Mitchell Hamline School of Law
Mitchell Hamline Open Access
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Minnesota Bounties On Dakota Men During e
U.S.-Dakota War
Colee Routel
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1
MINNESOTA BOUNTIES ON DAKOTA MEN DURING
THE U.S.-DAKOTA WAR
Colette Routel
†
INTRODUCTION .......................................................................1
I. B
ACKGROUND ..........................................................................5
A. The U.S.-Dakota War of 1862 ..............................................6
B. Dakota Raids in the Spring of 1863....................................12
II. M
INNESOTA’S BOUNTY SYSTEM ..............................................21
A. The Minnesota Adjutant General’s Bounty Orders ...............21
B. Implementation of the Minnesota Adjutant General’s
Orders and Payments Made ...............................................24
C. The Minnesota Legislature’s Involvement: A Bounty for
Killing Taoyateduta ..........................................................34
D. Blue Earth County’s Bounty Order......................................36
E. The End of Minnesota Bounties? State v. Gut.....................40
III. B
OUNTIES AND THE LAWS AND CUSTOMS OF WAR..................50
A. Laws and Customs of War in 1863 ....................................53
B. Laws Relating to Guerrilla Warfare ....................................57
IV. T
ESTING THE LEGALITY O F MINN ESOTA’S BOUNTY SYSTEM ....60
A. The Dakota as Sovereigns Capable of Declaring War .............60
B. The Dakota Decision to Go to War ......................................68
C. Federal Acknowledgement of the War ...................................74
C
ONCLUSION .........................................................................77
INTRODUCTION
The U.S.-Dakota War was one of the formative events in
Minnesota history, and despite the passage of time, it still stirs up
powerful emotions among descendants of the Dakota
1
and white
† Associate Professor of Law, William Mitchell College of Law. The author
would like to thank Jennifer Otto, Mary Bakeman, Chris Yoshimura-Rank, Lucas
Adams, and the reference librarians at the Minnesota Historical Society for their
research assistance, and Phebe Haugen and Dr. Bruce White for their helpful
comments on an earlier draft.
1. This article uses the term “Dakota” to refer to the Mdewakanton,
2 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
settlers who experienced this tragedy. Hundreds of people lost
their lives in just over a month of fighting in 1862.
2
By the time the
year was over, thirty-eight Dakota men had been hanged in the
largest mass execution in United States history.
3
Not long
afterwards, the United States abrogated its treaties with the
Dakota,
4
confiscated their reservations along the Minnesota River,
and forced most of the Dakota to move westward.
5
Generals Henry
Sibley and Alfred Sully then led expeditions into the Dakota
Territory to hunt down those Dakota who had refused to surrender
and accept this fate.
6
Sisseton, Wahpeton, and Wahpekute tribes. Historical documents refer to these
groups as the “eastern Sioux,” but the term “Sioux” is a French abbreviation of the
Algonquin word meaning “enemy,” and its continued use is discouraged by many
contemporary Dakota people. See G
ARY CLAYTON ANDERSON, LITTLE CROW:
SPOKESMAN FOR THE SIOUX 6 (1986) [hereinafter ANDERSON, LITTLE CROW].
2. Estimates of the number of dead on both sides of the war have varied
over the years. Most likely, 500–600 non-Indians were killed during the fighting in
August and September 1862. See M
ARION P. SATTERLEE, A DETAILED ACCOUNT OF
THE
MASSACRE BY THE DAKOTA INDIANS OF MINNESOTA IN 1862, at 124 (1923)
(concluding, after thorough research, that 490 whites (military and civilian) were
killed); Letter from Major-Gen. John Pope to Major-Gen. Henry Halleck (Sept. 23,
1862), in 13
U.S. DEP’T OF WAR, THE WAR OF THE REBELLION: A COMPILATION OF THE
OFFICIAL RECORDS OF THE UNION AND CONFEDERATE ARMIES, SERIES I 663, 663 (1885)
[hereinafter W
AR OF THE REBELLION, SER. I] (claiming that “over 500 people” were
killed in Minnesota); C
URTIS A. DAHLIN, THE DAKOTA UPRISING: A PICTORIAL
HISTORY 1 (2009) [hereinafter DAHLIN, DAKOTA UPRISING] (asserting that a
“conservative estimate” of whites killed in the 1862 War was 600). Little has been
written about the number of Dakota casualties during 1862, so it is harder to
provide an accurate estimate of their losses. K
ENNETH CARLEY, THE DAKOTA WAR OF
1862: MINNESOTA’S OTHER CIVIL WAR 1 n.* (noting that “we have no clear idea of
[Dakota] losses”). Compare S
ATTERLEE, supra, at 107–08 (listing thirty Dakota killed
during fighting in 1862), with Report of Colonel Henry Sibley (Sept. 23, 1862),
in 13 W
AR OF THE REBELLION, SER. I, supra, at 279 (Sibley reporting that thirty
Dakota were killed in the battle of Wood Lake alone), and Camp Release from
Brigadier-Gen. Henry Sibley to Major-Gen. John Pope (Oct. 17, 1862), in 13 WAR
OF THE
REBELLION, SER. I, supra, at 745. Far more Dakota died as a result of General
Sibley’s and General Sully’s military campaigns of 1863 and 1864. See, e.g., Letter
from Major-Gen. John Pope to Major-Gen. Henry Halleck (Aug. 14, 1863), in 12
U.S.
DEP’T OF WAR, WAR OF THE REBELLION, SER. I, PART II 451, 451 (1885)
(reporting 150 Dakota dead from Sibley’s expedition); Letter from Major-Gen.
John Pope to Sec’y of War Edwin Stanton (Sept. 22, 1863), in 12 WAR OF THE
REBELLION, SER. I, PART II, supra, at 569 (reporting over one hundred Dakota dead
from Sully’s expedition).
3. MARY LETHERT WINGERD, NORTH COUNTRY: THE MAKING OF MINNESOTA
327 (2010).
4. Act of Feb. 16, 1863, ch. 37, 12 Stat. 652, 652–54.
5. Act of Mar. 3, 1863, ch. 199, 12 Stat. 819, 819–20.
6. M
ICHEAL CLODFELTER, THE DAKOTA WAR: THE UNITED STATES ARMY VERSUS
THE
SIOUX, 1862–1865, at 80–87 (1998).
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 3
Not all of the Dakota were removed from Minnesota, however.
The United States allowed certain “friendly” or “loyal” Dakota, who
had helped whites during the War to remain within the state.
7
Additionally, a small number of Dakota made their way back into
the state during the spring of 1863, conducting raids on settlers
while looking for horses they could take to make their permanent
escape westward.
8
Swept away by hysterical reports of hundreds of
Dakota lurking in the Big Woods just waiting to attack,
9
the
Minnesota Adjutant General, at the direction of Minnesota
Governors Alexander Ramsey and Henry Swift, issued a series of
orders offering rewards for the killing of Dakota men found within
the state.
10
The first order authorized the creation of a corps of
volunteer scouts that would scour the Big Woods in search of
Dakota men.
11
They were to be paid not only a daily wage, but an
additional $25 for each scalp they were able to provide the
Adjutant General’s Office.
12
Subsequent orders permitted
individual citizens who were not part of the volunteer corps to
claim up to $200 for proof that they had killed a Dakota.
13
These
bounty orders remained in effect until at least 1868, when their
constitutionality was finally questioned by the Minnesota Supreme
Court in State v. Gut.
14
While dozens of books and articles have been written about
the U.S-Dakota War, no one has focused on the bounty system that
7. 2 WILLIAM WATTS FOLWELL, A HISTORY OF MINNESOTA 263–64 (1961); see
also H
ENRY BENJAMIN WHIPPLE, LIGHTS AND SHADOWS OF A LONG EPISCOPATE 133–34
(1912) (discussing how some of the Dakota who had rescued white captives during
the war, as well as the wives and children of Dakota scouts used by General Sibley,
remained living within Minnesota on land provided by Alexander Faribault);
The Friendly Indians, S
T. PAUL PIONEER & DEMOCRAT (WEEKLY), May 5, 1865
(discussing attempts to secure land for these “friendly” Indians).
8. ISAAC V. D. HEARD, HISTORY OF THE SIOUX WAR AND MASSACRES OF 1862
AND
1863, at 300 (1865); THROUGH DAKOTA EYES: NARRATIVE ACCOUNTS OF THE
MINNESOTA INDIAN WAR OF 1862, at 280 (Gary Clayton Anderson & Alan R.
Woolworth eds., 1988) [hereinafter T
HROUGH DAKOTA EYES].
9. W
INGERD, supra note 3, at 329. The “Big Woods” was an area of deciduous
forest that covered much of the middle portion of the State of Minnesota and was
used by both Ojibwe and Dakota hunting parties. SCOTT W. BERG, 38 NOOSES:
LINCOLN, LITTLE CROW AND THE BEGINNING OF THE FRONTIER’S END 6 (2012).
10. See infra Part II.A.
11. ANNUAL REPORT OF THE ADJUTANT GENERAL, reprinted in EXECUTIVE
DOCUMENTS OF THE STATE OF MINNESOTA FOR THE YEAR 1863, at 61, 192–93 (1864)
[hereinafter 1863
MINN. EXEC. DOCS.] (General Orders No. 41).
12. Id.
13. Id. at 198 (General Orders No. 60).
14. State v. Gut, 13 Minn. 341 (1868), aff’d, 76 U.S. 35 (1869).
4 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
had a profound impact on Dakota remaining in or returning to
Minnesota immediately following the War.
15
The brief accounts that
can be found in the existing literature are riddled with
contradictions. Some claim that the bounty system was created by
Governor Ramsey, others blame the Minnesota Legislature, and
still others claim both were responsible.
16
Scholars also disagree
about the number of payments made under the Minnesota bounty
system and to whom they were made.
17
Finally, while much recent
scholarship focuses on telling the stories of individual white settlers
killed during the U.S.-Dakota War,
18
no one has ever attempted to
uncover the circumstances surrounding the killing of the Dakota
men for which State bounty payments were made.
Focusing attention on the Minnesota bounty system is
necessary to provide a balanced perspective of the atrocities
committed on both sides of the conflict. It is also important in a
broader sense, because Minnesota was not the only state that
placed a bounty on its Indian inhabitants. Around the same time, a
bounty system was enacted by the territory of Arizona, and one was
also implemented by private citizens and local governments within
the state of California.
19
Like the bounty system in Minnesota, these
programs were creatures of state and territorial law, but they were
implicitly and explicitly approved by the federal government. In
fact, they could be viewed as part of a much broader extermination
program that was at the heart of federal Indian policy during this
time period.
20
This program should not be whitewashed from the
history of federal Indian policy.
This article uses primary historical sources to describe the
events leading up to the enactment of a bounty system in
15. The most thorough treatment of the Minnesota bounty system can be
found in an unpublished manuscript available only at the Minnesota Historical
Society. See David L. Beaulieu, The Fate of Little Crow, 1863–1970 (1970)
(unpublished manuscript) (on file with the Minnesota Historical Society).
16. See, e.g., W
INGERD, supra note 3, at 329 (“Thanks to Governor Ramsey and
the state legislature, shooting Indians soon could be a profitable as well as
satisfying pastime. By summer the state was offering bounties for Dakota scalps.”).
17. For example, some scholars have erroneously claimed that either Nathan
or Chauncey Lamson was paid $75 for Taoyateduta’s (Little Crow) scalp in
addition to the $500 payment that was ultimately made by the Minnesota
legislature. See infra note 188.
18. See, e.g., C
URTIS A. DAHLIN, DAKOTA UPRISING VICTIMS: GRAVESTONES &
STORIES (2007) [hereinafter DAHLIN, GRAVESTONES].
19. See infra Part III.
20. See infra Part III.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 5
Minnesota, its creation, and subsequent on-the-ground
implementation. In an attempt to avoid the pitfalls of “presentism,”
the legality of this bounty system is analyzed according to the laws
in effect in 1863, when it was created. This article concludes that
the Minnesota bounty system was illegal from its inception, as it was
contrary not only the international law of war, but also the Lieber
Code, which was issued by the U.S. Secretary of War in April 1863
and used to govern the conduct of Union soldiers during the
ongoing Civil War.
21
I. B
ACKGROUND
For the white settlers who lived in Minnesota, the U.S.-Dakota
War seemed to begin without warning. For the Dakota, the war was
the inevitable result of festering animosity surrounding the
negotiation and implementation of treaties with the United States.
In a series of treaties executed between 1837 and 1858, the Dakota
ceded nearly all of their land in the State of Minnesota.
22
These
treaties were negotiated using intimidation, trickery, and outright
fraud by the United States.
23
By 1858, all that remained of the
Dakota homeland was a small reservation 10 miles wide and 140
miles long running along the south shore of the Minnesota River in
southwestern Minnesota.
24
On this small strip of land the Dakota were unable to sustain
themselves through their traditional means of hunting, fishing, and
gathering. Some turned to farming, which was part of the
assimilation program advanced by the United States.
25
But many
resisted these and other assimilation efforts, and their lives now
depended on the annuities of cash and goods promised to them in
the treaties. These annuities were always late in arriving, and when
they did arrive, traders took the bulk of the money claiming that it
21. See infra Parts III & IV.
22. See Treaty with the Mdewakanton and Wahpekute Bands of the Sioux,
Aug. 5, 1851, 10 Stat. 954; Treaty with the Sisseton and Wahpeton Bands of the
Sioux, July 23, 1851, 10 Stat. 949; Treaty with the Sioux, Sept. 29, 1837, 7 Stat. 538.
23. See, e.g., 2
FOLWELL, supra note 7, at 216–19; GWEN WESTERMAN & BRUCE
WHITE, MNI SOTA MAKOCE: THE LAND OF THE DAKOTA 148–54 (2012); see also DAVID
A. NICHOLS, LINCOLN AND THE INDIANS: CIVIL WAR POLICY AND POLITICS 65–66, 76
(2012) (noting that Congress investigated Alexander Ramsey for his role in 1851
treaty negotiations that led to the mishandling of $450,000 in Dakota money, and
discussing the amount of money that passed directly to traders).
24. C
ARLEY, supra note 2, at 3–4.
25. 2 F
OLWELL, supra note 7, at 219–21.
6 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
was owed to them for goods purchased on credit. Federal Indian
agents did little to reduce these frauds, as they were often complicit
in them.
26
Instead, the agents exacerbated the rifts growing within
the Dakota community by making resources available only to those
who were willing to participate in the United States’ assimilation
programs. Meanwhile, white settlers continued flooding the area,
encroaching on what little Dakota land remained.
While the causes of the U.S.-Dakota War are numerous,
scholars agree that starvation,
27
trader fraud, conflicts with white
settlers,
28
corruption in Indian affairs,
29
and the federal
government’s misguided assimilation program
30
were all
contributing factors. The events of the summer of 1862 simply
provided the necessary spark.
A. The U.S.-Dakota War of 1862
The winter of 1861–62 was a harsh one, and the 1862 annuity
payment that was supposed to have been paid in June did not
arrive.
31
The Dakota received assurances that it would be paid the
following month, and they began to congregate around the
reservation’s Yellow Medicine (Upper) Agency.
32
On July 14, food
and other provisions arrived at the agency, but Indian Agent
26. Id. at 214–15.
27. Robert Hakewaste, who was an important member of Taoyateduta’s band
in 1862, later recalled in testimony before a U.S. commission that “[w]e were in a
starving condition and desperate state of mind,” yet “the [Indian] agent did not
give us food as he promised.” T
HROUGH DAKOTA EYES, supra note 8, at 32; see also
W
INGERD, supra note 3, at 301–02 (noting that the Dakota were in “an extremely
destitute condition,” yet the traders would not allow them to buy goods on credit
(internal quotation marks omitted)).
28. G
ARY CLAYTON ANDERSON, KINSMEN OF ANOTHER KIND: DAKOTA-WHITE
RELATIONS IN THE UPPER MISSISSIPPI VALLEY, 1650–1862, at 252–53 (1997)
[hereinafter A
NDERSON, KINSMEN] (noting that in the weeks preceding the war, the
Dakota “held nightly discussions regarding the increasing number of white
settlers, the actions of the traders, and the delay in the cash payment”).
29. N
ICHOLS, supra note 23, at 65–76, 92; see THROUGH DAKOTA EYES,
supra note 8, at 24, 29–30 (relaying Big Eagle’s and Wabasha’s accounts of the
causes of the war).
30. T
HROUGH DAKOTA EYES, supra note 8, at 23–27 (providing Big Eagle’s
account of the causes of the war, as well as discussing the government’s
assimilation program and the divisions that it created within the Dakota
community).
31. CARLEY, supra note 2, at 5; WINGERD, supra note 3, at 301–02; see also
2
FOLWELL, supra note 7, at 228–29 (noting that the 1861 Dakota corn crops were
destroyed by cutworms).
