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In a relatively homogeneous society, or one in which cultural assimilation of new groups is the expectation and the reality, the law can easily fulfill this role. But those assumptions no longer apply in American society, if they ever did. We now recognize the very different realities that exist for culturally distinct subgroups of the governed. [FN497] As we thus approach a more truly pluralistic society, acknowledging and (sometimes) valuing the separateness and individuality of the nation's constituent groups, the validity of duly enacted legal rules is no longer assured. [FN498] The United States-Dakota War trials starkly illustrate the limits of law when the governors and the governed do not share an 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 30 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. understanding, much less an acceptance, of the forms of law used and the norms applied. Because of the wide cultural gulf separating the Dakota from the Americans, the Dakota did not in 1862, and do not today, fully understand why trials were *95 held, why some men were convicted and some were not, or why the thirty-eight, and later two more, were chosen to hang. If, as appears to be true, the United States intended the trials to "guide and educate" the Dakota--to confirm the acceptable standards of behavior and to serve as a warning about the consequences of future violations--then the trials failed to achieve their didactic purpose. The defendants and the rest of the Dakota community acquiesced in their treatment; they had no choice. [FN499] But with no opportunity for the governed to understand the treatment they received, the trials and executions became an exercise of power, not law. [FNa1]. (c) 1990 by Carol Chomsky. Associate Professor, University of Minnesota Law School. I am grateful to numerous people who read earlier drafts of this article and offered many valuable suggestions: Gary Anderson, Milner Ball, Roger Buffalohead, Laura Cooper, Daniel Farber, Mary Louise Fellows, Philip Frickey, George Grossman, Robert Hudec, Robert Levy, Paul Murphy, Nell Newton, Suzanna Sherry, Avi Soifer, David Weissbrodt, and flo wiger. I am especially grateful to Chief Ernest Wabasha, Vernell Wabasha, Tribal Chair David Larsen, Dr. Chris Cavender, Reverend Gary Cavender, and James Whipple, members of the Mdewakanton Dakota community, for reading drafts and sharing their thoughts with me. Finally, Jaki Cottingham-Zierdt provided outstanding research assistance; more than that, she helped me understand the meaning and importance of the events I have described and led me to see them with new eyes. Steven Liss lived with this project daily for more than two years; he read not just one but every draft and was my best and most supportive critic. Much of the source material for this article comes from primary documents contained in the collections of the National Archives and the Minnesota Historical Society. For ease of reference, I have used a standard set of abbreviations to refer to specific files on which I rely. These abbreviations appear in the Appendix beginning on page 96 infra. I have, where possible, relied on events occurring before the trials and used sources and authorities in existence in 1862 in order to determine the legitimacy of the trials at the time they were conducted. However, when later events appear sufficiently part of a pattern to reflect attitudes in 1862 or where subsequent legal analysis seems particularly helpful-- especially when little or no authority existed in 1862--I have made use of later materials. I have nonetheless tried to avoid anachronistic judgments. [FN1]. The Dakota, along with the Lakota, comprise what is often called the Sioux Nation. In 1862, the Dakota occupied a small strip of land in southwestern Minnesota. See text accompanying and following note 5 infra. [FN2]. Approximately ten Winnebagos were also tried, but acquitted. See note 87 infra. Oral tradition among the Dakota and other Indian nations suggests that members of other tribes were also tried and that some were executed. I have chosen, nonetheless, to refer to all the defendants as Dakota, except when discussing particular trials of members of other Indian nations, because the overwhelming majority of defendants were Dakota and the political ramifications of the trials and executions were felt primarily by that community. I do not mean to ignore the participation of members of other Indian nations in the events described here. [FN3]. See generally HUGO ADAM BEDAU, THE DEATH PENALTY IN AMERICA 3-9, 21- 22 (1982). [FN4]. Proclamation of Governor Rudy Perpich (Dec. 19, 1986) (on file with Stanford Law Review). [FN5]. ELIZABETH S. GROBSMITH, LAKOTA OF THE ROSEBUD 6-7 (1981). The other tribes among the Seven Council Fires are the Yankton, Yanktonai, and Teton. Id. [FN6]. Until recently, the events described here were widely known as the "Sioux Uprising of 1862." Because "Sioux" is not the name by which the Dakota people refer to themselves and because "uprising" suggested an unjustified rebellion, the name more generally used now is the "Dakota Conflict." I have chosen instead to speak of these events as the "United States- Dakota War" to emphasize the international nature of the conflict. See Part IV infra. Since my purpose in this article is to explore the legal issues surrounding the war, not the war itself, the factual account that follows is brief. Additional background about the war is available from a variety of sources. Of primary importance is the oral history as told by the present-day members of the Dakota community. Other accounts by Dakota witnesses of the events are collected in THROUGH DAKOTA EYES: NARRATIVE ACCOUNTS OF THE MINNESOTA INDIAN WAR OF 1862 (G. Anderson & A. Woolworth ed. 1988) [hereinafter THROUGH DAKOTA EYES]. Several histories were published in the years 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 31 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. immediately following the war, including CHARLES S. BRYANT & ABEL B. MURCH, A HISTORY OF THE GREAT MASSACRE BY THE SIOUX INDIANS IN MINNESOTA (2d ed. 1864 & photo. reprint 1977) and ISAAC V.D. HEARD, HISTORY OF THE SIOUX WAR AND MASSACRES OF 1862 AND 1863 (1864 & photo. reprint 1975). Other valuable sources include GARY CLAYTON ANDERSON, LITTLE CROW (1986); 1 BOARD OF COMMISSIONERS UNDER THE ACT OF APRIL 16, 1889, LEGISLATURE OF MINNESOTA, MINNESOTA IN THE CIVIL AND INDIAN WARS,,,,, 1861-1865, at 300-28, 347-69, 386-400, 416-38, 455-71, 543-51, 572-84, 594-601, 670-77, 727-53 (1890) [hereinafter MINNESOTA IN THE CIVIL AND INDIAN WARS]; KENNETH CARLEY, THE SIOUX UPRISING OF 1862 (2d ed. 1976); 2 WILLIAM WATTS FOLWELL, A HISTORY OF MINNESOTA 109-264 (1926); ROY W. MEYER, HISTORY OF THE SANTEE SIOUX 109-32 (1967); MARION P. SATTERLEE, A DETAILED ACCOUNT OF THE MASSACRE BY THE DAKOTA INDIANS OF MINNESOTA INNNNN 1862 (1923). [FN7]. Throughout this article, I most often refer to the men and women with whom the Dakota fought as "Americans" rather than as "whites" or "Minnesotans." I have chosen this terminology to emphasize the point, central to my thesis, that the Dakota fought as a sovereign nation against another nation, the United States. Most writers, both contemporaneous and modern, refer instead, to the "Indians" and "whites," emphasizing the racial division. Although the participants--especially the whites--may have viewed the conflict as a racial one, a full understanding of the war and its aftermath requires a shift in perspective in order to acknowledge the status of the Dakota as lawful belligerents. See Part IV infra. [FN8]. See generally THROUGH DAKOTA EYES, supra note 6, at 19-33; C. BRYANT & A. MURCH, supra note 6, at 33- 38; K. CARLEY, supra note 6, at 2-6; 2 W. FOLWELL, supra note 6, at 212-41; I. HEARD, supra note 6, at 31-51; R. MEYER, supra note 6, at 109-16; M. SATTERLEE, supra note 6, at 2-9. [FN9]. The Dakota signed two treaties in 1851: the Treaty of Traverse des Sioux, 10 Stat. 949 (1855), between the United States and the Sisseton and Wahpeton tribes, and the Treaty of Mendota, 10 Stat. 954 (1855), between the United States and the Mdewakanton and Wahpekute tribes. [FN10]. See C. BRYANT & A. MURCH, supra note 6, at 33-35. Most of the money was given directly to creditors, contrary to the treaty terms and to federal law. See id. at 35-38; R. MEYER, supra note 6, at 80-81; note 15 infra and accompanying text. [FN11]. See R. MEYER, supra note 6, at 103-08. Taoyateduta (Little Crow) lost much of his influence in the Dakota community because of his agreement to the Treaty of 1858. See Big Eagle's Account, in THROUGH DAKOTA EYES, supra note 6, at 21, 23, 25; M. SATTERLEE, supra note 6, at 114-15; see also note 42 infra. [FN12]. See THROUGH DAKOTA EYES, supra note 6, at 20; K. CARLEY, supra note 6, at 5; I. HEARD, supra note 6, at 44; M. SATTERLEE, supra note 6, at 7. [FN13]. G. ANDERSON, supra note 6, at 82-87; C. BRYANT & A. MURCH, supra note 6, at 40-42; K. CARLEY, supra note 6, at 5; R. MEYER, supra note 6, at 100; M. SATTERLEE, supra note 6, at 6. [FN14]. See THROUGH DAKOTA EYES, supra note 6, at 19-20; Big Eagle's Account, supra note 11, at 21, 26; I. HEARD, supra note 6, at 43. [FN15]. See I. HEARD, supra note 6, at 31, 33-34; R. MEYER, supra note 6, at 110-11 & n.3. This kind of trader theft was rampant throughout the country. See DAVID A. NICHOLS, LINCOLN AND THE INDIANS: CIVIL WAR POLICY AND POLITICS 5-24 (1978); ROBERT H. UTLEY, THE INDIAN FRONTIER OF THE AMERICAN WESTTTTT 1846- 1890, at 45-46, 78 (1984). [FN16]. Big Eagle's Account, supra note 11, at 27; R. MEYER, supra note 6, at 112-13. [FN17]. J.E. De C. Sweet, Mrs. J.E. de Camp Sweet's Narrative of Her Captivity in the Sioux Outbreak of 1862, in 6 COLLECTIONS OF THE MINNESOTA HISTORICAL SOCIETY 354, 357 (1894). [FN18]. Robert Hakewaste's Testimony, in THROUGH DAKOTA EYES, supra note 6, at 31-32; C. BRYANT & A. MURCH, supra note 6, at 53 (quoting Major Galbraith); K. CARLEY, supra note 6, at 6; I. HEARD, supra note 6, at 48-49; 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 32 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. M. SATTERLEE, supra note 6, at 9. [FN19]. R. MEYER, supra note 6, at 116. Myrick was one of the first casualties of the war. When his body was found, his mouth had been stuffed with grass. Id. at 117; see also Big Eagle's Account, supra note 11, at 55-56; Joseph Coursolle's Story, in THROUGH DAKOTA EYES, supra note 6, at 57, 59; K. CARLEY, supra note 6, at 11; M. SATTERLEE, supra note 6, at 9.
