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Volume 25, No. 10 – October 2012

Volume 25, No. 10
Editor: Stephen L. Seftenberg

President’s Message

I am so pleased that the Round Table is starting its twenty-sixth year. There will be nominations for officers in November.  Please consider running and giving some time to the Round Table.  It is always appreciated and will help the organization to continue being strong and vibrant.

Gerridine LaRovere, President

October 10, 2012 Assembly

Our Speaker in October will be member William D. McEachern, Esq. (remembered as "Judge David Davis," the brains behind Abe Lincoln’s nomination in 1860).  Bill will talk about his great great grandfather, who fought for the South as part of the Wade Hampton Legion, drawing upon diaries, letters and research to evoke what it must have been like to be a combatant in the Civil War.

Wednesday, September 9, 2012 Program
"Custer’s Last Stand"

Mr. Stephen Singer’s varied career includes practicing defense law in New York City, being a case worker in New York City Department of Welfare, being an agent with the U.S. Treasury Department Intelligence Division, writing articles for Newsday in Queens, New York, teaching penology at St. Johns University, teaching trial practice at the West Palm Beach Public Defender’s Office, and lecturing on historical subjects and criminal law.

Last StandOur speaker first "called out" member George Nimberg for inviting him to speak about the two-day disastrous "event" on the Little Big Horn River in Montana, June 25 and 26, 1876, that captured the American imagination as "Custer’s Last Stand."  Hundreds of books have been written about George Armstrong Custer and his famous battle; illustrations of it were hung behind bars courtesy of Ballentine Beer and movies such as "They Died With Their Boots On," and "Little Big Man" drew millions of viewers.  No one then and even now could believe that U. S. troopers could be overcome by a bunch of savages.

Lots of things were going on in 1876, the Centennial Year of the Declaration of Independence.  The Northeastern U. S. was in the midst of an Industrial Revolution and urbanization.  If the West was still "vacant" territory, it would not be so for long.  According to the New York Morning Post it was America’s "Manifest Destiny" to possess the whole continent!  A partial chronology of relevant incidents:

January 31 -- the first Kindergarten class was held; February 1 -- the National "Baseball" League was organized; March 10 -- Alexander Graham Bell uttered those famous words, "Mr. Watson, come here, I want you" over the "telephone;" May 8 -- Wyatt Earp was appointed City Marshall of Dodge City, Kansas; May 10 -- the Centennial Exposition opened in Philadelphia; June 11 -- Rutherford B. Hayes was nominated by the Republican Convention; June 29 -- Samuel J. Tilden was nominated by the Democratic Convention; August 1 -- Colorado was admitted as the 38th state with three electoral votes; August 2 -- "Wild Bill" Hickok was shot in the back by Jack McCall while holding Aces and Eights (forever after called "the Dead Man’s Hand"); August 10 -- President Grant’s Secretary of War, William Belknap, who had been impeached in the House, was found "Not Guilty" in the Senate; and finally (shades of the 2000 election!), Democrat Tilden won the popular vote 50.1% to 47.9%, but Republican Hayes was awarded the 1876 election March 2, 1877, 185-184, by a special commission set up by Congress to allocate 20 disputed votes (four from Florida!), which gave all 20 to Hayes as part of a deal between the parties that ended Reconstruction.

American history is full of disgraceful conduct toward the American Indians.  The repudiation of solemn treaties and expressions of contempt for Indians were nothing new:  In 1861, the United States "renegotiated" an 1851 treaty with seven Indian nations, leaving them with only 1/13th of their original territory.  On November 29, 1864, Colorado militia led by Col. John Milton Chivington, massacred every man, woman and child of a group of "friendly" Indians camped at Sand Creek, Colorado.  Asked, "Why kill the children?", the response was: "Nits make lice."  The attitude of many Americans was brutally summed up by Col. Chivington: "Damn any man who sympathizes with Indians! ...  I have come to kill Indians, and believe it is right and honorable to use any means under God's heaven to kill Indians." Gen. Philip Sheridan echoed this in 1869: "The only good Indian is a dead Indian."

