Law at Little Big Horn: Due Process Denied by Charles E. Wright (review)

Charles E. Wright's work breaks new ground in an otherwise crowded field of literature surrounding the actions of Custer at Little Big Horn by focusing the reader's attention upon the legal dimensions of military engagement with Indians at the end of the 19th century. The text begins with several chapters about Custer's background and training. These break no new ground and read more like a recitation of dates and facts with too little focus on providing a narrative or setting up the events that follow. Accordingly the thesis of the argument—that the due process rights of Plains Indians were violated by the US military's pursuit of Indians on land reserved by treaty for their use—is buried until the second quarter of the text.

However, when Wright begins his actual narration of events leading up to, during, and following the battle at Little Big Horn, the prose becomes more focused and precise and a clear narrative is taken up with the goal of justifying his premise that the Plains Indians had their life, liberty, and property taken without the guarantees of due process granted by the Constitution. While a clear goal emerges, Wright's legal argument suffers at times from several criticisms. In places he conflates the violation of a treaty right (which is made with a tribe) with the violation of due process (which is guaranteed to individuals) without clearly indicating to the reader the difference between the two.

Perhaps more importantly, Wright, in places, judges the actions of 1877 by the legal principles present in 2016. For example, he claims that President Grant was waging an unconstitutional and undeclared war against the Indians, and, while recognizing that Indians were not considered citizens in 1877, discusses the legal consequences of the battle as if they were able to exercise those rights. There is nothing wrong with this approach. An understanding of history through a modern lens can open new understandings and begin a process of reconciliation that is vital to both modern policy making as well as to historians. However, the text could benefit from Wright more clearly admitting that is what he is doing—thus allowing the reader to more critically engage his argument. For example, there is no record of American courts in 1877 declaring the Sioux wars unconstitutional nor was there uniform acceptance that the total war strategy imposed by the destruction of Indian property and the targeting of noncombatants, including Indian women and children, was considered an unconstitutional violation of their due process rights. In fact it is questionable whether, in 1877, American courts recognized that the due process clause extended to Indians at all. This approach is further muddled toward the end of the text when Wright uses both modern legal principles as well as military law and military practice from the period of 1877 to advance his central thesis. The legal arguments advanced by Wright's work are incredibly important, but the context in which they were made (judging the actions of 1877 both by the military standards in place at the time and by modern constitutional standards) could have been clearer and would have given the work additional credibility.

Despite moments where the legal argument lacks clarity and precision, the general thrust of Wright's argument and the text in general has much to recommend it. In particular, Wright makes a meaningful contribution with his inclusion of many maps containing his own markings that make the narrative story of the events surrounding the battle at Little Big Horn easy to follow. He draws upon both common military practice and actual military directives in place in 1877 to make a compelling legal argument that Custer's actions at Little Big Horn should be considered unlawful both by the rules of engagement in place at the time and by modern standards. Whether or not the reader is ultimately...