A Sense of Justice
by E. John Winner
Behold I see a canyon where many souls will die
Behold I see a world that will always wonder why
— Marty Stuart, “Wounded Knee” (1)
I am here to consider our responses to what we perceive as just or unjust. I do not hope to reach a conclusion. I write as an educated layman, not a professor of moral philosophy. My aim is to explore what I understand by “a sense of justice,” the most basic element of which is that there is no private sense of justice. Indeed in the absence of some community with others, there is no justice at all.
In common speech, ‘justice’ and ‘fairness’ often are used interchangeably. This leads to some confusion among those unable to see the obvious difference, something that becomes painfully clear in courts of law. A defendant may claim that punching the plaintiff could reasonably be excused, because the plaintiff verbally showed disrespect toward the defendant, her loved one, or a family member. This argument depends on a sense of fairness: “I was just standing at the bar, and the plaintiff came out of nowhere and called my sister a slut. Is that fair?” But, justice demands that force be met with proportionate force, if at all. The insulted should be accountable for his or her own response to the insult, and it is unjust to inflict upon one’s opponents greater damage than they have inflicted. And in their saner moments, legislators have recognized this and embedded it in the law.
I remember a story about Chico Marx, an inveterate gambler. He was warned not to attend a certain poker game, because it notoriously was rigged by those sponsoring it. Chico responded, “Yeah, but I want to see if I can win anyway.” When we gamble and discover that the other players have cheated us, we may feel bitterness, and the unfairness of the situation is obvious, but we don’t speak of injustice. We chose to play that game, and the wiser choice would have been not to. While our choice does not mitigate the unfairness, it does mitigate the injustice.
Fairness, then, is something we always expect – or at least desire – from others. We can recognize it, when we observe how others treat one another, but we relate to it as it relates to us. I judge the person who cheated Chico as playing “unfairly” despite Chico’s choice to participate, because if I were to play in that card game, I would have felt cheated.
Justice has a different standard. Chico chose to play the game, knowing that there would be cheating. The cheating may have been unfair, but it was not unjust.
On the morning of December 29, 1890, elements of the Seventh US Cavalry, having already surrounded a tribal community of Lakota Sioux to escort them to a reservation, demanded that the Sioux surrender their arms. A deaf Sioux, not understanding the demand, refused. Meanwhile, the Sioux began a Ghost Dance, the origins of which lay in a syncretic appropriation of Christian mysticism into Sioux mythology. Neither white settlers nor the US cavalry recognized this, however, so as far as they were concerned the dance was just another sign of Indian defiance.
There are competing reports of what followed. According to Peter Walsh (who was a part-Sioux interpreter for the Cavalry), five Lakota opened fire on the troops. (2) According to Thomas Tibbles, an independent journalist traveling with the Seventh Cavalry, the first shot was fired by the soldiers. (3) Within minutes, about 300 Sioux – including elders, women, children, and even infants – were cut down by the superior firepower of the cavalry troops. Twenty five soldiers were also killed, allowing the US government to consider this a battle. But no orders of battle directed the elimination of non-combatants. Only fifty Sioux survived.
At first all firing was at close range; half the Indian men were killed or wounded before they had a chance to get off any shots. Some of the Indians grabbed rifles from the piles of confiscated weapons and opened fire on the soldiers. With no cover, and with many of the Indians unarmed, this lasted a few minutes at most. While the Indian warriors and soldiers were shooting at close range, other soldiers used the Hotchkiss guns against the tipi camp full of women and children. It is believed that many of the soldiers were victims of friendly fire from their own Hotchkiss guns. The Indian women and children fled the camp, seeking shelter in a nearby ravine from the crossfire. The officers had lost all control of their men. Some of the soldiers fanned out and finished off the wounded. (3)
Twenty medals of honor were presented to US cavalry perpetrators, over whom their officers “had lost all control.” Thanks to the efforts of Nelson Miles, the General in command of the division to which the Seventh Cavalry was attached, inquiries into the massacre continued well into the 1920’s, ending only when Congress passed a bill absolving the US of any liability, while offering the Lakota reparations of some $20,000. (4) In 1990, Congress finally offered its apologies to the Sioux. (5)
In 1971, I read about this horrible stain on the history of America’s relations with Native Americans, in Dee Brown’s landmark history of the Indian wars, Bury My Heart at Wounded Knee. It was the first time I had ever felt outrage at a profound injustice. (6) I’d seen documentary films on the Holocaust years before, but had, as a mid-teen, the precocious sense that all that was “mere history,” in the sense that we had “gone beyond” such barbarity. Along the way, I also debated Vietnam, and as a young Republican, committed to winning the battle against communism at any cost, if fighting the war meant tolerating some corruption or the use of brutal tactics, it was all in a good cause. My feelings towards civil rights were just beginning to develop. In 1970, I had been shocked by the Kent State shootings, and especially Nixon’s callous response to it. But shock has no moral compass. It was only after the recognition of the brutality with which the American government – my government – had treated the native population of this country – and had excused and even glorified that brutality as a necessary part of “civilizing” the frontier – that I really developed a sense of what could constitute injustice. But perhaps that’s exactly where the sense of justice begins. What is the point of invoking justice if it is not clear when justice has not been served? Normally, there’s no reason to invoke justice or injustice. Paying an agreed upon rent has nothing to do with justice, until either the landlord or the renter have been refused their due, according to the rental contract. In other words, justice is not normally invoked unless there is an evident injustice.
