Anderson on Haymond, 'The Infamous Dakota War Trials of 1862: Revenge, Military Law and the Judgment of History'

Author: 
John A. Haymond
Reviewer: 
Gary C. Anderson

John A. Haymond. The Infamous Dakota War Trials of 1862: Revenge, Military Law and the Judgment of History. Jeffersonville: McFarland, 2016. 263 pp. $39.95 (paper), ISBN 978-1-4766-6510-8.

Reviewed by Gary C. Anderson (University of Oklahoma) Published on H-FedHist (December, 2017) Commissioned by Caryn E. Neumann

Printable Version: http://www.h-net.org/reviews/showpdf.php?id=49561

Never in the course of American history has such a legal travesty taken place as in the trials of the 392 Dakota Sioux Indians in Minnesota in 1862. The trials took place over the course of 38 days under the direction of a military commission and resulted in sentences of death for 303 Indians. While Minnesotans expected that all 300 Indians would be executed, as the tribe itself had participated in the massacre of over 600 civilian settlers—most killed by Indians who had fled out onto the frontier and were never tried—objective observers at the time soon questioned the trials that followed the surrender of many Indians, including some missionaries and a number of officials in Abraham Lincoln’s cabinet.

The author of this book, John A. Haymond, styles himself as a “conflict historian” (back cover) who spent twenty-one years in the United States military. He argues that “an informed perspective of military law has for the most part been missing from the published studies of the 1862 military commission trials,” and that given this failure, there was a need for a careful assessment of the trials (p. 1). He observes that some critics of the trials have called them nothing more than “revenge” for what amounted to mass murder and argues that the trials were not only legitimate, but that the execution of the thirty-eight Dakota men in their aftermath was deserved punishment—in other words, all were guilty of murder. While Haymond admits that some irregularities did exist during the trials, they can only be viewed from the perspective of military law in the mid-nineteenth century, when military commissions were first introduced. This leads to his inclination to absolve General Henry H. Sibley, who formed the commission and signed the death warrants of 303 Indians, from wrongdoing, despite the fact that President Abraham Lincoln overruled the verdict and elected instead to execute just thirty-eight Indians. Indeed, the author suggests that given the level of violence perpetrated by Dakota Indians, the fact that they faced a military court at all is somewhat remarkable.

American military law is a conundrum, based upon European traditions and writings that go back to Hugo Grotius in the seventeenth century, and in America, the creation of the judge advocate general’s office by George Washington during the Revolutionary War. Since such a position is not authorized under the Constitution; military law is somewhat based upon the chain of command, although Congress likely has the authority to limit or transform it if it so desires.[1] Basically, this has not happened, and the use of “military commissions” was established by General Winfield Scott in 1847 after the conquest of Mexico City. Scott recognized that civil law in the land had broken down and the only chance to bring order was with a military court, but one that more resembled a common court found in any county in the United States, rather than a military court martial. His General Order 20 established that a court of from five to thirteen officers would sit in judgment of civilian defendants who had allegedly committed some violation of common law, such as murder, rape, or robbery. The military officers would have no opportunity to questions defendants; all questions emanated from the “judge advocate,” a person who collected evidence, brought charges, and offered to assist in both the defense and prosecution of a defendant. The defendant, when told of the charges in the form of an “arraignment,” would then acquire legal counsel, if he or she so desired, for the purpose of mounting a defense against the charges. The defendant need not “incriminate himself.”[2] This was also true in general courts martial (see Article 65 of the Articles of War). The judge advocate, but not legal counsel, had the right to cross-examine witnesses. The system worked so well in Mexico City that common citizens came to respect American justice and crime subsided appreciably.[3]

Scott’s authority to create commission justice was not recognized by President Polk, but it was sanctioned by the War Department and became commonly used during the American Civil War. Nearly two thousand cases were tried during the four years of war in all theaters, or roughly five hundred a year.[4] Many of the judgments made by the courts were questioned by the judge advocate general and dismissed; sentences of death also had to be approved by the president, and Lincoln was often loathe to approve them.[5] In general, commissions were authorized in the following cases: 1) violations by members of a military establishment (Confederate soldiers who were not part of the Union Army), 2) violations of the laws of war—the first Geneva Accords were actually written during the Civil War, and 3) when civil crimes occurred and civil authority broke down, and martial law was declared. 

In the case of the Dakota Indians, the only way a military commission could be legally used to try them was if civil justice had broken down in the state. As Colonel Henry Hasting Sibley, initially recruited as a military officer in the state, moved up the Minnesota River in September to subdue and capture the Indians, he addressed this issue in a letter to one of his subordinates. He noted that civil law had not broken down—the courts were still meeting in Mankato, Minnesota, close to the scene of the carnage—and there was no legal justification for issuing an edict to create martial law. In other words, the general himself confessed that his court was illegal, even though he appeared not to know the legality of this issue.[6] Sibley was not a lawyer, even though he had studied law briefly, and he questioned his own authority, but after he was promoted to general, he signed the order creating a “military commission” to try the Indians on September 27. The commission of five officers tried its first case the next day. Over the next thirty-seven days, nearly four hundred Indians faced this commission.

