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Post by mdenney on Mar 4, 2007 13:38:55 GMT -5
43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 1 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Stanford Law Review November, 1990 *13 THE UNITED STATES-DAKOTA WAR TRIALS: A STUDY IN MILITARY INJUSTICE Carol Chomsky [FNa1] Copyright © 1990 by Carol Chomsky Between September 28 and November 3, 1862, in southwestern Minnesota, nearly four hundred Dakota [FN1] men were tried for murder, rape, and robbery. All but seventy were convicted, and 303 of these were condemned to die. [FN2] After an official review of the trials, the sentences of thirty-eight were confirmed and, on December 26, 1862, these thirty-eight were hanged in Mankato, Minnesota, in the largest mass execution in American history. On November 11, 1865, after three additional trials, two more Dakota followed them to the gallows. The death penalty was not unusual in 1862, [FN3] and other American Indians have been tried and convicted in American courts. But the Dakota trials *14 and executions were different. The Dakota were tried, not in a state or federal criminal court, but before a military commission. They were convicted, not for the crime of murder, but for killings committed in warfare. The official review was conducted, not by an appellate court, but by the President of the United States. Many wars took place between Americans and members of the Indian nations, but in no others did the United States apply criminal sanctions to punish those defeated in war. The unique nature of these trials raises many questions. Why did this war, unlike others, result in trials? What meaning did the trials have for the Dakota and American communities? Were the proceedings conducted fairly and did they lead to just results? Was there historical precedent for conducting trials of this kind or legal authority for the jurisdiction exercised by the military court? What do these events suggest about the role of law in a pluralistic society in which all members do not share the same assumptions about justice and law? The answers to these questions are of more than academic interest. Differing views about the war, the trials, and the executions--formative events in Dakota and Minnesota history--continue to divide the Dakota and non-Dakota communities in Minnesota. Upon recommendation of some members of the Dakota community, the Governor of Minnesota declared 1987, the 125th anniversary of the war, to be the "Year of Reconciliation" in an effort to heal some of the remaining wounds. [FN4] I hope that this detailed consideration of the trials will deepen the understanding of these events and contribute to the healing. By exploring the context of the trials and their impact on the Dakota and American communities, I also hope that this article will contribute to a greater understanding of the role and limits of law in a pluralistic society. Part I of the article describes the war itself, the trials and official review of the proceedings, and the treatment of the accused and the rest of the Dakota community. The remainder of the paper explores the legitimacy of the trials and executions. Part II reviews the manner in which the trials were conducted. Part III questions whether, under American law, a military commission was the proper forum for trial of any offenses of which the Dakota might legitimately have been accused. Part IV examines the status of the Dakota in the context of the then-existing norms of warfare in international and American law to determine the standard by which the actions of the Dakota should have been judged. Part V reviews the evidence presented at the trials and considers whether it shows that any of the Dakota did, in fact, commit punishable offenses. Part VI addresses why this war, and no others, led to trials and executions. The evidence demonstrates that the trials of the Dakota prisoners were objectionable in a number of respects. The speed of the proceedings, the nature of the evidence, and the identity of the judges all combined to preclude*15 judicious decisionmaking and to guarantee an unjust outcome. The commander who ordered the commission trials likely did not have the authority under prevailing statutes to convene the tribunal, and it is questionable whether a military commission had any lawful authority to try the Dakota. More important, the commission tried the Dakota for the wrong crimes. Based on the historical and legal views prevailing in 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 2 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1862 and the years that followed, the Dakota were a sovereign nation at war with the United States, and the men who fought the war were entitled to be treated as legitimate belligerents. The Dakota, therefore, should have been tried only on charges that they violated the customary rules of warfare, not for the civilian crimes of murder, rape, and robbery. Judged by those standards, few of the convictions are supportable. President Lincoln's commutation of all but thirty-eight death sentences may have been an effort to correct the trial verdicts to reflect the proper standard of responsibility, but the flaws in the proceedings make even his judgments questionable. I. THE WAR AND ITS AFTERMATH The Dakota people are part of what is often identified as the Sioux Nation, a group comprised of seven politically distinct tribes--the Seven Council Fires-- that share family ties and a cultural value system, social organization, and language. The four tribes principally involved in the war--the Mdewakanton, Wahpekute, Sisseton, and Wahpeton--are among those that refer to themselves as Dakota. [FN5] The Dakota people had once inhabited and controlled large areas of land in the upper Midwest. By 1862, however, the seven thousand Dakota occupied only a narrow strip of land--about one hundred twenty miles long and ten miles wide-- along the Minnesota River in the southwestern part of Minnesota. The remainder of their land had been ceded to the United States in a series of treaties between 1805 and 1858 in return for cash payments and for money allocated to build facilities such as schools and mills. The Sisseton and Wahpeton tribes lived on the northwestern side of the reservation, with the Mdewakanton and Wahpekute tribes residing on the southeastern side. The reservation also contained two administrative centers established by the federal government, the Yellow Medicine or "Upper Sioux" Agency in the northwest and the Redwood or "Lower Sioux" Agency in the southeast. A. The War [FN6] Despite the pledges of eternal peace and friendship in the treaties, by the *16 summer of 1862 serious tension existed between the Dakota and American [FN7] communities, fueled by a lengthening list of Dakota grievances against the United States. [FN8] The treaties of 1851 had promised the Dakota lump sum payments in exchange for land, [FN9] but eleven years later the Dakota people still had not received the funds. [FN10] After 1851, American settlers began to move onto reservation land north of the Minnesota River; in the treaties of 1858, a largely unwilling Dakota community was forced to relinquish that land. [FN11] Restricted as they were to a small area, the Dakota could no longer support themselves in their traditional manner and so became increasingly dependent on the goods, services, and annuity payments promised in the treaties. When payments and delivery of goods were delayed, the Dakota suffered hunger and hardship. [FN12] In 1857, the Indian Agent withheld the annuities in order to force the *17 Dakota to pursue and capture an outlaw band of Dakota, [FN13] thereby punishing the whole group for the actions of a few individuals who were not part of the community. Later, the Agent began to divide the payments unequally among the Dakota to reward those who adopted American ways at the expense of those who maintained a traditional Dakota lifestyle. [FN14] When annuities were distributed, the Agent often paid most or all of the money directly to the traders for goods already sold to the Dakota on credit, based on unverified claims that were probably padded and were viewed with great--and justified-- suspicion by the Dakota. [FN15]
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Post by mdenney on Mar 4, 2007 13:39:59 GMT -5
In the summer of 1862, the annuity payments were late once again. Rumors spread that, because of the American government's preoccupation with the Civil War, payments might be made in paper money rather than the stipulated gold, or might not be made at all. [FN16] The traders were reported to have said that the payments, if ever made, would be the last. [FN17] Because of past abuses by the traders, the Dakota made plans to demand payment of the annuities directly to the people rather than to the traders; when the traders learned of this, they refused to sell any more provisions on credit, though many of the Dakota were starving. [FN18] When Indian Agent Thomas Galbraith met with the traders to try to resolve the impasse, Andrew Myrick, the spokesman for the traders, responded, "So far as I am concerned, if they are hungry, let them eat grass." [FN19] Thus, longstanding grievances over treaty violations and trader abuses, combined with worsening economic conditions and pressures created by the American drive to assimilate the Dakota, set the stage for war. An incident on Sunday, August 17, 1862, finally precipitated the conflict. Four young Dakota men returning from a hunting expedition killed five American settlers on two homesteads in Acton, Minnesota. [FN20] The attack, apparently unprovoked *18 by any immediate act, was fueled by the increasing tensions between the Dakota and the American settlers. If serious grievances against the Americans 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 3 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. had not built up over the previous several years, the Dakota might have delivered the four men to the Americans for punishment, and peace would have prevailed, at least temporarily. [FN21] The incident then might have remained an isolated occurrence, one of many so-called "Indian depredations" on the frontier. Instead, many of the young Dakota men urged their leaders to initiate war against the American settlers to try to drive them from the Minnesota Valley. Councils were held among the Dakota that night. [FN22] Many of the leaders expressed reluctance or even opposition to war. Some felt sympathy with or had ties to the American community; others realized that a war against the superior numbers and firepower of the Americans could not be won, even though many of the Minnesota men had been sent east to fight the Civil War. [FN23] The young men, however, hoped to recapture their lost land, drive the American settlers away, and return to their traditional way of life. [FN24] Many also believed that the Americans would stop payment of the annuities and take vengeance upon the whole tribe in retaliation for the Acton killings, particularly because women were among the victims. They argued that the Dakota should strike first rather than wait for the inevitable. [FN25] The Council decided on war. The fighting began the next morning when a group of Dakota attacked the Redwood (Lower) Agency, a settlement populated by traders, the Indian agent, various government personnel and their families, farmer-Indians, and some other mixed and full bloods. [FN26] Thirteen Americans were killed in the attack on the Agency, seven more were killed while fleeing from the settlement,*19 and ten were captured. [FN27] Forty-seven settlers escaped from Redwood to Fort Ridgely, a federal army outpost garrisoned by Minnesota volunteer regiments that the United States government had mustered into federal service while the regular troops fought in the Civil War. [FN28] After hearing the news of the attack, Captain John S. Marsh, the commander at Fort Ridgely, set out for the Redwood Agency with forty-six enlisted men and an interpreter. Despite warnings from fleeing settlers that he would be outnumbered, he continued toward the Agency. The Dakota attacked him and his men at the Redwood Ferry, killing twentyfour. The remaining soldiers retreated with some difficulty to Fort Ridgely. [FN29] In the days that followed, the Dakota fought several different kinds of engagements with Americans. The Dakota fought two battles at New Ulm, a German settlement in a strategically significant location in the Minnesota Valley. [FN30] In both battles, the town was defended by men who had volunteered to serve in the fight against the Dakota; [FN31] these "citizensoldiers" fought to protect themselves and more than a thousand women, children, and unarmed men barricaded in the center of town. [FN32] Other battles involved only the military: [FN33] attacks on Fort Ridgely, an attack on a party of soldiers at Birch Coulee, skirmishes in Meeker County, and the final battle at Wood Lake. [FN34] The American forces were led by Colonel Henry H. Sibley, appointed on August 19 by Minnesota Governor Ramsey to be commander of the volunteer forces and named on September 29 by President Lincoln to be Brigadier General of United States Volunteers in charge of the U.S. Military District of Minnesota. [FN35] *20 From the outset the Dakota also attacked other American settlements and settlers who had not yet taken shelter behind the fortifications being constructed by the citizens of the towns. [FN36] Many of the settlers were reportedly unarmed and taken by surprise. [FN37] In most cases, the Dakota killed the men and took the women and children prisoners. [FN38] Wild stories of mutilation by the Dakota in these encounters spread among the settlers, but historians have concluded that these reports were probably exaggerations of isolated instances of atrocities. [FN39] Meanwhile, the disagreements evident at the initial Council continued, dividing those Dakota who supported the war from those who opposed it. The Sisseton and Wahpeton located at the Yellow Medicine (Upper) Agency at first declined to join the war, and some of them helped American settlers and missionaries escape attacks on the Agency. [FN40] Some Mdewakanton opposed continuing the war and urged return of the women and children hostages. Colonel Sibley contacted Taoyateduta (Little Crow), [FN41] the reluctant leader of the war, [FN42] to attempt negotiation, but Sibley demanded the return of the hostages before beginning any discussions. [FN43] The Dakota held Councils *21 to decide whether to negotiate. [FN44] Taoyateduta was loath to do so, believing that no mercy would be shown the Dakota, but two other leaders, Chiefs Wabasha and Taopi, [FN45] who had opposed the war from the outset, contacted Sibley to discuss a surrender. [FN46] On September 23, scarcely a month after the war had begun, the Dakota fighting men returned to camp after the battle at Wood Lake to discover that the Dakota who opposed continuation of the war had taken control of the white captives. Support for the war was rapidly diminishing, and those who wished to continue fighting or opposed surrender moved out of camp 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 4 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. with their families and belongings, leaving the others behind. Among those who fled north were three of the leaders of the war effort, Taoyateduta, Shakopee (Little Six), and Wakanozanzan (Medicine Bottle). The remaining Dakota then sent word to Sibley that he and his soldiers could "come up," which he proceeded to do. On September 26, Sibley set up Camp Release opposite the Dakota camp. [FN47] He entered the Dakota camp later that day and took some 1200 Dakota men, women, and children into custody. About 800 more surrendered in small groups over the next several weeks. [FN48] In thirty-seven days of fighting, 77 American soldiers, 29 citizen-soldiers, approximately 358 settlers, [FN49] and an estimated 29 Dakota soldiers [FN50] had *22 been killed. B. The Trials When deciding whether to surrender themselves and their captives, Dakota leaders had expressed concern about the treatment their people would receive from the Americans, [FN51] but Sibley had assured them that he sought only to punish the individuals who had committed the "murder and outrages upon the white settlers." [FN52] As soon as Sibley gained custody of the 1200 Dakota at the camp, he took steps to initiate such punishment. On September 27 he reported to his commanding officer, Major General John Pope, [FN53] that he had appointed a three-member military commission to examine all the Indian and mixed-blood men and to "sift the antecedents" of each man "so that if there are guilty parties among them they can be arrested and properly dealt with." [FN54] At this point, Sibley perhaps saw the Commission as what would formally be called a "court of inquiry," generally designed to collect information for later use in prosecution or other proceedings, but with no authority to enter judgments and sentences. [FN55] Whatever Sibley's original intention, however, the order he issued on *23 September 28 went beyond his reported plans. The order appointed a five-member military commission and authorized it to "try summarily the Mulatto, and Indians, or mixed bloods, now prisoners, or who may be brought before them . . . and pass judgement upon them, if found guilty of murders or other outrages upon the Whites, during the present State of hostilities of the Indians." [FN56] The Commission was to conduct trials and pass judgment, not simply to investigate. Sibley wrote to Pope again on the 28th, reporting that he had seized sixteen men in the camp suspected of being participants in the "late outrages" and appointed a commission to try them. [FN57] The guilty, he said, would be executed immediately, despite his expressed doubt whether such action was within his authority. [FN58] "An example is . . . imperatively necessary," Sibley wrote, "and I trust you will approve the act, should it happen that some real criminals have been seized and promptly disposed of." [FN59] There seemed little question that Pope would approve Sibley's actions. Sibley's letter of September 28 to Pope crossed with one from Pope to Sibley, in which Pope disparaged the ability of the Dakota to live up to any agreements, cautioned Sibley against making any treaties with them, and concluded: The horrible massacres of women and children and the outrageous abuse of female prisoners, still alive, call for punishment beyond human power to inflict. There will be no peace in this region by virtue of treaties and Indian faith. It is my purpose utterly to exterminate the Sioux if I have the power to do so and even if it requires a campaign lasting the whole of next year. Destroy everything belonging to them and force them out to the plains, unless, as I suggest, you can capture them. They are to be treated as maniacs or wild beasts, and by no means as people with whom treaties or compromises can be made. [FN60]
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Post by mdenney on Mar 4, 2007 13:41:00 GMT -5