The evidence of injustice is never “mere history.” Its effects linger and taint all our experience thereafter. Rape is an injustice, and the victim will endure its effects for a lifetime. The injustices shown to Native Americans haunt our society to this day, in diverse and complicated ways.
We have before us the example of the Wounded Knee Massacre. When I first read the Dee Brown history of the American Indian experience of US aggression against them in the 19th century – and before I got to the final chapters on the Massacre itself – I studied the photographs included in the middle of the book. The last of these was the photo of Spotted Elk (aka Big Foot), leader of the band that had run from the reservation where Sitting Bull had been murdered; they were hoping to find protection at the reservation governed by Red Cloud. In his seventies, Spotted Elk was suffering from severe pneumonia by the time the band reached Wounded Knee Creek. His condition had become so bad that he was bed-ridden and coughing up blood. Still, somehow he was brought out of his tent to oversee the disarmament of the band by the surrounding force of US Cavalry. After the slaughter, he was left to freeze. In the photograph, we see the body of an old man, poorly dressed for the season (pea-coat, scarf wrapped around his head), knees buckled, hands raised. In surrender? For protection? In a gesture of bewilderment? Was the last question he asked as he fell simply “Why?” to a Great Spirit that had nothing to say other than to bring the blizzard that froze his body? Whatever this man had done in his life, his body did not deserve the disrespect of being left in the snow – for some days, as I later discovered – frozen, accessible to vermin, un-mourned, and unburied. Indeed, when the Indians at last were buried, they were tossed in a mass grave together, by civilians paid $25 a throw. That was what their memories were worth to the US government at the time.
Reading through to the end of Brown’s book – and its report on the Massacre itself – it became painfully clear that, whatever undeniably horrendous atrocities Indians occasionally visited upon European-American settlers or military, the US government had actively engaged in a program of genocide against American Indians. Not the “scientific,” systematized extermination that Hitler planned for the Jews, to be sure. European-Americans don’t think that way, theirs is a wild kind of violence, lurching forward along a kind of drunken walk. Thus, the Manifest Destiny took more than a century to realize, and Vietnam was mere blunder down a blind alley. Nonetheless, though crude and protracted, the US campaign against the Indians was surely genocidal.
At this point, it is absolutely necessary for me to remark that, unlike many on the Left during the counterculture that was still unfolding during the early 1970’s, I had no interest in living like a Native American. I didn’t want to live in an Iroquois long house or a tee-pee. Riding the plains on a bare-back horse didn’t interest me. I thought nothing of the mythology of the American Indians, their medicine men, or the accompanying rituals they practiced. Nothing made me identify with Native Americans, except for the fact that they were human beings. They had communities, families, wise elders, and rebellious youth. They had customs and laws. They told stories and developed crafts. They held councils and engaged in politics. They had opinions and espoused philosophies. They loved, got angry, made mistakes, and had hopes and aspirations. I could not recognize myself in the peculiarities of their culture, but in the general character of their social being, I recognized human relatives. Why had European Americans thought it was more important to kill them, destroy their culture, and take their land, than respect them and their lives? Thus, sparked into flame a sense of injustice – a burning indignation, not for myself, but for the violated being of others. And thus, too, a sense of justice. The sense of justice arises from the recognition that others, however different, deserve the same respect that we grant without complaint to those like ourselves.
This is why certain of Kant’s writings still ring true, as do some of the later J. S. Mill, even if we do not accept the moral realist principles that Kant and Mill assume for them. One doesn’t really need to accept any “metaphysics of morals” to recognize the weight of Kant’s interdiction that other humans should always be regarded as ends, never means. The Japanese ethicist Watsuji Tetsuro suggested that the origin of ethics is really founded in the trust we share in community, and this strikes me as more right than the “sympathy” that we find in Hume or Darwin. (7) We do not know if infants can have any sense of sympathy for their parents or other elders, but they certainly enact trust for them. At any rate, we hold a trust in other humans – including the trust that they are human, and thus deserving of respect – and this elicits from us obligations. Some of this gets written into law, while some is so customary that explicit laws are unnecessary.