CusterHow does Custer fit into this? Custer, who had finished last in his class at West Point, racking up record demerits for disregard of orders and "pranks," was probably the best cavalry man on the Northern side in the Civil War.  His units suffered the highest casualty rates and he was noted for wild charges in which he lost two-thirds of his men.  But he won, for which he took credit, was noted for "Custer’s Luck" and did play a key role in the Northern victory at Gettysburg.  Promoted to "brevet" Major General during the Civil War, at the end of the war Custer reverted to Captain but always referred to himself as "General Custer."  Custer was a gambler who hung out with the surviving Booth brothers and other actors on Broadway and a terrible plunger in stocks who lost more than he won.  He wrote books to pay his bills.  In 1867, Custer was court-martialed at Fort Leavenworth, Kansas (for going AWOL from his post to see his wife) and was suspended from duty for one year.  At the request of Maj. Gen. Philip Sheridan, who wanted Custer for his planned winter campaign against the Cheyenne, Custer was allowed to return to duty in 1868, before his term of suspension had expired.

Custer could not stand prosperity: in the 1870's, he intimated that he knew "something" involving President Grant’s daughter in an alleged scandal.  From that moment Grant hated Custer. Not a "cool" career move!  This time, William Tecumseh Sherman, Commanding General of the Army, came to his rescue.  In 1876, while planning moves against the Indian "hostiles," Sherman told President Grant that Custer was one of the few men who knew how to fight Indians.  Grant acceded to Sherman’s request, saying, "It’s your responsibility."  The commander of the 7th Cavalry was reassigned in favor of Custer.  Sherman probably had in mind Custer’s "victory" in the Battle of Wichita (also known as the "Wichita Massacre").

In the summer of 1868, Indians had raided white settlements in Kansas, Colorado, and Texas.  Black Kettle was one of the few Indian chiefs who wanted peace with the whites.  On November 27, 1868, Custer led a detachment that attacked his camp on the Wichita River, even though Black Kettle had come out waving both an American flag and a white flag!  Black Kettle and his wife were shot in the back as they fled.  Custer captured 53 women and children he intended to use as "human shields" to induce the Indians to surrender without a fight.  Wrong!  When the shooting ended, Custer claimed to have killed 103 Indian warriors (the Army later reported only 50 had been killed).  Without Custer's approval, Maj. Joel Elliott pursued a group of fleeing Cheyenne, ran into a party of warriors rushing to aid Black Kettle's encampment, who killed in all 20 troopers, including Elliott.  Custer's abrupt withdrawal from the field, without trying to determine Elliott’s fate, darkened Custer's reputation among his peers.  Deep resentment within the 7th Cavalry never healed.  In particular, Eliott's friend, Capt. Frederick Benteen, never forgave Custer, calling it a "dereliction of duty" to abandon Elliott and his troopers.  Moreover, Maj. Marcus Reno also hated Custer for excluding him from his "in group" of his brother, Tom Custer, a nephew, and brother-in-law.

In 1868, the United States entered into a solemn treaty with the Indians granting their sacred Black Hills in the Dakota Territory to the Indians "in perpetuity."  In 1874, shortly after gold was discovered in the Black Hills, Custer led an expedition to the Black Hills, to "look for new forts."  The fact that, against Army Regulations, he was accompanied by newspaper reporters and mining officials put the lie to that!  In 1875, the Cheyenne and Sioux Indians were asked to "renegotiate" the 1868 Treaty.  They were offered lots of American dollars but the Indians had no concept of money and rejected the offer.  In reaction, in 1877, the Senate abrogated this treaty!  [The United States Supreme Court, in U. S. v. Sioux Nations of Indians, 448 U. S. 371 (1980) at 372, held succinctly:  "In 1877, Congress passed an Act (1877 Act) [that] in effect, abrogated the [1868] Treaty ...  [and] effected a taking of tribal property which had been set aside by the Fort Laramie Treaty for the Sioux' exclusive occupation, which taking implied an obligation on the Government's part to make just compensation to the Sioux.  That obligation, including an award of interest, must now be paid."  The Sioux refused the money offered, and continue to this day to insist on their right to occupy the land!]

