Review – I Could not Afford Essay

 “I Could not Afford to Hang Men for Votes. Lincoln the Lawyer, Humanitarian Concerns, and the Dakota Pardons,”
By Paul Finkelman
http://www.wmitchell.edu/lawreview/volume39/documents/3.finkelman.pdf
Reviewed November 21, 2014

 Items of Interest

This essay is a good read for anyone who wants to know more about the various factors and people that influenced President Lincoln’s decision to hang 38 men following the Dakota War of 1862.

The author dispels some common beliefs on the meeting between Bishop Whipple and President Lincoln in September 1862. It is possible this meeting never took place.

I will review only the part of the essay directly related to the Dakota War of 1862.

 General Comments

  • Unbalanced – Several times, the author discredits reports of atrocities committed by the hostile Dakota during the war; but does not provide examples of atrocities that did occur. See Michno, Dakota Dawn: The Decisive First Week of the Sioux Uprising, August 17-24, 1862.
  • Unbalanced – The author devotes much text in defining what we should call the Dakota War of 1862. However, he does not examine this from the perspective of the Dakota majority who did not go to war.
  • Incorrect – At least one white and several Dakota/White mixed bloods were among the hostile Dakota who went to war, who were tried, who were hanged at Mankato and who died after the war. They were not all Dakota. 

Most Objectionable Statements

As many as 600 or more white settlers (some contemporary estimates put it at 1000), a few hundred soldiers, and somewhere between 100 (or less) and 300 Indians…died in this conflict. Another 300 or so Indians would die in the aftermath…
—Incorrect – About 100 white soldiers and citizen-soldiers were killed during the war.
—Unbalanced – Hundreds of whites died after the war as a result of the war.
—Incorrect – About 150 Dakota died during the war. About 500 (or more) Dakota died in the aftermath at Mankato, Fort Snelling, Davenport and Crow Creek.

Following the restoration of peace, General Henry Hastings Sibley appointed a military commission, which tried 393 Indians for “crimes” connected to the conflict.
—Incorrect – The commission tried 392 (including at least one white and several mixed-bloods) men at Camp Release and Lower Agency. They tried 14 Winnebago after reaching Mankato.
—Unbalanced – The author does not discuss the Dakota trial system. Had the hostile Dakota broken through the barricades at New Ulm and Fort Ridgely, they may have taken a few hostages, but they would have killed everyone else. There would have been no trials.

For the best work on the legal aspects of the trials, see Chomsky…Explaining the Sioux Military Commission of 1862
—Incorrect – For the best work on the trials see Bachman, Northern Slave Black Dakota: The Life and Times of Joseph Godfrey.

At least one of those executed, a man named Chaskay, was clearly innocent…Lincoln reprieved him at the last minute, but another man with a similar name, was reprieved instead…
—Incorrect – See Bachman, Northern Slave Black Dakota

Despite the war crimes committed by some of those executed, the whole episode is rightly condemned as a barbaric blot on the nation. It is remembered as the largest mass execution in American history.
—Incorrect – These 38 men were implicated in the murders of at least 99 innocent men, women and children and in the rapes of 2 women. However, for a few the punishment did not fit the crime. See Bachman, Northern Slave Black Dakota
—Unbalanced – What about the needless slaughter and torture of innocent white settlers by hostile Dakota? What if the U.S. had waged traditional Dakota warfare on innocent Dakota men, women and children?
—Incorrect – It was the largest simultaneous mass execution in American history.

None of these terms fully or adequately describe the events of that fall, however. The vast majority of the Dakota in Minnesota did not take part in the conflict. “The Sioux were at no time united, at no time committed as a nation to the purposes of the hostile minority.” Indeed, most of the Dakota in Minnesota opposed the resort to violence on ethical grounds and for practical reasons. The war, if that is what it was, cannot be seen as a war between two sovereignties, because the Dakota Nation did not authorize the war and most leaders of the Dakota opposed it. Many Dakota had converted to Christianity, adopted western dress and customs, become farmers, and were therefore unwilling to return to their past lives. In addition, most Dakota understood that a war with the United States was essentially suicidal.
—Excellent points! As long as we understand these points, it really doesn’t matter whether we call it a massacre, uprising, outbreak, war or rebellion. Conflict is too mild.

