President Eisenhower’s Secret Campaign Against Senator Joe McCarthy

During the first two years of President Eisenhower’s first term (1953-1954), U.S. Senator Joseph McCarthy (Rep., WI), was garnering national attention with his reckless charges of communist infiltration of the U.S. government, including the President’s beloved U.S. Army, which he had brilliantly served during World War II. Yet Ike, as the President was known, did not publicly confront McCarthy.

Now David A. Nichols, a retired history professor at Kansas’ Southwestern College and an authority on the Eisenhower presidency, has provided great details on Ike’s behind-the-scenes campaign against McCarthy in Ike and McCarthy: Dwight Eisenhower’s Secret Campaign Against Joseph McCarthy (Simon & Schuster, New York, 2017).

According to Nichols, Ike drew upon his experience in strategic deception as Supreme Allied Commander of the Allied Expeditionary Force in Europe in World War II to orchestrate the campaign against McCarthy. Keys to this strategy were the President’s avoiding public criticism of McCarthy and deflecting journalists’ questions about the Senator at presidential press conferences and instead having presidential subordinates issue statements and take actions against McCarthy. Those “subordinates” included Sherman Adams, White House Chief of Staff; James Hagerty, White House Press Secretary; Fred Seaton, Assistant Secretary of Defense; Herbert Brownell, Jr., Attorney General; William Rogers, Deputy Attorney General; John Foster Dulles, Secretary of State; and Henry Cabot Lodge, Jr., Ambassador to the United Nations.

An important part of this history was the relationship between Roy Cohn, who was McCarthy’s chief counsel, and a handsome young staffer on McCarthy’s committee, G. David Schine, who after being drafted as a private into the U.S. Army obtained preferential treatment by the Army as a result of pressure from Cohn and McCarthy. Below are photographs of the two men.

Roy Cohn
G. David Schine

When President Eisenhower learned of the special treatment and the reasons therefor, he instigated a secret Army investigation of these matters. The subsequent report of that investigation was publicly released and prompted fiery denunciations of the Army by McCarthy and Cohn, resulting in the now infamous Army-McCarthy hearings of 1954.

The implicit message of this report was Cohn and Schine’s having a homosexual relationship, which at the time was widely condemned. At the subsequent Army-McCarthy hearing, Army counsel, Joseph Welch, alluded to this relationship when he questioned another McCarthy aide, James Juliana, about the origins of a photograph that had been altered. The question: “Did you think it came from a pixie?,” which Nichols says was a sly allusion to the alteration’s having been made at the direction of Cohn, who was believed to be gay. McCarthy interrupted: “Will the counsel for my benefit define—I think he may be an expert on that—what is a pixie?” Welch’s response: “Yes, I should say, Mr. Senator, that a pixie is a close relative of a fairy [a widely used term for a homosexual at the time]. Shall I proceed, sir? Have I enlightened you?” The room erupted in laughter. (Nichols at 239.)[1]

The hearing’s climax occurred on June 9, 1954, when Welch sarcastically asked Cohn about the important committee work that he and Schine purportedly had done on their weekends together and taunted him to “hurry” to “act before sundown” to discover communists anywhere. McCarthy sought to counter this attack on Cohn and McCarthy by interrupting to say that Welch’s law firm had “a young man named Fisher . . . who has been for a number of years a member of an organization which was named, oh years and years ago, as the legal bulwark of the Communist party.” (Nichols at 280.)

Welch, after finally getting McCarthy’s attention, said, “Senator, I never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream that you would be so reckless and cruel as to do an injury to that lad. . . . If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man, but your forgiveness will have to come from someone other than me.” (Nichols at 280-81.)

McCarthy, ignoring this plea, resumed his attack on Fisher. Welch responded, “Let us not assassinate this lad further, Senator. You have done enough. Have you no sense of decency, sir, at long last? Have you no sense of decency?” (Id.)

At the time, many thought that Welch was surprised by this attack on Fisher, but there was no such surprise. Indeed, some thought that Welch’s cross examination of Cohn was taunting McCarthy so that he would attack Fisher and that Welch’s “no sense of decency” speech was rehearsed. (Nichols at 280-82.)[2]

Six months later, on December 2, 1954, the U.S. Senate by a vote of 67 to 22 passed a resolution condemning McCarthy for certain of his actions as a U.S. Senator. Thereafter he had virtually no influence in the Senate or the country at large. He died on May 2, 1957. (Nichols at 292-97.)

Postscript

In 2012, I met author Nichols when he gave a lecture at the Minnesota Historical Society on President Abraham Lincoln’s involvement in issues related to the U.S.-Dakota War of 1862,[3] a subject in which I had an interest and about which have written blog posts.[4] Later when I had written blog posts about Joseph Welch and his representing the Army in the McCarthy hearings,[5] Nichols told me he was writing a book about Eisenhower and McCarthy, and I provided him with materials I had collected. I was surprised and pleased when Nichols included this kind acknowledgement at the end of his just published book:

  • Nichols was “particularly indebted to Duane Krohnke, a retired Minneapolis attorney and authority on Joseph Welch, his fellow alumnus at Grinnell College in Iowa. Duane provided me with documents unavailable elsewhere, especially Fred Fisher’s account of the hiring of Welch as counsel for the Army-McCarthy hearings. Duane also connected me with Ann M. Lousin [Grinnell, 1964] and Nancy Welch [not Grinnell’s 1961 Nancy Welch], Welch’s granddaughter, both of whom provided important information about Welch and McCarthy.” (Nichols at 300.)

