Indians of the Great Lakes region subscribed to a kinship-centered system of justice.
In the case of murder, the victim's family was obligated to retaliate in kind against the perpetrator's family unless the presentation of a suitable gift could be arranged to "cover the dead," that is, assuage the aggrieved relatives. Similar customs applied as well to intertribal killings, and quite naturally, Indians expected to continue their practice of justice in whatever conflicts would arise with white settlers. In doing so, they were frustrated by the Anglo-American legal system, in which, rather than the family, administered justice. One such confrontation in frontier Illinois occurred when Winnebago Indians attempted to assert their ethos in coping with the intrusion of whites into the upper Mississippi Valley.
The Winnebagos were a Siouan-speaking people encountered by the French in the Green Bay vicinity in the early 1600s. Over the next two centuries, members of the tribe pursued the fur trade throughout south-central Wisconsin and northwestern Illinois along the Rock River and its tributaries. In the War of 1812, several Winnebago bands fought alongside the British and their allies, Tecumseh and the Shawnee Prophet. Later, leaders of the bands were upset when they learned that their British allies had made peace with the Americans. The leaders remained disgruntled when Superintendent of Indian Affairs William Clark invited them to send a peacemaking delegation to his headquarters at St. Louis. Still influenced by British traders, they were not anxious to acknowledge fealty to the Americans. While at least one band of Winnebago under Choukeka (Spoon or Ladle) Decora signed the June 3, 1816, treaty of amity, other bands refused.
Tensions increased as lead miners, traders, and military men penetrated Winnebago lands. The newcomers commonly assessed the Winnebago demeanor as fiercely independent, resistant to "civilization," sullen, and aloof.
American officials expressed irritation that the disaffected Winnebago bands continued to make seasonal visits to British posts at Fort Maiden across the strait from Detroit and at Drummond Island at the northern end of Lake Huron. There they received presents and encouragement from sympathetic British commanders.
American efforts at stopping the trips could have been more effective. Colonel Joseph Lee Smith, commander of the Third Infantry Regiment at Fort Howard (Green Bay), regarded the Winnebagos as "vicious," "active," and having a "mischievous character." As proof, in January 1820, he related the following example of Winnebago's duplicity with the British. A band claiming they were bound for Mackinac had stopped making friendly statements States. On departing, however, instead, Drummond obtained British gifts; on bypassed Fort Howard. Discovered and destroyed a hill near Lake Winnebago Green Bay. He argued that only the presence of an intimidating force of Americans would hold in check the tribe's "evil and unfriendly propensities."
At about the same time, traders and government officials at Green Bay experienced hostility as they attempted to cross waterways near Winnebago villages. An Indian from a village at Lake Winnebago fired a shot that pierced the awning of a boat carrying Captain William Whistler, his three children, and four or five soldiers. The boat flew the American flag. Whistler stopped the vessel and ordered his interpreter to make inquiries. The Winnebago declared that they controlled the route and that no vessel could pass without their permission. As no one was injured and because Whistler did not wish to press matters at that point, he and his party proceeded unmolested.
In retaliation for the harassment, John Bowyer, the Indian agent at Green Bay, soon arrested The Smoker, a visiting "great chief of the Winnebagos." Replying to Bowyer's interrogation, The Smoker professed ignorance of the attack but stated that if the reports proved true, he would bring in the band's leader (who, in the meantime, had reportedly gone on a hunt up the Mississippi) "before the Ice [is] made." With that guarantee, Bowyer released The Smoker and announced that the first chief who approached the fort would be imprisoned if the matter were not resolved by spring.
In a letter to Michigan Territorial Governor Lewis Cass, Bowyer described the Winnebagos as "unfriendly to the Government." He cautioned that "their character with the white and red people are bad, they are great liars and robbers" and that "no dependence can be placed in what they say."