By 1862, the Dakota…lived on a tiny sliver of what had once been their vast territory.
—Incorrect – At 10 miles wide and combined 139 miles long, this was hardly a sliver.

In return for this land the Dakota had accepted annual payments – annuities – from which they purchased most of their food and other necessities.
—Incorrect – They received much more than annuity money.
—Incorrect – Prove they purchased most of their food and other necessities with their annuity money.

As such they were almost entirely dependent on the U.S. government for their survival through the annuities. Indeed, the failure of the annuities to arrive was what caused the outbreak of violence in the first place.
—Incorrect – Many were not entirely dependent on the U.S.
—Incorrect – The annuity money arrived 7 weeks late. This was one of the primary immediate causes of the Dakota War.

But in Minnesota in 1862, the Dakota Nation did not go to war with the United States. Only a small group of Dakota did.
—Absolutely correct.

There was no declaration of war or even an agreement among the Dakota that they should commence hostilities.
—Incorrect – A Lower Dakota Soldiers’ Lodge consisting of 100-150 men agreed to go to war.

…as the conflict came to an end, the army rounded up thousands of noncombatants, including those who did not support the violence, and destroyed their crops and homes.
—Incorrect – The author makes several references to this action. While Pope urged or ordered Sibley to destroy Indian houses and crops, there is no evidence that Sibley did this.
—Crops began to ripen in mid-August. It is likely that when the war started, crops on and off the reservation were consumed by the Dakota and their captives. These crops later provided food for Sibley’s army and the Dakota with Sibley. I can find no reports from Sibley that he destroyed Indian crops.
—Incorrect – Indian houses became the property of the Indian Department. I can find no reports from Sibley that he destroyed Indian houses. In one case, former Indian Agent Joseph R. Brown prevented soldiers from destroying Little Crow’s house because it was government property.

…Battle of Wood Lake…when somewhere between 700 and 1200 Dakota were forced to retreat from a force led by Colonel Henry H. Sibley.
—Incorrect – Samuel Brown wrote that 738 Dakota were on the Wood Lake battleground.

The British used the term “concentration camp” for the facilities used to intern Afrikaans civilians during the Boer War. The camp at Pike Island, which held about 1600 Dakota civilians, may in fact have been the world’s first concentration camp. About 300 Dakota died in this camp from disease and malnutrition.
—Incorrect – See my comment above on destroying Dakota crops and houses.
—Absolutely Incorrect – The author and the reader need to study these British concentration camps and compare them to the Fort Snelling Dakota Camp. Those who call Fort Snelling a concentration camp also compare this camp to Nazi concentration camps. The Fort Snelling Dakota camp was not a concentration camp.
—Absolutely Incorrect – Official army record state that about 102 Dakota died in this camp.
—Incorrect – Prove that any died of malnutrition.

Much of the behavior of the army after the conflict was over can only be described as racist vengeance, perpetrated against innocent civilians who had taken no part in the conflict, and some of whom had provided shelter for fleeing white settlers.
—Unbalanced – What should we called the mass-murder of more than 550 innocent white men, women and children by hostile Dakota?
—Unbalanced – Had the U.S. practiced traditional Dakota warfare, there would have been few if any Dakota remaining in the state.

Meanwhile, in violation of the traditional rules of war, combatants were put on trial and sentenced to death, on the theory that they had not been involved in a legitimate war, but rather had participated in some illegal violent activity.
—Unbalanced – The author focuses on the trials in general. More text should be devoted to examining the trials of those who were hanged. See Bachman, Northern Slave Black Dakota.

The Dakota who fought believed they had no choice, because their very existence was threatened by white settlers, Indian agents in Minnesota, and the policies of the National Government.
—Incorrect – It cannot be stated what all Dakota who fought believed. Many of these Dakota were forced to fight by threats of deaths to them and their families.
—Incorrect – The causes of the Dakota War were complicated. They cannot be stated this simply.

