Personal Reflections on the U.S.-Dakota War of 1862

When I moved to Minnesota at age 30 in 1970, I had no knowledge of the U.S.-Dakota War of 1862 or the execution by hanging of some of the Indian leaders of that war. I had not grown up in the State and had not been exposed to its history, and although I had majored in history in college and had studied U.S. history, the War was not covered.

BannerUS-Dakotawar

By the time I went to church on October 7, 2012, I was aware that during the U.S. Civil War there had been a short war with the Indians in Minnesota and that subsequently some of the Indian leaders were hanged in Mankato, Minnesota. That was the sum total of my knowledge of these events.

Westminster Presbyterian Church
Westminster Presbyterian Church

The moving worship service that day at Minneapolis’ Westminster Presbyterian Church was devoted to remembering that War and its aftermath, especially its impact on the Dakota people. The beautiful Indian music and the sermons by Westminster’s Senior Minister, Rev. Dr. Timothy Hart-Andersen, and by Jim Bear Jacobs made me realize that the War and the executions of the Indian leaders were important events that had lasting effects to this day at least upon the Dakota people and Native Americans more generally.

I immediately wanted to share this moving and beautiful worship service with others by writing a blog post about it. I soon realized that there was so much to say about the service itself that I would have to break it up into three posts. I also realized that I needed to know more about the War and about the commemoration this year of the 150th anniversary of the War. This lead to my researching and writing separate posts on these subjects and another about the contemporaneous reaction to the War by my second great-grandfather, Rev. Charles E. Brown.

Minnesota Governor Alexander Ramsey
Minnesota Governor Alexander Ramsey
General John Pope
General John Pope

The additional research turned up the September 1862 exhortation by Minnesota Governor Alexander Ramsey for “extermination” of the Dakota Indians. The same disgusting clamor also was made that year by U.S. General John Pope, who was in charge of ending the uprising. Pope said his purpose was “to utterly exterminate the Sioux [Dakota]. They are to be treated as maniacs and wild beasts.” The next year the federal government offered a bounty of $25 per scalp for every Dakota Indian found in Minnesota.

The evident anger and fear of the white settlers perhaps are akin to that experienced by the American people after the attacks of September 11, 2001. Nevertheless, as noted in a prior post, these public incitements, if made today, would constitute one form of the crime of genocide under international law.

The impact of the War on Native Americans is only one of the many ways in which what has become the dominant culture of the U.S. has denigrated Native Americans. The result is high incidences of public school drop-outs, alcoholism and suicide among Native Americans. All of this reminded me of the testimony in the Minneapolis school desegregation case by a Native American educator who said he was a “well-balanced schizophrenic,” i.e., he had one foot in Native culture and the other in the dominant culture.

Louise Erdrich
Louise Erdrich

RoundHouseAnother insight into Native culture was provided by my recent reading of Louise Erdrich’s The Round House, which was awarded the 2012 National Book Prize for fiction. One of the central events in the novel is the violent rape of a Native woman by a white man on an Indian reservation in North Dakota in 1988, and the resulting legal problem as to whether the federal or Native American courts had jurisdiction to investigate and prosecute the crime.

In an Afterword, Erdrich, who lives in Minneapolis not far from my home, cites a 2009 Amnesty International report that points out that 1 in 3 Native women will be raped in her lifetime, that 86% of such rapes and sexual assaults are by non-Native men and that few are ever prosecuted.

The novel also discusses something I never learned in law school or in 35 years of practicing law. In Johnson v. McIntosh, 21 U.S. 543 (1823), the U.S. Supreme Court, in an opinion by Chief Justice John Marshall, stated that radical title to U.S. land was obtained by European powers upon their “discovery” of the land and that the U.S. government inherited such title upon the adoption of the Declaration of Independence in 1776. In this context, “tribes of Indians inhabiting this country were fierce savages.”

Two other U.S. Supreme Court cases were also mentioned in the novel as bearing on the jurisdictional issue presented by the fictional rape. In Worcester v. Georgia, 31 U.S. 515 (1832), Chief Justice John Marshall for the Court decided that the federal government had the sole right of dealing with the Indian nations in North America. Nearly 1.5 centuries later the Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), determined that Indian tribal courts did not have inherent criminal jurisdiction to try and to punish non-Indians and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.

