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Litigating Memory: The Legal Case Behind the Moiwana and Sand Creek Massacres

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The following is a guest post by Collection Services Division’s intern Timothy Byram.  Timothy’s interest in Latin American culture led him to one of the Library’s many public programs, piquing his interest in two particular cases which he discusses here.

Litigation is defined as a contest in a courtroom realized “for the purpose of enforcing a right.” What that leaves out are the instances in which overt human rights violations have been seared into collective consciousness to such a degree that the only question remaining is how to honor their memory. Political philosopher Hannah Arendt called it the “predicament of irreversibility“: it’s no longer an issue of how to “fix” an evil, but how to best deal with its persistence in societal memory.

Photograph of a flyer advertising a June 25, 2015 presentation entitled "Memorialization and Justice as an Ancestral Imperative: Two American Cases."
Figure 1 Photo Credit: Library of Congress American Folklife Center


These problems and some of the ways that the law attempts to address them were going through my mind while listening to Smithsonian anthropologist Kenneth Bilby at the Library a couple of weeks ago. Kicking off the American Folklife Center‘s Civil Rights Program on June 25th, Mr. Bilby gave a presentation about his experiences and research surrounding two lesser-known massacres that occurred in the last two centuries. Researching the events later, I found that both had a fascinating legal story behind them regarding collective memory and indigenous law that are worth retelling.



Sand Creek and the Legal Struggle for Recognition

The first of the events was the Sand Creek Massacre in Colorado. Considered widely by Indians to be the My Lai of the 19th century, it is nevertheless a little known event. On November 19, 1864, while the Civil War was raging to the east, Col. John Chivington of the Union Army led a volunteer brigade of around 700 men on an attack of the Cheyenne and Arapaho village of Sand Creek. Of the 500 inhabitants of the area, over 150 were killed in the raid. As the village was then in peace negotiations with the U.S. government, the inhabitants were unprepared for the attack, and a majority of those killed were women and children.

The legal proceedings following the massacre were sparked because of testimony from soldiers in the brigade which starkly contradicted Chivington’s depiction of the event as a great battle. In the Treaty of the Little Arkansas (otherwise known as the Treaty with the Cheyenne and Arapaho; October 14, 1865), the federal government, in an attempt to “repudiate the gross and wanton out-rages perpetrated” at Sand Creek, mandated reparations for the Arapaho and Cheyenne tribes in 1865. But the courts are still working out what exactly those reparations constitute, and therefore whether they have been repaid.

The site of the Sand Creek Massacre is a golden field with few trees and a blue, cloudy sky.
Figure 2 National Park Service Sand Creek Massacre Site. Photo crecit: National Park Service

In 2013, the Sand Creek Massacre Descendants Trust filed a suit against the federal government, claiming the reparations made were not sufficient, and violated the Treaty of the Little Arkansas by paying the tribe as a collectivity rather than the individuals involved. Last year, however, the Colorado Federal District Court sided with the federal government position that no further claims on reparations could be made, due to the statute of limitations and the principle of res judicata.  In this, it agreed with the defendant’s claim that, though it was a “tragedy and a disgrace…nothing, not even something as egregious as the Sand Creek Massacre, is a warrant for eternal litigation.” The Court seemed to be expressing that, just as one must eventually leave off dwelling on the past to look to the future, so legal memory must at some point stop being reconstructed. That explanation didn’t satisfy everyone, however. The decision is being appealed in the Tenth Circuit Court of Appeals.

Plaques on fence at Sand Creek Massacre site read "Help respect sacred ground" and "Please stay on this side of the fence."
Figure 3 Plaque bordering Sand Creek Massacre site. (Photo credit: Howderfamily on Flickr. Used under Creative Common License: )

Whatever the results may be, the law has already been used to recognize the deep connection between land and memory, especially in indigenous issues. On October 6, 1998, President Clinton signed into law a bill proposed by Senator Ben Nighthorse Campbell (R-Co), designating the site of the Sand Creek Massacre a national historic site under the auspices of the National Park Service. Due to the time which had lapsed between the Massacre and the retracing of this event it was a complicated project to establish the area of the massacre. In a further case of the law’s reliance on memory, survivor testimony transmitted inter-generationally to living descendants has been integral in mapping the territory. Today, the site can be seen and visited, and many Arapaho and Cheyenne descendants insist they hear and sense the presence of their ancestors’ souls in the silence of the area’s plains.

