As already reported in a prior post, the U.S. Senate on January 24th adopted modest reforms to its filibuster rule, and the initial reactions were mixed. Here are some additional reactions.
The Majority and Minority Leaders
The brokers of the actual reforms–Democratic Senator Harry Reid, the Majority Leader, and Republican Senator Mitch McConnell, the Minority Leader–issued statements afterwards.
Senator Reid said the reforms are “steps towards ending gridlock in the Senate, and making this body a more efficient place while still respecting the rights of the minority. Americans of all political stripes can agree that Washington is not working the way it should. We were elected to get things done for the middle class – not waste time with endless stalling tactics that cause even bills with broad bipartisan support to languish for weeks. These reforms will allow us to deal with legislation in a more timely fashion, and weaken the ability of those who seek to obstruct for obstruction’s sake”
Reid added, “If these reforms do not do enough to end the gridlock here in Washington, we will consider doing more in the future.”
McConnell, on the other hand, emphasized that the bipartisan compromise package ” avoided the nuclear option, and . . . [retained the rule] that any changes to the Standing Rules of the Senate still require 67 [two-thirds] votes.” He also expressed home “the Senate can return to the way it used to operate and that all of us will be able to participate more fully in the legislative process.”
Leaders for Stronger Reforms
Senator Jeff Merkley, one of the leaders for stronger reforms, recognized that the Senate as a whole had declared “the paralysis of the Senate is unacceptable.” The adopted reforms, he said, “are modest, and don’t address the core problem of the secret, silent filibuster, but they do include some important elements, providing flexibility on the motion to proceed and speeding up the confirmation process on nominations.”
“If these modest steps do not end the paralysis the Senate currently suffers,” Merkley added,” many Senators are determined to revisit this debate and explore stronger remedies,” and he would keep working to that end. “We have a responsibility to address the big issues facing our country. I’ll keep working with my colleagues to achieve that goal.”
In an interview, Merkley reiterated his commitment to pressing for additional reform if nothing much changes in this session of the Congress.
The other leader for stronger reforms was Senator Tom Udall of New Mexico. He said that although the adopted reforms were “not as strong what many of us have been advocating,” they did alter “the way we deal with nominations, conference committees and motions to proceed — all things I’ve been working toward.” Udall, therefore, was “supporting . . . [the] efforts to get a bipartisan agreement today,” but would “continue to fight for the stronger filibuster reforms my colleagues and I believe will make the Senate a more accountable institution.”
Udall also emphasized that the external infrastructure for Senate reform would continue and remain vigilant and ready to push for more action later if necessary.
I hope that these limited changes will make the Senate more functional.
But I am skeptical.
For example, in this new session of Congress Republicans are delaying a Judiciary Committee hearing on the President’s nomination of a very able lawyer to be a circuit court judge. The purported justification is their demand for information about the Government’s settlement of a case in which he had a minor role.
Another example is the limited changes’ failure to alter the filibuster rule for high-level presidential appointments. This week an appellate court held that President Obama violated the Constitution by making several recess appointments to the National Labor Board, which otherwise were subject to Senate confirmation, when the Senate was not really open for business, but rather in Potemkin Village illusions of sessions. According to the New York Times, this Republican senatorial practice and the court’s decision demonstrate how the Democrats’ “timidity” on reforming the filibuster rule “is being used against them.”
On January 24, 2013, the U.S. Senate adopted a bipartisan modest two-part reform of its filibuster rule. Both were adopted by over two-thirds of those voting and thereby complying with another part of its rules requiring a two-thirds vote to amend the rules.
This bipartisan reform package was brokered by Majority Leader, Democratic Senator Harry Reid of Nevada, and the Minority Leader, Republican Senator Mitch McConnell of Kentucky.
The reform has two parts.
By a 78-16 vote, the Senate adopted the first part of the package. For only the two years of this session of Congress and by standing order only, the minority Republicans will have the right to make a minimum number of amendments during floor debate, but their ability to use filibusters to prevent debate on legislation will be limited. This part also will limit dilatory tactics on lower-tiered judicial and executive branch nominees.