The question arises, then, whether every law can be trusted to exemplify the respect for others that justice would seem to require. The answer, obviously, is “no.” Laws are made by men and women and are conditioned by human prejudices rather than any absolute principle. To expand them, in order to include those of considerably different cultural backgrounds is difficult and often involves conflict and even sometimes, violence. In this case, it is clear that not only the laws but the very process of law in the United States failed to accommodate coexistence with the Indian nations.
They made us many promises, more than I can remember, but they kept only one; they promised to take our land, and they did.
The fact that 20 Medals of Honor were rewarded to the Cavalry engaged in the Massacre at Wounded Knee (several expressly for hunting down unarmed women and children attempting escape along a ravine), indicates that the soldiers involved were entirely justified in believing they had the US government’s approval for their behavior. What justice do these soldiers deserve, in weighing out the scales of historic memory? Does the approval of the Congress of the United States, of the awarding of Medals of Honor, indicate that the soldiers should somehow be absolved of the responsibility for what they did? (8) This is not simply a case of the “following orders” defense used by many Nazis, but it does have to do with Nazi (and German) involvement in the Holocaust. Can there be an official policy of a government that transgresses its own law? Can a law violate law? I’m not talking about obscure, out of date laws that legislators forgot to repeal. I’m talking about open and flagrant violations of established law. The answer, as anyone who has followed the history of Supreme Court rulings in the US knows, is clearly “yes.” So, even while communities – states and nations – struggle to effect justice in the body of their laws, the law cannot assure us of justice, and is unable to defend itself, when the whim of government or populace is too strong for the law to forebear. It follows, then, that neither the orders of military superiors nor legislative approval can cloak either the participants in the Holocaust or the Seventh Cavalry at Wounded Knee in any defense. In such cases, justice as a human and social principle, superior to either law or custom, at last surfaces in cognition as concept and motivation.
Since we can rule out impulse driven by fear as an excuse for their actions (given their overwhelming superiority of men and arms), the only other possible defense for the soldiers at Wounded knee would be ignorance and the influence of popular resentment against the Indians. But this won’t do. First, ignorance was not possible, given the many decades of Indian/European American interactions, conflict and diplomacy. Secondly the popular resentment to which the soldiers undeniably succumbed was itself unjust, and policies founded on this resentment – including violation of treaties, kidnapping children to educate them in “white” culture and religion, allowing traders to cheat Indians in business deals, the confiscation of land and property – themselves constituted injustice. So, all the soldiers could really argue to history would be that their actions were no more unjust than US policy as a whole, and this is still not good enough. “I knew it was wrong but everybody else was doing it” is no defense, but a cynical admission of cowardice. If ethics begins in trust, such a defense beggars trust and further indicates that trust itself is worthless – only opportunism, safe-guarded in numbers, matters. No lasting or stable society can be founded on that.
The Seventh Cavalry troops participated in mass murder, and there is no way around that. The Medal of Honor awards should be revoked. Official military records, which still refer to “the Battle of Wounded Knee” should be corrected to remark the massacre as such. There is no point in “putting the best face on it” and hoping it goes away. The apology that Congress offered in 1990 is only the barest of a beginning.
For the loss of their land, a court ordered an award to the Sioux, which was upheld by the Supreme Court – now valued at more than a billion dollars, as it remains in trust at the Bureau of Indian Affairs, accruing interest – but the Sioux have long refused it, as acceptance would necessitate releasing all claim to the Black Hills in South Dakota (9). Surely the Sioux need greater compensation, not just for the theft of their land, but for the murders of their people. Some return of land in government ownership might yet be negotiated. Oil pipelines and other environmental threats should not be allowed to cross tribal lands, and state governments should stop trying to find ways to circumvent tribal economies or politics.
Monuments of mourning should be erected, not hidden away at prairie locations rarely visited, but in frequently visited areas of, say, Washington DC. And the Wounded Knee Massacre should be taught in every school, as a massacre; a grievous act of betrayal; a national shame that we, whose ancestors were not native to this land, should now learn to live with by committing ourselves to treating Indians (and others) with respect and decency, in recognition of their humanity, and tolerance of their differences. That is, with justice.
(6) Dee Brown, Bury My Heart at Wounded Knee: An Indian History of the American West; Holt, Rinehart, Winston, 1971.
(7) Watsuji Tetsuro, Rinrigaku: Ethics in Japan; S. Yamamoto, R. E. Carter, translators; SUNY Albany, 1996.
(8) Awarded by the Military but open to Congressional advice and sanction, and presented by the President.