*24 The five members of the Commission Sibley appointed were Lieutenant-Colonel William R. Marshall, Colonel William Crooks, Captain Hiram P. Grant, Captain Hiram S. Bailey, and Lieutenant Rollin C. Olin, the last designated as Judge Advocate. [FN61] Sibley appointed Adjutant Isaac Heard of McPhail's Mounted Rangers as Recorder. [FN62] All six men appointed to the Commission had fought in the war with the Dakota. The trials began immediately on September 28, [FN63] the day Sibley issued the Order. The charges were based on information collected by Reverend Stephen Riggs, a missionary from the American Board of Commissioners for Foreign Missions, who had worked with the Dakota since 1837. Riggs, *25 whom Heard described as "the Grand Jury of the court," had assembled in a tent the mixed-bloods and "others possessed of means of knowledge" of the war and had interrogated them to determine who was implicated in the fighting. [FN64] It appears that the Commission tried sixteen men on that first day. [FN65] Ten were convicted and sentenced to be hanged; six were acquitted and apparently released. [FN66] Sibley continued to apprise General Pope of the progress of the trials and his plans for those convicted, [FN67] and Pope, in turn, informed his own superior, General Halleck. [FN68] On October 2, 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 5 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Pope responded to Sibley that he "altogether approve[d] of executing the Indians who have been concerned in these outrages" and reiterated his distrust of all the Indians, whether or not they professed to be friendly. [FN69] Indeed, he later warned Sibley that he would not sanction any treaty with the Indians [FN70] and that he had enough troops to "exterminate them all, if they furnish the least occasion for it." [FN71] *26 Sibley expected another group of Dakota--those who had fled north with Taoyateduta but later abandoned him--to surrender shortly, and he decided not to order any executions of the convicted until after the surrender so as not to deter the others from returning. [FN72] If the "other Indians" surrendered, he planned to take the men prisoner and march them to Fort Ridgely to be tried by the Commission. [FN73] While Sibley still talked of separating the guilty from the innocent, he indicated that he thought most of the men were "deeply implicated in the late outrages" and warned those returning that if any more of the young men went off to war against the whites he would "fall upon their camp and cut them to pieces, without regard to age or sex." [FN74] When several hundred more Dakota surrendered, Sibley informed Pope that he expected to imprison all the men except the very old and that the Dakota would "receive but small mercy" at his hands. Indeed, although he had not yet reviewed the proceedings of the Commission, which had by October 7 already condemned twenty Dakota to death, Sibley informed Pope that he probably would approve the results and "hang the villains" although the proceedings might not be "exactly in form." [FN75] Between October 7 and 10, Pope wrote several times to General Halleck informing him that trials were in progress and that many of the Dakota who participated in the "late horrible outrages" would be executed. [FN76] On October 13, Pope expressed his first doubt that he and Sibley were proceeding correctly, asking Halleck if they needed any further authority to execute those condemned by the Commission. [FN77] In accordance with earlier instructions received from Pope, Sibley had *27 planned to send the convicted Dakota and the other disarmed men to Fort Snelling and to continue the trials there. On October 15, Sibley received new orders from Pope, instructing him to proceed with the trials, to execute those found guilty, and to send only the remainder to Fort Snelling. [FN78] Meanwhile, on October 14, General Pope's report on the trials and planned executions was read at President Lincoln's cabinet meeting in Washington. Lincoln and his cabinet, apparently disturbed by the report and the planned executions, moved to prevent any precipitous action. [FN79] On October 17, Pope wrote to Sibley that "[t]he President directs that no executions be made without his sanction." [FN80] By the time Sibley received that dispatch on October 21, he had reported to Pope that the Commission had tried more than 120 cases, with nearly 300 remaining. [FN81] By November 3, the last day of trials, the Commission had tried 392 Dakota, with as many as 42 tried in a single day. [FN82] Most were charged with murder, and a few were also charged with robbery or rape. [FN83] Below each charge, the transcript listed "specifications." These specifications sometimes detailed particular murders, robberies, or rapes in which the prisoner was alleged to have been involved. But almost uniformly the specifications included the statement (or a close variation) that the prisoner "did, between the 19th of August and the 28th day of September, join and participate in various murders and outrages committed by the Sioux Indians on the Minnesota Frontier." [FN84] Often, the general statement of participation in the fighting was the only specification to the charge. *28 In each case, the members of the Commission were duly sworn, and the written charges were then read to the prisoner through an interpreter. The Commission gave the defendant an opportunity to speak and, if necessary, called witnesses against him. [FN85] Some of the testimony against the prisoners was given by white women who had witnessed particular attacks or who had been held captive and had observed the men leaving and returning to camp, apparently after engaging in fighting. Most of the evidence that convicted the defendants, however, was provided either by the defendants themselves or by mixed-bloods who had been swept up in the war effort and who claimed that they had been forced to participate in the fighting. [FN86]
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Post by mdenney on Mar 4, 2007 13:42:25 GMT -5
All defendants found to have participated in any fighting, whether against soldiers or against settlers, whether in a pitched battle or in a raid, were convicted and sentenced to be hanged. Those found to have participated only in plundering were found guilty and sentenced to terms of imprisonment ranging from one to ten years. Of the 392 men tried, the Commission convicted 323. Of those convicted, the Commission sentenced 303 to be hanged; only 20 were sentenced to terms of imprisonment. The Commission acquitted the remaining 69 prisoners. Eight of these were released during the early days of trial, but the rest remained imprisoned with the other men at the ironically named Camp Release. [FN87] 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 6 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. *29 C. Presidential Review of the Trials Prevailing federal statutes required the President's approval before the sentences of death could be carried out, [FN88] although Sibley and his immediate superiors had initially been unaware of that requirement. [FN89] By November 10, Major General Pope had forwarded to Lincoln the names of the condemned men; Lincoln responded by requesting "the full and complete record of their convictions" and "a careful statement" indicating "the more guilty and influential of the culprits." [FN90] Pope forwarded the transcripts on November 15, preceded by a letter in which he urged the President to execute all of the condemned, claiming that "the only distinction between the culprits is as to which of them murdered most people or violated most young girls." [FN91] He warned that the people of Minnesota, perhaps combined with some of the soldiers, would take matters into their own hands and kill "all the Indians--old men, women, and children," if the President did not allow all the executions to go forward. [FN92] If the President proved reluctant to decide, he suggested, the condemned could be turned over to the state government. [FN93] Minnesota Governor Ramsey left no doubt what decision he would make if given the opportunity, writing to Lincoln to urge execution of all the condemned. [FN94] A great public outcry arose in Minnesota in response to reports that Lincoln might not carry out the full sentence of the military commission. [FN95] The Stillwater, Minnesota Messenger demanded extermination of the Dakota: "DEATH TO THE BARBARIANS! is the sentiment of our people." [FN96] Minnesota's Senator Morton Wilkinson and Representatives Cyrus Aldrich and William Windom wrote to Lincoln reciting stories of rapes and mutilation "well known to our people" and protesting any decision to pardon or reprieve the Dakota. [FN97] If the President did not permit the executions, they said, "the outraged people of Minnesota would dispose of these wretches without law. These two peoples cannot live together. We do not wish to see mob law inaugurated in Minnesota, as it certainly will be, if you force the *30 people to it." [FN98] An open letter to the President from "the citizens of St. Paul" called the actions of the Dakota "wanton, unprovoked and fiendish cruelty," predicting further violence by "these Indians" if an example were not made by executing the convicted, and predicting vengeance by the settlers if the government did not act. [FN99] Others expressed doubt about the proper response. Commissioner of Indian Affairs William P. Dole, visiting in Minnesota, suggested that execution of the sentence would partake "more of the character of revenge than of punishment." [FN100] Reverend Riggs and Bishop Henry Whipple urged clemency for men involved in battles or plundering rather than in murdering women and children. [FN101] Some in the East, more removed from the scene, expressed sympathy for the imprisoned Dakota. [FN102] Lincoln was apparently torn between the cries for vengeance and his concerns about potential injustice to the accused. [FN103] On December 1, he wrote to Judge Advocate General Joseph Holt, asking his legal opinion whether "if I should conclude to execute only a part of them, I must myself designate which, or could I leave the designation to some officer on the ground?" [FN104] Holt replied that the decision to pardon could not be delegated. [FN105] On December 5, hoping to force the President's hand and prevent sympathetic appeals from "shak[ing] his purposes," Minnesota Senator Wilkinson introduced a resolution requesting that the President give an account to the Senate of the events in Minnesota and the evidence upon which the Commission ordered execution. [FN106] Meanwhile, Colonel Stephen Miller, commanding officer of the regiment holding the condemned prisoners, repeatedly reported unrest among the citizens and soldiers, which he feared would lead to mob violence against the Dakota. Indeed, as the wagon train of prisoners moved through New Ulm on its way from Camp Release to Mankato, a crowd of men, women, and children pelted the shackled Dakota with bricks and other missiles, seriously injuring some prisoners and guards. [FN107] A mob attacked the rest of the Dakota--*31 theeeee "friendly" community--on their way to Fort Snelling; one baby was snatched from its mother's arms and beaten to death. [FN108] After being moved from Camp Release, the prisoners were held in an open field near Mankato, where they were easy objects of attack. On November 16, Miller reported the existence of an "extensive secret organization including men of character in all this upper country, and many soldiers" who would attempt to take charge of the prisoners unless they were executed within a week. "I was informed only yesterday," Miller said, "that the Sheriff was very busy exciting the citizens upon this subject." [FN109] On the 22nd, 23rd, and 26th, Miller warned again of possible mob violence, particularly if word spread that the prisoners were to be moved from Mankato or pardoned. " t is daily hinted to me," he went on, "that too many of the Soldiers participate in this feeling and determination." [FN110] Miller was making plans to build a log prison to hold the men more securely and thought that he could "get the prisoners safely into town, but to get them out would require a 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 7 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. small army." [FN111] At 11 P.M. on December 4, several hundred civilians, armed with clubs, hatchets, and knives, attacked the new camp. Miller reported that the mob had planned to meet with 2000 other people the next day and intended to murder the prisoners. [FN112] The soldiers surrounded, arrested, and disarmed the civilians, then permitted them to return to Mankato after receiving promises of good behavior. The soldiers had acted rapidly to put down the attack, with good results, [FN113] but Miller continued to warn of a "general, fearful and bloody demonstration" if the prisoners were moved or if a general *32 pardon were issued. [FN114] In response to the attack on the camp, Governor Ramsey issued a proclamation urging the people of Minnesota to act with restraint and to obey the law. The proclamation was a double-edged sword, however; it suggested that Lincoln ultimately would agree to execute the prisoners and warned that the state courts and legislature would take action if the federal government did not. [FN115] On December 6, Lincoln finally issued his decision. In his message to the Senate, he explained that he had been "nxious to not act with so much clemency as to encourage another outbreak, on the one hand, nor with so much severity as to be real cruelty, on the other." [FN116] He had, accordingly, ordered a review of the transcripts with the intention of ordering the execution of only those who had been "proved guilty of violating females." [FN117] Lincoln indicated that, contrary to his expectations, only two men had been convicted of rape, so he determined to draw the line by executing those who had participated in "massacres," as distinguished from those who had participated in "battles." [FN118] Of the forty men fitting this description, he said, one had been recommended by the Commission for clemency, [FN119] leaving *33 thirty-nine to be executed on December 19. He ordered that the remaining prisoners be held "subject to further orders, taking care that they neither escape, nor are subjected to any unlawful violence." [FN120] D. The Executions Officials in Minnesota worried that a violent reaction would follow the President's decision to execute only thirty-nine prisoners. Sibley immediately requested that Lincoln postpone the execution for one week, [FN121] writing to Miller that he needed "time for due preparation and for the concentration of the troops necessary to protect the other Indians and . . . to prevent a fearful collision between the U.S. forces and the citizens." [FN122] As of December 17, the prisoners had apparently not been told of the President's decision. On that date, Reverend Augustin Ravoux wrote to Sibley requesting that he separate the condemned men from the others and inform them of their fate at least one day before the planned execution to let them prepare themselves "for the awful judgement of God." [FN123] The condemned men were finally moved on December 22. Later reports suggest that, because of the similarity of several of the Dakota names, some errors were made in identifying the thirty-nine condemned individuals from the larger group of those convicted, [FN124] but Sibley denied this claim. [FN125] *34 After the division was made, Reverend Riggs addressed the condemned prisoners, translating to them the President's order and a statement apparently prepared by Miller: Their Great Father at Washington, after carefully reading what the witnesses testified to in their several trials, has come to the conclusion that they have each been guilty of wantonly and wickedly murdering his white children. And for this reason he has directed that they each be hanged by the neck until they are dead, on next Friday; and that order will be carried into effect on that day, at ten o'clock in the forenoon: That good ministers are here, both Catholic and Protestant, from amongst whom each one can select a spiritual adviser, who will be permitted to commune with them constantly during the few days that they are yet to live: . . . . Say to them now that they have so sinned against their fellow men, that there is no hope for clemency except in the mercy of God, through the merits of the blessed Redeemer and that I earnestly exhort them to apply to that, as their only remaining source of comfort and consolation. [FN126] The prisoners received the news of their impending execution with equanimity, according to Dakota tradition: Several Indians smoked their pipes composedly during the reading, and we observed one in particular who, when the time of execution was designated, quietly knocked the ashes from his pipe and filled it afresh with his favorite kinnekinnick; while another was slowly rubbing a pipefull of the same article in his hand, preparatory to a good smoke. [FN127] 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 8 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. On December 23, the President suspended the execution of one of the condemned men, Tatimima, after Sibley telegraphed that new information led him to doubt the prisoner's guilt. [FN128] Preparations proceeded to hang the remaining thirtyeight. The settlers in the region took great interest in the hanging, and Colonel Miller feared violence from many of those arriving, uninvited, to view the execution. To help keep the peace, Miller declared martial law would be in effect from the morning of December 25, the day *35 before the scheduled execution. [FN129] Meanwhile, the troops constructed a scaffold large enough to hang all thirty-eight at one time. Having apparently accepted their fate, the condemned prepared themselves for the execution. On the evening of December 23, the prisoners danced and sang together, probably to demonstrate their calmness and to honor each other and their relatives. [FN130] On the 24th, they were permitted to meet with male relatives and friends also confined at the camp in order to say goodbye and send messages and words of comfort to their families. These meetings were reported to be "sad and affecting," with many of the prisoners moved to tears. [FN131] Tatimima, not yet informed that his execution had been stayed, sent word to his relatives not to mourn him, that he died innocent of any white man's blood, and hoped his friends would thus consider his death as simply a removal to a better world. [FN132] Reflecting a belief that more of the prisoners would later be executed, Tazoo said: [T]ell our friends that we are being removed from this world over the same path they must shortly travel. We go first, but many of our friends may follow us in a very short time. I expect to go direct to the abode of the Great Spirit, and to be happy when I get there; but we are told that the road is long and the distance great; therefore, as I am slow in all my movements, it will probably take me a long time to reach the end of the journey, and I should not be surprised if some of the young, active men we will leave behind us will pass me on the road before I reach the place of my destination. [FN133] On the 25th, Christmas Day, the condemned met with female relatives who had been working as cooks for the prisoners. These interviews were reported to be less sad. The prisoners sent messages to their relatives and friends, advising them to "bear themselves with fortitude and refrain from great mourning"; they also distributed personal items and locks of hair for the women to give to those outside. [FN134] Shortly before the time for execution, Hdainyanka (Rattling Runner) [FN135] dictated a letter to Wabasha, his father-inlaw, one of the leaders who had counseled against the fighting and had helped negotiate the surrender to Sibley: WABASHA[],--You have deceived me. You told me that if we followed the advice of General Sibley, and gave ourselves up to the whites, all would be well; no innocent man would be injured. I have not killed, wounded, or *36 injured a white man, or any white persons. I have not participated in the plunder of their property; and yet to-day I am set apart for execution, and must die in a few days, while men who are guilty will remain in prison. My wife is your daughter, my children are your grandchildren. I leave them all in your care and under your protection. Do not let them suffer; and when my children are grown up, let them know that their father died because he followed the advice of his chief, and without having the blood of a white man to answer for to the Great Spirit. My wife and children are dear to me. Let them not grieve for me. Let them remember that the brave should be prepared to meet death; and I will do as becomes a Dakota. [FN136] Several of the Christian missionaries stayed with the condemned through that night. They reported that the prisoners were "cheerful and contented" and had asked the missionaries to tell their wives and children how "cheerful and happy they all had died, exhibiting no fear of this dread event." [FN137] At 7:30 A.M. on December 26, the iron manacles were removed and cords were used to secure the prisoner's arms. The men continued their songs and conversation, and each shook hands with the soldiers and reporters present to wish them goodbye. [FN138] Father Ravoux led them in prayer, after which white hoods, rolled up to reveal their face paint, were placed on the prisoners in preparation for the execution. The head coverings were a source of shame-- the Dakota would have wanted to show that they faced death without flinching [FN139]--and after being hooded, the men became more subdued. [FN140] At exactly 10:00 A.M., soldiers led the men out of the prison and to the scaffold. The condemned maintained their composure to the end, walking "eagerly and cheerfully, even crowding and jostling each other to be ahead." [FN141] As they ascended the scaffold, watched by a throng of spectators, they began to sing loudly what was variously reported as a death song or a hymn. [FN142] One of the men sang of his deeds in battle, mocking the crowd *37 with reference to a mutilated body at New Ulm. [FN143]
