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