, 1863.
Simultaneously, as Lieber and a drafting committee of generals were reviewing issues related to the conduct of the war, President Lincoln obtained Congressional approval to suspend habeas corpus in March 1863.[70] Discouraging enlistments, drafts, or any other "disloyal" practices became subject to martial law and trial by military commissions.
Politically, Lincoln’s leadership was challenged. As a result of the lack of quick resolution of the war and rising costs and casualties, voters retaliated. In the mid-term elections in 1862, Lincoln’s Republicans lost 22 seats in the House of Representatives and with it, the majority of the House. Democrats gained 27 seats. The Union party, a coalition of former Whig and pro-Union political leaders, held the balance of power in the House.
Further unrest followed. In March 1863, Lincoln signed into law the country’s first national conscription law. The commutation rules in the law angered leaders on all sides, sparking civil unrest and leading to the eventual riots in New York City in July 1863. Eleven days before the Lieber Code promulgation and in the face of stern opposition to the war, Union General Ambrose Burnside, commander of the Department of Ohio, issued General Order Number 38 in early April 1863. The order made it illegal to criticize the war within that Department and mandated that anyone who committed acts for the benefit of the enemies of the country could be executed as spies.
The war seemed to be veering toward stalemate and Lincoln had little confidence in the future. The war status was dire. Lee’s invasion of Pennsylvania was just over the horizon. Gettysburg was 10 weeks away. It was the war’s “darkest hour.”
Lieber had a different idea. When his Code was published on April 24, 1863, he knew that Lincoln, having just issued the Emancipation Proclamation on January 1, 1863, needed the South to surrender and relinquish its “slave empire” dreams.[71] Lieber, ever a realist on matters of war, would have known that his commander-in-chief needed a manifesto for a total war that would involve invasion of the South, destroying the plantation-based economy and the South’s will to not only fight but to maintain slavery.[72] His Code had to condone the tools for a “total war” — surprise attacks, deception, “military necessity,” starvation of armies and the populace — and yet restrict vengeance-based reprisals on loyal citizens and prisoners of war.
In that respect, Lieber’s Code coincided with Lincoln’s revised view of the conduct of the war amidst the carnage. After beginning the Civil War with a promise to respect private property and not interfere with slavery in the rebellious states, President Lincoln eventually supported, as military necessities, the destruction of cotton, railroads, and other economic resources, and the freeing of all slaves in rebel areas that could support the federal effort.[73]
Lieber was tasked with striking a difficult balance: making war so severe that one side would quickly relent[74] but, providing some protections for both prisoners of war and non-combatants who were no longer directly involved in the conflagration.
To achieve the first goal — victory — Lieber’s Code broadened the prerogatives of military commanders to carry out a decisive war effort, which, both during the Civil War and certainly thereafter, became synonymous with the concept of “total war.”[75] The Code acknowledged that “military necessity” justified destruction that was “incidentally unavoidable in the armed contests of the war.” The Code allowed destruction of property and of all withholding of sustenance or means of life from the enemy[76] and permitted the use of “deception” as an article of war.[77] Necessity included all measures to “secure the end of the war.”[78] This broad necessity doctrine, while controversial at its announcement and in later debates, nonetheless represented an attempt by Lieber for an “enlightened advance in the laws of war, as prior warfare permitted the destruction of any property belonging to any person loyal to an enemy, whether or not the destruction was linked to any military needs.”[79]
However, Lieber acknowledged some limitations. His Code decreed that any permissible deception could not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist.[80]
Lieber also condoned other techniques that led to a “total war.” Starvation of an enemy was permitted if it “leads to the speedier subjection of the enemy.”[81] “Surprise may be a necessity,” the Code stated, and it was “no infraction of the common law of war to omit thus to inform the enemy.”[82]
Lieber also sought to differentiate revenge from retaliation. Retaliation was labeled “the sternest feature of war but only permissible only as a means of protective retribution, and moreover, cautiously and unavoidably.”[83] Retaliation could not be “wholly” discounted because it was an instrument of war against a “reckless enemy” and should be confined to instances of “stopping a certain evil.”[84] In this respect, Lieber’s Code legitimized retaliation as a form of “protective retribution” against “the repetition of barbarous outrages.” In a later letter, Lieber defended retaliation as a tool of war, even if directed against non-combatants, but not if it “becomes indistinguishable from revenge of the savage” and constitutes “passion” rather than acts of a common law of warfare.[85]
Lieber’s differentiation of revenge and retaliation in the Code also established a foundation for the “collective guilt” concept that leads to the notion of a total war in which civilian casualties occur more frequently. In Lieber’s view, retaliation could include measures “in which the opposite party is treated as a unit” and members of the “unit” included the innocent or “comparatively innocent” who would suffer by it.[86]
Lieber also declared that Union soldiers would “acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women and the sacredness of domestic relations.”[87] The Code created a series of military crimes that “all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death”[88] The same prohibition applied to all crimes punishable in all penal codes if committed by an American soldier in a hostile country against its inhabitants.[89]
However, the Code did not retreat from the earlier sentiments Lieber expressed in his pamphlet on campaigns against guerillas and the Code did not suggest a more conventional approach when dealing with non-state warriors.[90] If residents of an “already occupied” country rise up against the occupying army, they “violate the laws of war” and are not entitled to their protection.[91]
Lieber also restated his conclusions in his Guerilla pamphlet that squads of warriors, without the support of an organized army who engaged in guerilla-like tactics would not be considered prisoners of war[92] and “armed prowlers” who engaged in similar tactics were denied prisoner of war status.[93] These perpetrators were to be treated as “highway robbers or pirates.” Similarly, Lieber differentiated between loyal citizens, who were protected against “the hardships of the war” and “disloyal citizens” to whom the burden of war should be thrown.[94]
In addition, the Code dealt with an issue that Custer’s later conduct at Washita challenged. A commander could direct his troops to give “no quarter . . . when his own salvation makes it impossible to cumber himself with prisoners” and any enemy troops who gave “no quarter” could expect none. The Code contained a qualifier: if the enemy was “already wholly disabled” then anyone who inflicted further wounds on that warrior would suffer death after conviction.
The Lieber Code was, in its design, a code of conduct for soldiers of armies of nation states involved in military actions when led by military officers. The underlying logic of the code was that combatants would follow orders from their superiors and abide by the terms of the Code in battles with other combatants. The Code was not designed to apply to unorganized military groups engaged in “guerilla warfare,” in which armed combatants engaged in conflict with an organized Army or, for that matter, in conflict with other non-military combatants. In these and many other ways, Lieber set out a code that comported with the needs of modern armies to limit collateral damage as much as possible, legitimize damage where it was necessary, allow for the nation-state (as embodied by the United States Army) to take enemy property (such as food) for the use of the army, destroy enemy property used to make war, and prevent the soldiers of the army from becoming a mob of looters and pillagers.[95]
One other aspect of the Code seems to have faded into history, despite its obvious later importance in the legal underpinnings of the military’s later efforts in the Plains Wars. The differentiation of revenge and retaliation as tools of war included the concept of treating entities at war as a “unit” and the members of that unit — including the innocent or “comparatively innocent” could be justifiably attacked as part of the war effort. This concept of the “unit” as a combatant seems to justify the total war against non-combatants who are members of the “unit.” In the military’s mind after the Civil War, the substitution of the word “tribe” for “unit” would easily justify an attack on either innocent members of any tribe like the women and children at Washita, or the “comparatively innocent” like the non-raider males who took up weapons to repel Custer’s forces after the attack at Washita in an attempt to simply defend their homes, families and property.
While the Code set down rules for warfare, Lieber’s writings projected two biases that impacted his conclusions and their application to the Plains Wars. First, he favored fierce wars: he declared that "the more vigorously wars are pursued the better it is for humanity. Sharp wars are brief."[96] In such modern sharp wars, Lieber defended the proposition that "no conventional restriction of the modes adopted to injure the enemy is any longer admitted." Outside of the rules Lieber laid down, war could, and should, be prosecuted with the utmost ferocity. "When war is begun," he told his students at Columbia, "the best and most humane thing is to carry it on as intensely as possible so as to be through with it as soon as possible"[97]
Second, Lieber’s own views support the conclusion that the Code was not designed to restrain the 19th Century settler movement or restrict the Army’s prosecution of warfare against Natives in the Plains Wars. Lieber believed that white settlers would replace Native peoples and that such replacement would represent moral progress for humanity.[98]
The Lieber Code remains a source of virulent debate among historians. Some see the Code as an appeal by Lincoln, in the era of the Emancipation Proclamation, designed to protect Black Union army troops from murder after capture by the Confederates. [99] Under this analysis, Lieber and the U.S. Army’s leaders designed the Code not to promote humanitarian restraint, but to empower righteous force on behalf of the Union and the antislavery cause.[100] Furthermore, the Code was not an innovation designed to facilitate Native dispossession. Longstanding Army campaigns against the Natives throughout the Americas, featuring unrelenting brutality by Sullivan and Jackson (among others), well served the settler cause, well before Lieber’s Code.[101]
In another vein, historians envision the Code as a tool that carried forward long-standing ideas about combatant status and retaliation rooted in efforts to remove and kill Native people. In this view, the Code was Euro-centric, advancing fundamental distinctions in European international law between so-called “civilized” nations, on one hand, and “savages,” on the other, while presupposing that Native nations were not worthy of recognition in international law.[102] This view assumes that Lincoln, in adopting the Code, saw its implementation as a continuation of the campaign of “Native dispossession and extermination” that had characterized the country’s history since the War of Independence and settler-colonial history for a century and more before that.[103]
Another critical fact appears to be overlooked in the evaluation of the intent underlying Lieber’s Code: nothing in the Code contradicted or overruled Lieber’s views of the Army’s conduct against guerilla warriors and marauders. Lieber’s earlier commentary that guerilla warriors who gave no quarter were not entitled to quarter was not challenged in the Code — it was reaffirmed — and remained in the military’s purview both during and after the Civil War. In Lieber’s view, the state-less warriors — Quantrill Raiders or the guerillas in Mexico who sought to terrorize both the Army and civilians — were not entitled to the benefits of the common laws of war or the refinement of those laws sought by the Code. If Natives in the West engaged in the same form of conduct, they would not be entitled to those benefits either.
Whatever Lincoln’s motivations in promulgating the Code, he was aware, as a constitutional scholar, that the Native tribes were not sovereigns under Lieber’s definition in the Code. Lincoln assuredly knew of the Supreme Court opinions denying Natives status as “sovereign states.” His decision in the Dakota cases reflects that understanding: the hanged perpetrators were not accorded any of the constitutional rights of citizens or the privileges accorded to prisoners of war. The Dakota matter was recent evidence that Natives engaged in guerilla tactics. Lincoln surely knew that Natives engaging in guerilla tactics would not be extended any protections of the Code. Lincoln, in issuing the General Order 100 after the decision in the Dakota cases, did not intend to accord Native tribes the status of sovereigns or extend them a special status in warfare.
III. The Lieber Code and the Plains Wars
Regardless of Lieber’s intent, in the minds of the Army, Lieber’s Code was not a code of conduct or a series of military rules for encounters between the United States Army and the Plains Natives after the Civil War.[104] Regardless of whether the tribes were sovereign states governed by the “natural reason” that underlined the common law of war, the Native warriors in the Plains Wars were not organized like the armies that Lieber envisioned and they did not conduct warfare in the same systemic fashion as the national armies that were Lieber’s subjects.[105]
The armies that were Lieber’s subjects had established codes of discipline — like the 1806 Articles enacted by Congress — and officers of varying ranks who could enforce discipline on lower ranking soldiers. In contrast, the tribes who fought in the Plains were led by a chief, but the position did not govern the action of the entire tribe. In many cases, the Native tribes had young warriors who sought out conflict and engaged both settlers and American troops without the sanction of tribal leaders, and, even if they did so, they did not encounter any tribal discipline for their conduct, whether it was condoned by the Lieber Code or otherwise.[106]
As one commentator noted:
For the Cheyennes, in particular, chronic intertribal warfare was a cornerstone of their existence on the plains and constituted a deadly enterprise of extenuating facets to guarantee their survival . . . For many young men, moreover, warfare was a rite of passage, and its practice was necessary to attain status within society because of the framework of Cheyenne Society. The activities of young men bent on gaining prestige through raiding and success as warriors — components that were culturally ingrained and therefore normal exercises conducive to establishing a social reputation — were not easily tempered governed or eliminated by other tribal memories including Chiefs since they represented ritualized behavior typically affecting personal growth and societal status. This was something white observers could not comprehend.[107]
The government leaders, from army officials to territorial governors, failed to understand this cultural aspect of Natives in the southern Plains.[108] As an example, the government negotiators on the text of Native treaties did not comprehend the limitation of tribal governance and the role of the chiefs, who signed the Treaty.[109] The government negotiators “ascribed to Indian tribes a system of power that in fact did not exist . . . The chiefs [were] looked on as mediators and councilors, people who may represent the tribe to outside entities but who never have the authority to give orders or compel the obedience of other members.”[110]
As perhaps the most significant example, in the Medicine Lodge Treaty, which was concluded with the Southern Cheyenne in the year before Washita, the parties agreed in the very first article to a system of discipline for “bad men” who engaged in a “wrong or depredation” against either settlers or Natives.[111] The treaty provided that both the government and the Tribes would, upon proof of the wrong, “deliver up the wrongdoer to the United States to be tried and punished according to its laws.”[112] Despite the fact that there were widespread raids by Natives in the Southern Plains after the treaty, there is no substantial evidence that Native chiefs or other leaders determined which warriors had engaged in violence and brought them to the Army as required by the treaty before the Washita conflict.[113] Similarly, there is no significant evidence that any Army personnel were “delivered” for prosecution of “wrongs” against Natives during the same period.[114]
However, one consequence of the failure to “deliver” wrongdoers to the Amry led the army to believe that “because the Indians have neither curbed the guilty parties nor turned them over to authorities as specified in the treaty they too were as blameworthy and worthy a punishment.”[115] Sheridan and Sherman and eventually the federal War Department and the Bureau of Indian Affairs shared that view.[116] Their conclusion was buttressed by evidence that the Natives had violated the Medicine Lodge Treaty prohibitions against Native attacks which, in their view, strengthened the conclusion that “the entire population — not just the offending individuals — was to be held accountable for the depredations.”[117]
However, the “delivery” requirement in the Medicine Lodge Treaty, and others, was never a practical solution to the Native guerilla strategy. Natives were eminently justified in never surrendering warriors to the Army. The Dakota War demonstrated the folly of Native compliance with the requirement to deliver “bad men” to the Army. When the Dakota surrendered, military councils, as noted earlier, imposed a death penalty on more than 300 Natives and imposed other cruel penalties on hundreds of non-combatants. No Native chief, aware of the Dakota experience and the conduct of Army brutality in the field, would “deliver” his warriors, as it meant, in all likelihood in view of the rabid reactions of Western territorial governors and settlers, certain death for the warriors. This conclusion highlights the cultural collision in the West: the Army concluded that when the chiefs failed to deliver culpable warriors, the entire tribe was complicit, while chiefs concluded that compliance with the delivery requirement meant all-but certain death of delivered warriors.