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[1] After Cohn died of AIDS in 1986, public speculation about his sexual orientation intensified. Some say that his relationship with Schine was platonic while others assert it was homosexual. In the HBO film of Tony Kushner’s “Angels in America: A Gay Fantasia on National Themes,” Al Pacino plays Cohn as a closeted, power-hungry hypocrite who is haunted by the ghost of Ethel Rosenberg as he lies dying of AIDS. It should also be noted that in 1973 Cohn was hired by Donald Trump to defend the Trump Management Corporation against charges of racial discrimination and Cohn thereby became a close friend and mentor to Mr.Trump.

[2]  See also U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch (June 4, 2012);  of “Good Night, and Good Luck: The Movie’s Offstage Hero, Joseph Welch,” Grinnell Magazine (Summer 2006).

[3] Nichols has written a fascinating book on this subject: Lincoln and the Indians: Civil War Policy and Politics (Minnesota Historical Society Press, 1978, 2000, 2012).

[4] Here are blog posts on this subject to dwkcommentaries.com: The U.S.-Dakota War of 1862 (Nov. 3, 2012); White Settler’s Contemporaneous Reaction to the U.S.-Dakota War of 1862 (Nov. 6, 2012); Abraham Lincoln’s Involvement in the U.S.-Dakota War of 1862 (May 21, 2013); U.S. Military Commission Trials of Dakota Indians After the U.S.-Dakota War of 1862 (June 11, 2013); President Abraham Lincoln’s Involvement in the Military Commission’s Convictions and Sentences of the Dakota Indians (June 24, 2013); The Sesquicentennial Commemoration of the U.S.-Dakota War of 1862 (Nov. 9, 2012); Commemoration of the 150th Anniversary of the Hanging of the “Dakota 38” (Dec. 26, 2012); Minneapolis and St. Paul Declare U.S.-Dakota War of 1862 “Genocide” (Jan. 12, 2013); Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part I) (Nov. 18, 2012); Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part II) (Nov. 25, 2012); Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part III) (Nov. 29, 2012); Personal Reflections on the U.S.-Dakota War of 1862 (Dec. 10, 2012).

[5] I am the author of “Good Night, and Good Luck: The Movie’s Offstage Hero, Joseph Welch,” Grinnell Magazine (Summer 2006); the biography of Welch in Newman (ed.), The Yale Biographical Dictionary of American Law (Yale Univ. Press, 2009); and the following posts on my blog (https://dwkcommentaries.com): Joseph Welch Before the Army-McCarthy Hearings (06/14/12); The U.S. Army’s Hiring of Joseph Welch for the Army-McCarthy Hearings (06/08/12); U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch (06/04/12); Attorney Joseph Welch’s Performance at the Army-McCarthy Hearings (06/06/12); President Dwight D. Eisenhower’s Involvement in the Army-McCarthy Hearings (06/10/12); Joseph Welch After the Army-McCarthy Hearings (06/12/12); and Legal Ethics Issues in the “Anatomy of a Murder Movie [in which Welch played the judge]” (06/27/12).  The joys of researching about Welch and other subjects are celebrated in Adventures of a History Detective, dwkcommentaries.com (April 5, 2011).

 

 

 

 

Long History of Racism in U.S. Laws Regarding United States Citizenship

To my great amazement, I recently have discovered that the United States has had a long history of racism in its statutes regarding U.S. citizenship. In the words of Blum and Haney-Lopez, “From this country’s inception [in 1789-1790], the laws regulating who was or could become a citizen were tainted by racial prejudice. Birthright citizenship, the automatic acquisition of citizenship by virtue of birth, was tied to race [from 1790] until 1940. Naturalized citizenship, the acquisition of citizenship by any means other than through birth, was conditioned on race [from 1790] until 1952.”[1]

The following is a brief summary of these laws.

Birthright Citizenship

“The U.S. Constitution as ratified did not define the citizenry, probably because it was assumed that [U.S. law included] the English common law rule of jus soli,” i.e., “citizenship accrues to ‘all’ born within a nation’s jurisdiction.”

The Supreme Court, however, in its now infamous 1857 decision in the Dred Scott case held that Scott, an enslaved Negro of the African race whose ancestors were brought to the U.S. and sold as slaves, and all other Blacks, free and enslaved, were not and never could be citizens because they were a “subordinate and inferior class of beings.” Therefore, Scott did not have standing to sue in federal court to claim a right to his freedom. (Scott v. Sanford, 60 U.S. 393 (1857).)