Bowyer's reports described several confrontations. A boat belonging to a trader named Ermatinger was shot in the mast while crossing Lake Winnebago. On the Fox River, an army surgeon reported that he had been treated "insolently" by Winnebagos, who seized and searched his baggage. Nothing short of placing a strong garrison at the Fox-Wisconsin portage, Bowyer insisted, would "keep this tribe in order."
In the spring of 1820, Thomas Forsyth, an agent at Rock Island, reported to Clark that the Winnebagos had been "daring and impudent" in the vicinity of Fort Armstrong, killing government-owned cattle and repeatedly stealing corn from the Sauks. Clark showed little inclination to trust a delegation of principal men from a Rock River Winnebago band who met him in St. Louis "on a visit of inquiry and friendly professions." In passing on Forsyth's report, Clark claimed to Secretary of War John Caldwell Calhoun that "no confidence can be placed in this vicious Tribe" because "they have later been very insolent and even threatened Fort Armstrong after having killed their cattle." Clark asserted that a lesson for the Winnebago renegades was long overdue, for "they appear not to have any respect for our government, and friendly councils have never produced any favorable effect in preventing their excesses."
To Forsyth, Clark urged vigilance, yet he admitted that he did not know what the federal government intended to do about the murderers. In April 1820, when Governor Lewis Cass was embarking on a tour of the Northwest, Calhoun reminded him that "certain individuals of the Winnebagoes, Chippewas, and Menomonee have evinced a hostile spirit, which must be repressed." In consultation with each tribe, wrote Calhoun, Cass should "represent to them the desire of the Government to cultivate friendly dispositions towards them, but which cannot be continued unless they effectually restrain the hostile conduct of their people."
In July, the scholarly Jedidiah Morse spent fifteen days in the vicinity of Green Bay on an expedition authorized by the War Department. In his final report, Morse stated that he found it difficult to obtain reliable information on the Winnebagos, partly because of the language barrier and partly because "no other tribe seems to possess so much jealousy of the whites, and such reluctance to have intercourse with them." Morse also commented on Winnebago's sense of territoriality. He confirmed that "they will suffer no encroachment upon their soil; nor any persons to pass through it, without giving a satisfactory explanation of their motives and intentions." Whites who failed to take that customary and precautionary step, said Morse, endangered their lives.
At the time, Morse's antipathy towards whites bated to a "state of consideration." Two young warriors' relatives had been accused of the murder and scalping of two soldiers just outside the gates of Fort Armstrong. Both Indian and white behavior during the episode is well documented in letters and reports, and a close analysis of those records reveals important cultural divergence in the matters of retributive justice and punishment.
Francis Paul Prucha observes in his study of United States Indian policy that normal federal procedure in the early 1820s was to demand that accused Indians be surrendered by tribal leaders. If the chiefs resisted, various threats, military expeditions, seizure of hostages, or rewards to cooperative Indians generally achieved the purpose.
To American authorities, the murder and scalping of John Blottenburgh and Clement Attley Riggs, two unarmed soldiers on a woodcutting detail, appeared a wantonly savage act. Leaders of the suspected Winnebago bands were summoned and ordered to surrender the culprits. Calhoun directed Cass and Indian Agent Richard Graham to clarify to Winnebago leaders that such atrocities would not be regarded with impunity. Unless the chiefs demonstrated their loyalty by promptly surrendering the "wicked authors" of the crime, the government would consider the chiefs as participants in guilt, and the entire Winnebago nation would be "made to feel the just vengeance and retribution of the Government." Calhoun asserted that it was the responsibility of the chiefs to avert "disastrous consequences and annihilation." Indian gestures of friendship, while expected, were insufficient; the murderers had to be handed over to federal authorities.
Calhoun, however, urged restraint. Rather than overreact to frontier reports of a contemplated general Winnebago attack on Fort Armstrong, he described the killings as the work of a few individuals acting "without the knowledge or authority of the Chiefs." The latter, he correctly predicted, would "disavow it, or any hostility on the part of their nation towards the United States, but take the most prompt and active measures to cause the perpetrators to be arrested and delivered for punishment."