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Post by mdenney on Mar 4, 2007 14:07:54 GMT -5
[FN20]. Most of the stories about the events at Acton come from the writings of non-Indian historians. K. CARLEY, supra note 6, at 7-9; 2 W. FOLWELL, supra note 6, at 415-17; I. HEARD, supra note 6, at 52-56; R. MEYER, supra note 6, at 114- 15. David Larsen, current Tribal Chair of the Lower Sioux Mdewakanton Community, suggests that all of these accounts are inaccurate, but that they have been repeated so many times that even some members of the Dakota community report them as though they were fact. Moreover, the focus on these reportedly unprovoked killings allows the spark that ignited the war to overshadow the long list of grievances that were the true cause of the conflict. Interview with David Larsen, Tribal Chair of the Lower Sioux Mdewakanton Community, in Morton, Minn. (July 23, 1989). [FN21]. R. MEYER, supra note 6, at 115; cf. G. ANDERSON, supra note 6, at 85 (surrender by Sissetons of a tribal member who had stabbed American soldier). One observer reported that two of the Dakota who killed at Acton were shot in punishment by their own people. Good Star Women's Recollections, in THROUGH DAKOTA EYES, supra note 6, at 52-53. [FN22]. As with other decisions, the decision to go to war would normally be made in Council. See text accompanying notes 436-437 infra. As reported by Wambditanka (Big Eagle), everyone at Shakopee's village heard of the killings at Acton, and the young men responsible for the killings were then taken to see Taoyateduta. A Council was held at Taoyateduta's village, and war was declared. Big Eagle's Account, supra note 11, at 35-36; see also K. CARLEY, supra note 6, at 10-12; R. MEYER, supra note 6, at 117. [FN23]. K. CARLEY, supra note 6, at 10-11; R. MEYER, supra note 6, at 117- 18. [FN24]. G. ANDERSON, supra note 6, at 130-31. [FN25]. See Big Eagle's Account, supra note 11, at 35-36; see also G. ANDERSON, supra note 6, at 130-31. There was reason for the Dakota to fear general retaliation against the tribe. In 1857, a renegade band of Wahpekutes led by Inkpaduta had killed more than forty Americans in Iowa in what became known as the Spirit Lake Massacre. These Wahpekutes were already outcasts of the tribe, having fled west to the Missouri River Valley after killing the recognized chief of the Wahpekutes in the 1840s. Nonetheless, the Americans insisted that the Dakota had responsibility for capturing and punishing Inkpaduta and withheld annuity payments to force them to do so. See note 13 supra and accompanying text. [FN26]. See K. CARLEY, supra note 6, at 12-14; 2 W. FOLWELL, supra note 6, at 109-11; R. MEYER, supra note 6, at 117. [FN27]. K. CARLEY, supra note 6, at 14. [FN28]. See L.F. Hubbard, Narrative of the Fifth Regiment, in MINNESOTA IN THE CIVIL AND INDIAN WARS, supra note 6, at 243-44. [FN29]. K. CARLEY, supra note 6, at 15-16; 2 W. FOLWELL, supra note 6, at 112-14; R. MEYER, supra note 6, at 118; Hubbard, supra note 28, at 248-50. [FN30]. See K. CARLEY, supra note 6, at 32-39; R. MEYER, supra note 6, at 118-19. [FN31]. See J.H. Baker, Narrative of the Tenth Regiment, in MINNESOTA IN THE CIVIL AND INDIAN WARS, supra note 6, at 455, 455-56; Chas. E. Flandrau, The Indian War of 1862-1864, and Following Campaigns in Minnesota, in MINNESOTA IN THE CIVIL AND INDIAN WARS, supra note 6, at 727, 731-32. See generally 2 W. FOLWELL, supra note 6, at 135-44. [FN32]. I. HEARD, supra note 6, at 80; see also K. CARLEY, supra note 6, at 33-39; 2 W. FOLWELL, supra note 6, at 134. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 33 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN33]. The American soldiers were members of Minnesota volunteer regiments that were mustered into federal service as part of the Civil War effort. See C. C. Andrews, Narrative of the Third Regiment, in MINNESOTA IN THE CIVIL AND INDIAN WARS, supra note 6, at 147, 147; Hubbard, supra note 28, at 243-44; Charles W. Johnson, Narrative of the Sixth Regiment, in MINNESOTA IN THE CIVIL AND INDIAN WARS, supra note 6, at 300, 300-01; James T. Ramer, Narrative of the Seventh Regiment, in MINNESOTA IN THE CIVIL AND INDIAN WARS, supra note 6, at 347, 347-51. Most of Sibley's initial cavalry were volunteers from the Minneapolis-St. Paul area, organized as Northrup's Mounted Volunteers. Although Sibley tried to keep them in his command, most returned to their homes after the second battle of Fort Ridgely. M. SATTERLEE, supra note 6, at 121-22. [FN34]. Flandrau, supra note 31, at 733-34, 736-40, 743-46; K. CARLEY, supra note 6, at 28-30, 41-44, 62-63; 2 W. FOLWELL, supra note 6, at 131-32, 179-81; R. MEYER, supra note 6, at 119. [FN35]. General Officers, in MINNESOTA IN THE CIVIL AND INDIAN WARS, supra note 6, at 701, 712; K. CARLEY, supra note 6, at 30-31, 67; 2 W. FOLWELL, supra ne 6, at 147-48. Sibley, elected the first Governor of Minnesota in 1857 (by defeating Ramsey), had no previous military experience, but he knew the Dakota well from years of hunting and trading with them. 2 W. FOLWELL, supra note 6, at 3, 147-48. [FN36]. See K. CARLEY, supra note 6, at 45-50; 2 W. FOLWELL, supra note 6, at 110-11, 115-16, 157-62; I. HEARD, supra note 6, at 68-71. [FN37]. K. CARLEY, supra note 6, at 21-22; 2 W. FOLWELL, supra note 6, at 123-24. [FN38]. R. MEYER, supra note 6, at 120. [FN39]. Id. Meyer concludes that the stories of Dakota atrocities "can no longer be accepted by sober scholarship." Id. Carley suggests that when bodies were later recovered, "t seems probable that the condition of the bodies, which had lain in the hot sun for nearly two weeks, gave rise to some false charges of mutilation." K. CARLEY, supra note 6, at 42. The doctor who accompanied one of the burial expeditions denied the existence of mutilations. R. MEYER, supra note 6, at 120. Meyer also notes that not all the atrocities were committed by the Dakota. Id. On the other hand, some "mutilation" would occur from the use of weapons like the hatchet, knife, and war club, all standard parts of the Dakota arsenal. In addition, purposeful mutilation might have been directed at special enemies, such as the traders, to humiliate those who had treated the Dakota with particular disrespect. See Anthony McGinnis, Strike & Retreat: Intertribal Warfare and the Powder River War, 1865- 1868, 30 Mont. Mag. W. Hist. 30, 38 (1980); note 19 supra (treatment of Andrew Myrick). Some of the reports, then, were probably accurate, but wild rumors far exceeded the reality. [FN40]. Samuel J. Brown's Recollections, in THROUGH DAKOTA EYES, supra note 6, at 169, 169-70; Gabriel Renville's Memoir, in THROUGH DAKOTA EYES, supra note 6, at 186, 186-88; K. CARLEY, supra note 6, at 17-20; 2 W. FOLWELL, supra note 6, at 116-20; I. HEARD, supra note 6, at 74-77. [FN41]. Wherever possible, I have used the English transliteration of Dakota names for individual Dakota people. Originally, the Dakota language was exclusively oral, but early missionaries thought that it should have a written form as well. Transliterations from different sources may vary in spelling. When an individual has become generally known by an English translation, I have also included the English name upon the first use of the Dakota name. [FN42]. Initially reluctant to participate in the war, Taoyateduta took leadership of the soldiers despite his belief that the war could not be won. Anderson suggests that Taoyateduta made the decision as a matter of honor--to give his life and die with the soldiers--as well as, perhaps, to regain some of the influence he had lost as a result of his support for the Treaties of 1858 and his accommodation to American ways. G. ANDERSON, supra note 6, at 133-34; see also Big Eagle's Account, supra note 11, at 23, 25; Little Crow's Speech, in THROUGH DAKOTA EYES, supra note 6, at 39, 40-42. [FN43]. Flandrau, supra note 31, at 741-42; see also K. CARLEY, supra note 6, at 61; I. HEARD, supra note 6, at 148, 150; Letter from Col. Henry Sibley to Mrs. Henry Sibley (Sept. 8, 1862), in Sibley Papers, roll 11, frame 666, MHS [[[microfilm]. [FN44]. See Gabriel Renville's Memoir, supra note 40, at 186-91; Paul Mazakutemani's Statement, in THROUGH DAKOTA 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 34 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. EYES, supra note 6, at 194, 195-98; Samuel J. Brown's Recollections, supra note 40, at 175; Thomas A. Robertson's Reminiscences, in THROUGH DAKOTA EYES, supra note 6, at 177, 178-79, 181-82; Victor Renville's Account, in THROUGH DAKOTA EYES, supra note 6, at 192, 192- 94; I. HEARD, supra note 6, at 151-52; R. MEYER, supra note 6, at 122; THROUGH DAKOTA EYES, supra note 6, at 168. Heard quotes at length the speech of Hdainyanka, Wabasha's sonin- law, in favor of continuing the war: I am for continuing the war, and am opposed to the delivery of the prisoners. I have no confidence that the whites will stand by any agreement they make if we give them up. Ever since we treated with them their agents and traders have robbed and cheated us. Some of our people have been shot, some hung; others placed upon floating ice and drowned; and many have been starved in their prisons. It was not the intention of the nation to kill any of the whites until after the four men returned from Acton and told what they had done. When they did this, all the young men became excited, and commenced the massacre. The older ones would have prevented it if they could, but since the treaties they have lost all their influence. We may regret what has happened but the matter has gone too far to be remedied. We have got to die. Let us, then, kill as many of the whites as possible, and let the prisoners die with us. I. HEARD, supra note 6, at 151-52. [FN45]. Both men held important positions in the Mdewakanton community. Wabasha was the principal chief of the Mdewakantons. Big Eagle's Account, supra note 11, at 25; K. CARLEY, supra note 6, at 12. Taopi was head of the farmer- Indians, appointed by Indian Agent Galbraith. Big Eagle's Account, supra note 11, at 93; R. MEYER, supra note 6, at 121. [FN46]. R. MEYER, supra note 6, at 121-22; 2 W. FOLWELL, supra note 6, at 172-73; see also Thomas A. Robertson's Reminiscences, supra note 44, at 183. [FN47]. K. CARLEY, supra note 6, at 64-65; 2 W. FOLWELL, supra note 6, at 182-85; see also Letter from Col. Henry Sibley to Mrs. Henry Sibley (Sept. 27, 1862), in Sibley Papers, roll 11, frame 670, MHS [microfilm]. [
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Post by mdenney on Mar 4, 2007 14:09:37 GMT -5
FN48]. K. CARLEY, supra note 6, at 67; see also I. HEARD, supra note 6, at 188; Letters from Col. Henry Sibley to Mrs. Henry Sibley (Oct. 5, Oct. 10, and Oct. 19, 1862), in Sibley Papers, roll 11, frames 672-74, MHS [microfilm]. [FN49]. Accounts vary regarding the number of settlers killed. Marion Satterlee, a journalist who has been called the "most thorough student" of casualties in the war, K. CARLEY, supra note 6, at 1 n.*, reported 413 settlers killed. M. SATTERLEE, supra note 6, at 124. Twenty-nine of the individuals included in Satterlee's total were citizen-soldiers killed in the battles at New Ulm and Birch Coulee. Id. at 65-66, 120. Twenty-six others died under circumstances not directly connected with the fighting in 1862: fifteen of them were killed in 1863, two in 1864, and six in 1865, id. at 59-61; one died, without having been wounded, six months after the war, id. at 36, and two "left [their homes] for a months [sic] trip to the Missouri river, on June 2nd, but were never heard from," id. at 50. Kenneth Carley, a historian of the War, variously lists 447 (based on Satterlee's account, including military losses) and 500 (based on Governor Ramsey's estimate). K. CARLEY, supra note 6, at 1 n.*. [FN50]. M. SATTERLEE, supra note 6, at 107-08. But see K. CARLEY, supra note 6, at 1 n.* (21 Dakota killed). [FN51]. Those who did not surrender shared that concern. They made their decision to flee in part based on their belief that the Americans would retaliate against all Dakota for the killing. See, e.g., Gabriel Renville's Memoir, supra note 40, at 189- 90. Indeed, the war itself was fought partly because many of the young men argued that the entire nation would suffer for the actions of the men who killed the settlers in the incident that sparked the war. See note 25 supra and accompanying text. [FN52]. Letter from Col. Henry Sibley to Those of the Half-Breeds and Sioux Indians Who Have Not Been Concerned in the Murder and Outrages upon the White Settlers (Sept. 13, 1862), reprinted in 13 UNITED STATES DEPARTMENT OF WAR, THE WAR OF THE REBELLION: A COMPILATION OF THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATE ARMIES, SERIES I 632 (1885) [hereinafter WAR OF THE REBELLION, SER. I]; accord, Letter from Col. Henry Sibley to Ma-za-ka-tame [Mazakutemani], Toopee [Taopi], and Wa-ke-nan-nan-te (Sept. 24, 1862), reprinted in id. at 666-67; Letter from Col. Henry Sibley to Ta-tanka-nazin (Sept. 24, 1862), reprinted in id. at 667. [FN53]. Major General John Pope was placed in command of the newly created Military Department of the Northwest on September 6, 1862. K. CARLEY, supra note 6, at 60. Pope had suffered a major defeat in the second Battle of Bull Run just a week earlier, resulting in his removal from command. He was "a major-general without a job" and was sent, in some 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 35 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. disgrace, to direct the fight against the Dakota, in response to repeated requests from Governor Ramsey for federal assistance. RICHARD N. ELLIS, GENERAL POPE AND U.S. INDIAN POLICY 6-7 (1970). [FN54]. Letter from Col. Henry Sibley to Maj. Gen. John Pope (Sept. 27, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 679, 680; see Order No. 54, issued at Camp Release (Sept. 27, 1862), in Sibley Papers, roll 32, frame 109, MHS [microfilm]. The order named Colonel Crooks, Lieutenant-Colonel Marshall, and Captain Grant to a commission "for the purpose of examining into the participation of certain Indians and half breeds in the late murders and robberies committed on this frontier." Id. All three men served on the expanded commission appointed on September 28. See note 56 infra and accompanying text. [FN55]. See note 308 infra. [FN56]. Order No. 55, issued at Camp Release (Sept. 28, 1862), reprinted in Trial Transcripts (contained in each transcript). [FN57]. Letter from Col. Henry Sibley to Maj. Gen. John Pope (Sept. 28, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 686-87. The same statement appears in letters sent by Sibley from Camp Release to both his wife and Charles Flandrau on September 28. Letter from Col. Henry Sibley to Mrs. Henry Sibley (Sept. 28, 1862), in Sibley Papers, roll 11, frames 670-71, MHS [microfilm]; Letter from Col. Henry Sibley to Col. Charles Flandrau (Sept. 28, 1862), in id. at roll 11, frame 688. Sibley's letter to Flandrau was reprinted in part, with an incorrect date of September 25, 1862, in Flandrau, supra note 31, at 746. [FN58]. Letter from Col. Henry Sibley to Maj. Gen. John Pope (Sept. 28, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 687. Sibley expressed similar doubts in his letter to Flandrau: "If found guilty, they will be forthwith executed, although perhaps it will be a stretch of my authority. If so, necessity must be my justification." Letter from Col. Henry Sibley to Col. Charles Flandrau (Sept. 28, 1862), in Sibley Papers, roll 11, frames 670-71, MHS [microfilm]. [FN59]. Letter from Col. Henry Sibley to Maj. Gen. John Pope (Sept. 28, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 687. [FN60]. Letter from Maj. Gen. John Pope to Col. Henry Sibley (Sept. 28, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 685-86. Pope's sentiments were shared by others on the scene. In his message to the state legislature on September 9, Governor Ramsey had called for the extermination of the Dakota or their removal from the state. Message of Governor Ramsey to the Legislature of Minnesota (Sept. 9, 1862) at 12, reprinted in MINNESOTA LEGISLATURE, EXECUTIVE DOCUMENTS OF THE STATE OF MINNESOTA FOR THE YEAR 1862 (1863). [FN61]. William Marshall was the most prominent member of the Commission. Before joining the Army, he had been a member of both the Wisconsin and Minnesota legislatures and had helped to organize the Republican Party in the Minnesota Territory. Daniel S.B. Johnston, Minnesota Journalism from 1858-1865, in 12 COLLECTIONS OF THE MINNESOTA HISTORICAL SOCIETY 183, 219 (1908). One prominent Minnesota historian noted that "Minnesota had no citizen who more ardently loved justice and freedom." 