This was changed after the Civil War in the Civil Rights Act of 1866, 14 Stat. 27 (1866), which stated that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” This was confirmed in Section 1 of the Fourteenth Amendment to the U.S. Constitution, adopted in 1868: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” https://www.law.cornell.edu/constitution/amendmentxiv

This statute and constitutional amendment, however, left two minorities in the cold on birthright citizenship.

The first group was children born in the U.S. to non-citizen parents. Their status was unclear until the U.S. Supreme Court in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), held that such children were birthright citizens of the U.S.

The second group was Native Americans who were born in the U.S. Here, the Supreme Court rendered a negative opinion in 1884 in Elk v. Wilkins, 112 U.S 94 (1884). It held that Native Americans owed allegiance to their tribes and thus did not acquire U.S. citizenship upon birth.

Thereafter Congress granted such citizenship in piecemeal fashion, tribe by tribe, until 1924, when it enacted the Indian Citizenship Act (Snyder Act), 43 Stat. 233 (1924), which stated “that all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.”

This statute, however, left unclear whether it covered individuals born after its effective date. That issue was finally resolved in section 201(b) of the Nationality Act of 1940, which stated, “The following shall be nationals and citizens of the United States at birth . . . A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.”

Citizenship by Naturalization

Although the Constitution, as just noted, did not originally define the citizenry, it did make an explicit grant of authority to Congress to establish the criteria for granting citizenship after birth. That is found in Article I, Section 8 of the Constitution, which provides that Congress has the power “To establish an uniform Rule of Naturalization.” From the very start in 1789-1790 through 1952, Congress exercised this power in a manner that burdened naturalization laws with racial restrictions that tracked those in the law of birthright citizenship. This history can be seen in two periods: 1790-1870 and 1870-1952.

1790-1870

In 1790, only a few months after ratification of the Constitution, the very First Congress of the U.S. adopted the “Act to establish an uniform Rule of Naturalization,” 1 Stat. 103 (1790). It provided that naturalization was limited to immigrants who were “free white persons of good character.” (Emphasis added.) Although the statute did not define that term, it clearly excluded Native Americans, indentured servants, slaves, free blacks and Asians from this method of obtaining U.S. citizenship.

This sole requirement of being a “white person” for naturalization remained in the U.S. statutes until after the Civil War in 1870 when Congress adopted a statute that made it possible for naturalization for “aliens of African nativity and to persons of African descent.” This was contained in section 7 of An Act to amend the Naturalization Laws and to punish Crimes against the same, and for other purposes,” 16 Stat. 254 (1870).

In the 1870 congressional debate over this change, Senator Charles Sumner argued that racial barriers to naturalization should be struck altogether. However, racial prejudice against Native Americans and Asians forestalled the complete elimination of the racial prerequisites. For example, one senator argued against conferring “the rank, privileges, and immunities of citizenship upon the cruel savages [Native Americans] who destroyed [Minnesota’s] peaceful settlements and massacred the people with circumstances of atrocity too horrible to relate” in the U.S.-Dakota War of 1862.[2] Another senator wondered “’whether this door’ [of citizenship] shall now be thrown open to the Asiatic population,’ warning that to do so would spell for the Pacific coast ‘an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding or carrying it out.’”

1870-1952

Thus, as of 1870, being either “white” or “African nativity or descent” was a requirement for naturalization, and these options remained in U.S. law until 1952.

Other individuals, particularly those from Asia, were not eligible with this 1870 change in the law. Moreover, starting in 1882, Congress passed a series of laws that specifically excluded from naturalization individuals from China, Japan, India and the Philippines although the laws never specifically labeled them as “Asians” or “Orientals” or another supposed racial category. Thus, in 1922, the U.S. Supreme Court in Ozawa v. United States, 260 U.S. 178 (1922), held that a Japanese man was not “white” or Caucasian and thus ineligible for naturalization.

The next year in Thind v. United States, 261U.S. 204 (1923), the Court decided that an immigrant from India was not “Caucasian” and thus not eligible for naturalization. Important for the Court was the criterion of assimilability to separate the desirable immigrants from the undesirable ones: Asian Indians were distinguished from the swarthy European immigrants, who were deemed ‘readily amalgamated’ with the immigrants ‘already here.’

This limitation of naturalization to persons who were “white” or “African nativity or descent” eroded during World War II as a result of political pressures on the U.S. associated with its well-founded opposition to the horrendous racism of Nazism. In 1940 eligibility was extended to “descendants of races indigenous to the Western Hemisphere;” in 1943, to Chinese persons; and in 1946, to persons from the Philippines and India.

Thus, at the end of World War II, U.S. laws permitted naturalization for:

  • (1) white persons. persons of African nativity or descent, and persons of races indigenous to the continents of North or South America or adjacent islands and Filipino persons or persons of Filipino descent;
  • (2) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (1);
  • (3) Chinese persons or persons of Chinese descent; and persons of races indigenous to India; and
  • (4) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (3) or, either singly or in combination, as much as one-half blood of those classes and some additional blood of one of the classes specified in clause (1).