32. ANDERSON, KINSMEN, supra note 28, at 249.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 7
Thomas Galbraith
33
refused to distribute it, believing that he should
wait until the money annuities had arrived.
34
By this time,
thousands of hungry Dakota were gathered around the agency.
35
In early August, a group of Dakota men tried to break into a
Yellow Medicine Agency’s warehouse holding food and other
goods.
36
This was an act of sheer desperation, as the warehouse was
surrounded by troops and artillery.
37
Missionary Stephen Riggs,
Lieutenant Timothy Sheehan, and Captain John Marsh were
ultimately able to avert a disaster by convincing Agent Galbraith to
release some food under the condition that the Dakota would go
home and return to the agency only when the money annuities had
arrived.
38
Chief Taoyateduta, also known as Little Crow, was present
during these negotiations and was promised that similar
accommodations would be forthcoming for his band at the Lower
Agency. But this promise was not kept.
39
He told Agent Galbraith:
We have waited a long time. The money is ours, but we
cannot get it. We have no food, but here are these stores,
filled with food. We ask that you, the agent, make some
arrangement by which we can get food from the stores, or
else we may take our own way to keep ourselves from
starving.
40
Galbraith turned to the traders and asked them for their
opinion. Trader Andrew Myrick said, “So far as I am concerned, if
33. Thomas Galbraith took over the job as Indian Agent to the Dakota in
May 1861. Galbraith had no experience with Indian issues, and he was arrogant,
stubborn, and a drunk. Id. at 246; WINGERD, supra note 3, at 294. During the war,
Chief Taoyateduta told Henry Sibley in a letter that “[f]or what reason we have
commenced this war I will tell you, it is on account of Maj. Gilbrait [sic].” Letter
from Little Crow to Colonel Henry Sibley (Sept. 7, 1862), in E
XECUTIVE
DOCUMENTS OF THE STATE OF MINNESOTA FOR THE YEAR 1862, at 444, 444 (1863)
[hereinafter 1862
MINN. EXEC. DOCS.].
34. 2
FOLWELL, supra note 7, at 228–29; ROY W. MEYER, HISTORY OF THE SANTEE
SIOUX: UNITED STATES INDIAN POLICY ON TRIAL 112 (1967).
35. A
NDERSON, KINSMEN, supra note 28, at 249 (noting Lieutenant Timothy
Sheehan “counted 659 lodges, or roughly seven thousand people”); 2 F
OLWELL,
supra note 7, at 228–29; M
EYER, supra note 34, at 112; NICHOLS, supra note 23,
at 77.
36. CARLEY, supra note 2, at 5; WINGERD, supra note 3, at 302–03.
37. 2 F
OLWELL, supra note 7, at 229; WINGERD, supra note 3, at 302–03.
38. A
NDERSON, KINSMEN, supra note 28, at 250; CARLEY, supra note 2, at 5–6;
2 F
OLWELL, supra note 7, at 229–30; MEYER, supra note 34, at 112–13.
39. M
EYER, supra note 34, at 114.
40. 2 F
OLWELL, supra note 7, at 232.
8 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
they are hungry, let them eat grass or their own dung.”
41
There was
a moment of silence, and then the Dakota left the Lower Agency.
42
Not long thereafter, on the morning of August 17, 1862, four
young Dakota men went out hunting in an area known as the Big
Woods, approximately thirty miles east of the Redwood Agency.
43
They came upon Robinson Jones’s homestead in Acton Township
(near present day Grove City), and before the morning was over,
they had killed Jones, his wife, his teenage daughter, and two other
men.
44
The four Dakota men returned to their homes at the Rice
Creek Village and consulted with Red Middle Voice, their
headman.
45
Red Middle Voice was concerned that federal officials
would retaliate against all Dakota for the actions of these four
young men. Ultimately, a council was convened that night at
Taoyateduta’s village, and the decision was made to go to war.
46
The U.S.-Dakota War began the next morning, when Dakota
warriors attacked the Lower Agency.
47
Twenty whites were killed
either in the initial attack or the subsequent flight.
48
Among the
dead was trader Andrew Myrick, whose body was found with grass
stuffed in his mouth.
49
From there, the Dakota traveled down the
Minnesota River valley, attacking settlements in their path and, in
many instances, killing civilians.
50
41. MEYER, supra note 34, at 114; see Letter from Little Crow to Colonel
Henry Sibley, supra note 33, at 444.
42. 2 F
OLWELL, supra note 7, at 233.
43. A
NDERSON, KINSMEN, supra note 28, at 253; THROUGH DAKOTA EYES, supra
note 8, at 34.
44. C
ARLEY, supra note 2, at 7–9. There are various accounts of the events that
precipitated these killings. According to Chief Big Eagle, the men found a hen’s
nest with some eggs in it. One of the Dakota men started to take the eggs when he
was stopped by another who was afraid that they would get into trouble. T
HROUGH
DAKOTA EYES, supra note 8, at 35–36. This made the first man angry. Id. He threw
the eggs to the ground and said: “You are a coward. You are afraid of the white
man. You are afraid to take even an egg from him, though you are half-starved.”
Id. The other replied that he was not a coward, and he would prove it by shooting
the white man who owned the eggs. Id. He dared the others to join him, and they
did. Id.
45. C
ARLEY, supra note 2, at 10; THROUGH DAKOTA EYES, supra note 8, at 36.
46. C
ARLEY, supra note 2, at 10–12; MEYER, supra note 34, at 117; THROUGH
DAKOTA EYES, supra note 8, at 36 (Big Eagle’s account). There are conflicting
accounts regarding whether a council was held, who was present at the council,
and whether war was formally declared. A more complete discussion of these
issues can be found in infra Part IV.B.
47. 2 FOLWELL, supra note 7, at 109.
48. C
ARLEY, supra note 2, at 14.
49. Id.; M
EYER, supra note 34, at 117.
50. 2 F
OLWELL, supra note 7, at 110–11.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 9
Minnesota Governor Alexander Ramsey immediately turned to
former governor and friend, Henry Hastings Sibley, to gather a
force to respond.
51
After battles at Fort Ridgely, New Ulm, Birch
Coulee, and other locations,
52
on September 23, thirty-seven days
after beginning the war, the Dakota forces were defeated at the
Battle of Wood Lake.
53
Soon thereafter, Taoyateduta and at least
150 Dakota fled to the western prairies, where they knew they could
not be pursued until the spring.
54
Taoyateduta’s exit left a path open for those Dakota who had
opposed the war from its inception. On September 26, these so-
called “friendly” Indians turned over 269 whites and mixed-bloods
that had been held captive.
55
Sibley took the remaining 1200–1800
Dakota into custody at Camp Release.
56
This number included
some defeated warriors, women and children, and a large
contingent of Dakota who had refused to join the war effort, some
of whom had protected white refugees fleeing the hostilities.
57
Rather than treat the Dakota as prisoners of war, on
September 28, 1862, Henry Sibley decided to convene a five-person
military commission to try certain Dakota for “murder and
outrages.”
58
Sibley informed General Pope that he would summarily
try those who had been involved in the war and if found guilty, he
planned to immediately authorize their executions, even though he
51. Letter from Governor Alexander Ramsey to Sec’y of War Edwin Stanton
(Aug. 21, 1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 590; Message
of Governor Ramsey to the Legislature of Minnesota (Sept. 9, 1862), in 1862
MINN.
EXEC. DOCS., supra note 33, at 3, 5.
52. See generally C
ARLEY, supra note 2 (containing accounts of the 1862
battles).
53. A
NDERSON, KINSMEN, supra note 28, at 274; MEYER, supra note 34, at 123.
Casualties were minimal in the Battle of Wood Lake. Sibley lost four men, and the
Dakota lost between sixteen and thirty men. But much of the Dakota force refused
to fight, making the end of the conflict obvious to Taoyateduta and the other
leaders. ANDERSON, KINSMEN, supra note 28, at 274; Letter from Brigadier-Gen.
Henry Sibley to Maj.-Gen. John Pope (Oct. 17, 1862), in 13 W
AR OF THE REBELLION,
SER. I, supra note 2, at 745; Report of Colonel Henry Sibley (Sept. 23, 1862), in
13 W
AR OF THE REBELLION, SER. I, supra note 2, at 279.
54. A
NDERSON, KINSMEN, supra note 28, at 275, 278; MEYER, supra note 34,
at 123.
55. MEYER, supra note 34, at 123.
56. A
NDERSON, KINSMEN, supra note 28, at 276.
57. Id.
58. Letter from Colonel Henry Sibley to Maj.-Gen. John Pope (Sept. 28,
1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 686–87; Letter from
Brigadier-Gen. Henry Sibley to Maj.-Gen. John Pope (Oct. 3, 1862), in 13 W
AR OF
THE
REBELLION, SER. I, supra note 2, at 707–08.
10 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
was unsure he had the legal authority to do so.
59
The
commissioners Sibley appointed were military officers that had
each fought against the Dakota just days earlier, but were now
expected to dispense impartial justice.
60
The commission decided
thirty to forty cases in a single day and some were heard in as little
as five minutes.
61
None of the Dakota were provided attorneys,
hearsay evidence was used against them, and many were prevented
from testifying in their own defense.
62
No distinction was made
between those Dakota who had fought soldiers in battle and those
who had killed civilians.
By November 5, 1862, the military commission had tried 392
Indians for “crimes” connected to the war, convicted 323 men, and
condemned 303 of those men to death.
63
Henry Sibley informed
General Pope that he expected to approve the results and, with
Pope’s permission, “hang the villains.” But the Militia Act of 1862
provided that no execution could take place without the
President’s approval.
64
As a result, General Pope telegraphed the
list of condemned men to President Lincoln on November 7, 1862.
After receiving the telegram listing the 303 Dakota men who
had been condemned to death, President Lincoln directed General
Pope to forward “the full and complete record of their convictions”
by mail.
65
Lincoln then struggled to find a solution that would
59. Letter from Colonel Henry Sibley to Maj.-Gen. John Pope, supra note 58,
at 686–87.
60. 2 FOLWELL, supra note 7, at 191, 192 n.3; WINGERD, supra note 3, at 313.
61. Carol Chomsky, The United States Dakota War Trials: A Study in Military
Injustice, 43 STAN. L. REV. 13, 27, 47 (1990); see also NICHOLS, supra note 23, at 95,
99–100 (noting that the average length of a trial was only ten to fifteen minutes).
62. N
ICHOLS, supra note 23, at 99–100. In one case, the only testimony taken
was a lone witness who stated: “I saw the prisoner . . . and he stated to me that he
was wounded at the Fort, and that he there fired one shot.” Id. at 100. The
prisoner was not allowed to speak in his own defense, and he was immediately
sentenced to death. Id.
63. There are small discrepancies among scholars in the final tally of those
convicted and acquitted by the commission. Compare Chomsky, supra note 61, at 28
(noting that of the 392 men tried, the commission acquitted 69 and convicted 323,
of which 303 were sentenced to death and 20 to imprisonment), with 2 F
OLWELL,
supra note 7, at 196
(claiming, after a complete review of the record, that 392
persons were tried, 70 were acquitted or not proven, 16 were sentenced to
imprisonment, and 307 were sentenced to death).
64. Act of July 17, 1862, ch. 201, § 5, 12 Stat. 597, 598 (“And no sentence of
death, or imprisonment in the penitentiary, shall be carried into execution until
the same shall have been approved by the President.”).
65. Letter from President Abraham Lincoln to Major-Gen. John Pope (Nov.
10, 1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 787.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 11
temper the draconian sentences Sibley and Pope wished to impose,
be severe enough to discourage another war, satisfy Minnesotans’
calls for revenge, and not risk losing his supporters in what was a
key northern state.
66
Initially, Lincoln planned to execute only
those found guilty of rape, but he discovered there were only two
such cases.
67
He then added the names of those who were believed
to have engaged in the killing of civilians rather than battles with
soldiers.
68
On December 6, 1862, President Lincoln personally
wrote out the names of thirty-nine Dakota men to be executed.
69
He ordered the remaining Dakota be held until further
instructions were received.
70
On December 26, 1862, before a crowd of some 4000 people,
the prisoners walked to the great wooden gallows specially
constructed just a few days earlier so that all thirty-eight men (one
of the men on Lincoln’s list received a last minute reprieve) would
die simultaneously.
71
The prisoners wore white muslin coverings
and sang a traditional Dakota song as they were led to gallows.
Ropes were placed around their necks, and a single blow from an
ax cut the rope that held the platform causing the prisoners to fall
to their deaths. This was the largest mass execution in American
history.
72
In February 1863, at the urging of Governor Ramsey and the
Minnesota Legislature,
73
Congress passed an act unilaterally
abrogating all treaties between the United States and the
Minnesota Dakota, confiscating their lands, and cancelling their
66. See, e.g., Letter from Governor Alexander Ramsey to President Abraham
Lincoln (Nov. 10, 1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 787
(“I hope the execution of every Sioux Indian condemned by the military court will
at once be ordered.”); NICHOLS, supra note 23, at 100–03, 106–11; Paul Finkelman,
“I Could Not Afford to Hang Men for Votes.” Lincoln the Lawyer, Humanitarian Concerns,
and the Dakota Pardons, 39 WM. MITCHELL L. REV. 405, 408, 412 (2013).
67. 2 F
OLWELL, supra note 7, at 209; NICHOLS, supra note 23, at 112.
68. 2 F
OLWELL, supra note 7, at 209; NICHOLS, supra note 23, at 100, 112.
69. 2 F
OLWELL, supra note 7, at 209; Letter from President Abraham Lincoln
to Brigadier-Gen. Henry Sibley (Dec. 6, 1862) (on file with the Minnesota
Historical Society).
70. Letter from President Abraham Lincoln to Brigadier-Gen. Henry Sibley,
supra note 69.
71. D
AHLIN, DAKOTA UPRISING, supra note 2, at 255; see ANDERSON, KINSMEN,
supra note 28, at 277; NICHOLS, supra note 23, at 117.
72. N
ICHOLS, supra note 23, at 117.
73. 2 F
OLWELL, supra note 7, at 245; NICHOLS, supra note 23, at 96–97;
Message of Governor Ramsey to the Legislature of Minnesota,
supra note 51, at 11.
12 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
annuity payments.
74
Less than one month later, Congress passed an
act removing the Dakota from Minnesota and authorizing the
President to assign them a reservation “outside of the limits of any
state.”
75
Nearly 2000 Minnesota Winnebagos who had taken no part
in the Dakota War were also forced to leave.
76
In April 1863, President Lincoln decided that no more
executions would take place, and he ordered the convicted Dakota
to serve indefinite prison terms in a camp near Davenport, Iowa.
77
For the rest of the Dakota, he approved their removal to the site of
a new reservation on the Missouri River in what would become
South Dakota.
78
By this time, at least 200 Dakota had died while at
the Fort Snelling internment camp due to the harsh winter, lack of
food, and disease.
79
Over the next month, as they traveled to the
Crow Creek Reservation, they left a trail of makeshift graves along
the riverbank, dug for passengers who had fallen ill and perished
along the trip.
80
Three hundred more died on this trip, as a result
of what Missionary Thomas Williamson likened to the slaves’
“middle passage.”
81
B. Dakota Raids in the Spring of 1863
In the winter of 1863, General Pope and Henry Sibley began to
plan an expedition to chase down the Dakota who had fled west
with Taoyateduta following the Battle of Wood Lake. Pope
instructed Sibley that when the spring came and he was preparing
74. Act of Feb. 16, 1863, ch. 37, 12 Stat. 652, 652–54 (1863); 2 FOLWELL, supra
note 7, at 246–48; see also Howard J. Vogel, Rethinking the Effect of the Abrogation of the
Dakota Treaties and the Authority for the Removal of the Dakota People from Their
Homeland, 39 W
M. MITCHELL L. REV. 538, 559–78 (2013) (discussing Congress’s
ability to unilaterally abrogate the Dakota treaties).
75. Act of Mar. 3, 1863, ch. 112 Stat. 819, 819–20 (1863).
76. N
ICHOLS, supra note 23, at 115–16, 121–22.
77. 2 F
OLWELL, supra note 7, at 262; NICHOLS, supra note 23, at 124–25.
The prisoners were eventually pardoned by President Johnson in April 1866.
2 F
OLWELL, supra note 7, at 262. More than 100 died in prison before they were
released. Id.
78. 2 FOLWELL, supra note 7, at 258.
79. C
ORINNE L. MONJEAU-MARZ, THE DAKOTA INDIAN INTERNMENT AT FORT
SNELLING, 1862–1864, at 61, 165 (2005). But see ANDERSON, KINSMEN, supra note 28,
at 278 (claiming that nearly half of the Dakota died at the Fort Snelling
internment camp).
80. 2 F
OLWELL, supra note 7, at 259.