In the eighteen months before Washita, as Cheyenne and other chiefs attempted to make peace and protect non-combatants, there was ample evidence that the Dog Soldiers and their offshoots, described as “a sort of hybrid military society” attracted other Cheyenne warriors who were gravitating away from the “council chiefs.”[118] In this respect, the young Cheyenne warriors “were bent on gaining prestige through raiding and success as warriors” and had little observance of chiefs.[119] The combination of factors in 1868 “created extraordinary pressures on Cheyenne band hierarchies to control their young men but this control was not only inimical to the tenets of Cheyenne society but also impossible to fulfill.”[120]
Just prior to the Washita attack, Black Kettle, the Cheyenne chief, conceded that some portion of his tribe — mostly young warriors — were acting in a form of guerilla warfare and that he could not control their actions. In a meeting with General William B. Hazen on November 20, 1868, at Fort Cobb, less than a week before the attack at Washita, Black Kettle told Hazen that he could not account for the conduct of Cheyenne warriors. Black Kettle said:
The Cheyennes, south of the Arkansas, do not want to return to the northside, because they feared trouble there, but were continually told that they had better go there as they would be rewarded for doing so. The Cheyennes do not fight at all this side of the Arkansas – they do not trouble Texas, but north of the Arkansas some young warriors were fired upon and then the fight began. I have always done my best to keep my young men quiet, but some will not listen, and since the fighting began, I have not been able to keep them all at home.[121]
Black Kettle’s comments acknowledged that Native tribes were fractured in their view toward resolution with the Army and large numbers of marauding Natives were terrorizing the Army and settlers. Hazen, in his response, warned Black Kettle that the Native raids had resulted in troops in the field, looking for the marauders and raiders who had killed settlers in the Salmon/Silene area.[122]
In a separate incident, after the raids at the Saline and Solomon Rivers, the Indian Agent Edward W. Wynkoop sought to avoid a further conflict when he asked a Cheyenne chief to deliver the perpetrators of the depredations to the Army two months before Washita. Chief Little Rock, in response to Wynkoop’s demand, suggested that he would try but he failed to deliver the leaders of the raid. He never returned to confer with Wynkoop before Washita. Wynkoop, in later correspondence, bemoaned that while he believed that most of the Cheyenne opposed the war “yet they will be powerless to restrain their young men when once they fairly enter into it.”[123]
The lack of Native accountability for the raids and depredations of their younger warriors resulted in the Army reaching the same conclusion that Scott detailed in Order 20 during the Mexican conflict. With no individual Natives culpable for the deaths of settlers, the Army superiors ascribed a collective guilt to entire tribes.[124] Gen. Sherman believed that “tribesman guilty of depredations represented their greater tribal groups and wrote, “if they resort to acts of war, you have no alternative but to punish them as a whole tribe.”[125] Sherman, in reaching that conclusion, was acting consistent with his own experience in the Georgia campaign four years earlier.[126] When his command was running through Georgia, he issued his own command orders authorizing field commanders to order strict reprisals against “guerillas” and “inhabitants” who “molested the Army’s march” were subject to devastation “more or less relentless according to the measure of such hostility.”[127]
Sherman’s 1864 order, issued after the Lieber Code — encompasses the same concept of “collective guilt” when inhabitants — surely non-combatants—“molested” the invading army. Sherman’s orders against Native populations in the West were comparable to his orders when Union troops encountered rebel guerillas and non-military inhabitants attacking Union troops during the Georgia invasion. In both cases, Sherman seems to be restating Scott, Halleck, and Lieber’s direction that guerillas — whether Confederate sympathizers in Georgia or Native tribes in the West — are not entitled to the protections accorded combatants fighting under the flag of a nation state.
Gen. Sheridan shared Sherman’s view that the Indian Wars were subject to the same tactics as the Army’s invasion of the South four years earlier. He later justified violence in the West by asking whether it consisted of anything more than what the laws of war had been understood to permit in the South. He wrote:
During the [Civil War] did anyone hesitate to attack a town or village occupied by the enemy because women or children were within its limits? Did we cease to throw shells into Vicksburg or Atlanta because women or children were there?[128]
The Army’s experience of total war in the South made the extension of that principle to the Plains War an easy step for the military: “what was new after the [Civil] war and what came out of it was a confidence that the rules of civilized war no longer put undue restraints on the soldiers who sought to wage it.”[129] The Lieber Code, in this view, did not interfere with tactics employed by the Army in the Indian conflicts but instead sanctioned them.[130]
In short, the concept of military discipline and control of the armed forces that were articulated by the European theoreticians, enshrined by Congress in the 1806 Articles and incorporated by Lieber in his Code were never a part of the Native culture during the era of Native raids and aggression in the Fall of 1868.[131] What is indisputable in 1868 when Custer left Fort Supply under the orders from General Sheridan, is that in the mind of the American government as reflected in its laws and its military, the Native tribes did not share or exhibit the European mindset or the “dictates of natural reason” that formed the basis for an understanding of the “common law of warfare,” as it emerged during the middle of the 19th Century in Europe and as it was implemented in mid-19th Century America.[132]
Therefore, neither the reciprocal understanding of the “common law of warfare” that required sovereign states to abide by certain restrictions on the conduct of warfare, nor the 1806 Articles, nor Lieber’s Code were legal or military restraints on the conduct of the Army toward Natives before and after the Civil War.[133]
As the foregoing analysis suggests, the legal theory of war that is justified in evaluating the conduct of Custer in the West is the guerilla model, proposed by Gen. Scott in Mexico, refined by Gen. Halleck in Missouri, and codified by Lieber in his pamphlet of military conduct toward guerilla warriors and his Code. The conduct of Native tribes, including the Cheyenne before Washita, fits the same general pattern as the guerilla warriors cited by Generals Scott and Halleck. The tribes had warriors, mostly younger men, who for a host of personal and tribal reasons, believed that raids and savage brutality against both settlers and the Army were the favored tool to discourage incursions into Native lands and hunting grounds.[134] These tactics mirrored the raiders in Mexico and Missouri: they attacked surreptitiously in smaller groups, looted and stole property, killed all other combatants, took few prisoners (usually women and children), and destroyed all the property. The guerillas avoided any direct confrontations with superior military forces and refused to be drawn into more classic direct confrontations. The warrior Natives had dependable and Plains-hardened ponies that could evade the slower horses and wagons of settlers or the military, which aided their guerilla tactics.[135]
In contrast, the Army officials, were, as often happened, intent on fighting “the last war.”[136] But, the strategy and tactics, employed in large battlefield engagements with which they were familiar in the Civil War, simply would not work against the tribes of the plains.[137] The only alternative was a “total war” concept, in which the warriors who engaged in guerrilla tactics that killed settlers and their tribes were subject to all the tools of war in the Code without restriction.
A. Custer’s Conduct in the West
1. The Native Wars before Custer went West
Before any analysis of the conduct of Custer as a commander of the 7th Cavalry in the West after the Civil War, any historian should acknowledge that the landscape of brutality in the 19th Century wars in the West was overwhelming. There were numerous incidents of intertribal warfare during the first half of the 19th century with episodes of brutal murder and rape between warring tribes. Moreover, Natives traditionally fought with methods substantially different from those of the Americans and Europeans.
As one commentator noted:
In intertribal Indian wars almost all members of the enemy nation-including women and children-were legitimate targets of attack, and captives were rarely taken. These practices were largely dictated by circumstances: the Indians had no prison camps in which to confine captives; women and older children, if taken, were likely to escape and bring vital information back to their own tribes; the fighting men could not effectively transport the younger children, and infants would likely die on the way.[138]
This form of Native warrior’s conduct of total war carried over into encounters with settlers moving west in the 19th Century before Custer arrived in the West. There were numerous reports of Native raids on settlers in the period from 1864 to 1868 which included the killing of settlers, raping of women, and the killing and capturing of children. The brutality was inflicted by settlers against Natives as well. The list of cruelties on both sides seems overwhelming, from Sand Creek to the Fetterman Fight.[139] The conduct of the combatants in the expansion of the United States into the West was, by any measure, brutal. [140] The violent conduct — murder of non-combatants, killing prisoners or the wounded, destruction of homes, property, and crops, and the capture of women and children — was widespread among all combatants.[141]
As described above, there is no dispute that the Army policy in 1868 in the West was one of “total war,” ordered by Gen. Philip T. Sheridan “to destroy villages and ponies, to kill or hang all warriors, and to bring back all woman and children survivors” because he wanted “all segments of Indian society to experience the horrors of war as fully as the warriors.” [142] The Cheyenne and Arapaho raids continued throughout Kansas in August and September of 1868. Sheridan estimated as many as 110 white citizens had been killed since the first raids in early August 1868.[143] He was determined to inflict punishment on those responsible for the raids by attacking the heart of their villages in Indian Territory (present-day Oklahoma).[144]
As a final observation, the notion that tribes in the West and particularly the Cheyenne prior to Washita were “compliant” with their treaty obligations, as the NCAI alleges, needs to be examined. As the earlier analysis demonstrates, the “deliverance” provisions — requiring tribes to deliver “bad men” to the military — were, despite the fact that it was incomprehensible to Natives and inconsistent with their cultural heritage — never fulfilled by the Cheyenne prior to Washita, a fact that military leaders considered a treaty violation. In addition, the treaty contained Native promises that they would not attack “persons at home or traveling,” never “capture women or children,” and “refrain from killing or scalping white men.”[145] “All of these stipulations had been violated by various Cheyenne and Arapahoe elements” in raids throughout 1868, especially in August.[146]
Under the War Department’s interpretation (most notably the concurring views of Generals Sherman and Sheridan) however the entire population — not just the offending individuals — was to be held accountable for the depredations.[147]
In this view from the field to the highest levels of the Johnson administration, “the tribesman has breached the Medicine Lodge Treaty and therefore should face the consequences of their actions.“[148] While the debate over which party violated the treaty obligations in the first instance is left to others, the fact stands that the Army had a legitimate basis — Native breach of the terms of the treaty — for further military action against the Cheyenne after the Solomon/Saline raids in August 1868.
Based on the research for this article, there is no evidence that General Sheridan or William T. Sherman, Custer, anyone else in the hierarchy of national military, or even then President Andrew Johnson — considered the Lieber Code, Lieber’s writing on guerrilla warfare or the “common law of warfare,” as mitigating the “total war” orders given to Army personnel in southern Plains conflicts in the late summer or fall of 1868.[149]
In considering Custer’s conduct under any war crime analysis, the focus in this article is solely on Custer’s conduct in the field at Washita. The moral context — questions regarding the breaches of treaty obligations by the United States, the “total war” orders from Sherman or Sheridan, or the landscape of brutality by both sides to non-combatants — must be set aside and allow a detailed examination of what Custer actually did in battle, other dealings with Natives at Washita, or what he permitted troops under his command to undertake. In making that assessment, the only relevant standards are those in effect in 1868, when the attack on Washita occurred.
2. Custer’s Interactions with Natives Prior to Washita
Prior to the Washita expedition in November 1868, Custer engaged in only one military engagement with Natives. In June 1867 near the Republican River, Custer’s men in the 7th Cavalry were fired upon by Natives and a skirmish ensued. Custer was leading his troops upon the orders of Gen. William T. Sherman, who considered the Natives “hostiles” and had ordered the killing of Natives and the capture of their women and children. There is no evidence that any non-combatants were killed or injured and while both soldiers and Natives were killed, there is no evidence of any depredations upon the dead or unjustified conduct by Custer or his command. There is no evidence that Custer, by confronting the enemy at this point, violated any common laws of war or the terms of the Lieber Code.
3. Justification of the Raid of Washita
Although there is a dispute about how it occurred and what it might have signified, Custer’s troops were following a trail, discovered by Lt. Elliott, that Custer and his scouts concluded was left by a “war party.”[150] In that regard, Custer’s tracking of what he concluded was a war party is easily justified. Custer was aware of recent raids by Natives on settlers in the Saline River region: there were numerous depredations involving a war party of over 200 Natives along the Saline and Solomon Rivers in mid-August 1868.[151] Native leaders later confirmed that a Cheyenne war party perpetrated a “great many depredations.”[152]
Custer, heading toward the Washita, was following specific orders. Sheridan reported the outrages on the Solomon and Saline Rivers to Sherman, who immediately called for the removal of the Cheyenne south of the Kansas line and in pursuing “to kill if necessary.”[153] Sheridan later issued his simple order to Custer:
[P]roceed south, in the direction of the Antelope Hills, thence toward the Washita River, the supposed winter seat of the hostile tribes; to destroy their villages and ponies, to kill or harm their warriors and bring back all women and children.[154]
The trail of the war party led the cavalry to the banks of the Washita. In this respect, Custer’s conduct should be considered a military action against a guerilla operation which was headquartered in the Cheyenne camps on the Washita. As noted earlier, Black Kettle had acknowledged numbers of marauding Natives from a variety of tribes were terrorizing the Army and settlers. Hazen advised Black Kettle during the session at Fort Cobb that he should “hold in their war parties and keep a sharp eye out for soldiers.”[155] There is little dispute that a party of warriors — whether Cheyenne or otherwise — had attacked settlers in the period just before Washita and Custer’s men asserted that they were following the trail of these Natives when they discovered the Washita encampment.[156]
4. The Decision to Attack the Cheyenne Camp at Washita
In the attack on the morning of November 27, 1868, Custer elected to invade a Native camp that he knew housed non-combatants, including many women and children. He also no doubt assumed that there were warriors in the camp, including some that may have recently engaged in attacks on settlers.[157] From this perspective, Custer’s choice to attack a camp with both combatants and non-combatants does not violate any portion of Lieber’s writings or the 1806 Articles of War. The Army experience in the Civil War clearly justified attacking cities and other communities when the actual number of combatants, mixed with women and children, were unknown.[158] The Union Army generals, now fighting tribes in the West, were Civil War veterans:
who had fought not only the Confederate armies but also the Southern economic infrastructure; they waged war against agricultural plantations, railroads, factories, warehouses cities, and towns, in effect, against the Southern population.[159]
The consensus among the army military establishment — both in the Civil War and the Plains Wars — was that once a civilian population loses the will to fight, their armies will “crumble no matter how brave or how victorious they may be on the battlefield.”[160]
In short, the decision to attack a community that included women and children but also included, to the best of Custer’s knowledge, warriors who had engaged in guerilla-warlike tactics that killed settlers does not justify a conclusion that Custer, who gave the attack orders, violated any common law of warfare or the Lieber theories.[161]
5.The “Surprise” Nature of the Morning Attack
The fact that the attack was a “surprise” also does not justify the conclusion that it was improper under the common laws of warfare, Lieber’s writings on guerilla war, or the Lieber Code. Lieber’s writings acknowledged the need for “surprise” and “deception” as elements of warfare.[162] Nathaniel Philbrick in Custer’s Last Stand comments about the need for a surprise attack in the Native wars:
[T]he mobility of an Indian village did not allow for the luxury of reconnaissance. By the time the regiment had scouted out the location and the size of the village, the encampment was more than likely beginning to disperse. One of Custer’s biggest tactical defenders later became somewhat ironically Lieutenant Edward Godfrey . . . who wrote: “The attack must be made with celerity and generally without knowledge of the members of the opposing force.” Godfrey later wrote “and to be successful the surprise depends upon luck.” Or as another noted expert in plains warfare asserted Indians “had to be grabbed.”[163]
Other commentators have drawn the same conclusion. Witt, in his thesis, notes that “combatants on both sides frequently attacked entire communities without warning, leading to high casualties, particularly among women and children.”[164] A surprise attack could be decisive. The fact that Custer was in the field in the dead of winter was a further advantage. One Army officer concluded:
If a single one of these villagers could be surprised in the depth of winter, the resulting loss of property would be so great that the enemy would suffer for years; their exposure to the bitter cold of the blizzards would break any spirit no matter how brave.[165]
In addition, surprise attacks were the mode for Native warriors in actions against settlers. This form of attack was a “mainstay” during the Indian Wars — on both sides and both before and after Washita.[166] Surrounding a village whose occupants were asleep and then attacking from all sides simultaneously, preferably at dawn, killing and wounding the residents, capturing their ponies, and destroying their property was the preferred method of Army action.[167] Native assaults on settlers and travelers were conducted in the same fashion. Lieber knew that “surprise” was an important advantage in any battle. He advised that combatants, whenever admissible,[168] should notify non-combatants of their intentions to attack to allow women and children to be removed from the fight but added: it was “no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity.”[169]
As an alternative to the surprise attack, Custer could have engaged in further reconnaissance and learned the exact census of the camp included numerous women and children. Critics argue that he would have learned of Black Kettle’s presence and avoided any non-combatant casualties. He would have observed the “white flag” that flew over one of the lodges and then perhaps, either refrained from entering the village or have simply entered the village without firing a shot. Refusing to enter the village was not only inconsistent with his orders but to do so would deny the existence of the war party that led to the village and which Custer could reasonably assume was still present in the camp.