All of this complexity was eliminated in 1952 when Congress enacted the McCarran-Walter Act, 60 Stat. 163, 239 (1952), which states in section 311, “The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.”

Conclusion

 Although I was a history major at an excellent U.S. college, studied law for three years at a prominent U.S. law school, practiced law for 35 years, including some exposure to U.S. immigration law, and taught in another prominent law school for nine years, I am embarrassed to admit that until recently I was unaware of this history of racism in U.S. laws regarding U.S. citizenship beyond the post-Civil War changes regarding African-Americans.

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[1] Except for specific statutes cited and discussed, this account is primarily based upon Blum & Haney-Lopez, Racial Restrictions in the Law of Citizenship, Ch. 2. See also Braziel, History of Migration and Immigration Laws in the United States (Spring 2000).

[2] Prior posts to dwkcommentaries.com have discussed the U.S.-Dakota War of 1862: (1) The U.S.-Dakota War of 1862 (Nov. 3, 2012); (2) Abraham Lincoln’s Involvement in the U.S.-Dakota War of 1862 (May 21, 2013); ; (3) White Settler’s Contemporaneous Reaction to the U.S.-Dakota War of 1862 (Nov. 6, 2012); (4) U.S. Military Commission Trials of Dakota Indians After the U.S.-Dakota War of 1862 (June 11, 2013); (5) President Abraham Lincoln’s Involvement in the Military Commission’s Convictions and Sentences of the Dakota Indians (June 24, 2013); (6) Commemoration of the 150th Anniversary of the U.S.-Dakota War of 1862 (Nov. 9. 2012); (7) Commemoration of the 150th Anniversary of the Hanging of the “Dakota 38” (Dec. 26, 2012); (8) Minneapolis and St. Paul Declare U.S.-Dakota War of 1862 “Genocide” (Jan 12, 2013); (9) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part I) (Nov. 18, 2012); (10) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part II) (Nov. 25, 2012); (11) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part III) (Nov. 29, 2012); (12) Personal Reflections on the U.S.-Dakota War of 1862 (Dec. 10, 2012).

 

 

 

 

 

 

President Abraham Lincoln’s Involvement in the Military Commission’s Convictions and Sentences of the Dakota Indians

President Abraham Lincoln
President Abraham Lincoln

Before he participated in the U.S. Military Commission’s convictions and sentences of the Dakota Indians, President Abraham Lincoln was involved the U.S.-Dakota War itself in August-September 1862.[1]

Lincoln reentered this drama on October 14th at a Cabinet meeting when Edwin Stanton, the Secretary of War, read aloud a report from General John Pope that the War was over and that the Army held about 1,500 Dakota prisoners. “Many, Pope said, “are being tried by military commission for being connected in late horrible outrages and will be executed.”[2]

Lincoln and the Cabinet were upset with Pope’s apparent plan to execute many of the captives, and three days later Pope was directed that there be no executions without the President’s approval.

Roughly three weeks later (on November 8th), after the completion of the military commission trials, Lincoln received a telegram from Pope containing a list of the 302 Dakota men who had been convicted and ordered to be hung.[3]

Immediately (on November 10th) the President by a telegram put all of these convictions on hold pending his Administration’s review of these convictions. Lincoln instructed Pope to submit the “full and complete” trial records for these cases to the President along with any materials that might indicate which of the men were the most guilty along with a “careful statement” regarding the commission’s judgments.

This instruction annoyed Pope, who responded the next day not with a “careful statement,” but with a vehement objection to the order. According to the General, “the only distinction between the culprits is as to which of them murdered  most people or violated most young girls.” Moreover, Pope said, “The people of this State [of Minnesota] . . . are exasperated to the last degree, and if the guilty are not all executed, I think it nearly impossible to prevent the indiscriminate massacre of all the Indians–old men, women and children.”

Pope reiterated these sentiments on November 24th when he urged the President to make a speedy decision. He warned, “Organizations of inhabitants are being rapidly made with the purpose of massacring these Indians.”

Exactly what the presidential review would entail was not immediately clear. Lincoln contemplated setting guidelines for executing “only a part” of the 302 men and sending the cases back to Minnesota for an “officer on the ground” to make case-by-case designations. But on December 1st Joseph Holt, the Judge Advocate General, advised the President that the power of review could not be delegated.

Therefore, that same day (December 1st), the President asked two aides (George C. Whiting and Francis H. Ruggles) to make a “careful examination” of all the transcripts and identify those Dakotas who “had been proved guilty of violating females.” The aides soon responded there were only two who had been so convicted.

Lincoln was surprised so few rapists were among the 302 on death row. Therefore, the President asked his aides to make “a further examination” to identify “all who were proven to have participated in massacres, as distinguished from participation in battles.” Whiting and Ruggles did just that and reported that 38 additional Dakota men had participated in massacres. The report contained a brief summary of the proof against each man plus the transcripts of their trials.

