Instead, settlers vigorously complained that the regular army was failing to meet the Indian threat more aggressively. A large-scale uprising of the Sioux in Minnesota in , in which Indian war parties killed, raped, and pillaged all over the countryside, left in its wake a climate of fear and anger that spread over the entire West.
Colorado was especially tense. Cheyenne and Arapahoe Indians, who had legitimate grievances against the encroaching white settlers, also fought for the sheer joy of combat, the desire for booty, and the prestige that accrued from success. The overland route to the East was particularly vulnerable: at one point in , Denver was cut off from all supplies, and there were several butcheries of entire families at outlying ranches. It was a local force of such volunteers that committed the massacre of Sand Creek, Colorado on November 29, Formed in August, the regiment was made up of miners down on their luck, cowpokes tired of ranching, and others itching for battle.
Its commander, the Reverend John Milton Chivington, a politician and ardent Indian-hater, had urged war without mercy, even against children. The ensuing orgy of violence in the course of a surprise attack on a large Indian encampment left between 70 and Indians dead, the majority women and children. The regiment suffered eight killed and 40 wounded.
News of the Sand Creek massacre sparked an outcry in the East and led to several congressional inquiries. Although some of the investigators appear to have been biased against Chivington, there was no disputing that he had issued orders not to give quarter, or that his soldiers had engaged in massive scalping and other mutilations.
The sorry tale continues in California.
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The area that in became admitted to the Union as the 31st state had once held an Indian population estimated at anywhere between , and , By the end of the 19th century, the number had dropped to 15, As elsewhere, disease was the single most important factor, although the state also witnessed an unusually large number of deliberate killings. The discovery of gold in brought about a fundamental change in Indian-white relations.
Whereas formerly Mexican ranchers had both exploited the Indians and provided them with a minimum of protection, the new immigrants, mostly young single males, exhibited animosity from the start, trespassing on Indian lands and often freely killing any who were in their way. An American officer wrote to his sister in "There never was a viler sort of men in the world than is congregated about these mines. What was true of miners was often true as well of newly arrived farmers.
By the early 's, whites in California outnumbered Indians by about two to one, and the lot of the natives, gradually forced into the least fertile parts of the territory, began to deteriorate rapidly. Many succumbed to starvation; others, desperate for food, went on the attack, stealing and killing livestock. Indian women who prostituted themselves to feed their families contributed to the demographic decline by removing themselves from the reproductive cycle.
As a solution to the growing problem, the federal government sought to confine the Indians to reservations, but this was opposed both by the Indians themselves and by white ranchers fearing the loss of labor.
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Meanwhile, clashes multiplied. One of the most violent, between white settlers and Yuki Indians in the Round Valley of Mendocino County, lasted for several years and was waged with great ferocity.
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Although Governor John B. Weller cautioned against an indiscriminate campaign—"[Y]our operations against the Indians," he wrote to the commander of a volunteer force in ,"must be confined strictly to those who are known to have been engaged in killing the stock and destroying the property of our citizens.
By the number of Yukis had declined from about 5, to The Humboldt Bay region, just northwest of the Round Valley, was the scene of still more collisions. Here too Indians stole and killed cattle, and militia companies retaliated. A secret league, formed in the town of Eureka, perpetrated a particularly hideous massacre in February , surprising Indians sleeping in their houses and killing about sixty, mostly by hatchet.
During the same morning hours, whites attacked two other Indian rancherias, with the same deadly results. In all, nearly Indians were killed on one day, at least half of them women and children.
Once again there was outrage and remorse. But nothing they had suffered, no depredations the savages had committed, could justify the cruel slaughter of innocent women and children. But atrocities continued: by the 's, as one historian has summarized the situation in California,"only remnants of the aboriginal populations were still alive, and those who had survived the maelstrom of the preceding quarter-century were dislocated, demoralized, and impoverished.
Lastly we come to the wars on the Great Plains. Following the end of the Civil War, large waves of white migrants, arriving simultaneously from East and West, squeezed the Plains Indians between them. In response, the Indians attacked vulnerable white outposts; their"acts of devilish cruelty," reported one officer on the scene, had"no parallel in savage warfare.
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To force the natives into submission, Generals Sherman and Sheridan, who for two decades after the Civil War commanded the Indian-fighting army units on the Plains, applied the same strategy they had used so successfully in their marches across Georgia and in the Shenandoah Valley. Unable to defeat the Indians on the open prairie, they pursued them to their winter camps, where numbing cold and heavy snows limited their mobility.