The second part of the reform package was a permanent amendment to the Senate rules to allow prompt scheduling of legislation where there is a bipartisan consensus for passage and limit stalling tactics to prevent Senate conferees from meeting with their House counterparts to resolve differences in competing bills. This part was adopted by a vote of 86-9. 
This bipartisan reform eliminated the possibility of the Democratic Senators using the so called “constitutional” or “nuclear” option of changing the rules by a simple majority vote.
Reactions to the Reform
Thursday night President Obama immediately released a statement saying he was pleased the Senate had taken action to move routine measures along. He observed that in his last State of the Union address, he had “urged Congress to take steps to fix the way they do business. Specifically, I asked them to address the fact that a simple majority is no longer enough to pass anything – even routine business – through the Senate,”
The President continued, “At a time when we face critical decisions on a whole range of issues – from preventing further gun violence, to reforming our broken immigration system, to getting our fiscal house in order and creating good paying jobs – we cannot afford unnecessary obstruction.”
President Obama also noted that the reforms “are a positive step towards a fairer and more efficient system of considering district court nominees, and I urge the Senate to treat all of my judicial nominees in the same spirit.”
Washington political commentators suggest the following reasons for the adoption of these modest reform measures, rather than the “speaking filibuster” proposal led by Senators Jeff Markey and Tom Udall:
very few citizens care about the filibuster and its reform, and the activists who did were not effective in rallying public opinion;
virtually no individual senator– especially the Majority Leader Harry Reid–wants the Senate to be like the House of Representatives which operates by simple majority rule;
the current Majority Leader and other Democratic senators are pragmatists and realize that in the future, perhaps as early as 2015, they could be in the minority and do not want the Republican majority to ram things through by a simple majority vote;
the “talking filibuster” alternative option advanced by Senators Merkley and Tom Udall was seen by many as an ineffective idea; and
partial bipartisan reform now may lead to more reform later.
Senator Tom Harkin, Democrat of Iowa and a sponsor of one of the motions to amend the filibuster rule, on the other hand, was very disappointed in this result. He said that he previously had warned President Obama that if there were no serious reform of the filibuster rule, Obama “might as well take a four-year vacation.”
Senator Merkley, one of the leaders for the speaking filibuster proposal, said he was “disappointed with the package but noted the ‘growing momentum’ toward Senate reforms.” He “also vowed to continue pushing filibuster reforms if the Senate returns to its clogged, unproductive state of the past two years.”
The activists for reform were equally disappointed. The leader of the Progressive Change Campaign Committee said, “This is a bad decision based on fear–a decision that will ultimately hurt millions of people who would have been helped by progressive bills that the Republicans are sure to filibuster.” The political director of CREDO opined, “It looks like Senator Reid got fooled again, but sadly it’s the American people who are going to pay the price.” Another citizen reformer noted, “It changes nothing on how we move forward.” Fix the Senate Now, a coalition for reform, said it was a “missed opportunity.”
 The first part of the reform was Senate Resolution 15, and its text and 76-16 roll call are found at Cong. Rec. S272 (Jan. 24, 2013).
 The second part of the reform was Senate Resolution 16, and its text and 86-9 roll call are found at Cong. Rec. S274 (Jan. 24, 2013).
 Senator Harkin’s proposal for amending the filibuster rule was defeated as was a proposed amendment to the rules offered by Senator Mike Lee (Republican of Utah). (Cong. Rec. S271 (Jan. 24, 2013).) The reform proposals offered on January 3, 2013 by Senators Tom Udall, Merkley and Lautenberg were not brought to a vote. In his remarks on the floor, Senator Carl Levin entered into the record what he described as a lengthy rebuttal of the claim that the Senate had the constitutional power to change its rules by a simple majority vote.
Yesterday was supposed to have been the day when the U.S. Senate would decide whether and how to reform its rules regarding the filibuster. However, it did not happen. Decision was postponed again.