Haymond is quick to note that Sibley’s first court was only a “court of inquiry,” since it only had three commissioners. Hastily, then, the general added two more, one a young lieutenant, Rollin C. Olin. While he served as the fifth member of the court, when the trial records were finally sent to Washington, DC, just below Olin’s name and a bit to the right of it was added the term “judge advocate.” Obviously, this had been done hastily only after Sibley, or others, recognized that the Indians had a right to representation. And of course, it was blatantly illegal for Olin to serve as both a member of the court and the judge advocate. Haymond fundamentally dismisses this omission, arguing that in “military courts” the defendant had no right to an advocate, or counsel, only a “privilege” to one. This too is fundamentally untrue as Scott’s original Order 20 provides for counsel—it was different than a regular court martial.[7] Carol Chomsky, in one of the first legal analyses of the trials, argues that the commission that Sibley created had no legal basis because Indians were “sovereign” entities, such as British subjects. While this may be arguable, Haymond completely dismisses it (p. 65).[8] More importantly the author is completely unaware that in the fall 1863, the judge advocate general of the army ruled that Sibley had no legal right to form a “commission in the field” under the Articles of War, which dealt with the issue of prejudice. Sibley strongly disputed this but his commanding officer, General John Pope, supported the Judge Advocate General, and an Indian who had been convicted in his court and sentenced to death was granted a reprieve.[9]

Such obvious omissions on the part of Haymond make it even more difficult to accept his assessment of the trials themselves. In an off-the-cuff speech to a crowd at a Minnesota college some years ago, the author of this review characterized the trials as consisting of nothing more than one page or less of testimony. This Haymond correctly disputes and notes that in the first ten trials, the actual text of the trials contains several pages. My intent at the time was to give some description of virtually all of the trials, and I should have been more careful with words. Having went through the trials one by one in the 1980s, when they were rediscovered in the National Archives, I kept just one page of notations, leading me to believe some thirty years later that the trial accounts consisted of just one page. This being untrue, I boarded a plane for Washington some weeks ago and once again pulled up the Dakota Trials from the Senate Records.[10] The first page of every trial account was obviously written up well before the Indian involved appeared before of the tribunal. It consists of a listing of the court and basic charges. It was the same for “virtually” every trial. Yet following the letter was a second page containing testimony. Meticulously going through each trial, I counted 352 trials in which the testimony consisted of a page or less. In 157 of the trials, the testimony consisted of just one or two sentences. Where Indians admitted to being at a battle—incriminating themselves, which the Judge Advocate should have prevented—they were immediately dismissed without knowing anything regarding a verdict. While I was wrong in my exuberant speech, clearly 90 percent of the trial accounts had just one page or less of testimony. Haymond’s overwhelming emphasis upon the few longer trials, and his virtual refusal to recognize the sparsity of evidence in the vast majority of them is itself telling of his efforts to defend a military tribunal that had essentially no interest in getting at the truth and rendering fair verdicts.[11]

The evidence of lack of due process during the Dakota trials is overwhelming. While Haymond argues that the letter preceding the trail account constitutes an arraignment and charges, the process of arraignment in any court in the land involves allowing the defendant an opportunity to create a defense. This never happened, despite Haymond’s assertion that an arraignment occurred (p. 80). More importantly, Haymond seems totally unaware that as the winter began to set in on the upper Minnesota River, the tribunal began trying as many as eight Indians at one time—likely the total number who could fit inside the tent. As a St. Paul newspaper put it, “The prisoners were brought in, chained together by the feet, in pairs, in some cases eight at a time.”[12] The missionary John P. Williamson, who also observed the trials, noted much the same: “400 have been tried in less time that it generally takes in courts with the trial of a single murderer.... In very many cases the man’s testimony is the only evidence against him.”[13]

In reality, the Dakota war trials constituted a kangaroo court dominated by an overbearing colonel who consistently allowed incriminating evidence as well as hearsay evidence to be admitted. There was no due process allowed in the form of counsel, or even assistance from a judge advocate, who seemingly had authority to protest such treatment. What may be even worse, as the Indian was ushered out of the tent where the tribunal met, he had no idea that a trial had occurred. After the first few trials, an observer for a Minnesota newspaper reported that as the Indians were ushered out, “the authorities deemed it advisable to postpone judgement and execution until after the apprehension of Little Crow.”[14] In other words, there was no vote as to the innocence or guilt of the defendant—the trial records clearly made it obvious that a vote by the commissioners never occurred. A mixed-blood, David Faribault Jr., who served as a witness in over a hundred trials, was amazed to discover long after his trial that he had been convicted and sentenced to death. A man who spoke fluent English, he quickly wrote his uncle, Alexander Faribault, one of the founding fathers of the state, who then hired an attorney. Faribault’s lawyer then placed an affidavit in front of President Lincoln that stated: “there was no intimation to him [Faribault] that he was on trial for his life, or that there was any opportunity to make a defense ... or to have counsel.”[15] If a mixed-blood who spoke English failed to realize that a trial was occurring, how could an Indian, who spoke only Dakota, come to such a realization?