1 WILLIAM WATTS FOLWELL, A HISTORY OF MINNESOTA 375 (1921). Marshall, a pioneer newspaperman, founded the St. Paul Press on January 1, 1861, and remained its editor until his enlistment in the Army in 1862. Johnston, supra, at 219. He led five companies in the decisive battle at Wood Lake. Report from Col. Henry Sibley to Gov. Alexander Ramsey (Sept. 23, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 278-79. He was later to play an important role in several Civil War battles, and left the service a Brigadier General. JAMES H. BAKER, William Rainey Marshall, in 13 COLLECTIONS OF THE MINNESOTA HISTORICAL SOCIETY 150, 152-53 (1908); Johnston, supra, at 220. Returning home a hero, he was elected Governor of Minnesota in the fall of 1865, and served until 1870. Id. William Crooks, a graduate of West Point, commanded the 6th Minnesota Regiment at the battles of Birch Coulee and Wood Lake. 2 W. FOLWELL, supra note 6, at 150-55, 177-82. He later served as both a Representative and a Senator in the Minnesota State Legislature. Memorials of Deceased Members, 1905-1908, in 12 COLLECTIONS OF THE MINNESOTA HISTORICAL SOCIETY 767, 794 (1908). The other members of the hearing panel were less well known. Captain Grant acted under Marshall's command at Wood Lake. Report from Col. Henry Sibley to Gov. Alexander Ramsey (Sept. 23, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 279. He commanded Company A of the 6th Minnesota Regiment in the Battle of 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 36 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13)
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© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Birch Coulee, selecting the camp location that proved disastrous for the Army. K. CARLEY, supra note 6, at 41-44. Grant took charge of the entire command after his superior officers were wounded. M. SATTERLEE, supra note 6, at 64. First Lieutenant Olin was second-in-command of the 3rd Minnesota Regiment at the battle of Wood Lake. Andrews, supra note 33, at 158- 61. He later was named Assistant Adjutant General of the District of Minnesota. Marshall sat as a member of the Commission for only 29 cases. I. HEARD, supra note 6, at 251. On October 15, Marshall was replaced by Major George Bradley of the 7th Minnesota Regiment, id., which had relieved the men under siege at Birch Coulee and fought in the Battle of Wood Lake. See Ramer, supra note 33, at 350-52. Isaac Heard reports Bradley to have been "rated among the first lawyers of the state." I. HEARD, supra note 6, at 268. Marshall, meanwhile, was placed in command of several companies of soldiers assigned to pursue a group of fleeing Dakota. Ramer, supra note 33, at 352. [FN62]. Isaac V.D. Heard was a lawyer from St. Paul who had been for many years the prosecuting attorney of Ramsey County and was on Colonel Sibley's staff at the time of the trials. Flandrau, supra note 31, at 747; 2 W. FOLWELL, supra note 6, at 192 n.3. Heard later became the primary contemporary historian of the United States-Dakota War, authoring in 1864 a book entitled History of the Sioux War and Massacres of 1862 and 1863 (I. HEARD, supra note 6). Folwell states that the duties of the office of Judge Advocate were mainly performed by Isaac Heard, "erroneously" mentioned as the Recorder of the Commission. 2 W. FOLWELL, supra note 6, at 192 n.3. The trial transcripts, however, do list Heard as Recorder, see Trial Transcripts (early cases), a position associated with a court of inquiry rather than with a military commission or court martial. See note 308 infra. [FN63]. See Trial Transcripts, Case Nos. 1-5, 7, 14-22, 27. [FN64]. I. HEARD, supra note 6, at 251. Heard said Riggs was eminently qualified for this role because of his familiarity with the Dakota language and because of his long acquaintance with the Dakota, their character, and their habits, which "enabl[ed] him to tell almost with certainty what Indians would be implicated and what ones not, either from their disposition or their relatives being engaged." Id. [FN65]. The trial transcripts contain a separate written charge for each of the 392 trials. Fifteen of the charges were dated September 28--cases numbered 1-5, 7, 14-18, 20-22, and 27--and one, case number 19, was dated simply September. As the case numbers of those so dated were not continuous, it is possible that not all of these trials were actually held on September 28, but that the date was copied incorrectly from earlier charges used as models for later trials. That error is particularly likely in case number 27, in which the charge contained the name of a different defendant, which was crossed out by hand with another name substituted. For lack of better information, however, I have relied upon the dates written on the transcripts to specify the dates of trials. [FN66]. The six acquittals are reported as Case Nos. 7, 16, 17, 20, 21, and 27. [FN67]. See Letter from Col. Henry Sibley to Maj. Gen. John Pope (Sept. 30, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 694; Letter from Col. Henry Sibley to Maj. Gen. John Pope (Oct. 3, 1862), reprinted in id. at 707, 708; Letter from Col. Henry Sibley to Maj. Gen. John Pope (Oct. 4, 1862), reprinted in id. at 710; Letter from Col. Henry Sibley to Maj. Gen. John Pope (Oct. 5, 1862), reprinted in id. at 711, 712; Letter from Brig. Gen. Henry Sibley to Maj. Gen. John Pope (Oct. 7, 1862), reprinted in id. at 717. [FN68]. See Letter from Maj. Gen. John Pope to Gen.-in-Chief Henry Halleck (Oct. 2, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 705, 706; Letter from Maj. Gen. John Pope to Gen.-in-Chief Henry Halleck (Oct. 7, 1862), reprinted in id. at 716; Letter from Maj. Gen. John Pope to Gen.- in-Chief Henry Halleck (Oct. 9, 1862), reprinted in id. at 722; Letter from Maj. Gen. John Pope to Gen.-in-Chief Henry Halleck (Oct. 10, 1862), reprinted in id. at 724; Letter from Maj. Gen. John Pope to Gen.-in-Chief Henry Halleck (Oct. 13, 1862), reprinted in id. at 733. [FN69]. Letter from Maj. Gen. John Pope to Brig. Gen. Henry Sibley (Oct. 2, 1862), in Letters Rec'd-Adj. Gen., NARG 94 (M619, roll 483). [FN70]. Sibley, too, rejected any notion of settling the conflict by treaty. See Letter from Col. Henry Sibley to Adj. Gen. Oscar Malmros (Sept. 4, 1862), in Sibley Papers, roll 11, frame 683, MHS [microfilm]. Rumors were circulating that a treaty would be concluded, and both Sibley and Pope apparently responded with assurances that they had no such intention. Id. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 37 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13)
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© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN71]. Letter from Maj. Gen. John Pope to Brig. Gen. Henry Sibley (Oct. 6, 1862), in Letters Rec'd-Adj. Gen., NARG 94 (M619, roll 483). Pope repeated similar sentiments on October 10 when he wrote to Sibley that all who were guilty in any way in the outbreak should be hanged. Letter from Maj. Gen. John Pope to Brig. Gen. Henry Sibley (Oct. 10, 1862), in Letters Rec'd-Adj. Gen., NARG 94 (M619, roll 483). He went on to say: We have now the means to make a final settlement with all these Indians. The opportunity may not occur again. . . . Let me again say to you that I regard the destruction of every thing that can sustain life between Fort Ridgely and Big Stone Lake as very important. . . . All annuity Indians must be notified that hereafter they will not be permitted on any pretext to leave their reservation, that all the soldiers have orders to shoot them wherever they are found, and citizens are authorized to do the same. Letter from Maj. Gen. John Pope to Brig. Gen. Henry Sibley (Oct. 10, 1862), supra. [FN72]. Letter from Col. Henry Sibley to Maj. Gen. John Pope (Oct. 3, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 708; see also Letter from Brig. Gen. Henry Sibley to Mrs. Henry Sibley (Oct. 5, 1862), in Sibley Papers, roll 11, frame 672, MHS [microfilm]. [FN73]. Letter from Col. Henry Sibley to Maj. Gen. John Pope (Oct. 4, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 710. [FN74]. Letter from Col. Henry Sibley to Maj. Gen. John Pope (Oct. 5, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 711-12; see also Letter from Brig. Gen. Henry Sibley to Mrs. Henry Sibley (Oct. 10, 1862), in Sibley Papers, roll 11, frames 672-73, MHS [microfilm]. [FN75]. Letter from Col. Henry Sibley to Maj. Gen. John Pope (Oct. 7, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 717. [FN76]. Letter from Maj. Gen. John Pope to Gen.-in-Chief Henry Halleck (Oct. 7, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 716; Letter from Maj. Gen. John Pope to Gen.-in-Chief Henry Halleck (Oct. 9, 1862), reprinted in id. at 722; Letter from Maj. Gen. John Pope to Gen.-in-Chief Henry Halleck (Oct. 10, 1862), reprinted in id. at 724. [FN77]. Letter from Maj. Gen. John Pope to Gen.-in-Chief Henry Halleck (Oct. 13, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 733. In fact, a federal statute required the President's approval. Article of War 65 provided that, in time of peace, sentences involving loss of life could not be executed until laid before the President for his approval. Act of Apr. 10, 1806, ch. 20, § 1, art. 65, 2 Stat. 359, 367. By Act of Dec. 24, 1861, Congress provided that, in time of war, approval was necessary only from the general commanding the army in the field or colonel commanding a separate department. Ch. 3, 12 Stat. 330. In July 1862, however, Congress specified that no sentence of death should be carried out until approved by the president. Act of July 17, 1862, ch. 201, § 5, 12 Stat. 597, 598. [FN78]. See Letter from Brig. Gen. Henry Sibley to Maj. Gen. John Pope (Oct. 15, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 740- 41 (confirming that Sibley received Pope's two communications which modified his previous instructions). [FN79]. D. NICHOLS, supra note 15, at 95-96. [FN80]. Letter from Maj. Gen. John Pope to Brig. Gen. Henry Sibley (Oct. 17, 1862), in Letters Rec'd-Adj. Gen., NARG 94 (M619, roll 483). [FN81]. Letter from Brig. Gen. Henry Sibley to Maj. Gen. John Pope (Oct. 21, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 756, 757. [FN82]. Trial Transcripts, Case Nos. 275-316 (42 defendants tried on Nov. 1, 1862). [FN83]. The description of the trials, unless otherwise noted, is drawn from the written transcripts made at the time of the trials. Isaac Heard, as Recorder, probably made most of the record. The transcripts are handwritten notes of the charges, evidence, and decisions. The arraignment page of the transcript in each case includes a list of the Commission members, case 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 38 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. number, charges and specifications, the defendant's name, and the trial date. In many transcripts, that page appears to have been prepared in advance--identical in each case, with blank spaces for name and date to be added at the trial. See, e.g., Trial Transcripts, Case No. 13 (trial of O-Ton-Ka; the space for defendant's name is followed by the phrase, "a Sioux Indian," which was crossed out since O-Ton-Ka was a Winnebago), Case No. 6 (trial of Hin-han-shoon-ko-yag-ma-ne; name was shorter than blank space, so a long dash was placed to take up excess space); see also Trial Transcripts, Case Nos. 14, 22, 27 (the name Te-he-hdo-ne-cha is crossed out in each and the correct defendant's name (Sna-ma-ni, Do-wan-sa, and Tu-wan-utak respectively) is written in. Te-hdo-ne-cha was the defendant in Case No. 2.). Trial dates were treated similarly. See note 65 supra. The transcripts contain more than one handwriting, so probably not all notes were taken by the same individual. The transcript appears to be a largely verbatim record, though one must expect that there are gaps because of the manner of recording. However, since the Commission received much of the testimony, from both prisoners and prosecution witnesses, through a translator, the testimony would have been given relatively slowly. It is therefore likely that the record is more complete than one might otherwise expect with hand transcription. [FN84]. See Trial Transcripts. [FN85]. Apparently the Commission formed a pool of witnesses from which it could draw when evidence was needed. For example, Wakenyawashtay was listed as a witness in 92 trials, but testified in only 32 of them; Thomas Robertson was listed as a witness in 66 trials, but testified in only 33 of them; Alex Graham was listed as a witness in 61 trials, but testified in only 16 of them. See Trial Transcripts. On several occasions the Commission called witnesses from the pool whose only testimony was that they knew nothing about the defendant's participation or actions. See, e.g., Trial Transcripts, Case No. 49 (both David Faribault and Alex Graham knew nothing of defendant's actions); Case No. 55 (Thomas Robertson had no information about the defendant); Case No. 76 (Alex Graham and David Faribault did not know anything about the defendant's actions). [FN86]. See text accompanying notes 224-246 infra. [FN87]. A week after the conclusion of the trials of the Dakota, the Military Commission tried about a dozen Winnebagos who had participated in the fighting along with the Dakota. The Mankato Record reported that a Winnebago, Hoonkhoonokaw (Little Chief or Little Priest) was found to have been present "at the massacre at the Upper Agency" and to have stabbed Andrew Myrick after Myrick was shot. Mankato Rec., Nov. 15, 1862, at 2, col. 1. The newspaper also noted that a Dakota witness proved that Maznopinki was present at the battle at Wood Lake, riding on the same horse as the witness. Id. Another witness against the Winnebagos may have been Otanka, a Winnebago who had married a Dakota woman and was living with his family at the time of the War. The Commission tried and acquitted him on October 4 and held him as a witness after he testified that he had heard that nine Winnebagos were at the battle of the Redwood Agency. See Trial Transcripts, Case No. 13. Despite this evidence, which would have been sufficient to convict Dakota defendants, the Commission acquitted all or all but one of the Winnebagos, and there is no indication that any Winnebagos were imprisoned or executed. THOMAS HUGHES, INDIAN CHIEFS OF SOUTHERN MINNESOTA 152-53, 181 (1969). I was unable to find transcripts of the Winnebago trials to compare the results with the verdicts against the Dakota. The Mankato Record reported that " n unusual effort was made by Indian officials and sympathisers to save [the Winnebago] necks," Mankato Rec., supra, suggesting one possible reason for the seemingly different treatment.