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Post by mdenney on Mar 4, 2007 13:44:11 GMT -5
Three drum beats signaled the moment of execution. Many of the men clasped the hands of their neighbors. As the rope was 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 9 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. cut, and the bodies fell, a single prolonged cheer arose from the soldiers and citizens watching the spectacle. Then the soldiers cut down the bodies and the crowd dispersed. The crowd was orderly, probably due in large part to the preparations of Colonel Miller and the declaration of martial law. The bodies were buried in a single grave four feet deep on the edge of town. [FN144] E. The Survivors The Dakota convicted by the Commission but not executed continued to be held as prisoners, since no general pardon was issued. The rest of the Dakota community also remained under restraint, most of them in an internment camp at Fort Snelling. [FN145] Beginning shortly after the trials concluded and extending well into 1863, Sibley and others continued to collect evidence to determine if they should bring any other Dakota to trial or have any more of the sentences carried out, [FN146] but no further executions or trials *38 occurred. In February 1863, John Nicolay, President Lincoln's Secretary, wrote to Sibley requesting his opinion about what to do with the remaining condemned men. [FN147] Sibley apparently still hoped for further executions but suggested that the government send those not hanged to military prison in Illinois or in some other way remove them from Minnesota, where public sentiment still ran strongly against them. [FN148] Finally, in late March, the decision was made to send the convicted men to Camp McClellan in Davenport, Iowa. [FN149] Meanwhile, Congress had enacted a statute providing for the removal of all members of the four bands of Dakota from Minnesota, leaving the President to select an appropriate place for a new reservation. [FN150] In April 1863, the men who had been acquitted and the fifteen or twenty women who had served at the prison in Mankato were reunited with the sixteen hundred Dakota still held at Fort Snelling. The convicted prisoners were transported to a new prison camp in Iowa, [FN151] while the rest of the community was moved to a reservation at Crow Creek in South Dakota. [FN152] *39 Between the time of the executions in December 1862 and his death, President Lincoln received and granted requests to pardon a number of the remaining prisoners. Sibley himself submitted the first request in January 1863. He asked for the pardon of David Faribault, Jr., a mixed-blood who claimed to have participated in the fighting under duress, an assertion made by many of those convicted. Lincoln pardoned Faribault on May 11, 1863, "on evidence that he acted with the Indians under duress, and that he was not engaged in the massacre of women and children." [FN153] At the same time, Lincoln pardoned Toonwanwakinyachatka, on the recommendation of the Judge Advocate General, because the record "was altogether too imperfect to justify the government in carrying the sentence into execution." [FN154] On April 7, 1864, Reverend Riggs requested pardons for four prisoners who he believed had not participated in the fighting. [FN155] Sibley concurred, noting that there was "reasonable doubt of the guilt of the prisoners named from circumstances that have transpired since their trial by the Military Commission, and . . . they are entitled to the benefit of that doubt." [FN156] Lincoln granted the pardon on April 19, 1864. [FN157] On April 30, 1864, at the urging of Reverend Thomas Williamson, the President issued an order pardoning *40 twenty-six more prisoners, [FN158] and on August 27, 1864, the commander of the Camp in Davenport received an order pardoning Tatememah, apparently the same prisoner saved from the gallows just days before the execution. [FN159] The pardon of one prisoner, Wambditanka (Big Eagle), was delayed by official skepticism of the pardon document, a penciled note from Lincoln on the back of a letter. [FN160] Apparently the confusion was resolved because Wambditanka was later released. [FN161] Beginning as early as July 1865, after two years of imprisonment at Camp McClellan, there was discussion about releasing the remaining prisoners, in part "because of the expense of feeding them and guarding them." [FN162] General Pope expressed some reluctance about releasing the men and allowing them the freedom to join with what he termed other "hostile Indians" near the Crow Creek Reservation. [FN163] Nevertheless, orders arrived in late September to transport the men as soon as spring navigation opened. Finally, on March 22, 1866, President Johnson ordered remission of the sentences of death and release of the 177 remaining prisoners. [FN164] They, along with the community from Crow Creek, were transported to the Niobrara Reservation, newly appropriated for them in the northeast corner of the Nebraska Territory. [FN165] F. Later Trials The Army convened additional military commissions in 1863 and 1864 to try three more Dakota captured well after the fighting ended in September *41 1862. These later trials and their review differed significantly from the trials conducted in 1862. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 10 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. The first to be tried was Wowinape, the sixteen-year-old son of Taoyateduta. After the end of the fighting in September 1862, Taoyateduta and a small group of followers had fled north, but he, his son, and several others later returned to the vicinity of Mankato. [FN166] On July 3, 1863, Taoyateduta and Wowinape were surprised by two settlers while picking berries. The settlers shot and killed Taoyateduta; [FN167] Wowinape temporarily escaped, but was captured several weeks later. [FN168] On August 22, 1863, Sibley ordered the formation of a military commission at Fort Abercrombie to try Wowinape. [FN169] Wowinape was tried on the general charge of participating in the murders and massacres between August 18 and September 23, 1862, and for attempted murder and horse stealing at frontier settlements near Devil's Lake in May, June, or July 1863. [FN170] Mixed-blood witnesses testified that Wowinape had been present at the second battle of New Ulm, as well as at fighting in the Big Woods and Hutchinson. [FN171] Others described Wowinape's capture and his statement that he and his father had come to steal horses. [FN172] The trial concluded on September 28, 1863, with a guilty verdict and a sentence of death by hanging. [FN173] Sibley, as the officer convening the Commission,*42 approved the sentence. [FN174] To this point, Wowinape's trial closely resembled the earlier trials, but the subsequent review took an unusual turn. After Sibley indicated his approval of the finding and sentence, Major General Pope forwarded the proceedings to the Secretary of War and then to Judge Advocate General Holt. Instead of reviewing the trial, however, these officials returned the transcript to Pope with a reference to army regulations and to a statute effective December 24, 1861, that required the General Commanding the Army in the Field (Pope, in this case) to confirm or disapprove the proceedings. Pope's neutral "referral" was not enough. [FN175] The same statute and regulations had been in effect in November 1862, but no one sought Pope's official approval at that time. Given Pope's vociferously expressed intention to exterminate the Dakota or drive them out entirely, [FN176] one would have expected him to confirm the proceedings without hesitation. Instead, with a sudden display of concern for legal nicety, Pope found a "technical difficulty" that prevented him from confirming the proceedings. [FN177] Article 65 of the Articles of War, as amended in 1830, specified that an officer otherwise authorized to convene a court-martial could not do so if he were also the "accuser or prosecutor." [FN178] An officer was the "accuser" if he either originated the charge or adopted and became responsible for it, unless he acted solely in an official capacity to order an investigation after facts warranting such an investigation were brought to his attention. [FN179] The amendment to article 65 was designed to avoid the impropriety or the appearance of impropriety that exists when the individual passing on a court-martial proceeding might be biased because he also brought the charges. [FN180] Although article 65 referred by its terms only to courts-martial, and not to military commissions, Pope suggested that it *43 might apply here, too, by analogy. Believing that the proceedings against Wowinape were "in violation of the spirit of the 65th Article of War, but [that] there . . . [was] a possible doubt," he submitted the matter for decision to Judge Advocate General Holt. [FN181] Holt agreed that article 65 had been violated in spirit, [FN182] and Pope thereafter disapproved the proceedings. [FN183] Upon hearing of Pope's disapproval of Wowinape's trial, Sibley wrote to Holt to justify his own actions. He noted, quite accurately, that "a precisely similar condition of things existed in 1862, when nearly four hundred Indian warriors, taken prisoners by the forces under my command, were tried and the greater number condemned to death by a Military Commission ordered by me upon charges and specifications preferred by myself." [FN184] If Wowinape's trial was irregular and subject to disapproval, so, too, were the earlier trials. Sibley argued that the provision was designed only to protect inferior officers from the prejudice their superiors might feel toward them, and such hostility could not be "pre-supposed to exist" where the defendants were enlisted men or prisoners of war. [FN185] Sibley's superiors disagreed. Despite the disapproval of the proceedings, however, Wowinape was not released but was sent to Camp McClellan to be confined with the other prisoners "until the President shall act upon the case." [FN186]
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Post by mdenney on Mar 4, 2007 13:45:26 GMT -5
The other two Dakota tried by military commission in 1864 were less fortunate. Wakanozanzan and Shakopee, both chiefs who had fled north with Taoyateduta, were kidnapped from Canadian soil in January 1864 by British soldiers. [FN187] In May the two prisoners were taken to Fort Snelling, where, on November 14, Sibley convened a military commission. [FN188] On November 25, the Commission formally charged Wakanozanzan with murdering Philander Prescott and "sundry white men[,] women and children whose names are unknown," and with participating in the "murders[,] massacres *44 and other outrages committed by the Sioux Indians upon the white settlers of the State of Minnesota." [FN189] In a departure from the earlier trials, each specification recited that Wakanozanzan was "a Sioux Indian of a band under the protection . . . of the United States," perhaps reflecting an awakened sensibility to the sovereignty questions raised by the trials. [FN190] At the outset, Wakanozanzan asked for permission to introduce counsel. The request was granted, but only after a day's 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 11 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. adjournment to seek guidance from headquarters. The proceedings were then continued for two days at the defendant's request. When the court reconvened, Wakanozanzan still did not have counsel present but said that he was ready to proceed. [FN191] Five witnesses testified against Wakanozanzan--one American woman and four Dakota--none of whom actually had seen the defendant kill anyone. Witnesses testified that Wakanozanzan had favored killing whites, that he willingly had gone out with war parties and had led some of them, that he had boasted of killing whites, that he had threatened "civilized" and "friendly" Indians if they didn't join the fight, and that he was a member of the group that had killed Philander Prescott. [FN192] The defendant offered no evidence but requested time to prepare a final defense. The Commission adjourned for two days, at which time Wakanozanzan submitted a written statement prepared by two attorneys, ex-Governor Willis A. Gorman and future Senator and Governor Cushman K. Davis. [FN193] The statement challenged the jurisdiction of the court because Wakanozanzan had been seized from a foreign state, and it denied that he *45 had participated in the events charged or that he told anyone that he had been connected with Prescott's death. The Commission returned guilty verdicts on both charges-- murder and participation in the fighting--but found Wakanozanzan not guilty of the specification of killing United States soldiers. [FN194] The proceedings against Shakopee began immediately after Wakanozanzan's trial concluded. [FN195] Shakopee, too, asked for time to introduce counsel, and the Commission granted a one-day adjournment. When the proceedings resumed, Shakopee stated that Mr. Gorman had agreed to defend him, but would not be available until December 9, six days later. Shakopee asked for another adjournment until that date, but the Commission denied the request. Shakopee was then tried on charges of murder and "general participation in the murders[,] massacres and other outrages." The specifications charged various acts of killing, with an "unknown murderous weapon," various unidentified white men, women, and children. As with Wakanozanzan, the specifications recited that Shakopee acted "with other Indians of the same tribe under the protection of the United States." At the outset of their testimony, each of the six witnesses, all Dakota, stated that Shakopee was an "annuity Indian" and under the protection of the United States, an issue previously raised only in the trial of Wakanozanzan. As in the trial of Wakanozanzan, none of the witnesses had actually seen Shakopee do anything, but each repeated what Shakopee had told others about various killings. Shakopee submitted a written statement denying that he had fought against the whites or had claimed to have killed any of them. The Commission then issued its verdict, finding him guilty of both charges--murder and general participation in the fighting--but, as with Wakanozanzan, not guilty of the two specifications charging him with shooting at and killing soldiers. [FN196] The Commission sentenced both Wakanozanzan and Shakopee to be hanged. Sibley confirmed the sentences on December 14, 1864, and set execution for January 20, 1865. He forwarded the proceedings to Judge Advocate General Holt with a notation that the two were "chiefs of two of the bands most deeply implicated" in the war, that it was a matter of notoriety that these men "not only [led] in instigating their people to attack the whites, but in personal participation in the indiscriminate butchery of men, women and children." He noted that British subjects, not American soldiers or citizens, *46 had kidnapped the defendants and that the escape of these two from punishment "would have a very bad effect upon the Indians generally." [FN197] Two weeks later, on December 27, 1864, Holt returned the proceedings to General Pope for his confirmation in order to comply with the requirement, first noted after the trial of Wowinape, that the general commanding the army in the field confirm or disapprove the proceedings. [FN198] Pope confirmed the judgments on January 20, 1865, [FN199] ignoring the defect that had caused him to disapprove Wowinape's trial, though these trials suffered from the same infirmity. [FN200] In March, Holt reviewed the transcripts and the challenge to jurisdiction, and he strongly recommended to President Lincoln that the executions be carried out. [FN201] On August 29, 1865, President Johnson, who had taken office after Lincoln's assassination, approved the sentences. The executions were scheduled for October 11, but Johnson postponed them the day before on the recommendation of the Secretary of the Interior, who had received a plea from Bishop Grace of St. Paul. [FN202] Holt again recommended execution, pointing to the major part these individuals had played in the fighting as described in Sibley's earlier letter. [FN203] The two Dakota were hanged at Fort Snelling on November 11, 1865. [FN204] II. FAIRNESS OF THE PROCEEDINGS 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 12 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. A. Procedural and Evidentiary Defects 1. Rapidity of the