The first man on the execution list was Joseph Godfrey, the escaped black slave who had been the first to be tried by the military commission. The summary of his case by Whiting and Ruggles said, “Engaged extensively in the massacres, and, though sentenced to be hung, recommended to have his punishment commuted to imprisonment for ten years, because of the valuable testimony and information furnished the commission.”

On December 5th or 6th Lincoln reviewed his aides’ report and trial transcripts. He then personally penned his execution order to Colonel Sibley with the names and trial numbers of 39 men to be executed on December 19th.[4] They were the 2 convicted for rape and 37 of the 38 men convicted for participation in massacres. The only one on the latter list of 38 who was not included on the execution list was Joseph Godfrey.

On December 11th in response to a Senate resolution, the President forwarded to the Senate the Whiting-Ruggles report, the trial transcripts and related materials. In his cover letter Lincoln referred to his aides’ list of 38 men convicted for participation in massacres, but said, “One of the [38 men] . . .  is strongly recommended by the [military] commission which tried them, for commutation to ten years’ imprisonment.” Lincoln, however, did not mention the name of this individual (Godfrey) or his black race. This review, Lincoln added, was done “to not act with so much clemency as to encourage another outbreak on the one hand, nor with so much severity as to be real cruelty on the other.”

Throughout this period, the President and his Administration were under great pressure to approve all of the ordered executions in addition to the pleas from General Pope.

Minnesota Governor Alexander Ramsey, who was running for election to the U.S. Senate in January 1863, urged the President to order the execution as soon as possible of all those condemned by the commission. “It would be wrong upon principle and policy to refuse this,” Ramsey said. “[Otherwise] private revenge would . . . take the place of official judgment on these Indians.”

Minnesota’s other public officials and newspapers echoed these sentiments as did letters, petitions and memorials submitted to the White House.

Virtually the only Minnesotans suggesting some mercy were Minnesota’s Episcopal Bishop Henry P. Whipple and other pastors.

Lincoln perhaps drew some comfort from a December 17th petition from 38 Dakota leaders that said “the bad [Dakotas] ought to be punished” and all “of the Indians who were engaged in killing the white men and women and children should be hanged.” The “good” Indians, on the other hand, should be “well treated” and permitted to return to their homes on the reservation.

On December 23rd, Lincoln directed the reprieve of one of the 39 to be executed as a result of a last minute plea by a Presbyterian missionary (Rev. Thomas Williamson) and his sister (and endorsed by Brigadier-General Sibley) on the ground that the certain evidence at the trial was unreliable.

Accordingly on December 26th, 38 Dakota men were hung to their death in Mankato, Minnesota.

The fate of the other 264 Dakota men (including Mr. Godfrey) who had been convicted and sentenced to death by hanging by the military commission was not addressed directly by President Lincoln. But they were not pardoned. Instead, they were transferred to a U.S. detention facility in Davenport, Iowa, where most of them spent the next three years. After they were released from detention, they were transferred to several reservations for the Dakota. Joseph Godfrey went to a Nebraska reservation where he lived until his death in 1903.[5]


[1]  As discussed in a prior post, On August 21, 1862, Lincoln’s focus on the worsening situation in the Civil War was interrupted by the news of the start four days earlier of the U.S.-Dakota War in southern Minnesota. About a week later the President reluctantly granted a de facto, indefinite extension of time for Minnesota to fulfill its quota for more troops for the Civil War so that the State could provide men to fight the Dakota War. In addition, on September 5th the President created a new military Department of the Northwest to be in charge of the Dakota War under the command of General John Pope.

[2] This post is based upon David A. Nichols, Lincoln and the Indians: Civil War Policy and Politics Ch. VIII (Minn. HIst. Soc’y Press 1978, 2000, 2012) and Walt Bachman, Northern Slave Black Dakota:The Life and Times of Joseph Godfrey at 221-22, 228-32, 239, 243-45, 252-56, 262-66,, 352-56 (Pond Dakota Press; Bloomington, MN 2013).

[3]  The commission had sentenced 307 Indians to be hung, but five were removed from the execution list before it was submitted to the President.

4 The original of the President’s order is at the Minnesota Historical Society. Davis, TWO Sioux War Orders: A Mystery Unraveled, Minn. History at 117 (Fall 1968). Through a  subsequent exchange of telegrams the date of the executions was postponed to December 26th. 

5 An evaluation of President Lincoln’s involvement in the U.S.-Dakota War and of legal issues relating to the commission trials and judgments will be the subjects of other posts.

