Colorado Law Expert: Historical Courts Offer Hope For Past Injustices

January 24, 2005

When Professor Charles Wilkinson was asked to testify on behalf of an American Indian accused of murder, he jumped at the opportunity. But this was not your ordinary murder case. It happened over 146 years ago. Originally tried in the Oregon Territory in what is now the state of Washington, the man accused of murder was called Leschi, the last chief of the Nisqually Tribe. After two trials, the first of which ended in a hung jury, Chief Leschi was found guilty of killing a militiaman during a skirmish and hanged on Feb. 19, 1858. Since that moment, members of the Nisqually tribe have campaigned to vindicate Leschi, who they say was wrongly accused and hanged for a crime he did not commit. On Dec. 10, 2004, the state of Washington convened a one-time "Historical Court of Justice" to re-examine the Leschi trial. At the heart of the case is whether Leschi should have been tried for murder. In 1854, a state of war existed between the Nisqually and the U.S. Army, which, by law, makes Leschi a legal combatant. Under laws of war a legal combatant cannot be held accountable for the death of an enemy soldier. "He was a lawful enemy combatant and he was the chief of the Nisqually tribe," said Wilkinson. "He was their war leader and his war was righteous." Wilkinson is an expert in American Indian tribal nationhood and sovereignty. His testimony helped to build support for Leschi's legal status as leader of his tribe and its war leader. "That laid the foundation for the Army specialists to testify on law of war as it applies to wars between nations," explained Wilkinson. "The fact is Chief Leschi was a dignitary, a general in our terms, a chief in theirs, who deserved to be treated according to the law of nations and the law of war." A panel of the state's highest judges heard the facts as presented by the prosecution and defense in the one-day trial and rendered a verdict of not guilty, exonerating Chief Leschi. Wilkinson believes courts of historical justice are a positive tool for righting injustices from the past but adds they need to be used carefully. "The idea that Chief Leschi was hung as a common criminal, that his status as a great leader of a nation wasn't recognized, has always been part of the Nisqually stories about how wrong his trial was and that his murder conviction ought to be wiped from the history books," he said. "I don't think that we always stop to appreciate how important it is to Indian people to have some of the historical wrongs acknowledged and that the moral aspect of it is important to have recognized," said Wilkinson. "Of course, it's too late for Leschi, but it's not too late for history." Contact: Charles Wilkinson, (303) 492-8262 fore.wilkinson@colorado.edu Dirk Martin, (303) 492-3140