Although his frontier commanders ─ impatient with slow-moving courts and aware of the difficulties of assembling creditable witnesses ─ often preferred summary execution by firing squad, Calhoun ordered that the accused Winnebagos be transferred to civil authorities. Lieutenant Colonel Henry Leavenworth, who had been summoned from Fort Snelling for the investigation, grumbled: "It would have been better to have executed them and then have tried them ─ If they are tried, they must be executed, or we shall feel the weight of the Winnebago Tomahawk."
To ensure compliance, the Army seized four Winnebagos as hostages. They were released when the chiefs, as promised, brought three men to Prairie du Chien, "preceded by a white flag, and attended by a large concourse of the tribe." The next day Prairie du Chien justices of the peace interrogated the three Indians while the chiefs looked on.
All three of the prisoners belonged to Winnebago bands on the Rock River. In the spring of 1820, they had set out for Fort Armstrong, ostensibly as traders. Sometimes en route, the eldest, Chewachera [or Chewacuhra], implored the other two's assistance in avenging the death of his sister and her husband, who the Indians claimed was attacked and left to drown by American soldiers. One of the warriors was as young as fifteen, and the other was Chewachera's nephew and therefore bound by custom to obey his commands. Jerago, the youngest of the trio, said that he resisted because he knew the act's consequences and their agent would be angry. He cried and begged the others to "forget our Relations that the Americans had killed." After unsuccessfully attempting to wrest the guns from his companions, he fired shots to alert his mother and thwart the plan. Jerago would not disavow his loyalty to his fellow tribesmen in yielding to interrogation. "They went off and killed two soldiers," he said. "I did not wish to be drawn into this business, but since I have had Irons put upon my hands, which hurts me, I will remain with them."
According to stories told separately by each prisoner, there had been no elaborate scheme for ambushing officers at the fort; the act was premeditated only one day. Wading from their camp on the east bank of the river to the island on which the fort stood, the three determined to lie in wait for someone to come out. If no one appeared after a considerable time, they resolved to forego revenge and simply enter the fort, shake hands, and have a friendly smoke ─ the original preference of the two younger men. But when Blottenburgh and Riggs appeared, the warriors shot them, and Chewachera bashed their heads with the back of an axe and scalped them. The three headed back up Rock River without stopping to stretch the scalps on a hoop. En route to their village, they were taunted by their tribesmen for their rash act. Chewachera and his nephew Whorahjinka were "so much cursed" at their lodge that they unceremoniously threw away the Soldiers' scalps.
Winnebago society placed restrictions on individuals who wished to seek retribution. Permission had to be secured from the chiefs. Warriors who failed to receive that permission, or refused to pursue it, subjected themselves to the only restrictive measures that the chief and the community could adopt ─ temporary loss of prestige, the sort of treatment suffered by the three Winnebago.
Chewachera openly admitted his guilt. He absolved the other two of murderous intent and corroborated their versions of the affair. He did, however, amplify his reasons for revenge:
I knew that my sister had been ill-used below I did not think any more of that. I never had any ill intentions until I heard that my sister had been abused ─ Women ought to be respected. My Father did not encourage any person to use women ill. But my sister had been ill-treated. . . and when I came near the place where it was done, I lost my senses and did a bad act I have done it I delivered up my body to the Chiefs what more can I say.
Whorahjinka added that when they were leaving their lodges, the women had cried on behalf of the slain relatives, and the recollection of that scene helped to trigger the killing of the soldiers. Twice he tried to prevent the contemplated act but finally acquiesced because "my body belonged to my Uncle. I was obliged to do as he did or told me to do."
