In the midst of the Civil War, President Lincoln personally decided who among 303 convicted Dakota warriors would hang.

As the sun rose over Mankato, Minnesota, on the morning of the day after Christmas 1862, a door guard allowed a small party of missionaries and newspaper reporters to enter the ground floor of a riverfront warehouse, where they found 38 Dakota Indians chained to the floor and to each other, in pairs, by ankle irons. The reporters were there to take statements from men about to die, men who over the past several weeks had become both the embodiment of evil and the objects of keen fascination to the white people on what was then America’s Northwestern frontier.

The Dakotas, most of them speaking through interpreters, had plenty to say. They told the reporters how “cheerful and happy” they were, how unconcerned they were about the prospects of their demise. They asked that this message be delivered to their wives and children. Then they began painting their faces. Later, when white soldiers arrived, the Dakotas began their death song, a deep, dissonant singing and chanting that continued as their chains were struck away and their arms pinioned, elbows tied behind and wrists in front. A Catholic priest read a prayer. Ten the prisoners were fitted with long eyeless caps made of white muslin. For a Dakota this was an immense indignity, the sign of a bad death; they would meet their fate with heads hooded, in the dark.

Just before 10 o’clock the men were led out the door and across a wide lawn toward a towering square scaffold designed to hang all of them at once, made of enormous wood crossbeams with 10 notches for 10 ropes on each side. They could see the rows of spectators stir and hear the sudden shift in sound as they stepped into the unusually warm winter sunlight. Delivered to the officer of the day at the foot of the gallows, they shoved at each other as they climbed the steep steps, making another exaggerated show of their unconcern, and then they were maneuvered into position. In one direction, beyond the town, they could see prairie. In another direction, below them, the narrow, winding Minnesota River, on whose banks a large, shallow grave had already been dug. All around, 5,000 whites had gathered, crowding the lawn, hanging from windows, and seated on roofs, all separated from the condemned Dakotas by a double row of U.S. cavalry troopers forming a square around the scaffold.

Rough hands slid 38 separate ropes over their heads to rest heavily on their shoulders. Their caps were rolled down over their faces, and one by one they lost sight of the world. All of existence became their own singing and the sounds of the murmuring crowd. Sixteen minutes had elapsed since the prisoners had emerged into the light. In the hush, a sharp spoken order was given, followed by three deliberate drumbeats.

Exactly three months before the Christmas executions of 1862, on September 26—the same day that news of Lincoln’s Preliminary Emancipation Proclamation first appeared in Minnesota newspapers—a militia colonel named Henry Hastings Sibley and a small group of aides rode into a crowded refugee camp alongside the Minnesota River, a narrow, winding tributary of the Mississippi. Many things were happening in that moment: A Union military force behind Sibley was celebrating victory in a short but harrowing Indian war; a small group of Dakota warriors and their leaders were fleeing to the west to escape the white soldiers; more than 300 women and children, whites and mixed-­bloods, were about to end a long ordeal of captivity; and 2,000 Dakotas who had not fed wondered what Sibley’s arrival would mean. Beyond the camp, for hundreds of miles in every direction, a white populace demanded vengeance, immediate and final.

The war that was ending here—a war historians have called by many different names, including the Sioux Uprising, the U.S.­ Dakota War, the Minnesota Massacre, and Little Crow’s War—had begun on August 18, 1862, with a random killing of five settlers in Acton, near the center of the state. For most citizens of Minnesota—a state only four years old—the Dakota War was a demonstration of the true savagery of the Indian bands that had preceded them on the farmlands and river valleys they now called home. For the state’s more than 8,000 Dakota residents, the war was much more complicated in its causes, origins, progress, and conclusion. Little Crow, a former village leader and tribal spokesperson, had served as the Dakota’s ostensible leader. But he spent much of the war at loggerheads with the wartime tiyotipi, or soldiers’ lodge, a council of young men unshakably in favor of violent resistance to white encroachment and scornful of talk of negotiation or caution. Thousands of other Dakotas and mixed-­bloods had gone along with the war or watched with divided or shifting loyalties. Some had killed whites; some had protected whites; but most wanted nothing to do with whites.

While a few hundred Dakota warriors had fought a series of battles against townspeople and soldiers, an even smaller group had committed sudden and deadly attacks on white settlements. The death toll over six weeks totaled more than 40 Dakotas, more than 100 soldiers, and more than 600 settlers, many of them women and children, whose bodies were sometimes impaled or dismembered. While decision makers in Saint Paul absorbed the anger of an entire populace and pondered the economic prospects of a state soon to be emptied of Dakota Indians, the war’s toll sat heavily on Sibley’s shoulders as he rode into the camp of white survivors and Dakota refugees. Foremost among the many decisions he would make today was to determine what, in this situation, would constitute the proper dispensation of justice. Those decisions, rendered during some of the most crucial moments of the Civil War for the Union, would eventually bring the personal involvement of President Lincoln and result in the largest mass execution in American history. Sibley’s decisions shaped a moment in the history of American war, law, and race relations that has generated unanswered (and perhaps unanswerable) questions for 150 years.