trials. It has become a commonplace observation that the United States-Dakota war trials were unfair. [FN205] The Commission conducted the trials very rapidly, *47 with as many as thirty or forty trials in a single day. After hearing the evidence, the Commission would clear the room, deliberate for a few minutes, and announce the verdict. With the exception of the first case, it appears that the Commission had little trouble reaching its verdicts. Isaac Heard, the Recorder for the Commission, attempted to justify the speed: "The trials," he said, "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." [FN206] Even Reverend Riggs, who assisted the Commission by securing information from the Dakota, was appalled at the speed of the trials. In a letter to the St. Paul Daily Press, he wrote, "Many of those that are tried and condemned, are doubtless guilty of participation in the murders and outrages committed on the Minnesota frontiers--some of them as guilty as Satan himself, and richly deserving the punishment of death. . . . [Nonetheless, a] military commission, where the cases of forty men are passed upon in six or seven hours, is not the place for the . . . clear bringing out of evidence and securing a fair trial to every one." [FN207] Bishop Whipple wrote to the Secretary of the Interior that "[o]fficers of the highest character who were present at the trial have assured me that . . . [the Commission] could not and did not make a careful examination." [FN208] Reverend J.P. Williamson noted that "400 have been tried in less time than is general[ly] taken in our courts with the trial of a single murderer." [FN209] 2. Cultural misunderstanding and deficiencies of the evidence. To say, as many have, that the trials were unfair because they were conducted too quickly only skims the surface of the imperfections. A detailed look at the trial transcripts produces a more precise understanding of the nature of the unfairness. In most of the first few cases, the defendants were charged with attacking individual wagons of settlers and murdering one or more of the men in the wagons. Among the witnesses called were women who had been in those wagons, had witnessed the attacks, and had been held captive in the Dakota camp until released with all the American prisoners at the end of September. [FN210] This evidence was the best sort presented--eyewitness testimony to particular acts of killing. As the trials progressed, however, there was less and less of such evidence. *48 Many defendants admitted to being at a battle, and that evidence alone was enough to bring a conviction. Others admitted that they were with a group when another individual killed a settler, and that, too, brought conviction. Testimony from other witnesses tended to be short, serving merely to identify the prisoner as having been present at particular battles or when particular individuals were attacked, but the witnesses often had no direct knowledge of who struck the fatal blows. In many cases, the only evidence against the defendant was testimony from the white women captives or mixed-bloods that the defendant had appeared to go willingly into battle, "whooping around" with the rest, and had boasted afterward about the number of people he had killed in the fighting. [FN211]
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Post by mdenney on Mar 4, 2007 13:48:29 GMT -5
Although evidence of the prisoners' boastful statements was admissible as a confession, [FN212] the reliability of such remarks is highly suspect in ways that were never suggested at the trials. Boasting about exploits, exaggerated as well as real, would have been an expected part of the aftermath of any battle. Such exaggeration was particularly likely to occur in this war, because the Dakota disagreed about whether to go to war and many men might have desired to prove their loyalty by describing and embellishing their exploits. [FN213] Special acts of bravery, such as touching an armed soldier during battle or sneaking into an enemy camp to steal or release horses, were considered "counting coup," [FN214] and might have been boasted of in a manner suggesting that killings had occurred. [FN215] Moreover, according to Dakota custom, the man who struck the mortal blow was not the only one entitled to claim a kill in battle. "It was considered most honorable to be the first to *49 touch an enemy, but the three next following were accounted as having helped kill him, though he might be dead before they reached him." [FN216] The man who first touched an enemy was also credited with having killed him, even if the actual killing was done by another, and the one who first entered a house where people were later killed by any of the group was given credit for all the killings. [FN217] Thus, when individuals boasted of killings, they might have been exaggerating or they might have meant no more than that 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 13 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. they were present at the time of a killing and had performed acts of valor. [FN218] In many of the cases, moreover, the testimony about the defendants' "confessions" came from Americans captured in the early days of the war, witnesses who may not have understood these distinctions, even assuming they understood the Dakota language well enough to interpret the defendants' remarks correctly. At trial, then, a defendant might truthfully have denied--as many did--actually killing anyone, but the court would likely have considered the response untruthful in view of the testimony about the defendant's own "confession." Because no one suggested the potential for such cultural misunderstanding at the time of the trials, however, the Commission made no effort to explore the possible meanings of the defendants' statements. Nonetheless, many of the defendants admitted at least that they were present when individuals were killed by other Dakota. If the Commission regarded those particular killings as murders, it might conclude that all members of the group present were equally liable, analogizing to the common law doctrine of felony murder. [FN219] Evidence might then be sufficient to convict even though it failed to distinguish between the one who struck the blow and others who were present. But it is not clear how, if at all, the felony-murder doctrine should apply to acts committed during a time of war: If a group could, under the laws of war, legitimately set out with weapons to kill soldiers and to run settlers off strategic land, [FN220] particular killings by members of the group would not have been done in the commission or attempted commission of a felony, a requirement of the felony-murder doctrine. [FN221] Again, however, these questions were not raised at the trials. *50 If the Commission had considered whether the evidence it heard could point to different levels of involvement and guilt, it might at least have concluded that different forms of participation warranted different punishments. Instead, Sibley expressly instructed the Commission to consider solely whether the individual voluntarily participated in the fighting. "The degree of guilt was not one of the objects to be attained." [FN222] The Commission likewise ignored mitigating evidence that particular defendants had acted to protect the victims of attack from being raped or killed. [FN223] 3. Self-interest of the witnesses. Much of the evidence in the trials came from individuals who were themselves on trial for their lives, mostly mixed-bloods and others who had adopted American ways. The most often mentioned of these defendants-turned-witnesses was Godfrey, also called Otakle, the "Mulatto" specifically described in the order forming the Commission. [FN224] In his own trial, Godfrey claimed that he had been forced into battle by threats against his family and had not actually killed anyone. Although Godfrey was the first to be tried, the Commission held his case open for some time, asked for his testimony in subsequent cases, and suspended imposition of his sentence until it completed the trials. Godfrey gave evidence in fifty-five of the cases; of the thirty-eight Dakota who were ultimately hanged, he testified in the trials of eleven. [FN225] Reverend Riggs noted that Godfrey "was convicted among the first batch. But he was everywhere in all the battles and . . . [later wanted] to convict everyone else." [FN226] The Commission also questioned subsequent prisoners and witnesses about Godfrey, but found "no person who saw him kill anyone." [FN227] Ultimately, the court found him not guilty of the charge of murdering seven unknown whites, but convicted him of participating in the fighting and sentenced him to be hanged. The court's gratitude for Godfrey's cooperation *51 was reflected in a recommendation to the President that the sentence be commuted to ten years' imprisonment because he had given evidence against many other prisoners. Without his testimony, the Commission wrote, "a large number of men of the very worst character would have gone unpunished." [FN228] The President agreed and spared Godfrey's life. [FN229] Godfrey was the most noted witness, but others played similar roles. Thomas Robertson testified in fifty-five of the trials, including those of five of the thirty-eight executed, [FN230] and was found not guilty in his own trial. [FN231] Charles Crawford testified in eight trials [FN232] and was himself tried twice and found not guilty each time. [FN233] Wakanhdehota testified in seven trials, including one for a defendant who was hanged; [FN234] his own first trial resulted in a sentence of death by hanging but that was later reduced to imprisonment for three years. [FN235] Wechahpenompa testified in six trials, [FN236] Louis LaBelle in four, [FN237] Louis Frenier [FN238] and Tazoo [FN239] in three, and Henry Millard and Baptiste Campbell in one each. [FN240] The Commission found all of these men guilty in their own trials, [FN241] and the last three were hanged. David Faribault, Jr., described by one of the missionaries as a mixed-blood "of bad character, strongly suspected of instigating the Indians to these murders," [FN242] testified in many of the trials--the precise number is impossible to determine [FN243]--and was later pardoned. The self-interest of these witnesses, and their anger and distress at being drawn into the war and forced to choose sides in the long-standing conflict between the "farmer Indians" and the traditional Dakota, suggest reasons to doubt their credibility. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 14 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Their testimony was not always crucial to the outcome, as the defendants often had already admitted to acts of war that would have led to guilty verdicts. Still, the witnesses often were responsible *52 for evidence of the defendants' participation in attacks on individual settlers, which apparently led to their inclusion on Lincoln's execution list for having engaged in "massacres." [FN244] The testimony of these witnesses may, of course, have been truthful, but their own self-interest in avoiding punishment and their positions in the disputes within the Dakota community must lead to questions about their veracity--questions that the Commission itself never asked. Indeed, the Commission may have found these witnesses trustworthy precisely because they did cooperate and were therefore "good Indians" or "friendlies," [FN245] although the Commission nonetheless convicted some of them for their own participation in the fighting. Moreover, most of the regular witnesses were mixed-bloods, more likely to be believed than the full-blood defendants. In a letter to the St. Paul Pioneer, Reverend Riggs complained that the Commission might believe a mixed-blood who claimed he was forced to go into battle and, therefore, reduce his sentence; the Commission would not accept such a defense from a full-blood. [FN246] 4. Defendants' misunderstanding and absence of counsel. It seems likely that the prisoners understood little about the nature and purpose of the trials. David Faribault, Jr., a mixedblood, was a United States citizen, had been raised and educated among the whites, and was fluent in both English and French as well as Dakota. Nonetheless, in his request for pardon he stated that he had not understood the nature of the proceedings. He believed, he said, that the object of the Commission was "merely to ascertain what parties should be held for a regular trial to be had at some future time in the Courts of the country," and he did not know that he was on trial for his life. [FN247] The rest of the Dakota prisoners, even more unfamiliar with American customs, almost surely did not know more. [FN248] The exchange of communications between Father Ravoux and Sibley, and the message to the condemned delivered on December 22, [FN249] four days before the executions, suggest that not until that late date did the Dakota know the nature of the Commission's deliberations. Nor would the Dakota *53 have been familiar with American trial procedures. Reverend John Williamson reported: "[The defendants know] nothing of the manner of conducting trials[,] if a mistake occurs they are unable to correct it. And often not understanding the English language in which the trial is conducted, they very imperfectly understand the evidence upon which they are convicted." [FN250] The prisoners' lack of understanding might have been alleviated if counsel had been present to represent or advise them. Although the military considered the presence of defense counsel a privilege, not a right, [FN251] courts-martial generally admitted counsel as a matter of course. [FN252] The Commission did not follow that rule here. St. André Durand Balcombe, government agent to the Winnebagos, apparently attempted to intervene and introduce counsel on behalf of ten or twelve Winnebagos tried in November 1862 for participating in the fighting with the Dakota; [FN253] the Mankato Record reported that General Sibley "very respectfully but firmly replied that these were 'military trials,"' intimating that he would not comply with the request. [FN254] Of the Dakota, only Wakanozanzan and Shakopee, tried in late 1864, requested permission to introduce counsel at their trials. The Commission granted the requests, but only after consulting with Sibley, [FN255] who apparently had a change of heart since the Winnebago trials. The bulk of the Dakota prisoners, unfamiliar with American proceedings, probably did not think of seeking counsel; they likely would have been unable to find counsel even if Sibley would have permitted it. In the absence of counsel, the Judge Advocate was responsible both for prosecuting the case and assisting the accused in preparing his case. Even in a normal court-martial this assistance was recognized as inadequate. [FN256] Relying on the prosecutor to act as counsel for the accused is yet more problematic where, as here, the Judge Advocate fought in the battles that led to the charges. Certainly the transcripts do not reflect that the Judge Advocate provided any protection or assistance to the defendants in these cases. 5. Contemporaneous recognition of trial defects. Local missionaries and officials who reviewed the trial transcripts for President Lincoln voiced some of these criticisms at the time of the trials. Assistant Secretary of the Interior John P. Usher wrote to Sibley as early as December 10, 1862, complaining about the "meagre manner in which the *54 evidence . . . [had] been reported" to Lincoln. [FN257] Reverend Thomas Williamson wrote that he had: only read the testimony in four cases . . . but am satisfied in my own mind from the slight evidence on which these are condemned that there are many others in that prison house who ought not to be there; and that the honor of our Gov[ernment] 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 15 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. and the welfare of the people of Minnesota as well as that of the Indians requires a new trial before unprejudiced judges. [FN258] Sibley vehemently defended the Commission, although in so doing he admitted to many of the weaknesses of the proceedings: t should be borne in mind that the Military Commission appointed by me were instructed only to satisfy themselves of the voluntary participation of the individual on trial, in the murders or massacres committed, either by his voluntary concession or by other evidence and then to proceed no further. The degree of guilt was not one of the objects to be attained, and indeed it would have been impossible to devote as much time in eliciting the details in each of so many hundred cases, as would have been required while the expedition was in the field. Every man who was condemned was sufficiently proven to be a voluntary participant, and no doubt exists in my mind that at least seven-eighths of those sentenced to be hung have been guilty of the most flagrant outrages, and many of them concerned in the violation of white women and the murder of children. [FN259] In a letter to Bishop Whipple, Sibley likened the proceedings to a drum-head court-martial, a court-martial held in the field under the pressures of war, which is "not expected to enter into details of a technical character." [FN260] But drum-head courts-martial--officially termed "garrison" or "regimental" courts-martial--are not authorized to try capital cases, or even to order imprisonment for more than one month, [FN261] no doubt for the very reason that they are not able to grant full and fair trials under exigent circumstances. B. Commission Prejudice
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Post by mdenney on Mar 4, 2007 13:49:55 GMT -5