The alternative, entering the village without firing a shot was extremely risky to Custer and his troops. First, a peaceful entry would not create any deterrence to further raids. In view of the failure of Native tribes — and specifically Black Kettle’s failure -- to produce “bad men” who had engaged in depredations in the Southern Plains, the entry of a large Cavalry force into the village — assuming it would have entered and retired peacefully — would have produced no end to future depredations. Second, Custer had no information on any specific warriors who were engaged in the massacres on the Saline and Solomon Rivers. Custer would have had no evidentiary basis for taking any Natives prisoners and it is doubtful — if not inconceivable — that the tribal leaders would have permitted him to peacefully detain and imprison any of the younger Natives. He had no ability to sort through the assembled Natives and determine individual culpability for the recent slaughter of settlers.
Custer’s risk in his surprise attack was that he did not know the extent of the force that might be mustered against him.[170] The alternative of simply entering the village peacefully to arrest or capture marauders would have put his entire force at even greater risk.[171] Under those circumstances and in view of all the factors that brought Custer to Washita, the surprise attack — condoned by Lieber in his Code — was the only reasonable alternative.
6. Custer’s Conduct as a Combatant
The accounts of the actual fighting in the Cheyenne village have been disputed for more than a century. Several facts appear to be all but conceded. The village had about 51 lodges and approximately 150 “warriors,” although the ages and identities of these “warriors” are unknown.[172]
Custer led the charge into the village, riding his horse and brandishing a pistol. One account indicates Custer “fired on one warrior” who aimed a rifle at him[173] and “ran down another” on his way to a command post.[174] Most accounts indicate Custer’s pistol killed at least one Native. There is no other evidence that Custer fired any weapon at any other Native during the remaining course of the battle. He retreated to a nearby hill, where he observed the battle. However, as the commanding officer, he bore responsibility for the conduct of the 7th Cavalry troops. Once the battle began, Custer’s conduct was consistent with the Army’s conduct in any war. He fired only a few shots, directed at someone who was threatening him, and he used his horse to knock another combatant. In responding to the possible rifle assault as part of the attack, Custer violated no rules of law or the Code.
7. Non-combatant Casualties – Women and Children
As one commentator noted, the “general rule” that emerged in the 1860s was that noncombatants should be protected but they might legitimately be injured or killed if the war required it and the then current laws of war “permitted it.”[175]
Indeed . . . There were no clear customs about when military necessity would justify killing civilians; perhaps the only certainty was that violence was directed at civilians and was seldom punished, this proved especially -- although not uniquely -- true in fighting between the United States and the Indian nations.[176]
Lieber’s Code did little to change these “customs” as his “military necessity” doctrine in Article 15 gave the military a wide berth in attacking sites where noncombatants — women and children — were present and would end up in the line of fire.
There are longstanding disputes over the casualties at Washita. In one account, 128 women and children were killed by members of the 7th Calvary. Custer estimated the losses of all Natives at 140 killed. In some accounts, the women who died may have brandished arms or made threatening gestures to the invading troops. There are similar accounts involving older boys who allegedly brandished weapons during the assault.[177] There are no definitive accounts of the number of women and young boys who may have engaged in these episodes and how many of them were killed in the encounter.
Another confusing factor in evaluating the extent of casualties at Washita is the reaction of adult male Natives, who may have been or were otherwise part of Black Kettle’s peace initiative but who grabbed weapons to repel the cavalry during the surprise attack. These were “desperate men trying to save their families.”[178] Because of the memories of Sand Creek and massacres elsewhere, these adult Natives would be justified in entering the combat and engaging Custer’s troops, even if they shared Black Kettle’s intentions to peacefully comply with their treaty obligations. Custer’s surprise attack transformed these potential “peace advocates” into combatants, as they tried to defend their families and property from the troopers. There is no evidence of the numbers of these otherwise peaceful Natives who may have become combatants during the surprise attack, but it is easy speculation that there were more than a few. In addition, given the absence of male prisoners that Custer took after the battle, it can be assumed that a portion of the adult male Native casualties at Washita were supporters of Black Kettle’s peace initiatives.
Several incidents personify the complications that arose during the battle. In one Captain Frederick Benteen was assailed by a younger warrior with a revolver whom Benteen initially regarded as a noncombatant. The youth shot Benteen’s horse and when he reached for a second pistol, Benteen shot him dead. In another episode, Lieutenant Smith passed a group of women, and Smith ordered his troops to refrain from firing on the women when one of the women shot an arrow, wounding one of the troops. The trooper responded, shooting the “woman,” who was later allegedly identified as an elderly warrior.[179]
The surprise and aggressive nature of the attack unmistakably resulted in non-combatant casualties. There are accounts that troopers charged through the village and “took no care to prevent hitting women.”[180] In addition, there are accounts that when women and children were cornered into the river, they refused to surrender and many of them were killed.[181] One author describes these casualties as evidence of Custer’s cold-heartedness to non-warriors and his desire to completely fulfill Sheridan’s demand to punish the unsuspecting tribesmen, regardless of age or sex.[182]
Custer, in his book, My Life on the Plains, said that he had given an order to prevent the killing of any but the fighting strength of the village, but he added that he considered it impossible at all times to discriminate, particularly when women engaged in hand-to-hand combat, the women were as dangerous adversaries as the Warriors.[183] Custer’s scout Ben Clark partially corroborated Custer’s order.[184] Clark later said that when Custer saw that troops in Captain Edward Myers’s squad were pursuing and shooting at one group of women and children and “killing them without mercy.” Custer ordered his scout to halt the pursuit and stop the shooting.[185] It is undisputed that several women and children sought refuge during the battle in the stream and they were unarmed. There is also little dispute that some of these women and children were shot and killed while seeking that refuge.[186] The exact number remains unknown.
When the battle was done, the village resembled a “vast slaughter pen.”[187] However, it was not a Sand Creek style “indiscriminate slaughter” in which non-combatants were randomly killed after the fighting subsided. In fact, Custer took many women and children prisoners. This author was unable to find any evidence that Custer took any adult male prisoners.[188]
Under Article 15 of Lieber’s Code, “military necessity” justified the destruction of life or limb of “other persons whose destruction is incidentally unavoidable in the armed contests of war” and further authorized the destruction of an enemy “of particular danger to the captor.” In the portrait of the Washita village from a variety of perspectives, the killing of non-combatants while Custer sought to accost the forces that had perpetrated depredations in the heat of a battle would be “incidentally unavoidable” under the Code.[189]
8. Brutality Against Natives – Scalping and Other Violence
In at least one account of the attack, much of the savagery in the battle occurred at the hands of the Osage scouts, who had bitter quarrels with southern Cheyenne.[190] The same scout who led Custer to curtail shooting women and children, said that the Osage shot women and mutilated their bodies.[191] There is evidence that Natives were scalped and a woman’s body cut open.[192] Custer himself admits that he saw a trooper, who had been wounded by an arrow, holding a Native scalp.[193]
There is no evidence that Custer was aware of these depredations as they occurred but, as the commander of this attacking force, he holds responsibility. There is no evidence that he ordered the Osage to refrain from these assaults prior to the attack, nor that he intervened to stop these brutal measures. There is no evidence that any punishments were meted out after these killings and mutilations.[194] The scouts were in Custer’s command.
In considering whether this conduct violates the terms of the Lieber Code, it is important to first acknowledge that scalping of settlers and soldiers was common by Natives throughout the history of the Plains Wars, including long before Washita. Second, it appears that most of the scalping and other body mutilations were perpetrated by the Osage scouts, consistent with inter-tribal warrior conduct. In assessing this conduct and Custer’s obligations under the then current laws of war, it is important to recognize that, in the Code, Lieber walked a tightrope in differentiating retaliation from revenge. Retaliation, “the sternest feature of war,” was only permitted as a means of “protective retribution.” Lieber refused to discard retaliation as a tool of war, commenting that could not be “wholly” discounted because it was an instrument of war against a “reckless enemy” and should be confined to instances of “stopping a certain evil.” In this respect, Lieber’s Code legitimized retaliation as a form of “protective retribution” against “the repetition of barbarous outrages.”
In this analysis, the scalpings at Washita cannot be characterized as an act of “military necessity” under Article 15 of Lieber’s Code. It is illogical to argue that the scalpings were directed against a “reckless enemy,” guilty of “barbarous outrages” to “stop an evil” and might, somehow, be justified if those scalped were the warriors who had engaged in the Solomon/Saline raids. Based on this author’s research, there is no evidence regarding the identity of those scalped by the Osage or the Army trooper. The fact that the conduct mirrored the conduct by Natives on the recent Salomon/Salene River massacres does not excuse the conduct.
Furthermore, there is no evidence uncovered by this author that suggests that Custer’s permitting the scalping of Cheyenne served any military purpose. There is no evidence that the scalpings were designed, in any respect, to deter or restrain other Natives, either those camped nearby on the Washita or throughout the Southern Plains, from engaging in similar depredations against settlers or soldiers. There is no evidence that the scalping, if observed by the Natives near Washita after the end of the battle, would have deterred a further attack on Custer’s troops and perhaps justified the conduct as a “protective” maneuver. There is no evidence that scalping by one tribe against another had ever deterred or discouraged further depredations in inter-tribal wars across the Plains or battles against settlers and soldiers. It is difficult to conceive that the scalping of Cheyenne at Washita, either by the Osage or any trooper, was a form of “protective retribution” under the Lieber Code.
Instead, the taking of scalps by Custer’s command propels Custer into the exact descent that Lieber forecast in the Code, when “retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages.”[195] In this conduct, Custer, by either tacitly permitting scalping by Osage and others during the fighting in the Washita village or by failing to punish the scalpers thereafter, engaged in an act of “passion” outside the acts of a common law of warfare as described by the Code. The scalpings also violate Article 71 of the Code, which bars intentionally inflicting additional wounds on a disabled enemy. While these depredations may have been common when Natives attacked settlers and were part of the pattern of warfare in the Plains Wars, the conduct would not constitute justified retaliation and, as an unjustified act of passion without military purpose, violated the Lieber Code.
Even if the mutilations were solely at the hands of the vengeful Osage scouts, Custer, as the commanding officer, bears responsibility for these offenses.[196]
9. Killing of Wounded Natives at the End of the Battle
It is undisputed that wounded Native warriors on the battlefield were not taken prisoner but instead killed by Custer’s men on Custer’s orders. In accounts of the battle, authors have merely referenced these killings and added that the killings of wounded natives were part of an Army protocol in the Plains Wars.[197] Eyewitness Scout Ben Clark addressed this policy as follows:
as wounded Indians were supposed to, or known to fight as long as they could, all of the wounded Indians in this fight were promptly shot to death by the soldiers, without discrimination as the appearance of danger, just exactly as the Indians would have treated wounded soldiers.[198]
What remains unknown is how many of the wounded Natives were shot after they sustained incapacitating wounds. There is no description of any native “surrendering” — without injury — to the Cavalry. As noted earlier, the exact number of Native warriors killed at Washita has long been debated and how many were killed after sustaining injuries remains unknown.[199] There is no evidence uncovered by this author whether the Natives killed in this exercise were the same natives who had participated in the recent “take-no-prisoner” raids that provoked Custer’s assault.[200] Even advocates of peace living in the village would have been motivated to grab weapons to return fire when the Cavalry descended on the village and these armed non-guerilla Natives, merely defending their families, would have been targets of the Cavalrymen.
The killing of the wounded warriors would seemingly constitute a “war crime” as a form of massacre in almost any environment. But, in the take-no-prisoners warfare of the Plains, such conduct was the norm for both sides. While Lieber wrote that no army should give a “no quarter order” in advance of battle; in his guerilla writings and the Code, Lieber sanctioned a “no quarter” approach when confronting an enemy that similarly gave no “quarter.”[201] The Native warriors at Washita, who engaged in guerilla tactics earlier in the Fall, demonstrated a “no quarter” approach to warfare. There is no evidence that the Cheyenne took men as prisoners during their recent raids. They took women and children as captives but no male prisoners.
In addition, it is impossible to conceive that if Custer’s force had floundered and been surrounded, the Natives would have given “quarter” to the Cavalry and taken Army prisoners. There is little evidence in the Plains Wars prior to Washita that Natives, of any tribe, took soldiers as prisoners of war. They were routinely executed. Based on this author’s research, there were no significant tribal or Army “surrenders” in the Southern Plains Wars during the 1860s.[202] Custer and all his troops knew the consequences of defeat involved death. Thus, facing an enemy who never gave “no quarter,” Custer was justified in implementing a “no quarter” order at the end of the battle.
Custer’s order to kill the injured Natives is consistent with another aspect of Lieber’s Code. The Code sanctioned a commander giving an order for “no quarter” when “in great straits” and “when his own salvation makes it impossible to cumber himself with prisoners.”[203] Neither Custer at Washita nor the guerrilla warriors in Native tribes in the Oklahoma/Kansas region during the summer and fall of 1868, had any capacity, after a battle, to take male prisoners or provide care to wounded Native combatants. Custer would have assumed that any warrior, who had held a weapon directed at his troops, was a combatant to whom the guerilla warfare precepts would apply.