This research, thinking and writing prompted further reflection on the subject of memory and the October 7th Scripture—Numbers 15: 37-41:

  • “The Lord said to Moses: Speak to the Israelites, and tell them to make fringes on the corners of their garments throughout their generations and to put a blue cord on the fringe at each corner. You have the fringe so that, when you see it, you will remember all the commandments of the Lord and do them, and not follow the lust of your own heart and your own eyes. So you shall remember and do all my commandments, and you shall be holy to your God. I am the Lord your God, who brought you out of the land of Egypt, to be your God: I am the Lord your God.”

God understands that we humans are forgetful and that individuals and especially groups of people need reminders of important things. Indeed, constant, physical reminders like fringes on the corners of your garments are useful because of our forgetfulness and our sinfulness. Similarly many Christians wear necklaces and pins with crosses for the same reason and to proclaim that they are Christians.

Such practices and the re-telling of important stories also help educate the omnipresent newcomers to the faith or the history. They help to keep the faith or history alive. That certainly happened at the October 7th worship service and at the Minnesota History Center’s exhibit about the War and the other events to commemorate the 150th anniversary of the War.

For the same reasons the various ways in which Salvadoran Archbishop Oscar Romero is remembered are important. So too the Holocaust museums in Washington, D.C. and around the world help us remember the horrors of the Nazi persecution of the Jews.

At the same time, my reaction to the October 7th Westminster worship service suggests another phenomenon. Memory can be asymmetrical. Most white Anglo-Saxons like myself have or had no memory or understanding of the U.S.-Dakota War. For the Dakota people and Native Americans generally, on the other hand, the War and the executions of the Dakota 38 is an ever-present, painful memory. Thus, this worship service and the events commemorating the War are especially important ways of trying to break through the ignorance of the dominant culture.[1]

My reactions to this worship service also help me understand that the third-part of the Westminster worship service—Responding to the Word—does not end when you leave the sanctuary after the service. It should continue in how you live your life and how you continue to think about and probe the meaning of the Word that day. My contemplation of this worship service and the Word will continue beyond this posting.


[1] A recent article discussed this asymmetrical phenomenon in the context of an individual’s new love for another person. It said that human beings are prone to “hedonic adaptation, a measurable and innate capacity to become habituated or inured to most life changes” and that “[h]edonic adaptation is most likely when positive experiences  are  involved . . . . We’re inclined–psychologically and physiologically–to take positive experiences for granted.”

The Impact of the Minneapolis Public Schools Desegregation/Integration Litigation on Native American Children

A prior post reviewed the Minneapolis Public Schools (MPS) desegregation/integration litigation from 1971 through 1977 while another post looked at that case from 1978 through 1983.

During this entire period the MPS had significant numbers of African-American and Native American students, and the U.S. District Court in Minneapolis attempted to recognize the different interests of these two groups by its May 1975 adoption of a two-tier formula for determining compliance with the court’s order for the desegregation/integration of the schools. At that time the court modified its order to require that no school could have more than 42% total minority enrollment and no more than 35% of a single minority group.

The issue of the impact of the court’s orders on Native American students came to the forefront in May 1978 in connection with a MPS semiannual report to the court requesting approval of a variance of up to 60% total minority enrollment for schools with heavy concentrations of Native American students.

Such a variance had been sought by Native American parents so that their children would not be forced to leave the new Andersen Elementary School in the southern part of the city, and a group of those parents appeared as amici curiae (friends of the court) in connection with the court hearing on that MPS semiannual report. Their attorney, Larry Leventhal, raised the legal argument that the 14th amendment’s equal protection clause did not prohibit such a variance because of the U.S. Supreme Court’s recognition that Native Americans have a unique status in U.S. law derived from their tribal quasi-sovereignty.

As part of the MPS evidence supporting this variance, I put on the witness stand a MPS employee who was responsible for creating curricular materials that featured contemporary Native Americans who were successful in the broader culture. He was of Ogibwe heritage and testified to his being “a well-balanced schizophrenic” because he had one foot in his native culture and the other foot in the dominant culture.