 

 

 

 

 

 

 

 

 

 

U.S. Military Commission Trials of Dakota Indians After the U.S.-Dakota War of 1862

The U.S.-Dakota War of 1862 lasted from August 17th through September 24th.  It ended with 447 white people killed, more than 300 of whom were not in any battles, including at least 100 white children and 50 white women. In contrast, only 29 Dakota Indian men had been killed. The U.S. Army also captured many Dakota men, women and children.[1]

Colonel Henry H. Sibley
Colonel Henry H. Sibley

On September 27th Henry H. Sibley, who had been appointed by Minnesota Governor Alexander Ramsey to be in charge of the militia fighting the War, issued an order creating a military commission to try the captive Dakota Indians. Another order the next day stated that the commission of five officers would “try summarily the Mulatto [Joseph Godfrey],[2] and Indians, or mixed bloods . . . and pass judgment upon them, if found guilty of murders or other outrages [rapes] against the whites, during the present state of hostilities of the Indians . . . . [to be] governed . . . by Military Law and Usage.”[3]

BachmanbookGodfrey was the first to be tried. His Charge was “Murder” with the following two specifications:

1. “Godfrey , a colored man, did at or near New Ulm, Minn., on or about the 19th day of August 1862, join in a War Party of the Sioux tribe of Indians against Citizens of the [U.S.] and did with his own hand murder seven white men and women and children more or less, peaceable Citizens of the [U.S.].”

2. “Godfrey, a colored man, did at various times and places between the 19th day of August 1862, and the 28th day of September 1862, join and participate in the Murders and Massacres committed by the Sioux Indians on the Minnesota Frontier.”[4]

His trial on these charges started with his own detailed testimony that he had felt coerced to join the initial Dakota war party, that minimized his own participation and that he had not killed anyone, but only hit a white man with the blunt edge of a hatchet. Six witnesses testified that Godfrey had appeared to be a willing participant and had said he had killed people, but none said they had witnessed any such killings. His trial took one or two days. Thereafter, Godfrey testified in other cases on behalf of the prosecution.[5]

The commission subsequently issued its decision that Godfrey was “guilty on the charge [of Murder], and second specification [of participation in murders and massacres by the Indians], and not guilty on the first specification [of murdering anyone himself].” The commission, therefore, sentenced him “to be hung by the neck until he is dead,” but recommended “a mitigation of the sentence to imprisonment for ten years.” [6]

The commission also conducted trials of 391 other Dakota Indians over no more than 30 days. Of these, 302 were convicted and sentenced to death by hanging; 20 were convicted and given prison terms of one to five years; and 69, including one Dakota woman, were acquitted.[7]

After all the cases had been tried and decided, the commission sent a message to Sibley renewing “their application for a commutation of the sentence of . . . Godfrey . . . .” They said his “testimony [in other cases] has been invaluable to the State, for without it a large number of men of the very worst character would have gone unpunished.” His evidence “has always proved truthful both by corroborative evidence and by the acknowledgements of the prisoners themselves.” Therefore, “his services . . . warrant the exercise of judicial clemency.”[8]

Sibley, however, refused this unique plea for clemency and did not commute Godfrey’s sentence of death by hanging.[9]

All of these convictions were put on hold when President Lincoln by a November 12th telegram decided that his Administration would review the military commissions’ decisions with an order to General Pope to forward the “full and complete record” of the convictions to the President.[10]


[2]  As discussed in a prior post, Godfrey was a black slave in Minnesota who had escaped his owner in the 1840s and gone to live with the Dakota Indians and who fought with the Indians in this War.

[3]  Bachman at 124-25.

[4]  Id. at 138-39.

[5]  Id. at 138-66.

[6] Id. at 180-81.

[7] Id. at 220-22.

[8] Id. at 218-19.

[9] Id. at 221-22.

[10] Id. at 239. President Lincoln’s review of the convictions will be the subject of another post. Another topic to be explored in another post will be certain legal issues raised by these trials and sentences.

Slavery in Minnesota

Map of U.S.-Dakota War, 1862
Map of U.S.-Dakota War, 1862
Fort Snelling
Fort Snelling, Minnesota

Black slavery existed in supposedly free Minnesota. It happened primarily when U.S. Army officers stationed at Minnesota’s Fort Snelling[1] brought slaves with them at the Army’s expense. This practice did not end until just before the start of the Civil War in 1861 as confirmed by the 1865 adoption of the XIII Amendment to the U.S. Constitution banning slavery in this country.

Bachmanbook

These are some of the startling findings in Northern Slave Black Dakota: The Life and Times of Joseph Godfrey by Walt Bachman, a former Minnesota attorney, an historian and friend.[2]

The focus of the book is Joseph Godfrey, who was born to a black mother (Courtney) and a French Canadian father in the early 1830’s in Mendota, Minnesota across the Minnesota River from Fort Snelling.

At that time Joseph’s mother was a slave owned by Alexander Bailley, a prominent fur trader.  She had been born into slavery around 1812 in Virginia and was owned in that state by James Garland until 1820, when she was sold to his brother, U.S. Army Captain John Garland. The Captain then took her with him on Army postings to supposedly free Michigan and Wisconsin and then in 1826 to Fort Snelling. During this time Garland claimed and received extra compensation from the Army for Courtney until he sold her in 1831 to Bailley.