The potential for unfairness described above was compounded by the *55 composition of the Commission itself. All members of the Commission were local residents, likely to react as vehemently as any other Minnesotan to the events of the war. The military commanders noted the strength of the soldiers' sympathy with the citizenry regarding the desire to punish the Dakota; the officers feared that the soldiers would support an attempt by mob violence to accomplish what Lincoln might not be prepared to do. [FN262] Reverend Thomas Williamson suggested: "f the members of the court who try them think and feel as do a majority of those whom I hear speak of the Dakotas and the editorial corps of Minnesota[,] universally so far as I know[,] innocence will be no guaranty of safety." [FN263] The trials began immediately after hostilities ceased; they were held near the scene of the fighting while passions were most inflamed and fears remained of renewed fighting by the Dakota who had fled. The Commission members had themselves fought in the battles and thus had been under attack by the very individuals on whom they now passed judgment. [FN264] It is inconceivable that they came to their task with open minds. William Marshall, who served on the Commission through the early trials, admitted as much, saying that "his mind was not in a condition to give the[ ] men a fair trial." [FN265] Reverend John Williamson described the trial proceedings by stating that each defendant was "first prejudged guilty of any charge . . . the court . . . [[[chose] to prefer against him and then if he denies he is cross examined with all the ingenuity of a modern lawyer to see if he cannot be detected in some error of statement." [FN266] Reverend Riggs, who was present at many of the trials, wrote to the St. Paul Pioneer about the attitudes of the members of the Commission: I have a very high regard for all the gentlemen who composed the military commission. I count them individually among my personal friends. But they were 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 difference between us. [FN267] *56 Isaac Heard, attempting to defend the Commission, admitted that he believed there was "[n]early universal complicity" in the war; in the absence of evidence of innocence, "the inference was very logical and natural, that the defendant being an Indian, with the sentiments, inclinations, attachment and revengeful impulses of an Indian, did not fall within the exception, but acted as the vast majority of the other Indians did." [FN268] C. Authority to Convene the Commission The composition of the Commission was thus problematic, but probably lawful. More serious difficulties are presented by Colonel Sibley's role in the proceedings. The statutes governing courts-martial--applicable by army order to military commissions as well [FN269]--suggest that Colonel Sibley did not, in fact, have authority to convene the Dakota trials. I have already identified one difficulty in discussing the review of Wowinape's trial. [FN270] Because the officer who 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 16 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. convenes a court-martial is the first to review the proceedings for error, it is important that he be free from bias or the appearance of bias. Article of War 65 therefore expressly provided that an officer who was the "accuser" of an inferior officer could not himself convene the court-martial to try the junior officer. [FN271] Both General Pope and Judge Advocate General Holt concluded that Sibley was the accuser in the Dakota trials, [FN272] and Sibley did not disagree. Sibley himself noted that the Dakota were tried based on "charges and specifications preferred by" him. [FN273] Article of War 65 therefore suggests that he should not also have acted to convene and subsequently review the proceedings. [FN274] Sibley argued that article 65 should not be applied to military commission trials because it was designed solely to protect inferior officers from the prejudice their superiors might feel towards them. [FN275] In a formalistic sense, Sibley was correct: By its express terms, article 65 only limited the authority of an officer to convene courts-martial to try his inferior officers. A literal *57 reading of the statute would not prevent an officer from ordering and then reviewing courts-martial of enlisted men or military commission trials of enlisted men or civilians. In the absence of any statutes establishing procedures for military commissions, however, the military had already determined that a commission trial should be conducted in the same manner as a court-martial. [FN276] As both General Pope and Judge Advocate General Holt agreed, the same potential for actual or perceived bias and prejudgment exists whenever an individual both prefers charges and reviews the outcome of a trial on those charges, whatever the tribunal may be called. [FN277] The trials of the Dakota are a prime example of such bias and prejudgment. Sibley's correspondence, both before and after the trials, clearly shows that he had precisely the kind of bias that inspired the rule preventing him from playing both roles. On August 24, 1862, while still pursuing the Dakota, Sibley called them "the fiends, the devils in human shape! . . . [M]y heart is hardened against them beyond any touch of mercy." [FN278] His communications with General Pope, quoted earlier, display his assumption that most of the Dakota men were implicated. [FN279] Before reviewing any of the trials, Sibley had already told Pope that he would probably approve the results. [FN280] As he wrote to Bishop Whipple in December 1862: I approved the proceedings; because I had no reason to doubt the criminality of every man that has been condemned. On the contrary, I sent back many cases where men had been acquitted for lack of evidence for revision, and in several of these, additional testimony was adduced, and the Indians sentenced to be hung. [FN281] While Sibley might have permitted an acquittal where there was truly no evidence of participation, and he noted one instance in which he remitted a sentence because the evidence was inconclusive, [FN282] a pattern of prejudice is *58 clear. Although he claimed that "no one could have acted with a more conscientious regard to truth and justice . . . in deciding the cases which were brought before me," [FN283] it is unlikely that his judgments could have remained unaffected by his own involvement in the war and in bringing the charges. Practically, of course, the effect of any prejudgment by Sibley or the Commission members may have been attenuated by the subsequent review of the trials by individuals who were not accusers themselves. As the military itself determined in the case of Wowinape and in at least one other, unrelated trial, however, [FN284] the appearance of impropriety alone was sufficient to warrant disapproval. A second reason exists why Sibley may not have had proper authority to convene these commission trials. Under the Articles of War, only a general officer commanding an army or a colonel commanding a separate department could convene a general court-martial, which alone had the power to conduct trials for capital offenses. [FN285] Sibley was not in charge of either an army or a separate department, but a district. At the end of 1861, Congress enacted a provision that permitted the commander of a division or a separate brigade to appoint a general court-martial in time of war, [FN286] but Sibley's command was neither. [FN287] Not until 1913 did Congress give the commander of a district the power to appoint general courts-martial, and then only "when empowered by the President." [FN288] By the Army's own rulings, only those officers who were permitted by statute to convene a general court-martial had the authority to order a military commission that could issue death sentences. [FN289] Indeed, in December 1861, General-in- Chief Halleck--in a letter to Brigadier General Pope, then in command of volunteers in the Mississippi Valley--declared null and void the proceedings of a military commission ordered by a colonel commanding a regiment on the express ground that only the General-in-Chief of the army or a general commanding a department had authority to order a military *59 commission. [FN290] Sibley himself expressed some doubts about whether he had authority to order the commissions, but nonetheless expected Pope to approve his acts afterwards. [FN291] In August 1864, recognizing that district commanders like Sibley lacked authority to convene general courts-martial, the 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 17 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. War Department granted permission to commanding officers of departments or armies to designate a district as a "separate brigade"; [FN292] since a brigade commander could order a general court-martial under the 1861 statute, [FN293] such a designation would empower the district commander to do likewise. Two months later, just before Sibley convened the Commission to try Wakanozanzan and Shakopee, General Pope issued such an order, declaring the district of Minnesota, under Sibley's command, to be a separate brigade. [FN294] As a brigade commander in 1864, Sibley could convene a commission under the 1861 amendment. As a district commander in 1862, he could not. Again, these requirements serve only as technical objections to the trials. In reality, this limitation probably would not have changed the result since Pope--who wrote repeatedly to Sibley encouraging him to execute the guilty if not exterminate the whole tribe [FN295]--had the authority to order the trials anyway. If the reviewing authorities had disapproved the Dakota trials based on the failure to convene them properly, however, the resulting delay in punishment might have allowed some lessening of the anger and fear caused by the war. Renewed proceedings might then have been conducted more fairly and judiciously. Moreover, the army's own record establishes precedent for sustaining such technical objections. The history of military commission trials of Confederate soldiers and Northern sympathizers during the same period suggests that the Dakota were not the only victims of the military's "rough justice." Throughout the Civil War, military commanders made many arrests, some for serious offenses, others for more frivolous acts or for simply speaking out against the war effort. Prisoners were often held without trial, a practice legitimized by President Lincoln's suspension of the writ of habeas corpus in September 1862. [FN296]
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Post by mdenney on Mar 4, 2007 13:51:01 GMT -5
When military trials were held, the proceedings were marred by irregularities in trial procedure and overzealousness in prosecuting and sentencing. As with the Dakota trials, many of the Civil War military commissions *60 failed to follow mandated procedures, [FN297] convicted on inadequate evidence, [FN298] and ordered executions for acts not warranting such extreme punishment. [FN299] Military justice during the war was criticized for its "looseness and inconsistency." [FN300] Contemporaneous military communications related to courts-martial and other military trials suggest that much of the irregularity can be attributed to ignorance of the system of military justice and to pressing responsibilities that distracted officers from remembering and applying the instructions issued from headquarters. No doubt the exigencies and passions of war also contributed. Like the Dakota, then, many other individuals were ordered imprisoned or executed after deficient military trials. But when the defendant was a Confederate soldier or northern Confederate sympathizer, the President and the War Department often acted as a check on precipitous action by the commanders in the field, particularly as the war progressed and the proper procedures became better defined. Many proceedings--including death sentences--were disapproved for irregularities as minor as failing to administer the oath to the members of the commission or court-martial or failing to ask the defendant if he wished to challenge any members of the tribunal. [FN301] Indeed, one such order of disapproval noted that "n a proceeding involving life, such irregularities [as failing to read the convening order to the prisoner or present the charges to him in writing] are wholly inexcusable, and make the execution of the death sentence legally impossible." [FN302] In *61 many other cases the President reduced death penalties to terms of imprisonment ranging from six months to the duration of the war. [FN303] The political situation facing Lincoln prevented him from responding in like fashion to the Dakota trials. Public outcry in Minnesota resulted in enormous pressure on the President to punish the Dakota for the war. No matter how the President might otherwise have reacted to the record laid before him, he apparently felt compelled to compromise by permitting a limited number of executions despite the unsatisfactory nature of the proceedings. [FN304] In calmer times, would the reviewing authorities have recognized the procedural and substantive deficiencies and disapproved the results as they did in Civil War commission trials? The treatment of Wowinape supports this possibility. Pope's discovery of a "technical difficulty" barring confirmation of Wowinape's trial, a flaw that undermined all 326 convictions, suggests that the reviewing authorities recognized the weakness of the Commission proceedings and might have disapproved all of the Dakota trials, had that result seemed politically possible in December 1862. III. MILITARY COMMISSION AUTHORITY AND JURISDICTION In Part II, I described a number of deficiencies in the Dakota trial proceedings. The form of the trials--the use of a military commission to try American Indians for apparent acts of war--raises another, more fundamental question: Was a military 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 18 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. commission a legitimate forum for the trials? In this Part, I trace the history of military commissions and their source of legal authority in an effort to answer that question. A. Statutory Provisions In 1862, as today, there were three types of military tribunals. Courts-martial were established by federal statute primarily to try soldiers, and civilians serving with the armed forces in the field, for offenses enumerated in the Articles of War, including striking an officer, failing to obey an order, and missing duty. [FN305] In addition, the Articles authorized a court-martial of any person, whether soldier or civilian, charged with giving intelligence to, assisting, or harboring the enemy, [FN306] and of any person charged with spying in time of war or rebellion. [FN307] Courts of inquiry, also creatures of statutory *62 law, could be convened to collect information that might later be used in a court-martial proceeding or to explore allegations such as cowardice in battle. [FN308] Determining the source of authority for the military commission, the type of military tribunal used in the Dakota trials, is more problematic. Until July 1862, the United States Congress had not recognized any form of military tribunal other than the court-martial and the court of inquiry. In the fall of 1862, when most of the Dakota were tried, the only statutory reference to military commissions appeared in an off-hand reference about recordkeeping in a provision establishing the position of Judge Advocate General of the Army. [FN309] In contrast to the very specific enumeration of offenses triable by courtmartial, the statutory law provided no guidance regarding the validity and proper use of military commissions. As the Civil War progressed, Congress specifically authorized trial by military commission for various offenses, [FN310] but in 1862 there was virtually no congressional recognition of that form of tribunal. Thus, although the military commission later evolved to become a statutorily authorized "war court," at the time of the Dakota trials it was simply an exercise of executive or military authority. *63 B. Military Commissions in the Mexican War Despite the absence of congressional authorization, the army began to use military commissions during the Mexican War as a way of conducting what the commanding officers viewed as necessary trials involving individuals and offenses not specified by statute as being subject to court-martial. In 1847, after invading central Mexico, General Winfield Scott declared martial law and issued General Order 20, announcing that certain crimes against soldiers committed by Mexican civilians-- including murder, malicious stabbing, maiming, malicious assault and battery, robbery, and theft--would be subject to trial by military commission. [FN311] General Scott also had some difficulty controlling his own troops but had authority under the Articles of War to try the soldiers only for enumerated offenses, most of them involving breaches of army discipline. [FN312] General Order 20 therefore announced that the same crimes, if committed by his own soldiers against other soldiers or against civilians, would also be subject to trial by military commission. [FN313] Pursuant to this declaration, Generals Scott, Wool, and Taylor convened military commissions to try soldiers and followers of the army for offenses such as theft, receiving stolen property, [FN314] assault with a deadly weapon, [FN315] and murder of a soldier. [FN316] Military commissions were also ordered to try *64 Mexican citizens for offenses such as theft [FN317] and selling liquor to soldiers. [FN318] These instances were the first in which the army convened tribunals actually called "military commissions." Military commissions were used in a similar manner during the Civil War to provide a system of justice following the capture of rebel territory. [FN319] In essence, these military commissions replaced the civilian criminal courts in occupied, hostile territory after the declaration of martial law. [FN320] The Supreme Court in 1857 confirmed that the President had the authority to establish such tribunals, [FN321] but lower courts held that trial by these military commissions could continue only while military necessity demanded it and only during actual hostilities. [FN322] At the time of the United States-Dakota War, martial law was declared only for the day on which the executions took place. Although tensions still ran high in September when the trials began, and both the settlers and the military feared renewed hostilities if the fleeing Dakota returned, actual fighting had ceased. Those Dakota who had not surrendered had fled. Moreover, although the settlements in Minnesota *65 were in turbulence as a result of the fighting, the civil authority in the state was never interrupted. Nothing prevented access to the state courts, where trials for murder and other ordinary criminal charges would usually be held. Indeed, Governor Ramsey threatened to try the Dakota in the Minnesota courts if the army did not carry out what he saw as its responsibility to punish the offenders. [FN323] The situation does not seem to have demanded summary military action, so the claim of military necessity could not have provided the army with the authority to try the Dakota by military commission for civilian crimes. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 19 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Another type of tribunal used by General Scott during the Mexican War provides a more apt historical model for the military commissions convened by Colonel Sibley to try the Dakota. These tribunals, called "councils of war," were courtmartial- like bodies constituted to try individuals, not for criminal offenses committed in time of war, but for violations of the "laws of war"-- emerging standards regarding proper conduct of warfare. [FN324] Some commissions tried Mexican citizens or soldiers for encouraging desertion by United States soldiers; [FN325] others tried individuals for being "guerilleros." [FN326] To the extent that any of the Dakota committed acts that could be considered violations of the laws of war, the tribunals established by General Scott might be historical precedent for trying the Dakota by military commission. [FN327] *66 C. Military Commissions in the Civil War During the Civil War, the use of military commissions greatly expanded. In addition to their use as part of military government in occupied rebel territory, they were employed, much like General Scott's "councils of war," to try Confederate soldiers accused of violating the laws of war. [FN328] Soldiers were tried for offenses such as robbing civilians, [FN329] passing Union lines in civilian dress, [FN330] and boarding a United States ship in neutral territory with intent to seize it on the high seas. [FN331] Military commissions were also widely used in northern states and occupied rebel territory to try individuals accused of "disloyal practices," [FN332] including fighting as guerrillas, often by attacking civilians. [FN333] General Order 100, which was issued in April 1863 to instruct the military about proper conduct in warfare, formalized the role of military commissions for trying violations of the laws of war, declaring that "cases which do not come within the Rules and Articles of War, or the jurisdiction conferred by statute on courts-martial, are tried by military commissions" under the common law of war. [FN334]