81. Id.; M
EYER, supra note 34, at 146, 147–48. Hundreds more died shortly
after being relocated to the Crow Creek Reservation because the United States
failed to provide adequate food and clothing. MEYER, supra note 34, at 147–48.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 13
to leave the state, it was not “necessary or desirable that you should
keep up the small posts you have established for the winter along
the frontier. Don’t put yourself on the defensive, but on the
offensive.”
82
Governor Ramsey disagreed. As if anticipating General Pope’s
instructions, the governor sent Sibley a letter several days earlier,
requesting that he maintain a military presence in the state.
83
The governor claimed there was “a deep anxiety throughout the
frontier settlements” because it was believed that Dakota attacks
would begin anew in the spring.
84
He argued that “with five
regiments of infantry and one of mounted rangers at your disposal,
you will be able to proceed across the plains and chastise the Sioux
allies of [Taoyateduta] and at the same time guard our extended
settlements from any reasonable probability of an inroad from
Sioux or other Indians.”
85
Sibley replied in a letter dated February 14, 1863.
86
He told
Governor Ramsey that he had already issued an order commanding
officers along the frontier to construct stockades where settlers
could flee in case of attack.
87
Scouts would be employed so they
could sound the alarm if Dakota were seen approaching the
settlements. On the other hand, Sibley pointed out that he did not
know the size of the force that he would have at his disposal for the
expedition to the Dakota Territory; therefore, he did not commit
to leaving any troops to protect settlers in Minnesota. Instead, he
suggested that companies of militia be formed that could defend
their hometowns, if necessary. Sibley believed that these militia
groups would “prevent a panic and tend to appease the
apprehensions of the people generally,” but he did not think they
82. Letter from Major-Gen. John Pope to Brigadier-Gen. Henry Sibley (Feb.
25, 1863), in 22 U.S.
DEP’T OF WAR, WAR OF THE REBELLION, SER. I, PART II 123, 123
(1888).
83. Letter from Governor Alexander Ramsey to Brigadier-Gen. Henry Sibley
(Feb. 13, 1863), in 2 M
INNESOTA IN THE CIVIL AND INDIAN WARS 292, 292–93 (1899).
84. Id. at 292.
85. Letter from Brigadier-Gen. Henry Sibley to Governor Alexander Ramsey
(Feb. 14, 1863), in 2 M
INNESOTA IN THE CIVIL AND INDIAN WARS, supra note 83,
at
293.
86. Id.
87. Id. at 294; see also Willoughby M. Babcock, Minnesota’s Frontier: A Neglected
Sector of the Civil War, M
INN. HISTORY, June 1963, at 274, 280 (quoting a February
1863 circular instructing commanding officers “to construct a bullet proof
stockade at least nine feet high which [will] serve not only for defense, but as a
place of refuge to families in the neighborhood in case of attack by Indians”).
14 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
would be necessary.
88
“My own belief is that the hostile Indians will
make no descent upon the border until they find they are not
themselves to be attacked in their prairie haunts.”
89
As it turns out, Sibley’s confidence was misplaced. While most
of the Dakota had been expelled from the state of Minnesota,
90
a
few returned in the spring of 1863 and continued raids on
Minnesota settlers. In mid-April, a group of Dakota went on an
expedition to the south branch of the Watonwan River (just west of
Madelia, Minnesota) to acquire horses.
91
They traveled to a nearby
home that was being temporarily occupied by two members of
Company E, Seventh Minnesota Volunteer Regiment.
92
The Dakota
attacked the occupants, killing a soldier, and wounding another
soldier and a civilian.
93
The survivors fled to a nearby stockade,
known as Fort Union, where the other members of Company E
were located.
94
Upon learning of the attack, Lieutenant Hardy sent soldiers to
collect nearby settlers and bring them to the stockade where they
could be more easily protected.
95
In that vein, two soldiers were
sent to the nearby home of Swenson Roland.
96
But while escorting
the Roland family to the stockade, the soldiers spotted a group of
Dakota and left the family to pursue them.
97
The Rolands were
attacked not long afterward. Their twelve-year-old son was killed
88. 2 MINNESOTA IN THE CIVIL AND INDIAN WARS, supra note 83, at 294.
89. Id.
90. See supra note 7 and accompanying text (discussing those Dakota who
were permitted to remain within the state).
91. CHARLES S. BRYANT & ABEL B. MURCH, A HISTORY OF THE GREAT MASSACRE
BY THE
SIOUX INDIANS IN MINNESOTA 487 (1872); The Indian Campaign Opened.
Midnight Attack on an Outpost. Several Persons Killed and Wounded. Several Horses
Stolen, ST. PAUL DAILY PRESS, Apr. 19, 1863 [hereinafter The Indian Campaign
Opened].
92. B
RYANT & MURCH, supra note 91, at 487; Further Particulars of the Indian
Attack on Fort Cox on the Watonwan, S
T. PAUL DAILY PRESS, Apr. 21, 1863 [hereinafter
Further Particulars of the Indian Attack].
93. B
RYANT & MURCH, supra note 91, at 487; 2 FOLWELL, supra note 7, at 281;
T
HOMAS HUGHES, HISTORY OF BLUE EARTH COUNTY AND BIOGRAPHIES OF ITS LEADING
CITIZENS 140 (1909); Narrative of the Seventh Regiment, in 1 MINNESOTA IN THE
CIVIL AND INDIAN WARS 347, 353 (1890); The Indian Campaign Opened, supra note 91.
The soldier killed was named Ole Boxrud, but he was sometimes referred to as Ole
Erickson. DAHLIN, GRAVESTONES, supra note 18, at 94, 128; HUGHES, supra; Further
Particulars of the Indian Attack, supra note 92.
94. BRYANT & MURCH, supra note 91, at 487.
95. Id.; Further Particulars of the Indian Attack, supra note 92.
96. B
RYANT & MURCH, supra note 91, at 487.
97. Id.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 15
and three family members were wounded.
98
That same day, three
civilians fishing and trapping within a few miles of Fort Union were
also killed, presumably by Dakota.
99
Colonel Miller,
100
commanding
at Mankato, dispatched two companies under Lieutenant Colonel
William Marshall to give chase, but they were unable to overtake
the Dakota party.
101
Initial reports claimed that more than fifty Dakota warriors led
the attacks.
102
Brigadier General Sibley quickly attempted to
counter this misinformation by notifying the press that probably
only a handful of Dakota were involved.
103
Sibley’s supposition was
later confirmed by Lieutenant Colonel Marshall, who could only
identify the tracks of six individuals while in pursuit of the Dakota
party.
104
Yet despite this, the press continued to publish the fanciful
98. Id. at 486–88; see also BRYANT & MURCH, supra note 91, at 486–88 (noting
that Swenson Roland’s son, Christ, was killed); H
UGHES, supra note 93, at 140
(stating that a twelve-year old boy was killed, but wrongly identifying him as
Christopher Gilbrantson); MARION P. SATTERLEE, AUTHENTIC LIST OF THE VICTIMS
OF THE
INDIAN MASSACRE AND WAR 1862 TO 1865, at 7 (1919) (listing Christian
Roland as having been killed in Watonwan County).
99. The other civilians killed were Gilbert Palmer, Ole Palmer, and Gabriel
Ellingson. See B
RYANT & MURCH, supra note 91, at 488; HUGHES, supra note 93,
at 140 (listing the dead as Gilbrand Palmer, Gabriel Erlingren and Ole
Palmerson); C. M. OEHLER, THE GREAT SIOUX UPRISING 228–29 (1959) (Gilbert
Parker);
SATTERLEE, supra note 98, at 7 (listing the dead as Gabriel Ellingson,
Gilbert Palmer, and Ole Palmer).
100. The Colonel Miller referred to was Colonel Stephen Miller. Just a few
months later, he was elected governor of Minnesota. He remained in that office
until January 1866. P. J. SEBERGER & STEPHEN MILLER, STEPHEN MILLER—MOST
FAMOUS OF ST. CLOUD’S EARLY PIONEERS; HIS LIFE, HIS WORK, HIS SWORD 6–7
(1933).
101. CLODFELTER, supra note 6, at 71 (1998); 1 MINNESOTA IN THE CIVIL AND
INDIAN WARS, supra note 93, at 353; John Danielson, HISTORY OF COMPANY G, OF THE
7TH MINNESOTA VOLUNTEERS, WAR OF THE REBELLION, AUGUST 12, 1862 TO AUGUST
16, 1865, at 2 (undated) (on file with the Minnesota Historical Society) (combined
diaries of brothers H.H. Danielson and John Danielson, members of Company G
of the 7th Minnesota Volunteers states “Apr. 17 Friday. Indian raid on South
Branch stations on Watonwan reported. Cos. G. and K march to Madelia Station.
Lt. Col. Marshall commanding. Quit at Fort Cox”).
102. The Indian Campaign Opened, supra note 91 (“[T]he attacking party were
estimated at fifty in number. . . .”); The Sioux War! The Ball Opened. Soldiers Attacked
by Indians Near Madelia, M
ANKATO INDEP., Apr. 17, 1863 (claiming that the attack
was initiated “by a force of Indians estimated at from fifty to one hundred”).
103. Letter from Brigadier-Gen. Henry Sibley to St. Paul Press (Apr. 18, 1863),
reprinted in S
T. PAUL DAILY PRESS, Apr. 19, 1863.
104. Letter from Lieutenant Colonel William R. Marshall to Colonel Stephen
Miller (Apr. 22, 1863), reprinted in ST. PAUL DAILY PRESS, Apr. 25, 1863.
16 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
claim that dozens of warriors were involved, which created hysteria
among settlers in the area.
105
On May 4, 1863, Lieutenant Governor Henry Swift wrote to
Governor Ramsey to inform him of the Madelia attacks.
106
He noted
that many settlers had left the area due to fear of future Indian
attacks. Swift claimed that Minnesota Adjutant General Oscar
Malmros was refusing to send arms to the area because Nicollet,
Brown, and Renville counties had given the state “trouble in the
past.” He asked that Governor Ramsey intervene and ensure that
arms were distributed to settlers in these border areas.
107
Governor Ramsey adopted Swift’s suggestions. He directed the
Minnesota Adjutant General to place Brigadier General Munch on
special duty.
108
Munch was to visit the counties of Nicollet, Blue
Earth, Brown, and Renville to determine whether Indian raids were
likely there and, if so, whether citizens in those counties were
prepared to repel the attacks.
109
Munch was given access to the
state’s cache of weapons and ammunition and instructed to
distribute them to militia companies in those areas most likely to be
attacked.
110
About two weeks later, Munch was directed to expand
his activities to Sibley, McLeod, Meeker, and Stearns counties.
111
Unfortunately, more deaths occurred around the same time
that Munch was receiving his orders. In early May, three soldiers
105. See, e.g., Further Particulars of the Indian Attack, supra note 92 (reprinting an
April 17, 1863, report from Captain Hall of the Seventh Regiment claiming that
there were “not less than fifty” Dakota involved in the attack); Letter from Captain
Hall, Co. E, Seventh Minn. Volunteers, to Colonel Stephen Miller (Apr. 21, 1863)
reprinted in ST. PAUL DAILY PRESS, Apr. 25, 1863 (reprinting another statement of
Captain Hall claiming that “there must have been forty or fifty of the party of
Indians”).
106. Letter from Henry Swift, Lieutenant Governor, to Alexander Ramsey,
Governor (May 4, 1863), microformed on Ramsey Papers, roll 14, frame 223–26 (on
file with the Minnesota Historical Society) (“[H]ostile Indians have made an attack
on the Watonwan, have stolen property, and killed at least one settler near the
mouth of the Cottonwood . . . .”).
107. Id.
108. Letter from Minn. Adjutant-Gen. Oscar Malmros to Brigadier-Gen.
Munch (May 7, 1863), in Emil Munch Papers (on file with the Minnesota
Historical Society).
109. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 212 (Special
Orders No. 15).
110. Id.
111. Preparations for the Defense of the Frontier, S
T. PAUL DAILY PRESS, June 7, 1863
(describing Munch’s activities); Letter from Minn. Adjutant-Gen. Oscar Malmros
to Brigadier-Gen. Munch (May 27, 1863), in Emil Munch Papers (on file with the
Minnesota Historical Society).
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 17
and one civilian were killed on the Abercrombie trail in the vicinity
of Fort Pomme de Terre.
112
Then, on May 19, 1863, Henry Basche
113
was shot and killed about two miles outside of the town of New
Ulm, by a party of Dakota intent on stealing the horses Basche was
using to plow his field.
114
Basche’s six-year-old son escaped and ran
to a neighbor’s home.
115
The neighbor quickly traveled to New Ulm
where a company of mounted rangers was based. The Rangers
pursued but were unable to capture the Dakota responsible for the
killing.
116
The Sheriff of Brown County sent Governor Ramsey a
hysterical letter following Basche’s death, claiming that “Brown
County is the most exposed part of the State being without
protection!”
117
Even though the mounted rangers were admittedly
based in New Ulm, the Sheriff complained that few soldiers were
stationed in other portions of Brown County. He requested
additional troops be sent to create a protective line to the west of
settlers. If troops were not forthcoming, the Sheriff claimed that he
would have to press militia companies into active service at the
expense of the state.
118
112. The names of those who were killed are Adam Hair, Zenas Blackman,
Comfort Luddington, and Silas Foot. D
AHLIN, GRAVESTONES, supra note 18, at
78–79; More Indian Murders. Four Persons Killed near Fort Abercrombie. Two of the Bodies
Still Missing, ST. PAUL DAILY PRESS, May 6, 1863; The Murders near Pomme de Terre.
Names of the Killed and Full Particulars. Bullets, Buck-Shot and Arrows Were Used,
ST. PAUL DAILY PRESS, May 13, 1863; see SATTERLEE, supra note 98, at 7, 8. These
persons were likely killed by the same small group of Dakota responsible for the
attacks on the Watonwan River since Lieutenant Colonel Marshall chased that
group in a westward direction before giving up the pursuit. Letter from
Lieutenant Colonel William R. Marshall to Colonel Stephen Miller, supra note 104
(indicating that Marshall followed the Dakota west towards Big Stone Lake, which
is 50 miles south of Pomme de Terre).
113. His real name actually appears to have been Heinrich Bosche, but since
Henry Basche is used in nearly all of the reports of the time, I have continued to
do so. See D
AHLIN, GRAVESTONES, supra note 18, at 65 (including photograph of
gravestone).
114. 2 F
OLWELL, supra note 7, at 281; On the Way to Camp Pope. Particulars of the
Recent Indian Murder Near New Ulm. Proceedings of the Indemnity Commission of St. Peter,
ST. PAUL DAILY PRESS, May 24, 1863; see Letter from George Jacobs, Sheriff of
Brown County, to Alexander Ramsey, Governor (May 20, 1863), microformed on
Ramsey Papers, roll 11A, frame 768 (on file with the Minnesota Historical Society).
115. Letter from George Jacobs, Sheriff of Brown Cnty., to Alexander Ramsey,
Governor (May 20, 1863), microformed on Ramsey Papers, roll 11A, frame 768 (on
file with the Minnesota Historical Society).
116. See id.
117. Id.
118. Id.
18 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
Governor Ramsey in turn wrote Henry Sibley. In a May 23,
1863, letter, the governor informed Sibley of Basche’s death and
noted that “this murder, with those at Madelia and those on
Abercrombie trail, naturally cause alarm among the frontier
settlers.”
119
He asked Sibley for help,
120
but was met with a rather
curt response.
121
Sibley had already heard about Basche’s death and
claimed that there was nothing more he could do:
While I deeply deplore these occasional raids, and have
taken every precaution against them, it must be evident to
you that along the line of frontier to be guarded it is
physically impossible to protect every man on his farm by
an armed force, or to prevent entirely the passage of two
or three Indians at points where they may do mischief.
122
Sibley believed that the ultimate solution was still the expedition he
was preparing to make into the Dakota Territory to “sweep[] the
country of these merciless redskins.”
123
Until that time, he once
again suggested that every settler arm himself.
124
Ultimately, however, when Sibley left the state to pursue his
expedition against the Dakota, he left approximately 1800 soldiers
behind to defend frontier settlements in Minnesota.
125
Both he and
Brigadier General Munch had independently come to the
conclusion that a chain of infantry posts located west of the
settlements and approximately ten to fifteen miles apart should be
maintained at all times. Cavalry were assigned to patrol between
these posts to ensure steady communication.
126
119. Letter from Governor Alexander Ramsey to Brigadier-Gen. Henry Sibley
(May 23, 1863), in 2 M
INNESOTA IN THE CIVIL AND INDIAN WARS, supra note 83,
at
296.
120. Id. (“With some 5,000 troops in the state destined for this special
purpose, I can but hope that [the necessity of ordering the militia to the western
frontier] may be saved us. I should be pleased to hear from you as to what may be
expected to be done, that I may communicate it to citizens on the frontier who
have addressed me on the subject.”).
