I approached the publication of the 39 1862 Dakota War trials with misgivings, having attended three presentations on the subject in 2012:

• Gary Clayton Anderson’s January 10, 2012 lecture at Gustavis Adolphus College in St. Peter, Minnesota
• Walt Bachman’s August 24, 2012 presentation at Oak Grove Presbyterian Church in Bloomington, Minnesota
• Presentations by Angelique Eaglewoman, Carol Chomsky, Paul Finkleman and Howard Vogel at the William Mitchell College of law 1862 Dakota war Symposium held August 26, 2012 in St. Paul.

The cumulative effect was a healthy skepticism about the trial record based on the fact that highly educated people were in fundamental disagreement about what the records said –from technical points like whether the defendants were arraigned on charges, to big-picture questions like whether Sibley’s military tribunal had the authority to conduct the trials.

All of the presenters agreed with Lincoln’s assessment that ordinary activities of war, like firing a gun at a battle, did not constitute a war crime worthy of the death sentence. That was one of the main principles on which the military commission rendered 303 death sentences in 1862.

But I was impressed that even the lawyers did not agree on fundamental questions like whether any of the decisions rendered under the circumstances could be just –implying that Lincoln’s approval of 39 of the death sentences was also unjust.

So I approached the trial records with misgivings, expecting to find evidence of a deeply flawed process. Instead I found the 6th of my 10 parting observations on trial record:

6. The Confidence of the Commission

The records of the 1862 military commission are remarkably un-selfconscious. The commission seems to have created its records guided by internal understanding of its obligations, a conscientious adherence to form –a form I suspect the commissioners believed constituted “accepted Military Law and usage.”

This makes the actual record a stark contrast to the “railroaded” and “shortcut” record some scholars have imagined. Had the commission genuinely been interested in railroading convictions rendered in secret in the field, it might have skipped copying what must amount to almost a thousand pages of busy work for multiple scribes: the trial forms.

The real beef of modern scholars who cry “railroaded!” is that the recorded testimony is egregiously short in most cases, especially given the fact that we know (the defendants probably did not) that each man was on trial for his life. That’s an important point.

At the same time, scholars have not considered the evidence that the 1862 commission faithfully recorded every last bit of trivia they felt required to record. (Many elements of the trial forms strike me as trivial; military scholars may deem those elements essential.)  It doesn’t seem likely that these conscientious recorders would fall off their high horse every time it came to recording testimony.

Rather, I think Bachman and Berg have hit upon a key point: that the brevity of the testimony is evidence of how low the commission’s standards for proof of guilt were, especially after October 15. The commissioners recorded the little they needed to record given the mandates they were working under.

7. Cultural Conflict

We approach the record with an appreciation for cultural differences that very few people tolerated in the 19th century.

Lincoln’s acceptance of the list of 39 Dakota men that George Whiting and Francis Ruggles, identified as having been convicted of rape or murder, suggests all three men concurred that the commission’s findings in those cases. Further, Whiting and Ruggles pulled 40 case files (the 39 plus Joseph Godfrey’s) for Lincoln’s consideration. Neither they, nor Lincoln, found the commission’s proceedings legally unfounded.

Yet I could not help but wince making the transcriptions juxtaposing the Whiting and Ruggles summary on the trial record, and upon the same defendant’s “confession” to Stephen Riggs. According to 19th century legal standards (which I understand still hold true today) a defendant’s boast of having killed someone is usually an exception to hearsay rules –that is, it inadmissible in court.

So it seems many defendants sealed their own fate months before they stepped foot in the courtroom tent –those nights the first week of the war they returned to camp and did what Dakotas expected warriors to do: recount “kills” accomplished on behalf of the oyate, their people.

Unfortunately, the audience around those campfires was mixed. Dakotas who supported the war likely did the traditional thing: praised the warriors as they recounted their deeds. But those who felt conscripted into the war or who outright opposed it, and mixed blood hostages, too, were listening. Later, they showed up in court as a witness and repeated the kills-boast as an accusation against the warrior who made it.

A number of Dakota men executed for murder were actually convicted not on eye-witness testimony to that act, but because they boasted about a “kill.”

Dakota defendants, obviously, were well versed in the nuances of their own culture. They tried to explain to the court, and then to Riggs, that from their point of view, only the warrior who fired the bullet or arrow that actually killed a victim was guilty of  murder. Therefore, many defendants argued, they were not guilty because they had only a fired a bullet at a living person, not the fatal bullet. These same defendants often had an uncanny ability to discern whose bullet killed a victim: it was rarely their own.