By virtue of his race and parentage, Godfrey upon birth also was a slave owned by Mr. Bailley and is one of the few African Americans known to have born into slavery in Minnesota and the only one known to have grown from birth to adulthood there. Godfrey lived with the Bailley family in Wabasha, Hastings and Shakopee (then known as Faribault Springs), Minnesota. Probably in the 1840s Godfrey was sold or transferred to Bailley’s brother-in-law, Oliver Fairbault.[3]

In or about 1847 Godfrey escaped his owner and walked about 40 miles southwest along the Minnesota River to Traverse des Sioux, a village at a shallow river crossing.[4] There he presented himself to Alexander Huggins, a militant abolitionist Presbyterian missionary whom he had previously met.

Almost immediately, however, Godfrey fled to join the Indian bands led by Chiefs Wabasha and Wakute along the Mississippi River. In 1853 Godfrey moved back along the Minnesota River in south central Minnesota after an 1851 treaty required those tribes to go to a new Dakota reservation in that location. In any event, Godfrey lived with Dakota Indians for over 12 years after his escape from his owner.

Godfrey thus was living with the Dakota when the U.S.-Dakota War broke out and he joined the Indians in that War. On August 18th he was with a Dakota war party that attacked farmers in Milford. Afterwards he said he had killed several men and children that day although the subsequent military commission apparently did not believe any such statements as he was acquitted of murdering anyone himself. Godfrey also participated in other battles of the War. Exactly what he did in these battles is unclear, but in any event on or about September 24th he along with some of the Dakota warriors surrendered to the U. S. Army.

Later he was tried and convicted by a military commission as will be discussed in a subsequent post.

Godfrey was not the only slave living in Minnesota during these years as Bachman’s book explains.

One of these other slaves was Dred Scott, who lived with his owner, Dr. John Emerson, while he was posted at Fort Snelling from 1836 to 1840. Scott, of course, was the subject of the infamous U.S. Supreme Court case of 1857 holding that Scott because he was black was a non-citizen who had no right to bring a claim in a federal court and invalidating as unconstitutional  the Missouri Compromise law of 1820-1821 prohibiting slavery in the Northern territories.


[1] Today Fort Snelling is close to the Minneapolis-St. Paul Airport and is a National Historic Landmark operated by the Minnesota Historical Society. It is named after U.S. Army Colonel Josiah Snelling, the first Commandant of the Fort while he owned slaves.

[2] The 2013 book is published by Pond Dakota Press, a division of the Pond Dakota Heritage Society of Bloomington, Minnesota ((ISBN 978-0-9850099-0-8. Gideon and Samuel Pond were 19th century Presbyterian missionaries to Minnesota. Bachman is working on another book about the Army’s more general pre-Civil War promotion of slavery in the U.S.

[3]  The current Minnesota city of Faribault is named after Oliver’s brother, Alexander Faribault.

[4] This river crossing was used by generations of Dakota and early French fur traders as a trading outpost. Traverse des Sioux was the site of treaty negotiations in 1851 between the U.S. government and the Dakota. Today the Nicollet County Historical Society operates the site as well as the adjacent Treaty Site History Center.

President Abraham Lincoln’s Involvement in the U.S.-Dakota War of 1862

President Abraham Lincoln
President Abraham Lincoln
Governor Alexander Ramsey
Governor Alexander Ramsey
Edwin Stanton
Edwin Stanton

 

 

 

 

 

 

 

 

On August 21, 1862, President Abraham Lincoln learned about the start four days earlier of the U.S.-Dakota War in southern Minnesota. This was the news in a telegram from Minnesota Governor Alexander Ramsey to U.S. Secretary of War Edwin Stanton. It said, “The Sioux [Dakota] Indians on our western border have risen, and are murdering men, women, and children.” [1]

Another telegram came from Governor Ramsey four days later (August 25th). He said the War was worsening, and the “panic among the people has depopulated whole counties.” As a result, Ramsey requested an extension of the deadline for a U.S. draft of an additional 5,360 men for the Civil War.

This was not good news for Lincoln and his Administration. The Civil War was not going well for the North, which desperately needed more troops. Indeed, earlier that month the President had ordered the call up of 300,000 additional men. Although Minnesota’s quota of 5,360 was not large, such an extension could set a dangerous precedent for other states and thus the Union Army. In addition, the Administration needed the troops because of fear that the Confederate states were attempting to enlist Indians in the northwest as allies.

Therefore, Secretary Stanton denied Ramsey’s request, prompting the latter’s August 27th direct request to Lincoln for a month’s extension to cope with half of the state’s population being “refugees.” This time Lincoln responded the same day to Ramsey. Lincoln’s telegram said, “Attend to the Indians. If the draft can not proceed, of course, it will not proceed. Necessity knows no law. The government cannot extend the time.” (Emphases in original.) In other words, a de facto extension was granted.

General John Pope
General John Pope

In addition, on September 5th the Administration granted another Ramsey request, this one to create a new military Department of the Northwest. Its commander appointed that day by Lincoln was General John Pope, who had just suffered defeat at the Second Battle of Bull Run (Second Manassas) and whom Lincoln wanted out of the Civil War.