Custer, after the fighting subsided at the village, was also in “great straits,” both in his own account and others. The nearby Native tribes had gathered around the destroyed village in large numbers, ready for an attack. Custer had no resources to effectively take and restrain prisoners of war and repulse an attack by the Natives. The presence of a large guerilla force overlooking the Washita site after the battle had ended, which would not subscribe to the rules for prisoners of war or taking captives, posed a continuing threat to his troops and justified Custer’s “no quarter” orders under the wording of the Lieber Code. His troops were in “great straits” and their “salvation” or survival demanded that they take no male prisoners.
In that respect, Custer also later acknowledged that he used the women and children prisoners as a shield against an attack after the battle. Taking females and children as prisoners was a custom among Native tribes during the Plains Wars. There is some evidence that a female settler prisoner was held in the village at Washita when Custer attacked. Custer’s use of the prisoners to deter an attack after would seem to be exactly the form of “necessity” that Lieber envisioned in Article 15 of the Code.[204]
10. Killing Black Kettle
The killing of Black Kettle, who was fleeing the fighting, sparks a further debate because he was aligned with the peace movement in the Cheyenne and, just a few days before, discussed a peaceful resolution with Col. Hazen at Camp Supply.[205] There is no evidence that Custer knew of Black Kettle’s plea for peace to Col. Hazen the week before and no evidence that Custer knew the village on the shores of the Washita was Black Kettle’s village. The evidence simply suggests that the 7th Cavalry had followed a trail, described as a war party trail, to the Washita.
Based on the facts adduced after the battle, it appears that Black Kettle did not participate as a combatant and was seeking to flee the fighting with his wife. However, there are no agreed facts surrounding Black Kettle’s death, other than he was shot by a trooper during the battle while riding a horse with his wife. There is no evidence that Custer ordered his shooting or participated in the shooting or, for that matter, knew of Black Kettle’s death until after the engagement. In the confusion of the battle and the acknowledged difficulty of distinguishing friend or foe among the Natives, Black Kettle’s death must be considered “incidentally unavoidable” in the heat of battle.[206]
11. Killing the Pony Herd
It is undisputed that Custer ordered the destruction of the Native’s pony heard, which, by different accounts varied from 640 to as many as 875. The pony was the prized possession of the Cheyenne and other tribes. Custer acknowledged later that killing the ponies was a “cruel but necessary act” and the “only measure left” at the end of the battle.[207] Custer’s proffered justification for the destruction of this property is contained in My Life on the Plains:
“Taking the ponies . . . was anything but wise or desirable on our part, and such a large herd of ponies constituting so much wealth in the eyes of the Indians would’ve been too tempting a prize to the warriors, who have been fighting us all afternoon, and to affect their recapture they would’ve followed, and waylaid us day and night, with every prospect of success.[208]
Custer had another articulated motivation for the destruction of the pony, although it smacks of after-the-fact rationalization: pure vengeance. In My Life on the Plains, Custer said it was “our desire” to impress on the “uncultured mind” that the purpose was not “to secure plunder” but “simply to inflict deserved punishment” upon the Natives for depredations on “defenseless settlers on the frontier.”[209]
Custer’s destruction of the herd can only be justified as a method to destroy a weapon of war for the raiding Natives. The Lieber Code permitted the Army to destroy property held by an enemy that facilitated the enemy’s war efforts.[210] The ponies were the Natives’ prime tool for their raids, as they enabled surprise attacks and speedy retreats when necessary. By destroying the Native’s most prized property, the pony herd, Custer was removing an incentive to further raiding by the young warriors sheltered along the Washita.[211]
12. Burning and Destruction of the Village
Finally, Custer ordered his troops to burn the entire village and all the Native belongings. The fires consumed dried meat and other food, power and ammunition, clothing, hatchets, buffalo robes, bows, arrows, axes, and other weapons.[212] Consistent with the precepts of total war, Custer ordered the troopers to knock down the lodges, set them the fire, and heap the entire contents of the village on leaping bonfires — saddles, clothing, utensils, weapons, ammunition, and the winter supply of dry buffalo meat and other foods.[213] Custer boasted to Sheridan: “we have cleaned Black Kettle and his band out so thoroughly that they can neither fight nor sleep, eat or ride without sponging upon their friends.” Custer further declared it was “a regular Indian ‘Sailors Creek’” referring to the destruction of most of Lee’s army on the eve of Appomattox.”[214]
The destruction of the village is consistent with the Code’s description of permitted conduct in a military action. The Code justified “all withholding of sustenance or means of life from the enemy” and further provided that “it is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.”[215] The Code does not specify whether the “hostile belligerent” referenced in Article 17 includes the “unarmed” woman and children who were present in the village at the time of Custer’s attack. However, Lieber uses a broad brush to suggest that non-warriors, present in the Washita camp at the time, could be subjected to the same deprivations: in his description of enemies, Lieber includes “other person.” While the phrase is written in Article 15, it would easily be interpreted that the “unarmed belligerents” are the same “other persons” and include the women and children, whose food and other property were destroyed at Washita.
13. Custer’s Alleged Affair with a Native Woman
One aspect of Custer’s conduct, if true, clearly justifies a conclusion that he engaged in a crime. After the battle and after his troops returned to the safety of the camp, several witnesses attest that Native scouts would direct Native women to officer’s tents. Several witnesses later attested that Custer was among those who participated with a Cheyenne woman named Monahseetah.[216] These accounts indicate that during most of the remainder of the winter of 1868, this woman was a frequent visitor overnight to his tent.
Capt. Frederick Benteen was a leading source for the rumors about Custer’s conduct. In a posthumously published letter, Benteen described the informal invitation, issued by Custer to his officers to avail themselves of the services of a captured Native woman. Benteen alleged that Custer took the first choice and lived with the Native woman during the winter and spring of 1868 and 1869.[217] Ben Clark, the chief of Custer’s scouts independently — and without Benteen’s malicious intent[218] — reported the same fact in a 1910 interview. Nathaniel Philbrick in Custer’s Last Stand includes the following: “There was a saying among the soldiers of the western frontier, a saying Custer and his officers could heartily endorse: ‘Indian women rape easily.’” [219]
The Union Army in the Civil War was conscious of the need to protect women from sexual assault by Union troops. Major General Irwin McDowell in 1862 issued General Order No. 12, which stated that “The punishment for rape will be death; and any violence offered a female, white or colored, with the evident intent or purpose to commit a rape, will be considered as one, and punished accordingly.” The general order was groundbreaking in its explicit protection of all women from the conduct of soldiers and not just white or free women.[220] Union military courts prosecuted at least 450 cases involving sexual crimes during the Civil War.[221] McDowell’s order predated Lieber’s Code but the conclusion of both documents is unmistakable: Army soldiers knew that rape was a crime with a possible death sentence as a consequence.
There is little doubt that sexual relations between Custer, as an officer, with a captured Native woman — if true — constituted rape.[222] A captured Native woman who likely did not understand English and who was held against her will can hardly be considered to consent to sexual relations, especially if the man involved was the leader of the 7th Calvary. Under the Lieber Code, an officer’s rape of a captured woman would violate the Code and no doubt, the civil law of the territories of the United States.[223]
However, conclusive proof of Custer’s liaison remains elusive. Benteen was an unreliable Custer observer, especially when his account of Custer’s alleged dalliance was not aired until 1896, twenty-eight years after Washita and twenty years after Little Big Horn when Custer’s reputation was in fierce debate. Furthermore, the Lieber Code and the 1806 Articles of War required an officer to report a rape by an officer to Army authorities. Neither Benteen nor any other officer who was present at Camp Supply during the winter of 1868 — including both Generals Sheridan and Sherman — reported Custer at that time. No one reported the conduct in the period from 1868 until 1890. The account of the Scout Clark seems more persuasive, but it surfaced forty years after Washita and well after the defeat at Little Big Horn.[224] In view of these facts, the conclusion that Custer engaged in a sexual relationship with a native woman is still in dispute.[225]
14. Custer’s Other Conduct in the West
After Washita, Custer did not renew any hostilities with Natives until a short skirmish in the Dakotas, when his unit, accompanying a surveying unit, was attacked by Natives in 1874. There were few casualties and there have been no allegations that he or his troops undertook any battlefield conduct that could be characterized as violating any norms of military conduct or any portion of the Lieber Code. The final step of Custer’s career and his potential war crimes involves the encounter at Little Big Horn in June 1876.[226] The undisputed conduct of Custer in that battle does not suggest any inappropriate conduct under any of the pertinent rules of warfare and the Native resolution, condemning Custer, does not make any reference to Little Big Horn or any combat with the Northern Plains tribes. Acting in pursuit to orders, aware that guerilla warriors and combatant tribes were active in the vicinity, Custer determined to surprise attack an Indian village, which, he no doubt knew included women and children among warrior Natives. Before he could enter the village, Custer was killed and while his accompanying troops were defeated, there is no evidence that he engaged in conduct that violated the Lieber Code, or any other rules and conventions of warfare at the time.
Conclusion
The rules of warfare were evolving when Custer attacked the Cheyenne at Washita and throughout the intervening eight years before Little Big Horn.[227] But, while historians may criticize the Lieber Code and prior orders that differentiated guerilla warfare from the “common law of war,” it is apparent that Custer’s battlefield conduct against Natives, fighting in a form of guerilla warfare, did not, with two possible exceptions, constitute any form of crime or what later became known as a war crime.[228] The definition of “war crime” did not appear until three decades after the fight at Washita. Even when the term was defined in English in 1906, its chief architect held that “marauding acts” could be prosecuted and punished “because those committing their acts were not protected by immunities granted to armed forces in a war.”[229]
At Washita, Custer was pursuing guerilla warriors and acting based not only on his orders from Gen. Sheridan, but he had facts — the freshly discovered trail of ponies — that suggested the camp contained warriors who had engaged in guerilla conduct and killed settlers and non-combatants. His decision to commence a surprise attack, as directed by his superiors, did not violate any provision of the Lieber Code or the common law of warfare. His conduct, as the commander of troops under orders from a superior officer, during the battle did not violate the Articles of War or any of Lieber’s writings.[230]
The scalping of Cheyenne by other Natives and apparently a trooper under Custer’s command violated the Lieber Code proscription against “passion in warfare” and permits a description of Custer’s conduct as equivalent to that of “savages.” But, in reaching that conclusion, any reader would have to acknowledge that scalping was a form of warfare that predominated in the Plains tribes and was often used by Natives against settlers and soldiers. The fact that Natives scalped their victims does not absolve Custer from any liability under the rules of war, but it does couch that violation in a war context in which scalping was a common longstanding tool of warfare by his adversaries. If scalping was a “war crime,” then the Western Plains Wars were littered with war crimes on all sides.
Custer’s conduct after the battle in sleeping with a captive Native woman can only be considered a form of sexual assault that cannot be protected military conduct under the common laws of warfare or the Lieber Code. If it occurred, it violated the Lieber Code, general orders issued during the Civil War and subsequent federal statutes. It was a crime and Custer should have been tried for the offense. The fact that Custer was never tried suggests that the Army, fighting guerilla warfare tactics against Natives in the West, either never credited accounts of his conduct or simply ignored this conduct by a leader of the 7th Cavalry. The fact that other officers may have participated in the same practice or that his superior ignored his conduct would not absolve Custer of his responsibility for this criminal conduct.
The mystery of Custer’s personal conduct after Washita and its status as a crime during the war remains shrouded in history. His conduct in the battle as the leader of the 7th Cavalry was not, according to the rules of 1868, a war crime because “war crimes” — as defined now in the 21st Century — did not exist. Custer’s permitting the scalping of adversaries by his troops was never justified under the Lieber Code but, in the context of this practife during the Plains Wars, it is hard to single out this incident for censure against a backdrop of a pervasive practice among Natives through the West. His personal conduct, after the battle, involving a relationship with a Native woman — if true — was a crime under any definition and should be acknowledged as such.
Applying the 21st Century definition of war crime — even though still in debate among the international community — to Custer’s conduct at Washita is an endless exercise but, ultimately, leaves his legacy to further debate.
[1] As one commentator noted in discussing the use of the term “war crime”:
Contrary to popular use, a “war crime” is something with a particular legal meaning . . . But colloquial overuse of the phrase blurs it in uncomfortable ways . . . the label “war crime” has heavy semantic implications and real-world consequences. They range from popular condemnation to political and strategic re-direction, from criminal prosecution to diplomatic tension, and from fraught international relations to tactical military failures. The label “war crime,” however, has been used to describe or allege a smorgasbord of actions before, during, and after the conduct was addressed and adjudicated through legal processes.
Dan Maurer, Talking About War Crimes, Articles of War, Lieber Inst. (Aug. 31, 2022), https://lieber.westpoint.edu/talking-about-war-crimes/. Maurer continues: “’War crime’ is a loaded term – what logicians call prejudicial language. It is not merely a technical legal classification of a specific type of offense punishable by the State or an international tribunal. It possesses an incredibly complicated nature that gives off contradictory emotive signals.” Maurer adds: “All war crimes are, by definition, a species of battlefield misconduct, but not everything within the genus of battlefield misconduct is a war crime.” Id.
[2] See Appendix A. The appendix details the billboard announcing Custer’s alleged “war criminal” status.
[3] Calling to End Custer Memorials, Res. #SAC-21-003, Nat’l Cong. of Am. Indians (Oct. 2021).
[4] The Fort Laramie Treaty was signed in 1868. Custer’s expedition which discovered gold in the Black Hills occurred in 1874. Custer’s discovery of gold in the Black Hills was published by the New York Times on August 22, 1874. The resolution also states that Custer desecrated Bear Butte “by riding up the holy mountain brandishing his sword after he was told that all weapons were to be left at the bottom of Bear Butte.” While disrespectful if not sacrilegious in desecrating a Native holy place or sanctuary, this conduct would not constitute a war crime in 1868 under any of the doctrines discussed in this article.
[5] Whether Custer, by his own conduct, violated any of the treaties with natives in the West would require a detailed analysis of several treaties, a subject outside the scope of this article. However, the evidence indicates that Washita was the only time Custer attacked a “tribal nation” prior to Battle of Little Big Horn in 1876.
[6] The NCAI resolution includes a series of facts that may give evidence of Custer’s character but cannot be considered war crimes. The facts of his demerits at West Point Military Academy, his court-martials, his demotion from general to lieutenant colonel, his politics in campaigning with Andrew Johnson against the Fourteenth Amendment, his alleged sympathy for the Ku Klux Klan and contempt for enforcement of their suppression under the Ku Klux Klan Act during his deployment in Kentucky from 1871–1873 are undisputed facts as alleged in the resolution. Custer was disciplined by his superiors because of violations of the military rules. But none of these allegations relate to his battlefield conduct or constitute, under any definition, war crimes.
[7] A diagram of the engagement is attached as Appendix B. Being a map of the Battle of Washita, originating from the US National Park Service, this map is in the public domain. Retrieved from http://www.nps.gov/archive/waba/map.gif at website of Washita Battlefield National Historic Site, National Park Service.