There they destroyed the lodges and stores of food, a tactic that inevitably resulted in the deaths of women and children. These actions were almost certainly in conformity with the laws of war accepted at the time.
The principles of limited war and of noncombatant immunity had been codified in Francis Lieber's General Order No. But the villages of warring Indians who refused to surrender were considered legitimate military objectives. In any event, there was never any order to exterminate the Plains Indians, despite heated pronouncements on the subject by the outraged Sherman and despite Sheridan's famous quip that"the only good Indians I ever saw were dead.
By this time, the 7th Regiment of U. Cavalry had compiled a reputation for aggressiveness, particularly in the wake of its surprise assault in on a Cheyenne village on the Washita river in Kansas, where about Indians were killed by General George Custer's men. Still, the battle of Washita, although one-sided, had not been a massacre: wounded warriors were given first aid, and 53 women and children who had hidden in their lodges survived the assault and were taken prisoner. Nor were the Cheyennes unarmed innocents; as their chief Black Kettle acknowledged, they had been conducting regular raids into Kansas that he was powerless to stop.
The encounter at Wounded Knee, 22 years later, must be seen in the context of the Ghost Dance religion, a messianic movement that since had caused great excitement among Indians in the area and that was interpreted by whites as a general call to war. While an encampment of Sioux was being searched for arms, a few young men created an incident; the soldiers, furious at what they considered an act of Indian treachery, fought back furiously as guns surrounding the encampment opened fire with deadly effect.
The Army's casualties were 25 killed and 39 wounded, mostly as a result of friendly fire. More than Indians died.
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Wounded Knee has been called"perhaps the best-known genocide of North American Indians. In a situation where women and children were mixed with men, it was inevitable that some of the former would be killed. But several groups of women and children were in fact allowed out of the encampment, and wounded Indian warriors, too, were spared and taken to a hospital.
There may have been a few deliberate killings of noncombatants, but on the whole, as a court of inquiry ordered by President Harrison established, the officers and soldiers of the unit made supreme efforts to avoid killing women and children. On January 15, , the last Sioux warriors surrendered.
The Genocide Convention was approved by the General Assembly of the United Nations on December 9, and came into force on January 12, ; after a long delay, it was ratified by the United States in Since genocide is now a technical term in international criminal law, the definition established by the convention has assumed prima-facie authority, and it is with this definition that we should begin in assessing the applicability of the concept of genocide to the events we have been considering.
According to Article II of the convention, the crime of genocide consists of a series of acts" committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such" emphases added. Practically all legal scholars accept the centrality of this clause. During the deliberations over the convention, some argued for a clear specification of the reasons, or motives, for the destruction of a group.
In the end, instead of a list of such motives, the issue was resolved by adding the words"as such"—i. Evidence of such a motive, as one legal scholar put it,"will constitute an integral part of the proof of a genocidal plan, and therefore of genocidal intent. The crucial role played by intentionality in the Genocide Convention means that under its terms the huge number of Indian deaths from epidemics cannot be considered genocide.
The lethal diseases were introduced inadvertently, and the Europeans cannot be blamed for their ignorance of what medical science would discover only centuries later.
Similarly, military engagements that led to the death of noncombatants, like the battle of the Washita, cannot be seen as genocidal acts, for the loss of innocent life was not intended and the soldiers did not aim at the destruction of the Indians as a defined group.
By contrast, some of the massacres in California, where both the perpetrators and their supporters openly acknowledged a desire to destroy the Indians as an ethnic entity, might indeed be regarded under the terms of the convention as exhibiting genocidal intent. Even as it outlaws the destruction of a group"in whole or in part," the convention does not address the question of what percentage of a group must be affected in order to qualify as genocide. As a benchmark, the prosecutor of the International Criminal Tribunal for the Former Yugoslavia has suggested"a reasonably significant number, relative to the total of the group as a whole," adding that the actual or attempted destruction should also relate to"the factual opportunity of the accused to destroy a group in a specific geographic area within the sphere of his control, and not in relation to the entire population of the group in a wider geographic sense.
Of course, it is far from easy to apply a legal concept developed in the middle of the 20th century to events taking place many decades if not hundreds of years earlier. Our knowledge of many of these occurrences is incomplete. Moreover, the malefactors, long since dead, cannot be tried in a court of law, where it would be possible to establish crucial factual details and to clarify relevant legal principles.
While history has no statute of limitations, our legal system rejects the idea of retroactivity ex post facto laws.