121. Id. at
296–97.
122. Id. at 297.
123. Id.
124. Id.
125. Babcock, supra note 87, at 283–84; Preparations for the Summer Campaign
Against the Indians. The Disposition of the Troops Along the Frontier, M
ANTORVILLE
EXPRESS, June 5, 1863 (noting that 1852 troops including all of the Eighth
Regiment and several companies of the Ninth Regiment would remain in
Minnesota).
126. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 340–41;
Babcock, supra note 87, at 282, 283.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 19
Despite these efforts, small parties of Dakota still managed to
wreak havoc on border areas. On June 7, 1863, a party believed to
consist of between four and six Dakota men
127
apparently seized a
number of horses near Silver Creek in Wright County.
128
When
trackers confirmed that the individuals responsible were Indians,
Lieutenant Nathaniel Tibbetts, who had temporary command of a
detachment from the Eighth Minnesota Regiment stationed at
Kingston, started in pursuit.
129
The actual commanding officer for Company A was Captain
John Cady. Cady had been in St. Paul to secure horses for his scouts
and was on his way back to Kingston when the horse theft
occurred.
130
While en route, he passed through Forest City and was
informed of Tibbetts’s pursuit of the Dakota. Cady hastily followed,
and when he overtook Tibbetts, he resumed command of the
soldiers.
131
Captain Cady and his men followed the trail until they
reached Kandiyohi Lake. As soon as they saw the Dakota, Cady and
his men opened fire, apparently wounding at least one man.
132
The Dakota returned fire, however, and Captain Cady was shot
through the heart and killed instantly.
133
While Captain Cady was just twenty-five years old and had only
lived in Minnesota for a few years, he was well known and well
respected both inside and outside the military.
134
He owned a large
amount of real estate and was a leading businessman.
135
The details
127. See The Indian War: Another Murder by the Savages, WINONA DAILY
REPUBLICAN, June 16, 1863 [hereinafter The Indian War].
128. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 341–42; The
Sioux Raid in Wright and Meeker Counties. Full Particulars of the Pursuit. How Captain
Cady Was Killed, ST. PAUL DAILY PRESS, June 14, 1863 [hereinafter The Sioux Raid].
129. Another Indian Outrage, M
ANTORVILLE EXPRESS, June 19, 1863; The Sioux
Raid, supra note 128.
130. Another Indian Murder! Captain Cady the Victim. He Was Shot Through the
Head and Instantly Killed. The Indians Escaped, S
T. PAUL DAILY PRESS, June 13, 1863
[hereinafter Another Indian Murder!]; Indians in Meeker County, C
HATFIELD
DEMOCRAT, June 20, 1863.
131. Another Indian Murder!, supra note 130; Indians in Meeker County, supra
note 130.
132. D
AHLIN, GRAVESTONES, supra note 18, at 72; Another Indian Outrage, supra
note 129; The Indian War, supra note 127.
133. ANNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 341–42;
Indians in Meeker County, supra note 130; The Sioux Raid, supra note 128.
134. L
OUIS H. RODDIS, THE INDIAN WARS OF MINNESOTA 223 (1956); Indians in
Meeker Country. Capt. Cady of the Eighth Regiment Killed, S
T. PAUL PIONEER (DAILY),
June 13, 1863 [hereinafter Capt. Cady of the Eighth Regiment Killed].
135. Jared Benson, Letter to the Editor, A Fuller Account Derived from an
Eyewitness, S
T. PAUL DAILY PRESS, June 14, 1863; see Capt. Cady of the Eighth Regiment
20 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
of his death were published in every major newspaper in
Minnesota
136
and helped to continue to fuel panic among settlers.
Reports of stolen cattle, horses, and other personal property
increased in Wright County toward the latter part of June. These
reports were characterized as thefts by Dakota, although there is
little evidence to support this claim.
137
Then, the final straw
occurred. On June 29, 1863, Amos Dustin, who had lived in Wright
County for a number of years, was moving his family to a new piece
of land in the southwestern part of the same county. He was
traveling with his wife, their three children (a six-year-old girl and
two sons, one four and the other two years old), and Dustin’s
widowed mother along a road not far from Howard Lake when his
wagon was attacked by Dakota. Dustin, his mother, and his four-
year-old son were killed quickly. Dustin’s wife was mortally
wounded in the attack, and she died several days later. The other
two children managed to escape and were rescued by settlers.
138
The attack was especially surprising because it occurred “in a
comparatively thickly settled country” far from the frontier border
and just forty miles west of the state capital.
139
Additionally, the
victim’s bodies laid exposed to the elements for two days before
they were found, and the scene was especially grisly. Dustin’s left
hand was cut off and carried away, as were both of his mother’s
hands.
140
One newspaper asked: “Can’t we get another expedition
started out to hunt Indians?”
141
Killed, supra note 134; Particulars of the Death of Captain Cady, ST. ANTHONY FALLS,
June 13, 1863.
136. See Another Indian Murder. Captain Cady Killed, FAIRBAULT CENT.
REPUBLICAN, June 17, 1863; Capt. Cady Killed, ST. CLOUD DEMOCRAT, June 18, 1863;
newspaper articles cited in supra notes 127–30, 134–35.
137. ANNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 343.
138. Id. at
343–44; 2 FOLWELL, supra note 7, at 442–43.
139. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 344;
R
ODDIS, supra note 134, at 223.
140. The Indian War. A Horrible Scene on the Prairie. The Mutilated Bodies of the
Dustin Family. Indian Camps in Hennepin County. A Party of Sioux Seen Within 6 Miles
of Minneapolis. Volunteer Scouts for 60 Days Called Out. Twenty-Five Dollars Bounty for
Sioux Scalps, S
T. PAUL DAILY PRESS, July 7, 1863.
141. A Horrible Scene!, F
AIRBAULT CENT. REPUBLICAN, July 15, 1863.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 21
II. MINNESOTA’S BOUNTY SYSTEM
A. The Minnesota Adjutant General’s Bounty Orders
Governor Ramsey learned about the Dustin family murders on
Friday, July 3, 1863.
142
While fewer than twenty civilians and military
personnel were killed by Dakota raids in Minnesota during the
spring and summer of 1863, the events of the previous fall were no
doubt still fresh in the governor’s mind. Offering a monetary
reward for the killing of Dakota men appears to have been
Governor Ramsey’s idea. Ramsey’s daily journal establishes that he
summoned Minnesota Adjutant General, Oscar Malmros, and
directed him to issue an order placing a bounty on Dakota men.
His journal entry for July 3–4 states: “Had the Adj. Genl. [issue] an
order inviting the service of 50 skilled trappers and sharp shooters
& $25 per scalp for scalps of male Sioux Inds.”
143
On July 4, 1863, Minnesota Adjutant General Oscar Malmros
complied with Governor Ramsey’s request by issuing General
Orders No. 41. The order explained its purpose as follows:
The continued outrages of the Sioux Indians in the Big
Woods, and in the rear of the U.S. out posts for the
border defence, render it imperatively necessary that
extraordinary measures should be adopted for the more
complete protection of our frontier and the extirpation of
the savage fiends who commit these outrages.
144
The order provided for the creation of a corps of scouts that would
“scour the Big Woods” for Sioux men. The corps was to remain
active for sixty days and be composed of a captain and forty to sixty
men, who were to be divided into squads of five or more men
under the command of their own leader.
145
The scouts would be
responsible for equipping and subsisting themselves, but they were
142. Journal Entry of Governor Alexander Ramsey (July 3, 1863), microformed
on Ramsey Papers, roll 39, frame 862 (on file with the Minnesota Historical
Society) (noting that around midnight two messengers came to inform him that
members of the Dustin family had been killed by the Dakota on June 29).
143. Journal Entry of Governor Alexander Ramsey (July 4, 1863), microformed
on Ramsey Papers, roll 39, frame 862 (on file with the Minnesota Historical
Society) (showing the journal entry on the page marked Saturday, July 4, but it is
possible the entry was the remainder of the entry from July 3).
144. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 192 (General
Orders No. 41).
145. Id.
22 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
to be paid $1.50 per day and an additional $25 for “each scalp of a
male Sioux delivered to this office.”
146
Brigadier General Munch traveled to different areas of the
state to muster squads of volunteers into service and found an
overwhelming response to General Orders No. 41. By July 24, 1863,
the entire number of troops sought had been mustered in.
147
James
Sturges of Wright County was appointed captain of the company of
scouts. In that position, he was responsible for directing and
coordinating the movements of the several squads the scouts had
been divided into.
148
General Orders No. 41 was reprinted and summarized in
newspapers around the State of Minnesota.
149
For the most part, the
order was lauded by local newspapers. The St. Cloud Democrat, for
example, stated that General Orders No. 41 was “the most effective
plan that has yet been taken to clear the State of the marauding
devils and this corps will do more service than any monster
expedition moving at its snail like pace.”
150
Not all of the features of
the order, however, met with widespread approval. Many felt the
provision requiring scalps be taken and presented to the Minnesota
Adjutant General was barbaric.
151
Other newspapers objected to the
146. Id.
147. Id.
at 214 (Special Orders No. 38); id. at 346; id. at 196–97 (notifying the
public in General Orders No. 45 that the company of scouts was now filled and no
more persons would be accepted for service).
148. Id. at 346.
149. General Headquarters, State of Minnesota, ST. PAUL DAILY PRESS, July 8, 1863;
General Orders No. 41, C
HATFIELD DEMOCRAT, July 18, 1863; General Orders No. 41,
S
T. PAUL PIONEER & DEMOCRAT (WEEKLY), July 10, 1863; Scouts Wanted! $25 for Sioux
Scalps! S
T. CLOUD DEMOCRAT, July 9, 1863; The Indian War, WINONA DAILY
REPUBLICAN, July 9, 1863; The Indians, MANTORVILLE EXPRESS, July 10, 1863;
Untitled, S
T. PAUL PIONEER (DAILY), July 7, 1863.
150. Scouts Wanted! $25 for Sioux Scalps!, supra note 149.
151. For example, the Winona Republican published the following editorial in
response to General Orders No. 41:
The offer of a bounty by Adjutant General Malmros of $25 for every
Sioux scalp delivered to him at his office in St. Paul, appears to us
peculiarly barbarous, and unworthy of him as well as disgraceful to the
State. No greater incentive to capture and slay the Sioux can possibly
be given than that already before our people. It is a mockery and a
shame that such an idea as this of a bounty for scalps should be even
momentarily entertained, to say nothing of its being seriously adopted
and acted upon. In the name of our common humanity, and for the
sake of that reputation for enlightenment which our State claims, we
protest against the bounty feature of Gen. Molmros’ [sic] policy, and
call upon the Executive to put an immediate stop to it.
Bounty for Sioux Scalps, S
T. PAUL PIONEER (DAILY), July 16, 1863 (reprinted from the
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 23
fact that the order allowed any Dakota male to be killed, regardless
of whether he was a child or whether he had protected white
settlers during the Dakota War. The Chatfield Democrat stated:
Barbarism.— . . . Adjutant General Malmros, has
issued an order offering a bounty of twenty five dollars for
the scalp of any male Sioux. We look upon this
proposition as a relic of the dark ages, barbarous,
inhumane and unbecoming the enlightened age in which
we live. . . . We have no objection to urge against killing
the red devils who are guilty, but let the fair name of our
State never be disgraced by paying a bounty to murder
innocent children, even if they are Indians. God has made
them what they are, and we have no right to take their
lives unless forfeited by some act of their own. We hope
the new Commander-in-Chief will at once revoke this
disgraceful and objectionable portion of Order No. 41.
152
Henry Swift, who had recently taken over the governorship
due to Alexander Ramsey’s election to the U.S. Senate, was
apparently affected by public opinion. At his direction,
153
on July
20, 1863, Malmros issued General Orders No. 44, which amended
the original bounty order. It limited application of the order to
“hostile” Sioux warriors, rather than all Dakota men. Additionally,
individuals seeking to claim the bounty were no longer required to
provide a scalp. Instead, the order now stated that “satisfactory
proof[s]” must be made at the Minnesota Adjutant General’s office
to substantiate the killing.
154
WINONA REPUBLICAN and characterized as a “copperhead” editorial).
152. Barbarism, C
HATFIELD DEMOCRAT, July 18, 1863.
153. News of Our Own State, R
OCHESTER REPUBLICAN, July 29, 1863 (noting that
the scalp bounty “had a blood thirsty look—it merged too clearly on the
barbarous—and when Gov. Swift discovered this to be the fact, he ‘modified’ the
policy of the Adjutant-Gen. Malmros . . . .”); see also The Indian Expedition,
BURLINGTON HAWK EYE, July 25, 1863 (“The scalp bounty order . . . was issued
during the interim between Gov. Ramsey’s resignation and the arrival of Gov.
Swift, so that we were virtually without a Governor. [Now that the order has been
revoked, our] Eastern friends will therefore find their comments of barbarism
unnecessary.”).
154. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 195–96
(General Orders No. 44). This later provision—eliminating the requirement that
scalps be provided to the Minnesota Adjutant General—was mocked by many
Minnesotans. The St. Cloud Democrat noted that “the Adjutant General, in order to
free himself of the clamor that some thin-skinned folks are making, leaves it
optional with scouts whether they bring him the scalp or the entire Indian. Rather
a dry joke from headquarters!” New Features, S
T. CLOUD DEMOCRAT, July 23, 1863.
It was favorably received by those out of state, however. For example, Wisconsin
24 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
General Orders No. 44 also contained a new provision.
Citizens who were not mustered in as scouts (entitling them to daily
pay) were now able to collect a reward of $75 for killing any
“hostile Sioux warrior.”
155
To collect such a reward, these
“independent scouts” were required to register in advance with the
Minnesota Adjutant General’s office. On the other hand,
individuals actually mustered into the formal scout corps saw their
pay increased to $2 per day and they were still paid $25 per hostile
Dakota killed.
156
These new provisions were once again advertised
statewide.
157
On September 20, 1863, the service period for volunteer
scouts ended.
158
The scouts were paid and disbanded. To ensure
that there were still adequate numbers of persons willing to search
for and kill hostile Dakota men, the Minnesota Adjutant General
issued one final order. General Orders No. 60 increased the bounty
for independent scouts from $75 to $200. The Winona Daily
Republican claimed that “[t]his sum is more than the dead bodies
of all the Indians east of the Red River are worth.”
159
B. Implementation of the Minnesota Adjutant General’s Orders and
Payments Made
Four individuals ultimately collected bounties under General
Orders Nos. 41, 44, and 60 for killing Dakota men. They were paid
a total of $325 out of the State’s Military Contingency Fund, and
those payments are catalogued in the State Auditor’s Warrant
Register, the Annual Report of the Minnesota Adjutant General,
and the Annual Report of the State Auditor. The official records,
however, do not include any factual descriptions of these killings.
newspapers emphasized that now only testimony of the killing of a Dakota male
was required for payment of the bounty, not his scalp. Revoking the scalp bounty
was “extraordinary evidence that there is a gleam of civilization left somewhere on
the continent.” Untitled, D
AILY MILWAUKEE NEWS, July 23, 1863.
155. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 196 (General
Orders No. 44).
156. Id.
157. General Headquarters, State of Minnesota, S
T. PAUL DAILY PRESS, July 21,
1863; General Orders No. 44, S
T. PAUL PIONEER (DAILY), July 24, 1863; The Indians,
C
HATFIELD DEMOCRAT, Aug. 1, 1863; Untitled, ROCHESTER REPUBLICAN, Aug. 5,
1863.
158. ANNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 217 (Special
Orders No. 103).
159. Id. at 198 (General Orders No. 60); Untitled, W
INONA DAILY REPUBLICAN,
Sept. 25, 1863.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 25
In an attempt to determine the surrounding circumstances,
I began by reviewing newspaper articles during the relevant time
periods and then attempted to corroborate the details contained in
those articles through other sources. What follows is the first
discussion of the circumstances surrounding the four bounty
payments made by the Minnesota Adjutant General.
The first bounty payment was made on July 6, 1863, to an
individual referred to in State records as “J. H. Bates,”
160
“Jas. H.
Bates,”
161
and “G. H. Bates.”
162
On July 7, 1863, the St. Paul Pioneer
notified its readers that J. W. Bates, Sheriff of McLeod County, had
visited St. Paul with an Indian scalp in hand seeking the “authority
to raise a company of Indian hunters.”
163
He only discovered the
recent issuance of General Orders No. 41, which already
authorized the establishment of a corps of paid scouts to kill
Dakota men, upon reaching the city. But Bates happily collected
the $25 prize nonetheless.
164
The story that follows is the one he
apparently told newspaper reporters while he was in St. Paul.
On July 4, 1863, a man named Harper was out in the woods
with his son a few miles north of Hutchinson.
