by Clare V. McKanna, Jr. Lubbock: Texas Tech University Press, 2009. 256pp. Hardcover. $29.95. ISBN: 9780896726529.Reviewed by Mary T. Hall, Political Science Department, St. Mary’s College of Maryland. Email: mthall [at] smcm.edu.
pp.866-869
Clare McKanna attempts to depict the social and legal challenges facing Indian Scouts in the frontier west by focusing on the legendary Apache Kid, who served as a First Sergeant in the Indian Scouts at the San Carlos Agency in Territorial Arizona in the 1880’s. Indian Scouts, who were used extensively as trackers during the Indian Wars, generally entered into half-year enlistments with the U.S. Army and were thus subject to not only tribal culture and territorial law, but also to military law during the course of their enlistment periods. Sergeant Kid was court-martialed and convicted of mutiny and desertion after he left his post to avenge the murder of his grandfather six months earlier. This book delivers a highly-readable portrayal of the duties and history of the Indian Scouts, and McKanna accurately concludes that the evidence did not support a finding of guilty as to the mutiny charge. However, McKanna struggles, and often misses the mark, in his assessment of substantive and procedural military law, which renders the book an unreliable reference for frontier military justice at the close of the 19th century.
In December 1886, an Apache named Rip allegedly killed Sergeant Kid’s grandfather. Tribal custom all but demanded that Sergeant Kid avenge the death of his grandfather, and in late May 1887, Sergeant Kid left his post at the San Carlos Agency without authority (an “AWOL” in common vernacular), participated in a three-day drinking party with other Apache Scouts, and then traveled over 20 miles from his post to a canyon where he located and shot Rip. The two offenses which netted a court-martial actually originated with events that occurred when Sergeant Kid attempted to surrender at San Carlos after Rip’s murder. Accompanied by four other Scouts (subordinates who had gone AWOL with him) and a number of other Indians on horseback, Kid presented himself on June 1, 1887, to his commanding officer, who ordered the five Scouts to surrender their weapons, which they did without protest. When the commanding officer ordered them to the guardhouse for confinement by simply uttering the word “Calaboose,” a translator misrepresented to the Scouts that they were going to be transported to Florida instead. This pronouncement apparently prompted the Apaches on horseback to discharge their weapons, in the process shooting the senior civilian scout at San Carlos in his leg. None of the shots were fired by the five Scouts, who used the ensuing confusion to flee the agency. At the urging of Brigadier General Nelson Miles, commanding general for the Arizona Territory, Sergeant Kid and his four subordinates surrendered themselves some 24 days later. [*867]
McKanna’s thesis is that Kid was “rudely introduced” to U.S. military justice because he had absented himself from his military duty station to “follow Apache social traditions” (p.81). This premise, however, is undermined by three factors: Sergeant Kid’s military record, the nature of the charges, and the time gap between the death of his grandfather and his revenge killing of Rip. Sergeant Kid by this point had not only served multiple enlistments, but had been promoted to the highest enlisted rank available to Indian Scouts, which meant that he would not have been wholly unfamiliar with the military justice system or with basic military duties such as remaining on post and obeying the orders of his commanding officer. Moreover, he was not charged with murdering Rip or with absenting himself prior to killing Rip; thus, while the initial absence may have been prompted by the need to avenge his grandfather’s death, the absence charged by desertion was apparently caused by panic over the idea that he was going to be transported to Florida. Nor was the mutiny charge directly related to Apache social traditions; rather, it was based on the allegation that the Scouts had taken up arms and fired on their commanding officer. Although the evidence did not adequately prove all of the elements of mutiny, it certainly supported a finding of guilt to disobedience of orders, which was also a death-eligible offense. All five Scouts were taken to courts-martial, where they were found guilty of both desertion and mutiny (albeit with a minor modification to the language of the mutiny specification) and sentenced to death.
As to the timing of the charges, McKanna never fully addresses why Sergeant Kid waited six months to fulfill his tribal obligation to avenge the death of his grandfather. What is legally significant about this period is that Sergeant Kid did not reenlist in the Army until the month before he left San Carlos without authority and killed Rip. Sergeant Kid arguably could have avoided any issue with the Army by avenging his grandfather’s death during his break between enlistments. Although revenge may be a dish best served cold, the evidence suggests that the decision to kill Rip, six months after the grandfather’s death, may have been the likely consequence of a three-day drinking binge, not an unavoidable conflict with Apache tradition.