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Post by mdenney on Mar 4, 2007 13:52:19 GMT -5
Whether any of these military commission trials was lawfully conducted is less than clear, however. Statutory authority remained meager, [FN335] and questions were repeatedly raised regarding the military's authority to conduct trials not affirmatively authorized by Congress. Indeed, shortly before the United States-Dakota War, the highest ranking judicial officer in the Army, Judge Advocate John F. Lee, suggested to the Secretary of War that *67 military commissions had no legitimacy, [FN336] although Lee later acquiesced to the practice despite his continuing doubts. [FN337] Lee's successor, former Secretary of War Joseph Holt, [FN338] was less ambivalent. As of September 8, 1862, the issue was still under advisement by the President, but Holt expressed his own view that "[t]hese 'commissions' . . . have existed too long in the service, and [are] too essential to its wants and emergencies, to be now ignored. Long and uninterrupted usage has made them as it were part and parcel of the common military law." [FN339] Despite the lack of formal authority, President Lincoln concurred. On September 24, 1862, he declared that rebels, insurgents, and all persons "guilty of any disloyal practice affording aid and comfort to rebels" would be subject to martial law and liable to trial by court-martial or military commission. [FN340] D. Military Commissions After the Civil War The legitimacy of wartime commissions was settled only temporarily, as shown by the numerous challenges to the practice that arose once wartime tension abated. In 1865, for example, controversy arose concerning the validity of the military commission appointed to try the defendants charged with the assassination of President Lincoln. [FN341] Both defense counsel and the Judge Advocate presented lengthy arguments to the Commission concerning the legality of that body. [FN342] During the trial, the Attorney General advised *68 President Johnson that the military tribunal was validly conducted under the law of nations as an incident of war; the Constitution, he said, made the law of nations part of the laws of the land by granting Congress the power to "define and punish piracies and felonies committed on the high seas, and offences against the laws of nations." [FN343] Even if Congress did not define such offenses by statute, the Attorney General suggested, the military could act directly under the laws and usages of war, because the law of nations exists independently of any "definition" by Congress. [FN344] The Commission apparently agreed; it convicted the defendants and sentenced them to death. No court was asked to review that conclusion. The next prominent discussion about the validity of military commissions arose in the trial of Confederate soldier Henry Wirz in August 1865. Wirz was charged and ultimately convicted of abusive treatment and murder of Union soldiers at the Andersonville prisoner of war camp in Georgia. [FN345] He objected to the jurisdiction of the tribunal as one "unauthorized 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 20 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. by either statute, military law, martial law, or well-established usage." [FN346] As in the Lincoln assassination trial, the Judge Advocate argued that the power to conduct this military trial arose from the necessity for and right of any sovereign to protect itself in times of war and rebellion. [FN347] The Commission implicitly concurred and overruled the challenge to its jurisdiction. [FN348] Again, no court decision followed. Indeed, despite the large number of military commission trials of Confederate soldiers, none of these cases reached the federal courts for any definitive ruling on the validity of the trials, perhaps in large part because the President had suspended the writ of habeas corpus for the insurgents. [FN349] The writ of habeas corpus was also suspended for citizens of Union states convicted by military commissions, [FN350] but a case challenging such a trial *69 finally reached the United States Supreme Court in 1866. [FN351] In Ex parte Milligan, [FN352] the Court rejected the notion that, because of the existence of martial law, the "laws and usages of war" permitted the military to try the civilian defendant; the Court concluded that no jurisdiction existed for the trial. [FN353] The Court emphasized, however, that Milligan was a citizen of a loyal state in which the civil courts were still in operation and concluded that, whatever authority the military might have under other circumstances, it could not try civilians in this manner. [FN354] The Court did not reach--indeed it expressly declined to discuss--the question of "what rule a military commander . . . can impose on states in rebellion to . . . quell the insurrection," [FN355] or how the result would change if the defendant had been a prisoner of war "engaged in legal acts of hostility against the government." [FN356] E. The Modern View As discussed in the previous section, there was no indication how the courts at the time of the Dakota trials would have ruled on the validity of military commissions used to try prisoners-of-war. In 1942, the Supreme Court in Ex parte Quirin [FN357] finally held that the Army could conduct military commission trials of foreign nationals accused of sabotage, espionage, and other acts in violation of the laws of war, but by that time Congress had specifically authorized commission trials for violations of the laws of war. [FN358] *70 The Court expressly declined to answer whether the President as Commander-in-Chief could, without congressional approval, constitutionally create military commissions and authorize them to try foreign nationals for war crimes. [FN359] Thus, no court has ever precisely addressed the question whether military commissions, constituted in the absence of legislative authority, are legitimate tribunals for considering violations of the laws of war. Congress certainly could have specified that such offenses be punished: the Constitution gives Congress the power to "define and punish . . . Offences against the Law of Nations," [FN360] which includes the laws of war. Moreover, if Congress, by statute, made criminal certain actions violating the laws of war, Congress could also have authorized the military to conduct trials for offenses arising under the statute. Indeed, in Ex parte Quirin the Supreme Court accepted the notion that Congress could simply authorize the military to punish violations of the "laws of war" without specifying the precise contours of those laws. The Court allowed Congress to leave the definition of offenses under the laws of war to "the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts." [FN361] The difficult question is whether the military could have operated directly under the law of nations, with no statutory authority of any kind. The Supreme Court stated in 1855 that, even without Congressional action, the law of nations, including the laws of war, forms a part of "the municipal jurisprudence of every country" in its dealings with foreign countries and their nationals. [FN362] The Court emphasized that this was particularly true during *71 a state of war. [FN363] Moreover, throughout the early history of America, statesmen and judges repeatedly asserted that the law of nations was part of domestic law. [FN364] Such statements could lead to the conclusion that the military indeed possessed the power to act directly under the law of nations. But the judicial pronouncements were made largely in the context of issuing grand jury charges, not upholding prosecutions. [FN365] When the question whether criminal prosecutions could be maintained directly under customary law was presented to the Supreme Court in 1812 in United States v. Hudson, [FN366] the Court held that federal courts had no such common law jurisdiction. [FN367] A broad reading of that case suggests that crimes not established by statute--such as crimes against the law of nations--were not punishable. [FN368]
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Post by mdenney on Mar 4, 2007 13:53:30 GMT -5
Thus substantial uncertainty exists whether, in 1862, the courts would have recognized the military's power to exercise common law authority to punish foreign nationals for violations of the laws of war. It is clear, however, that many of those who considered the question of the legitimacy of the military commissions at the time of the Civil War answered it in the negative. [FN369] IV. SOVEREIGNTY AND WARFARE 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 21 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. I suggested in Part III that if the Dakota were simply individuals creating mayhem, a military commission was not a legitimate form of trial because martial law had not been declared and civilian authorities could have tried the Dakota under the state's criminal laws. If, on the other hand, the Dakota were foreign nationals fighting a war against the United States, there was at least historical precedent for the trials, though doubts remained about the validity of any military commission proceeding. In this Part, I explore the legitimate scope of trials of foreign nationals fighting a war, concluding that the law of nations permits such prosecutions only for offenses against the laws of war. I then consider whether the Dakota were acting as members *72 of a sovereign nation at war with the United States, and thus entitled to the protection of international law for actions committed in wartime. A. The Laws of War in 1862 It was well accepted in 1862, as it is today, that when two sovereign nations wage war against one another, the soldiers on both sides are entitled to different treatment than individuals who engage in similar acts of assault, murder, and destruction not authorized by a nation at war. In a declared war between two sovereign powers, the law of nations permitted the use of force as a proper means of obtaining a nation's objectives. [FN370] Captured enemy soldiers were therefore not to be punished for the killing and destruction carried out in the war effort, but were to be treated as lawful belligerents and held as prisoners of war. This protection of enemy soldiers extended only to certain actions, however. Although the standards were not well developed, the law of nations in 1862 considered some acts of violence too odious to be permitted in modern warfare. These acts included assassination, poisoning, killing an enemy who had surrendered, and killing unarmed civilians. [FN371] Such actions were considered punishable violations of the laws of war. Moreover, foreign citizens who killed or plundered without a formal or informal commission from their sovereign were considered bandits or marauders, subject to punishment for their depredations. [FN372] This practice of treating enemy soldiers as justified in fighting a war, but limiting by custom those acts considered lawful in warfare, developed as a means to control the extent of killing and destruction caused by war. [FN373] Treating the enemy's soldiers as prisoners of war rather than as criminals helped to ensure reciprocal leniency from the enemy; requiring authorization *73 from a sovereign prevented individuals from taking advantage of wartime instability to kill or plunder for private purposes. Most articulations of the rules regarding treatment of belligerents appeared in treatises by acknowledged experts in international law, [FN374] not in domestic case law. As early as 1609, however, English law recognized that an alien enemy taken in war was not subject to the common law of the realm. [FN375] Few cases arose to test that concept in the American courts, but in 1878 the United States Supreme Court confirmed in Coleman v. Tennessee that soldiers were not amenable to the ordinary criminal law of the enemy. [FN376] Perhaps the most significant expression of United States concurrence in the international rules of warfare was the adoption of "Instructions for the Government of Armies of the United States in the Field," also known as the Lieber Code, by United States Army General Order in April 1863. [FN377] Called one of the "three great landmarks of our modern Law of War," it was the first attempt anywhere to codify the customary law of war and establish legal standards under domestic law for the operation of national armies. [FN378] The Lieber Code recognized each of the principles already outlined regarding the legitimacy of violence in wartime. [FN379] Although the Lieber Code was not adopted until several months after the United States-Dakota War, the code reflected an understanding of the nature of warfare widely shared in the United States and other Western countries. [FN380] Thus, to determine whether the United States complied with its own as well as international standards of wartime behavior, the treatment of the Dakota in 1862 should be judged in accordance with these norms. If the Dakota were a sovereign people and fought as a nation at war, the Dakota prisoners should have been punished only if they violated the laws of war. [FN381] In the remainder of this Part, I discuss whether the Dakota were sovereign and acted in a sovereign capacity, which would entitle them to such limited *74 immunity. In Part V, I consider whether the acts of particular Dakota were nonetheless punishable as violations of the laws of war. B. Sovereignty of the Dakota 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 22 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. The first question is whether the Dakota were a sovereign people capable of declaring war on the United States. The Dakota had no doubt about their own sovereign status and their consequent right to declare and fight a war: The Dakota community lived separate from the Americans, maintained its traditional governing structure, and dealt with the United States as a foreign government through the tribe's own designated leaders. What I explore in detail here is whether the United States was compelled to recognize Dakota sovereignty by the history of its relations with the Indian nations and by international and domestic law. 1. Indian warfare and sovereignty in United States history. The treatment of Indian tribes in wartime over the course of United States history demonstrates a consistent recognition of the sovereignty of Indian nations and their right to wage war. [FN382] When groups of Indians fought in what the Americans perceived as a unified force--when the fighting was widespread and appeared to be motivated by a group decision--neither the military nor the civilian authorities of the United States formally held enemy individuals responsible for ordinary acts of destruction committed as part of the fighting. [FN383] When prisoners were taken by the Americans, those captured were usually held until peace was restored and then were released, imprisoned, or moved to reservations according to the peace terms agreed upon or imposed. [FN384] Occasionally military commanders took it upon themselves to punish the Indian war leaders summarily--frequently by hanging them without further ceremony--but these incidents seem to represent individual action more than governmental policy. [FN385] Thus, although the fighting men from Indian nations sometimes suffered retaliation for their actions *75 in war, never before or after the United States-Dakota War were they condemned by any form of legal process for violence associated with warfare. Indeed, in one instance in 1879, this limited immunity was made explicit. In that incident, seven bands of Utes residing on a reservation in western Colorado and eastern Utah fought a week-long battle with a detachment of United States soldiers at Milk Creek, on the reservation. When peace was restored, a civilian commission of inquiry was formed to determine whether to punish individual Utes. The commission cleared those who fought at Milk Creek because they were warriors engaged in a fair fight. [FN386] Similarly, in California in 1873, a group of Modocs engaged in battles with U.S. soldiers and killed some civilians living in the vicinity of the fighting. Apparently no attempt was made to punish individually the majority of those who fought, including those who attacked civilians. Three of the Modocs, however, had killed two American soldiers sent to negotiate under a flag of truce. The Attorney General ruled that these three individuals could be tried for violating the laws of war. [FN387] He noted that the Indian tribes had been recognized as independent communities for treaty-making purposes and that they frequently carried on "organized and protracted wars"; he concluded that the Modocs, therefore, were subject to the rules of warfare and could be punished for transgressing them. [FN388] Presumably, as recognized in a Judge Advocate General's opinion several years later, the members of an Indian tribe could not be held responsible if they did not violate the rules of war. [FN389] 2. The law of Indian sovereignty in 1862. While the extensive historical record reflects a consistent de facto recognition that the members of an Indian tribe should be treated as legitimate belligerents in wartime, the legal record on this issue is sparse. Only one case has ever directly addressed the question whether an American Indian group had sufficient sovereignty to afford its captured soldiers prisoner-of-war status. [FN390] As the unexplained and unsupported decision of a territorial trial court, however, the case is singularly unenlightening. [FN391] The only other judicial *76 references to the status of Indian nations at war with the United States appear as dicta in general discussions of the nature of Indian sovereignty, primarily in nineteenth century Supreme Court decisions that still serve as the foundation for present-day concepts of Indian sovereignty. The first such direct reference was in 1831 in Cherokee Nation v. Georgia, [FN392] in which Chief Justice Marshall first described Indian tribes as "domestic dependent nations." [FN393] Although he determined that the Cherokees were not a "foreign state" for purposes of article III jurisdiction, Marshall described the Cherokees as "a distinct political society, separated from others, capable of managing its own affairs and governing itself." [FN394] By its treaties with the Cherokees, Marshall said, the United States had recognized them "as a people capable of maintaining the relations of peace and war, of being responsible in their political character . . . for any aggression committed on the citizens of the United States, by any individual of their community." [FN395] Marshall's notion of "domestic dependent" status meant that the Indian nations had placed themselves under the protection of the United States and could no longer carry on foreign relations directly with any other nation. A majority of the Court recognized that the Indian nations nonetheless retained control over "the relations of 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 23 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. peace and war," at least with respect to the United States. [FN396]