The apparent reason for the delay is the desire of Senate Majority Leader, Harry Reid (Democat of Nevada), to continue discussions about a possible bipartisan, compromise reform package with Senate Minority Leader, Mitch McConnell (Republican of Kentucky).
Manu Raju of Politico reports that the two Senators met yesterday morning on this issue. The exact details of their discussions are still unknown.
But Reid apparently is pressing to eliminate filibusters preventing debate on legislation from even starting, from entering talks with the House of Representatives and from voting on certain presidential nominations, particularly district court judicial nominees. Reid also is reported to be considering requiring 41 senators to vote to sustain a filibuster, a subtle shift from the current practice that requires 60 votes to break the stalling tactic. This proposal would shift the burden on the opposing party and force the opponents to ensure all their votes are present.
McConnell, on the other hand, apparently wants to ensure that the minority has a guaranteed number of amendments if the majority chooses to speed debate. Previously Senators Carl Levin (Democrat of Michigan) and John McCain (Republican of Arizona) were leaders of a small group suggesting the minority be able to offer at least two amendments while preventing them from filibustering in a handful of situations.
After yesterday’s Senate Democratic caucus luncheon, Reid said that having the Senate decide the filibuster reform issues would be postponed 24 to 36 hours in order to allow the two leaders to continue their discussions.
However, Reid added in his public statement that if the Republicans still did not agree on this bipartisan proposal in that time period, Reid would proceed with adopting a reform measure with the so called “constitutional” or “nuclear” option whereby a simple majority of the Senate (at least 51 of the 100 Senators and all Democrats and Independents).
Yesterday afternoon Reid recessed the chamber, rather than adjourning, in order to extend the first legislative day of the session and thereby extend the time to use the “constitutional” or “nuclear” option.
In the meantime, the New York Times reiterated its editorial support for reform. It complained that over the last six years, there has been “an unprecedented abuse of the filibuster by Republicans, who have used the practice to hold up nominees high and low and require a supermajority for virtually every bill.” The newspaper also lamented that the Democrats appeared to be considering “only a few half-measures” and instead should also abolish the so called “silent filibuster.”
The Times said, “Supermajorities were never intended to be a routine legislative barrier; they should be reserved for the most momentous bills, and the best way to make that happen is to require that objectors work hard for their filibuster, assembling a like-minded coalition and being forthright about their concerns rather than hiding in the shadows or holding up a bill with an e-mailed note.”
As explained in prior posts, I agree with the Times, except I would go further and abolish the filibuster altogether.
As discussed in a prior post, I favor the adoption of a constitutional amendment to eliminate the Electoral College for the election of our President and Vice President and instead to have direct election of those offices by national popular vote. But that amendment has not been adopted. Thus, we are stuck with the Electoral College for the presidential election in 2016 and thereafter.
In anticipation of 2016 the Republican Party is concocting a flimflam scheme to rig the Electoral College so that a Republican candidate could be elected president even though he or she was a clear loser in the national popular vote.
This scheme is being organized by the Republican State Leadership Committee and its Redistricting Majority Project, or REDMAP.
In states whose legislatures are controlled by Republicans, but whose voters favored President Obama in 2012, Republican legislators and party officials are developing legislation to allocate those states’ presidential electoral votes by congressional districts. Those districts already have been gerrymandered by those same Republican-controlled state legislatures to favor Republican congressional candidates. As a result of this gerrymandering, Republicans now have a 33-seat majority in the House of Representatives even though Democratic candidates for Congress collectively got 1.1 million more votes than their Republican opponents in the 2012 election.
The result of such changes, if adopted, would be to reduce the Electoral College votes of a Democratic Party presidential candidate who had the most popular votes in such states and in the nation as a whole. Under some scenarios, it could even result in the election of a Republican presidential candidate who lost the national popular vote.
The lesson for Democrats, liberals, progressives as well as those who believe in the principles of democracy: be vigilant. Identify any such efforts in your states. Publicly oppose those measures. Lobby for state legislative opposition to them.