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There were also reports that the Commission tried one Dakota woman, but acquitted her. Letter from Rev. Stephen R. Riggs to Martha Riggs (Nov. 4, 1862), in Riggs Papers, MHS. [FN88]. See Act of July 17, 1862, ch. 201, § 5, 12 Stat. 597, 598; note 77 supra. [FN89]. See texts accompanying notes 57-59, & 77 supra. [FN90]. Letter from Pres. Abraham Lincoln to Maj. Gen. John Pope (Nov. 10, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 787. [FN91]. Letter from Maj. Gen. John Pope to Pres. Abraham Lincoln (Nov. 11, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 788. [FN92]. Id. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 39 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN93]. Letter from Maj. Gen. John Pope to Pres. Abraham Lincoln (Nov. 12, 1862), in Abraham Lincoln Papers, Minnesota Historical Society, quoted in D. NICHOLS, supra note 15, at 101. [FN94]. Letter from Gov. Alexander Ramsey to Pres. Abraham Lincoln (Nov. 10, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 787. In a proclamation to the people of Minnesota, Ramsey had already promised revenge on the Dakota and threatened to convict them in state court if Lincoln did not allow the executions. St. Paul Pioneer, Dec. 7, 1862, at 1, col. 3. [FN95]. See D. NICHOLS, supra note 15, at 101-11. [FN96]. Stillwater Messenger, Nov. 11, 1862, at 1, col. 1. [FN97]. Letter from Sen. Morton Wilkinson, Rep. Cyrus Aldrich, and Rep. William Windom to Pres. Abraham Lincoln (Nov. 1862), reprinted in S. EXEC. DOC. NO. 7, 37th Cong., 3d Sess. 2, 3 (1862). [FN98]. Id. at 4. [FN99]. Id. at 4-6. [FN100]. Report of the Comm'r of Indian Affairs, William Dole, to Sec'y of the Interior Caleb Smith (Nov. 26, 1862), reprinted in H.R. EXEC. DOC. NO. 1, 37th Cong., 3d Sess. 169, 177 (1862). [FN101]. D. NICHOLS, supra note 15, at 103-04. [FN102]. See CONG. GLOBE, 37th Cong., 3d Sess. 13 (1862) (remarks of Sen. Wilkinson). In his memoir of the life of Sibley, J. Fletcher Williams later charged that President Lincoln prevented execution of the condemned "at the earnest solicitation of some pseudo humanitarians at the East." J. Fletcher Williams, Henry Hastings Sibley: A Memoir, in 6 COLLECTIONS OF THE MINNESOTA HISTORICAL SOCIETY 257, 291 (1894). [FN103]. D. NICHOLS, supra note 15, at 99-100. [FN104]. Letter from Pres. Abraham Lincoln to J. Adv. Gen. Joseph Holt (Dec. 1, 1862), reprinted in 5 COLLECTED WORKS OF ABRAHAM LINCOLN 537-38 (R. Basler ed. 1954). [FN105]. Letter from J. Adv. Gen. Joseph Holt to Pres. Abraham Lincoln (Dec. 1, 1862), in Letters Sent-JAG, NARG 153 (Entry 1). [FN106]. CONG. GLOBE, 37th Cong., 3d Sess. 13 (1862). [FN107]. Letter from Brig. Gen. Henry Sibley to Mrs. Henry Sibley (Nov. 12, 1862), in Sibley Papers, roll 11, frame 679, MHS [microfilm]. The crowd was driven back by a bayonet charge, and some 15 men were arrested, marched with the wagon train to camp, reprimanded, and released. Id. Two of the prisoners reportedly died as a result of the attack, "the guard refusing or neglecting to keep the mob off." Letter from Rev. Thomas Williamson to S.B. Treat (Dec. 1, 1862), in ABCFM Papers, MHS. [FN108]. DANIEL BUCK, INDIAN OUTBREAKS 222-23 (1904) (published 1965). [FN109]. Letter from Col. Stephen Miller to Brig. Gen. Henry Sibley (Nov. 16, 1862), in Letters Rec'd, NARG 393 (Entry 346). [FN110]. Letter from Col. Stephen Miller to Brig. Gen. Henry Sibley (Nov. 22, 1862), in Letters Rec'd, NARG 393 (Entry 346); Letter from Col. Stephen Miller to Brig. Gen. Henry Sibley (Nov. 23, 1862), in id. [FN111]. Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Nov. 26, 1862), in Letters Rec'd, NARG 393 (Entry 346). 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 40 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN112]. Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 5, 1862), in Letters Rec'd, NARG 393 (Entry 346). [FN113]. Second letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 5, 1862), in Letters Rec'd, NARG 393 (Entry 346). Miller issued a proclamation commending the soldiers who helped to defeat the attackers. The proclamation acknowledged the soldiers' own desire for "the prompt and universal execution of the guilty savages," but cautioned agitators that the soldiers would do their duty "so long as the avenues of government point to the final and certain vindication of right and justice." Gen. Order No. 6 (Dec. 6, 1862), enclosed in Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 6, 1862), in Letters Rec'd, NARG 393 (Entry 346). Not all soldiers were so dutiful. There were several reports that members of the state militia were instrumental in urging the attack on the camp and that some had participated in it in civilian clothing, possibly using arms belonging to the state. See Letter from 1st Lt. E. Kennedy to Col. Stephen Miller, enclosed in Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 9, 1862), in Letters Rec'd, NARG 393 (Entry 346); Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 11, 1862), in id. Major Brant, of the militia, was reported to be one of the ringleaders; the night before the attack he had been heard to say, "Tonight I hold in my left hand a glass of lager Beer but tomorrow night will hold in my right hand an Indian scalp." Letter from 1st Lt. E. Kennedy to Col. Stephen Miller, supra. [FN114]. Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 9, 1862), in Letters Rec'd, NARG 393 (Entry 346); see also Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 7, 1862), in id. (stating that although prominent citizens promised support, they thought that "an attempt to remove the Indians below would be a proper excuse for respectable citizens to interfere"); Letter from Col. J. Baker to Brig. Gen. Henry Sibley (Dec. 7, 1862), in id. (reporting "a concerted movement for the forcible seizure of those prisoners" and a paper signed by 400 who pledged to murder the prisoners if the President refused to order their execution); Telegram from Brig. Gen. Henry Sibley to Brig. Gen. Elliott (Dec. 8, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343) (requesting that the President, should he decide to pardon the condemned, keep the decision secret so the military could prepare for the expected onslaught). [FN115]. Proclamation of Gov. Alexander Ramsey (Dec. 6, 1862), in Lincoln Papers, roll 45, Library of Congress [microfilm], quoted in D. NICHOLS, supra note 15, at 111. [FN116]. S. EXEC. DOC. NO. 7, 37th Cong., 3d Sess. 1 (1862). [FN117]. Id. at 1-2. [FN118]. Id. The distinction between "massacres" and "battles" was suggested to Lincoln earlier in communications from Reverend Riggs and Bishop Whipple. Riggs agreed that the execution of "the great majority" of the condemned was necessary but suggested distinguishing "grades of guilt from the man who butchered women and children to the man who simply followed with a party for the purpose of taking away spoils from the homes of settlers who had fled." Letter from Rev. Stephen Riggs to Pres. Abraham Lincoln (Nov. 17, 1862), in Lincoln Papers, roll 44, Library of Congress [microfilm], quoted in D. NICHOLS, supra note 15, at 103. Whipple offered a similar opinion: [T]here is a broad distinction be[t]ween the guilt of men who went through the country committing fiendish violence, massacreing [sic] women & babes with the spirit of demons & the guilt of timid men who received a share of the plunder or who under threat of death engaged in some one battle where hundreds were engaged. Letter from Bishop Henry Whipple to the Editor of the Republican Pioneer (undated, probably Nov. 1862), in Whipple Papers, MHS. [FN119]. S. EXEC. DOC. NO. 7, supra note 116, at 2. The prisoner recommended for clemency was Godfrey, also called Otakle, the first of the defendants to be tried. He was the "mulatto" mentioned in Sibley's order organizing the Commission. He had lived near the Redwood (Lower) Agency for five years and was married to a woman from Wabasha's band of Mdewakanton Dakota. I. HEARD, supra note 6, at 189, 191. According to Heard, the members of the court were prejudiced against Godfrey at the outset but were impressed by his presentation and inclined to believe his testimony might be accurate. Id. at 254. Ultimately the court found him not guilty of the original charges of murdering seven white men, women, and children, but convicted him of participating in the fighting and sentenced him to be hanged. The court's "sympathy" was reflected in a recommendation that the sentence be commuted to 10 years imprisonment because he had testified against many other prisoners. See Trial Transcripts, Case No. 1 (memorandum by the Commission to Brig. Gen. Henry Sibley, Nov. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 41 43 Stan. L. Rev. 13
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(Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 5, 1862); text accompanying notes 224-229 infra. [FN120]. Letter from Pres. Abraham Lincoln to Brig. Gen. Henry Sibley (Dec. 6, 1862), reprinted in 5 COLLECTED WORKS OF ABRAHAM LINCOLN, supra note 104, at 542-43. Sibley believed that the President would probably order further executions. In a letter to Miller, Sibley suggested that the order to retain the remaining prisoners should satisfy the people that the President did not intend to release any of them. "It is probable there will be an order issued for further executions," he wrote, "but of course that is but conjectural." Letter from Brig. Gen. Henry Sibley to Col. Stephen Miller (Dec. 15, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343). Sibley received some support for this notion from Assistant Secretary of the Interior John Usher, who wrote to Sibley on December 10 that "I do not understand from [the President] that he has determined not to approve of the finding of the Court in more of the cases, but he finds some difficulty in doing so, because of the meagre manner in which the evidence has been reported to him." Letter from Ass't Sec'y of the Interior John Usher to Brig. Gen. Henry Sibley (Dec. 10, 1862), in Letters Rec'd, NARG 393 (Entry 346). Olin expressed a similar sentiment in a letter to Miller three days later: e particular to represent the sentiments of the President so far as can be judged of his order, which is specific as to the safe custody, intimating thereby, that the punishment of the thirty-nine may be followed by a like disposition of all or a portion of the remainder, or the infliction of such other penalty as he deem it necessary to prescribe. Letter from Ass't Adj. Gen. Rollin Olin to Col. Stephen Miller (Dec. 18, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343). [FN121]. Telegram from Brig. Gen. Henry Sibley to Pres. Abraham Lincoln (Dec. 15, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343). [FN122]. Letter from Brig. Gen. Henry Sibley to Col. Stephen Miller (Dec. 15, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343). [FN123]. Letter from Rev. Augustin Ravoux to Brig. Gen. Henry Sibley (Dec. 17, 1862), in Letters Rec'd-Adj. Gen., NARG 94 (M619, roll 483); see also Bruce David Forbes, Evangelization and Acculturation Among the Santee Dakota Indians, 1834-1864, at 292 (1977) (unpublished doctoral dissertation, Princeton Theological Seminary). [FN124]. R. MEYER, supra note 6, at 130; M. SATTERLEE, supra note 6, at 17. One such error may have been the hanging of Chaska, who had done much to save the life of Sarah Wakefield, one of the white captives. The military officials claimed he was mistakenly hanged instead of Chaskadon (number 121), who was convicted of killing a pregnant woman. Wakefield believed that no mistake had been made: Chaska's protection of her led to stories that she had become his wife during the captivity, and she believed he was hanged to punish him for engaging in such a relationship with a white woman. Nick Coleman & John Camp, The Great Dakota Conflict, Part III, St. Paul Pioneer Press Dispatch, Oct. 11, 1987, at 5G, col. 3 (citing SARAH F. WAKEFIELD, SIX WEEKS IN THE SIOUX TEEPEES (1864)). Thomas Robertson reported that one 18- year-old without full mental faculties was mistakenly hanged instead of another man with the same name. Reminiscences of Thomas A. Robertson 32, in Sioux Uprising Collection, MHS. [FN125]. Letter from Brig. Gen. Henry Sibley to Bishop Henry Whipple (Mar. 11, 1863), in Whipple Papers, MHS. [FN126]. Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 22, 1862), in Letters Rec'd-Adj. Gen., NARG 94 (M619, roll 483); St. Paul Daily Press, Dec. 28, 1862, at 1, cols. 3-4. [FN127]. St. Paul Daily Press, Dec. 28, 1862, at 1, col. 4. [FN128]. Telegram from Brig. Gen. Henry Sibley to Pres. Abraham Lincoln (Dec. 22, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343); Letter from Brig. Gen. Henry Sibley to Col. Stephen Miller (Dec. 23, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343). [FN129]. Gen. Order No. 21, Dec. 24, 1862, reprinted in I. HEARD, supra note 6, at 277. [FN130]. Apparently the authorities feared the celebration was the prelude to an escape attempt and thereafter fastened the prisoners' chains to the floor. I. HEARD, supra note 6, at 284. A reporter present thought the condemned were probably singing death songs. Id. (quoting "written account" of Mr. Riggs). 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 42 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN131]. Id. at 284, 286. [FN132]. Id. at 285. [FN133]. Id. at 285-86. [FN134]. Id. at 286-87. [FN135]. "Rdainyanka" is the spelling usually appearing in written accounts, but "Hdainyanka" is a more correct spelling. Interview with Dr. Chris Cavender, Coordinator of the Dakota Studies Committee, in Minneapolis, Minn. (Sept. 29, 1989). [FN136]. I. HEARD, supra note 6, at 284. Hdainyanka's sense that he had been misled into surrendering was no doubt shared by Chief Wabasha III and the other chiefs. Before the cessation of fighting, Sibley had assured the chiefs that he sought to punish only those who had been involved in the "murder and outrages upon the white settlers," see text accompanying notes 51-52 supra, but the Commission tried and convicted many, like Hdainyanka, who had fought only in battles, see text accompanying notes 205-246 infra. Despite his sense of betrayal, Hdainyanka committed his family to Chief Wabasha's protection. The family ties between Hdainyanka and Wabasha only partially explain this action. Chief Wabasha had traditionally provided for and taken under his protection widows, orphans, and others in his band who required such support. His father and grandfather before him played the same role. Interview with Ernest Wabasha, hereditary Chief Wabasha VII, Lower Sioux Mdewakanton Community, in Morton, Minn. (July 23, 1989). [FN137]. I. HEARD, supra note 6, at 287, 288. [FN138]. Id. at 288-89. [FN139]. See, e.g., VINE DELORIA, JR., GOD IS RED 177-81 (1973). [FN140]. I. HEARD, supra note 6, at 289-90. [FN141]. Id. at 290. [FN142]. A St. Paul Press reporter viewing the execution stated that the men were singing a death song. I. HEARD, supra note 6, at 284, 290. A death song is a special song sung by a person facing certain death. It acts "as a benedictory statement by the individual to summarize and conclude his time of existence." V. DELORIA, supra note 139, at 180. For the Dakota, "it was the final affirmation of the meaning of individual existence, for it glorified the personal integrity of the person. It individualized his tribal membership in a manner bringing credit and meaning to his life as a tribal member." Id. At least one oral tradition suggests the song was a Christian hymn sung in the Dakota language. Rev. Sidney Byrd, Comments at the Year of Reconciliation: Symposium Commemorating the United States-Dakota Conflict of 1862, Humphrey Institute of Public Affairs, Univ. of Minn. (Nov. 13-14, 1987). [FN143]. I. HEARD, supra note 6, at 291. A song taunting the enemies who were about to kill the singer is one traditional form of death song. V. DELORIA, supra note 139, at 180. [FN144]. I. HEARD, supra note 6, at 291-95. On December 28, Miller reported that each night some of the bodies were being removed and left exposed, and that he daily reinterred them. Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 28, 1862), in Letters Rec'd, NARG 393 (Entry 346). In reply, Sibley ordered that "every possible measure be taken to prevent the removal, or exposure" of the bodies. Letter from Ass't Adj. Gen. Rollin Olin to Col. Stephen Miller (Dec. 31, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343). Apparently these efforts were not entirely successful. Later reports indicate that many of the bodies had been exhumed by local doctors, who used them as cadavers for research. K. CARLEY, supra note 6, at 75; R. MEYER, supra note 6, at 130. [FN145]. The winter had been hard on the prisoners at Mankato. Three of them died even before the executions. See Report of Major Joseph Brown (Dec. 31, 1862), in Letter from Col. Stephen Miller to Brig. Gen. Henry Sibley (Jan. 5, 1863), in 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 43 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Letters Rec'd, NARG 393 (Entry 343). At least six more died of consumption, pleurisy, and other ailments during the next six weeks. See Certification by Surgeon H. Seigneuret, in Indian Prisoners, NARG 94 (Entry 173). Meyer reports a total of 13 deaths. R. MEYER, supra note 6, at 136. Meanwhile, conditions were no better at Fort Snelling, where about 130 of 1,600 Dakota died. Id. at 136.
