Another view of the ‘Hanging Judge’ heritage

Fort Smith embraced selling its frontier heritage to tourists in 1955 when Mayor H. R. “Happy” Hestand appointed Judge Paul Wolfe to lead a committee to restore the Parker courtroom and rebuild the gallows. By May 1957, gallows that had been burned down by an embarrassed town in 1897, had been resurrected. Since then one can find gallows in a variety of places in town. The Old Fort Gun Club has a full-scale gallows, and miniature gallows can be found at Miss Laura’s Visitor Center and at the Fort Smith Museum of History.

The use of gallows and nooses in marketing schemes in Fort Smith has been prevalent for decades. Fort Smith has apparently grown inured to the gruesome violence behind this imagery and to the fact that such allusions to “frontier justice” are more evocative of lynch mob rule than law governed justice.

This becomes particularly conspicuous when nooses and gallows are completely decontextualized such as in one event planned for Western Heritage Month, “Judge Parker’s Rope War” where teams will compete to win the “Golden Noose” trophy, and at the recent U.S. Marshals Museum “Kickin’ Up the Dust” fundraiser where the main stage was called the “gallows stage” and adorned with several nooses hanging down from the rigging. What does it mean to turn instruments of capital punishment into entertainment? Considering that for “Western Heritage Month” we are invited to “Relive the Heritage, Restore the Pride,” it is an appropriate time to consider this question.

The mythologized reputation of Judge Isaac C. Parker and the United States District Court for the Western District of Arkansas is the basis for the bulk of this imagery. From Samuel Harman’s 1898 origin myth “Hell on the Border,” to Hollywood’s “Hang ‘Em High” and “True Grit,” Judge Parker has been mythologized beyond the bounds of historical sensibility. This can be easily gleaned by reading contemporary scholarship including three books that can be purchased at the Fort Smith National Historic Site or Fort Smith Museum of History: Roger Tuller’s “Let No Guilty Man Escape: A Judicial Biography of Isaac C. Parker”; Michael Brodhead’s “Isaac C. Parker: Federal Justice on the Frontier”; and Jeffrey Burton’s “Indian Territory and the United States, 1866-1906: Courts, Government, and the Movement for Oklahoma Statehood.”

The following material is drawn from these three sources and David Kopel’s article “The Self-Defense Cases: How the United states Supreme Court Confronted a Hanging Judge in the Nineteenth Century and Taught Some Lessons for Jurisprudence in the Twenty-First.”

A very basic example of the mythologization of “Parker’s court” is the exaggerated size of the jurisdiction he is claimed to have served. Parker’s jurisdiction in Indian Territory was never more than 62,000 square miles though it is mistakenly said to have been more than 74,000 square miles in virtually all popular publications. In 1883 that jurisdiction shrank to about 35,000 square miles and in 1889 it was down to 22,000 square miles until it went to zero Sept. 1, 1896. Tuller, Brodhead, and Burton each point this out in their books, maps included, and yet the mantra of 74,000 persists.

The mythic imagination of the “vast lawless” area is clearly more alluring than historical fact, and this aggrandizement does something else, too. Not only does it inflate to heroic proportions the life of Parker and the U.S. Deputy Marshals who worked out of the court, but it creates an alibi for the intrusion of the court system into otherwise sovereign Indian Nations that ultimately led to Oklahoma statehood in 1907.

It is often said that Judge Parker, who did not arrive in Fort Smith until 1875, was taking “law and order” and “civilization to the Five Civilized Tribes.” This is inaccurate and an oxymoron. For example, the Cherokee had a functioning Supreme Court in Tahlequah in 1844. The Cherokee, Choctaw, Chickasaw, Creek, and Seminole all had the classic traits of “civilization,” particularly concerning the legal institution, before removal.

I suggest that insisting they were “Civilized Tribes” is a way of saying they were “civilized-savages” or in other words, not quite white. The denial of full civilization/citizenship coupled with the exaggerated cries of “lawlessness” in Indian Territory, function as an alibi for the systematic acquisition of it by Anglo Americans. Though Judge Parker was quite enlightened for his era when it came to Indians – he was opposed to genocide – in today’s terms he was not exactly a “friend to the Indians.” Parker was an advocate for expediting assimilation, which in essence is ethnocide, not exactly a “friendly” approach to interacting with other cultures.

When it came to running the court and conducting himself as a judge, Parker got crosswise with Washington D.C. on more than one count. For example, while Parker could appoint commissioners to function in his place further into Indian Territory, he did so only a few times. No one, he thought, could do as good of a job as him. The results were a more expensive court to operate and delays in justice. In 1889, in a clear effort to transfer Parker to a bench where he could do less damage, he was offered judicial appointments in Little Rock and in St. Louis. He declined both in part because he felt no one else could oversee Indian Territory as well as he could. Nevertheless, the federal authorities continued to shrink Parker’s jurisdiction which caused him to double-down on his antiquated legal positions on Indian Territory. The last third of his career would be very trying in that regard.

It was only between 1889 and 1896 that death sentences from Parker’s court could be appealed to the U.S. Supreme Court. According to Kopel’s article, 44 cases were heard and 31 were overturned. The Supreme Court overruling 70% of the appealed death sentences handed down from Parker’s courtroom is not exactly the portrait of “justice” being carried out in Fort Smith. The Supreme Court found that Parker led the juries toward guilty verdicts. His response was that it was fine that he did so because he was “leading them to justice.” This is megalomania, not jurisprudence.

A final example to scrutinize the justice of the Fort Smith federal court is to look at the racial distribution of those hanged. An updated analysis based on Jerry Akins “Hangin’ Times in Fort Smith,” reveals that of the 86 men hanged, 40 were Indians, 17 were black, and 29 were white. In percentages that is 46.5%, 19.8%, and 33.7% respectively. That means that 66% of those hanged were colored men found guilty by all-white juries. After the Civil War the percentage of whites in Indian Territory increased dramatically. By the 1890 census Indian Territory consisted of 28.5% Indian, 10.3% black, and 61.2% white. The 1900 census reports those numbers to be 9.1%, 11.8%, and 79.1% respectively.

Discussion, let alone interpretation, of the highly racialized distribution of executions in Fort Smith is virtually absent in literature on the court. It is quite telling that nearly half of all those executed were Indians. Furthermore, a closer look at the data shows the bulk of African American executions came in the middle era of the court’s jurisdiction (1883–1889) when 13 of the 17 black men in total were hanged. This most likely reflects heightened racial tensions against African-descent individuals during the Jim Crow era by whites and Native Americans alike.

Two of Parker’s more famous quotes are “Let no guilty man escape justice,” and “I never hanged a man, it was the law.” Though often held up as tributes to his staunch adherence to the law, to the contrary I argue that these were his repulsa mea culpa, his attempt at leading the jury of public opinion, which he does so now even from the grave.

Parker was a complex person living in complex time, but such is always the case. Portraying him in mythic, larger than life imagery does not do justice to him as a person nor to the history of this region. It may sell a few movies or novels, but it should not be confused with social history.

With this bit of historical context we can now ask again what it means for Fort Smith to adorn itself with nooses and gallows? What does the “Restore the Heritage, Restore the Pride” slogan of Western Heritage Month mean? Yes, I understand this is a marketing ploy to get people to come downtown, but I wonder if instead of presenting campy, caricatured, mythologized representations of the past, what if Fort Smith presented a complex, unvarnished, demythologized frontier?

The frontier mythos has lost the cultural capital it once had and tourists are savvy enough today to see through the old mythic veil. Could presenting historical complexity to an engaged, interested citizenry, also be more profitable?