On December 11, 1946, the United Nations General Assembly in its first session unanimously adopted a resolution affirming that “genocide is a crime under international law which the civilized world condemns” and requesting the U.N. Economic and Social Council “to undertake the necessary studies, with a view to drawing up a draft convention [treaty] on the crime of genocide.”
Thereafter that Council established a U.N. Committee on Genocide to prepare a draft of such a treaty. The draft that subsequently was approved by that Committee and other U.N. agencies had been prepared at the U.S. Department of State by a U.S. diplomat, John Maktos, who also served as the Chair of the U.N. Committee.
On December 9, 1948, by unanimous action of the U.N. General Assembly that draft was adopted as the Genocide Convention. Two days later (December 11th) President Harry Truman signed the treaty on behalf of the United States.
Six months later (June 16, 1949) President Truman transmitted the treaty to the U.S. Senate and requested its advice and consent to ratification. In his transmittal message, President Truman said the General Assembly’s approval of the treaty was “one of the important achievements” of its first session and that the U.S. had played “a leading part” in that accomplishment. The Senate’s approval would demonstrate that the U.S. was “prepared to take effective action on its part to contribute to the establishment of principles of law and justice.”
Such Senate action, however, did not happen until early 1986, and it was not ratified by the U.S. until late 1988 or nearly 40 years after its adoption by the U.N. General Assembly and its signature by the U.S.
Here are some of the highlights or lowlights of the Genocide Convention’s journey to U.S. ratification.
In January and February of 1950 a subcommittee of the Senate Foreign Relations Committee held hearings on the treaty and favorably reported it to the full Committee in May 1950. The full Committee, however, took no action on the treaty, and it did not reach the Senate floor. For the next 20 years the treaty apparently gathered dust in the files of the Foreign Relations Committee.
That changed on February 19, 1970, when President Richard Nixon reiterated a presidential request for Senate advice and consent to ratification. His message to the Senate stated that the U.S. had “played a leading role in the negotiation” of the treaty and that “ratification at this time . . . would be in the national interest” of the U.S. and would demonstrate “our country’s desire to participate in the building of international order based on law and justice.”
In response to President Nixon’s request, the Senate Foreign Relations Committee in 1970 held hearings on the treaty and favorably reported the treaty to the entire Senate. The latter, however, took no action.
The Foreign Relations Committee did the same in 1971, 1973, 1976 and 1978, but it was not until February 19, 1986, that the Senate voted, 83 to 11, to give its advice and consent to such ratification. It did so with two reservations that required specific U.S. consent for the submission of any dispute involving the treaty to the International Court of Justice and that stated the supremacy of the U.S. Constitution over any of the treaty’s provisions. The Senate also imposed five understandings limiting the meaning of certain parts of the treaty. Finally the Senate declared that the instrument of U.S. ratification could not be deposited until after the U.S. adopted implementing legislation required by Article V of the treaty.
That implementing legislation was adopted on November 4, 1988, with President Ronald Reagan’s signature of the Genocide Implementation Act of 1987, 18 U.S.C. § 1091. That statue makes genocide a crime for offenses committed within the U.S. or by U.S. nationals. The statute imposes punishment of life imprisonment and a fine of not more than $1 million or both for genocide by killing; imprisonment up to 20 years or a fine of not more than $1 million or both for other acts of genocide; and imprisonment up to five years or a fine up to $500,000 or both for incitement of genocide. There is no statute of limitations for these crimes.
When President Reagan signed the statute, he made a public statement that by this signing the U.S. would “bear witness to the past and learn from its awful example, and to make sure that we’re not condemned to relive its crimes. . . . During the Second World War, mankind witnessed the most heinous of crimes: the Holocaust.” Reagan added that he was “delighted to fulfill the promise made by Harry Truman to all the peoples of the world, and especially the Jewish people. I remember what the Holocaust meant to me as I watched the films of the death camps after the Nazi defeat in World War II. Slavs, Gypsies, and others died in the fires, as well. And we’ve seen other horrors this century — in the Ukraine, in Cambodia, in Ethiopia. They only renew our rage and righteous fury, and make this moment all the more significant for me and all Americans.”