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[FN146]. See Letter from Maj. Joseph Brown to Brig. Gen. Henry Sibley (Nov. 16, 1862), in Indian Prisoners, NARG 94 (Entry 173) (reporting new evidence from Mazasha (Red Iron) that Wateanna participated in the second battle of New Ulm and the battle at the Big Woods); Letter from Col. William Crooks to Brig. Gen. Henry Sibley (Dec. 27, 1862), in id. (reporting new evidence from Michael Renville that Waundan had killed Dickinson at the battle of Birch Coolie and from Kanvisapa that Pijivota had killed nine persons near Beaver Creek); Letter from Col. Stephen Miller to Ass't Adj. Gen. Rollin Olin (Dec. 30, 1862), in id. (reporting new evidence from Mr. Covell that Toonkontoecheyayda had murdered a white woman in his presence); "Charges Against We-yu-ha-ma-ne" (Mar. 25, 1863), in id. (recorded statement of Hapan reporting that Weyuhamane had told her he killed four women and two children at Beaver Creek and that witnesses saw him kill another woman in her presence); see also D. NICHOLS, supra note 15, at 112 & n.43 (in January and February 1863, Sibley sent more evidence to Lincoln and sought the execution of 50 more prisoners). [FN147]. Letter from John Nicolay to Brig. Gen. Henry Sibley (Feb. 7, 1863), in Letters Rec'd, NARG 393 (Entry 346). [FN148]. Letter from Brig. Gen. Henry Sibley to Ass't Adj. Gen. R. Selfridge (Feb. 9, 1863), in Letters and Telegrams Sent, NARG 393 (Entry 343); Letter from Brig. Gen. Henry Sibley to Ass't Adj. Gen. R. Selfridge (Mar. 9, 1863), in id.; Letter from Brig. Gen. Henry Sibley to Ass't Sec'y of the Interior John Usher (Mar. 14, 1863), in id. [FN149]. Letter from Ass't Adj. Gen. Rollin Olin to Col. Stephen Miller (Mar. 25, 1863), in Letters and Telegrams Sent, NARG 393 (Entry 343); Letter from Ass't Adj. Gen. Rollin Olin to Col. Stephen Miller (Apr. 12, 1863), in id. Sibley was apparently concerned that the prisoners would attempt to escape when they were moved. He cautioned those transporting the Indians to "exercise the most rigid surveillance over the Indians by day as well as by night. The manacles of the Indians should be examined three or four times during the day, and as often during the night. They must never be left in the dark for a single moment." Letter from Brig. Gen. Henry Sibley to Capt. William Burt (Apr. 11, 1863), in id. The military was also concerned, once again, about violence from local mobs, so the plans to move the prisoners were kept secret until the last possible moment. R. MEYER, supra note 6, at 143. [FN150]. An Act for the Removal of the Sisseton, Wahpaton, Medawakanton, and Wahpakoota [Wahpekute] Bands of Sioux or Dakota Indians, and for the Disposition of their Lands in Minnesota and Dakota, 12 Stat. 819 (1863). As Meyer notes, this was the first time the United States had chosen to remove Indians unilaterally by statute, without even the semblance of agreement by treaty. R. MEYER, supra note 6, at 141. [FN151]. R. MEYER, supra note 6, at 142-44. A few women from the community accompanied the men to serve at the new prison camp. Id. at 143-44. [FN152]. The land chosen for the Crow Creek Reservation was completely unsuitable. In the three years the Dakota spent there, many people starved because of scarce game, unsuitable soil, extended drought, and alkaline water. See I. HEARD, supra note 6, at 295. Others, weakened by near starvation, succumbed to disease. Some died from exposure because the government failed to supply adequate clothing, blankets, and shelter. See R. MEYER, supra note 6, at 146-53. In the spring of 1866, because of continued desperate conditions, the government moved the residents of Crow Creek to a new reservation in Nebraska Territory near the Niobrara River. There they were reunited with newly pardoned family members who had survived imprisonment at Camp McClellan in Davenport. See id. at 155-57. In 1863 when the prisoners were moved to Iowa and the rest of the community was sent to Crow Creek, a few Dakota were allowed to stay in Minnesota. Those remaining included mixed-blood scouts and their families, individuals who had testified against their fellow countrymen in the trials, and people who had never moved onto the reservations and were not involved in the war. See id. at 258-59. Over a period of several years many of the exiled Dakota gradually returned to their Minnesota homeland. Id. at 273. Some fled the horrors of Crow Creek almost immediately. Id. at 148. Travel was difficult. By the summer of 1863, Minnesota had a $200 bounty on Dakota scalps which, combined with revenge motives, made Dakota travel in Minnesota extremely dangerous. Dakota people who wished to return home to one of a few remaining safe havens had to travel by night and hide in ditches under cover during the day. Interview with Mrs. Vernell Wabasha, Lower Sioux Mdewakanton Community, in Morton, Minn. (July 23, 1989). 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 44 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN153]. Gen. Order No. 120, May 11, 1863, in Military Orders, NARG 94; Letter from Brig. Gen. Henry Sibley to Pres. Abraham Lincoln (Jan. 26, 1863), accompanied by endorsements of J. Adv. Gen. Joseph Holt (Feb. 16, 1863) and pardon by Pres. Abraham Lincoln (May 11, 1863), in Letters and Telegrams Sent, NARG 393 (Entry 343) (also available in Court Martial Cases, NARG 153, File NN3132). [FN154]. Gen. Order No. 120, May 11, 1863, in Military Orders, NARG 94; see Trial Transcripts, Case No. 105; Annotation of Recommendation of J. Adv. Gen. Joseph Holt, in Court Martial Cases, NARG 153, File NN3132. The evidence at trial consisted solely of the defendant's statement that he had fired one shot at the battle of Fort Ridgely and two shots at the battle of New Ulm. Yet nothing distinguishes this case from many others that resulted in convictions and death sentences. See, e.g., Trial Transcripts, Case No. 106 (only evidence was defendant's testimony that he fired one shot at the first battle of Fort Ridgely and two shots at Birch Coulee); Case No. 111 (only evidence was defendant's testimony that he took a few turnips at the Big Woods); Case No. 190 (only evidence was defendant's testimony that he fired two shots at the second battle of Fort Ridgely); Case No. 191 (only evidence was defendant's testimony that he fired one shot at the battle of New Ulm). There is no indication why Toonwanwakinyachatka was singled out for a pardon at this early date. [FN155]. Letter from Rev. Stephen Riggs to Brig. Gen. Henry Sibley (Apr. 7, 1864), in Court Martial Cases, NARG 153, File NN3132. Riggs requested pardons for Eyojanjan (No. 237), Tahohpewakan (No. 238), Tapeytatanka (No. 95), and Weeyacha (No. 102). Eyojanjan and Tahohpewakan had been with Narcisse Freniere (No. 236)--who was acquitted--in a group "not shown to have been near to where any white man was killed, or to have participated at all in the massacres." Id. Tapeytatanka had testified at his trial that he had saved some escaping missionaries by preventing a group of Dakota from following their trail. The Commission had not believed him and had sentenced him to hang. Riggs confirmed that Tapeytatanka had told the truth. Id. Weeyooha had been acquitted by the Commission and released but had afterwards been condemned on evidence which Riggs said appeared "to have been vindictive in its character." Id. [FN156]. Notation by Brig. Gen. Henry Sibley (Apr. 8, 1864), in Court Martial Cases, NARG 153, File NN3132. [FN157]. Notation by Pres. Abraham Lincoln (Apr. 19, 1864), in Court Martial Cases, NARG 153, File NN3132. [FN158]. Order for Pardon of Sioux Indians, Apr. 30, 1864, reprinted in 7 COLLECTED WORKS OF ABRAHAM LINCOLN, supra note 104, at 325-26. Despite the official pardons, these and other pardoned Dakota had difficulty returning to their families. Once released, the men apparently were not eligible to receive further supplies from the Army and had no way to support themselves locally or to travel to reunite with their families. If they could somehow provision themselves for that journey, they were then in danger of being killed on the trip. Three prisoners were held as long as eight months after being pardoned because no provision was made for them once released. Letter from Rev. Thomas Williamson to Brig. Gen. Henry Sibley (Dec. 15, 1864), in Indian Prisoners, NARG 94 (Entry 173); Letter from Capt. George Judd to Brig. Gen. Henry Sibley (Aug. 27, 1864), in id. [FN159]. See text accompanying note 128 supra. The spellings of the names differed, but the release order probably referred to the same individual. [FN160]. On October 26, 1864, President Lincoln met with one George Dow, who must have inquired about Wambditanka. Lincoln wrote, in pencil, on the back of Dow's letter of introduction, "Let the Indian 'Big Eagle' now confined at Davenport, Iowa be discharged at once." When Dow presented this pardon to the commander of the camp in Davenport, he and the order were treated "with much rudeness and contempt." Letter from George Dow to Maj. Gen. John Pope (Oct. 31, 1864), in Indian Prisoners, NARG 94 (Entry 173). [FN161]. See Letter from Rev. Thomas Williamson to Brig. Gen. Henry Sibley (Dec. 15, 1864), in Indian Prisoners, NARG 94 (Entry 173).
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[FN162]. Letter from Congressman H. Price to Sec'y of War Edwin Stanton (July 8, 1865), in Letters Rec'd-Adj. Gen., NARG 94 (M619, roll 483). [FN163]. Letter from J. Adv. Gen. Joseph Holt to Sec'y of War Edwin Stanton (Sept. 22, 1865), in Court Martial Cases, NARG 153, File NN3132 (also available in Letters Rec'd-Adj. Gen., NARG 94 (M619)). 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 45 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN164]. Gen. Ct. Martial Order No. 86, Mar. 22, 1866, in Military Orders, NARG 94. [FN165]. See note 152 supra. [FN166]. See generally G. ANDERSON, supra note 6, at 164-77. Taoyateduta and 16 of his followers returned to Minnesota in June 1863. K. CARLEY, supra note 6, at 83-84; M. SATTERLEE, supra note 6, at 81. Taoyateduta told several people he was returning to kill more Americans but told his son that he was returning to steal horses that they needed to maintain their existence on the plains. G. ANDERSON, supra note 6, at 176-77. [FN167]. The desire for revenge and a bounty on Dakota scalps motivated violence against the Dakota. See note 152 supra. [FN168]. Transcript of the Commission Proceedings in Trial of Wo-we-na-pa, in Court Martial Cases, NARG 153, File NN3132 (also available in Sioux War Trials, MHS P1423). [FN169]. Spec. Order No. 300, Aug. 22, 1863, in Court Martial Cases, NARG 153, File NN3132. The order specified trial of three prisoners in addition to Wowinape, but I have found a record only of Wowinape's trial. [FN170]. Transcript of the Commission Proceedings in Trial of Wo-we-na-pa, in Court Martial Cases, NARG 153, File NN3132. [FN171]. Among the witnesses was David Faribault, Jr., who had been convicted in the first trials and had only recently been pardoned by the President. See text accompanying note 153 supra. During Wowinape's trial, Faribault was asked by a member of the Commission where he had been during the battle of Wood Lake; had Faribault answered, he might have incriminated himself. The transcript reflects that the Commission then went into private session and determined that the question should not be answered. See Transcript of the Commission Proceedings in the Trial of Wo-we-na-pa, in Court Martial Cases, NARG 153, File NN3132. [FN172]. Transcript of the Commission Proceedings in the Trial of Wo-we-na-pa, in Court Martial Cases, NARG 153, File NN3132. [FN173]. The Commission recessed from August 25, 1863 to September 23, 1863 to move its proceedings from Fort Abercrombie to Fort Snelling in order to hear from witnesses more readily available there. Spec. Order No. 303, Aug. 25, 1863, in Court Martial Cases, NARG 153, File NN3132. Nathan Lamson, one of the settlers who had discovered Wowinape and Taoyateduta, served as a witness against Wowinape. Lieutenant Colonel Jennison had previously written to Sibley suggesting that the Commission hear Lamson's testimony because, according to Jennison, Lamson claimed that Wowinape had shot at him just as he shot at Taoyateduta. Jennison suggested that this proved "the 'boy' to be no such innocent lad as might otherwise be believed." Letter from Lt. Col. Samuel Jennison to Brig. Gen. Henry Sibley (Sept. 8, 1863), in Letters Rec'd, NARG 393 (Entry 346). Lamson ultimately testified only that he thought that all the shots fired at him could not have been fired by one man, although Wowinape, in his statement, had claimed that his father was the only one who had fired. The adjournment also permitted testimony from mixed-bloods who were serving as scouts for Sibley's 1863 expedition against the Dakota who had fled north after the war. See Letter from 1st Lt. and J. Adv. Frank Pratt to Lt. Col. Samuel Jennison, Pres. of the Military Comm'n (Aug. 25, 1863), in Court Martial Cases, NARG 153, File NN3132. [FN174]. See Endorsements to Wowinape Trial Transcript (Oct. 1, 1863) (Sibley's approval), in Court Martial Cases, NARG 153, File NN3132. [FN175]. See id. at Oct. 8, 1863 (Pope's referral to the President); id. at Oct. 11, 1863 (forwarded by General-in-Chief Halleck to Secretary of War Stanton); id. at Oct. 12, 1863 (referred to Judge Advocate General Holt by Secretary of War); id. at Oct. 13, 1863 (returned to Secretary of War with Holt's remarks on requiring confirmation); id. at Oct. 16, 1863 (returned to General Pope by the Secretary of War with remarks of Judge Advocate General). [FN176]. See text accompanying note 60 supra. [FN177]. Letter from Maj. Gen. John Pope to J. Adv. Gen. Joseph Holt (Oct. 29, 1863), in Court Martial Cases, NARG 153, 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 46 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. File NN3132. Pope developed greater sympathy for the Indians as he became more familiar with their condition and treatment, and he advocated substantial reforms in federal policy towards them. R. ELLIS, supra note 53, at 39-44. Perhaps this new-found perspective sensitized him to the plight of the Dakota by the time he was asked to review the trial of Wowinape, though it did not prevent him from approving the later trials of Wakanozanzan and Shakopee. See text accompanying notes 198- 200 infra. [FN178]. Act of May 29, 1830, ch. 179, § 1, 4 Stat. 417. [FN179]. 1 W. WINTHROP, MILITARY LAW 68-69 (1886). [FN180]. Id. at 67 & n.4. [FN181]. Letter from Maj. Gen. John Pope to J. Adv. Gen. Joseph Holt (Oct. 29, 1863), in Court Martial Cases, NARG 153, File NN3132. [FN182]. J. Adv. Gen. Joseph Holt to Maj. Gen. John Pope (Nov. 3, 1863), inscribed on back of Letter from Maj. Gen. John Pope to J. Adv. Gen. Joseph Holt (Oct. 29, 1863), supra note 177. Holt agreed that the Articles of War did not, by their own terms, apply to the trial of Wowinape but that "the reasons for the law" would nonetheless support its applicability. He concluded that "sufficient ground is established to justify a disapproval of the proceedings." Id. [FN183]. Letter from Maj. Gen. John Pope to J. Adv. Gen. Joseph Holt (Oct. 29, 1863), supra note 177. [FN184]. Letter from Brig. Gen. Henry Sibley to J. Adv. Gen. Joseph Holt (Dec. 7, 1863), in Sioux War Trials, MHS P1423. [FN185]. Id. [FN186]. See Endorsements to Wowinape Trial Transcript (Nov. 13, 1863), in Court Martial Cases, NARG 153, File NN3132 (also available in Sioux War Trials, MHS P1423). [FN187]. See 2 W. FOLWELL, supra note 6, at 293, 443-44. The British soldiers acted at the behest of Major Edwin Hatch, who had been authorized, over the objections of both Pope and Sibley, to raise an independent battalion to fight the remaining Dakota who had fled north and had engaged in skirmishes with American settlers. Hatch had no authority to cross onto Canadian soil to capture the two Dakota, so he resorted to soliciting the unofficial aid of the British soldiers. Id. 290, 293, 443-44. [FN188]. Folwell suggests that the delay in convening the Commission was due to the absence of many of Sibley's troops and the consequent difficulty in finding sufficient numbers of commissioned officers to serve on the panel. Id. at 445. [FN189]. Transcript of the Commission Proceeding in the Trial of Tahtaechashnahmanne, in Court Martial Cases, NARG 153, File NN3132. The transcript refers to the defendant as "Tahta-e-chash-nah-manne alias Medicine Bottle." It is unclear why the Dakota name used in the transcript differs from the one by which the defendant was generally known (Wakanozanzan). [FN190]. See generally Part IV infra. [FN191]. Transcript of the Commission Proceeding in the Trial of Tahtaechashnahmanne, in Court Martial Cases, NARG 153, File NN3132; Letter from J. Adv. Morrison to Ass't Adj. Gen. Rollin Olin (Nov. 25, 1864), in Indian Prisoners, NARG 94 (Entry 173). [FN192]. Transcript of the Commission Proceeding in the Trial of Tahtaechashnahmanne, in Court Martial Cases, NARG 153, File NN3132. A member of the Commission demonstrated a special concern for the status of the Dakota by asking one Dakota witness if Wakanozanzan and his band were under the protection of the United States. The witness acknowledged that they were "annuity Indians" and under such protection. "Annuity Indian" referred to those Dakota who received annual payments pursuant to the Treaties of 1851 and 1858, in which the Sisseton, Wahpeton, Wahpekute, and Mdewankanton sold large tracts of land in exchange for lump sum and annual payments to the bands, to be distributed to individual tribe 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 47 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. members. See text following note 5 supra. [FN193]. Transcript of the Commission Proceeding in the Trial of Tahtaechashnahmanne, in Court Martial Cases, NARG 153, File NN3132. Gorman was better known than Davis, having served as territorial governor of Minnesota from 1853 to 1857 and as a delegate to the state constitutional convention. He had dealt with the Dakota earlier when they were removed to the Redwood and Yellow Medicine Reservations after the treaty of 1851. Baker, supra note 61, at 51-53; Life and Public Services of Hon. Willis A. Gorman, in 3 COLLECTIONS OF THE MINNESOTA HISTORICAL SOCIETY 314, 318-21 (1880). Gorman's prior experiences suggest some of his motivations in assisting both Wakanozanzan and Shakopee, an act probably unpopular in the Minnesota community. While serving as commander of a military division in Arkansas during the Civil War, Gorman established "a sort of court of civil jurisdiction, which was ordered to proceed according to . . . the common law," apparently in an effort to subordinate the military to the civil law. Baker, supra note 61, at 57. At the time of Gorman's death, Davis noted in his eulogy that Gorman had always favored civilian law over military power. Life and Public Services of Hon. Willis A. Gorman, supra, at 329. In representing Wakanozanzan and Shakopee, Gorman apparently was continuing his efforts to subordinate military authority to civil law. [FN194]. Transcript of the Commission Proceeding in the Trial of Tahtaechashnahmanne, in Court Martial Cases, NARG 153, File NN3132. [FN195]. Transcript of the Commission Proceeding in the Trial of Shakopee, in Court Martial Cases, NARG 153, File NN3132.