The initial cause was the delay in the annuity payments and the reality that the Dakota were facing starvation.
—Late annuity payments and starvation were 2 of the primary immediate causes.
—Incorrect – Not all of the Dakota were starving.

There were many underlying causes, including the corruption of the Indian agents and the often dishonest practices of the Indian traders, who persistently appeared to cheat the Indians out of much of their annuities.
—Disrespectful – If any Indian agent or fur trader was dishonest, name them and show proof.
—Incorrect – There was one Indian Agent, Thomas Galbraith.

Big Eagle thought the demands for change were coming too quickly and were accompanied by enormous white arrogance and racism.
—Incorrect – “enormous white arrogance and racism” are the author’s words not Big Eagle’s words. 

Under the treaties of 1851and 1858 the Dakota had ceded most of southern Minnesota to the national government in exchange for annual “annuity payments” for fifty years. The Dakota were slowly transitioning to a farming culture and lacked enough land to survive by hunting and fishing.
—Incorrect – In the treaties of 1851, the Dakota sold all of their remaining land in Minnesota, South Dakota and Iowa. They were not given ownership of their reservations.
—Incorrect – The treaties of 1858 were not land cession treaties. The Dakota were asked to vacate their reservation lands on the north side of the Minnesota River. They were paid a 2nd time for the vacated lands. They were given ownership of their reservations on the south side of the river.
—Incorrect – In the treaties of 1851 and 1858, they received much more than annuity payments for fifty years.
—Incorrect – The author implies the Dakota were confined to their reservations. This is incorrect.

…historian Gary Clayton Anderson argued that in mid-August the Dakota began to harvest what was the most abundant crop in memory and that by mid-August the Dakota had an abundance of food, and the serious food shortage that existed just a few weeks before no longer existed.
—Excellent point!

Treaty with the Yancton Sioux, Apr. 19, 1858, 11 Stat.
—Incorrect – The author credits the 1858 treaties with the Dakota to the Treaty with the Yankton Sioux. The Dakota had separate treaties.

They depended on the annuity payments for their very survival. But often they were cheated out of some of their money by corrupt Indian agents and Indian traders. In 1862, for instance, the Indian traders claimed half of the annuity for payment of goods previously given to the Dakota…
—Incorrect – They were not solely dependent on the annuity payments. Many continued to leave the reservations for various reasons including to hunt and seek food. As mentioned above, 1862 promised bumper crops.
—Disrespectful – Show proof that any Indian agents or traders cheated the Indians.
—Incorrect – It was a rumor that the fur traders would take half the 1862 annuity payment. This was one of the primary immediate causes of the war.

The conflict began in August 1862 at least in part because the annual payments “were months late in arriving.”
—Incorrect – The annuity money arrived 7 weeks late on the day the war started.

…by late August they were desperately running out of food.
—Incorrect – As stated above, by mid-August, they began to harvest an “abundant crop.”

The Upper Indian Agency at Yellow Medicine, fearful of violence from the Indians, and perhaps out of compassion for the Indians who faced starvation, began to distribute food in advance of the annuity payments.
—Incorrect – Thomas Galbraith, the Indian Agent issued annuity food at the Upper Agency under orders of Captain John Marsh.

Officials at the Lower Agency at Redwood, however, lacked such foresight or compassion and refused to allow the Dakota to purchase food on credit, in advance of the allotment, even though the Lower Agency had plenty of food on hand to distribute to the Indians.
—Incorrect – If “officials” means government officials, the government did not sell food to the Dakota. Thomas Galbraith, the Indian Agent, promised to issue food at the Lower Agency and then refused.
—Incorrect – If “officials” means fur traders, most of the fur traders stopped giving credits because they learned that a Soldiers’ Lodge planned to drive up their debts and then refuse to pay when the annuity money arrived.

Some traders did not trust the Dakota to pay their debts, while others had absolutely no sympathy for the desperation of the Dakota. This attitude was famously expressed by an Indian trader named Andrew Myrick who declared: “So far as I am concerned, if they are hungry, let them eat grass.”
—Disrespectful – Myrick learned that a Soldiers’ Lodge planned to drive up their debts and then refuse to pay when the annuity money arrived.

