FOR A MORE DETAILED EXPLORATION OF THESE ISSUES, SEE CAROL CHOMSKY'S ARTICLE IN 43 STANFORD LAW REVIEW 13 (1990) ENTITLED "THE UNITED STATES-DAKOTA WAR TRIALS: A STUDY IN MILITARY INJUSTICE."
The order creating the Commission said that it was to"try summarily the mulatto, mixed bloods, and Indians engaged in the sioux raids and massacres." And try summarily it did. The Commission conducted 393 trials over a six-week period. On the last day alone, the Commission heard and decided nearly forty cases. The rapidity of trials increased over time. Isaac Heard, the Commission's recorder, writes that "the trials were elaborately conducted until the commission became acquainted with the details of the different outrages and battles, and then, the only point being the connection of the prisoner with them, five minutes would dispose of a case." Heard notes that as the trials progressed, "the presence and participation in battles and massacres" of a defendant had often been established in earlier trials, and "many of the prisoners confessing the fact, each case need only occupy a few moments." The length of trials depended primarily on the length of the prisoner's statement. Death sentences were handed out to each prisoner the Commission concluded had either "fired in battles, or brought ammunition, or acted as a commissary in supplying provisions to the combattants, or had committed some separate murder."
If one agrees with the Commission's view that any participation in a battle or massacre, whether the defendant killed anyone or not, justifies imposition of the death penalty, then many of the trials could indeed be decided quickly, especially those in which defendants admitted such participation. Time is required to sort the more guilty from the less guilty, but the Commission saw such a distinction, as between combattants, as largely irrelevant.
believed it important to try to sort out the more
the less guilty. Because of the Commission's haste
and rather sketchy
he was unable to determine degrees of guilt as well
as he might have
the Commission allowed more time for trials and
prepared more complete
Most of those convicted undoubtedly committed acts described in their specifications and thus, if one assumes that the acts specified constitute crimes deserving of punishment, most were guilty. In many instances, however, the crime alleged was mere participation in a battle, so that evidence that the defendant fired a shot, supplied ammunition, or in any other way significantly aided in the combat was enough to earn him a death sentence. Mitigating evidence, such as the fact that the defendant may have prevented a rape or a murder, was generally ignored.
In many cases, however, the evidence presented by the prosecution was far less than would be necessary to secure a conviction in a modern criminal trial governed by a "beyond a reasonable doubt" standard of proof. In some cases, the admission of the defendant relied upon heavily by the Commission might have been a mere boast, without any basis in fact, made by the defendant to demonstrate his loyalty to the cause and win the praise of his fellow warriors. In many cases, the convictions rested upon the testimony of a single eyewitness. Eyewitness testimony is frequently the least reliable evidence introduced in criminal trials because of the significant risk of misidentification, especially of strangers in fast-moving traumatic episodes, and because of the concern that the eyewitness may have an interest in providing help to prosecutors in return for more lenient treatment of his own crimes. One mixed-blood, Godrey (or Otakle), testified for the prosecution in fifty-five cases and, as a result, received a Court recommendation in his own case that his death sentence be commuted to ten years imprisonment. Thomas Robertson, acquitted in his own trial, also testified for the prosecution in fifty-five cases. At least eight other defendants also served as prosecution witnesses. There is no proof, however, that any of the Dakota or mixed-blood prosecution witnesses were untruthful, and it could be argued that their identifications were more likely to be accurate than that of white witnesses.
Unsurprising, I. V. D. Heard, the Recorder for the Military Commission, praised the Court for its fairness. In his 1863 account of the trials, Heard offers the following observations:
number of prisoners tried was over four
hundred. Of these three
and three were sentenced to death,
The fact that in many instances the punishment
of imprisonment was
from one to ten years, and that in
Mr. Riggs, their missionary, who furnished the
grounds for the charges,
had free intercourse with them, and as he
It is the height of improbability to believe
that any Indian would be
especially by Mr. Riggs, and the subject
The Sixth Amendment guarantees to defendants in criminal trials the right to assistance of counsel, but Henry Sibley was of the view that the right did not apply in trials before military commissions. Sibley and the Commission turned down the only request for counsel that was made.