Reagan concluded by saying that the “timing of the enactment is particularly fitting, for we’re commemorating a week of remembrance of the Kristallnacht, the infamous ‘night of broken glass,’ which occurred 50 years ago on November 9, 1938. That night, Nazis in Germany and Austria conducted a pogrom against the Jewish people. By the morning of November 10th, scores of Jews were dead, hundreds bleeding, shops and homes in ruins, and synagogues defiled and debased. And that was the night that began the Holocaust, the night that should have alerted the world of the gruesome design of the Final Solution.”
On November 25, 1988 (three weeks after the adoption of that federal statute), President Ronald Reagan deposited notice of U.S. ratification with the U.N. Secretary-General. This constitutes the actual act of ratification.
The 40 year delay between U.S. signing and ratification apparently was the result of many factors. Many Senators were hostile to approving any treaty that might be deemed to infringe on U.S. sovereignty. Some were concerned, especially during the Korean War and the Vietnam War, that U.S. officials might come under frivolous accusations of genocide. Others worried that if the U.S. ratified, it would be obligated to send military forces to distant countries to enforce it. Others felt the Convention’s definition of genocide was unclear. The American Bar Association opposed it through 1977. Some Southern Senators were concerned that genocide charges might result from the region’s history of segregation, lynching, and Ku Klux Klan activities. In addition, although the treaty was not retroactive, some feared it would be used to define the nineteenth century U.S. treatment of Native Americans as genocide.
The Genocide Convention went into force on January 12, 1951, after 20 states had ratified or acceded to the treaty. Today 142 states are parties thereto.
This tale of the belated U.S. ratification of an important multilateral human rights treaty shows the complexity of the negotiation and adoption of such treaties and of their ratification by the U.S. There is a similar history of the U.S. ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
 See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Fran Newman, International Human Rights: Law, Policy, and Process at 139-40 (4th ed. LexisNexis 2009).
 In January and February 1974 the Senate debated the treaty, but there were insufficient votes to stop debate and proceed to vote on the treaty itself.
 I have not had the opportunity to research the original historical record regarding the U.S. and this treaty during these years. I ask anyone who has knowledge of the details of this record, to share that knowledge with a comment to this post.
 In accordance with Article 20 of the Vienna Convention on the Law of Treaties, 12 states thereafter objected to or commented unfavorably on the U.S. reservation regarding the supremacy of the U.S. Constitution while three states objected to the U.S. reservation regarding submission of disputes to the International Court of Justice.
 Perhaps a more complete analysis of the historical record on the ratification of this treaty can be found in Lawrence LeBlanc, The United States and the Genocide Convention (Durham, NC; Duke Univ. Press 1991). Again I ask anyone who has knowledge of the details of this record, to share that knowledge with a comment to this post.
Some members of Congress, governors, mayors and over 1,000 political activists have created a group called “No Labels” to mobilize support for efforts to reduce or eliminate the dysfuntionality of the federal government.
Led by former Republican Governor Jon Huntsman of Utah and Democratic Senator Joe Manchin of West Virginia, it is working to bring our political leaders and parties together to forge solutions to our nation’s problems. No Labels promotes its politics of problem solving in three ways: by organizing citizens across America, providing a space for legislators who want to solve problems to convene and by pushing for common-sense reforms to make our government work.
One of the action plans of No Labels is called Make Congress Work with the following 12 proposals:
No Budget, No Pay. If Congress does not timely pass a budget and annual spending bills, then they should not get paid.
Up or Down Votes on Presidential Appointments. All presidential nominations should be confirmed or rejected within 90 days of submission to the Senate.
Fix the Filibuster. Change the Senate rules to require real filibusters and eliminate them on motions to proceed to consider proposed legislation and other matters.
Empower the Sensible Majority. Allow a bipartisan majority to override a leader or committee chair’s refusal to bring a bill to the floor.
Make Members Come to Work. Make members work three five-day weeks in Washington per month with one week in their home districts.