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Post by mdenney on Mar 4, 2007 13:56:20 GMT -5
The next year, in Worcester v. Georgia, [FN397] Marshall again recognized that *77 the English, and by implication the Americans, had regarded the Indian nations "as nations capable of maintaining the relations of peace and war." [FN398] Justice McLean, concurring, made the point more explicit: We have recognized in them the right to make war. No one has ever supposed that the Indians could commit treason against the United States. We have punished them for their violation of treaties; but we have inflicted the punishment on them as a nation, and not on individual offenders among them as traitors. [FN399] Both of these cases echoed an 1828 opinion of the Attorney General about the status of the Creeks: "Like all other independent nations, they have the absolute power of war and peace." [FN400] Because the Supreme Court never had to decide directly whether an Indian nation was legitimately at war with the United States for purposes of the law of nations, all of these statements are dicta, not holdings. Nonetheless, when one considers the nature of sovereignty that Chief Justice Marshall acknowledged for the Cherokees, it follows that they did have the power to wage war and the right to have their soldiers treated as belligerents under the laws of war. Marshall most fully expressed his idea of Indian sovereignty in Worcester. [FN401] There he wrote that the Indian tribes had always been treated as independent by the European nations and subsequently by the United States, and that the lands received from the Indians had been purchased as from another sovereign. [FN402] When the Cherokees placed themselves under the protection of the British or the Americans, it was not an abandonment of their sovereignty, but instead an alliance. [FN403] The Cherokees may have been a dependent ally, weaker than the United States and seeking support and protection, but the relation "was that of a nation claiming and receiving the protection of one more powerful; not that of individuals abandoning their national character, and submitting, as subjects, to the laws of a master." [FN404] The settled doctrine of the law of nations, Marshall noted, is that the "weaker power does not surrender its independence . . . by associating *78 with a stronger, and taking its protection." [FN405] The law of nations recognizes that even a tributary state, so long as it retains the right to govern its own body, retains its sovereign status. [FN406] Moreover, once considered sovereign, a nation acquires and retains the power, under the law of nations, to declare and fight wars, [FN407] with no distinction made for wars against a protector state or for those fought after recitation of treaty obligations to maintain perpetual peace and friendship. Marshall's belief that the Cherokees maintained their existence as a nation, though perhaps not "foreign" for purposes of article III, was based on his review of the history of Cherokee relations with Europeans and Americans. Beginning with the assumption that the Cherokees were sovereign before Europeans arrived on the North American continent, Marshall considered the treaties between the Cherokees and other nations and determined that the treaty language continued to recognize the sovereignty, if not the separateness, of the Cherokees. [FN408] A review of the treaties between the Dakota and the United States suggests that these treaties similarly recognized the sovereign status of the Dakota. For example, in the Treaty of 1805 the "Sioux Nation" granted land to the United States and expressly granted "full sovereignty and power over said districts forever," a recognition that the "Sioux" were a "nation" that had the power to grant sovereignty along with territory. [FN409] Subsequent treaties proclaimed "perpetual peace and friendship" between the United States and the tribes or bands signing the treaty, [FN410] an earmark of international agreements. [FN411] Felix Cohen, an authoritative scholar of Indian law, [FN412] suggested that treaty provisions related to war and peace, national boundaries, and extradition show the international status of the Indian tribes. [FN413] Each of these kinds of clauses appears in the treaties with the Dakota. For example, the 1825 treaty was an effort "to promote peace among [[[the Sioux and other tribes] and to establish boundaries among them"; [FN414] it spoke of drawing lines *79 "dividing [the] respective countries" of the tribes. [FN415] The 1858 treaties contained pledges "not to engage in hostilities with the Indians of any other tribe unless in self-defence" and to deliver to the United States any member of their bands who became an offender against the laws of the United States or of Minnesota. [FN416] The Dakota treaties departed significantly from those reviewed by Marshall in Worcester [FN417] only in their handling of the land reserved to the Dakota. It appears in Worcester that the Cherokees never ceded to the United States the land recognized as Cherokee territory by the treaties but simply retained it as their own. [FN418] The 1851 treaty with the Dakota, on the other hand, seemed to cede land to the United States, which then returned some of it to the Dakota. [FN419] Since a sovereign state can acquire its domain by grant or cession, as well as by long occupancy, discovery, or conquest, [FN420] the Dakota would have been no less sovereign had they received their land by treaty from the United States rather than by retaining it. Certainly the Dakota had no cause to believe that the treaty terms changed their sovereign status; indeed, they 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 24 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. probably were unaware of the technical provisions for transferring the land reserved to them. Nor is there any indication that the Americans thought the 1851 treaties affected the status of the Dakota. In fact, seven years later the Americans concluded another set of treaties with the Dakota, indicating a continuing understanding that the Dakota remained sovereign. [FN421] Although Chief Justice Marshall's concept of Indian sovereignty thus *80 encompassed the right to wage war, his was not the only theory offered by the Supreme Court before 1862. In 1846 in United States v. Rogers, [FN422] Chief Justice Taney provided his own interpretation of the history of relations with the Indian nations, one totally at odds with the opinions of Chief Justice Marshall. Rogers raised the question whether a white American could renounce his citizenship, be adopted into the Cherokee nation, and thereafter be governed solely by Cherokee law rather than by American criminal law. In his opinion for the Court, Taney stated that the Europeans never treated or acknowledged the native tribes as independent nations but rather treated them as subject to the dominion and control of whichever European nation claimed, on the basis of discovery, the territory in which the Indian nation resided. Without citation to authority of any kind and without mention of the contrasting vision of history described in Cherokee Nation v. Georgia and Worcester, Taney wrote: "[W]e think it too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to its authority . . . . " [FN423] If Taney meant, as it appears, that the Cherokees retained no aspects of sovereignty, then presumably they also had no right to wage war. Subsequent commentators have severely criticized the Rogers opinion as a misreading of history and a misinterpretation of prior doctrine. [FN424] In 1856, only ten years after Rogers, Taney contradicted his own earlier view when he stated, in Dred Scott v. Sandford: [FN425]
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Post by mdenney on Mar 4, 2007 13:57:44 GMT -5
[T]he Indian . . . were yet a free and independent people, associated together in nations or tribes, and governed by their own laws . . . . These Indian Governments were regarded and treated as foreign Governments, as much so as if an ocean had separated the red man from the white . . . and the people who compose these Indian political communities have always been treated as foreigners not living under our Government. [FN426] The Court reconfirmed this position in 1884 in Elk v. Wilkins, [FN427] holding that a person born as a member of and owing allegiance to an Indian tribe was no more the subject of the United States government than were children of subjects of any foreign government born within the United States. [FN428] Whatever force Rogers might have had was dissipated by Taney's apparent abuse of the historical record, his own equivocation, and the Court's subsequent rejection of the view expressed in that case. *81 The prevailing and most persuasive Supreme Court theory of Indian sovereignty thus offers a conceptual affirmation of the manner in which the American Indian was ordinarily treated in wartime. Certainly, the United States throughout its history often trampled upon or ignored Indian sovereignty--for example, with respect to land claims and treaty rights. [FN429] Nonetheless, the United States seemed to recognize, both in its actions and in its words, that the Indians were sufficiently separate and independent to retain the right, under the law of nations, to fight as sovereign nations and to have their members accorded the rights of lawful belligerents. C. Fighting as a Nation As noted earlier, the law of nations in 1862 recognized a distinction between violence committed as part of a public war and violent acts committed without such authorization or sanction. [FN430] In a public war, those who fought were considered justified when they killed or destroyed within the bounds of "proper" warfare. In contrast, individuals who acted for their own private gain or who acted without authorization from their government, even if their government was at war, were considered marauders, robbers, and murderers and could be punished as such. The history of warfare between the United States and the Indian nations also reflects this distinction: While Indians who fought in wars were not punished as criminals for their acts, individual Indians were sometimes tried and punished--in criminal proceedings in state courts--if their actions seemed more like isolated attacks on individuals than part of official hostilities. [FN431] In 1847, for example, Chief Tilokaikt, Tomahas, and several other Cayuses entered the Christian mission at Waiilatpu in Oregon Territory and killed fourteen people, including missionaries Marcus and Narcissa Whitman. The Cayuses apparently did not participate in any further fighting but simply faded into the countryside. Later, five of the "ringleaders" of the attack were tried and convicted for murder after they gave themselves up in 1850. [FN432] Similarly, in 1871, Kiowa chiefs Satanta and Big Tree were tried for killing individuals during an attack on a wagon train that was part of a pattern of raids conducted from their base on the Kiowa reservation in Texas. [FN433] 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 25 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. In most of these instances, the distinction between individual acts and group warfare was not articulated. On some occasions, however, the difference was made explicit. In early 1875, for example, the Judge Advocate *82 General ruled that a group of Indians accused of murder, robbery, and theft could be tried in state court because the alleged acts had occurred when there was no state of war. In doing so, the Judge Advocate General distinguished an earlier case in which "an entire Indian clan, having a tribal organization, engaged in hostilities, as such, against the United States." [FN434] The United States, then, recognized the difference between acts of warfare and acts of individuals. The next step is to determine whether the Dakota acted as individuals or as a nation at war. Under the law of nations in 1862, the manner in which a nation could declare war and thereby transform acts of individuals into acts of warfare was controlled by that nation's own fundamental law allocating decisionmaking responsibility. [FN435] The Dakota nation, like many other Indian nations, was governed by consensus operating at levels ranging from a single band to the whole nation. [FN436] Important decisions affecting the band as a whole were made at Council, a meeting of the men and sometimes also the women of the band. Generally, all who came to Council had an opportunity to speak, and the band took action only when there was sufficient agreement. Each band had the independence to reach its own governing decisions, including whether to go to war. A decision as important, and with such ramifications, as a declaration of war, however, was often made at a Council attended by representatives of more than one band. A decision would still be made by consensus, but participation would not be so general; the chiefs would speak and act on behalf of their bands. Once a Council representing multiple bands reached a decision, each band was bound by the collective decision, unless the band chose to withdraw from the larger group. If the community decided in Council to go to war, a soldiers' lodge--a collection of men experienced in warfare--would form, with complete authority over the community for the duration of the war. [FN437] The events of 1862 followed this general pattern. After the killings at Acton, when some of the young men began to urge war, Shakopee's band held a Council, followed by a multi-band Council in Taoyateduta's village and subsequent Councils among the Sissetons at the Yellow Medicine (Upper) Agency. [FN438] It was at these Councils that the Dakota made the decision *83 to go to war. With many Dakota having become "farmer-Indians" and assimilating American ways in the years preceding the war, however, the community itself was split. The farmer-Indians had formed their own band and were no longer part of Shakopee's or Taoyateduta's bands. When the decision to go to war was made, the farmer-Indians, who were assumed to be more sympathetic to the Americans, were not included at the Council meetings. Many of them were thus as surprised, angry, and frightened by the outbreak of the war as were the Americans. [FN439] The Dakota made the momentous decision to go to war rapidly, under the press of circumstances and despite the opposition of some of the leaders. Some Dakota may have felt that the decision to go to war was made without sufficient deliberation and consultation, contributing to a sense among some of the Dakota that the war was not a tribal decision, but rather a series of actions by a group of angry young men and those who chose to follow them. Despite the resulting opposition to the war by some of the Dakota, however, the forms of typical Dakota decisionmaking had been followed. Though the Dakota might ordinarily have taken more time to make such a decision and might have consulted more bands, Councils were held and group decisions were made, both to begin and to continue the fighting. These procedures were sufficient to gain recognition for the Dakota as legitimate belligerents. [FN440] Even if the violence were considered to be the actions of a breakaway group, the men who fought may have been entitled to be treated as legitimate belligerents. Although the courts never decided what form of hostilities between the United States and an Indian nation would constitute an official war under the law of nations, the courts frequently considered a related question that sheds considerable light on this issue. In 1891, Congress passed the Indian Depredations Act, [FN441] which provided for payment to individuals who proved that their property was taken or destroyed by "Indians belonging to any band, tribe, or nation, in amity with the United States." [FN442] The United States would pay the claims from annuities or other funds owed to the tribe. [FN443] When claims were made, the question necessarily arose whether the group of Indians that had taken or destroyed the property belonged to a "band, tribe or nation" that was "in amity" with the United States. Almost invariably, the group in conflict was not a whole tribe or even a band, but a group that had broken from the rest and had independently decided to fight the Americans. In case after case, the Claims Court and then *84 the Supreme Court determined that these groups had to be treated as distinct from their tribe. [FN444] The courts invariably concluded that, although the tribe or nation remained at peace with the United States, the breakaway group had made an independent decision to go to war. Since the group that caused the injury was not "in amity with the United States," the property damage 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 26 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. constituted an act of war and the claimant was not entitled to any recovery. [FN445] Of course, in these cases the courts were construing a statute, not applying international law. Moreover, the courts may have been motivated in part by a desire to protect the United States Treasury: If they found the warring group to be politically separate from the tribe, neither the tribe nor the United States would have to pay. [FN446] Nonetheless, the conclusions the courts reached about the political status of the warring groups seem to reflect the general understanding of Indian warfare shared by Congress, the military, and the general public. Thus, even if Taoyateduta and the Dakota who fought in 1862 did not act for the entire tribe, they should have been recognized as a politically separate band of belligerents entitled to favorable treatment under the laws of war. D. The Views of the Participants Although the historical and legal precedents consistently reflect that the Dakota were entitled to be treated as a sovereign nation fighting a war, the officials who controlled the events in 1862 did not treat them as such. For some purposes, at least, these individuals seemed to view the Dakota as sovereign, [FN447] but in the aftermath of the war, the Americans involved in the *85 events made clear that they believed the Dakota should be considered ordinary murderers and thieves. Sibley himself indicated that he regarded the Dakota "not . . . as entitled to be considered in the light of prisoners of war, but rather as outlaws and villains . . . . " [FN448] Senator Henry Rice agreed, saying that it would be an error to call the Dakota prisoners of war; in his opinion they were "murderers of the deepest dye." [FN449] Although Governor Ramsey recognized the Indians "as independent nations, competent to declare war, to make laws for their own guidance, and to hold and dispose of property," [FN450] he also suggested that the Dakota should be treated as "visiting bands of murderers" and punished by the State of Minnesota. [FN451] Senator Wilkinson and Representatives Aldrich and Windom wrote to President Lincoln expressing similar sentiments: "These Indians are called by some prisoners of war. There was no war about it. It was wholesale robbery, rape, murder. These Indians were not at war with their murdered victims." [FN452] Even Bishop Whipple, who was inclined to a more benevolent attitude, declined to consider the Dakota as sovereign and therefore entitled to carry on a war. [FN453]