[8] The term “war crime” was first used after the Franco-Prussian War by jurist Johann Casper Bluntschli. In English, the term arises for the first time in 1906 in International Law: A Treatise by English jurist Lassa Oppenheim. He described that “military forces acting without orders” during wartime constituted “a war crime.” Some historians claim that Francis Lieber, author of Lieber Code, used the term “war crimes” in conversations but he never wrote it down. See Olivia B. Waxman, How the Meaning of ‘War Crimes’ Has Changed—And Why It Will Be Hard to Prosecute Russia for Them, Time On-Line (Apr. 6, 2022). See also Donald Scarinci: ‘Law, Not War’ – The History of War Crimes, N.J. Globe (Oct. 31, 2023). Furthermore, there is no single universal definition of “war crime,” much as there is no single universal definition of “murder” across all jurisdictions. At a minimum, we can count three core elements: an act or omission that is (1) a serious violation of the law of armed conflict; (2) occurring during an “armed conflict” (broadly defined); (3) and which has a “battlefield nexus.” Maurer, supra note 1, at 5.
[9] This phrase sounds like a legal term with a technical meaning, but, as it happens, law of war experts with deep technical expertise have little familiarity with the concept. If the term has a settled meaning, it is a hidden one. Jens D. Ohlin, The Common Law of War, 58 Wm. & Mary L. Rev. 493, 495 (2016).
[10] The First Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was held on August 22, 1864. The treaty was significantly revised and replaced in 1906, 1929, and finally 1949. The Hague Conventions of 1899 and 1907 were a series of international treaties and declarations negotiated at two international peace conferences at The Hague in the Netherlands. See generally Manly O. Hudson, Present Status of the Hague Conventions of 1899 and 1907, 25 Am. J. Int’l Law 1, (2017) (published online by Cambridge University Press).
[11] Oona A. Hathaway et al., What is a War Crime? 44 YALE J. INT'L L. 53, 60 (2019) ("The idea of a 'war crime' was rarely referenced before the mid-twentieth century."). The United States now has its own War Crimes Statute, codified at 18 U.S.C. § 2441. This statute applies only when the alleged perpetrator or victim is a member of the U.S. armed forces or is a U.S. national. But it, too, incorporates categorically “grave breaches” of the Geneva Conventions. It also incorporates by reference violations of certain “Regulations” of the Annex to the 1907 Hague Convention IV, including poisoned weapons, declaring “no quarter,” employing “arms, projectiles, or material calculated to cause unnecessary suffering,” misusing a “flag of truce,” and bombarding undefended towns, villages, and buildings. See Maurer, supra note 1, at 6.
[12] The history of the law of war before the late eighteenth century involves the evolution from unrestrained combat, bloodshed, destruction, and confiscation of property to a system of articulated customary rules and published treatises, designed to limit the brutality and destruction caused by warfare. Paul Finkelman, Francis Lieber and the Modern Law of War, 80 U. Chi. L. Rev. 2071, 2077 (2013). The “just war” tradition held that acts of violence in war were justified only if the wars in which they arose were justified. See generally Jessia Laird & John Fabian Witt, Inventing the War Crime, An Internal Theory, 60 Va. J. Int’l Law 53, 62-64 (2019).
[13] See, e.g., Hugo Grotius, On the Law of War and Peace (Jean Barbeyrac & Richard Tuck eds., 1625) (stating that there is a common law among nations, which is valid for war and in war); Emer de Vattel, The Law Of Nations: Or, Principles Of The Law Of Nature Applied To The Conduct And Affairs Of Nations And Sovereigns (1758).
[14] These works of Grotius and Vattel have been described as “aspirational or admonitory.” Richard Salamon, Occupation Resistance, War-Rebels, and the Lieber Code, Lieber Inst. W.Point (Dec. 3, 2021), https://lieber.westpoint.edu/occupation-resistance-war-rebels-lieber-code.
[15] See The Prize Cases, 67 U.S. 635, 665 (1862), citing Vattel (“it is very evident that the common laws of war — those maxims of humanity, moderation, and honor ought to be observed by both parties” in every civil war).
[16] One of the grievances enumerated in the Declaration of Independence was that King George III "has endeavoured to bring on the inhabitants of our frontiers the merciless Indian Savages whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions." The Declaration of Independence (U.S. 1776). Even before the Constitution, the American government was cognizant of practical questions of Native aggression and the conduct of the government against it. In the Constitution, the states also gave the federal government the power to define and punish “Offenses against the Law of Nations,” an indication, at the birth of the nation, that its founders were familiar with 18th century dialogues on laws governing conduct between warring nations. U.S. Constitution, art. 1, § 8, cl. 9.
[17] Articles of War, 2 Stat. Ch. 20, 359–72 (1806).
[18] Id. art. 32.
[19] Id. art. 33.
[20] Id. art. 54. The question of whether Natives Americans qualified for protection as “inhabitants of the United States” under this provision was, based on my current research, never tested. In addition, the Article contained an exception to this rule if the destruction was “by order of the then commander in chief of the armies of the said states.” Id.
[21] Id. art. 54.
[22] Id. art. 99. My research indicates this broad provision was seldom applied to military conflicts or allegations of rape or sexual assault by American soldiers until the American Civil War. In practice, however, the Army had not viewed this provision as a grant of authority to local officials to try soldiers for acts such as rape, murder, robbery, arson, and assault with intent to kill. See Caldwell v. Parker, 252 U.S. 376, 381-83 (1920). See Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice, 43 STAN. L. REV. 13 (1990). Congress later in the Civil War remedied this problem by providing for military trials for such offenses by soldiers. Act of Mar. 3, 1863, ch. 75, § 30, 12 Stat. 731, 736. Id.
[23] Chomsky, supra note 22, at 63. n.312.
[24] 2 Stat. 20 Art. 101.
[25] Brutal conflicts with Native Americans were a part of American history before the Articles were enacted. The Sullivan raids in western New York in 1779, commissioned by General Washington and predating the Articles, featured savage brutality. In addition, after enactment of the Articles, the wars with Natives east of the Mississippi, including the Trail of Tears in the 1830s, seemed to have progressed without reference to the 1806 Articles and military men like Andrew Jackson behaved accordingly, often with brutal violence. See Finkelman, supra note 12, at 2129 (highlighting that before the Plains Wars, there was a “routine slaughter of American Indians in battle and after they surrender, including by American troops during the Revolution”).
[26] Ohlin, supra note 9, at 510. The defense counsel added regarding the common law of war:
It is, in short, just what the Judge Advocate chooses to make of it. It may create a fictitious crime, and attach to it arbitrary and extreme punishment, and who shall gainsay it? The laws of war-namely, our Articles of War-and the habitual practice and mode of proceeding under them, are familiar to us all; but I know nothing, and never heard or read of a common law of war, as a code or system under which military courts or commissions in this country can take and exercise jurisdiction not given them by express legal enactment or constitutional grant.
[27] The last American tried, convicted, and executed for an “offense against the laws of war” was Confederate Henry Wirz, the commandant of the notorious Confederate prison at Andersonville, Georgia. See Maurer, supra note 1, at 4.
[28] Helen Kinsella, in her analysis of the Code and its application to the Plains Wars, acknowledges: “the legal status of Native peoples was not wholly resolved and ‘no consistent theory ever developed for the ‘legal structuring of the Indian wars’” Kinsella, Settler Empire and the United States: Francis Lieber on the Laws of War, Am. Pol.Sci. Rev. 629, 632 (2023) (citing Sidney Harring, Crow Dog’s Case: American Indian Sovereignty, Tribal Law and United States Law in the 19th Century 16 (Cambridge Press, 1994)).
[29] 21 U.S. 543 (1823).
[30] 30 U.S. (5 Pet.) 1 (1831).
[31] Justice Marshall described the Natives as embodying “the very term "nation," as meaning:
a people distinct from others. The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth.
Id. at 559–60.
[32] Marshall’s acknowledgement of “treaties” as defining the tribes had a marked practicality to it: after all, the new government had negotiated numerous treaties with natives and, unless the Natives had the power to make treaties, the treaties would be unenforceable by either the government or the natives.
[33] 45 U.S. 567 (1846). The Chief Justice wrote: “The native tribes who were found on this continent at the time of its discovery have never been acknowledged or treated as independent nations by the European governments, nor regarded as the owners of the territories they respectively occupied.” Id. at 572. The Supreme Court did not clarify that status of the tribes until United States v. Kagama, 118 U. S. 375 (1885).
[34] Chomsky, supra note 22, at 80. In United States v. Kagama, 118 U. S. 375 (1885), the Court reaffirmed that Natives did not possess any sovereign rights to land in the West, as the fee was in the United States and any occupancy by natives could only be interfered with or determined by the United States. The Supreme Court’s racist conception of the Natives was reiterated when the Court earlier commented in an opinion relating to issues of occupancy by Natives: “it is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.” Beecher v. Wetherby, 95 U.S. 517, 525 (1877).
[35] See Ord. No. 20, HQ Army at Tampico, Feb. 18, 1847, in Military Orders-Mexican War, NARG 94 (Entry 134) (cited in Chomsky, supra note 22, at 63, n. 326). For an analysis of Scott’s order, see Laird & Witt, supra note 12, at 73–79.
[36] Id. By referencing this “unwritten code,” Scott’s order tapped into the “common laws of war” theory that had been articulated by the European theorists. But Scott’s order concedes that while there was a “Code” for the conduct of war, its contours were undefined and subject to the discretion of military authorities in the field.
[37] Id. The phrase “no quarter” during military conflict implies that combatants would not be taken prisoner, but killed. Since the Hague Convention of 1899, giving a “no quarter” order in battle is considered a war crime. The 1899 Convention was compiled, in part, based on the Lieber Code. Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land art. 23(d), July 29, 1899.
[38] In June 1847, the U.S. army in Mexico convened a new military tribunal, authored by Scott, and called the Council of War, designed for cases charging violations of the laws of armed conflict, when due process or other Constitutional protections for an accused were ignored. The Councils of War grew out of preexisting practices among anti-guerrilla detachments in U.S. forces. One anti-guerrilla brigade reported taking a prisoner one day, trying him informally the next, and shooting him the day after in such a way so that “as many Mexicans [could] witness the execution as possible. Laird & Witt, supra note 12, at 76. The “war council” concept was revived in the later Dakota Wars, used frequently in the remainder of the century (including the Lincoln assassination trials) and seems to have persisted to this day. The U.S. Supreme Court unanimously condemned Gen. Winfield Scott’s 1847 military commissions in Mexico a couple of years later in the case of Jecker v. Montgomery, 54 U.S. 13 (1851), proclaiming that “neither the President nor any military officer can establish a court in a conquered country, and authorize it to . . . administer the laws of nations.” Eddlem, Military Commissions Throughout U.S. History, New Am., (Sept. 28, 2011).
[39] The general’s order could apparently convert a non-combatant into a perpetrator, if the individual “belonged to a group of known robbers or murders.” The concept of “group guilt” easily led to the concept of “tribal guilt” that spills into the military’s thinking in the later Dakota Wars and eventually, the Plains Wars as well.
[40] Chomsky notes that many of the potential issues arising under Scott’s order — who might be prosecuted as a “belonging to a party of robbers” or who was a “follower” of the Army protected from guerilla attacks — remain unknown because army records from the Mexican War are incomplete. Chomsky, supra note 21, at 65, n.326.
[41] Laird & Witt, supra note 12, at 76.
[42] Morris Greenspan, The Laws of War: Rules by Warriors for Warriors, 1997 Army Law 4, 8 (Gen. Scott’s order confirmed a commander’s right to convene military tribunals to punish both American soldiers and Mexican combatants, a right previously based solely on custom). The author concluees that Scott’s order is consistent with the historical perspective that the laws of war are “rules of conduct by warriors for warriors.” Id at 13.
[43] See, e.g., Kristen Epps, Quantrill’s Raid on Lawrence, Kan. City Pub. Lib. (last visited Apr. 1, 2024), https://civilwaronthewesternborder.org/encyclopedia/quantrills-raid-lawr; Jeremy Neely, “A Most Cruel and Unjust War:” The Guerrilla Struggle along the Missouri-Kansas Border, Kan. City Pub. Lib. (last visited Apr. 1, 2024), https://civilwaronthewesternborder.org/essay.
[44] H.W. Halleck, International Law; or, Rules Regulating the Intercourse of States in Peace and War 512 (1861). See also Laird & Witt, supra note 12, at 65.
[45] Gideon Hart, Military Commissions and The Lieber Code: Toward a New Understanding of the Jurisdictional Foundations of Military Commissions, 203 Mil. L. Rev. 1, 14 (2010) (Indeed, the [commissions] trials appear to be a legal arm of the war effort and were being used to wage a counterinsurgency effort. As such, these commissions in Missouri are one of the first instances in American history where "lawfare" was actively applied in the field).
[46] Francis Lieber, Guerrilla Parties Considered with Reference to the Laws and Usages of War, Written at the Request of Major-General Henry W. Halleck (1862), reprinted at https://archive.org/details/guerrillaparties00lieb/page/n5/mode/2up.
[47] Lieber, in making this distinction, echoes Vattel, who drew the same distinction between nation state wars and guerillas:
Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority, or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Armies of banditti who range about for plunder, cruises of the buccaneer without commission, in time of peace, and such in general are the depredations of pirates . . . These two species of war, I say, the lawful and illegitimate, are to be carefully distinguished, as the effects and the rights arising from each are very different.
Emer Vattel, Law of Nations, Book III., ch. 4, sec. 67 (1759), cited in People v. McLeod, 25 Wend. 483; 1841 N.Y. LEXIS 240 (N.Y. Sup. Ct. Judicature, 1841). In McLeod, the New York Court added: “Vattel says that those not belonging to the army are not recognized by the usages of war, and if the peasantry mixes in war they are not entitled to the privileges of soldiers but are cut down wherever they are met.” Id. at 48. The Court in McLeod cited Blackstone for the same proposition. Id. at 140.
[48] Lieber Guerillas, supra note 46, at 41.
[49] Lieber Guerillas, supra note 46.
[50] See generally Witt-Code, infra note 63, at 194.
[51] Oppenheim, who published the phrase “war crimes” in English thirty years after Washita, also clarified that “marauders” were not entitled to protection of the laws of warfare and their conduct constituted “criminal acts” that were not sanctioned by the laws of war. L. Oppenheim, supra note 8, at 266–67, cited in Hathaway, supra Note 11, at 61–62. The same distinction is present in the works of Johann Bluntschi’s work, in which he originally coined the term “war crime.” Johann Caspar Bluntschli, Modern International Law of Civilized States as a Legal Code §643(a) (1878), cited in Hathaway, id., n.38.