Question Time for the President. Provide for the President monthly to provide members an opportunity to question the President and to debate their ideas.
Fiscal Report to Congress. A non-partisan leader should deliver an annual in-person televised fiscal report to a joint session of Congress to provide one set of facts relevant to fiscal policy.
No Outside Pledges. Members of Congress should only take the Oath of Allegiance and the Oath of Office.
Monthly Bipartisan Gatherings. Each house should have monthly, off-the-record bipartisan gatherings to discuss current issues.
Bipartisan Seating. At all joint sessions or meetings of Congress, every member should sit beside at least one person from the opposing party.
Bipartisan Leadership Committee. Congressional party leaders should have a bipartisan committee to meet and discuss legislative agendas and solutions.
No Negative Campaigns Against Incumbents. Incumbents should not conduct negative campaigns against other incumbents.
The group’s website provides interactive petitions to support these measures. I have signed them and urge you to do the same.
Points 2 and 3 of this action plan relate to reforming the Senate’s filibuster rule, which has been discussed in prior posts.
On January 22nd the Senate will turn to the filibuster issue.
This week three of the Senators pushing for such reform are reiterating their campaign for signing a petition supporting their efforts.
In addition, one of groups working for such reform, the Communications Workers of America labor union, is launching a cable television advertising campaign calling on the Senate to eliminate the silent filibuster and implement “common sense” rules reforms. The union also will have interactive online advertising to highlight how the silent filibuster may block issues such as immigration reform, climate change and job creation. These ads will culminate in an online petition for such reform.
Meanwhile, Jonathan Bernstein, a political commentator, agrees with me that requiring a talking filibuster will not really solve much. Such a reform, he says, is addressed at improving the transparency and accountability for filibusters. The real problem is that filibusters or the threats of same are used at every possible opportunity, so that 60 votes are needed to do anything, and the talking filibuster proposal does not address that problem. Instead, supermajority voting is the problem that needs to be addressed by reform.
Skepticism about the merits of the current proposed reforms of the filibuster rule is also voiced by two former secretaries of the Senate. They argue that the real problem is the increasing inability of the minority party in the body to offer amendments to bills under consideration and their resulting use of the filibuster to protest such exclusion and to prevent consideration of the measures. Instead the former secretaries of the Senate suggest that it adopt a standing order for only this session of the Congress allowing the minority party the opportunity to offer one to three relevant amendments to a bill or other measure. This right would be controlled by the minority leader or his or her designee, with the subject matter of these proposed amendments be disclosed, in writing, as soon as the bill becomes the pending business. After the session is concluded the efficacy of this change could be evaluated before adopting it or something else as a standing rule of the Senate.
On Friday, January 11th, Majority Leader Harry Reid reportedly told a Nevada television station that the Senate was unlikely to pass a radical revision of its filibuster rule.
The Minnesota Twin Cities of Minneapolis and St. Paul recently adopted resolutions declaring that the U.S.-Dakota War of 1862 was “genocide.”
Minneapolis did so on December 14, 2012. Unanimously introduced and adopted, the City Council’s resolution commenced by stating that the War “led to the mass execution of 38 Dakota, the largest in the history of the United States, and the genocide of the Dakota people.” The resolution also said, “Indigenous women, children and elderly were held in a concentration camp at the base of Fort Snelling, separated from the men, before being exiled to reservations in neighboring states and Canada, and later being stripped of their culture and traditions in boarding schools and subjected to white culture and religions.”
With these factual predicates, the Minneapolis resolution declared that:
“every effort must be made to ensure that the Dakota perspective is presented during the year 2012-2013, through discussions at forums, events, symposia, conferences and workshops, to include the complex issues listed above;”
“the City of Minneapolis works to promote the well-being and growth of the American Indian community, including Dakota People;”
“these efforts during the years 2012 and 2013 will mark the beginning of future dialogues and efforts to rectify the wrongs that were perpetrated during, and since, the year 1862, a tragic and traumatic event for the Dakota People of Minnesota;” and
“the year 2012-2013 is hereby designated “The Year of the Dakota: Remembering, Honoring, and Truth-Telling,” from December 26, 2012 to December 26, 2013.”