They also tried to explain that a warrior could count as a “kill” a less-violent act like striking a victim’s body with an object as innocuous as a flute. But the defendants did not view themselves as murderers for touching a victim killed by someone else.

The court didn’t listen to arguments about cultural norms; it seems it convicted defendants based on the commissioners’ own western ideas what constituted murder.

At the same time, it is curious that in the rush to understand modern Dakota views of the war, historians have applied stereotypes about Native Americans to the trials, positing ideas about full Dakota defendants like nobility, truth-telling, stoicism, and keen memory, while ascribing treachery to people of mixed- or no Dakota blood.

Instead, the trial records show some warriors claimed (literally) that they were too cowardly to fight. In the courtroom, others developed amnesia about their actions. Still others deflected culpability by naming another Dakota as having fired the fatal shot.

A remarkable number of defendants carried bad guns that misfired at the critical moment, or found themselves too hungry or sleepy to join in a battle. A few readily owned up to rape or murder, and were convicted on their own admission, not the testimony of a mixed-blood person. And sometimes a mixed blood witnesses could think of nothing that implicated a defendant.

8. Did Whiting and Ruggles overstate the evidence in any of the 39 cases?

This is a question the lawyers among us will have to tangle with. It struck me that the Whiting-Ruggles summaries using language like “Convicted of…” more fairly reflect the trail record than the cases where they used “Confessed to…” or “Proven to have…”

They closed their December 5, 1862 report to Lincoln by noting, “To facilitate your reference to these particular cases [listed in the letter] we have withdrawn the papers from the records of the commission and submit them herewith.”

Those forty cases comprise over 200 pages of written material. Did Lincoln read each case or did he simply trust the Whiting-Ruggles summaries when he reprieved Godfrey and approved the other 39 death sentences? If Lincoln relied upon the Whiting and Ruggles summaries in any of the cases, the accuracy of those summaries is critical.

9. The Riggs “confessions” offer telling commentary on the trial records.

These so-called “Confessions and Protestations of the Condemned” appeared in many newspapers, copied from proof sheets of the Thursday December 26, 1862  Mankato Record supplied by the editor of that paper.

Although none of the papers gives a date, Riggs may have conducted these interviews with the 39 Dakotas condemned to death on Monday December 23, the same day the condemned men were selected out of the general prison population.

As reprinted in the Sunday December 28, 1862, St. Paul Pioneer, the article opens, “The following is a synopsis of the conversations held with the condemned prisoners by the Rev. Stephen R. Riggs, and written out by him for publication, as an authentic record of their dying confessions and protestations….”

After supplying the text of the 39 statements [transcribed at the end of each corresponding case here], the article concludes:

“And now, guilty and not guilty, may God have mercy upon these 39 human creatures; and, if it be possible, save them in the other world, through Jesus Christ his son, Amen.

In making these statements, confessions, and denials, they were generally calm; but a few individuals were quite excited. They were immediately checked by the others, and told that they were all dead men, and there was no reason why they should not tell the truth. Many of them have indited letters to their friends  in which they say that they are very dear to them, but will see them no more. They exhort them not to cry or to change their dress for them. Some of them say they expect to go and dwell with the Good Spirit and express the hope that their friends will all join them.

On Tuesday evening they extemporized a dance, with a wild Indian song. It was feared that this was only a cover for something else which might be attempted, and their chains were thereafter fasted to the floor. It seems, however, probable that they were only singing their death song. Their friends in the other prison have been in to bid them farewell, and they are now ready to die. S.R.R.”

Riggs did not have the trial records in front of him when he took the condemned men’s statements; the original records of the military commission (of which there was no copy) had been mailed to Washington D.C. weeks previously for Lincoln’s review.

Many of the defendants used their interview with Rigs to state the crime they understood they were being executed for. With the trial records absent from Minnesota, the condemned men probably could do no better than surmise why they were to be executed. But, too late for it to make any difference in the outcome of the trial, Riggs gave each man some freedom to tell his own story his own way. Many disputed the findings of the military commission.

10. I only published 39 trials, not 41.

You’re not missing two trials. As the project developed I changed my plan to publish two more trial records: the cases of the two men mistakenly executed. Their stories deserve to be told. But not here. I couldn’t bring myself to separate their cases out of the general prison population and associate them with the condemned men –even if that is what happened in 1862.