So what can we determine from Haymond’s study? He has looked at a significant amount of sources, but not widely enough to see what a travesty the trials became. Moreover, in the introductory material for his book, there are many simple historical mistakes. Haymond declares that it was the “Treaty of Traverse des Sioux” that led to the relinquishment of “Mdewakanton and Wahpekute” lands, when actually it was the Treaty of Mendota, which the author is completely unaware of (p. 11). His depiction of the Dakota people as warlike savages who knew only war and went on to conquer much of the northern Plains, including the Black Hills, is outright ridiculous. He fails to see the differences between the Dakota and the Lakota Sioux groups, one of whom were Plains buffalo hunters, and the other, woodland deer hunters and farmers. To make his point, he cites General of the Army George C. Marshall, who likely never knew an American Indian (pp. 16-18). Indeed, many Dakota Indians had settled on farms on the reservation by 1862 and were quite successful, a reality that runs counter to the author’s main argument. A number of these farmer Indians were later executed, although the evidence against them was suspect. Perhaps even more importantly, Haymond dismisses many authors who have noted the failed responsibilities of the federal government in its management of the reservations. He stresses instead the violence, the rape of women, that did admittedly occur, but which needs to be put into the context of Dakota culture. Many of the women taken captive were allowed to live as wives, a standard practice among many western Indian tribes. Mainly, Haymond wants us to believe that the execution of the thirty-eight Indians at Mankato, Minnesota, on December 26, 1862, was not at all an “act of revenge,” but in fact justice (see back cover). Such an argument is simply difficult to sustain.

These sort of failings might have been corrected had the press publishing the book sought referees who had some understanding of Dakota history and culture, for there are two sides to this story although only one is presented in this book. Perhaps we can better understand the author’s approach by looking once again at his background—he served for many years as a “paratrooper and infantryman,” and certainly we can, if nothing else, honor his service. But this service obviously did little to boost his qualifications as a legal historian.

Notes

[1]. See Lt. Col. C. Marmon, Major Joseph E. Cooper, and Captain William P. Goodman, “Military Commissions” (LLM thesis, Judge Advocate General’s School, 1953), 4-7.

[2]. The best description of Scott’s General Order 20 is found in Erika Myers, “Conquering Peace: Military Commissions as a Lawforce Strategy in the Mexican War,” American Journal of Criminal Law 35, no. 2 (2008): 201-240.

[3]. Myers, “Conquering Peace.

[4]. Marmon, Cooper, and Goodman, “Military Commissions,” 7.

[5]. See the Judge Advocate General’s Papers, RG 153, National Archives, Washington, DC.    

[6]. See Sibley to Lieutenant M. A. Merrell, September 18, 1862, Letters Received, District of Iowa, RG 393, National Archives. 

[7]. See Myers, “Conquering Peace,” 217-219.

[8]. See Chomsky, “The United States-Dakota War Trials: A Study in Military Justice,” Stanford Law Review 43 (November 1990): 13-98.

[9]. See the J. F. Meline, for General Pope to the Judge Advocate General, November 13, 1863, “Trial of Wowinape,” manuscript in the Minnesota Historical Society Archives, St. Paul, MN; and Sibley to Judge Advocate General, December 7, 1863, Henry Hastings Sibley Papers, ibid.

[10]. The trial records were sent to the Senate by Lincoln on November 11, and remain there as Senate Records, 37A-Fsx, RG 46, National Archives. 

[11]. The trials that actually contained more than one page of testimony were virtually all completed during the first week of the trials.  Haymond’s defense is on pp. 80-81.

[12]. St. Paul Pioneer, November 15, 1862.

[13]. Williamson to Seliah B. Treat, November 5, 1862, American Board of Commissioners for Foreign Missions Papers, transcripts, Minnesota Historical Society Archives.

[14]. “To the Editor,” St. Peter Minnesota Tribune, October 10, 1862.

[15]. “Affidavit of David and Alexander Faribault, January 16, 1863,” Senate Records, 37A-F2, RG 46, National Archives. 

Citation: Gary C. Anderson. Review of Haymond, John A., The Infamous Dakota War Trials of 1862: Revenge, Military Law and the Judgment of History. H-FedHist, H-Net Reviews. December, 2017. URL: http://www.h-net.org/reviews/showrev.php?id=49561

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