The Free Press, Mankato, MN

March 22, 2014

Presidential pardon sought for Dakota 38

Online petition unlikely to reach the president

By Tim Krohn
tkrohn@mankatofreepress.com

---- — MANKATO — Some Mankato residents have set up a petition on the White House website calling for a posthumous pardon of the 38 Dakota executed in Mankato more than 150 years ago.

But as with many things involved in the aftermath of the U.S.-Dakota War, the quest for a pardon is controversial, with some Dakota viewing it as an admission native Americans were criminals.

Mankato City Councilman Jack Considine said he was unsettled when, leading up to the 150th anniversary in 2012, the city was considering a memorial to the 38 and received negative feedback from some.

"We had a number of people stand up and say we shouldn't do it because these guys were convicted criminals."

Considine said he began to better research the trials of the Dakota. "I was kind of shocked to find that on average the trials lasted only 3 to 5 minutes and there was no defense allowed."

So Considine, working with the local Mahkato Mdewakanton Association, which helps coordinate the annual powwow, created a petition and posted it to the "We the People" White House website. President Obama developed the site to allow citizens to post petitions and he responds to them if a certain threshold of support exists.

Gwen Westerman, an English professor at Minnesota State University and a member of the Dakota, agrees the trials were a sham but opposes a pardon.

"In terms of a presidential pardon — that's a forgiveness of a crime. Those men were protecting our grandmothers, they were protecting our homeland. So for many of us that is not a crime," she said.

Westerman said she came to the conclusion a few years ago when there was an effort to pardon We-Chank-Wash-ta-don-pee, often called Chaska, who had his sentence commuted by President Abraham Lincoln but died on the gallows with the other Dakota the day after Christmas 1862.

"I realized it isn't the Dakota people who need to be pardoned, in the largest sense of the word," Westerman said.

Rather than well-intentioned gestures that effectively admit guilt on the part of the Dakota, Westerman thinks a deeper understanding of history would be more beneficial.

"It's a matter of ongoing learning and understanding. The people need to know the history and not the urban legends associated with the war in 1862."

Regardless of anyone's position on a pardon, the petition is not going to rise to the level of presidential attention, barring an astounding viral campaign in the next week.

Under rules of the site, petitions don't get reviewed by the president unless they get at least 100,000 signatures.

The Dakota pardon petition is nearly 99,500 short of that goal, a goal that must be reached by the end of the month.

(To find the petition go to: https://petitions.whitehouse.gov/ — then click on "open Petitions," then near the top center-right of the page click "search" and type in "Dakota 38.")

Still, Considine said the petition gets support when word gets out about it. Signers of the petition include St. Paul Mayor Chris Coleman and other elected officials around the state.

On Sept. 28, 1862, two days after the surrender at Camp Release, a commission of military officers established by Henry Sibley began trying Dakota men accused of participating in the war. Several weeks later the trials were moved to the Lower Agency.

As weeks passed, cases were handled with increasing speed. On Nov. 5, the commission completed its work: 392 prisoners were tried, 303 were sentenced to death, and 16 were given prison terms.

President Lincoln and government lawyers then reviewed the trial transcripts of all 303 men.

When only two men were found guilty of rape, Lincoln expanded the criteria to include those who had participated in “massacres” of civilians rather than just “battles.” He then made his final decision, and forwarded a list of 39 names to Sibley.

By any standards, the trials were rushed, the evidence was sparse, the defendants unrepresented and most were condemned for simply fighting in battle, not war crimes.

But what about the 38 who were ultimately executed following President Lincoln’s order?

Historian and attorney Walt Bachman argues that while there were obvious problems with the trials, those who were sentenced to death would have been found guilty of either rape or killing noncombatants in a fair trial.

In a 1990 article in the Stanford Law Review — “A study of Military Injustice” — University of Minnesota law professor Carol Chomsky wrote of the myriad problems with the way the military trials were handled.

Chomsky notes that the Dakota were recognized as a sovereign nation and had the right to declare war. Therefore, they should not have been condemned for fighting in a war with the U.S. — unless they overstepped the bounds of proper warfare.

Legal and military precedent, she noted, dictated that individual Dakota who committed acts that were more personally motivated and outside the sphere of the war — such as committing rape, robbery or killing a civilian — should be tried in state or federal criminal court — not in a military court as the Dakota were.

Judging whether the Dakota acted according to accepted rules of warfare or committed crimes is murky. Dakota who killed soldiers, or even citizen militia such as those in the siege of New Ulm, would be within the rules of warfare.

But the killing of noncombatants “is more problematic,” Chomsky wrote. The Dakota did kill many noncombatants, including women and children — something American and European custom would clearly view as a war crime.

But Chomsky noted that in 1862, the customs and history of Indian warfare were clearly different. “In intertribal Indian wars almost all members of the enemy nation — including women and children — were legitimate targets of attack and captives were rarely taken.”

From the Dakota viewpoint — based on their history as a sovereign nation — the killing of noncombatants was within accepted rules of warfare.