165
They came upon
three Indians who were picking berries.
166
Harper fired his gun and
hit one of the Indians in the hip.
167
The Indians returned fire, and
there are conflicting accounts as to whether Harper was injured or
not in the return fire.
168
Ultimately, however, the wounded Indian
rose and Harper fired again, this time hitting him in the heart.
169
Harper succeeded in making his escape through the brush to Fort
160. Minn. Office of the State Auditor, Warrant Register (July 6, 1863) (on file
with the Minnesota Historical Society, restricted archives collection) (J.H. Bates).
161. ANNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 223 (listing
“Jas. H. Bates” as having been paid $25 on July 6, 1863, and including the
description: “Bounty for Scalp”).
162. A
NNUAL REPORT OF THE STATE AUDITOR, reprinted in 1863 MINN. EXEC.
DOCS., supra note 11, at 405, 470 (listing July 6th as the date $25 was paid “[t]o
G. H. Bates, bounty for Sioux warrior scalp”).
163. Indian Killed Near Hutchinson, ST. PAUL PIONEER, July 7, 1863.
164. The Indian War, supra note 149; An Indian Killed, F
AIRBAULT CENT.
REPUBLICAN, July 15, 1863.
165. Indian Killed Near Hutchinson,
supra note 163; The Indian War, supra note
149.
166. Indian Killed Near Hutchinson, supra note 163.
167. Id.
168. Compare Indian Killed Near Hutchinson, supra note 163 (noting that
because Harper was shielded by a tree, he was not harmed), with An Indian Killed,
supra note 164 (noting that the white settler made “his escape with a severe wound
from their [Indian] fire”).
169. Indian Killed Near Hutchinson, supra note 163.
26 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
Hooker or Glencoe (depending on the account), where the cavalry
started in pursuit of the Indians, but to no avail. They did, however,
find the body of the dead Indian, and they took his scalp.
170
It was fairly simple to determine that at the time, a J. W. Bates
was indeed the Sheriff of McLeod County. He had only assumed
that post in April 1863 due to the untimely death of the prior
sheriff.
171
Previously, the 1860 census establishes that Joseph W.
Bates resided in Glencoe (within McLeod County) with his wife
and two young children and worked as a “hotel keeper.”
172
While
the newspaper accounts and other sources help to confirm that
Sheriff Joseph Bates is most likely the individual who collected the
$25 bounty payment, they incorrectly report the person who was
directly responsible for shooting the Dakota man. It was not a man
named Harper, but rather, Lamson. And this was not just any
Dakota man; it was Taoyateduta (Little Crow) himself.
No other conclusion seems reasonable. There were no
Harpers living in McLeod County at the time of the 1860 census,
and no source other than these newspaper accounts refer to
anyone by the name of Harper shooting a Dakota man in the
summer of 1863.
173
Conversely, Taoyateduta’s death is well
documented. It occurred at the same approximate location and
date. Most importantly, the circumstances surrounding the death
of Taoyateduta closely parallel the facts that Sheriff Bates provided
to these newspaper reporters.
On July 3, 1863, Nathan Lamson was out hunting deer with his
son, Chauncey, when they came upon two Dakota men picking
raspberries a few miles north of Hutchinson in Meeker County.
174
Although the Lamsons did not know this at the time, the Dakota
they saw were Taoyateduta and his teenage son, Wowinapa.
170. An Indian Killed, supra note 164.
171. H
ISTORY OF MCLEOD COUNTY MINNESOTA 231 (Franklyn Curtiss-Wedge &
Return I. Holcombe eds., 1917) (stating that “J. W. Bates, of Glencoe, was duly
appointed to fill the vacancy for the remainder of the term” of sheriff, on April 5,
1863).
172. Id. at 107.
173. Id. at 81–108 (1860 census).
174. Great Excitement in McLeod County. The Sioux Marauders in the Big Woods. A
Peddler Chased by the Red Devils. Two Indians Surprised, and One Killed, by Mr. Lampson
and His Son. How That Scalp Was Taken! Highly Interesting Details. Particulars of the
Murder of James McGannon, ST. PAUL DAILY PRESS, July 10, 1863 [hereinafter Two
Indians Surprised]; Walter Trenerry, The Shooting of Little Crow: Heroism or Murder?,
M
INN. HISTORY, Sept. 1962, at 150 [hereinafter Trenerry, The Shooting of Little
Crow].
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 27
Without warning or any attempt to determine if the men were
hostile,
175
Nathan Lamson immediately opened fire, striking
Taoyateduta in the hip.
176
Then, both sides fired a volley.
177
Nathan
Lamson was shot in the left shoulder, and Taoyateduta was shot
fatally in the chest, this time by Chauncey.
178
Wowinapa remained with his father until he passed away.
179
In
accordance with Dakota traditions, Wowinapa then placed new
moccasins on his father’s feet, covered his body in a blanket,
straightened his legs, and left swiftly.
180
Chauncey Lamson,
believing that his father had also been killed, ran to the town of
Hutchinson to sound the alarm.
181
The next morning, a group of
soldiers and civilians found Taoyateduta’s body, but they did not
175. Two Indians Surprised, supra note 174 (subtitling the article section
“Indians caught napping,” and discussing how Nathan Lamson crept undiscovered
toward the Dakota men until he had a close and clean shot). While scholars
frequently blame Taoyateduta for the attacks on Minnesota settlers and soldiers
during the spring and early summer, there is no evidence that he was involved.
Taoyateduta did not return to Minnesota until the middle of June 1863, which
makes it impossible for him to have been involved in the deaths of Henry Basche,
John Cady, and others killed in April, May, and early June. See M
ARK DIEDRICH,
LITTLE CROW AND THE DAKOTA WAR 246 (2006). When he did return, he was
traveling alone with his son, not with the group of six Dakota who killed the
Dustin family. Id. The one death that Taoyateduta could have played a role in was
that of James McGannon, a settler who was killed near Union Lake on the border
of Wright and Meeker Counties on July 1, 1863. A
NNUAL REPORT OF THE ADJUTANT
GENERAL, supra note 11, at 345. At his death, Taoyateduta had McGannon’s jacket
in his possession. Indian News and Rumors, S
T. PETER TRIB., July 11, 1863. Wowinape
later told military officials that they had returned to Minnesota only to gather
horses and that the jacket was given to his father by Heyoka (also known as Hi-u-
ka), a relative of Taoyateduta’s through marriage, who had killed McGannon
when they were traveling separately. Little Crow’s Death Confirmed, C
HATFIELD
DEMOCRAT, Aug. 22, 1863. It is possible that Wowinape fabricated this story in an
attempt to absolve himself of any responsibility for McGannon’s death, but that
seems unlikely given the consistent story that Wowinape told not only military
officials, but other Dakota. See, e.g., Proceedings of a Military Commission Which
Convened at Fort Abercrombie (Aug. 22, 1863), in U.S. ARMY, MILITARY COMM’N, SIOUX
WAR TRIALS 1862 (1862) (testimony of Joseph Demairais) [hereinafter WOWINAPE’S
TRIAL TRANSCRIPT]. But see DAHLIN, GRAVESTONES, supra note 18, at 77 (“McGannon
was probably killed by Little Crow or the small party of Dakota who were with
Little Crow.”).
176. How that Indian Was Killed, S
T. CLOUD DEMOCRAT, July 16, 1863.
177. Id.
178. RODDIS, supra note 134, at 226; WOWINAPE’S TRIAL TRANSCRIPT, supra note
175 (testimony of William Quinn and Joseph Demaraist Jr.); Two Indians Surprised,
supra note 174.
179. Trenerry, The Shooting of Little Crow, supra note 174, at 150–51.
180. Id. at 150; D
IEDRICH, supra note 175, at 247.
181. H
ISTORY OF MCLEOD COUNTY MINNESOTA, supra note 171, at 175.
28 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
recognize him as the famous chief.
182
They scalped him and
brought him back to town where his corpse was mutilated and
displayed for the Fourth of July festivities.
183
While the unique
deformities on his arms and teeth made some townspersons
question the man’s identity,
184
it was not until Wowinapa was
captured weeks later near what is now Devils Lake, North Dakota,
that Taoyateduta’s death was confirmed.
185
This interpretation—that J.W. Bates was Sherriff Bates, who
collected a $25 bounty for Taoyateduta’s scalp, not the scalp of
some unknown Dakota—is also supported by other
contemporaneous newspaper accounts. In August 1863, when it
was finally confirmed that the Lamsons had killed Taoyateduta
himself, several newspapers asserted that it was “poetic justice” that
the first scalp upon which the bounty was claimed later turned out
to be the chief himself.
186
It also provides an explanation for how
the scalp of Taoyateduta reached the Minnesota Adjutant General’s
office, where it was preserved and decades later, provided to the
Minnesota Historical Society.
187
Conversely, many prominent scholars have asserted that
Chauncey Lamson himself brought Taoyateduta’s scalp to the
Minnesota Adjutant General and claimed a $75 bounty payment for
doing so.
188
But neither the Annual Report of the Minnesota
182. Trenerry, The Shooting of Little Crow, supra note 174, at 150–51.
183. Id. For example, when the body of Taoyateduta arrived in Hutchinson on
the Fourth of July, children filled the ears and nostrils with firecrackers. Little Crow,
The Sioux Chief: How the Famous Warrior Met His Death. Historical Society Relics,
microformed on
Minnesota Historical Society Scrapbook, vol. 38, roll 13, frame 71.
The body was buried in a shallow grave, but a cavalry officer who came to the town
not long afterwards dug up the grave and cut off Taoyateduta’s head. Id. Dr. John
Benjamin took the head home with him and placed it in a large dinner-pot filled
with a solution of lime. The Body of Little Crow, HUTCHINSON LEADER, Jan. 6, 1893.
In mid-August, the head was retrieved by Captain John W. Bond at the request of
Colonel Stevens, who wanted to present it to the Minnesota Historical Society.
Letter from Captain Bond to Colonel Miller (Aug. 16, 1863), reprinted in Little
Crow. Exhumation of His Body. Letter from Capt. J. W. Bond, S
T. PAUL PIONEER (DAILY),
Aug. 20, 1863.
184. See RODDIS, supra note 134, at 227.
185. Id.
186. See, e.g., Death of Little Crow Confirmed, H
ASTINGS CONSERVER, Aug. 18,
1863; The Indian Expeditions—Death of Little Crow Confirmed, W
INONA DAILY
REPUBLICAN, Aug. 14, 1863.
187. See, e.g., A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 225
(entry for $5 payment on August 31 to a Julius Schmidt for “[t]anning Indian
scalp”).
188. See, e.g., A
NDERSON, LITTLE CROW, supra note 1, at 8 (claiming that
Taoyateduta was scalped because Nathan Lamson “wanted the trophy in order to
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 29
Adjutant General nor the Annual Report of the State Auditor show
any payment being made to either Chauncey or Nathan Lamson in
1863. This widely reported mistake appears to have come from
errors in early newspaper accounts. For example, on July 16, 1863,
long before anyone knew that the Dakota man killed was
Taoyateduta, the St. Cloud Democrat stated that the Lamsons had
claimed the bounty from the Minnesota Adjutant General’s
office.
189
The Lamsons corrected these inaccuracies when they were
interviewed by reporters following the confirmation that the man
they shot was indeed the famous chief.
190
But that correction did
not prevent the inaccuracy from proliferating.
191
In actuality, neither Sheriff Bates nor the Lamsons should have
received a bounty payment from the Minnesota Adjutant General.
Taoyateduta was shot the day before General Orders No. 41 was
issued; regardless, only mustered-in members of the volunteer
scouts were to receive bounty payments under that order.
192
No person with the surname of Bates, Harper, or Lamson is listed
on the muster rolls for scouts included in the Adjutant General’s
collect the seventy-five-dollars-a-head offered by the state for the scalps of hostile
[Dakota],” even though that particular bounty order—General Orders No. 44—
was not issued until several weeks after the Chief’s death, and despite the fact that
the Lamsons could not have even known about the first bounty order (General
Orders No. 41), since it was issued the same day that Taoyateduta was killed);
C
ARLEY, supra note 2, at 86 (claiming, without citation, that “[s]hortly after
Wowinapa identified his father’s body, Chauncey collected a bounty of seventy-five
dollars from the state for the Sioux chief’s scalp”); Trenerry, The Shooting of Little
Crow, supra note 174, at 151, 153 (claiming that Chauncey Lamson collected the
$75 bounty from the State); see also BERG, supra note 9, at 299 (claiming that the
Lamsons were paid a $25 bounty).
189. How That Indian Was Killed, supra note 176.
190. See Untitled, S
T. PAUL DAILY PRESS, Aug. 26, 1863 (calling for the
legislature to compensate the Lamsons for killing Taoyateduta, noting that “[t]he
State bounty for killing hostile Sioux is a very inadequate reward for so important
a service as the killing of Little Crow, and even that, we learn, Mr. Lampson [sic]
has not applied for”).
191. See, e.g., C
ONDENSED HISTORY OF MEEKER COUNTY 1855–1939 28 (Frank B.
Lamson ed. 1939) (claiming that “[t]he scalp of Little Crow was delivered by
Nathan Lamson to the Adjutant General of the state and he received the state
bounty of $75”); Little Crow, The Sioux Chief: How the Famous Warrior Met His Death,
supra note 183 (“Chauncey Lamson, who killed the Sioux chieftain in the brush
north of Hutchinson, either took or sent the scalp to the adjuntant general of the
state, to claim the state bounty of $75 which was offered at that time for every dead
male Indian”).
192. It was not until July 20, 1863, that the Minnesota Adjutant General issued
General Order 44, which permitted private citizens, not otherwise part of the
volunteer scouts, to receive a $75 bounty payment.
30 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
Annual Report for 1863
193
or earlier handwritten muster rolls.
194
Despite this, the Minnesota Adjutant General’s records
acknowledged receipt of “one male Sioux scalp” by Mr. Bates and
asserted that he was entitled to receipt of $25 because he was part
of the “military contingent.”
195
The second killing occurred on July 16, 1863.
196
The day
before, two men cutting hay near the town of Waterville in Le
Sueur County spotted three Indians riding westward.
197
Horses had
been stolen in Rice County, and it was immediately assumed that
these Indians were the responsible parties.
198
Two squads of
independent scouts were formed to pursue the Dakota.
199
One
squad cut off their retreat southward (toward the Winnebago
reservation) while the other took to the trail to follow them. The
latter squad was led by John C. Davis, an experienced hunter and
former Indian trader.
200
The three Dakota were pursued until 11:00 a.m. on July 16
when they were overtaken in a thicket on the border of Scotch
Lake, in the vicinity of Cleveland in Le Sueur County.
201
Davis’s
squad fired on the Dakota, who then returned fire as they were
fleeing the area. A search discovered a badly wounded Indian lying
behind a tree.
202
The scouts shot him an additional six times, killing
him.
203
One author states that “[t]he wounded Indian was
193. ANNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 228–29.
194. Indian Expedition to the Southern Frontier, Minnesota Adjutant General
Files (on file with the Minnesota Historical Society) (early draft of muster rolls for
bounty scouts); Muster-In Roll of Captain Sturges, Adjutant-Gen., Military Service
Records (on file with the Minnesota Historical Society).
195. See Minnesota Office of the State Auditor, Warrants and Supporting
Papers
(July 6, 1863) (on file with the Minnesota Historical Society, restricted
archives collection).
196. ANNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 348–49.
197. Id.; 2 F
OLWELL, supra note 7, at 288; see also Indians in Dakota County,
F
AIRBAULT CENT. REPUBLICAN, July 22, 1863 (containing a seemingly more fanciful
version of events where three men cutting hay were surprised by two Dakota men
who sprang from the grass and pushed them into the river before fleeing
themselves).
198. See 2 FOLWELL, supra note 7, at 288.
199. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 348–49.
200. Id.
201. Id.
202. 2 F
OLWELL, supra note 7, at 288; Indian Chase in LeSeuer County, WINONA
DAILY REPUBLICAN, July 22, 1863 (reprinted from the MANKATO RECORD, July 18,
1863).
203. 2 FOLWELL, supra note 7, at 288. The only information provided about
the Dakota man who died in the attack was that he was between twenty-five and
thirty years old and not very tall. Late Indian News. Indians at Bloomington. They
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 31
dispatched in cold blood being worth much more dead than alive
to the pursuers.”
204
One other Dakota was severely wounded,
205
and
it was believed at the time that he went into Scotch Lake to die.
206
Another Dakota succeeded in escaping, although he lost his horse,
gun, and blanket.
207
The attacking party of scouts escaped without
any casualties,
208
and three horses that had supposedly been stolen
were recovered.
209
John C. Davis was paid $25 for the killing on
October 9, 1863.