St. Paul joined its sister city on January 9, 2013, with a nearly identical resolution by its city council. It labeled the War as the start of “the genocide of the Dakota people” that included holding them after the war “in a concentration camp at the base of Fort Snelling.” This resolution declared 2013 as “the Year of the Dakota.
In addition, the St. Paul resolution directed “the City of Saint Paul and its Parks and Recreation Department . . . [to] work with the Dakota Bdote Restoration Consortium to identify, name, and interpret sacred Native American sites at and nearby the sacred Bdote from the confluence of the Mississippi and Minnesota rivers to Mounds Park; including listing, mapping, identifying Dakota site names in the Great River Passage Plan, and participating in on-going collaborative research to further describe, dually name, publicize, and interpret significant Dakota sites in the Great River Passage Park Implementation;”
Afterwards these resolutions were praised by some. Chris Mato Nunpa, a retired professor and Dakota advocate from Granite Falls, said, “What I regard as significant and important is that key terms were used … I really am elated and excited I have lived long enough to see something like this happen here.”
Others were critical of calling the War “genocide” of the Dakota people. State Representative Dean Urdahl, a longtime history teacher whose ancestors were involved in the war and who has introduced resolutions urging Congress to repeal the Dakota Exclusion Act, said he did not think “the terms genocide and concentration camp accurately portray what it was without further explanation. Horrible things happened, but it wasn’t completely one-sided.”
Although I am sympathetic to the intent of these resolutions, it has to be noted that in 1862 “genocide” was not a concept or a defined crime in U.S. or international law.
The word itself was created in 1944 by Raphael Lemkin, a Polish lawyer, in his work Axis Rule in Occupied Europe. It became a legal concept after World War II with the 1948 adoption of the Convention on the Prevention and Punishment of the Crime of Genocide. Thus, there never has been, and never could have been, any official adjudication with the attendant due process protections that any individuals or governmental agencies in 1862 were guilty of the crime of genocide.
If that Convention or treaty had been in effect in 1862, then there are several candidates for prosecution for such a crime.
First, as already mentioned in an earlier post, then Minnesota Governor Alexander Ramsey in a public speech to the Minnesota Legislature in September 1862 proclaimed: “The Sioux Indians of Minnesota must beexterminated or driven forever beyond the borders of the State. . . . They must be regarded and treated as outlaws. If any shall escape extinction, the wretched remnant must be driven beyond our borders and our frontier garrisoned with a force sufficient to forever prevent their return.” (Emphasis added.)
Today this statement would be a crime under Article III (c) of the Genocide Convention as a “[d]irect and public incitement to commit genocide,” which is defined, in part, in Article II (a) of that treaty as “killing members of [an ethnical or racial] group” with “intent to destroy, in whole or in part, [the group].”
Second, as discussed in another prior post, during the War, U.S. General John Pope, who was in charge of ending the uprising, said his purpose was “to utterly exterminate the Sioux [Dakota]. They are to be treated as maniacs and wild beasts.” (Emphasis added.) The next year the federal government offered a bounty of $25 per scalp for every Dakota Indian found in Minnesota.
This statement and action would be a basis for charges of the crime of “incitement to commit genocide” against General Pope and the U.S. federal government albeit only human beings, not legal entities, are subject to criminal liability under this treaty.
Third, other possible hypothetical charges under Article III of this treaty would be against individuals (conceivably both white and Dakota people) for acts of “genocide,” “conspiracy to commit genocide,” “complicity in genocide” and “attempt[s] to commit genocide.” For this broader purpose, “genocide” is defined, in part, in Article II of that treaty as committing any of the following acts with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group:”
(a) “Killing members of the group;”
(b) “Causing serious bodily or mental harm to members of the group;”
(c) “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”
The key issue in any such hypothetical case would be whether the individuals acted with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” (Emphasis added.)