Nevertheless, the court in May 1978 denied the MPS request for approval of this variance for Native American students. The court said it was “sensitive to the concerns of the School Board and amici that the special educational needs of Native American students be met and that concentration of [such] pupils may be helpful to the expenditure of [special federal educational funds].” The court also acknowledged that the Supreme Court had in certain cases allowed separate treatment of Indians, but distinguished those cases on the ground that the MPS proposed variance was not tied to tribal membership or any quasi-sovereign interests of particular tribes or reservations.[1]

The Eighth Circuit affirmed this ruling. It acknowledged that “in certain contexts separate classification and treatment of Indians as a race are constitutionally permissible in the light of the unique status of Indians in this country, and in light of history and policy.” This statement, however, was subject to this important qualification by the appellate court: “the Supreme Court has not held that a school district is exempt from its obligation to eliminate racial segregation ‘root and branch’ . . . simply because the district’s student population contains a substantial number of Indian students with specialized educational needs.”  Moreover, the Eighth Circuit upheld Judge Larson’s finding that these legitimate needs had been met by the district court’s past 35/42% and prospective 39/46% guidelines.[2]

When the MPS asked the U.S. Supreme Court to review the case, its final argument was that the lower courts erroneously had determined important and federal statutory issues regarding the education of American Indian children.[3] The Supreme Court, however, denied review.[4]


[1] Booker v. Special School District No. 1, 451 F. Supp. 659 (D. Minn. 1978). This order also denied the MPS motion to terminate the case that was discussed in a prior post.

[2] Booker v. Special School District No. 1, 585 F.2d 347 (8th Cir. 1978).

[3] Petition for Writ of Certiorari, Special School District No. 1 v. Booker (No. 78-__ Sup. Ct. Nov. 10, 1978).

[4] Booker v. Special School District No. 1, 433 U.S. 915 (1979).

Minneapolis Public Schools’ Desegregation/Integration Litigation, 1978-1983

As described in a prior post, from 1971 through 1977, the Minneapolis Public Schools (MPS) were subject to an order to desegregate/integrate its schools and to semiannual court and, therefore, public scrutiny of its compliance with that order. This was an order by Minnesota’s U.S. District Court. (To the left is a photo of the Minneapolis Federal Office Building and U.S. Courthouse, 100 4th Street South, that was the site of this entire litigation. Today it is the Hennepin County Family Justice Center.)

In or about 1978 the MPS School Board, frustrated by the continued bad publicity generated by the case,  decided to hire me as its outside attorney for the case with the objective of having the court end the litigation on the ground that the MPS had done everything that a federal court legitimately could require it to do.[1]

The first such effort was unsuccessful.

In early 1978 I filed a MPS motion to terminate the litigation that was based on the then recent U.S. Supreme Court decision in Dayton v. Brinkman, 433 U.S. 406 (1977) that held the permissible court injunction in the Dayton, Ohio school desegregation case was limited to eliminating the “incremental segregative effect” of its constitutional violations.

The Minnesota court, however, distinguished the Dayton case and denied the MPS motion on the ground that it had not yet fully implemented its desegregation/integration plan. The court also rejected a MPS proposal to address concerns of the Native American community that will be explored in a subsequent post. [2]

In addition, the court in its May 1978 order rejected the MPS request to increase the allowable maximum minority enrollment in each school to 50% and to eliminate the single minority ceiling requirement. The court did say it had “never regarded the percentage figures [in its orders] as rigid requirements” and that it had set the percentage “guidelines at approximately 20% above the projected total minority student population.” The court then went on to modify its injunction to increase the maximum total minority student of each school to 46% (an increase of 4%) and a single minority’s maximum percentage to 39%(also an increase of 4%).

The MPS then took its only appeal in the 12 years of this litigation. But the U.S. Court of Appeals for the Eighth Circuit held that that the district court had not abused its discretion in denying the motion to terminate the case. The appellate court, therefore, affirmed the district court’s decision[3]

The MPS then made its only application to the U.S. Supreme Court to review the case. Two of the petition’s three arguments for such review were that the decisions in the lower courts conflicted with, and misapplied (1) the Supreme Court’s holding that desegregation decrees must be limited to eliminating incremental segregative effect of constitutional violations; and (2) that Court’s allowing modification of desegregation decrees where new circumstances of law or fact had arisen.[4]

The Supreme Court, however, refused to do so.[5]

The second and third efforts to end the case also were unsuccessful.[6]

The fourth motion to terminate the injunction and end the case, however, was granted by Judge Larson on June 8, 1983.[7] The court did so despite opposition by the plaintiffs, who later decided through their attorney, Charles Quaintance, Jr., not to seek a rehearing in the district court or an appeal to the Eighth Circuit.[8]

Dr. Richard Green

Afterwards the MPS Superintendent Richard Green said the decision was “a major moment in the history of the district” and that the MPS would “continue to work with the state department of education [with respect to its desegregation regulations] to show the good faith that was demonstrated by the court.” Green also said the court order had “created a climate for change in the school system that led to better-quality schools.” He specifically mentioned the change from neighborhood schools to ones that drew students from many parts of the city; the increase in student busing; and the creation of alternative programs, including “magnet” schools.[9]

Dr. Green wrote a personal note to me about the end of the litigation. He said, “Without question, the Minneapolis community has now met one of the major tests for equality, and my sense is that your leadership has been a crucial factor.”[10]

I certainly appreciated that kind compliment even though I thought it was unjustified. The successful desegregation/integration of the MPS was due to the efforts of many students, parents, teachers and administrators and of the School Board. The leadership of Dr. Green was the crucial ingredient, and his skills were recognized in 1988 when he became the Chancellor of the New York City Public Schools, the first African-American to hold that position.