Pope arrived in Minnesota on September 16th and immediately wired his superior in Washington, D.C. that there would be a loss of half the population of Minnesota and Wisconsin and “a general Indian war all along the frontier, unless immediate steps are taken to put a stop to it.”

Colonel Henry H. Sibley
Colonel Henry H. Sibley

Therefore, General Pope ordered Colonel Henry Hastings Sibley to destroy Indian farms and food. Pope said, “It is my purpose utterly to exterminate the Sioux [Dakota] if I have the power to do so and even if it requires a campaign lasting the whole of next year. They are to be treated as maniacs or wild beasts, and by no means as people with whom treaties or compromises can be made.” (Emphasis added.)[2]

By the end of September, however, the U.S.-Dakota war was over with the surrender of many Dakota to the U.S. Army and the escape of the other Indians to the west. Military commissions were then established to try the captured Dakota men. These commission proceedings and President Lincoln’s review of its judgments will be subjects of future posts.

Another important issue was weighing on President Lincoln at this time was preparing the Emancipation Proclamation and deciding when to release it.

He did so in a preliminary version on September 22nd that declared he would order the emancipation of all slaves in any state of the Confederate States of America which had not returned to Union control by January 1, 1863. None returned.

Emancipation Proclamation
Emancipation Proclamation

Thus, the actual Proclamation, which was issued on January 1, 1863, proclaimed all those enslaved in Confederate territory to be forever free, and ordered the U.S. Army (and all segments of the Executive branch) to treat as free all those enslaved in that territory.


[1]  A prior post contained a brief account of the War. This post is based upon Chapter VII “Rebellion in Minnesota: ‘A Most Terrible and Exciting Indian War,'” in David A. Nichols, Lincoln and the Indians: Civil War Policy and Politics (Minn. Historical Soc’y Press; 1978, 2000, 2012). This enjoyable book is regarded as the definitive study of President Lincoln’s policies and actions regarding Native Americans, and a future post will rely upon its discussion of President Lincoln’s review of the U.S. military commission’s convictions and sentences of Dakota men after the War.

[2] General Pope’s statement along with a similar statement at the time by Governor Ramsey raise interesting legal issues that will be discussed in another post.

Minneapolis and St. Paul Declare the U.S.-Dakota War of 1862 “Genocide”

The Minnesota Twin Cities of Minneapolis and St. Paul recently adopted resolutions declaring that the U.S.-Dakota War of 1862 was “genocide.”[1]

Mpls seal

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.”

StPaullogo

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.”

Comments

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.

Raphael Lemkin
Raphael Lemkin

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.

Governor Alexander Ramsey
Governor Alexander Ramsey

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 be exterminated 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].”

General John Pope
General John Pope

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.)


[1] This account of the two resolutions is based upon the following: Melo, St. Paul City Council commemorates U.S.-Dakota War of 1862, Pioneer Press (Jan. 9, 2013); Duchschere, St. Paul follows Minneapolis in labeling U.S.-Dakota War as ‘genocide,’ StarTribune (Jan. 10, 2013); Steinmann, Year of the Dakota Resolution passed in St. Paul, denouncing genocide, Daily Planet (Jan. 10, 2013).

Commemoration of the150th Anniversary of the Hanging of the “Dakota 38”

Today (the day after Christmas) marked the sesquicentennial of the hanging of 38 Dakota men in Mankato, Minnesota for their conviction of crimes committed in the U.S.-Dakota War of 1862.[1]

This solemn event was commemorated at the site of the hanging in what is now called Reconciliation Park in that city. Arvol Looking Horse, a Dakota/Lakota leader, said this event marked the ending of a long journey. “Today, being here to witness a great gathering, we have peace in our hearts — a new beginning of healing,” he said.

To dedicate a new memorial containing the names of the 38 men with a poem and prayer, Sidney Byrd, Dakota/Lakota elder, read the names of the 38 men in the Dakota language.  Byrd also said, “I’m proud to be with you today. My great-grandfather was one of those who paid the supreme price for our freedom.” Although originally sentenced to death , his great-grandfather’s sentence was commuted to imprisonment in Davenport, Iowa, where many died from horrible conditions.

Dakota riders, Mankato, MN 12/26/12
Dakota riders, Mankato, MN 12/26/12

The ceremony was joined by around 60 Dakota men who arrived on horseback from South Dakota and other Dakota men who ran from Fort Snelling. (The photo is by Pat Cristman in the Mankato Free Press.)

The Dakota people who helped plan the new memorial and the ride and run marked the anniversary by saying, “Forgive everyone everything.” Those words will be engraved in Kasota stone benches that will be placed around the new memorial next summer.

The Mayor of the city of Mankato read a proclamation declaring this the year of “forgiveness and understanding.”


[1] This post is based upon Tim Krohn, “Forgive everyone, everything,” Mankato Free Press (Dec. 26, 2012). The StarTribune for Minneapolis/St. Paul today re-published the New York Times‘ detailed report of the hanging from December 26, 1862.