The Trial of Chief Oshkosh
The Clash of U.S Law and Indian Legal Tradition
Chief Oshkosh, 1888
Menominee Indian Chief. Portrait painted by the artist Samuel Marsden Brookes. View the original source document: WHI 1888
Orson Welles' 1963 film "The Trial" faithfully recreates the surreal tale of a man who finds himself accused of a capital crime but cannot learn what he's charged with, and who gets ever more hopelessly entangled in a sinister bureaucracy as the story progresses. Such existential dilemmas were not a feature of the Coutume de Paris — legal code that prevailed in early Wisconsin — which could be arbitrary and capricious but never bureaucratic. Even more swift than French justice was traditional Indian justice, which was often marked by Old Testament, eye-for-an-eye-style retribution.
Oshkosh Kills O-ke-wa
Wisconsin's first criminal trial under U.S. law brought two legal traditions into conflict during the summer of 1830. On June 3rd of that year, a Menominee hunter named O-ke-wa noticed movement in the rushes along a creek near Green Bay and fired at what he thought was a deer. Going to the spot, he discovered to his horror that he had shot a fellow Indian through the head. He placed the body in his canoe and went immediately to report the incident to Chief Oshkosh, who was at Green Bay. O-ke-wa probably knew that in the Indian legal tradition, by taking someone else's life he had forfeited his own, which could be claimed at any time. His chief, Oshkosh, listened to his story and then drew a knife and killed O-ke-wa on the spot.
Such swift retribution was commonplace. When the Ho-Chunk warrior Red Bird killed white settlers in 1827, tribal elders persuaded him to surrender to white authorities. "Our chiefs assembled the nation as soon as possible," they explained to Indian agent Joseph Street, "and then the murderers were delivered up to the whites, and we expected they would be immediately shot. This was our desire."
As Street explained in a letter, "They are at a loss to know why we are keeping the murderers of white men 'alive so long.' That they may be tried. 'Tried? What is that?' I explained it to them. They smiled, and said, 'The murderers confessed to the nation that they did kill the whites — some of us saw the scalps, and knew that they did commit the murders – they would not tell the nation a lie — and we gave them up to you, not to be tried, but to be killed. We did so, to keep our Nation from a war, our women & children from slaughter, and to save our country to live & hunt in.' They add— 'If it is your desire to take your revenge, they ought to be killed. If not — it would be very good to our hearts if they were liberated.'
Judge James D. Doty Presides
The Trial of Chief Oshkosh by Judge Doty, 1830
Trial for the murder of a Pawnee Indian. Chief Oshkosh (left) and Judge Doty (right) stand opposite each other, with Indians, voyagers and trappers in the audience. This is a mural painting by Albert Herter. It appears on the south wall of the Supreme Court. View the original source document: WHI 45105
Similar assumptions no doubt motivated Oshkosh as he reached for his knife. But unluckily for him U.S. law had begun to be applied in Wisconsin, and he was arrested for murder. His trial is one of the most famous in Wisconsin history, since it pitted Indian traditional justice against the rule of white man's law. After hearing arguments on all sides of the issue, territorial judge James D. Doty, in a dramatic trial, acquitted the chief from the penalty of murder on the grounds that, under the circumstances, American laws did not apply to Indians. His reasoning was that, since Indians were not granted the privileges of citizenship under the law, U.S. law did not apply to their internal disputes and affairs on their own lands. Oshkosh was therefore set free, and went on to lead his nation for another 28 years.
For more on the Oshkosh case and other early Wisconsin trials, see the article "Judge James Duane Doty and Wisconsin's First Court," published in the Wisconsin Magazine of History, Winter 2002.
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