Law at Little Big Horn: Due Process Denied, 0816 COBJ, Vol. 45, No. 8 Pg. 70
| Author | Todd L. Lundy, J. |
Reviews of Legal Resources
Todd L. Lundy, J.
by Charles. E. Wright
347 pp.; $45
Texas Tech University Press, 2016, PO Box 41037, Lubbuck, TX 79409-1037, (800) 832-4042; www.ttupress.org
Law at Little Big Horn will not provide the keys to winning your litigation, closing a complex transaction, or representing your client in a difficult domestic relations dispute. It probably will not improve your ability to examine a witness, to persuade the court through oral argument, or to brief a complicated issue before the trial or appellate courts.
Law at Little Big Horn is more important than any of that. This book serves the critical historical objectives of being “on the side of truth,”1 and of describing the “historical conditions”2 behind the massacres of Native American men, women, and children residing peaceably on the American Plains in the aftermath of the Civil War. Readers will discover and learn the sober truth behind the words and actions of “celebrated” political and military leaders who perpetrated this genocide against Americans who first inhabited this country.
Author Charles W. Wright, a lawyer who practiced in Nebraska and Colorado for over 50 years, details the legal and factual context underlying the wars between the U.S Army and Native Americans residing in the Plains States that led to the famous battle on June 25, 1876, along the Little Big Horn River in Southeastern Montana, between Colonel George Custer’s Seventh Calvary and Native Americans of the Sioux and Cheyenne tribes. Wright opens with the legal framework guaranteeing basic rights of citizenship to all Americans and specifically to Native Americans residing in the Great Plains. As the title foretells, preeminent among these protections is the Constitution’s Fifth Amendment right to due process. Supplementing this constitutional guarantee are several acts of Congress and treaty agreements. In 1789, Congress ratified the Northwest Ordinance of 1787, which mandated utmost good faith in the treatment of Native Americans and a prohibition upon forcible takings of their property rights and liberties, absent a declaration of war by Congress.3 The Louisiana Purchase of 1803 included a treaty provision extending to the inhabitants of the ceded territory “all the rights, advantages and immunities of the citizens of the United States,” who were to be “protected in the free enjoyment of their liberty, property, and the religion which they profess.”4 As a condition of recognizing Montana as a territory, Congress in 1864 passed legislation requiring that “all treaties . . . made by the government of the United States with Indian tribes inhabiting the territory . . . shall be fully and rigidly observed.”[5] And the 1868 Treaty of Fort Laramie, ratified by the Senate and proclaimed law by President Andrew Johnson, granted the Sioux hunting and exclusive occupancy rights on land north of the North Platte River and east of the Bighorn Mountains, where the battle at Little Big Horn occurred.6
Wright also describes ordinances issued by the War Department containing the rules of engagement for the military. Chief among them was Ordinance No. 100, published in 1863. Adopted by President Lincoln, and also by the Confederate States, Ordinance No. 100 specified “Instructions for the Government of Armies of the United States in the Field,” and was the official...
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