210
The next bounty payment was made to William Allen on
August 7, 1863, apparently
211
for killing a Dakota man on July 21,
Endeavor to Drown a Man in the River. An Exciting Hunt in Le Seuer County. One Indian
Killed and Another Mortally Wounded, S
T. CLOUD DEMOCRAT, July 23, 1863
[hereinafter One Indian Killed].
204. RODDIS, supra note 134, at 231.
205. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 348–49.
206. See Indian Chase in LeSeuer County, supra note 202; One Indian Killed, supra
note 203; see also 2 FOLWELL, supra note 7, at 288; Another Indian Sent Home,
F
AIRBAULT CENT. REPUBLICAN, July 22, 1863.
207. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 348–49.
208. Id.
209. 2 F
OLWELL, supra note 7, at 288; RODDIS, supra note 134, at 231.
210. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 226 (listing
payment); Minn. Office of the State Auditor, Warrants and Supporting Papers
(1863) (on file with the Minnesota Historical Society, restricted archives
collection). At least one newspaper account claimed that Davis had shot the
wounded Dakota man, and that the dead Indian had been killed by T.M. Perry, Jr.
Indians, S
T. PETER TRIB., July 22, 1863. Another claimed that the scalp was given to
the owner of a horse that was killed when the Dakota were being pursued, and he
claimed the state bounty. Indian Chase in LeSeuer County, supra note 202.
211. This conclusion is not without doubt. The facts that follow in the text
above were drawn from one newspaper article. That article was reprinted in other
papers, but those papers do not appear to have conducted any independent
investigation and therefore do nothing to bolster the original article’s credibility.
See, e.g., Indian News, M
ANKATO UNION, July 24, 1863 (reprint); Another Indian Killed,
S
T. PAUL PIONEER & DEMOCRAT (WEEKLY), Aug. 14, 1863 (stating only that “[a]
rumor has reached Cleveland, Le Sueur county, that another Indian had been
killed near Faribault two or three days ago. He was supposed to be the one who
escaped from the Le Sueur settlers during the late pursuit”).
There was one other “Allen” reported in the newspapers as having been
involved in the killing of a Dakota during this time period. Two Indians were
reported to have been killed by Captain D.W. Allen’s company in late July. The
Indians were found “taking a quiet nap” when they were fired upon by Captain
Allen’s men. Both of them were killed, despite one claiming that he was a “good
Indian” just prior to his death. Handsomely Done, S
T. PAUL PIONEER & DEMOCRAT
(WEEKLY), Aug. 7, 1863; see also J.F.B., Letter to the Editors, MINNEAPOLIS STATE
ATLAS, Aug. 12, 1863 (containing a different version of events but still concluding
that Captain Allen’s company killed two Dakota men).
Captain Allen was later
seen with two scalps dangling from his tent. I considered these events not to be
the ones underlying the bounty payment made on August 7, 1863, because
32 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
1863.
212
A gentleman referred to in newspaper accounts only as Mr.
Bliss was out looking for his cattle early in the morning near the
city of Cleveland, Minnesota, when he discovered an Indian lying
down near a log a few feet away from him. Bliss was not armed, so
he returned to Cleveland and gave the alarm.
213
Several citizens
converged on the area and the Dakota man was found in the same
location, still lying prostrate. A settler shot the Dakota man in the
knee. This brought him up into a sitting position. The Indian fired
a shot but was killed by several shots fired by the Rev. Mr. Allen of
Cleveland. Several other settlers also shot the man, so that when his
body was eventually examined, it was “completely riddled with
bullets.”
214
Directly under the shoulder blade was an old bullet
wound, and this led those present to conclude that this was one of
the Indians who had previously been injured in the fight at Scotch
Lake.
215
The Dakota man was scalped. The only newspaper account of
this event noted that “the people were no more excited over the
event than if a rattle-snake had been killed.”
216
Allen was paid $75
for providing the scalp to the Minnesota Adjutant General’s office,
presumably because he was an “independent scout” rather than a
member of the volunteer corps.
217
By this time, General Orders No.
44 was in effect, which authorized bounty payments only for
“hostile Sioux warrior[s].” No documentation appears in the
(1) Captain Allen’s first name does not match the first name of the person who
collected the bounty, and (2) a $75 bounty payment would only have been made
to an “independent scout” pursuant to General Orders No. 44, not an individual
already serving in the military. Since first names were often incorrectly reported,
and as the other bounty payments were not made in accordance with the actual
terms of General Orders Nos. 41, 44, and 60, this assumption may be incorrect.
212. Latest from Le Sueur, S
T. PETER TRIB., July 22, 1863.
213. Id.
214. Id.
215. Id.; see also A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11,
at 348–49 (noting that the Dakota man who had been shot at Scotch Lake was
discovered and killed a few days later).
216. Latest from Le Sueur, supra note 212.
217. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 224;
Minnesota Office of the State Auditor, Warrants and Supporting Papers
(July 6,
1863) (on file with the Minnesota Historical Society, restricted archives
collection). Allen was paid via two warrants, one for $25 and the other for $50.
Both warrants were issued on the same day. State Auditor, Warrants and
Supporting Papers, Minnesota Archives Collections, Minnesota Historical Society
(two warrants and one receipt.). One could surmise that the initial paperwork was
completed for a $25 payment until it was realized that Allen was not part of the
volunteer corps and was entitled to $75 via General Orders No. 44. Id.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 33
remaining government files that could explain how a wounded
man lying on the ground was determined to be hostile.
The fourth and final killing that resulted in a bounty payment
occurred on November 26, 1863. Simon and Oscar Horner were
hunting and trapping in the Kandiyohi Lake region, about sixty
miles west of Glencoe, when they saw a party of three Indians, but
they did not pursue them.
218
The next day, they went out in search
of the party and saw an Indian near Long Lake, about six miles
northwest of the Big Kandiyohi Lake.
219
The Indian saw them and
tried to flee, but he was shot by Oscar Horner and died. Horner
scalped the dead Indian.
220
He presented the scalp at the Minnesota
Adjutant General’s office in February 1864 for payment,
221
but
because there was insufficient money in the military contingent
fund, he was not immediately paid.
222
He eventually received the
$200 bounty payment under General Orders No. 60 on February
15, 1865.
223
Press reports indicate that the Indian killed was unlikely to
have been “hostile.” The St. Paul Pioneer noted:
It is believed by the scouts that the Indians seen by the
Horners were making their way to the Fort, with the
intention of surrendering themselves to the authorities.
Starvation, surrender, or fighting, are believed to be the
alternatives of the Sioux since the destruction of their
winter supplies on the Missouri. The Kandiyohi region has
always been a favorite hunting ground with them, and it is
not improbable that we may hear during the winter of
similar adventures in that vicinity to the one above
referred to.
224
In fact, there were several reports that the Indian killed was actually
one of General Sibley’s scouts. Sibley had given the scouts who
served his expedition permission to hunt from the Yellow Medicine
to certain mounds on the Coteau Prairie. A small party of Dakota
218. Sioux in the Kandiyohi Region, ST. PAUL PIONEER (DAILY), Dec. 6, 1863.
219. Id.
220. Id.
221. Scalp Bounty Paid, D
AILY MILWAUKEE NEWS, Feb. 11, 1864, at 2.
222. A
NNUAL REPORT OF THE ADJUTANT GENERAL, reprinted in EXECUTIVE
DOCUMENTS OF THE STATE OF MINNESOTA FOR THE YEAR 1865, at 8, 285 (1866)
[hereinafter 1865 M
INN. EXEC. DOCS.].
223. Id.
224. Sioux in the Kandiyohi Region, ST. PAUL PIONEER (DAILY), Dec. 6, 1863.
34 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
scouts was out hunting and strayed beyond this area. The man shot
by Horner may have been one of these Indians.
225
The four incidents described above are the only times that the
state paid out a bounty under General Orders No. 41, 44, or 60
even though these orders remained on the books for several years.
Perhaps this explains why white Minnesotans quickly forgot this
ugly past. By 1912, newspapers were incredulous when proof of the
Minnesota Adjutant General’s bounty orders resurfaced.
226
The
Dakota never forgot these orders, however, and continue to
mention them to this day.
C. The Minnesota Legislature’s Involvement: A Bounty for Killing
Taoyateduta
While many scholars have placed blame on the Minnesota
Legislature, in truth, that body appears to bear no responsibility for
the creation of the bounty system. In 1863, the Minnesota
Legislature ended its session on March 6, long before the bounty
system was put into place.
227
In December 1863, Minnesota
Adjutant General Oscar Malmros finally informed that body of the
bounty orders he had issued, noting that since the Dakota “seemed
to have taken possession of the timber, throughout an extensive
region of the country,” and “[p]erceiving that something in the
matter should speedily be done . . . it was in your absence, and with
a hope that the act would meet with your subsequent approval, that
I issued on the 4th day of July, General Orders, No. 41.”
228
It would
have been common practice at the time to submit a bill during the
225. One of Sibley’s Scouts Killed, ST. PAUL PIONEER & DEMOCRAT (WEEKLY), Dec.
11, 1863. But see The Kandiyohi Indian Again, S
T. PAUL PIONEER (DAILY), Dec. 6, 1863
(claiming that the Indian killed was not one of Sibley’s scouts).
226. Nearly Wins Bet State Pays for Indian Scalps: Attorney General Finds Reward of
$25 Was Offered by Governor Not Many Years Ago, S
T. PAUL PIONEER PRESS, Feb. 3,
1912, microformed on Minnesota Historical Society Scrapbook, vol. 41, roll 14, frame
145; State’s Head Price $25, Offered in Sioux Days, Scalp Hunters at $1.50 Per Day,
They to Clothe, Arm and Feed Themselves, S
T. PAUL DISPATCH, May 17, 1912, microformed
on Minnesota Historical Society Scrapbook, vol. 66, roll 22, frame 65.
227. See JOURNAL OF THE HOUSE OF REPRESENTATIVES OF THE FIFTH SESSION OF
THE
LEGISLATURE OF THE STATE OF MINNESOTA (1863) (noting that the legislative
session ran from January 6 through March 6, 1863). In January 1863, a bill was
introduced by Minnesota Representative John Brisbin entitled “An Act to Outlaw
Indians.” A copy of the bill no longer exists, and therefore, it is impossible to tell
whether it was a removal bill, a precursor to the bounty system, or contained
another proposal. While the bill was twice referred to House committees, it never
passed that body and it was never introduced in the Senate. Id. at 31, 42, 47.
228. A
NNUAL REPORT OF THE ADJUTANT GENERAL, supra note 11, at 346.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 35
next legislative session seeking ratification of these actions. Yet no
such bill was introduced in the Minnesota Legislature during the
1864 legislative session.
229
While the Minnesota Legislature played no role in the creation
of the bounty system, it did issue one reward of its own accord.
As discussed in Part II.B above, the Lamsons had not received any
monetary reward for killing Taoyateduta. Governor Swift believed
this to be unjust, and in his annual message to the Minnesota
Legislature in 1864, he called upon that body to rectify this
situation.
230
On January 13, 1864, Governor Stephen Miller, in his
inaugural address to the Minnesota Legislature, also made clear his
belief that Nathan and Chauncey Lamson should be rewarded for
their “meritorious service,” suggesting that “such provision be
made for them, as may comport with the dignity of the State.”
231
A bill was drafted almost immediately by Representative Henry
Hill,
232
and it was read in the Minnesota House of Representatives
for the first time on January 21, 1864.
233
As originally introduced,
the bill would have authorized a $1500 payment to the Lamsons for
killing Taoyateduta, of which $1000 was to go to Nathan Lamson
and $500 to Chauncey Lamson.
234
The House, however, reduced
the proposed payments to $500 and $300 respectively,
235
and with
this alteration, the bill passed that chamber by a vote of twenty-four
for and fourteen against.
236
When the Senate took up the bill, it proved to be slightly more
contentious. After two attempts,
237
a bill passed that body on
229. JOURNAL OF THE HOUSE OF REPRESENTATIVES OF THE SIXTH SESSION OF THE
LEGISLATURE OF THE STATE OF MINNESOTA 369–85 (1864) (index listing all House
and Senate bills) [hereinafter 1864 J
OURNAL OF THE MINN. HOUSE].
230. Annual Message of Governor Swift (Jan. 11, 1864), in 1863
MINN. EXEC.
DOCS., supra note 11, at 3, 21.
231. Inaugural Address of Governor Miller (Jan. 13, 1864), in 1863
MINN.
EXEC. DOCS., supra note 11, at 10.
232. Hill was elected from House District 6, which included Meeker County,
where Taoyateduta was killed by the Lamsons. Trenerry, The Shooting of Little Crow,
supra note 174, at 150; see Hill, Henry, M
INN. LEGIS. REFERENCE LIBR.,
http://www.leg.state.mn.us/legdb/fulldetail.aspx?id=13338 (last visited Dec. 21,
2013).
233. See 1864 J
OURNAL OF THE MINN. HOUSE, supra note 229, at 49; see also id., at
55, 59, 62 (tracking history of the bill from the Committee on Federal Relations to
the Committee of the Whole).
234. H.F. 25, 6th Leg. (Minn. 1864).
235. Id. (markups directly on bill).
236. 1864 J
OURNAL OF THE MINN. HOUSE, supra note 229, at 74–75.
237. At first, there were six for and eleven against, but due to an unknown
reason, a later vote that same day produced thirteen for and six against. JOURNAL
36 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
February 18, which compensated Nathan Lamson with $500 and
eliminated any payment for Chauncey
238
even though it was
Chauncey who had fired the fatal shot. Two days later, the House
voted to concur in the Senate amendments,
239
and on February 24,
1864, the bill was signed into law by Governor Stephen Miller.
Stylized as “Act for the relief of Nathan Lamson,” it indicated that
the payment was being made for killing Taoyateduta and “thereby
rendering great service to the State.”
240
D. Blue Earth County’s Bounty Order
The Minnesota bounty system was not only comprised of state-
wide government initiatives. At least one local government—Blue
Earth County—implemented its own bounty system in the years
that followed. The triggering event occurred on May 2, 1865, when
a small group of Dakota attacked the family of Andrew Jewett near
Garden City in Blue Earth County on the former Winnebago
Reservation.
241
Five people were killed in the attack: Andrew Jewett,
his wife, both of his parents, and a hired hand. The family’s two-
year-old son was injured but survived.
242
This attack was in no way related to the war between the
Dakota and the United States. Instead, it appears to have been a
garden-variety murder perpetrated for money.
243
The mastermind
behind the murders was a mixed-blood man named John
OF THE SENATE OF THE SIXTH SESSION OF THE LEGISLATURE OF THE STATE OF
MINNESOTA 169, 172 (1864).
238. Id.; H.F. No. 25.
239. 1864 J
OURNAL OF THE MINN. HOUSE, supra note 229, at 202.
240. Act of Feb. 24, 1864, ch. 84, 1864 Minn. Laws 352.
241. Annual Message of Governor Miller, in 1865 MINN. EXEC. DOCS., supra
note 222, at 3, 24; Startling News!! More Indian Murders!! A Whole Family Murdered on
the Winnebago Reservation, ST. PAUL PIONEER (DAILY), May 2, 1865 [hereinafter
Startling News]. Prior to 1864, Garden City was known as the town of Watonwan.
H
UGHES, supra note 93, at 143.
242. Annual Message of Governor Miller, supra note 241, at 24; Startling News,
supra note 241; see also The Indian Murders in Blue Earth County. The Particulars,
S
T. PAUL PIONEER (DAILY), May 5, 1865 (providing details of the murders). The
scene was disturbing. Family members were “shot and hacked to death, their
bodies scattered in and around the family cabin.” Chuck Lewis, Frontier Fears: The
Clash of Dakotas and Whites in the Newspapers of Mankato, Minnesota, 1863–1865,
5 MINN. HERITAGE 36, 49 (2012).
243. See, e.g., Startling News, supra note 241 (noting that the “Jewetts pockets,
and a box or chest in the house were rifled, [indicating that] the murderers
[were] probably searching for money”).
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 37
Campbell.
244
Campbell had served in a Civil War cavalry battalion
since September 1861 and was deployed in the southern United
States when the U.S.-Dakota War began the following year.
245
In the
spring of 1863, Campbell overheard one of his fellow soldiers
mention that he had sent $500 to Andrew Jewett to purchase a
Minnesota homestead for him.
246
Campbell deserted his post
shortly thereafter, intending to get the money.
247
After murdering the Jewett family, Campbell split from the rest
of his group and began walking towards Mankato.
248
While en
route, he was stopped by a local citizen and taken to the county jail
for questioning.
249
That night, a few Mankato citizens were allowed
into the jail, where they attempted to torture a confession out of
Campbell without success.
250
They did, however, find in his
possession items that were later confirmed to be the property of the
Jewett family.
251
Later on, a roll of money was found in Campbell’s
jail cell that was believed to be taken from the Jewett family.