I was very saddened when Dr. Green died of asthma in 1989 at the age of 53 after only 14 months as Chancellor.[11] He was honored by a memorial service at the Cathedral of Saint John the Divine in Manhattan with a eulogy by then New York City Mayor Edward Koch.

Being the lawyer for the MPS in this litigation obviously was an important professional and civic responsibility and challenge. The MPS was committed to desegregation/integration and to respect for the law and the court’s orders, and yet it wanted to terminate the case. I personally shared these values and commitments and drew inspiration from these words of Learned Hand, one of the preeminent jurists in U.S. history:

  • “[A] society so riven that the spirit of moderation is gone, no court can save; . . . a society where that sprit flourishes, no court need save; . . . in a society which evades its responsibility by thrusting upon the courts the nuture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens . . . which recognizes their common fate and their common aspirations–in a word, which has faith in the sacredness of the individual. . . . [Such a temper and such a faith] are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature . . . . [They] must have the vigor within themselves to withstand the winds and weather of an indifferent and ruthless world; and that it is idle to seek shelter for them in a courtroom. Men must take that temper and that faith with them into the field, into the market-place, into the factory, into the council-room, into their homes; they cannot be imposed; they must be lived. Words will not express them; arguments will not clarify them; decisions will not maintain them. They are the fruit of the wisdom that comes of trial and a pure heart; no one can possess them who has not stood in awe of this mysterious Universe; no one can possess them whom that spectacle has not purged through pity and through fear–pity for the pride and folly which inexorably enmesh men in toils of their own contriving; fear, because that same pride and that same folly lie deep in the recesses of his own soul.”[12]

[1] I have donated my papers relating to this case to the Minnesota Historical Society Libray, St. Paul, Minnesota.

[2] Booker v. Special School District No. 1, 451 F. Supp. 659 (D. Minn. 1978). Four months later, in another case In which I represented the MPS, the same district court granted judgment for the MPS in a challenge to the constitutionality of the MPS decision to close Longfellow School in the southern part of the city. (Hernandez v. Special School Dist. No. 1, No, 4-78-349 (D. Minn. Sept. 13, 1978).)

[3] Booker v. Special School District No. 1, 585 F.2d 347 (8th Cir. 1978).

[4] Petition for Writ of Certiorari, Special School District No. 1 v. Booker (No. 78-__ Sup. Ct. Nov. 10, 1978). The third reason for review relating to the issues regarding Native Americans that will be reviewed in a subsequent post.

[5] Booker v. Special School District No. 1, 433 U.S. 915 (1979).

[6]  Memo Order, Booker v. Special School District No. 1, (D. Minn. May 1, 1980); Memo Order, Booker v. Special School District No. 1, (D. Minn. June 22, 1982). On December 17, 1982 after a semiannual MPS report had been submitted to the court, the MPS Superintendent Richard R. Green sent me a note thanking me on behalf of “the entire School District and community” for my “contribution” in helping the MPS to report total compliance with the court order.

[7] Memo Order, Booker v. Special School District No. 1, (D. Minn. June 8, 1983).

[8]  During the five years of my representation of the MPS in this case, Quaintance and I were professional adversaries without any other relationship. In recent years, however, as fellow members of Minneapolis’ Westminster Presbyterian Church, we have become friends.

[9] Paulu, Judge Larson ends court jurisdiction in city public schools’ desegregation, Mpls. Star & Trib. (June 9, 1983); Pinney, Case kept desegregation effort aimed toward stability, Mpls. Star & Trib. (June 9, 1983).

[10] Letter, Dr. Richard R. Green to Duane Krohnke (June 16, 1983).

[11] A park in Brooklyn, New York was named in his honor.

[12] Learned Hand, The Sprit of Liberty, at 164-65 (3d ed.; Univ. Chicago Press; Chicago 1977).

Minneapolis Public Schools Desegregation/Integration Litigation, 1971-1977

Dr. John b. Davis, Jr.

