This project publishing the trial records of the Dakota men executed at Mankato in December 26, 1862, has been depressing. Yet, its necessity was underlined with the unveiling of the new monument in Mankato December 26, 2012 listing the names of the executed men.

The monument, thoughtfully designed and beautifully executed by Martin and Linda Bernard, is a meaningful expression of Vernell Wabasha’s dream of paying tribute to the 38 men who were executed blocks from where the new monuments stands.

Except that only thirty-six of the thirty-eight men listed were actually executed that day in 1862. Two Dakotas listed, lived, and the identities of the two men who were wrongly executed are missing from the monument.

The Dakota mantra for this 150th commemorative year, “forgive everyone everything” needs to stretch to embrace the historians who for generations have managed to not investigate the “mistakes” made in 1862 when the 38 men to be executed were separated out of the general prison population.

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This trials project deserves more time and attention than I have to give it. For now, I have to be satisfied with making the records available for others to use. For their generosity in collaborating, I am indebted to Walt Bachman for sharing his base transcriptions of the trials, and to John Isch, for the page images of the holographs to back up my transcriptions.

So here are the first five of ten parting observations based on 80-some hours inside the trial records of the thirty-nine Dakota men Lincoln slated for execution on December 26, 1862 for participation in the U.S. Dakota war.

1. Dates in the 1862 trial records

Dating a trial is important. Was a specific prisoner’s case one of a few tried on a single day? Or was he tried on the infamous day the tribunal is said to have heard 40 cases?

Confusingly, some cases contain four different dates. Here’s what to watch for:

• September 28, 1862 is the date Sibley issued General Order 55 authorizing the tribunal to,”to try summarily the Mulatto, and Indians, or mixed bloods, now prisoners, or who may be brought before them….” A copy of Order 55 appears at the top of each of the 393 cases brought in 1862.
• October 15, 1862. All cases tried on or after October 15 also bear a copy of General Order 65, reconvening the commission with Major Bradley sitting in for William Marshall, who had been sent out to capture Dakota people who had not surrendered. The date of Order 65 was mis-copied as the 16th and the 18th of October in some cases. I did not correct this copy error because it speaks to the process that generated the extant record. (See 2. below)
• Trial Date. The date I believe represents the date on which a case was tried generally appears with a location note just before the list of military tribunal members, like “Camp Sibley Lower Agency/ November 3 1862.” On some cases, the date is missing, appearing as “October [blank] 1862.” Because the trials were conducted in numbered sequence, future work by scholars will be able to approximate dates for these trials from the trial dates listed in adjacent cases. (This project captures only 10% of the cases; most of the data has yet to be analyzed.)
• 29 October 1862 is the fourth date, appearing at the head of the charge sheet of cases held on or after that date. My impression is that this date is an artifact of the form-copying process.

2. 1862 Trial Forms

In this day before photocopiers and printers, transcriptionists in the field copied piles of forms for the military commission’s use. The page images show that even the shortest trials required three sheets of paper, with writing typically on 5 of the 6 sides, and the back of the third page doubling as the wrapper/jacket. However most of the words in a typical case are boiler-plate language, possibly designed to guide the commission’s records “by Military Law and usage” –the closing dictate of Order 55. In the future, scholars will compare the 1862 Dakota case files to the records of similar military tribunals convened during the Civil War to find out.

A midst the copied language on the page images, watch for the recorder, Isaac Heard’s, handwriting: it signals the material original to each case. Heard’s handwriting appears:

• Every place the defendant’s name appears. The copyist left four blanks for the defendant’s name in each set of case forms; Heard filled them in.
• The witness list at the bottom of the charge/specification form.
• The page(s) of testimony summarizing what transpired in the court room.
• The commission’s sentence of judgment.

3. Witness List

In many cases, the names of the witnesses listed do not match the witnesses recorded as having testified in that case. I asked Walt Bachman about this anomaly and he confirmed my impression: that the list of witnesses on the charge sheet is an artifact of the pre-trial fact-finding process. The list likely reflects potential witnesses –people who presumably offered incriminating information that led the commission to try that defendant.

Presumably, some of this information was gathered by Stephen Riggs in his pre-trial investigation role. But there also seems to be correspondence, in some cases, to Dakotas who, at their own trial, implicated a man who had not yet been tried. Future scholarship on the body of trials as a whole should test that hypothesis.

Bachman rightly cautions that we cannot conclude a listed witness was not called based on the absence of his name from the recorded testimony; the record does not reflect everything that transpired in the courtroom. At the same time, especially after October 15, the threshold for convicting a defendant was so low, that the court may have closed the case as soon as it heard sufficiently incriminating information, without calling all the witnesses that might have contributed more information –incriminating or exculpatory.

4. The extant record is abridged

We can only wish these were verbatim transcripts like courts generate in the modern day. They are not. For example, in some cases, the defendant’s first recorded words appear to be a response to a question not written in the record. In other cases, the recorded testimony seems to follow a logical dialogue, with the defendant’s opening words sounding like response to the specific charges he was arraigned on. Then a witness challenges the defendant’s opening statement and the defendant replies to the witness’s charge.

In some cases, there is recorded evidence that the charges were read aloud to the defendant, and in another case that the concept of “oath” was explained to a witness, who affirmed he understood. However, evidence of these legal nuances are missing from many cases. Whether the commission routinely performed these steps but did not routinely record them, will always be conjecture because the record is not complete.

Even more troubling, we know in some cases that key information that was known to the court is missing from record. For example, defendant 359, Chan-ka-hda, told Riggs he believed he was being executed for the death Mary Anderson –a charge he protested, claiming that while he did in fact take Anderson captive, she had been shot by someone else.

But nowhere does his trial indicate that Mary Anderson died in captivity of her gunshot wound  as the court must have known (because they were seeking rape cases and Anderson was alleged to have been raped before she died), and for which the court might have charged 359/Chan-ka-hda. Instead, the court found Chan-ka-hda guilty of murder based on testimony that he was present when Patoille/Patville was killed –the same scene at which Chan-ka-hda took Anderson captive, he said, to save her.

So while the modern viewpoint is to consider the abridged trial record insufficient evidence of guilt to warrant the death sentence, the incomplete record also cuts the other way: if each defendant had been fully tried by modern courtroom procedures  the resulting record might  show the defendant was more deeply implicated than the abridged record shows.

5. Pre-and Post- October 15 trial differences

Walt Bachman and Scott W. Berg are leading the way on an important new interpretive point: that the pace and nature of the 1862 trials dramatically shifted with the order from General Pope to Sibley that resulted in Sibley’s Order 65 on October 15, 1862. Berg’s arguments are public in his new book, 38 Nooses: Lincoln, Little Crow and the Beginning of the Frontier’s End. Bachman summarized his analysis, detailed in his forthcoming Northern Slave, Black Dakota: The Life and Times of Joseph Godfrey, in public presentation in Bloomington, MN, on August 26, 2012.

While I found both authors’ arguments compelling, I had never spent time with the trial holographs as Berg and Bachman did.  Now I have, and I’m a believer. From this point forward scholars will not be able to credibly make blanket dismissive assertions like, “they tied 40 men per day.” There are important, significant differences in the cases held before and after October 15, 1862 –differences which can be seen in the 39 trial records published in this series. Future scholarship will develop those differences and explore their implications for the justice of the sentences rendered in 1862.

Observations 6-10  are next up.

Image credit: Winona Daily Tribune