Henry Hastings Sibley came to the Northwest from Detroit in 1834 as an ambitious young clerk for a subsidiary of John Jacob Astor’s American Fur Company. Over the next 14 years, he had experienced as many aspects of Dakota life as was possible for a white man. He became a regular companion to the Dakota, accompanying warriors close to his own age, including Little Crow, on hunts and living in Dakota villages for months at a time. In 1841, at 30, he had fathered a girl with a village chieftain’s daughter named Red Blanket Woman. Tough the mother would die of unknown causes a few years later and the child would be placed with a white foster family, in Dakota eyes Sibley had bound himself to them with the tightest possible knot.

That was many years ago, however. In the interim, Sibley served as the Minnesota Territory’s first congressional delegate (1849–1852) and the state’s first governor (1858–1860), all the while playing an instrumental role in negotiating treaties that established an ever-­tightening system of credit and debt while shrinking the Dakota’s land from several million acres down to one 40­mile­long and 10­mile­wide strip on the south side of the Minnesota River. After his single term as governor, Sibley had moved into a kind of political consultancy, working to influence national politics on behalf of Minnesota interests. That is what he was doing on August 19 when a messenger sent by Governor Alexander Ramsey rode up to his stately three-story brick home in Mendota, across the river from Saint Paul, with urgent news: The Dakota had risen and would need to be met with force. With no prior military experience—but with firsthand knowledge of the participants and of the region’s history—Sibley rode downriver with four companies of the newly created 6th Minnesota Regiment to take command of 1,400 men, most on foot, most with no experience in battle and no ammunition to match their rifles.

Over the next two weeks Sibley had stewed through delays, waiting for supplies, arms, and horses. He was finally able to set out for the Dakota reservation along the south side of the Minnesota River in early September, but soon afterward he found himself saddled with John Pope, the self-­aggrandizing and exasperating federal general who had been sent to Minnesota by President Lincoln to “deal with” the Dakota after his failure to repulse Robert E. Lee at Second Bull Run. Pope arrived in Saint Paul in mid­-September a bitter and bilious man, determined to take out his personal and professional frustrations on the Dakota, pushing Sibley with ever more impossible demands delivered in an endless stream of hectoring letters. In the field, meanwhile, Sibley came across the bodies of settlers and soldiers, sent messages to Little Crow, and made promises of protection under a white fag to “friendly” Dakotas, promises that would later become one of the most contentious points of the postwar legal proceedings. Finally, on September 24, beside a small lake near the border of the Dakota Territory, his forces—now augmented by 270 paroled infantrymen from the battle­tested 3rd Minnesota, a small batch of federal enlistees from Wisconsin, and a handful of six­-pound cannons—had defeated those of Little Crow in the war’s final and decisive battle.

Four days later, Sibley formed a military commission made up of five officers under his command who had fought in the Dakota War. Over the first two or so weeks of trials, held initially in a large covered tent at the center of the plateau and later in a brick summer kitchen, standard courts-martial protocols were followed, including arraignments, specification of charges, and pleas. By the trials’ end at the beginning of November, though, with winter coming on and General Pope pressing hard for a quicker resolution, such niceties were cast aside and as many as 40 trials were held in a single day. In six weeks, the commission’s “prairie courthouse”—the first-­ever military commission established to try Indian combatants en masse—tried more than 400 Dakotas on charges that at first focused on murder or rape but later included inciting others to violence and the act of firing, or even holding, a gun on a field of battle. Toward the end of the trials, evidentiary standards had shrunk to the level where the word of a five-­year-­old boy saying that he had seen a particular Dakota warrior in a particular place was admissible. In the end, 303 Dakota were condemned to death by Sibley’s military commission, though none was told of his fate until much later.

For many Minnesotans, 303 was not enough, and “extermination” became an of­t-used word. For some, it meant something like “expulsion from the state,” while for others it meant working to remove all traces of Indian customs and culture. For still others, including many of those in power in Saint Paul, it meant the utter annihilation of the Dakota people. White voices opposing these views were few, though many Christian missionaries among the Dakota, including Henry Benjamin Whipple, the state’s first Episcopal bishop, spoke out loudly against the rush to indiscriminate vengeance. Presbyterian John P. Williamson, whose father, Tomas, had founded the territory’s first Indian mission, outlined his frustrations in a letter to his mission board:

400 have been tried in less time than is generally taken in our courts with the trial of a single murderer. Again in very many of the cases a man’s own testimony is the only evidence against him….They are not allowed any counsel. They are scarcely allowed a word of explanation themselves, and knowing nothing of the manner of conducting trials if a mistake occurs they are unable to correct it. And often not understanding the English language in which the trial is conducted, they very imperfectly understand the evidence upon which they are convicted.