As with current court-martial procedure, records of Army courts-martial in the 1880’s were forwarded for review by the senior officer who had convened the court-martial, in this case General Miles. Disturbed by the inadequacy of the evidence and the severity of the Scouts’ sentences, General Miles ordered rehearings, at which all five death sentences were mitigated to life sentences, a process which McKanna erroneously refers to as a “new verdict” (p.127). When he received the records of trial back with the revised sentences, General Miles then reduced Sergeant Kid’s period of confinement to 10 years as a matter of clemency. McKanna incorrectly claims that General Miles reduced the sentences of all five Scouts to 10 years; in fact, two sentences were reduced from life to 20 years, one from life to 15 years, and one from life to two years due to the Scout’s youth and a clemency recommendation from the court-martial panel. Thus, Sergeant Kid, despite the fact that he was the senior-ranking Scout of the five, eventually [*868] received the second-lowest approved sentence. The records were then forwarded to the Judge Advocate General of the Army for review and recommendations before final action was taken by the Secretary of War. In response to the Judge Advocate General’s conclusion that the courts-martial were fatally flawed by the denial of defense challenges for cause against the panel members, the Secretary of War ordered Sergeant Kid’s release from confinement less than 18 months into his 10-year sentence. Upon Kid’s return to San Carlos, he was prosecuted by territorial officials for, and convicted of, a murder he had allegedly committed during the unauthorized absence following the attempted surrender. Sentenced to confinement for seven years, he escaped from custody while being transported to prison in Yuma, and remained a fugitive for the remainder of his life.
McKanna’s narration of Sergeant Kid’s story is the high point of the book and certainly makes for intriguing reading as military history. Unfortunately, the low point is McKanna’s legal analysis. The single most glaring error is his attribution of the prohibition against cruel and unusual punishment to the Seventh Amendment (p.71). The bulk of the errors, however, pertain to military law. For example, McKanna treats the required post-trial reviews of courts-martial as appeals, likening the office of the Judge Advocate General of the Army to “an appellate tribunal” (p.120) with the power to overturn convictions and sentences (p.123). This description, however, appears to be a misreading of William Winthrop’s MILITARY LAW AND PRECEDENTS (1896 edition), wherein Winthrop notes that British military law vested its Judge Advocate General with the power to overturn convictions and sentences, whereas that power was vested in the American military justice system in the President or Secretary of War, acting on the recommendation of the Judge Advocate General. Indeed, it was the Secretary of War, acting on the recommendation of the Judge Advocate General, who took final action on these Scout cases.
Moreover, McKanna, in providing a highly sympathetic view of Sergeant Kid’s actions, feels compelled to make numerous sweeping conclusions about the military justice system without providing adequate support for those conclusions. As an example, he broadly claims, unadorned by citation to any source, that younger officers who served on court-martial panels “knew the consequences if they resisted the wishes of their superiors” (p.75). He then focuses on the restriction, which still exists in military law, against revealing the vote of any particular member of a court-martial panel. In a system where a unanimous vote is required to convict, privacy of any individual vote is not an issue where a verdict of “guilty” has been rendered. However, a conviction at a nineteenth-century court-martial only required a majority vote. Maintaining the secrecy of votes helped to assure panel members that their votes would not result in any adverse action from third parties; it was not a means of squelching dissent, as McKanna implies. Many of these flaws could likely have been avoided had McKanna added someone well-versed in military justice to those who screened his manuscript.
McKanna declares that no matter what Sergeant Kid did, “it would have been [*869] impossible for him to receive a fair trial from either the military or civilian criminal justice systems” (p.14); Sergeant Kid essentially “never had a chance” (p.15). There were certainly injustices committed in Kid’s case, most notably the denial of the challenges for cause at trial, the finding of guilty to mutiny in the absence of any intent to raise arms against the commanding officer, and an intentional six-month delay by the Secretary of War before directing the release of the Scouts from confinement in late 1888. Yet Sergeant Kid was also provided with zealous defense counsel who peppered the record of trial with procedural and evidentiary objections, had the good fortune of having his record reviewed by a general who was keenly familiar with Indian Scouts and was inclined to grant clemency, and was the beneficiary of a legal review conducted by one of the most highly-regarded attorneys ever to serve as Judge Advocate General. Indeed, it appears that Sergeant Kid’s status and record as an Indian Scout helped contribute to a favorable outcome during his post-trial review.
Notwithstanding the weaknesses noted above, COURT-MARTIAL OF APACHE KID is a fascinating insight into a chapter of American military history that is seldom the subject of this degree of examination. It may very well be a major contribution to American Indian history, as claimed by one of the reviewers on the back of the dust jacket, but it is not, as the same reviewer commented, a major contribution to the history of military justice.
© Copyright 2009 by the author, Mary T. Hall.