Moiwana and the “Humanization of International Law”

The second event covered in the presentation, the Moiwana massacre which took place in Suriname in 1986, provides even greater insight into modern caselaw involving indigenous peoples. During the country’s civil war, a village of indigenous Maroons–descendants of runaway African slaves–known as the Ndyuka was attacked extrajudicially by the Surinamese government, slaying 39 people, again including women and children. In 1997, a collection of survivors who had formed the human rights organization Moiwana ’86 lodged a petition with the Inter-American Court of Human Rights (IACHR). The court heard the case in 2002 and issued its judgment in favor of the Moiwana community in Moiwana Village v. Suriname in 2005.

Map of Suriname
Figure 4 Map of Suriname. Moiwana is located in the Marowijne district to the northeast (Photo credit: U.S. Central Intelligence Agency)


The legal aspects involved in the Court’s judgment are of special interest. Whereas the IACHR had theretofore traditionally dealt with individual issues such as murders and forced disappearances, Moiwana is one of a growing number of indigenous law cases that concerned the rights of collective entities. Among these were the “Plan de Sanchez Massacre” v. Guatemala and the “Mapiripán Massacre” v. Colombia, both issued within a year of the Moiwana ruling. In all these cases, similar elements of large-scale army attacks on entire communities and relative impunity were the norm. Most specifically, the Moiwana judgment followed and expanded upon the precedent set in the landmark Mayagna (Sumo) Awas Tingni Community v. Nicaragua case of 2001.

Two Dyuka Maroon individuals sit and stand in front of structures made of palm fronds.
Figure 5 Dyuka Maroons (Photo credit: John Hill on Wikipedia. Used under Creative Common License:





In Mayagna, the Court found that Nicaragua had violated Article 21 of the American Convention–the right to property–even though the indigenous community involved held no legal title to the land they inhabited in the country. The Court explained this concept through the recognition that the community had a unique relation to the land which could not be comprehended through purely material means. These were, the Court explained, “not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.” Owing to these “communitarian traditions”, the community members had “the right to live freely in their own territory,” which required the government to respect their cultural and spiritual ties to the land, thereby prohibiting third-party rights to its use.

An obelisk-shaped monument stands at the site of the Moiwana Massacre.
Figure 6 Memorial erected in remembrance of Moiwana Massacre (Photo credit: Nicholas Laughlin on Flickr. Used under Creative Common License:

Moiwana further developed these nascent ideas in several ways. Among these was the use of witness testimony during the trial to construct and apply the body of cultural tradition and spiritual belief to the case. In fact, Mr. Bilby was one of the expert witnesses who testified in court on the nature of Ndyuka beliefs regarding the afterlife and funerary rites. This was a primary factor in the Court’s statement that prolonged impunity had a “particularly severe impact” on the Ndyuka, as it helped form the opinion that “justice and collective responsibility are central precepts” within the community. Applying the above to Moiwana, it became apparent that displaced community members had stayed absent from the village not because of their physical inability to return, but for the belief that they would be haunted by the unsatisfied spirits of those killed in the massacre.

Seven male judges stand wearing black and red robes.
Figure 7 Inter-American Court of Human Rights Tribunal (Photo Credit: Inter-American Court of Human Rights)



In his Separate Opinion on the case, Judge Antonio Cancado-Trindade wrote that Moiwana contributes to the “current process of humanization in international law.” Evident in this statement is that Justice Cancado-Trindade does not see IACHR cases such as Moiwana as outliers in a traditional, materialist reading of the law. Rather, it was imperative that the law “no longer be appreciated from a strictly inter-State perspective or dimension, given the displacement of millions of human beings and the tragic contemporary exoduses, resulting from so many injustices.” Cases like Moiwana, in fact, were crucial to “preserve the cultural patrimony of humankind amidst a true spirit of solidarity, without which the future of humankind is threatened.”

Whether this trend in international law is to continue down the route Justice Cancado-Trindade envisages will be determined by time. But recent IACHR judgments seem to make a strong case in its favor. The same year Moiwana was ruled on, the IACHR issued four similar judgments spanning Central and South America. Each of these seemed to apply then-Tribunal President Sergio García-Ramirez‘s exhortation to analyze indigenous complaints not by a single universalist reading of the law, but “in their own circumstances-in the broadest sense of the word, current and historic” in order to come to informed legal opinions. Part of that analysis will mean continuing to dig up collective memory in order to better inform the law.

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