Pardon the Mankato 38?

Execution 150 Years Ago Spurs Calls for Pardon

By Robert K. ElderOn Dec. 26, 1862, thirty-eight doomed Dakota Indians wailed and danced atop the gallows, waiting for the trapdoors to drop beneath them. The square scaffold, built here to accommodate the largest mass execution in United States history, swayed under their weight.

An engraving depicting the scene of the mass execution of 38 Dakota Indians on Dec. 26, 1862.

“It seemed that the purpose of the singing and dancing was only to sustain each other in their last ordeal,” a witness observed. “As the last moment rapidly approached, they each called out their name and shouted in their native language: ‘I’m here! I’m here!’”

Thirty-seven of the men were among the “most ferocious” followers of the Dakota leader Little Crow, according to the federal government. They stood accused of killing approximately 490 settlers, including women and children, in raids along the Minnesota frontier.

But one man, historians say, did not belong there. A captured Dakota named We-Chank-Wash-ta-don-pee, often called Chaska, had had his sentence commuted by President Abraham Lincoln days earlier. Yet on the day after Christmas 1862, Chaska died with the others.

It was a case of wrongful execution, Gary C. Anderson, a history professor at the University of Oklahoma and Little Crow biographer, said last week in an interview. “These soldiers just grabbed the wrong guy,” he said.

Although the story of the mass execution in Mankato is well-known locally, scholars say the case of Chaska—spared by Lincoln, then wrongfully executed—has been long overlooked by the federal government and all but forgotten even by the Dakota.

Now, an effort to keep the story alive is taking root on campuses and even on Capitol Hill as the 150th anniversary of the execution, in 2012, approaches. Commemorative events will include symposiums, museum exhibits, monument re-dedications, book publications and an original symphony and choral production.Comment:  The article discusses the possible pardon of only one of the 38 men hanged. It doesn't go into whether the others deserve a pardon also.

Below a website discusses the problems with their convictions, including the most obvious one: whether the Dakota were members of a sovereign nation fighting a war against the US.

How Fair Were the Dakota Conflict Trials?Did the Commission allow adequate time to consider the evidence?

The order creating the Commission said that it was to"try summarily the mulatto, mixed bloods, and Indians engaged in the sioux raids and massacres." And try summarily it did. The Commission conducted 393 trials over a six-week period. On the last day alone, the Commission heard and decided nearly forty cases. The rapidity of trials increased over time.

Should the accused have been provided with counsel?

The Sixth Amendment guarantees to defendants in criminal trials the right to assistance of counsel, but Henry Sibley was of the view that the right did not apply in trials before military commissions. Sibley and the Commission turned down the only request for counsel that was made.

Were the verdicts supported by the evidence?

Most of those convicted undoubtedly committed acts described in their specifications and thus, if one assumes that the acts specified constitute crimes deserving of punishment, most were guilty. In many instances, however, the crime alleged was mere participation in a battle, so that evidence that the defendant fired a shot, supplied ammunition, or in any other way significantly aided in the combat was enough to earn him a death sentence. Mitigating evidence, such as the fact that the defendant may have prevented a rape or a murder, was generally ignored.

Were Commission members prejudiced against the accused?

The members of the Commission were all military men and local residents. The men they were asked to pass judgment on were in many cases the same men that had attacked them and their troops. One of the Commission's members, William Marshall, frankly admitted his own difficulty in viewing the evidence impartially: "[my] mind was not in a condition to give the men a fair trial."

Should the accused have been viewed as legitimate belligerents of a sovereign nation rather than as common criminals?

The use of force by individuals in a declared war between sovereign nations is generally not subject to the same treatment as would similar acts of assault or murder committed by individuals under different circumstances. Captured enemy soldiers are treated as legitimate belligerents and held as prisoners of war until hostilities cease and they are released.

Was the Commission authorized by law to conduct the trials?

The Supreme Court in 1857 upheld certain uses of military commissions, but lower court interpretations of the Court's opinion have limited commissions to situations where they were the result of military necessity. Although Minnesota was certainly going through a turbulent time in 1862, civil authority was never interrupted. State courts continued to operate and process criminal cases, and presumably could have processed charges against participants in the Dakota Conflict as well.For more on the subject, see Preview of Dakota 38 and Jerry Fogg's Mankato 62.

Below:  "An engraving depicting the scene of the mass execution of 38 Dakota Indians on Dec. 26, 1862."