Chief Justice John Marshall had introduced the phrase “domestic dependent nations” into the country’s legal lexicon in delivering the majority opinion in the 1831 Supreme Court case of Cherokee Nation v. the State of Georgia, as a way of describing the relationship of the federal government to Indian tribes. Marshall wrote that it was a relationship “unlike that of any other two people in existence.” His wording was carefully wrought to deny states the right to individually “dispose” of Indian matters via treaty without congressional ratification, while aiming to avoid the complex legal and diplomatic tangle that would result from defining tribes as “foreign nations.” Marshall’s Solomonic decision settled nothing, and over the 19th century it would lead generals, politicians, and lawyers into any number of legal and philosophical thickets. In 1862, as the Dakota War came to end, it meant that Henry Sibley had little precedent on which to base his actions.

Sibley’s Special Order Number 55, issued the day the trials began, convened his military commission to “try, summarily, the Indians and mixed­-bloods, now prisoners, who may be brought before them by direction of the colonel commanding, and pass judgment upon them if found guilty of murder or other outrages upon the whites during the present state of hostilities.”

On Christmas Day—one day before the execution—a 64-­year-old public intellectual and Columbia College professor named Francis Lieber would begin work on a new set of the Laws of War, at Lincoln’s behest, designed to match old ideas to new ways of fighting. Until then, the Articles of War, established by the Second Continental Congress, got bent this way and that as the president and his advisers struggled to deal with a type and scale of conflict they had never encountered or imagined. General Winfield Scott had set a precedent for military commissions during the Mexican­-American War, in order to try Mexican civilians accused of crimes against U.S. soldiers. But his precedent provided little guidance during this, the first flare­-up of the Indian Wars in the Northwest. And Special Order 55 is notable for what it did not say and for what it fudged: It did not specify what it meant by “other outrages.” Nor did it mention external review, stating only that “the proceedings of the commission to be returned… immediately after their conclusion for the consideration of the colonel commanding,” meaning Sibley himself, despite the fact that the Articles of War—already revised twice since the start of the Civil War—called for executive review of all death penalties decided in the field.

The Minnesota prairie was a long way from Washington, but Lincoln and his cabinet watched the trials with a close eye. As they went on, Pope, along with Governor Ramsey, was sending messages in both directions: to Sibley, demanding that he and his weary forces be four places at once in order to try the Dakota, capture Little Crow, round up stragglers in the settlements, and house and feed the refugee Dakota; and to Lincoln, asking for ever more supplies and expressing his certainty that hangings were imminent and would be numerous. Pope’s messages to Washington had an effect opposite of their intent: The tenor of his communications was so close to hysteria that they seemed to call out for a rebuke. At Lincoln’s October 14 cabinet meeting, Secretary of War Edwin Stanton read aloud one of Pope’s especially strident dispatches, upon which the assembled officials agreed that the letter was “not the production of a good man or a great one.”

This was a pivotal moment. Shortly thereafter, in a telegram lost to history, someone in Lincoln’s cabinet reminded Pope of the necessity for executive review of capital sentences and encouraged him not to count on speedy executions. Reluctantly, Pope complied, and forwarded the commission’s verdicts and trial transcripts to Washington in early November. As the Dakota refugees were moved to a fenced enclosure at Fort Snelling near Saint Paul and the condemned warriors placed in a separate enclosure near Mankato, Lincoln bent to the task of sifting through 303 death sentences.

Lincoln’s review of the Dakota War trials has often been painted as an example of his extraordinary compassion, but the evidence makes clear that in this instance his attention was engaged as a man to whom the law was sacrosanct. He gathered a team of Interior Department attorneys—George Whiting and Francis Ruggles, under the direction of Assistant Secretary James P. Usher—to whom he gave specific instructions to look closely for cases of rape and murder of white civilians, and to set aside the commission’s death sentences of those convicted only of participating in a battle between Indian forces and the white army. With these stipulations, Lincoln was drawing a clear line between civilian crimes and the actions of military combatants, in effect rejecting the commission’s decision to delegitimize the Dakota right to wage war against white encroachment.

Lincoln’s legal team spent much of the end of November and the first week of December poring over the trial documents. On December 5, Minnesota senator Morton S. Wilkinson, aware of these deliberations, stood in Congress to demand that Lincoln “furnish the Senate with all the information in his possession touching the late Indian barbarities in the State of Minnesota” and delivered an oration detailing some of those “barbarities,” expressing the opinion that Sibley “ought to have killed every one of the Indians” rather than holding any trials. Wilkinson ended with dark threats of vigilante justice: “If this Government will not protect” the whites of Minnesota, he said, “they will protect themselves. It is human nature, and I could not stop it if I wished to do so.”