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[FN196]. Id. The verdict also struck from the charges and specifications the allegation that Shakopee had acted "in company with other Indians of the same tribe," the indication of the counties in which certain acts had occurred, the statement that one family Shakopee killed had "three or more" women and children, and the description that Shakopee's participation in the "murders, massacres and other outrages" had been "general." Id. No explanation was given for the changes. [FN197]. Letter from Brig. Gen. Henry Sibley to J. Adv. Gen. Joseph Holt (Dec. 14, 1864), in Court Martial Cases, NARG 153, File NN3132 (also available in Sioux War Trials, MHS P1423). [FN198]. Letter from J. Adv. Gen. Joseph Holt to Maj. Gen. John Pope (Dec. 27, 1864), in Court Martial Cases, NARG 153, File NN3132; see text accompanying note 175 supra. [FN199]. Endorsement to Transcript of the Commission Proceeding in the Trial of Shakopee, in Court Martial Cases, NARG 153, File NN3132. [FN200]. See text accompanying notes 176-183 supra. The record contains no explanation of the different results and no indication that Pope or his superiors even detected the parallel. Perhaps sympathy for the position of the 16-year-old Wowinape, who had done no more than fight in battles, may have been a factor leading to Pope's disapproval on technical grounds; no such sympathy would have attached to those seen as leaders of the war. [FN201]. Letter from J. Adv. Gen. Joseph Holt to Pres. Abraham Lincoln (Mar. 25, 1865), in Court Martial Cases, NARG 153, File NN3132. With respect to Shakopee, Holt noted particularly that "the prisoner is shown to have been one of a tribe of Indians receiving an annuity from the government of the United States," id., again obliquely raising the issue of sovereignty status. [FN202]. Letter from Sec'y of the Interior James Harlan to Sec'y of War Edwin Stanton (Oct. 10, 1865), in Court Martial Cases, NARG 153, File NN3132; Letter from Pres. Andrew Johnson to Sec'y of War Edwin Stanton (Oct. 10, 1865), in id. [FN203]. Letter from J. Adv. Gen. Joseph Holt to Sec'y of War Edwin Stanton (Nov. 7, 1865), in Court Martial Cases, NARG 153, File NN3132 (quoting Letter from Brig. Gen. Henry Sibley to J. Adv. Gen. Joseph Holt (Dec. 14, 1864), supra note 197). [FN204]. Letter from Ass't Adj. Gen. H. Clay Wood to Sec'y of War Edwin Stanton (Nov. 20, 1865), in Court Martial Cases, NARG 153, File NN3132. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 48 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN205]. See, e.g., G. ANDERSON, supra note 6, at 164-65; K. CARLEY, supra note 6, at 69; M. SATTERLEE, supra note 6, at 17, 79. [FN206]. I. HEARD, supra note 6, at 254-55. Although the first few cases appeared to take longer than many of those that followed, one could hardly call them "elaborate." The length of the trial seemed to depend more upon the length of the statement made by the defendant than on the nature of the other evidence presented. [FN207]. St. Paul Daily Press, Nov. 29, 1862, at 1, col. 4. [FN208]. Letter from Bishop Henry Whipple to Ass't Sec'y of the Interior John Usher (Apr. 21, 1863), in Whipple Papers, MHS. [FN209]. Letter from Rev. John Williamson to S.B. Treat (Nov. 5, 1862), in ABCFM Papers, MHS. [FN210]. See, e.g., Trial Transcripts, Case No. 2 (Tehehdonecha), Case No. 3 (Wechankwashtodopee). [FN211]. See, e.g., Trial Transcripts, Case No. 1 (Godfrey). [FN212]. Hearsay was generally excluded from use in courts-martial, but voluntary confessions were admissible. 1 W. WINTHROP, supra note 179, at 459, 463. [FN213]. See, e.g., St. Paul Pioneer, Oct. 14, 1865, at 2, col. 1 (suggesting that Shakopee had a "motive . . . for . . . telling an untruth" in saying that he had killed white settlers in response to Taoyateduta's question "[W]here have you been all day?"); Trial Transcripts, Case No. 1 (Godfrey) (defendant testified that he was told that those who did not go out on raids would be killed), Case No. 3 (Wechankwashtodopee) (defendant said he had "snapped gun" at victim because another asked if he was afraid), Case No. 6 (Hinhanshoonkoyagmane) (defendant testified that he was told that he would be killed if he didn't go to battle), Case No. 8 (Charles Crawford) (defendant testified that Taoyateduta said that every mixed-blood and Indian must go to battle or be killed). One example of the pressure to embellish exploits was recounted by Thomas A. Robertson (Case No. 135), a mixed-blood who was tried and acquitted on the charge of killing a man at Fort Ridgely. Robertson reported later that he was instructed by a member of the soldiers' lodge to shoot a burning arrow in order to start a fire and felt he must comply. A friend, apparently seeking to protect him, "nudged me and pointing out of the window said, 'There goes a man[,] shoot and I will say you killed him."' Robertson fired, and the friend declared "'He shot him down. He shot him down."' Reminiscences of Thomas A. Robertson, supra note 124, at 25. [FN214]. 2 GEORGE BIRD GRINNELL, THE CHEYENNE INDIANS 29-38 (1923); M. SATTERLEE, supra note 6, at 118-19; ROBERT F. SPENCER, JESSE D. JENNINGS, CHARLES E. DIBBLE, ELDEN JOHNSON, ARDEN R. KING, THEODORE STERN, KENNETH STEWART & WILLIAM J. WALLIS, THE NATIVE AMERICANS 346 (2d ed. 1977). [FN215]. See, e.g., Trial Transcripts, Case No. 383 (Wakinyanna) (witness testified that defendant said he killed two boys with his war lance in house near Traveller's Home; defendant testified only that he might have "done it"-- he touched one with his "flute" but did not use his lance), Case No. 333 (Hataninkoo) (witness testified that the defendant said he killed someone with an axe; defendant testified that others shot the man and he struck the victim only after he was dead). [FN216]. SAMUEL W. POND, THE DAKOTA OR SIOUX IN MINNESOTA AS THEY WERE IN 1834, at 128 (1986); see also 2 G. GRINNELL, supra note 214, at 30 (when an enemy was killed, many would try to be the first to touch him, and those following would also strike the body). [FN217]. I. HEARD, supra note 6, at 189. Godfrey, whose Dakota name, Otakle, was reported to mean "he who kills many," testified that he had been given that name because many people were killed in a house that he entered first, but he had only struck one man on his shoulder with the back of a hatchet. See Trial Transcripts, Case No. 1. [FN218]. Reverend Stephen Riggs reported that most of the condemned prisoners denied committing acts warranting a death sentence. "But their ideas of this are very strange," he said. "One man, who acknowledges he helped kill a number says if he had killed one all himself he would think it right that he should die." Letter from Rev. Stephen R. Riggs to Mary Ann Riggs (Dec. 23, 1862), in Riggs Letters, WPA-Chippewa County Project, MHS. One wonders if those "strange ideas" reflected the 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 49 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. distinction between counting coup and actual killing. [FN219]. See generally WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 622-41 (1986). [FN220]. See Part IV infra. [FN221]. See W. LAFAVE & A. SCOTT, supra note 219, at 632-37. [FN222]. Letter from Brig. Gen. Henry Sibley to Ass't Sec'y of the Interior John P. Usher (Dec. 19, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343). Sibley went on to note that "it would have been impossible to devote" sufficient time to ascertain the degree of guilt in each of so many cases. Id. [FN223]. See, e.g., Trial Transcripts, Case No. 24 (defendant testified that he saved Miss Williams' life; corroborated by witness), Case No. 356 (defendant testified that he saved the lives of many women because they had treated him well; witness testified that defendant saved a woman, two children, and oxen), Case No. 359 (defendant testified that he saved a woman's life; corroborated by witness). All three of these defendants were sentenced to hang, and defendants numbered 24 and 359 were among the 38 executed on December 26, 1862. [FN224]. See text accompanying note 56 supra. Godfrey was the son of a French Canadian and a black woman who had been a servant in the family of Alex Bailly, a fur trader. He was raised in the Bailly family. I. HEARD, supra note 6, at 191; THROUGH DAKOTA EYES, supra note 6, at 85. [FN225]. See Trial Transcripts, Case Nos. 10, 22, 35, 115, 210, 254, 327, 359, 377, 382, 383. [FN226]. Letter from Rev. Stephen Riggs to Mary Ann Riggs (Oct. 20, 1862), in Riggs Letters, WPA-Chippewa County Project, MHS.