The publicity following Custer’s expedition into the Black Hills led to a gold rush that threatened a new Indian War.  For Custer, a new Indian War would lead to military glory and a political career.  Custer was a self-promoter who designed his own uniforms and wore his golden hair long, earning the nickname from the Indians of "Long Hair."  He (and especially his wife) wanted him to be President, and that was not beyond expectations – after all military heroes, from George Washington to U. S. Grant had done it.

Sitting BullAnd the war came. Sitting Bull, a religious not a war chief of the Sioux nation, was born around 1831 and after the end of the Civil War had toured with "Wild Bill" Hickok.  "In 1875, Sitting Bull created the Sun Dance alliance between the Lakota and the Cheyenne, a religious ceremony which celebrates the spiritual rebirth of participants."  The ceremony, immortalized in the movie, A Man Called Horse, starring Richard Harris, involves hooks in the chest of the dancer connected to a lodge pole.  The dancer danced without food or drink for days until he had visions.  One such ceremony had taken place around June 5, 1876, on the Rosebud River in Montana, involving as many as 15,000 Indians, including Agency Indians who had slipped away from their reservations to join the hostiles.  During the event, Sitting Bull reportedly had a vision of "soldiers falling into his camp like grasshoppers from the sky."  At the same time, military officials had a summer campaign underway to force the Lakota and Cheyenne back to their reservations, using infantry and cavalry in a three-pronged approach." (Quotes from Wikipedia).  The orders were to round up or kill the "hostiles." 

Col. John Gibbons led six companies of infantry and four companies of cavalry east along the Yellowstone River.  Brig. Gen. George Crook led 15 companies of cavalry and five companies of infantry toward the Powder River.  Brig. Gen. Alfred Terry led 12 companies of cavalry under the direct command of Custer plus two companies of infantry and a battery of Gatling guns West toward the Powder River where he hooked up with Gibbon and a river boat.  Each column employed numerous Indian scouts.  Their routes are shown on the map below right.

Were these "crack" troops? Hardly. After the Civil War, the American public did not support a3 prongs standing Army.  As a result, the Army was reduced in size, undertrained, underarmed and underpaid.  "About 20 percent of the troopers had been enlisted in the prior seven months (139 of an enlisted roll of 718), were only marginally trained, and had no combat or frontier experience.  A sizable number of these recruits were immigrants from Ireland, England and Germany, just as many of the veteran troopers had been before their enlistments and many had little or no English!  Archaeological evidence suggests that many of these troopers were malnourished and in poor physical condition, despite being the best-equipped and supplied regiment in the army."  [Wikipedia] In addition, many of the horses were untrained and could not be trusted not to panic under fire.  Finally, the Army declined to equip the infantry with repeating rifles (such as the Spencer, Henry or Winchester models) because it assumed the soldiers would "waste" ammunition.  Instead, they were issued the venerable single-shot Springfield rifle, which shot huge bullets and was accurate at over 300 yards, but had to be reloaded after each shot!  The 7th Cavalry carried single-shot Springfield Model 1873 carbines, caliber .45–70.  These carbines had a slower rate of fire than the repeating rifles and tended to jam when overheated.  The cavalry carbines had been issued with copper cartridges.  Troopers soon discovered that the copper expanded in the breech when heated upon firing; the ejector would then cut through the copper and leave the case behind, thus jamming the carbine!  Troopers were forced to extract the cartridges manually with knife blades.  As a result, the carbines were nearly useless in combat except as clubs.  Unfortunately, the troopers were going to face guerrilla tactics in which the hostiles charged in, shot up the troops and raced away.  At least, officers were issued the six-shot 45 caliber pistol.

In additional poor planning, Custer decreed that the cavalry must leave its sabers behind for fear they would cause "too much noise" and alert the Indians!  This meant that once the soldiers and troopers had shot their guns, there was no time to reload and the only weapon available for the resulting hand-to-hand combat were the rifle stocks.  Custer also ordered that the Gatling guns be left behind as too cumbersome and noisy.  Finally, he failed to have his troops carry entrenching tools that had been used in the Civil War.  He also limited his force to 650-700 men, as "more than enough to fight the savages."

On June 17, 1876, Crook’s column faced off on Rosebud Creek against a force of Cheyenne and Lakota braves estimated at between 600 and 1,700 strong.  The battle was hard fought and Crook claimed victory, but in reality he was forced to return to his base camp at Goose Creek and therefore never hooked up with Custer.