Lincoln, however, was already past all that. On the same day that Wilkinson spoke to Congress, the president sat at his desk and addressed an extraordinary document to Henry Sibley. He wrote: “Ordered that of the Indians and Half­-breeds sentenced to be hanged by the Military Commission…lately sitting in Minnesota, you cause to be executed on Friday the nineteenth of December, instant, the following named, to wit…” He then transcribed the names of 39 Dakotas to be hanged—taking pains to spell their Dakota names correctly according to the trial transcripts, each name placed within quotation marks and followed by a trial number and the words “by the record”—and instructed Sibley: “The other condemned prisoners you will hold subject to further orders, taking care that they neither escape, nor are subjected to any unlawful violence.” The judgment was made. He called his secretary, John Nicolay, into his office and asked him to copy the message and to send that copy to Sibley by special messenger.

Lincoln and his lawyers concluded that of the 303 sen­tences, 264 had failed to meet reasonable standards of evidence or procedure. They left 39 death penalties in place. (One additional stay would be issued in the week before the execution, after a personal appeal from several Minnesota missionaries.) These were not commutations; they did not set the men free or specify an alternate sentence or any other resolution. His decision issued, Lincoln moved on, checking the telegraph daily for news from Vicksburg, where Major General William Tecumseh Sherman seemed poised to loosen Confederate control of the lower Mississippi.

“No man on Earth hated blood as Lincoln did,” wrote David R. Locke, a newspaper editor and famous Civil War humorist much quoted by the president, “and he seized eagerly on any excuse to pardon a man when the charge could possibly justify it. The generals always wanted an execution carried out before it could possibly be brought before the President.” More than 1,600 court­-martial convictions came across his desk during the war, and Lincoln exasperated many of the governmental and military leaders closest to him by giving them such serious consideration, applying his signature mix of compassion, logic, and legal acumen: “If a man had more than one life, I think a little hanging might not hurt,” Lincoln wrote, “but after he is once dead we cannot bring him back, no matter how sorry we may be.”

In the case of Minnesota’s Dakota Indians, just as in his dealings with mutinous, or otherwise criminally inclined soldiers, Lincoln was willing to sanction executions where he felt reasonable moral standards had been violated and reasonable legal standards of the time upheld. Lincoln lost sleep over the questions of war and emancipation, but not over the many death sentences he confirmed or commuted. Just as the president was famous for his willingness to reconsider capital convictions, he was also well known for his reluctance to discuss such cases once they had been settled. The historical evidence suggests that once he handed the “black list” of 39 names to Nicolay, Lincoln was done with the Dakota War.

Not so, however, the people of Minnesota who mourned the loss of loved ones nor the thousands of Dakota who mourned the loss of an entire way of life. A brief spasm of righteous indignation greeted the news of Lincoln’s decision—as well as a great many threats of “private revenge”—but in the end the whites of Minnesota calmed. They had had their execution, after all, and they were also mollified by the rosy picture of the state’s economic future, which now seemed ever more promising and secure. Meanwhile, the 2,000 Dakotas being held at Fort Snelling—most of whom had had nothing do with the crimes that prompted so many whites to call for their extermination—were placed on crowded steamboats and train cars for an arduous 700 ­mile trip to a nearly barren reservation near Crow Creek, South Dakota. Many would die during or in the wake of this exodus, part of a Dakota diaspora that sent tribal members all over the Western states and territories and as far away as the Pacific coast of Canada.

Today, many monuments to soldiers and settlers killed in the Dakota War stand in southwestern Minnesota. Recently, Dakota descendants, many of whom see Sibley’s military commission as just one bead on a string of historical agonies, erected a monument to the 38 hanged men, declaring them martyrs rather than villains.

In summer 2012, the Minnesota Historical Society mounted an ambitious exhibition, “The U.S.­ Dakota War of 1862,” as part of what it calls a “truth recovery” effort, using archival texts and artifacts to create a narrative of the war that does justice to the viewpoints of the white, Dakota, and mixed-­blood communities of Civil War Minnesota. Two artifacts in the MHS collection, however, were kept out of view: a length of rope purported to be one of the 38 nooses used in the Christmas hangings, and a large piece of wood said to be one of the crossbeams from the scaffold in Mankato. Questions of authenticity aside, both items were judged too contentious for display, a choice vocally challenged by some and as vocally supported by others. One hundred and fifty years after the events, it seems that the questions about justice remain a raw subject.

 

Scott W. Berg, a writing professor at George Mason University, is the author of 38 Nooses, a 2013 book about the Dakota wars and the largest mass execution in U.S. history.

Originally published in the January 2014 issue of Military History Quarterly. To subscribe, click here.