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[FN227]. I. HEARD, supra note 6, at 254 (emphasis in original). The absence of eyewitness accounts of killing did not prevent the court from convicting and ordering the execution of many other prisoners based solely on testimony that witnesses had overheard the defendants boast of killings or participation in battles. See text accompanying note 211 supra. [FN228]. Trial Transcripts, Case No. 1, Memorandum by the Court to Brig. Gen. Henry Sibley (Nov. 5, 1862). [FN229]. See S. EXEC. DOC. NO. 7, supra note 116, at 2. [FN230]. See, e.g., Trial Transcripts, Case Nos. 178, 279, 333, 342. [FN231]. Trial Transcripts, Case No. 135. [FN232]. Trial Transcripts, Case Nos. 50, 84, 102, 103, 157, 158, 169, 220. [FN233]. Trial Transcripts, Case Nos. 8, 136. [FN234]. Trial Transcripts, Case Nos. 278, 298, 309, 310, 313, 377, 378. [FN235]. Trial Transcripts, Case Nos. 181, 277. Both of Wakanhdehota's trials appear to have occurred before he began to testify, but five of the trials in which he testified were held on the same day as his second trial, in which the Commission imposed a lesser sentence. [FN236]. Trial Transcripts, Case Nos. 168, 173, 194, 195, 246, 334. Only one of these defendants was found guilty. [FN237]. Trial Transcripts, Case Nos. 176, 236, 237, 238. [FN238]. Trial Transcripts, Case Nos. 159, 160, 174. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 50 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN239]. Trial Transcripts, Case Nos. 9, 24, 115. [FN240]. Trial Transcripts, Case No. 13 (Henry Millard), Case No. 115 (Baptiste Campbell). [FN241]. Trial Transcripts, Case No. 282 (Wechahpenompa), Case No. 139 (Louis LaBelle), Case No. 131 (Louis Freniere), Case No. 4 (Tazoo), Case No. 115 (Henry Millard), Case No. 138 (Baptiste Campbell). [FN242]. Letter from Rev. Thomas Williamson to S.B. Treat (Nov. 21, 1862), in ABCFM Papers, MHS. [FN243]. Both David Faribault, Sr. and David Faribault, Jr. testified at the trials. The transcripts frequently do not specify which man testified, but "David Faribault" is listed as a witness in 84 of the trials. See Trial Transcripts passim. [FN244]. See text accompanying note 118 supra. [FN245]. See K. CARLEY, supra note 6, at 61, 64, 81; M. SATTERLEE, supra note 6, at 75, 77. [FN246]. St. Paul Pioneer, Dec. 14, 1862, at 4, col. 3. Racism alone could probably account for the distrust of the full-bloods. In addition, the Commission members would have had more natural affinity for the mixed-bloods, who had usually been raised and educated in the white community. [FN247]. Affidavit of David Faribault, Sr., in Court Martial Cases, NARG 153, File NN3132 (writing of his son's statements to him); see also Affidavit of Lt. Col. L.H. Fowler, id. (supporting Faribault's request for pardon). Faribault's belief is consistent with what Sibley may have first set out to do when he convened the Commission. See text accompanying notes 52- 55 supra. [FN248]. If the defendants did not know they were on trial, they might also have been unaware of just how much they were at the mercy of the Commission. Such a conclusion may lessen the strength of my suggestion that the testimony of those defendants who cooperated was suspect. See text accompanying notes 224-243 supra. On the other hand, the defendants probably know that they were likely to be punished for their actions, especially as the trials progressed; they simply did not know the extent of the penalty being considered or that punishment was being determined by this Commission. [FN249]. See text accompanying notes 123-126 supra. [FN250]. Letter from Rev. John Williamson to S.B. Treat (Nov. 5, 1862), in ABCFM Papers, MHS. [FN251]. See 1 W. WINTHROP, supra note 179, at 220; WILLIAM C. DE HART, OBSERVATIONS ON MILITARY LAW, AND THE CONSTITUTION AND PRACTICE OF COURTS MARTIAL 132 (1846 & photo. reprint 1973 of 1859 printing). [FN252]. 1 W. WINTHROP, supra note 179, at 220; W. DE HART, supra note 251, at 132. [FN253]. See note 87 supra. [FN254]. Mankato Rec., Nov. 15, 1862, at 2, col. 1. [FN255]. See Letter from J. Adv. J. Morrison to Ass't Adj. Gen. Rollin Olin (Nov. 25, 1864), in Indian Prisoners, NARG 94 (Entry 173). [FN256]. 1 W. WINTHROP, supra note 179, at 266-70. [FN257]. Letter from Ass't Sec'y of the Interior John Usher to Brig. Gen. Henry Sibley (Dec. 10, 1862), in Letters Rec'd, NARG 393 (Entry 346). [FN258]. Letter from Rev. Thomas Williamson to Rev. Stephen Riggs (Nov. 24, 1862), in Riggs Papers, MHS; see also Letter from Rev. Thomas Williamson to Rev. Stephen Riggs (Nov. 17, 1862), in Riggs Papers, MHS (asking Riggs to "look 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 51 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. over" some of the testimony with General Pope "and point out to him its utter inconclusiveness"); Letter from Rev. Thomas Williamson to S.B. Treat (Nov. 21, 1862), in ABCFM Papers, MHS: I doubt whether the whole state of Minnesota can furnish 12 men competent to sit as jurors in their trial. . . . From our Governor down to the lowest rabble there is a general belief that all the prisoners are guilty, and demand that whether guilty or not they be put to death as a sacrifice to the souls of our murdered fellow citizens. [FN259]. Letter from Brig. Gen. Henry Sibley to Ass't Sec'y of the Interior John Usher (Dec. 19, 1862), in Letters and Telegrams Sent, NARG 393 (Entry 343). As I describe below, see Part V infra, the evidence did not establish the charge that many were "concerned in the violation of white women and the murder of children." Perhaps Sibley referred not to the charges proved, but more generally to what he was sure the convicted had done during the war. [FN260]. Letter from Brig. Gen. Henry Sibley to Bishop Henry Whipple (Dec. 7, 1862), in Whipple Papers, MHS. [FN261]. Act of Apr. 10, 1806, ch. 20, § 1, arts. 66, 67, 2 Stat. 359, 367. [FN262]. See text accompanying note 110 supra. [FN263]. Letter from Rev. Thomas Williamson to Rev. Stephen Riggs (Oct. 25, 1862), in Riggs Papers, MHS. [FN264]. All five Commission members had been at the most recent Battle of Wood Lake, and three of them were at the attack at Birch Coulee, where loss of life on the American side had been particularly heavy. Approximately 200 Dakota soldiers surrounded the American encampment at Birch Coulee and kept it under siege for 31 hours until Colonel Sibley arrived with his troops. The Americans had used their bayonets to dig shallow trenches for protection and were without food and water during most of the siege. When Sibley arrived "he found a 'sickening sight.' Thirteen men and no less than ninety horses lay dead, forty-seven men were severely wounded, and many more were less seriously hurt. . . . The stench of decaying bodies was overwhelming. The survivors were weak and exhausted . . . . " K. CARLEY, supra note 6, at 44. Although military commissions were often composed of individuals who had more of a stake in the outcome of the trial than typical civilian jurors, the members were rarely as personally involved in the events leading to the charges being tried as were the Commission members here. See notes 297-303, 311-319, & 324-334 infra and accompanying texts. [FN265]. Letter from Bishop Henry Whipple to Ass't Sec'y of the Interior John Usher (Apr. 21, 1863), in Whipple Papers, MHS (quoting Marshall's statement). [FN266]. Letter from Rev. John Williamson to S.B. Treat (Nov. 5, 1862), in ABCFM Papers, MHS. [FN267]. St. Paul Pioneer, supra note 246. [FN268]. St. Paul Pioneer, Dec. 11, 1862, at 1, col. 4 (letter from "H."-- presumably Isaac Heard. The writer identified himself as having been present at the trials and gave details similar to those published in I. HEARD, supra note 6). [FN269]. Although the Articles of War in 1862 nowhere mentioned military commissions or the procedures to be followed in establishing them, the Army had determined, at least by January 1, 1862, that military commissions were to be "ordered by the same authority, be constituted in a similar manner, and their proceedings be conducted according to the same general rules as courts-martial, in order to prevent abuses which might otherwise arise." See, e.g., Gen. Order No. 1, HQ, Dept. of the Missouri, Jan. 1, 1862, reprinted in 8 WAR OF THE REBELLION, SER. I, supra note 52, at 476. Similar orders were issued in other Departments. See 2 W. WINTHROP, supra note 179, at 74.
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[FN270]. See text accompanying notes 175-183 supra. [FN271]. 1 W. WINTHROP, supra note 179, at 68-69. As described earlier, the officer is an "accuser" if he either originates the charge or adopts and becomes responsible for it, unless he is acting solely in an official capacity by ordering an investigation after facts warranting such an investigation are brought to his attention. [FN272]. See text accompanying notes 181-183 supra. 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 52 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN273]. Letter from Brig. Gen. Henry Sibley to J. Adv. Gen. Joseph Holt (Dec. 7, 1863), in Sioux War Trials, MHS P1423. [FN274]. 1 W. WINTHROP, supra note 179, at 69. [FN275]. See text accompanying note 185 supra. [FN276]. See note 269 supra. [FN277]. In at least one other instance, in 1866, the Army agreed that article 65 should apply to trial by military commission. 1 W. WINTHROP, supra note 179, at 67 n.3. Congress, too, thought that the same protection against bias or the appearance of bias should extend beyond inferior officers accused by their superiors. In 1884, Congress amended article 65 to forbid an officer from ordering a commission to try "any officer under his command." Act of July 5, 1884, ch. 224, 23 Stat. 121. In 1913, it was amended once again to forbid an officer to be both accuser and convener of a trial of any person. Act of Mar. 2, 1913, ch. 93, 37 Stat. 722. [FN278]. Letter from Brig. Gen. Henry Sibley to Mrs. Henry Sibley (Aug. 24, 1862), in Sibley Papers, roll 11, frame 664, MHS [microfilm]. [FN279]. See text accompanying notes 74-76 supra; see also Letter from Brig. Gen. Henry Sibley to Mrs. Henry Sibley (Oct. 17, 1862), in Sibley Papers, roll 11, frame 674, MHS [microfilm] (describing the surrender of thirteen lodges and noting that there were "twenty two men, most of them desperate rascals who . . . [would] be hung"). [FN280]. Letter from Brig. Gen. Henry Sibley to Maj. Gen. John Pope (Oct. 7, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 717. [FN281]. Letter from Brig. Gen. Henry Sibley to Bishop Henry Whipple (Dec. 7, 1862), in Whipple Papers, MHS. Sending the proceedings back for further testimony violated military procedures, see 1 W. WINTHROP, supra note 179, at 645, as well as the fifth amendment prohibition against double jeopardy, U.S. Const. amend. V. [FN282]. See Letter from Brig. Gen. Henry Sibley to Bishop Henry Whipple (Dec. 7, 1862), in Whipple Papers, MHS. The case is that of the brother of Other Day. Sibley also displayed some sensitivity towards fairness and due process when he informed Lincoln that Tatimima had been convicted on incorrect testimony, see text accompanying note 128 supra, and when he supported pardons for a few of the convicted in the years following the executions, see text accompanying note 153 supra. Nonetheless, Sibley's correspondence and public statements leave the firm impression that he had largely prejudged the defendants. [FN283]. Letter from Brig. Gen. Henry Sibley to Bishop Henry Whipple (Mar. 11, 1863), in Whipple Papers, MHS. [FN284]. See 1 W. WINTHROP, supra note 179, at 67 n.3. [FN285]. Act of Apr. 10, 1806, ch. 20, art. 65, 2 Stat. 359, 367. Inferior officers commanding a regiment, corps, garrison, fort, or barracks could appoint a court-martial for non-capital offenses, but could impose at most a fine of one month's pay or imprisonment for one month. Id. arts. 66-67. [FN286]. Act of Dec. 24, 1861, ch. 3, 12 Stat. 330. The Act provided that the general commanding the army in the field would have to confirm any death sentence. It further provided that if the division or brigade commander was the accuser or prosecutor, the next higher commander would convene the court-martial. Id. [FN287]. See 1 W. WINTHROP, supra note 179, at 77-78 (officers sometimes erroneously convened courts-martial when their commands were not properly divisions or separate brigades; that "was peculiarly the case with the commands known as 'districts"'). [FN288]. Act of Mar. 2, 1913, ch. 93, 37 Stat. 722. [FN289]. See, e.g., Gen. Order No. 1, HQ, Dept. of the Missouri, Jan. 1, 1862, reprinted in 8 WAR OF THE REBELLION, 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 53 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. SER. I, supra note 52, at 476. [FN290]. Letter from Gen.-in-Chief Henry Halleck to Brig. Gen. John Pope (Dec. 31, 1861), reprinted in 8 WAR OF THE REBELLION, SER. I, supra note 52, at 822; accord Gen. Order No. 1, HQ, Dept. of the Missouri, Jan. 1, 1862, reprinted in id. at 476. [FN291]. Letter from Brig. Gen. Henry Sibley to Maj. Gen. John Pope (Sept. 28, 1862), reprinted in 13 WAR OF THE REBELLION, SER. I, supra note 52, at 687. [FN292]. 1 W. WINTHROP, supra note 179, at 78. [FN293]. See note 286 supra; and accompanying text. [FN294]. Gen. Order No. 38, HQ, Dept. of the Northwest, Oct. 25, 1864, in Court Martial Cases, NARG 153, File NN3132. [FN295]. See note 71 supra text accompanying note 60 supra. [FN296]. See J.G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 157-63 (1951). [FN297]. See, e.g., Opinion of J. Adv. Gen. Joseph Holt to Pres. Abraham Lincoln (Sept. 26, 1862), in Letters Sent-JAG, NARG 153 (Entry 1) (sentence disapproved because judge advocate not sworn); Opinion of J. Adv. Gen. Joseph Holt to Maj. Gen. Benjamin Butler (Nov. 4, 1862), in id. (sentence disapproved because records forwarded to Judge Advocate General were copies only, not originals as required); Opinion of J. Adv. Gen. Joseph Holt to Maj. Gen. Benjamin Butler (Dec. 16, 1862), in id. (sentence disapproved because record did not show that prisoners were permitted to object to panel members or were read charges against them, or that witnesses were sworn, and because record did not contain cross-examination of witnesses); Gen. Order No. 255, Aug. 1, 1863, in id. (death sentence disapproved because record did not show that order convening Commission was read in presence of prisoner or that privilege of challenge was offered or that commission members were sworn); Gen. Order No. 151, May 26, 1863, in id. (death sentence disapproved because Commission and judge advocate not sworn on the record); Opinion of J. Adv. Gen. Joseph Holt to Brig. Gen. Arboth (Nov. 7, 1863), in id. (proceedings disapproved because phrase endorsed, "Respectfully forwarded," was not in conformity with regulation). [FN298]. See, e.g., Gen. Order No. 346, Oct. 22, 1863, in Military Orders, NARG 94 (death sentence for alleged spy disapproved). [FN299]. See, e.g., Gen. Order No. 135, May 18, 1863, in Military Orders, NARG 94 (execution ordered for aiding others to plunder and harboring stolen U.S. wagon, commuted to one year imprisonment; execution ordered for stealing horse from boy, commuted to six months imprisonment; execution ordered for aiding rebels to rob citizens, commuted to hard labor for duration of war; execution ordered for passing the lines dressed as a civilian and lurking near a fort, commuted to imprisonment for duration of war); Gen. Order No. 157, May 28, 1863, in Military Orders, NARG 94 (death sentence for associating with party in arms against U.S. government and violation of oath of allegiance; sentence commuted to one year imprisonment). [