[52] Lieber may have been careful in drawing this conclusion because it is unclear, based on this author’s research, how the experience of Americans in the Revolutionary War dictated this conclusion. The American colonial army was, presumably in Lieber’s view, an army of war-rebels, as the newly christened nation-state of the United States organized an army to oppose the British empire and fought in a formal military operation. The status of war-rebels also permitted Lieber to envision the Confederate states as a form of nation state that would be obligated to follow the common laws of war and Lieber’s Code. See Carnahan, infra note 71, at 213 (the impact of the Code was that individual Confederates got the privileges of belligerency for humanitarian reasons without recognizing the legitimacy of the Confederate government). The Confederate government soundly reject this invitation to conform to the precepts of the Code. See infra note 64.
[53] One commentator noted that in the 1860s, an entity that was not a fully sovereign states might, in practice, become a lawful belligerent if it actually declared war but unless an actual declaration occurred, the theory of the common law of war dictated that “only sovereign states had the right to wage war.” Roda Mushkat, Who May Wage War? An Examination of the Old/New Question, 2 Am. U. Int’l L. & Pol. 97, 100 (1987).
[54] See generally Chomsky, supra note 22.
[55] Chomsky, in analyzing the Dakota wars, concluded: “the Military Commission nor the reviewing authorities recognized that they were dealing with the aftermath of a war fought with a sovereign nation.” Chomsky, supra note 22, at 90.
[56] See generally Chomsky, supra note 22.
[57] President Lincoln ordered a review of the transcripts with the intention of ordering the execution of only those who had been "proved guilty of violating females." Lincoln indicated that, contrary to his expectations, only two men had been convicted of rape, so he determined to draw the line by executing those who had participated in "massacres," as distinguished from those who had participated in "battles." Chomsky, supra note 22, at 86.
[58] At the time he decided the Dakota question, Lincoln had access to Lieber’s writings on prisoners of war and guerilla warfare and one commentator concludes that it is “likely that Lieber and Lincoln set a new standard for the treatment of Indians that was less brutal than previous behavior.” Finkelman, supra note 12, at 2127.
[59] Lieber was already working on his Code when the executions of the Dakotas occurred and he would, without doubt, have been familiar with the legal issues facing Lincoln in the execution order.
[60] The United States adopted revised Articles of War in August 1861. The new rules cited the 1806 Articles in an appendix. The revised rules are much more detailed and number more than 1300 paragraphs but other than referencing partisans (¶664) and prisoners of war (¶745) the revised rules focused exclusively on the organization and command structure of the military and not its conduct in the field. The revised rules contained one provision that forbad plundering and marauding when committed on the persons or property of those who it was the duty of the army to protect and became a crime of such enormity, as to admit of no remission of the awful punishment which the military law awards against offenses of this nature. ¶787. U.S. War Department, Revised United States Army regulations of 1861: with an appendix containing the changes and laws affecting Army regulations and Articles of War to June 25, 1863 (1863), https://archive.org/details/revisedunitedst00deptgoog (last visited Apr. 1, 2024)
[61] See Finkelman, supra note 12, at 2103. In contrast, Confederate soldiers were treated as “legitimate belligerents” even though Lincoln refused to recognize the Confederacy as an independent sovereign. Chomsky, supra note 22, at 65, n. 328.
[62] George B. McClellan, the Union commander in West Virginia in 1861, had announced that “marauding parties” would be treated according to the “severest rules of military law.” Daniel E. Sutherland, Guerrilla Warfare in Virginia during the Civil War, https://encyclopediavirginia.org/entries/guerrilla-warfare-in-virginia-during-the-civil-war/ (last visited Apr. 1, 2024)
[63] John Fabian Witt, Lincoln’s Code 210-212 (2012) (hereinafter “Witt, Code”). Witt argues that Lincoln concluded that McClellan’s Enlightenment-style war, in which Southerners preserved their land and property (slaves) led to the “failure of Union forces to bring the war nearer to a close” and that only a “total war” approach would achieve the Union’s war objectives.
[64] President Lincoln issued the Lieber Code as Instructions For The Government Of Armies Of The United States In The Field, General Order No. 100, at art. 44 (Apr. 24, 1863) (hereinafter “Lieber Code”) just months after the Dakota executions in Minnesota. The text of the Code can be found in https://avalon.law.yale.edu/19th_century/lieber.asp.
[65] Lieber Code, art. 4. Lieber was no admirer of Emer de Vattel, but Vattel’s Law of Nations was the lodestar of the time and Lieber did not repudiate his theory of public regular war as taking “place between nations or sovereigns . . . carried on in the name of the public power, and by its order.” Well versed in the Marshall (Supreme Court decisions in Worchester, Cherokee Nation and Johnson’s Lease) trilogy, Lieber defined sovereignty (a concept that he thought otherwise troublingly vague) exclusively as international, ascertained solely with “reference” to other sovereign and independent states. See Kinsella, supra note 28, at 634.
[66] Laird and Witt argue that the production of the Lieber Code was the touchstone from which the concept of “war crimes” arose. The “enlightenment model of laws of war dropped the inquiry into who had just cause for war, instead of regulating armed conflict as if both sides were just.” Laird & Witt, supra note 12, at 63. The Code provided a definition of acceptable conduct even during a total war and any deviation or excess beyond the Code’s rules would eventually be considered a “war crime.”
[67] Not surprisingly, the Confederate states ignored the Code. James Seddon, the Confederate Secretary of War, dismissed the Lieber Code as a biased work that condoned "a barbarous system of warfare under the pretext of a military necessity." Chris Jochnick & Roger Normand, The Legitimation of Violence: A Critical History of the Laws of War, 35 Harv. Int'l L.J. 49, 66 (1994). The reaction of the Southern leadership demonstrates the frictions inherent in the War because Lincoln endorsed the Code in part for its aim to protect Black Union soldiers from depredations and re-enslavement when taken as prisoners by the South during the War. The Confederacy apparently embraced a “total war” effort without any of the restrictions proposed by Lieber’s Code.
[68] Jon Meacham, And There Was Light xviii (Random House, 2022).
[69] See Witt, Code, supra note 63, at n. 57. This West-Point-trained-European-style of warfare contrasted with the guerilla approach that evolved early in the War. The guerrilla war began on the Confederate side as a spontaneous reaction to invasion, but Southern leaders considered it a slightly dishonorable way to fight. Jefferson Davis and his chief military advisors had been educated in the nation’s military academies, most notably West Point, where they had learned to think of wars in terms of grand, climactic, Napoleonic-style battles. They associated guerrilla combat not, as did the public, with romantic knights of the American Revolution, but with untutored, even uncivilized, peoples. Daniel Sutherland, Partisans and Guerillas, Essential Civ. War Curriculum, https://www.essentialcivilwarcurriculum.com/partisans-and-guerrillas.html (last visited on Apr. 1, 2023)
[70] Habeas Corpus Suspension Act, 2 Stat. 755 (1863).
[71] How Lieber “knew” what Lincoln needed to succeed in the War can easily be deduced from the circumstances of the development of the Code. Gen. Halleck, who already authored an extensive work on the rules of war and Secretary of War Edwin Stanton, both of whom shared the frustration over the war’s conduct, had requested Lieber’s guidance. The editorial committee of Union generals included the Chair of the War Board Gen. Ethan Hitchcock, Mexican War commander Gen. George Cadwalader, Col. (later general) George Hartstuff, wounded at Antietam and Gen. John Martindale, a veteran of the Peninsula Campaign. Halleck, who was Lincoln’s Army Chief of Staff at the time, also edited the final version of the Code. It is inconceivable that these generals failed to understand that the only route to victory and the survival of the Union were the rules for total war enunciated in the final version of the Code.
[72] Similarly, in the American Civil War, the "predominant purpose" of all federal offensive operations was the political goal of reestablishing U.S. government authority over the states that had seceded from the Union. According to one historian, President Lincoln's role in "shaping a national strategy of unconditional surrender by the Confederacy" was his most important strategic contribution to the Union victory. This national strategy, in turn, gave purpose to "a military strategy of total war." Burrus Carnahan, Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity, 92 A.J. Int’l L. 213, 222 (1998).
[73] Id. at 227. “Historian Mark Grimsley describes this period as marking the end of a war on conciliation and the beginning of a hard war. This shift is seen in many areas, such as the emancipation of slaves, some of the first sieges of and bombardments of major cities, the first major conscription in American history, and the increased argeting of civilian property by northern armies. The Civil War had transformed from a "gentleman's war" involving uniformed armies, to a much harder, more modern war, affecting the entire population. In the words of contemporary newspapers, the "Kid Gloves" had been abandoned and Union armies had begun to "wage war in downright, deadly earnest." Hart, supra note 45, at 28–29, citing Mark Grimsley, The Hard Hand of War 67–151 (1995).
[74] Witt describes the Code as “a weapon for the achievement of Union war aims, like the Springfield rifle, the mini ball and the ironclad ship.” Witt, Code, at iv.
[75] In one respect, whatever effect the Code had on the conduct of the Civil War, it had an enormous impact on the manner in which many future wars were fought. Robert Fabrikant, The Lieber Code, Lincoln, and Emancipation During the Civil War: Review of John Fabian Witt's Lincoln's Code: The Laws of War in American, 59 How. L.J. 149, 156 (2015).
[76] In reaching this conclusion, Lieber may have borrowed a sentiment from the Supreme Court decision in The Prize Cases. There, the majority opinion, issued a month before Lieber’s Code, stated:
The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure or destruction of his property, is a necessary result of a state of war. Money and wealth, the products of agriculture and commerce, are said to be the sinews of war, and as necessary in its conduct as numbers and physical force. Hence it is that the laws of war recognize the right of a belligerent to cut these sinews of the power of the enemy by capturing his property on the high seas.
The Prize Cases, 67 U. S. 635, 672 (1862).
[77] Lieber Code, supra note 64, art 15. In Article 101, the Code indicates: “deception in war is admitted as a just and necessary means of hostility and is consistent with honorable warfare.”
[78] Carnahan concludes that this portion of the Code was designed by Lieber to “be broad enough to include President Lincon’s standard for military emancipation – a necessity indispensable to the maintenance of government.” Carnahan, supra note 72, at 216.
[79] Carnahan, supra note 72, at 217.
[80] Lieber Code, supra note 64, art. 16. The Code added: military necessity “admits of deception but disclaims acts of perfidy.” The Code leaves the fine line between these two concepts to the apparent discretion of the deceiving party — most likely the aggressor and seemingly sanctions “deception” whenever “necessary” to the end of the war.
[81] Id. art. 17
[82] Lieber Code, Article 19 suggests that, whenever possible, commanders should inform the enemy of their intent to attack and give noncombatants a chance to escape before the attack begins, though the next statement says that surprise is sometimes a military necessity and "it is no infraction of the common law of war to omit thus to inform the enemy."
[83] Id. art. 28. Lieber added: “retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution.” Lieber also warned: “Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages.”
[84] Id. art. 27. See Lieber Letter to Sen. Charles Sumner, 1865, cited in Kinsella, supra note 28, at 635. In the cited letter, Lieber concludes revenge is merely cruelty to “counter cruelty.”
[85] Lieber Code Article 101 states that "deception in war . . . is consistent with honorable warfare" and that the common law of war permits "capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is difficult to guard against them."
[86] See David Clinton, Tocqueville, Lieber and the Bagehot: Liberalism Confronts the World (Palgrave MacMillian, New York), cited in Kinsella, supra note 27 at 636. Kinsella continues: “Remember, for Lieber retaliation remains lawful even if it punishes those who are neither charged nor found guilty. Retaliation is collective and preventative . . . Moreover, he continues, retaliation expressly includes “measure[s] of defense and repression in which the opposite party is treated as a unit … [the] very character [of which is] the innocent or comparatively innocent suffer by it.” Thus, if you “only kill the guilty” it is not retaliation.” Id.
[87] Lieber Code, supra note 64, art. 37.
[88] Id. art. 44.
[89] Id. art. 47.
[90] Finkelman notes that the Code must be seen as part of an “evolving law of war that Lieber helped create in 1861 and 1862 when he wrote about guerilla warfare and the treatment of captured Confederates.” Finkelman, supra note 12, at 2100.
[91] Lieber Code, supra note 64, art. 52.
[92] Id. art. 82.
[93] Id. art. 84.
[94] Id. art. 156. As one commentator noted: “The Code defined both combatants and non-combatants as enemies. Because non-combatants were enemies, the Code included them in the general sufferings of war. According to General Orders No. 100, the enemy was not solely the infantryman across the field, but the enemy was also the farming family who supported the soldier from the home front. To save the country, the Union had to defeat both.” Alexander Mindrup, The Lieber Code: A Historical Analysis of the Context and Drafting of General Orders No. 100, 1 Cardinal Edge 27, (2021).
[95] Kinsella, in her criticism of the Code and its objectives, never discusses the pressing reality of the timing of Lieber’s Code and the status of the Union war effort. In actuality, the Union army needed rules to drive a war of surrender forward and to protect legitimate combatants. Kinsella is correct that Code “rarely acknowledged” Natives warriors as “properly organized as soldiers” and, as a consequence, “resulted in a hierarchy of lawfulness with the effect of denying protections to Native belligerents” creating “disastrous consequences for the status and treatment of Native peoples.” Kinsella, supra note 28, at 635. She never analyzes in detail the guerilla tactics that often-characterized Native conduct in the Plains Wars and what was required to neutralize the guerillas. As one commentator noted, the argument that the Lieber Code led to more brutal treatment of Natives would require evidence that the treatment of American Indians by whites after the promulgation of the Lieber Code was demonstrably worse than before and further evidence that had it not been for Lieber Code, the treatment of American Indians would have been better in the late 19th century than it was. Finkelman, in his analysis, suggests that this argument “is easily rebutted by evidence from the colonial and revolutionary period [that] demonstrates that the brutality of Indian wars before the Civil War was surely as bad, and probably much worse, than anything after the Civil War.” Finkelman, supra note 12, at 2129–30.
[96] Lieber’s “short war” theory was not new. Nicolai Machiavelli "called for wars that were ‘short and strong.’” Clausewitz, the greatest of all war theorists, argued: "War is thus an act of force to compel our enemy to do our will." And armies must render the enemy powerless; and that, in theory, is the true aim of warfare." In 1855, just a half decade before the Civil War began Professor Bernard, at Oxford, argued that intense warfare would "make the calamity shorter at the cost of making it fiercer and more terrible." Finkelman, supra note 12, at 2096. But, as an antidote to this heavy-handed approach to war, the Lieber Code asserted that nations could ban some weapons or tactics - such as the use of poison, intentionally harming "the inoffensive citizen of the hostile country," or retaliation for the purpose of revenge. Id. Lincoln, eventually, shared the same view. Id. at 2101.
[97] Finkelman, supra note 12, at 2096.
[98] See John Fabian Witt, Lieber at Sand Creek: A New Critical Reinterpretation of the Laws of War, Just Sec. (Mar. 3, 2023) (hereinafter “Witt, Sand Creek”). Witt notes that Lieber “thought of Native ways of war as the paradigmatic forms of lawlessness, irrational combat which it was the mission of international law to eradicate.” Id.