Terry and Gibbon marched South toward the Big Horn River.  The plan was for all three columns toOperations converge and "engulf" Indians suspected to be camping there. See map at right.  On June 22, Terry sent Custer (with 31 officers and 566 enlisted men) to reconnoiter and report back.  He told Custer to locate the Indians, but not take them on by himself.  Instead he was to wait for Terry, Gibbon and Crook to join him (not knowing that Crook wasn’t coming) at which time they would outnumber the hostiles.  Fatally he also gave Custer "prerogative to depart from order upon seeing ‘sufficient reason!" (Emphasis added)

Custer’s Indian scouts reported that the Indians ahead were too numerous for Custer to defeat by himself.  True to his reckless character, Custer called them "cowards" and went to see for himself.  At this moment someone dropped a crate of hardtack.  A group of Indians quickly located it, but were chased off.  By this time, Custer must have known he had lost any chance of surprise.  The Indians knew he was there but did not believe he would be so stupid as to attack them.  Custer pushed his men to an all-night march. Dawn found them exhausted, but Custer decided to attack.  After all, how else could he get all the glory?

He then divided his forces into three groups: Reno and Benteen were ordered to attack from the Southeast, while Custer "snuck" around to the North so he could attack from the Northwest. Reno, who may have been drunk, "lost" it when a scout next to him is hit in the head, splattering Reno with his blood and brains.  Reno then issued confusing commands:  "Dismount," Mount" and finally "Retreat," with every man for himself.  He lost 33 men this way.  Reno’s men straggled onto a hill (now called "Reno Hill").  "Benteen's column had been summoned by Custer's bugler with a hand-written message "Come, big village, be quick, bring packs" (ammunition), meaning that by this time Custer was most likely aware of the large numbers of Natives he was about to face.  Benteen's coincidental arrival on the bluffs was just in time to save Reno's men from possible annihilation.  "Despite hearing heavy gunfire from the north, including distinct volleys at 4:20 PM, ...  Benteen concentrated on reinforcing Reno rather than continuing on toward Custer.  Benteen's apparent reluctance to reach Custer prompted later criticism that he had failed to follow orders." [Wikipedia] (see map below).

SketchCuster intended to come down west of the Indian camp, but came down directly into it and was quickly surrounded.  He and his troops retreated to "Last Stand Hill."  Army procedure was for troopers to divide into groups of five with one trooper holding all the horses, which had the extra ammunition in their saddlebags.  The Indians, for the first time in history, fought in an organized manner, first concentrating on scaring off the horses carrying the troopers’ ammunition.  The grass was waist high and the Indians, who had better weapons than the troops, then picked off one group at a time.  In about one hour, it was all over. 207-215 American troops and scouts died while the Indians suffered only 60 dead.  The Custer "clan" was nearly wiped out.  Did anyone escape?  An Indian scout, Curley, was the only acknowledged survivor of the Last Stand.  One trooper may have escaped but would never talk about it.

RenoReno, who had distinguished himself in the Civil War, did not find postwar life congenial and took to drinking.  In 1877, he was court-martialed for "conduct unbecoming an officer and a gentleman" after being accused of making unwanted advances to a captain's wife.  He was suspended from the service for two years without rank and pay.  Only President Hayes' intervention saved him from dismissal.  Responding to charges of cowardice and drunkenness at the Little Big Horn,  Reno was granted a Court of Inquiry.  The court convened in Chicago in January 1879.  Enlisted men later stated they had been coerced into giving testimony favorable to both Reno and Benteen.  The court reporter wrote that the entire inquiry was a "whitewash."  The court did not sustain any of the charges against Reno, but did not single him out for praise.  The U.S. Army wanted to avoid bad press and exculpated Custer by blaming the defeat on the Indians' alleged possession of numerous repeating rifles and overwhelming numerical superiority rather than Custer’s mistakes and the fact his subordinates hated him and left him to his fate.  Custer’s widow, who lived until 1933, fiercely protected her husband's reputation. In addition, Capt.Reno Frederick Whittaker's best selling 1876 book idealized Custer as a heroic officer fighting valiantly against savage forces.  This image was popularized in Wild West extravaganzas hosted by showmen "Buffalo Bill" Cody and Pawnee Bill.