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FN300]. Military Courts, 5 U.S. SERV. MAG. 214, 214-17 (1866). [FN301]. See note 297 supra. [FN302]. Gen. Order No. 257, Aug. 1, 1863, in Military Orders, NARG 94; accord Opinion of J. Adv. Gen. Joseph Holt to Maj. Gen. Benjamin Butler (Dec. 16, 1862), in Letters Sent-JAG, NARG 153 (Entry 1) ("The record of all trials, especially when the punishment is death, should be full, complete and perfect."). [FN303]. See note 299 supra. [FN304]. See text accompanying notes 95-99 supra. [FN305]. The statutory provisions were contained in the Articles of War enacted in 1806. Act of Apr. 10, 1806, ch. 20, § 1, 2 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 54 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Stat. 359. Between 1806 and December 1862, there were only 12 amendments to the Articles. See FREDERICK C. BRIGHTLY, ANALYTICAL DIGEST OF THE LAWS OF THE UNITED STATES, 1789-1857, at 83 (1858); FREDERICK C. BRIGHTLY, ANALYTICAL DIGEST OF THE LAWS OF THE UNITED STATES, 1857-1863, at 1101- 03 (1863). I discuss in the text all the amendments relevant to the questions raised here. [FN306]. Article 56 made it an offense to "relieve the enemy with money, victuals, or ammunition, or [to] knowingly harbor or protect an enemy." Art. 56, 2 Stat. 359, 366 (1862). Article 57 established the offense of "holding correspondence with or giving intelligence to the enemy either directly or indirectly." Id. art. 57. [FN307]. Act of Feb. 13, 1862, ch. 25, § 4, 12 Stat. 339, 340. The original Articles of War prohibited only spying "in time of war." § 2, 2 Stat. 359, 371 (1862). The prohibition on spying during time of rebellion was added in February 1862, presumably to permit the military to try Confederates found spying within any part of the United States declared by the President to be in a state of insurrection. See 12 Stat. 339, 340. [FN308]. See arts. 91-92, 2 Stat. 359, 370. Courts of inquiry could be used to "examine into the nature of any transaction, accusation or imputation against any officer or soldier." Id. art. 91, at 370. The statute provided that only the president or an accused could order a court of inquiry, as courts of inquiry could be "perverted to dishonourable purposes, and may be considered as engines of destruction to military merit, in the hands of weak and envious commandants." Id. art. 92, at 370. Since a court of inquiry did not sit in judgment of an accused, it required only a recorder "to reduce the proceedings and evidence to writing" rather than a judge advocate to act as prosecutor. See id. art. 91, at 370. [FN309]. See Act of July 17, 1862, ch. 36, § 5, 12 Stat. 597, 598 ("the President shall appoint . . . a judge advocate general . . . to whose office shall be returned, for revision, the records and proceedings of all courts-martial and military commissions, and where a record shall be kept of all proceedings had thereupon"). [FN310]. See, e.g., Act of Mar. 3, 1863, ch. 75, § 30, 12 Stat. 731, 736 (murder, manslaughter, robbery, larceny, and certain other crimes, when committed by military persons in time of war or rebellion, punishable by court-martial or military commission); id. § 38, 12 Stat. 737 (spies to be triable by military commission or court-martial); Act of July 4, 1864, ch. 253, § 6, 13 Stat. 394, 397 (civil officials of quartermaster department amenable to trial by military commission or courtmartial for neglect of duty and fraud). In each of these statutes, Congress simply stated that cases triable by court-martial under statutory authority could also be tried by a military commission. Since military commissions and courts-martial were conducted in the same manner, see note 269 supra, there seems no basis for distinguishing the two forms of trial. In 1864, Congress enacted the first statute that specified trial by military commission for offenses not triable by court-martial. Act of July 2, 1864, ch. 215, § 1, 13 Stat. 356 (commanders of departments and armies authorized to execute sentences imposed by military commissions upon guerrillas for violation of the laws and customs of war). In the debate in the Senate preceding passage of the Act, however, Senator Lyman Trumbull, committee member and floor manager of the bill, repeatedly stated that the bill would not confer any new authority on military tribunals but would simply permit sentences of such tribunals to be carried out without the delay caused by having to seek presidential approval. CONG. GLOBE, 38th Cong., 1st Sess. 3030, 3416-17 (1864). [FN311]. Gen. Order No. 20, HQ Army at Tampico, Feb. 19, 1847, in Military Orders-Mexican War, NARG 94 (Entry 134). The complete list of offenses in the General Order was " ssassination, murder, malicious stabbing, or maiming, rape, malicious assault and battery, robbery, theft, the wanton desecration of churches, cemeteries or other religious edifices and fixtures and the destruction except by order of a superior officer of public or private property." Id. Some of these offenses referred to acts committed not by civilians but by soldiers, who were also included in the order establishing military commissions. See text accompanying notes 313-316 infra. [FN312]. On its face, Article of War 99 appears to provide ample authority to try soldiers for many acts not expressly made unlawful by the statute: All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a general or regimental court-martial, according to the nature and degree of the offence, and be punished at their discretion. Act of Apr. 20, 1806, ch. 20, § 1, art. 99, 2 Stat. 359, 371. In practice, however, the army had not viewed this provision as a grant of authority to try soldiers for acts such as rape, murder, robbery, arson, and assault with intent to kill. See Caldwell v. Parker, 252 U.S. 376, 381-83 (1920). Congress later remedied this problem by providing for military trial for such offenses 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 55 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. by soldiers. Act of Mar. 3, 1863, ch. 75, § 30, 12 Stat. 731, 736. [FN313]. Gen. Order No. 20, HQ Army at Tampico, Feb. 19, 1847, in Military Orders-Mexican War, NARG 94 (Entry 134). In fact, individuals brought before these commissions were sometimes tried for offenses not expressly included in the list enumerated in General Order 20. For example, the orders convening military commissions listed such offenses as burglary, picking pockets, carrying a concealed weapon, riotous conduct, and attempting to pass counterfeit money, none of which were contained in General Order 20. 1 W. WINTHROP, supra note 179, at 59-60. [FN314]. Order No. 5, Mar. 13, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134); Order No. 36, May 21, 1848, in id.; Order No. 176, June 14, 1847, in Military Orders-Mexican War (Gen. Scott), NARG 94 (Entry 134). [FN315]. Order No. 5, Mar. 13, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134). [FN316]. Gen. Order No. 97, Apr. 7, 1847, in Military Orders-Mexican War (Gen. Scott), NARG 94 (Entry 134). [FN317]. Order No. 30, HQ Dept. of Puebla, May 17, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134); Order No. 33, HQ Dept. of Puebla, May 19, 1848, in id. [FN318]. Order No. 17, HQ Dept. of Puebla, May 3, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134). [FN319]. See, e.g., J. RANDALL, supra note 296, at 91 (martial law declared in New Orleans; William Mumford convicted and hanged for treason for tearing down United States flag after liberation of city). [FN320]. See H.W. HALLECK, INTERNATIONAL LAW 782 (1861); see also S. BENET, A TREATISE ON MILITARY LAW AND THE PRACTICE OF COURTS-MARTIAL 10-16 (4th ed. 1864). Halleck notes that in California, also the scene of fighting in the Mexican War, such offenses were generally tried in the civil courts; the occupying army set up special tribunals in only a few cases. H. HALLECK, supra, at 783. [FN321]. Leitensdorfer v. Webb, 61 U.S. (20 How.) 176, 177-78 (1857); accord Mechanics' & Traders' Bank v. Union Bank, 89 U.S. (22 Wall.) 276, 295-97 (1874); The Grapeshot, 76 U.S. (9 Wall.) 129, 132-33 (1869); Cross v. Harrison, 57 U.S. (16 How.) 164, 189-90 (1853). But see Jecker v. Montgomery, 54 U.S. (13 How.) 498, 515 (1851) ("neither the President nor any military officer can establish a court in a conquered country, and authorize it to decide upon the rights of the United States, or of individuals in prize cases, nor to administer the laws of nations"; the courts established in Mexico by the military commanders were "nothing more than agents of the military power, to assist it in preserving order in the conquered territory").
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Post by mdenney on Mar 4, 2007 14:17:59 GMT -5
[FN322]. Several lower federal courts rejected the use of martial law in the period following the end of hostilities in the Civil War, granting writs of habeas corpus to release prisoners held under military authority. See, e.g., In re Egan, 8 F. Cas. 367 (C.C.N.D.N.Y. 1866) (No. 4303) (civilian tried for murder in South Carolina seven months after the rebel army surrendered); United States v. Commandant of Ft. Delaware, 25 F. Cas. 590 (C.C.D. Del. 1866) (No. 14,842) (four civilians tried for murder of military guard after hostilities had ceased). The Egan court suggested that martial law is really no law at all but simply the commanding officer's will, which takes the place of law that cannot be enforced under the conditions of war. The court found that martial law could be indulged only as a matter of necessity; when order is restored, that necessity ceases and the exercise of martial law is inappropriate. Whether the military could continue to try civilians once order was restored was the subject of challenges to the use of military government under the Reconstruction Acts, but was never definitively decided. Congress first sought to block the Supreme Court's consideration of the question by removing the Court's appellate jurisdiction over habeas petitions. See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868). When the Court decided that it nonetheless had jurisdiction, Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868), the prisoner was released before the merits of the question were reached. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION 154-57 (1989) (discussing factual backgrounds of McCardle and Yerger). [FN323]. Of course, the Dakota might have fared even worse in the state courts. Sibley may have been motivated to convene a commission in order to ensure fairer trials than would have occurred in the state courts. See text accompanying notes 490- 494 infra. Similar motives may have led to the trial of the Lincoln murder conspirators before a military commission rather than before a civil jury. See Thomas R. Turner, What Type of Trial? A Civil Versus a Military Trial for the Lincoln 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 56 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Assassination Conspirators, in 4 PAPERS OF THE ABRAHAM LINCOLN ASSOCIATION 29, 38 (1982). Nonetheless, as explained in the text, jurisdiction for such a commission trial was lacking and no tribunal, state or federal, could legitimately try the Dakota for anything other than violating the laws of war. [FN324]. See Gen. Order No. 181, HQ Army at Puebla, June 19, 1847, in Military Orders-Mexican War (Gen. Scott), NARG 94 (Entry 134). In his treatise, Winthrop lists eight orders, 2 W. WINTHROP, supra note 179, at 60 n.1, but some of these are simply orders creating a council, rather than records of judgments by the councils. See, e.g., Gen. Order No. 181, June 19, 1847, in Military Orders-Mexican War (Gen. Scott), NARG 94 (Entry 134); Gen. Order No. 184, June 24, 1847, in id. [FN325]. See Gen. Order No. 187, HQ Army at Puebla, June 24, 1847, in Military Orders-Mexican War (Gen. Scott), NARG 94 (Entry 134). [FN326]. See Gen. Order No. 372, HQ of the Army, Dec. 12, 1847, in Military Orders-Mexican War (Volunteer Div.), NARG 94 (Entry 134). The Order referred to "atrocious bands called Guerilleros and Rancheros who under instructions from the late Mexican Government or authorities, continue to violate every rule of warfare observed by civilized nations." It provided that no quarter should be given to such individuals and that a Council of War should be convened to try any such offenders "falling into the hands of American troops." The Council could condemn a prisoner to death for "flagrant" violations of the laws of war "on satisfactory proof that such a prisoner, at the time of capture actually belonged to any party or group of known robbers or murderers or had actually committed murder or robbery upon any American officer or soldier or follower of the American Army." Unfortunately, the army records remaining from the Mexican War are not complete, and there were no further orders describing individual trials for the described offenses. It is thus not possible to learn what the army considered to be "murder" or a "flagrant" violation of the laws of war. [FN327]. Several commentators have pointed to other earlier trials--the 1780 trials of Major John André and Joshua Hett Smith for conspiring with Benedict Arnold and the 1815 trial of Louis Louaillier for assisting the enemy--as predecessors to the military commission trial. See 2 W. WINTHROP, supra note 179, at 59; A. Wigfall Green, The Military Commission, 42 AM. J. INT'L L. 832, 832-33 (1948). In each of these cases, however, the defendants were tried for offenses defined by statute as triable by court-martial. Thus the trials do not truly represent the use of military commissions. [FN328]. Interestingly, Confederate soldiers were treated as legitimate belligerents despite the United States government's refusal to recognize the Confederacy as an independent sovereign. Although the United States maintained that it could try the rebels for treason, it chose to grant the Confederate forces the privilege of being treated as belligerents, both for humanitarian reasons and to avoid retaliation against Union troops. See J. RANDALL, supra note 296, at 65-69. [FN329]. Gen. Order No. 135, May 18, 1863, in Military Orders, NARG 94; Gen. Order No. 151, May 26, 1863, in id. [FN330]. Gen. Order No. 135, May 18, 1863, in Military Orders, NARG 94.
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Post by mdenney on Mar 4, 2007 14:18:37 GMT -5
[FN331]. 8 U.S. DEPARTMENT OF WAR, THE WAR OF THE REBELLION: A COMPILATION OF THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATE ARMIES, SERIES II, 674-81 (1899) [hereinafter WAR OF THE REBELLION, SER. II]. [FN332]. J. RANDALL, supra note 296, at 175-76. [FN333]. See Gen. Order No. 135, May 18, 1863, in Military Orders, NARG 94; Gen. Order No. 267, Aug. 3, 1863, in id.; Gen. Order No. 151, May 26, 1863, in id. Most, if not all, of the trials for conducting guerrilla warfare occurred in occupied rebel territory, where many individuals not in the Confederate army nevertheless engaged in obstructive tactics and acts of violence. J. RANDALL, supra note 296, at 174-75. [FN334]. Gen. Order No. 100, ¶ 13, Apr. 24, 1863, reprinted in RICHARD SHELLY HARTIGAN, LIEBER'S CODE AND THE LAW OF WAR 45 (1983) [hereinafter Gen. Order No. 100]; accord Letter from Maj. Gen. Henry Halleck to Brig. Gen. John Pope (Dec. 31, 1861), reprinted in 8 WAR OF THE REBELLION, SER. I, supra note 52, at 822-23 (prisoners of war who violate the laws of war are to be tried by military commission, not court-martial; source of law is "general code of war," not Articles of War, and charge should be "violation of the laws of war"). 43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 57 43 Stan. L. Rev. 13 (Cite as: 43 Stan. L. Rev. 13) © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. [FN335]. See notes 309-310 supra. [FN336]. Letter from J. Adv. John Lee to Sec'y of War (Mar. 1862), in Letters Sent-JAG, NARG 153 (Entry 1), at 289 (" nder our municipal laws, State or Federal, these proceedings are of no validity. Military commissions are not a tribunal known to our laws; and military commanders have no power to inflict death except by sentence of court-martial."). [FN337]. Letter from J. Adv. John Lee to Sec'y of War (June 8, 1862), in Letters Sent-JAG, NARG 153 (Entry 1), at 312 ("I have been compelled to submit my opinion that these 'military commissions' within the territory and jurisdiction of the U.S. are tribunals unknown to our laws, and there is no warrant of law for executing the sentences of death they adjudge. Still it is done."). [FN338]. Holt's title was Judge Advocate General, a post newly created by Congress in the Act of July 17, 1862, ch. 201, § 5, 12 Stat. 597, 598, but his role was identical to Lee's. [FN339]. Letter from J. Adv. Gen. Joseph Holt to Sec'y of War Edwin Stanton (Sept. 8, 1862), in Letters Sent-JAG, NARG 153 (Entry 1). As discussed above, see notes 311-319, 324-327 supra and accompanying texts, this "long usage" dated back only to the Mexican War in 1846-1847, and was used mostly in occupied territory to allow trial for normal criminal offenses that otherwise would have gone unpunished. [FN340]. Proclamation by the President, Sept. 24, 1862, reprinted in 6 JAMES D. RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 98-99 (1897). [FN341]. See generally Turner, supra note 323. [FN342]. Reverdy Johnson, attorney for Mary Surratt, argued that the Bill of Rights protected the defendant, a citizen of the United States, and assured her trial by jury and presentment to a grand jury, unless she was serving in the armed forces. He denied that the President had authority under his "war power" to order such trials, because the war power belonged to Congress and Congress had not made statutory provision for military commissions. REVERDY JOHNSON, AN ARGUMENT TO ESTABLISH THE ILLEGALITY OF MILITARY COMMISSIONS IN THE UNITED STATES 7-10, 14- 16 (1865) (available at University of Minnesota Law Library). In response, Special Judge Advocate John Bingham made an argument notable less for clarity than for his repeated harangues about the evils of the enemies of the Union and the arrogance of those who would challenge the authority of the President and his Commission. See, e.g., JOHN BINGHAM, TRIAL OF THE CONSPIRATORS FOR THE ASSASSINATION OF PRESIDENT LINCOLN 4-6, 12-13, 14-15 (1865) (available at University of Minnesota Law Library). He suggested that the Commission could have no authority to rule on the question of its own validity, because if it ruled the Commission invalid it would be in the absurd position of deciding a question it found it had no authority to decide. Id. at 7-11. On the substantive question of the source of authority for the tribunal, he supported the use of the military tribunal to try the alleged Lincoln assassins as an exercise of martial law and a necessary power of any government to defend itself. Id. at 13-14, 21-50. [FN343]. 11 Op. Att'y Gen. 297, 299 (1865) (quoting U.S. Const. art. I, § 8, cl. 10).
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