The Free Press, Mankato, MN

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March 22, 2014

Presidential pardon sought for Dakota 38

Online petition unlikely to reach the president

(Continued)

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.

 

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