In an effort to ascertain the facts and project an impartial posture, White authorities attested to the veracity of the interpreters used in the proceedings. One of them, an Indian of an unspecified tribe known as Fast Walker, satisfied the whites before he was sworn in that he knew the purpose and obligations attached to an oath, stating that the Great Spirit would not forgive him ─ even beyond the grave ─ should he lie under oath. When asked the customary way in which to bind an Indian's word, Fast Walker replied, "By laying the hand on a Medicine Sack, a ball or an arrow and saying, 'May my Medicine prove bad, or may the ball or the arrow pierce my heart if I tell a lie.' " Rather than request a medicine bag for his own swearing-in, he told the whites: "The Americans know more than the Indians. I see you have a book there you say is the word of God (or the heart of God). I believe it and will attest upon it as you do."
Leavenworth conducted the interrogation before an assemblage of Rock River Winnebago. Referring to Chewachera's accusations, Leavenworth insisted that the matter had been looked into by Nicholas Boilvin, the United States Indian agent at Prairie du Chien. Boilvin, after talking to a man who had buried the Winnebago couple, reported that although one of the bodies bore marks that might have been attributed to an accident, neither body had broken bones, nor was there evidence that the woman had been assaulted. He said they drowned after falling through the ice. Leavenworth dismissed the charges against the Americans as a lie sung in the Indians' ears by "some bad bird." He claimed that two years had elapsed since the disputed incident and that it was as unreasonable for Winnebago to kill his young men at Rock Island in retaliation for those drowning victims as it would be for him now to kill Winnebago at Prairie La Crosse or Black River in response to the murders of the soldiers.
As on previous occasions, Leavenworth promised that if tribal leaders reported to him any cases of Americans killing Winnebago, he would punish the perpetrators. In a rhetorical flourish that his listeners could not have taken seriously, the Colonel claimed that if his own Father or brother killed an Indian, he would spare no effort to have him hanged, and "such are the sentiments of every white man."
In order to demonstrate "our love of justice [and] that we do not wish to harm the innocent," the authorities released Jerago after concluding that he had done everything possible to prevent the crime. That magnanimous gesture, Leavenworth warned, should not be misconstrued; justice also required that the guilty be punished. Glossing over such Winnebago concepts of justice as payment to relatives of victims, Leavenworth asserted that the "unfortunate young men" had "committed a crime which by your laws subject them to the punishment of death." "Our laws," he concluded, "are the same."
Commending the Winnebago for their good faith in surrendering the murderers and lifting the cloud of distrust that hung over their nation, Leavenworth reminded them that for several years the Rock River bands had had had a bad reputation among whites. He hoped that their future conduct would disprove that negative appraisal. Finally, he warned against asking for the release of the two remaining prisoners, who, in his opinion, deserved the death penalty. In fact, he saw no reason why the Winnebago did not execute those of their nation who killed whites.
Apparently, the Winnebago made threats when they learned that only Jerago would be returned. The delegation had the temerity to tell Leavenworth that he should release the others for the sake of his "Forts and children." Leavenworth scolded them:
What do you mean by that? Is it war? If war serves your intention, you should have kept the prisoners and not given them up. Neither my Forts nor my soldiers are afraid of war ─ they are always ready and would be pleased with it if the Winnebagos wish it. You behaved like men in giving up the prisoners, but in asking me to release them again, you act like old women asking for bread.
The Colonel claimed to have made no promises regarding Chewachera and Whorahjinka. He judged that they were guilty and that Jerago was innocent. Leavenworth instructed the delegation to close any pending business with their agent and return to their villages. He expected assurances that the chiefs would restrain their men.