The Battle of Little Big Horn could with justice be called the "Indians’ Last Stand."  Congress quickly enlarged the size of the Army and reconstituted the 7th Cavalry, which exists today.  By May 7, 1877, Gen. Nelson Miles had defeated the last Indian hostiles. Sitting Bull escaped to Canada, only to be assassinated on December 15, 1900, age 59. Crazy Horse surrendered and was killed on September 5, 1877, age 36.

Mr. Singer then responded to many questions before receiving well-earned applause.


[Editor’s note: Seldom do I run across an article that opens my eyes to a facet of the Civil War that I never knew like the following extract of a column from The New York Times, September 22, 2012, by Yale Law Prof. John Fabian Witt, taken from his book, Lincoln’s Code: The Laws of War in American History.]

"`How the Emancipation Proclamation

Changed Modern Warfare

New Haven -- On September 22, 1862 -- 150 years ago today -- Abraham Lincoln announced the Emancipation Proclamation, promising to free the slaves in any state still in rebellion on Jan. 1, 1863. Americans have celebrated Lincoln's proclamation and argued about its meaning, ever since. But there's a surprising legacy that few Americans know anything about, one that historians have overlooked. Emancipation touched off a crisis for the principle of humanitarian limits in wartime and transformed the international laws of war. In the crucible of emancipation, Lincoln created the rules that now govern soldiers around the world.

Ever since 1775, when the royal governor of Virginia offered freedom to slaves who would turn against their revolutionary masters, American soldiers and statesmen held that freeing an enemy's slaves was anathema to civilized warfare. In the War of 1812, British raiders encouraged thousands of slaves to escape to freedom. For years, the American government pursued compensation from the British, contending that the laws of war protected slave owners from enemy depredations.

The irony of a law that protected slave owners rather than slaves was not lost on European critics. But Americans argued that to seize an enemy's slaves was to make war on civilian economic resources. White Southerners further argued that arming an enemy's slaves invited terrible atrocities by freed people against their former masters...  Southern whites reacted with fury. Jefferson Davis condemned it as barbaric and inhumane, and swore never to treat black Union soldiers as prisoners of war. Instead he promised to punish them and their white officers as criminals subject to enslavement or execution. The Union pledged to retaliate in turn. It soon seemed that efforts to limit war might collapse altogether.

The South's threats forced the Union to state its position on the laws of war. In December 1862, Lincoln's General in Chief, Henry W. Halleck, at Lincoln’s behest, had Columbia professor Francis Lieber draft a pamphlet-length statement of the Union's view of the laws of war setting out humane rules prohibiting torture, protecting prisoners of war and outlawing assassinations. It distinguished between soldiers and civilians and it disclaimed cruelty, revenge attacks and senseless suffering.

Most of all, the code defended freeing enemy slaves and arming black soldiers as a humanitarian imperative and not as an invitation to atrocity. And it insisted that the laws of war made "no distinction of color"--indeed, mistreatment of black soldiers would warrant righteous retaliation by the Union.

The pocket-size pamphlet quickly became the blueprint for a new generation of international treaties, up to the Geneva Conventions of 1949.

The code had been devised just as Lincoln abandoned what he called the "rose-water" tactics of the war's first year in favor of the much more aggressive strategy signaled by emancipation. And it set in motion the great paradox of the modern laws of war. The code arose out of the greatest moral triumph of modern political history emancipation-- and was aimed at limiting war's destruction. In a sense, the code succeeded: the feared terrors of a mass slave insurrection never came to pass.

But by authorizing freedom, the new code also licensed a powerful and dangerous war strategy. It was a tool of the Union war effort. That is why the Lincoln administration issued it, and that is why the most powerful states in the European world signed on to versions of it in the decades that followed.

The rules of armed conflict today arise directly out of Lincoln's example. They restrain brutality. But by placing a stamp of approval on "acceptable" ways to make war, they legitimate terrible violence. The law does not relieve war of all its terrors; it does not even purport to. But it stands as a living reminder, a century and a half later, of how thoroughly the United States' most significant moment still shapes our moral universe."


Last changed: 10/02/12

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