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Post by mdenney on Mar 4, 2007 13:58:36 GMT -5
*86 These statements confirm what is evident from reading the transcripts of the trials: the Dakota were tried as common criminals, not as legitimate belligerents of a sovereign nation. The only proper charge against a belligerent is violation of the laws and customs of war. The Commission, instead, tried the Dakota on charges of murder, robbery, rape, and participation in the "outrages" on the frontier. Most of the Dakota brought before the Commission were charged with and convicted of murder solely for participating in battles, which is not an offense for legitimate belligerents captured in warfare. Although some individual Dakota might have committed acts in violation of the laws of war, [FN454] the Commission made no attempt to identify those actions. The transcripts show that the Commission acted without recognition of the fact that most of the Dakota were guilty of nothing more than fighting in a war and that they were therefore guilty of no punishable offense. V. VIOLATION OF THE LAWS OF WAR As members of a sovereign nation, the Dakota should not have been condemned for fighting in a war with the United States. Under the law of nations, however, they--as well as the American soldiers--would have been liable for acts that overstepped the bounds of proper warfare. We must therefore ask a final question: Do the trials reveal that any of the Dakota were guilty of violating the laws of war? Clearly, if the Dakota were sovereign and fighting a war, killing soldiers in battle would not be a violation. Similarly, once civilians took up arms and established themselves as de facto military units, as did the defenders at New Ulm, they should be considered combatants and fair targets in the war. [FN455] The killing of noncombatants is more problematic. Certainly it was the killing--and alleged mutilation--of civilians that provoked cries for revenge from the Minnesotans. It was also the killing of civilians that apparently persuaded President Lincoln to order execution of those who participated in "massacres" rather than in battles. Although the proposition that noncombatants should be protected in wartime seems unobjectionable, it is far from clear what standard should have been used to judge the actions of the Dakota, because no precise standard existed in 1862. General Order 100, [FN456] issued in early 1863 to guide the United States Army in its fight against the Confederacy, stated that the citizen of a hostile country is an enemy and is subject to the hardships of war, but that "[t]he principle [is] more and more acknowledged that the unarmed *87 citizen is to be spared in person, property, and honor as much as the exigencies of war will admit." [FN457] Similar sentiments were expressed by the major treatise writers of the time. [FN458] But General Order 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 27 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. No. 100 left ambiguous just what "the exigencies of war will admit": "Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war." [FN459] It consists "of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war." [FN460] The contemporary treatises were equally ambiguous: A belligerent nation has "the right to use such force as may be necessary, in order to obtain the object for which the war was undertaken . . . . [The subjects of the belligerent states], therefore, have no right to take the lives of non-combatants . . . unless the same should be necessary for the object of the war." [FN461] The general rule in 1862, then, was that noncombatants should be protected but they might legitimately be injured or killed if the war required it and modern "law and usages of war" permitted it--a kind of common law standard to be gleaned from custom. [FN462] But in 1862--indeed, until much later than 1862 [FN463]--there were no clear customs about when military necessity would justify killing civilians; perhaps the only certainty was that violence was directed at civilians, and was seldom punished. [FN464] This proved *88 especially--although not uniquely--true in fighting between the United States and the Indian nations. [FN465] The participants in the events of 1862 might therefore have had some difficulty articulating custom-based rules by which to judge the behavior of the Dakota. Moreover, the Dakota, like other Indians, traditionally fought with methods substantially different from those of the Americans and Europeans. In particular, in intertribal Indian wars almost all members of the enemy nation-- including women and children--were legitimate targets of attack, and captives were rarely taken. [FN466] These practices were largely dictated by circumstances: the Indians had no prison camps in which to confine captives; women and older children, if taken, were likely to escape and bring vital information back to their own tribes; the fighting men could not effectively transport the younger children, and infants would likely die on the way. [FN467] In arriving at its decisions, the Commission should have at least considered these differences in culture and military methods in any attempt to determine whether "military necessity" permitted killing noncombatants in the war. Had the Commission tried to articulate rules of war by which to judge the Dakota, we could now evaluate whether the standards imposed were fair and reasonable, as articulated and applied. Unfortunately, the manner in which the trials were conducted does not permit such an inquiry. Even if now, more than a century later, we could somehow craft a nonanachronistic set of rules about treatment of noncombatants, the record compiled by the Commission would not be sufficient for application of those rules. The Commission allowed each defendant to speak and asked witnesses to identify the defendant and explain what they knew of his participation in the fighting, but the members did not inquire further once they had evidence of participation in the fighting. To the Commission, evidence that a defendant had shot a gun in battle with soldiers was just as d**ning as testimony that he had killed a family of settlers fleeing in a wagon. Because the Commission was determined to punish any Dakota who fought in any manner, it asked no questions about military necessity and made no effort to explore the circumstances of any of the killings. President Lincoln stated that he made his decision to hang only thirty-eight of the 303 condemned Dakota in order to execute those involved in *89 "massacres" rather than "battles." [FN468] Lincoln made these judgments, it seems, without recognizing the sovereignty of the Dakota, based solely on his desire to treat the Dakota more humanely and avoid the wholesale slaughter recommended by Sibley and Pope. Yet by distinguishing between "massacres" and "battles," Lincoln in effect attempted to draw the kind of line that would have been legitimate had the Dakota been acknowledged as sovereign and tried for violations of the laws of war. To some degree he was successful. The testimony--flawed though it may have been [FN469]--tended to show that many of those who were hanged had killed men, women, and children in what appeared to be attacks on individuals in their homes or wagons, not as part of larger battles, [FN470] or to have shot at individuals under such circumstances. [FN471] Others were shown to have been in a group of Dakota, some of whom killed individuals in this manner [FN472]--although the liability of those accompanying the killers is questionable, as I have already suggested. [FN473] Two were convicted of raping captive women. [FN474] In other cases, however, Lincoln's choices are harder to understand. The Commission found Hdainyanka guilty of nothing more than leading the Dakota into battle and opposing the return of the hostages. [FN475] Shoonkaska (White Dog) was found guilty only of using a stratagem at the battle at Redwood Ferry: he held Captain Marsh in conversation, allowing the Dakota to surround and fire upon the captain and his soldiers. [FN476] Wahehud was convicted of killing a soldier, under circumstances not explained in the testimony. [FN477] Several others may have been convicted for killings that occurred during the Battle of New Ulm, [FN478] an attack on a strategically placed settlement *90 defended by a group of citizensoldiers. At least one Dakota was omitted from the list of those to be hanged although his "crimes" were indistinguishable 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 28 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. from some of those executed. [FN479] Lincoln tried to distinguish rationally between the Dakota who deserved retribution for their actions and those who did not. But because neither he nor the Military Commission recognized the sovereignty of the Dakota or attempted to define the proper bounds of warfare on the frontier, he constructed an imperfect line. Furthermore, the record he drew upon was insubstantial, the evidence was of questionable reliability, and the standards by which the Dakota were judged were unexpressed. Only the two convictions for rape present undeniable cases of violation of the laws of war. With respect to all the other cases, we cannot adequately judge the defendants. Because the participants did not ask the right questions, we cannot reconstruct the events sufficiently to determine whether the Dakota committed acts for which they might legitimately have been punished. VI. UNDERSTANDING THE HISTORY
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Post by mdenney on Mar 4, 2007 14:02:39 GMT -5
We have seen that the trials of the Dakota were conducted unfairly in a variety of ways. The evidence was sparse, the tribunal was biased, the defendants were unrepresented in unfamiliar proceedings conducted in a foreign language, and authority for convening the tribunal was lacking. More fundamentally, neither the Military Commission nor the reviewing authorities recognized that they were dealing with the aftermath of a war fought with a sovereign nation and that the men who surrendered were entitled to treatment in accordance with that status. A final question remains, however. The historical record shows that in no other instance in American history did the military respond to a war in this manner, though there were many opportunities. Why did it happen here? First, the fact that the Dakota lived on a small strip of land, entirely surrounded by United States territory, must have led the Americans, consciously or unconsciously, to view the Dakota as less independent and less sovereign than Indian tribes that occupied larger tracts of land. [FN480] The Dakota's growing dependence on the annuities paid annually by the United States government reinforced that perception. [FN481] This attitude is reflected in the question asked over and over again in the trials of Wakanozanzan and Shakopee: Were they annuity Indians under the protection of the United *91 States? In effect, the Commission was asking whether the Dakota were dependent upon the United States and thus guilty of rebelling against their own government rather than warring against a foreign one. A second likely reason for the treatment accorded the Dakota was the Americans' perception that the Dakota were no longer as different and separate as once they had been. When first encountering the Dakota on the frontier, the settlers considered them to be "savages" who could be forgiven their excesses because they did not know better. By 1862, however, the Americans viewed the Dakota as having betrayed a special relationship created by a dozen years of close contact between members of the two communities and substantial assimilation by some of the Dakota. [FN482] The Dakota Reservation was an especially small geographical area, so the Dakota often traveled off the reservation and frequently visited the American settlements. Many of the settlers provided food, medicine, and volunteer services to the Dakota, particularly in times of special need. [FN483] Missionaries had been active among the Dakota since the establishment of the first mission in 1835; although they reported few conversions before 1862, the clergy had a marked impact through their efforts to evangelize and acculturate the Dakota to Christian and "white men's ways." [FN484] Many intermarriages occurred between the two communities, and family ties thus bound them together. Substantial numbers of full-blood Dakota had adopted some American ways--cutting their hair and donning American clothes--events often accompanied by great pomp and ceremony by the American officials marking the transition. The farmer-Indians served as a visible reminder that some of the Dakota were settling into a very American--and very un-Dakotan--way of life. In 1856, a group of Dakota had broken entirely from the Dakota community and set up the highly touted "Hazlewood Republic," adopting an American-like constitution and laws. [FN485] All these things combined to obscure from the Americans the extent to which most Dakota remained governed by their own traditions and to suggest to the Americans that the Dakota "knew better" and should be punished for their actions. Some of the calls for vengeance on the Dakota reflected precisely this *92 notion, which Sibley himself expressed in a letter he wrote to Bishop Whipple on December 7, 1862, seeking to justify the trials and executions: A great public crime has been committed not by wild Indians who did not know better, but by men who have had advantages, some of religious teachings, all more or less of acquiring light, by long and intimate intercourse with white men, which rendered them entirely competent to judge of the criminality of the proceedings in which they are now implicated and 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 29 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. who therefore do not deserve to be judged with the leniency, with which entirely wild and ignorant savages might have a claim to be treated. [FN486] The extent of the killing and disruption caused by the Dakota and the nature of the Dakota attacks on a settled, permanent community further explain the American response. Hundreds of settlers were killed and more than ten thousand fled from their homes in fear for their lives. The Dakota destroyed homes and storehouses, and the settlers knew they would face the winter without sufficient supplies. Many Minnesotans personally knew someone who was killed in the fighting. In no other conflict with Indians, at least since colonial times, was a settled civilian community so thoroughly affected [FN487]--and all of it caused by a group most viewed as "civilized." Moreover, the attack came at a time when Minnesota, and the nation, felt particularly vulnerable as a result of the Civil War. [FN488] Add the widespread belief, albeit unfounded, that most of the Dakota had engaged in wholesale rape and mutilation, and it becomes easier to understand the outpouring of rage and the disinclination to view the actions of the Dakota as justifiable warfare. At least one historian has suggested that the settlers' response to the *93 war may also have been motivated by greed: Treating the Dakota as criminals allowed the United States summarily to remove all the Dakota from the state, thereby opening to settlement land that the Minnesotans had coveted for years. [FN489] All of this may explain why the American community was unwilling to consider the Dakota as legitimate belligerents. Ultimately, however, it was Colonel Sibley, not the community, that decided to try the Dakota. It was he who first suggested, in his letters to General Pope, that he conduct trials and execute the guilty. Sibley had no prior experience in the military to suggest military commission trials as the proper avenue for punishing unfair tactics in warfare. But Sibley was a lawyer-- indeed, the first lawyer and the first Justice of the Peace in the territory that became Minnesota. [FN490] His father had been Chief Justice of the Supreme Court of Michigan. [FN491] Sibley was outraged at the conduct of the Dakota, personally offended by what he viewed as the rejection of friendship and assistance offered them, [FN492] and keen to punish those he saw as murderers. His training as a lawyer, however, would suggest not that he punish the Dakota by removing them to a distant reservation, as was frequently done, but that he try them for their crimes. He expressed precisely such thoughts a dozen years earlier when, as delegate from the Territory of Minnesota, he introduced into Congress a bill for the extension of the laws of the United States over the Indian tribes of Minnesota and Oregon. "If the Indians must be punished," he said, "let the inflictions at least be regulated by law." [FN493] In providing trials for the Dakota in 1862, he protected them, at least in his own mind, with due process, while ensuring that the guilty would be punished. [FN494] VII. CONCLUSION In one sense, Sibley may indeed have protected the Dakota. Without trials to satisfy the demand for retribution, the Minnesotans might well have *94 carried out their threats to attack and kill the entire Dakota community. Moreover, by holding trials, Sibley left a more substantial record of the events of 1862, providing greater opportunity for challenging the treatment of the Dakota. To the Dakota, however, who never doubted their own sovereignty, the trials were incomprehensible and an affront to their dignity. Because they gave a pretense of process with little actual fairness, with an underlying absence of authority, and with no recognition of Dakota sovereignty, the trials obscured the ultimate injustice to the Dakota nation. The events of 1862 also suggest something more general about the limits of law in society. To fully serve its purposes, the law must do more than simply define boundaries of behavior and punish those who overstep the boundaries. Law must be more than the routine exercise of power. [FN495] It must "guide and educate" those subject to it and validate itself ethically in the eyes of the governed as well as in the eyes of the ruling class. [FN496] Groups that form the polity must either share the norms of behavior reflected in the law or accept that the system that produces those standards represents the best interests of the community of which they are a part, even if some individual rule is not consistent with their own self-interest. Law is justified--and effective--only insofar as it reflects the community's shared values or is the product of a process viewed as legitimate by the governed.
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