Little Crow’s followers responded to this callousness with violence. Frustrated and hungry, on August 17, 1862, a few Dakota attacked a white farmstead near Acton, in Meeker County, killing Robinson Jones, his wife, his adopted daughter, and two other white men.
—Incorrect – There are many different stories as to what happened in Acton Township. It cannot be said why 4 Dakota men killed 5 whites.
—Incorrect – These 4 men were members of Red Middle Voice’s Rice Creek Village.
—Incorrect – Acton was a location in Meeker County consisting of the Baker and Jones homesteads. Three men and a woman were killed at the Baker homestead. A young girl was killed at the Jones homestead.

Within a day the Rebellion was in full force…as many as 20,000 settlers in western Minnesota had fled to St. Paul.
—Incorrect – Settlers also fled from other parts of Minnesota.
—Incorrect – They all did not flee to St. Paul.

These farmers, who were innocent of hostile acts toward the Dakota, lost their crops, which they had to abandon in the fields, and suffered enormous hardships. More than a hundred other settlers, the majority of them women and children were also captured by the Dakota. A few were murdered after their capture, and some of the women may have been raped.
—Excellent points!

 After the battle, hundreds of Dakota immediately surrendered…
—Incorrect – These were mostly friendly Dakota. They did not surrender. They waited for Sibley to arrive.

The Dakota were not provided with counsel, as would have been done in a true court martial, and most of the trials were shams.
—Incorrect – According to Walt Bachman, counsel was not required by law.

Pope had destroyed the crops of not only the offending Dakota, but of other Dakota who had not been involved in the combat and also the Winnebagoes, who had nothing to do with the conflict.
—Incorrect – See my note above regarding destroying Dakota crops.
—Incorrect – I can find no record of Winnebago crops being destroyed.

Moreover, the military was surely powerful enough to protect the Dakota in custody if Sibley and Pope wanted this to occur.
—Incorrect – Many of the state militia were volunteers with limited enlistment terms. Men were needed in the Civil War. Where would these Dakota be placed in order to received food and supplies?

…[Sibley] was still planning further military expeditions to force these women and children to leave Minnesota…
—Is this correct? Was Sibley planning further military expeditions? Was he concerned about Dakota women and children in Minnesota?

[Ramsey] urged all citizens to refrain from attacking U.S. troops or Indians in the custody of the troops, and there were no more outbreaks of such vigilante violence.
—Incorrect – Author does not discuss the planned mob attack in Mankato that was broken up by soldiers under Colonel Miller.

At the meeting with Lincoln, Whipple discussed the corruption of the entire Indian Agency system, explaining how Indian agents, Indian traders, and others systematically cheated the Indians while lining their own pockets.
—Disrespectful – While Whipple did offer these criticisms, did he ever furnish any proof other than hearsay?

By this time Lincoln fully understood that the Indian agents and traders in Minnesota had been outrageous in their greed and incompetence.
—Incorrect – We know what some people told Lincoln, but can we say for sure what Lincoln understood?

[Following the Dakota War,] Pope was planning to escalate the violence into what can only be described as a war of genocide. For Pope the mass execution of prisoners was the beginning of this process.
—Unbalanced – If we say Pope was planning genocide, then we must say that the hostile Dakota committed genocide against white civilians.

Even Reverend Riggs, who urged Lincoln to “exercise your clemency,” also expressed “a great necessity . . . to execute the great majority of those who have been condemned by the Military Commission.”
—Disrespectful – Riggs’ reasons for this necessity should be given.

Carol Chomsky argues that Lincoln’s “judgments” to allow any executions were “questionable” because all the trials were “flawed.” But this argument ignores the fact that some of those executed had openly bragged about killing civilians, and that some of the evidence for what amounted to war crimes was persuasive and compelling.
—Excellent points in response to Chomsky!

 Thus, on December 6, he [Lincoln] sent General Sibley a list of forty men who would be executed. By the time of the executions this would be reduced to thirty-eight, as two more men were reprieved.
—Incorrect – There were 39 men on Lincoln’s list. One would be reprieved after the list was received.

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