252
By the morning of May 3, 1865, hundreds of people had
gathered outside the jail, threatening to lynch Campbell.
253
As a
compromise, it was suggested that he be immediately tried.
254
A judge, prosecutor, and jurors were quickly named from persons
244. Lewis, supra note 242, at 49, 51.
245. Descriptive Roll and Account Pay and Clothing of Deserters from
Company G 5th Iowa Cavalry, Minnesota Adjutant General Files (on file with the
Minnesota Historical Society) [hereinafter Descriptive Roll and Account Pay];
Annual Message of Governor Miller, supra note 241, at 24; Startling News, supra
note 241.
246. H
UGHES, supra note 93, at 149.
247. See Startling News, supra note 241; Descriptive Roll and Account Pay,
supra note 245. A few sources claim that Campbell was also motivated by his desire
to avenge the death of his brother, Baptiste Campbell, who was one of the thirty-
eight Dakota hung at Mankato in December 1862. DANIEL BUCK, INDIAN
OUTBREAKS 246 (1904); HUGHES, supra note 93, at 149.
248. B
UCK, supra note 247, at 247; HUGHES, supra note 93, at 150.
249. H
UGHES, supra note 93, at 151.
250. Id.
251. Id.; W
ALTER N. TRENERRY, MURDER IN MINNESOTA: A COLLECTION OF TRUE
C
ASES 43 (1985) [hereinafter TRENERRY, MURDER IN MINNESOTA].
252. Blood for Blood!! Executive Clemency to Indians Rebuked. John Campbell, the
Half-Breed Murderer Hung at Mankato. He Makes a Full Confession of His Guilt. One
Hundred Hostile Savages Near Mankato. Nine Hundred More on the War Path. An Indian
Sympathizer Compelled to Flee the Wrath of the People. The Citizens of Mankato and St. Peter
Guarding Their Homes, S
T. PAUL PIONEER (DAILY), May 5, 1865 [hereinafter Blood for
Blood].
253. HUGHES, supra note 93, at 152; The Trial and Execution of John L. Campbell,
S
T. PETER TRIB., May 10, 1865.
254. H
UGHES, supra note 93, at 152.
38 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
in the crowd.
255
Four hours of testimony was received about
Campbell’s “character as a desperado and outlaw,” “his complicity
[in] other frontier murders,” the conflicting statements he offered
to officials following the Jewett murders, and the family’s objects
found in his possession.
256
No one represented Campbell, and while
he testified on his own behalf, he was unable to call any witnesses in
his defense due to his incarceration and immediate trial.
257
Within a
half-hour of the end of this “trial,” the jury returned a unanimous
guilty verdict but suggested that the prisoner be held over until the
regular term of the district court for a fuller trial.
258
Instead of heeding the jury’s suggestion, the mob rushed
Campbell and took him out to a tree to be hanged. After several
botched attempts, they were successful in strangling him.
259
Press
coverage noted that it was “an exciting day in Mankato”
260
and
claimed that these “exasperated people” could not be blamed for
the lynching, since there was legitimate concern that the
perpetrator would escape punishment given the government’s
refusal to execute most of the Dakota condemned to death in
1862.
261
The five other Dakota who participated in the attack
encountered General Sibley’s scouts as they fled west, and all but
one were killed.
262
Nevertheless, to ensure that settlers would be
protected from any potential future attacks, the Minnesota
Adjutant General created a unit of “Mounted Minute Men”
255. Id.; TRENERRY, MURDER IN MINNESOTA supra note 251, at 43–44; Blood for
Blood, supra note 252.
256. The Trial and Execution of John L. Campbell, supra note 253.
257. T
RENERRY, MURDER IN MINNESOTA, supra note 251, at 43; see also The Trial
and Execution of John L. Campbell, supra note 253.
258. HUGHES, supra note 93, at 153; The Trial and Execution of John L. Campbell,
supra note 253.
259. HUGHES, supra note 93, at 153–54; TRENERRY, MURDER IN MINNESOTA,
supra note 251, at 44.
260. Blood for Blood, supra note 252.
261. The Indian News, S
T. PAUL PIONEER & DEMOCRAT (WEEKLY), May 12, 1865.
In his annual message to the Minnesota legislature the following January,
Governor Miller acknowledged but showed no concern for this lawless behavior.
Annual Message of Governor Miller, supra note 241, at 24 (stating that Campbell’s
“guilty participation having been fully demonstrated, he was summarily hung at
Mankato without reference to the ordinary forms of law”).
262. Annual Message of Governor Miller, supra note 241, at 24–25; Important
Indian News. The Murderers of the Jewett Family Intercepted and Killed. No Other Party
Known to Be on the Frontier, Letter from Fort Wadsworth, S
T. PAUL PIONEER (DAILY),
May 26, 1865.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 39
stationed in and around Mankato.
263
Along with the companies
already in existence, there were now more than 400 soldiers
stationed in southwestern Minnesota to guard against future
Dakota attacks.
264
The local response to the Jewett murders was also swift. On
May 17, 1865, the Blue Earth County Board of Commissioners met
and adopted a resolution offering a bounty of $200 for “each and
every Sioux Indian hereafter killed within the limits of the county
until[] this resolution shall be rescinded.”
265
The money was to be
paid upon production of the scalp and proof that the person
claiming the payment had both killed the Indian in question and
that he had done so within county limits.
266
No bounty payments
appear to have been made pursuant to this resolution even though
it was not officially repealed until March 19, 1872.
267
Additionally, E. P. Evans, a friend of the murdered Andrew
Jewett, organized an expedition to the southern United States to
purchase “‘blood hounds with which to hunt Indians.”
268
The funds
for this trip were provided by three Minnesota counties (Blue
Earth, Martin, and Watonwan) and a select number of private
citizens, including a $100 personal donation from Governor
Miller.
269
Evans ultimately purchased thirteen dogs that were
distributed among these counties in August 1865.
270
The hounds
were never used for their intended purpose, and they “escaped one
after another and soon like the Indians disappeared from Blue
Earth County.”
271
263. HUGHES, supra note 93, at 158; Annual Message of Governor Miller, supra
note 241, at 25.
264. HUGHES, supra note 93, at 158.
265. B
LUE EARTH CNTY. BD. OF COMM’RS, JOURNAL FOR COUNTY PURPOSES
231–32 (May 17, 1865).
266. Id. at 234; see also Extermination of the Indians, ST. PAUL PIONEER (DAILY),
May 23, 1865 (reprinting the county commissioners’ resolution).
267. See
HUGHES, supra note 93, at 157 (noting that the county never made any
bounty payments pursuant to these resolutions, but making other minor errors
about the bounty order enacted, such as claiming that it was limited to killing
“hostile” Dakota).
268. Lewis, supra note 242, at 51 (quoting MANKATO UNION, May 26, 1865);
see also Extermination of the Indians, supra note 266 (noting that the county
commissioners authorized $500 to purchase blood hounds that would be used to
track Dakota).
269. H
UGHES, supra note 93, at 157.
270. Id. at 157–58; Lewis, supra note 242, at 51.
271. HUGHES, supra note 93, at 158.
40 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
E. The End of Minnesota Bounties? State v. Gut
Another garden-variety murder also played a significant role in
the Minnesota bounty system a few years after the Jewett family
murders. New Ulm, a predominately German settlement in Brown
County, Minnesota, was in the midst of Christmas Day celebrations
on December 25, 1866.
272
On that day, two trappers from the
nearby town of Mankato—Alexander Campbell and George
Liscom
273
—travelled to New Ulm to sell some of their furs to a local
trader.
274
Campbell and Liscom were both white Americans in their
twenties
275
who had served three years in the military.
276
On this day,
however, they had just returned from trapping in the woods, and
their dress included a mixture of white and Dakota elements.
Campbell was wearing moccasins, a dark blue hood or blanket
around his head, buckskins, and a knife at his belt.
277
Liscom was
also wearing a knife attached to his belt.
278
Both men were tanned
from having spent considerable time outdoors.
279
After selling their furs, Campbell and Liscom entered the
National Hall, a local saloon. At the saloon, they spoke in Dakota,
French, and English (or at least in jargons that the mostly German-
speaking New Ulm residents believed to be those languages).
280
They played a game of cards
281
and met a New Ulm man named
John Spinner.
282
Spinner coaxed the men into pretending to be
Indians. While Spinner tapped on a kettle, Campbell and Liscom
danced about the room, brandishing their knives and mimicking
272. TRENERRY, MURDER IN MINNESOTA, supra note 251, at 44.
273. In some sources, these men are referred to as Charles Campbell and
George Liscome. See, e.g., State v. Gut, 13 Minn. 341, 344, 354–56 (1868) (referring
to one of the trappers as George Liscome, and the other as Charles Campbell or
Alexander Campbell at different points in the opinion), aff’d, 76 U.S. 35 (1869);
J
OHN D. BESSLER, LEGACY OF VIOLENCE: LYNCH MOBS AND EXECUTIONS IN MINNESOTA
10 (2003) (claiming that the lynching victims were named Charles Campbell and
George Liscom).
274. The New Ulm Horror, S
T. PAUL DAILY PRESS, Jan. 3, 1867 (noting that the
pair sold 146 rat pelts for $28.27).
275. Funeral of Liscom and Campbell, MANKATO UNION, Jan. 11, 1867.
276. The New Ulm Butchery. Further Particulars of the Affair, S
T. PAUL PIONEER
(DAILY), Dec. 29, 1866 [hereinafter The New Ulm Butchery].
277. Gut, 13 Minn. at 356; see B
ESSLER, supra note 273, at 11.
278. Gut, 13 Minn. at 356.
279. Id.; B
ESSLER, supra note 273, at 11.
280. Gut, 13 Minn. at 354–56.
281. The New Ulm Tragedy, MANKATO UNION, Jan. 4, 1867.
282. Id. Spinner is also referred to as John Spenner in many sources. See, e.g.,
TRENERRY, MURDER IN MINNESOTA, supra note 251, at 45.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 41
the motion of scalping their enemies.
283
Everyone in the saloon
watched the performance.
At some point, a dispute arose over the liquor bill. Liscom was
told that he owed seventy-five cents even though he believed he
owed only fifteen cents.
284
He refused to pay the difference, but a
man who had ridden into town with Liscom and Campbell seemed
to defuse the situation by paying the bill.
285
It is not clear from the
trial record whether it was the dispute over the liquor bill, the fact
that Campbell and Liscom referred to themselves as Yankees, or
some other matter that sparked the fatal fight. Regardless, Spinner
turned on Liscom; he forced Liscom outside and struck him in the
head with an ax or a club, most likely fracturing Liscom’s skull.
286
Campbell came to his friend’s defense, slashing at Spinner with a
knife. While he may have only intended to intimidate Spinner into
backing off, Campbell severed an artery in Spinner’s leg and sent
blood everywhere.
287
At this point, the Brown County Sheriff arrived and took
Campbell and Liscom into custody. Even though Liscom had life
threatening injuries, the sheriff did not provide him with medical
assistance. Instead, he forced the men to strip, handcuffed them,
and placed them in jail cells.
288
When Spinner died from blood loss
later that evening, news of his death spread rapidly through the
town. Just after the arrest was made, a report began circulating
around town that “two half-breeds” had murdered John Spinner.
289
Only thirty minutes after the arrests, a crowd of over one
hundred men assembled at the jail. The crowd repeatedly chanted:
“Bring out the half-breeds! Hang the half-breeds! Out with the
Indians!”
290
George Schneider, who later became a witness for the
283. TRENERRY, MURDER IN MINNESOTA, supra note 251, at 45; The New Ulm
Tragedy, supra note 281.
284. The New Ulm Horror, supra note 274.
285. Id.
286. Report of Atty. Gen. Colville, M
ANKATO UNION, Feb. 8, 1867.
287. The New Ulm Butchery, supra note 276; The New Ulm Tragedy, supra note
281; Report of Atty. Gen. Colville, supra note 286.
288. The New Ulm Murders, S
T. PAUL PIONEER (DAILY), Dec. 30, 1866.
289. State v. Gut, 13 Minn. 341, 355 (1868), aff’d, 76 U.S. 35 (1869).
290. Id.; see also Result of the Preliminary Examination at New Ulm, MANKATO
UNION, Feb. 8, 1867; Report of Atty. Gen. Colville, supra note 286 (“[M]ost of the mob
were infuriated by the false statement which had been industriously circulated by
the parties concerned in the original affray at the saloon—for what purpose may
be surmised—that Spenner [sic] had been stabbed without provocation by two
half-breeds.”).
42 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
State, testified that the crowd began calling out that Alexander
Campbell was the brother of John Campbell, the mixed-blood
Dakota who had been executed for killing the Jewett family just one
year earlier.
291
In actuality, neither Alexander Campbell nor George
Liscom had any Dakota ancestry, and Alexander Campbell was not
related to John Campbell.
292
The crowd eventually stormed the jail
and dragged out Campbell and Liscom, who were still in
handcuffs.
293
Liscom was killed first. He was struck in the head and
then hanged from a ladder leaning against the jail.
294
Campbell was
next.
John Gut, a soldier with Company H of Minnesota’s Tenth
Regiment, arrived around the same time that the crowd broke
open the jail.
295
Gut pushed to the front of the mob and stabbed
Campbell.
296
When he was criticized by a witness for stabbing the
prisoner, he replied: “These two half-breeds killed my best friend,
John Spinner, and I will kill them; let me alone or I will stab you!”
297
The crowd parted, and Gut continued to stab, kick, and beat
Campbell (as did others in the crowd) until Campbell was hanged
from the jail window gratings.
298
After the lynching, Gut returned to the Pennsylvania House,
the hotel he was staying at.
299
Even though he was covered in blood
and wearing a military uniform, which made him easy to identify,
Gut seemed unconcerned. In fact, he struck up a conversation with
a stranger and confessed that he had just killed two Indians in
retaliation for their having killed a German.
300
Gut’s confidence was
understandable because lynching was not unheard of during this
time period. Between 1857 and 1865, at least six persons (four of
whom were Indians) were lynched in Minnesota, and none of the
291. Gut, 13 Minn. at 355; BESSLER, supra note 273, at 8–11.
292. T
RENERRY, MURDER IN MINNESOTA, supra note 251, at 44–45.
293. The New Ulm Tragedy, supra note 281.
294. Id.; BESSLER, supra note 273, at 11.
295. Gut, 13 Minn. at 355. In his own correspondence, John Gut spelled his
last name “Gutt.” See infra note 340.
296. T
RENERRY, MURDER IN MINNESOTA, supra note 251, at 46–47; The New Ulm
Tragedy, supra note 281.
297. Gut, 13 Minn. at 355.
298. B
ESSLER, supra note 273, at 11; Result of the Preliminary Examination at New
Ulm, supra note 290.
299. Important Arrest, M
ANKATO UNION, Jan. 11, 1867.
300. Report of Atty. Gen. Colville, supra note 286; The New Ulm Horror, supra note
274; The New Ulm Tragedy, supra note 281. Later, however, Gut realized the gravity
of his situation and fled, only to be arrested and brought to Mankato. Important
Arrest, supra note 299; Our Prisoner, MANKATO UNION, Jan. 18, 1867.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 43
persons who participated in their murders were ultimately brought
to justice.
301
Governor William Marshall was concerned that New Ulm
would not punish the citizens responsible for lynching Campbell
and Liscom.
302
These concerns led Marshall to dispatch Minnesota
Attorney General William Colvill to New Ulm on January 5, 1867.
Colvill was to determine whether a fair trial was possible in New
Ulm.
303
At first, he believed it would be,
304
but he quickly changed
his mind.
305
In a formal report to the governor, Colvill noted that
New Ulm had not attempted to identify the offenders or bring
them to justice before his arrival.
306
Furthermore, while almost half
of the town’s citizens had been in “full view of the whole scene,
301. BESSLER, supra note 273, at 5–10.
302. In addition to Minnesota’s poor track record for trying and convicting
persons involved in lynching, the governor had ample reason for concern that the
perpetrators in this particular case would not be brought to justice. Several
prominent New Ulm citizens were present at the lynching. The New Ulm Horror,
supra note 274. Others, such as Minnesota Legislator Daniel Shilloch, began
spinning the incident almost immediately after it occurred. Shilloch wrote letters
to the St. Paul Daily Press, claiming that Campbell and Liscom were unprovoked in
their attack on Spinner, only two men had participated in attacking the prisoners,
and the majority of the onlookers in the crowd were not even from New Ulm.
The New Ulm Tragedy, supra note 281; see, e.g., The Other Side of the Story, S
T. PAUL
DAILY PRESS, Dec. 30, 1866; Vindication of New Ulm. A Series of Slanders Refuted,
S
T. PAUL DAILY PRESS, Jan. 12, 1867; see also The New Ulm Tragedy. The Other Side of the
Affair, S
T. PAUL PIONEER (DAILY), Jan. 9, 1867 (reprinting an article from the New
Ulm Post claiming that the victims deserved to be hanged because they portrayed
themselves as Indians, thereby frightening the townspeople); The Other Side.
