We are accustomed to the idea that American Indian tribes are legally separate nations with their own constitutions and law-making powers. But this was not always clear, and an 1830 murder trial in Wisconsin was among the first cases to test the notion.

On June 3, 1830, a hunter named O-ke-wa accidentally shot and killed a Menominee neighbor on tribal land near Green Bay.

Although he knew Menominee law would punish him with death, O-ke-wa stoically turned himself in to Chief Oshkosh (1795-1858), who executed him on the spot.

Oshkosh was promptly arrested by Green Bay authorities and charged with murder.

The jury consisted of mixed-race and white settlers but no Native Americans. The judge was James Duane Doty (1799-1865).

Oshkosh denied the right of the court to pass judgment on his action and refused to enter a plea or retain counsel. Doty entered a not guilty plea for him and started the trial anyway.

After hearing all the evidence, the jury found that Oshkosh had acted according to tribal custom on tribal lands and claimed ignorance about whether U.S. laws applied.

In a 19-page decision, Judge Doty analyzed whether the laws of a U.S. territory applied to acts performed by Indians in tribal communities. He decided that they did not, and concluded, "I am unable to satisfy my mind that the prisoner has willfully and maliciously violated any statute."

Doty, therefore, acquitted Oshkosh of the murder. Both men went on to be powerful leaders of their respective communities for the next three decades.

-- Wisconsin Historical Society
www.wisconsinhistory.org

"Odd Wisconsin" Look for Odd Wisconsin on Wednesdays in the Local section. Let us know what you think: justaskus@madison.com; 608-252-6192; Just Ask Us, P.O. Box 8058, Madison, WI 53708.