After meeting in the council, Shungapaw spoke for the Indians. He wished to know when Leavenworth was leaving to go upriver so that the band could accompany him. The suspicious Colonel refused to reveal his plans beyond saying that he intended to hold the prisoners until receiving orders from the President. Upon noticing that Shungapaw no longer wore an American medal (a gift of friendship), Leavenworth accused the Winnebago of mischievous intent. "When you are desirous of any favor, you are very good Americans and appear to be proud of wearing their medals," he said, "but when your wishes are disappointed, you throw them aside." Indeed, he warned them that a watchful eye would be kept upon them because he expected to hear of more murders. Next time, the Americans would not await a surrender; annihilation would be the result for those who began warfare. Shungapaw denied any evil intention and explained that he had given his medal to the brother of one of the prisoners in order to assuage his grief. He maintained that neither the chiefs nor the warriors present had mentioned war and that all were satisfied that their "Great Father, the President," would decide the prisoners' fate.
Reporting to Calhoun after a tour through Winnebago country, Governor Cass expressed satisfaction with Leavenworth's "wise and decisive" handling of matters. The Indians had learned a lesson, said Cass, and the United States should regret nothing except the "untimely fate of the soldiers." Commenting on the likelihood of future complaints, Cass was confident, after talking with men he termed principal Winnebago chiefs, that only the "intemperate passions of Individuals" would again produce such conduct. The chiefs, he believed, would disavow violent acts and would surrender offenders as quickly "as the relaxed state of their Government" would permit.
Leavenworth took the prisoners from Rock Island to Edwardsville in the autumn of 1820. From there, they were transferred to the jail at Belleville. The trial finally took place on May 12, 1821, after Chewachera and Whorahjinka had been held for nearly a year. Jacob Hough, a soldier from Fort Armstrong, testified that he and Andrew Peeling found the bodies of Blottenburgh and Riggs less than a mile from the fort. The two victims had been shot and scalped, and Blottenburgh was hacked in the left side with an axe. Jerago, having been called to testify, told the same story he had related in the earlier interrogation. The jury took only half an hour to reach a verdict of guilty. The following day Chewachera and Whorahjinka were sentenced to death by hanging; the execution was set for mid-July.
The physical condition of the two prisoners was a matter of grave concern both in the Illinois press and among their fellow Winnebago. According to one account, the two had been "hearty, robust men" in the fall of 1820 but were "scarcely able to stand or move by the trial." Upon inquiry by Leavenworth and others, the Indians made specific complaints about their treatment in jail during the winter. According to their statements, they had neither fire nor bedding and were made to sleep on a hard floor. Their daily rations consisted of "cornbread of the size of a small biscuit and half that quantity of meat." On one occasion, they received no food or water for three days and nights. The Illinois Intelligence called for an investigation in the belief that the allegations of inhumanity were exaggerated. One editorialist asked rhetorically:
Do we call ourselves a Christian nation: Do we boast of our humanity ─ our justice? Were these men in the custody of American people and American laws? If this is true, in what do our prisons differ from those of the Spanish Inquisition or ourselves from nations we are pleased to call barbarous and uncivilized?
William A. Beaird, sheriff of St. Clair County and keeper of the Belleville jail, was accused of mistreating the Winnebago prisoners. He responded to the charges by writing a letter to the newspaper "to teach editors not to injure the characters of innocent persons on the false statements of murdering Indians." In reply to the sheriff, the editor reminded readers that the Indians' statements were not false merely because of their source and that at least one of the two men might still be vindicated of the murder charge. Sheriff Beaird maintained that the prisoners were kept in a thick-walled dungeon in which a fire would have been impossible but through which no cold drafts could penetrate. There was no suggestion, he said, that the Indians be moved near a fireplace. He labeled the charge regarding the bedding "a most absolute falsity" because Indian Agent Thomas Forsyth, wintering in St. Louis, had provided two blankets and two buffalo robes. Although Beaird said the prisoners had not fared well over the winter, he claimed they had more food than they could eat. Noticing that during the incarceration, one "dangerously. . . broke out in large sores, and bleeding at the nose, toothache, and scurvy," Beaird frequently had ordered that soup be prepared as "an extra dainty." The unaccustomed salt provision and their "close confinement in a very tight prison" caused what he called their "meager appearance."