[99] Emancipation and the arming of 200,000 Black soldiers gave Lincoln and his administration powerful reasons to formally transform the laws of war. Emancipation produced a distinctive crisis for the United States’ theretofore long-standing pro-slavery approach to the laws of war. Emancipation also yielded a series of practical controversies around the combatant privileges of Black soldiers, the legal status Black prisoners of war, and the prospect of Black uprisings behind Confederate lines. The Lincoln War Department was deeply concerned about the treatment of prisoners of war, the disposition of civilian (non-slave) property, and maintaining discipline in the army. Finally, beyond slavery the administration was deeply concerned about the treatment of captured Black soldiers and the behavior of its army - and the Confederate army - towards civilians. Finkelman, supra, note 12, at 2121–24.
[100] Witt, Sand Creek, supra note 98. As further evidence of Lieber’s anti-slavery intentions, in June 1862 — about a month before Lincoln began to draft the Emancipation Proclamation — Lieber provided Attorney General Edward Bates with a memorandum (which was published in newspapers) explaining why it was permissible, under the laws of war, to free slaves who entered U.S. Army lines. Lieber asserted a slave became free when he "presented himself to our troops as coming from the enemy and claiming our protection." Finkelman, supra note 12, at 2083
[101] Witt, Sand Creek, supra note 98 (“Warfare between the United States and Native peoples required no formal remaking of the laws of war either before, during, or after the war, in large part because the existing regime so effectively supported the settler colonial project.”)
[102] In her analysis of the Lieber Code and its application to the Plains War, Kinsella focuses on the fact that Natives tribes were denied sovereign status to benefit from the restrictions on war contained in the Code. Kinsella, supra note 28, at 638–39. However, in this author’s view, the decisive factor in the Plains Wars was not whether the native tribes were sovereign. The critical fact was that the depredations by Natives in the West were the result of guerilla warfare tactics by bands of Natives outside the tribal control. Even if the Native tribes were accorded sovereign status, the guerilla tactics of small bands of Natives — as exemplified in the attacks on the Solomon/Saline Rivers just before Washita — would have justified, in the minds of the Army, the total war tactics that the Army eventually deployed.
[103] Kinsella, supra note 28, at 633.
[104] The criticism that the Lieber Code was ethnocentric and European in origin and perhaps only designed for warfare between nation states is, in this author’s judgment, accurate but it does not solve the issue of whether the conduct of Custer in the West was a war crime. Lieber envisioned that both sides of an international dispute would subscribe to the Code and enforce it among its officer corps and troops, a move that made the Code a reliable method of resolving disputes with respect to prisoners, wounded troops, private property, and other military consequences. The broader questions is whether Custer or anyone in the Army during the Plains Wars could engage in conduct that might be considered under any definition a “war crime,” if the opposite combatants — or some significant number of their fellow Natives — never endorsed the Code (or perhaps even knew of the Code) that restricted wartime behavior by all combatants. Without the restrictions of the Code, such as they were, the military would fall back to unrestricted extraordinarily brutal warfare that characterized the pre-Civil War campaigns of Jackson and others. See generally Finkelman, supra note 12.
[105] The Lieber Code did not prevent these atrocities in the West during the Plains wars (although it may very well have prevented more atrocities from happening in the aftermath of the Civil War), but the Lieber Code certainly did not condone them or lead to them. Finkelman, supra note 12, at 2129–30.
[106] Robert M. Utley, Cavalier in Buckskin, George Armstrong Custer and The Western Military Frontier 64 (Okla. Press 1988).
[107] Jerome A. Greene, Washita: The U.S. Army and the Southern Cheyennes, 1869-1869 40 (Ok. Press 2004). In researching this article, the author has relied on the accounts of Greene in his book and the work of Stand Hoig in his book, The Battle of Washita, The Sheridan-Custer Indian Campaign of 1867–69 (U. Nebraska Press 1976) (hereinafter Hoig).
[108] Utley, supra note 106, at 77 (Indians fought as individuals, each pursuing his own aims and instincts, not as organized disciplined bodies obedient to the orders of a leader).
[109] Greene details that Black kettle, “because of his continued stance for peace” actually “commanded little authority in wider Cheyenne circles and had become an object of ridicule among other Cheyennes.” Greene, supra note 107, at 15, 267 (citing Samuel Tappen’s Papers).
[110] Lorraine Boissoneault, How the 1867 Medicine Lodge Treaty Changed the Plains Indian Tribes Forever, Smithsonian Mag., (Oct. 23, 2017) (quoting Carolyn Gilman, a senior exhibit developer at the National Museum of the American Indian). As one officer present at the signing of the treaty later commented: “The treaty all amounts to nothing, and we will certainly have another war sooner or later with the Cheyenne, at least, and probably with the other Indians, in consequence of misunderstanding of the terms of present and previous treaties.” Washita Battlefield, Nat’l Park Serv., https://www.nps.gov/waba/learn/historyculture/november-1867.htm#:~:text=November%2012th%2C%201867&text=The%20treaty%20all%20amounts%20to,of%20present%20and%20previous%20treaties.” (last visited Apr. 1, 2024).
[111] The language of the treaty was not symmetrical: the language referring to white men simply said that “any wrong by a white against an Indian” would trigger deliverance of the wrong doer to the government. The Indian reference included the word “depredation,” conveying a sense that the Natives could be accused of conduct that was somehow more than just a wrong. The term seems to have been designed to capture within the Treaty provisions that type of guerilla warfare practiced by the Cheyenne and Arapaho younger warriors during the period from 1867–1869. But, as noted in the earlier commentary on the prosecution of the Lincoln assassins, either term —“wrong” or “depredation” — would ultimately be defined solely by the military in the war councils or other military tribunals. Id. The “deliverance” obligation in the language in this treaty was similar to the treaty language analyzed by the Supreme Court in Ex Parte Crow Dog, 109 U.S. 556, 563 (1883).
[112] Angela Tudico, Medicine Lodge Creek Treaty on View at NMAI, Nat’l Archives, https://www.archives.gov/news/articles/medicine-lodge-creek-treaty-on-view (last visited Apr. 1, 2023).
[113] In the research for this article, the author could find no historical evidence that either the Army or the Cheyenne had “delivered” anyone to the government for prosecution under these provisions of the treaty in 1868 before Washita. The warning about “turn over” of Natives by their chiefs was longstanding in the Plains. In 1866, Gen. Winfield Scott Hancock had demanded that warriors who had committed killings before the councils at Fort Zarah be turned over or face attack by the military. Greene, supra note 107, at 31.
[114] The inclusion of the prosecution language in the Treaty raises issues of what procedure such prosecutions would entail. If Natives were “delivered,” presumably the prosecution would follow the “councils of war” format utilized to prosecute Natives in the Dakota War, despite its lack of any procedural due process. Army personnel would be subject, presumably to court-martial. But how convictions could be rendered against alleged Native wrongdoers when, because of the “take no prisoners” raiding by Natives, there would be no one to testify in support of any conviction is uncertain, at best. Language hurdles and the lack of assistance of counsel would be formidable barriers to any fair result. Read in that fashion, the “delivery” portion of the Treaty was a hollow gesture by the government treaty makers and, given the warrior culture of the younger Natives and the absence of a chief’s control, this language appears to be solely designed to make the Native signatories into almost instant violators of the treaty.
[115] Greene, supra note 107, at 58.
[116] Id. at 68.
[117] Id.
[118] The Dog Soldiers were a Cheyenne “military society” and Hoig describes that the “Dog Soldiers and the Sioux were rdiding the prairies of western Kansas like angry horntets” and adds the “ineptness of Custer[and the remainder of the Army] in finding them and striking them [during the year before Washita]”only increased the contempt of the Indians for the Army.” Hoig, supra 107, at 5, 20. Greene concludes that the depredations against settlers in the Southern Plains before Washita were committed “by Dog Soldiers and members of military societies in the scattered bands of Cheyennes.” Greene, supra note 107, at 35.
[119] Id. at 40.
[120] Id. at 41.
[121] Id. at 107.
[122] Not all the Chiefs followers shared his sentiments. Young men in particular favored war and some had helped make the trail northward that Custer discovered. Like all the other bands camped on the Washita, Black Kettle's band could not be characterized according to the white people’s simplistic labels of peaceful or hostile. The Indians were neither, and they were both. Utley, supra note 106, at 64.
[123] Transcript of Interview with Little Rock by Agent Wynkoop, August 19, 1868, contained in Hoig, supra note 102, at 48–50. Wynkoop, who later charged Custer with a massacre at Washita, asked Little Rock: “You tell me your nation wants peace, will you, in accordance with your treaty stipulations deliver up the men whom you have named as being leaders of the party who committed the outrages.” Little Rock said he would ask the chiefs to deliver the responsible men, but Wynkoop answered: “I consider the whole party guilty“ Id. Little Rock’s comments mirrored those of Black Kettle in his discussion with Hazen at Fort Supply. Both chiefs exhibited the frustration of peace-minded chiefs unable to curtail the warriors in their respective tribes. Wynkoop, who later described Washita as a massacre, nonetheless projected the “collective guilt of the tribe” approach that characterized Army officials from top to bottom.
[124] Kinsella claims that the root of “retaliation” against a “group” derives from Lieber’s theories, arguing that “for Lieber retaliation remains lawful even if it punishes those who are neither charged nor found guilty. Retaliation is collective and preventive.” Kinsella, supra note 28, at 636.
[125] Greene, supra note 107, at 48. Greene describes Sherman as intending to set an example and urge killing enough natives to inspire the others to stay on the reservation and keep the peace. Id. at 32.
[126] Sherman’s army bombarded Atlanta in 1864 and even targeted homes of Confederate families. Witt, Code, supra note 63, at 250–51. The pattern of destruction of civilian property, indiscriminate bombing and general spreading of terror were part of Sherman’s March to the Sea. Jochnick & Norman, supra note 67, at 66, citing Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts 209 (1983).
[127] William T. Sherman, Special Field Orders No. 120 (Nov. 9, 1864), https://cwnc.omeka.chass.ncsu.edu/items/show/145 (visited on Mar. 9, 2024)
[128] Witt, Code, supra note 63, at 337.
[129] Id. at 337.
[130] Id. at 337–38.
[131] Kinsella, in her critique of the Code’s application to the Native Wars, acknowledges that this “form of military organization was alien to Natives peoples” which meant that “lawful belligerent status was rarely acknowledged” and denied “protections to Native belligerents.” Kinsella, supra note 28, at 635. It is undisputed that the Natives, during the wars on the Southern Plains that Custer fought, were not organized as armies, and did not conduct warfare like Lieber envisioned government-sponsored armies did.
[132] Witt refers to another Army commander who argued, well after the Native Wars, “that anyone who actually read Lieber’s Code would understand that the laws of war endorsed retaliation against savages.” Witt, Code, supra note 63, at 337.
[133] Kinsella only briefly considers Lieber’s pamphlet on guerilla warfare. She argues that the work reflected a “fragile and indeterminate distinction among Natives and Civil War practices” and that the distinction between regular war and guerilla warfare lacked “coherence.” Kinsella, supra note 28, at 632. Her analysis glosses over the guerilla nature of the Native warriors’ tactics that Custer and Sheridan encountered in the fall of 1868. Even if the Southern Plains tribes were sovereign “nation-states” in the eyes of the American legal system, the raids conducted in 1868 before Washita were never considered aspects of a nation state’s combat to benefit from the rules of war in Lieber’s Code.
[134] Louise Barnett, Touched by Fire 196, n. 44 (1996) (when Indians were attacked [by other tribes], it was not uncommon for them to kill their captives).
[135] Lieber’s Code held that “squads of men who commit hostilities . . . by raids of any kind” and “who do so with intermitting returns to their homes or avocations, or with the occasional assumption of the semblance of peaceful pursuits” should be treated as “highway robbers or pirates” and were not entitled to the “privileges of prisoners of war.” Lieber Code, supra note 64, art. 82. This Article by its terms applies to guerilla fighters in the Civil War and the Natives in the Plains Wars.
[136] Patrick Donahoe & John Spencer, A Status Check on the Army’s Preparation for the Next War, Modern War Instit. (July 6, 2021), ttps://mwi.westpoint.edu/a-status-check-on-the-armys-preparation-for-the-next-war/ (visited December 5, 2023) (there is an aphorism that generals always fight the last war, and armies consequently spend the time between conflicts training how to fight better under conditions they most recently experienced. The implication is that military forces often fail to focus on the enemy they should be preparing for—the ones they are most likely to fight in the future).
[137] Edgar Stewart, Custer’s Luck 163 (1955).
[138] Chomsky, supra, note 23, at 88. Natives also avoided casualties in offensive actions and would withdraw if faced with superior forces. Stephen Ambrose, Crazy Horse and Custer: The Parallel Lives of Two American Warriors 11–12 (1996).
[139] At Sand Creek, a force of Colorado volunteers slaughtered more than 150 Cheyenne and Arapaho Natives, including women and children in November 1864. In the Fetterman Fight in December 1866, more than 70 soldiers and civilians were killed and mutilated by Natives. Shannon Smith, New Perspectives on the Fetterman Fight, WyoHistory (2014), https://www.wyohistory.org/encyclopedia/new-perspectives-fetterman-fight.
[140] Chomsky, supra note 23, at 88, n. 465. Chomsky cites a series of sources for this conclusion, See, e.g., Robert Wooster, The Military and United States Indian Policy 1865–1903, at 137–38, 141–42, 208–09 (1988) (U.S. army often violated traditional rules of warfare in fighting with Indians; Indian women and children were frequent targets); Don Higginbotham, The Early American Way of War: Reconnaissance and Appraisal, 44 Wm. & Mary Q. 230, 230–34 (1987) (reviewing work concluding that American wars were fought with a "strategy of annihilation," particularly in conflicts with Indians).
[141] In one analysis, the Plains Wars were neither solely the product of U.S. encroachment on native lands nor the result of Native American aggression; rather, they were fueled in large measure by both sides’ understanding of military action as a legitimate means of securing policy goals. Indians typically sought to engage in battle only when conditions seemed most favorable to success with minimal losses. Robert Wooster, Plains Wars, Encyc. Britannica (Nov. 9, 2023), https://www.britannica.com/event/Plains-Wars.
[142] Greene, supra note 107, at 107 (Sheridan, in a letter to the Governor of Kansas, said he wanted to “chastise” the Natives, which could only be accomplished by “killing as many as we can, by destroying their stock, hanging the ring leaders and by making them poor”).
[143] Id. at 61.
[144] Hoig, supra at note 107, at 109–10.
[145] Treaty with the Cheyenne and Arapaho, 1867, https://cdm17279.contentdm.oclc.org/digital/collection/kapplers/id/29718/rec/1 (noting that this is the Medicine Lodge Treaty executed by Black Kettle in October 1867). The Treaty was to be ratified by three-quarters of adult male Natives, but it was never so ratified. Id. art. 12.
[146] Greene, supra, note 107, at 104 et seq.
[147] Id.
[148] Id. at 105.
