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The Dakota Conflict Trials

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May 23, 2020 by Pamela Nowak

This week and next, I am posting about the Dakota Trials. My posts will be only a thin overview of a complicated topic that can fill entire books. On Friday, I’ll list some sources for reading more in depth.

One thousand, two hundred Dakota surrendered to Sibley’s forces at Camp Release after the Battle of Wood Lake on September 26, 1862.

Prior to surrendering, the Dakota had expressed concern about what would happen to those who surrenders and had been reassured by General Sibley that only those who had committed “murder and outrages” against the whites would be punished. On September 27, Sibley wrote to his commanding officer, Major General John Pope, that he had established a military commission to hear evidence of crimes. The proceedings would begin the following day.

The trials, by whatever term, were problematic from the start. By Federal definition, Native American tribes were considered sovereign nations and the conflict was thus an act of war between two nations. This issue and the matter of what procedure would be legally appropriate for such a situation was not considered. Today, “war crimes” would be the term applied for actions related to warfare and only those actions that went beyond what was usual and customary for war would be considered criminal. The men appointed to commission were military officers, not qualified as judges. The accused were given no time to prepare a defense, evidence was iffy and translation was faulty. Legal scholars today debate whether or not Sibley had the authority to appoint the commission in the first place.

Together, these factors turned the action into a sham.

Historians debate whether or not Sibley might have intended the commission to be more a “court of inquiry” to collect information for later use or if he meant for the proceedings to be trials in and of themselves. The order, however, was worded such that the five-member commission had the authorization far beyond investigation. The commission was to “try” those prisoners brought before them and to pass judgement on those found guilty of murder or other outrages (which was left undefined).

Those appointed to the commission included Lieutenant Colonel William R. Marshall, Colonel William Crooks, Captain Hiram P. Grant, Captain Hiram S. Bailey, and Lieutenant Rollin C. Olin. Adjutant Isaac Heard of McPhail’s Mounted Rangers was appointed to record the proceedings.  Charges were based on information provided by Reverend Stephen Riggs, a missionary who had worked with the Dakota for 25 year. Riggs had assembled mixed-bloods and others who provided testimony to help determine which prisoners should be tried. The trials began on September 28, 1862, just one day after the order was issued.

The trials moved quickly with sixteen tried on the first day; ten were convicted to hang and six were acquitted.

Each trial began with a swearing in of the commissioners followed by a reading of the charges to the prisoner. If needed, an interpreter was used. The language barrier complicated things in that some interpreters made errors and some phrasing meant different things in Dakota than in English (an unrelated example is “when the snow stopped” which to the Whites would mean the end of a snowstorm but to Dakota might mean the end of winter). The accused was given an opportunity to speak.  Witnesses to the charges (if any) were then called to testify. Defendants had no opportunity to call witnesses or present evidence beyond their initial statements and were not represented by defense attorneys. Some of the trials lasted less than five minutes.

In some cases, White female captives testified to confirm rape charges. This was particularly problematic in that captors may have viewed the action as making the woman a wife. Complications also occurred when women felt they had to justify any interaction as forced in order to be accepted by White society. The language barrier was also a factor in these cases because the interpreter might change the meaning of the charge in his selection of words (instead of describing forceable intercourse, he might say “took as a wife”). In only a handful of cases did men accused of rape clearly admit to having done so.

As well, Whites were by this time incensed and intent on revenge. They had read newspaper accounts full of atrocity stories and their own testimony was influenced that and by their own losses. The social norms of the day enforced ethnic bias and prejudice and testimony reflected all of this. In fact, Whites had become hostile and violent regarding the prisoners and this explosive atmosphere demanded action from the commission.

In the end, nearly any defendant found to have participated in any fighting were convicted and sentenced to death by hanging. Those who were found guilty of plundering were sentenced to a term of one to ten years.

392 trials occurred between September 28 and November 3, 1862. On some of the days, there had been one trial after another; 42 on one of the days. The Commission convicted 323 and sentenced 303 to hang with the other 20 to serve time in prison; 69 were acquitted.

President Lincoln was informed of the sentences on November 10 via telegraph. He requested all documents related to the cases and reviewed each.  On December 11, Lincoln informed the Senate that he found enough evidence to find only 40 guilty: two for rape and 38 for “participation in massacres, as distinguished from participation in battles.”  For one of these, he commuted the sentence to imprisonment. He ordered 39 to be hung. When Sibley contacted him about new information, one additional man was commuted to a prison term.

Those convicted to hang were marched to Mankato, Minnesota. En route, they were attacked by mobs. Nearly 4000 Whites had gathered for the event and martial law had been declared to maintain order. The execution was en mass, publicly and took place on December 26, 1862. A single scaffold platform held all 38 with all traps to open at once via a single rope cut. William Duley, survivor of the attack on Lake Shetek, was named to cut the rope. At the time, Duley had located the bodies of several of his children and believed his captive wife and remaining children to have perished. The convicted me sang as hoods were placed over their heads and drumbeats signaled the impending hanging. The men joined hands. It is said that it took Duley two attempts to cut the rope.

Thirty minutes later, after the prisoners were finally pronounced dead, they were buried in a single trench in the sand along the Minnesota River. An unknown person reportedly removed bits of their skin and later sold it to local residents. The night after the burial, the grave was reopened and bodies were distributed to doctors as anatomical cadavers for dissection (a common practice of the era).

Next week, I’ll explore a few specific trials.

For more detailed reading, I recommend The Dakota Trials: The 1862-1864 Military Commission Trials: Including the Trial Transcripts and Commentary by John Isch. Carol Chomsky of the University of Minnesota Law School also wrote an excellent article which examines the trials, “The United States-Dakota War Trials: A Study in Military Injustice.” (https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1230&context=faculty_articles)

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As I count down to my January 2021 release of NEVER LET GO, I’ll be posting weekly blogs about the history of Lake Shetek, the Dakota Conflict or the people and cultures involved. Or, I may touch on the writing process or interesting tidbits included in the novel.

For more details on the novel, please visit my HOME page. 

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