In the winter of 1970-71 under the leadership of Superintendent Dr. John B. Davis, Jr.,[1] the School Board of the Minneapolis Public Schools (MPS) decided, 6 to 1, to adopt a general commitment to racial desegregation and its first mandatory desegregation step: the pairing of Field and Hale Elementary Schools on the south side of the city.[2]

The local chapter of the National Association for the Advancement of Colored People (NAACP) and some citizens, however, were concerned about the long-term commitment to this effort and the possible election of a school board that would be opposed to such measures. Therefore,  in August 1971 the NAACP and others started a federal lawsuit alleging the racial imbalance in the schools was due to intentional acts of the MPS.

Judge Earl Larson

The case went to trial in April 1972 before U.S. District Judge Earl Larson of Minnesota’s federal district court, and on the last day of the trial (April 25, 1972) the School Board adopted a widespread Desegregation/Integration Plan.

A month later (May 24, 1972), the court decided that the MPS were segregated on the basis of race and that such segregation resulted from the following intentional acts of the MPS: (1) the construction,  size and location of Bethune School ; (2) the addition of seven new classrooms to Field Elementary School in 1964; (3) the 1967 construction of an addition to Washburn High School; (4) the location of portable classrooms; (5) decisions over school size; (6) the 1968 change in boundaries between Washburn and Southwest High Schools; (7)  the policy of allowing special transfers of students;(8) the creation of optional attendance zones along the perimeters of racial minority neighborhoods; and (9) the practice of assigning and transferring teachers and administrators.[iii]

The court, therefore, concluded that the MPS had violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and permanently enjoined  the MPS, “its school board, its administrators, its employees, its agents, and all those who are in active concert or participation with them . . . from discriminating on the basis of race or national origin” in its operation.

The court further ordered MPS to “take affirmative action to disestablish school segregation and eliminate the effects of its prior unlawful activities.” More specifically the court ordered MPS to implement its own Plan for Desegregation/Integration with the following modifications: (a) no more than 35% of the study body of any one school could be minority children; (b) increase faculty integration; (c) not allow any student transfers that increase the segregated nature of either school; (d) submission of any plans for new schools or additions to old schools to the court for prior approval; and (e) submission of any changes to the Desegregation/Integration Plan to the court for prior approval.

Finally to monitor MPS’ compliance with the court order, the MPS was required to submit semi-annual reports to plaintiff’s’ counsel and to the court.

In May 1975 the court modified the injunction to change the maximum permissible minority enrollment in any school to 42% total minority and 35% of any single minority group.[4]

In July 1977 the court found that MPS had fully complied with the injunction except for racial balance at several schools, but it denied the MPS motion to terminate the case.

The litigation continued until June 1983, and the latter phase of the litigation (1978-1983) will be covered in a subsequent post.

The plaintiffs’ lawyer was Charles Quaintance, Jr. The defendants were represented by Norman Newhall and Gerald Bergfalk.

My family and I had moved to Minneapolis in the Spring of 1970, and I had no involvement as an attorney in the early phase of this case.

In 1971, however, as a citizen and as a parent of two sons who would be going to the MPS, I was shocked to read that the two new members of the city’s School Board were opposed to further desegregation/integration, and at least one of them in campaigning had talked about resisting any federal court order. As a result, over the next seven years I became very active in various activities relating to the public schools in Minneapolis and elsewhere in Minnesota.

In the next local election in 1973 I was very active in Citizens United for Responsible Education (CURE), a successful bipartisan coalition to elect two moderate candidates to the School Board. I went on to become active in other public education projects: Member of the Citizens League Study Committee on Fluctuating School Enrollments; Member (by gubernatorial appointment) of the State of Minnesota Commission on Fluctuating School Enrollments; Member of the Board of Directors of the Minneapolis Citizens Committee on Public Education; unsuccessful candidate for appointment to fill a vacancy on the Minneapolis School Board; and Chairman of the MPS Citizens’ Advisory Committee on School Finance.

This civic experience would turn out to be very useful for me in the next phase of the litigation.


[1] Davis subsequently became the President of Macalester College in St. Paul, Minnesota.

[2] Pinney, Case kept desegregation effort aimed toward stability, Mpls. Star & Trib. (June 9, 1983).

[iii] Booker v. Special School District No. 1, 351 F. Supp. 799 (D. Minn. 1972).

[4] Memo Order, Booker v. Special School District No. 1, (D. Minn. May 7, 1975).