Without counsel, the defendants may not have even understood the nature of the proceeding in which they found themselves. David Faribault, a mixed-blood defendant who was educated among whites and fluent in English, wrote later that he did not even understand that he was on trial for his life. He thought that the proceeding was merely to determine which prisoners would be held for future trials in civilian courts. Most likely, many Dakota defendants were at least as confused as Faribault.
absence of counsel made findings of guilt more
likely. Prisoner after
made admissions, such as the firing of a shot in a
failed to understand the Commission viewed as
of guilt to justify a death sentence. Many
alibis. Still others offered statements, or
were quoted as making
statements, which if viewed in their proper cultural
context would have
been far less compelling evidence of guilt than the
Damaging statements by prosecution witnesses went
Commission were all military men and local
residents. The men
were asked to pass judgment on were in many cases
the same men that had
attacked them and their troops. One of the
William Marshall, frankly admitted his own
difficulty in viewing
the evidence impartially: "[my] mind was not in a
condition to give the
men a fair trial." Reverend Riggs, an observer
at many of the
wrote to a St. Paul paper of the attitudes he
witnessed: "I have
a very high regard for all the gentlemen who
composed the military
I count them individually among my personal
friends. But they
trying Indians; and my sense of right would lead me
to give Indians as
fair and full a trial as white men. This was
The use of force by individuals in a declared war between sovereign nations is generally not subject to the same treatment as would similar acts of assault or murder committed by individuals under different circumstances. Captured enemy soldiers are treated as legitimate belligerents and held as prisoners of war until hostilities cease and they are released. This special treatment does not, of course, cover all acts of violence committed by the enemy. Torture, rape, and the killing of unarmed civilians, for example, are considered violations of the laws of war and subject to punishment. Moreover, individuals who are foreign citizens and kill or plunder without authorization by their sovereign are also considered subject to punishment.
Were the Dakota a sovereign people capable of declaring war on the United States? The Dakota community clearly thought itself to be sovereign. It had its own governing structure and dealt with the United States through its own designated leaders. Although not unambiguous on this point, the history of the United States reflects, as Carol Chomsky notes, "a de facto recognition that members of an Indian tribes should be treated as legitimate belligerents." The Supreme Court in 1831 referred to Indian tribes as "domestic dependent nations" and treaties between the United States and the Dakota recognize the sovereign status of the Dakota.
The crucial question then becomes whether the violent actions of Dakota and mixed-bloods associated with the Dakota Conflict should be considered actions committed as part of a war against the United States, or rather as actions committed without sovereign authorization by maruaders and renegade bands. Were the Dakota warriors or murderers? That, it turns out, is a very difficult question to answer.
The issue of whether to wage war against white citizens was debated by a multi-band council on August 17, the night following the massacre of five white settlers (murders, beyond question) at Acton. It appears that the decision to wage war was made over the opposition of some tribal leaders and therefore the fighting that followed might not be called tribal action, but rather a series of actions "by angry young men and those who chose to follow them." On the other hand, some chiefs did support war and others decided to participate in the fighting despite their initial misgivings.
citizens on the matter is in far less doubt.
for most when he said, in a letter to President
are called by some prisoners of war. There was
no war about
It was wholesale robbery, rape, murder. These
Indians were not at
war with their murdered victims."
The five-member military commission that tried Dakota and mixed-blood prisoners in 1862 was established by order of Colonel Sibley. Sibley, as the commander only of a district and not an army or department, lacked the authority to establish a military court-martial or commission, but it is clear that General John Pope, did have such authority and would have approved Sibley's action. Thus, the objection to Sibley's authority is a largely technical one.A more serious question of authority is whether in 1862 a tribunal of the sort created by Sibley had authority to try persons for the crimes it did. The use of military commissions dates back to 1847 and the Mexican War. Commissions appointed at that time tried Mexican citizens for assorted crimes including violations of the laws of war. The commissions of the Mexican War, however, were established in an occupied, hostile territory, under a state of martial law, in a place where there were no civilian criminal courts that the United States could use instead. The Supreme Court in 1857 upheld certain uses of military commissions, but lower court interpretations of the Court's opinion have limited commissions to situations where they were the result of military necessity. Although Minnesota was certainly going through a turbulent time in 1862, civil authority was never interrupted. State courts continued to operate and process criminal cases, and presumably could have processed charges against participants in the Dakota Conflict as well.
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