Following the sentencing, Naw Kaw Carmani, the last Winnebago claiming a tribal-wide chieftainship, spoke to the assemblage. Although he would live until after 1830, Naw Kaw was already in his late eighties. In an opening litany of stock phrases, he claimed to be an American, pleading by the Great Spirit that he stood sincerely for peace, and stated that he had less power in his nation than the judge who had just pronounced the sentence. Then bitterness came through in his closing remarks:
When I came down here, I had hoped to find that Che-wa-cha-rah and Who-rah-jin-kah had been better treated, but my heart is oppressed at the cruelty that they have received. I did hope that pity would have been found for them. . . . But let peace be between us. I look up to our Great Father as I do to the Great Spirit for protection.
My Father ─ I came here to see justice, but find none ─ Cah-rah-mah-ree is honest, speaks what he thinks, and shakes you by the hand for the last time.
A report of the trial and verdict was sent to Washington. President James Monroe approved of the sentences meted out to the "misguided" Winnebago, but he had reservations regarding the pre-trial examinations of the accused. As a result, Secretary of War Calhoun was instructed to send word of a temporary reprieve for Whorahjinka. That decision showed at least some sensitivity to Indian perceptions of the circumstances. Whorahjinka's "extreme youth" certainly figured into the move, but so too did an appreciation that he acted as the nephew of Chewachera, "to whom he appeared to consider his body to belong and that he was of course bound to do whatever he told him to do." Whorahjinka's execution date was delayed to August 14, and Calhoun queried William Clark about the impact on the Winnebago of a full presidential pardon. In late June, the enfeebled Chewachera died in prison.
Presidential reprieve proved a false hope, for Leavenworth, who served as a prosecutor in the trial, was convinced that Whorahjinka's guilt was indisputable. While admitting that the Indians had been mistreated in captivity, Leavenworth felt positive that the tribes would "harbor motives of revenge" if Whorahjinka were released. On the expiration of the reprieve, Whorahjinka was hanged at Kaskaskia.
Agent Forsyth confirmed the predicted hostile mood of the Winnebago when he requested that his quarters be located adjacent to Fort Armstrong, as the Winnebago were "by no means well intended, on account (as they say) of the treatment their two men experienced previous to their trial." Fearful of Winnebago's revenge, American policymakers followed the old Anglo-Saxon custom (closely paralleling Indian practice) of making a wergild, or payment, in order to appease the victims' relatives and defuse any desire for retaliation. Because the bands were living near Thomas Forsyth's agency (although not within his jurisdiction), the War Department instructed him to make moderate compensation to the relatives of the two dead Indians "to relieve [them] from the distress which . . . they have suffered."
The Fort Armstrong murders and the resulting trial of the Winnebago prisoners illustrate the extent to which Indians of Illinois complied outwardly with the white man's system of justice. Yet their submission to Anglo-American legal concepts was structured whenever possible with an eye to conformity with their own traditionalism.
Through the 1820s, continuing American penetration of the Winnebago domain provoked a variety of sporadic responses by Winnebago individuals and bands. Although initially, no tribal-wide policy underlay such responses, Americans insisted that a well-coordinated tribal policy existed. It thus became increasingly difficult for the Indians to practice traditional customs involving justice and land tenure, especially when confronted by the invasions of lead miners.
|The 1825 council at Prairie du Chien at which William Clark and Lewis Cass presented the treaty establishing intertribal boundaries for eleven Michigan Territory tribes. Artist James Otto Lewis, who attended the council, painted this scene.|
In 1825 the United States imposed the first regional intertribal boundary treaty. In 1827, the so-called "Winnebago War" was declared by whites in reaction to a raid similar to the Fort Armstrong affair. The treaty ending that conflict gave the government the opportunity to impose the first actual cession of Winnebago lands in Illinois and Wisconsin.
Journal of the Illinois State Historical Society, 1980.
Edited by Dr. Neil Gale, Ph.D.