[149] The purpose of this article is not to examine the underlying justification for such conduct. The Native argument that the United States was invading their ancestral lands, hunting grounds and lands long held sacred by Native Americans cannot be denied. The Natives attempts to thwart the settlers in the West can be easily understood in that context. The United States “extermination” policy, present in the words of General Sherman, is difficult to justify as a moral matter. Treaties struck with Natives were forgotten in the haste of westward expansion, which can easily be interpreted to conclude that the Natives had no alternative but to make settlers fear any incursions into Native land. Under these circumstances, atrocities occurred because both sides concluded that only total warfare and the terror that accompanies it was a rational response to what was occurring in the West.
[150] See Greene’s description of Lt. Elliott’s discovery of the trail. Greene, supra note 107, at 118.
[151] The three days of attacks at the Solomon/Saline Rivers were described as “brutal strikes at white settlements” and involved over 200 warriors, according to the Army’s estimates. Hoig, supra note 107, at 46.
[152] Hoig, supra note 107, at 147.
[153] Sherman had long harbored contempt for the Cheyenne, writing his brother Senator John Sherman, in 1866: “They must be exterminated for they cannot and will not settle down and our people will force us to do it.” Greene, supra note 107, at 31, quoting W.T. Sherman letter to Sen. John Sherman (Dec. 30, 1866).
[154] See Hoig, supra note 107, at 82.
[155] Hoig, supra note 101, at 94. Black Kettle apparently in return to the Washita and the day before the attack convened a meeting of the elders to discuss the possible surrender to Sheridan, as Hazen had advised. The elders dismissed the idea of white men on the march in the snowy winter. James Donovan, A Terrible Glory, Custer and The Little Big Horn 126 (2009).
[156] Col. Elliot described the trail as one featuring 100–150 Natives which was only a day old. Hoig, supra note 101, at 11. Later accounts after the battle indicate that the trail which Custer followed was a result of a Cheyenne-Arapaho war party that killed and scalped white men. Id. at 147. There were later accounts from native witnesses that the trail was created by a “Cheyenne-Arapaho war party returning from the raid in Kansas” and Gen. Sheridan later claimed that mail, mules, and photographs found at the camp were “taken in raids along the Solomon and the Saline.” Id. at 147. Utley indicates that troopers, during the raid, produced photographed albums, unopened mail and other household items that testified to the romps of Black Kettle’s young men to the Kansas settlements. Utley, supra note 106, at 69.
[157] Other sources suggest that bands from Black Kettle’s tribe had participated in the raids on the Solomon and Saline rivers. Donovan, supra note 155, at 441, n. 72. Black Kettle’s innocent Cheyenee women and children paid a steep price for being in the camp with the warriors when Custer attacked.
[158] See supra note 123.
[159] Jospeh Porter, Crazy Horse, Lakota Leadership and the Fort Laramie Treaty, cited in Legacy, New Perspectives on the Battle of Little Big Horn 55 (Montana Press, 1996).
[160] Id. While these observations related to the Lakota war that led to Little Big Horn, they are equally applicable to the Cheyenne fight in 1868.
[161] As one author noted, Custer accomplished what other field commanders had failed to do in two summers on the plains — he had located a hostile village. Jeffry Wert, Custer: The Controversial Life of George Armstrong Custer 279 (Simon & Schuster 1996).
[162] Lieber Code, supra note 64, arts. 15 & 19.
[163] Nathaniel Philbrick, Custer’s Last Stand 138 (2011).
[164] Laird & Witt, supra note 12, at 33.
[165] Porter, infra note 159, at 55 n.39, citing John G. Bourke, quoted in Joseph Porter, Paper Medicine Man: John Gregory Bourke and his American West 28 (Univ. of Okl. Press 1986).
[166] Utley describes Custer’s decision for a surprise attack:
The hardest task in Indian warfare was catching the Indians, not defeating them once caught. Given the chance, Indians would almost always flee, especially if their families were threatened. They rarely fought unless clearly favored to win, and even then, not if casualties seemed likely. For the soldiers, victory, even battle, thus depended upon surprise . . . Custer did not allow prudence to jeopardize surprise.
Utley, supra note 106, at 76.
[167] Greene, supra note 107, at 112
[168] By interjecting this phrase, Lieber was making the warning of attack a matter of a commander’s discretion, surely knowing, based on his own war experience, that foregoing surprise would often jeopardize any military venture.
[169] Lieber Code, supra note 77, art. 19.
[170] Washita was not the only time that Custer launched an attack on Natives without knowing the extent of forces that might be arrayed against him. His similar decision at Little Big Horn cost him his life and the lives of his company.
[171] Although Custer was unware of the nearby tribes camped on the Washita at the time of his attack, in fact, there were substatial tribes downstream from the battle site that would eventually pose a realistic threat to his troops and lead Custer to conclude that his position, after the attack, was by no means secure and a counterattack “was all but inevitable.” Greene, supra note 107, at 123.
[172] Philbrick, supra note 163, at 136.
[173] Hoig, supra note 107, at 128. Greene states that Custer shot the Native in the head before he could get off a shot. Greene, supra note 107, at 128.
[174] Philbrick, supra note 163, at 134; Greene, supra note 107, at 117.
[175] Chomsky, supra note 21, at 88.
[176] Id.
[177] Greene, supra note 107, at 126; Hoig, supra note 107, at 133 et seq.
[178] Wert, supra note 161, at 275.
[179] Greene, supra note 107, at 119.
[180] For a detailed description of the short (10-minute) fight, see Hoig, supra note 107, at 128–35; Greene, supra note 107, at 116–121.
[181] Id. at 120.
[182] In his book, Terrible Glory, Donovan cites an order that Custer gave to Capt. Myles Keogh in May 1867, more than a year before Washita that spells out his disdain for Natives: “You will without regard to age sex or condition kill all Indians you may encounter” and he added: “It is not proposed to burden your commands of prisoners.” Donovan, supra note 155, at 413, n. 78.
[183] George Custer, My Life on the Plains 336–40 (1872).
[184] While Clark corroborated that Custer gave this order, there is no evidence when he gave the order and whether the battle was largely concluded when it was issued by Custer to Clark. There is also no evidence of its timely communication to the other officials in the Seventh Cavalry.
[185] Greene, supra note 107, at 120.
[186] Custer acknowledged in the “excitement of the fight, as well as in self-defense, some of the squaws and a few children . . . were killed and wounded.” Id. at 189.
[187] Hoig, supra note 107, at 131; Greene, supra note 107, at 131.
[188] Stephen Ambrose claimed that the Cheyenne held two white captives whom they killed when the troops overran the village and so “now no one could accuse Custer of attacking innocent Indians of being like Chivington at Sand Creek.” Ambrose, supra note 138, at 318; Donovan, supra note 155, at 168; Paul Andrew Hutton, Custer Reader 96 (U. of Neb. Press, 1992) (“The battle, although a sad and tragic affair, does not deserve the harsh epithet of massacre.”).
[189] Utley describes the moral challenge involved in the deaths of non-combatants at Washita:
The Washita typified a reality of Indian warfare that all frontier commanders had to face, straining their public image and, for most, inducing personal stress through shaken moral codes. Total war subjected women, children and old people to death or cruel suffering. Surprise attack on an Indian village, centerpiece of the strategy pf total war, inevitably struck down noncombatants. Women and children were killed at the Washita, rarely deliberately except by Indian scouts, but accidentally in the tumult of combat in self-defense. The destruction of property, food and transportation followed by weeks of fearful flight to avoid the soldiers, forced women and children to endure terrible hardship. Most officers, including Custer, lamented such measures but believe them a necessary evil.
Utley, supra note 106, at 77.
[190] Greene, supra note 107, at 126–27.
[191] Hoig, supra note 107, at 131.
[192] Hoig describes that a woman’s body was cut open. Hoig, supra note 101, at 131. He also describes the scalping of Natives by the Osage and even by a trooper. Id. at 133.
[193] Custer, supra note 183, at 369.
[194] Hoig, supra note 107, at 133.
[195] See Lieber Code, supra note 64, art. 27.
[196] According to the scout Ben Clark much of the killing of women and children lay with the Osage who “shot down the women and mutilated their bodies cutting off their arms legs and breasts with knives. Greene, supra note 107, at 120.
[197] Greene, without citation, simply states: “As a matter of policy throughout the field any wounded warriors discovered by the soldiers were promptly shot to death.” Id. at 120. Greene later notes that the Scout Ben Clark confirmed that “all warriors who lay wounded in the village — no matter the extent of their injuries — were summarily executed by the soldiers in the very discriminating manner.” Id. at 190.
[198] Greene, supra note 107, at 243 n. 12 (citing James Foley, Walter Camp & Ben Clark, 10 The Rsch. Rev.: The J. of the Little Big Horn Assocs., 17, 17–27 (1996).
[199] The controversy over the extent of casualties at Washita remains. Custer’s estimates were undercut by interviews with other participants. Donovan estimates averaged approximately twenty warriors, sixteen women, and ten children killed. In Donovan’s words, Custer’s estimate was a typical case of the inflated body count so common in U.S. Army reports. Donovan, supra note 155, at 278 n. 76.
[200] After the Saline/Solomon River raids, the Army considered both the Cheyenne and the Arapahoe “confederated” and hence, for both tribes, their “young warriors are on the war path.” Supr. Murphy to Mix (Sept. 29, 1868), cited in Hoig, supra note 107, at 58 n. 26.
[201] Lieber Code, supra note 64, art. 60.
[202] The Southern Plains wars did not see widespread surrenders prior to Washita. The Dakota tribes surrendered in 1862, but that resulted in disastrous consequences for the tribe.
[203] Lieber Code, supra note 64, art. 60.
[204] Lieber’s Code permitted the capture of “every enemy of importance to the hostile government or of peculiar danger to the captor.” Id. art. 15. The women and children captured by Custer were certainly “important” to the remaining Natives gathered around Washita after the battle and, given the experience of women and younger men challenging his troops during the fight, Custer could consider his captives as posing a “peculiar danger” to his command.
[205] Importantly, as noted earlier, Hazen, while discussing peace with Black Kettle indicated that he could not offer the Cheyenne terms for a surrender, and he further advised Black Kettle that troops — Custer’s Cavalry detachment — were in the field. Hoig, supra note 107, at 94.
[206] Lieber Code, supra note 64, art. 15.
[207] Custer, supra note 183, at 356.
[208] Id. at 351.
[209] Id. at 356.
[210] Article 15 of the Code allows “all destruction of property, and obstruction of the ways and channels of traffic, travel.” The killing of the herd — the most valuable weapon for the raiding tribesmen — fits within that allowance.
[211] The destruction of the herd had collateral practical consequences to the surviving Natives. They lost their most important buffalo hunting tool, and the loss impacted their tribal mobility in the future.
[212] Hoig, supra note 101, at 137–38.
[213] Utley, supra note 106, at 69.
[214] Id. at 75. The reference to “Sailor’s Creek” refers to one of the last battles in the Civil war in April 1865 when the Union army, including Sheridan and Custer, decimated the retreating remnants of the Confederate forces in northern Virginia, just prior to the surrender at Appomattox.
[215] Lieber Code, supra note 64, art. 17.
[216] Custer’s own description of Monahseetah seems alive to the possibility of a liaison. He recounts her physical appearance and “bright cherry face” and adding she appeared to be in the Cheyenne “aristocracy.” Custer, supra note 183, at 415–17.
[217] Greene, supra note 107, at 169.
[218] Benteen’s distaste for Custer is well documented and several commentators discount his version of Custer’s relationship with the Cheyenne woman. Id. at 169. Greene, in assessing the allegations, concludes that allegations of the liaison “cannot be ignored.” Id. Utley claims there is “more substantial evidence” to support the liaison. Utley, supra note 106, at 107.
[219] Philbrick, supra note 163, at 139.
[220] See generally Crystal Feimster, Opinion, Rape and Justice in the Civil War , N.Y. Times (Apr. 25, 2013).
[221] Id.
[222] During the Civil war, Union Major General McDowell issued General Orders No. 12, which stated that, “The punishment for rape will be death; and any violence offered a female, white or colored, with the evident intent or purpose to commit a rape, will be considered as one, and punished accordingly.” Id.
[223] Richard Salomon, Occupation Resistance, War-Rebels, and the Lieber Code, Lieber Inst. (Dec. 3, 2021), https://lieber.westpoint.edu/occupation-resistance-war-rebels-lieber-code/ (noting that private violence including rape was clearly prohibited).
[224] At least one commentator notes that Custer’s liaison with Monahseetah was “common in Cheyenne oral history.” Utley, supra note 105 at 107. See also Michael Elliott, Custerology: The Enduring Legacy of the Indian Wars and George Armstrong Custer 142–43 n.3 (2007) (describing the relationship as well-documented).
[225] Greene in his notes to this controversy states: “some secondary writers however have since elaborated on the basic information without providing supporting evidence for their claims.” Greene, supra note 107, at 253 n. 14. Author Stephen Ambrose, “More nonsense has been said, written and believed about [Custer] than any other Army officer” and added it [the liaison with Monahseetah} “is now firmly established as one of the elements in the Custer myth.” John Koster, Squaring Custer’s Triangle, HistoryNet (Mar. 27, 2018), https://www.historynet.com/squaring-custers-triangle/ (quoting Ambrose, supra note 130, at 128). In contrast, other commentators conclude that ample evidence supports the conclusion that she was Custer’s mistress during the winter of 1868 and the spring of 1869. Larry McMurtry, Custer 71–72 (Simon & Schuster, 2012).
[226] Custer had an encounter with Lakota tribesmen along the Yellowstone River in 1873 but there were no significant casualties on either side.
[227] Utley notes that Custer, in attacking at Washita, “was doomed to fight Indians with the techniques of conventional warfare” even though Indian warfare was unconventional warfare.” The Army’s answer on the Plains “was not more innovative than the ‘total war’” concepts of Sheridan and Sherman that “simply imported the Shenandoah and March to the Sea to the Great Plains.” Utley concludes that “total war prevailed often enough, as at Washita, to inhibit any creative thought.” Utley, supra note 106, at 206.
[228] Even if Custer’s conduct is judged by the 21st Century definition of “war crime,” the same general analysis applies because his conduct during the attack does not constitute “a serious violation of the law of armed conflict,” under the Lieber Code, as extant in 1868. See Maurer, supra note 1, at 5.
[229] Oppenheim, who coined the phrase “war crimes” in English, clarified that “marauders” were not entitled to protection of the laws of warfare and their conduct constituted “criminal acts” that were not sanctioned by the laws of war. L. Oppenheim, supra note 8, at 266–67, cited in Hathaway, supra note 8, at 61–62.
[230] Custer’s actions at Washita we praised by his military superviors. The unseasonable attack shocked and demoralized the southern Plains tribes. No longer could they depend on winter hideouts for safety. Donovan, supra note 155, at 66. In the same season, Custer brought several hostile tribes under the Army’s jurisdiction and an uneasy peace prevailed on the Southern Plains. Ambrose, supra note 138, at 324. The praise was no universal. The attack at Washita was condemned, right from the start, by Eastern refrormers who described Cuter’s conduct as an “inhumane slaughter.” See Dippe, Custer the Indian Fighter, in Hutton, supra note 188, 107–08.
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Originally published on the Michigan State Law Review Online Forum