Statement of Hon. Francis Baasen of New Ulm, S
T. PAUL PIONEER (DAILY), Dec. 30, 1866
(claiming that Liscom and Campbell were drunk, and that Spinner was stabbed
before he struck Liscom with a hatchet). While the New Ulm Press printed these
letters, it also refuted their contents and expressed concern that the town was not
willing to try the persons responsible for the murders. See, e.g., New Ulm’s
Vindication, S
T. PAUL DAILY PRESS, Jan. 12, 1867.
303. Attorney Gen. at New Ulm, M
ANKATO UNION, Jan. 11, 1867; The New Ulm
Tragedy, S
T. PAUL PIONEER (DAILY), Jan. 4, 1867. Colvill’s name is often spelled
“Colville.” See Report of Atty. Gen. Colville, supra note 286.
304. Letter from William Colvill, Minn. Att’y Gen., to William Marshall,
Governor (Jan. 8, 1867) (on file with the Minnesota Historical Society).
305. Report of Atty. Gen. Colville, supra note 286.
306. Id. New Ulm did not issue any arrest warrants until January 18, 1867.
A preliminary examination into Alexander Campbell’s murder was held a few days
later. Of the seventeen persons arrested, five were unconditionally discharged.
Twelve persons were charged with either murder in the first degree or
manslaughter in the second degree. All were released after posting bail except for
John Gut, who could not afford to do so. Preliminary Examination at New Ulm,
M
ANKATO UNION, Feb. 1, 1867; Result of the Preliminary Examination at New Ulm,
supra note 290. No one believed, however, that the community would ultimately
issue indictments. T
RENERRY, MURDER IN MINNESOTA, supra note 251, at 48–49.
44 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
they could not remember a single person engaged in it.”
307
Colvill
also believed that the Sheriff of Brown County may have acted in
concert with the mob, and at a minimum, the Sheriff consented to
the removal of Campbell and Liscom’s bodies.
308
For these reasons,
the attorney general informed the governor that he was convinced
a fair trial could not be had in New Ulm.
In his report, Colvill also provided some details about the
lynching, gathered through dozens of interviews. He believed that
the mob became infuriated by the false rumor that the two men
were “half-breeds” who had stabbed Spinner without provocation.
309
Anticipating an argument that would later become part of Gut’s
defense, Colvill wrote:
If half-breeds have no rights, and it is lawful to hang them
without judge or jury, the fact that these men were
mistaken for them by a portion of the mob might go in
mitigation of the offense, so far as that portion is
concerned; but until that principle is established by our
courts, this offense having been clearly premeditated as
above stated, is murder in the first degree.
310
Colvill’s report was forwarded to the legislature with the request
that legislation be enacted that would ensure a change of venue.
The legislature took action in March 1867, and under a newly
enacted law, the case against John Gut and his fellow lynchers was
moved to Redwood Falls and began with the calling of a grand jury.
The first grand jury failed to return an indictment, however, and
District Court Judge Horace Austin lectured the jurors for more
than thirty minutes, stating that he would continue to convene new
grand juries “until the accused are tried, and if guilty, properly
punished.”
311
The second grand jury convened in September 1867
and indicted John Gut and twelve others on first degree murder
charges.
312
Each case was to be tried separately. Gut then filed his
own change of venue motion, which was approved, and this time
the case was transferred to neighboring Nicollet County.
313
Gut
307. Report of Atty. Gen. Colville, supra note 286.
308. Id.
309. Id.
310. Id.
311. The New Ulm Trials. No Indictment Found—Court Adjourned Until September
10, 1867,
MANKATO UNION, July 5, 1867.
312. State v. Gut, 13 Minn. 341, 351 (1868), aff’d, 76 U.S. 35 (1869); see also
New Ulm Murder Trials, MANKATO UNION, Oct. 4, 1867.
313. Gut, 13 Minn. at 347; see also New Ulm Murder Trials, supra note 312
(noting that the change of venue request, which was not opposed by the State,
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 45
“interposed the plea of insanity, with the plea of not guilty.”
314
After
several continuances, the trial began on January 23, 1868.
315
The trial included several well-known Minnesotans. Horace
Austin remained the district court judge. He had helped defend
New Ulm against the Dakota in 1862 and had later served as
captain of a mounted ranger company before being elected district
court judge in the fall of 1864.
316
The State was represented by its
Attorney General, Francis Cornell. John Gut was represented by
various attorneys, including Charles Flandrau. Flandrau was a
former Nicollet County prosecutor and an associate justice on the
Minnesota Supreme Court.
317
He was also knowledgeable in Indian
affairs, having served as the U.S. Indian agent for the Dakota
reservations in 1856–57.
318
His view of the Dakota, however, was
substantially altered by the U.S.-Dakota War, during which he
successfully led the defense of New Ulm against a vigorous Dakota
attack.
319
Afterwards he wrote General Sibley a letter advocating for
the killing of all Dakota, including women and children.
320
These
personal views no doubt colored Flandrau’s defense of Gut.
Attorney General Cornell had no problem proving that John
Gut killed Campbell. Several witnesses testified that he had stabbed
Campbell repeatedly, both before and after he was hanged. Charles
Flandrau represented John Gut at trial and set forth various
defenses. He argued that Gut was drunk and insane and should not
claimed that the citizens of Redwood County “were entirely American,” and
therefore, the defendants, who were all German, could not have a fair and
impartial trial there). On appeal to the Minnesota Supreme Court, Gut later
claimed that the change of venue he requested and obtained was improper. That
claim was rejected. Gut, 13 Minn. at 352.
314. Gut, 13 Minn. at 356; see also New Ulm Trials, John Gut Convicted of Murder,
MANKATO UNION, Feb. 7, 1868 (describing the charge to the jury on the insanity
charges and noting that Gut was, in the newspaper’s opinion, “unquestionably, a
sane man, yet he is of a very low order of intellect”).
315. T
RENERRY, MURDER IN MINNESOTA, supra note 251, at 50.
316. Id.; H
UGHES, supra note 93, at 148.
317. Russell W. Fridley, Charles E. Flandrau, Attorney at War, M
INN. HISTORY,
Sept. 1962, 116, 117–18, 120.
318. Id. at 122.
319. Id. at 116–17.
320. Stephen Riggs, a long-time missionary to the Dakota, wrote to his wife
about a letter written by Flandrau to Briagdier General Henry Sibley. That letter
advocated for the killing of all men, women, and children. According to Riggs,
Flandrau was convinced that all Dakota had “been engaged in these massacres
except the young children, and they will only grow up like their fathers.” Letter
from Stephen Riggs to wife Mary Riggs (Oct. 25, 1862) (on file with the Minnesota
Historical Society).
46 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
be held legally responsible for his acts.
321
Flandrau also argued that
the 1867 Act, which allowed the location of the trial to be moved
from Brown County, was unconstitutional. Finally, he claimed that
the Minnesota Adjutant General’s 1863 bounty orders should
provide a defense for Gut in these proceedings.
In fact, Flandrau opened the defense’s case with an offer of
proof. He told the court that he wished to call two witnesses who
would establish the following:
1st. That at the time of the killing of Alexander
Campbell . . . there existed a state of war between the
United States and the Sioux tribe of Indians, which tribe
or Nation is composed of Indians and Half-breeds. The
actual theatre of which war was the State of Minnesota,
and particularly the western frontier of said State. . . .
2nd. That the State of Minnesota through its legal
authorities offered rewards for the killing by any person of
any male of said tribe, which offer was then in full force.
That the said Campbell and one Liscome, came into the
Town of New Ulm on the day said Campbell was killed
from the western frontier of this State. That said
Campbell and Liscome . . . were then and there draped in
the garb of Half breeds of said tribe of Indians, spoke the
language of said tribe, and danced the war dance and
other dances of said tribe, and then and there killed John
Spenner, a citizen of the United States, and resident of
the Town of New Ulm, Brown County, Minnesota.
3rd. That the mode of warfare of said tribe of Indians
and Half breeds was and is by small bands or parties of
said Indians and Half breeds making incursions into the
frontier settlements, and killing single persons or families.
4th. That the parties who killed said Campbell
including this defendant were then and are now citizens
of the United States, and then and there believed said
Campbell to be an Indian or half breed of said tribe of
Sioux Indians so at war with the United States as
aforesaid, and then and there engaged in such war in the
killing of said Spenner, and that the killing of said
Campbell was from no other motive whatsoever.
322
321. New Ulm Trials. John Gut Convicted of Murder, supra note 314.
322. Offer of Proof, State v. Gut, No. 595 (Nicollet Dist. Ct.) (on file with the
Minnesota Historical Society).
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 47
In addition to this offer of proof, Flandrau provided authenticated
copies of Minnesota Adjutant General Orders Nos. 41 and 44.
Francis Cornell, counsel for the State, objected to this offer and the
court took the matter under consideration. The next day, however,
Judge Austin ruled that the testimony would not be admitted.
Flandrau lodged his objection in the record and continued to press
the matter by requesting jury instructions on this defense.
323
Judge
Austin, however, did not alter his decision.
On January 31, 1868, after three hours of deliberation, the jury
found John Gut guilty of murder in the first degree for the killing
of Alexander Campbell.
324
The jury recommended that the
defendant be granted mercy rather than be executed for the
crime.
325
Despite this, Judge Austin ordered that Gut be taken to
the county jail and kept in solitary confinement until Friday, April
3, 1868, when he was to be hanged.
326
Flandrau appealed Gut’s case to the Minnesota Supreme
Court, and while the case was pending, Judge Austin granted a stay
of execution.
327
On appeal, Flandrau raised several legal challenges,
but all were rejected by the court. With respect to Flandrau’s
argument that the Minnesota Adjutant General’s bounty orders
provided a justification or excuse for Gut’s actions, the court noted
that while it is legal to kill an enemy soldier in the heat of war, “to
kill such an enemy after he has laid down his arms, and especially
when he is confined in prison, is murder.”
328
Therefore, the court
concluded that any evidence regarding whether a state of war
continued to exist between the Dakota and the United States was
immaterial.
329
Despite this, the court went on to question the legality of the
bounty orders themselves. It noted that the bounty orders were not
laws passed by the Minnesota Legislature and that a “proclamation
323. Charges Asked by Defendant, State v. Gut, No. 595 (Nicollet Dist. Ct. Jan.
31, 1868) (on file with the Minnesota Historical Society).
324. State v. Gut, 13 Minn. 341, 344, 347 (1868), aff’d, 76 U.S. 35 (1869); New
Ulm Trials. John Gut Convicted of Murder, supra note 314.
325. New Ulm Trials. John Gut Convicted of Murder, supra note 314.
326. Judgment Roll, State v. Gut, No. 595 (Nicollet Dist. Ct.) (on file with the
Minnesota Historical Society).
327. Dist. Ct. Stay of Execution, State v. Gut, No. 595 (Nicollet Dist. Ct. Feb. 4,
1868) (on file with the Minnesota Historical Society); Letter from Charles
Flandrau to William Marshall, Governor (Mar. 12, 1868) (on file with the
Minnesota Historical Society) (enclosing a copy of the Stay of Execution).
328. Gut, 13 Minn. at 357.
329. Id.
48 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
or order of any officer of the state could not make that right which
is wrong, or legal which is illegal.”
330
The court refused to even
admit that the Minnesota Adjutant General had issued these
orders, noting only that “if” such orders were made and they led an
ignorant person to commit a crime, then the only recourse would
be an appeal to the governor for executive clemency.
331
Upon hearing of the Minnesota Supreme Court’s decision, on
February 27, 1869, Charles Flandrau immediately wrote Governor
Marshall. In his letter, Flandrau stated that the court’s decision left
it to the Governor to fix the time of Gut’s execution, but that he
wished to seek executive clemency in the case and he believed the
Attorney General would “cheerfully join” him in that request.
332
Flandrau claimed that Gut was insane at the time the offense was
committed, but he was unable to prove this at trial because he was a
stranger to the town and only there temporarily with his military
company.
333
Months later, no action had been taken in Gut’s case.
Although Flandrau had appealed to the U.S. Supreme Court,
which was reviewing the matter, no stay of execution had been
issued. District Court Judge Horace Austin wrote to Governor
Marshall to determine what was to be done with Gut, who had been
languishing in the county jail—a facility not fit to confine a person
for long periods of time—since September 1867.
334
Judge Austin
recommended that the sentence be commuted to imprisonment
for life or a term of years because “i[f] any one is to be executed for
those New Ulm murders, he is not the most fit man for the
example.”
335
He also requested that Gut be sent to the state
penitentiary.
336
On February 15, 1870, the U.S. Supreme Court affirmed the
decision of the Minnesota Supreme Court. The next day, Charles
Flandrau once again wrote to the governor seeking to save his
client’s life. This time, however, he was writing to Horace Austin.
The former trial judge in the case had been elected governor of
330. Id. at 358.
331. Id.
332. Letter from Charles Flandrau to William Marshall, Governor (Feb. 27,
1869) (on file with the Minnesota Historical Society).
333. Id.
334. Letter from Horace Austin, Judge, to William Marshall, Governor (June
7, 1869) (on file with the Minnesota Historical Society).
335. Id.
336. Id.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 49
Minnesota and took the oath of office in January 1870.
337
Flandrau’s
letter informed Governor Austin of the U.S. Supreme Court’s
decision and requested that the governor “see the matter in a light
that will induce you to save his [John Gut’s] life.”
338
Flandrau’s plea claimed that Gut’s actions were somehow
diminished because he believed the victim was a Dakota:
The act was done in hotblood, and in any opinion under a
mistake as to the person who was killed. I have always had
full faith in the statement which was made on the trial that
they supposed the murdered parties were half breeds, and
had they known they were white men they would not have
killed them. If you can possibly change the sentence to
imprisonment, compatibly with your sense of duty, I hope
you will do so.
339
It is not known for certain whether Flandrau’s words had any
effect, but a few days later, Governor Austin did commute Gut’s
sentence from execution to life imprisonment.
340
And three years
later, after additional brief correspondence with John Gut
himself,
341
Austin reduced Gut’s sentence from life imprisonment
to ten years, just as his term as governor was about to expire.
In commuting Gut’s sentence, Governor Austin noted that the
other men who had been indicted had fled the country and were,
therefore, never punished.
342
It took the mistaken murders of two white men to end the
bounty system. While the Minnesota Adjutant General’s bounty
orders were never formally repealed, they were never used again
following the Minnesota Supreme Court’s decision in State v. Gut,
and they disappeared into the recesses of white Minnesotans’
memories.
337. 1 HISTORY OF NICOLLET & LESUEUR COUNTIES MINNESOTA: THEIR PEOPLE,
INDUSTRIES AND INSTITUTIONS 147, 500 (William G. Gresham ed., 1916).
338. Letter from Charles Flandrau to Horace Austin, Governor (Feb. 16,
1870) (on file with the Minnesota Historical Society).
339. Id.
340. Letter from Charles Flandrau to Horace Austin, Governor (Mar. 4, 1870)
(on file with the Minnesota Historical Society).
341. Letter from John Gutt to Horace Austin, Governor (Nov. 9, 1873) (on
file with the Minnesota Historical Society); Letter from John Gutt to Horace
Austin, Governor (Dec. 28, 1873) (on file with the Minnesota Historical Society).
342. T
RENERRY, MURDER IN MINNESOTA, supra note 251, at 52.
50 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
III. BOUNTIES AND THE LAWS AND CUSTOMS OF WAR
The bounty system described in Section II above was created
by state officials. Its inspiration, however, may have come from the
federal government. Just following the end of hostilities in 1862,
General John Pope, the commander of the U.S. Military’s
Department of the Northwest, directed Henry Sibley to offer a $500
reward for Taoyateduta “dead or alive” and a $50 reward “for each
principal Chief of his band.”
343
Pope immediately informed General
Halleck that he had authorized the bounty, noting that he
intended to make Little Crow “an outlaw among Indians.”
344
In the summer of 1863, General Sully and General Sibley were
placed in charge of the expedition to annihilate the remaining
Dakota who had fled west following the Battle of Wood Lake. At
that time, General Sully requested permission to expand on Pope’s
efforts by placing bounties on other Dakota.
345
In a June 1, 1863
letter, U.S. Assistant Adjutant General Selfridge granted him that
permission.
346
There is no indication that any monies were paid out
in response to these federal bounties. Indeed, when Taoyateduta
was ultimately killed, it was the Minnesota Legislature, not the
federal government, who provided Nathan Lamson with a $500
reward (although it is curious that the sum paid was the same
amount originally offered by the federal government).
Nevertheless, bounties were authorized by federal officials.
There is at least one significant difference between these
federal bounties and the Minnesota bounties previously discussed.
The State initially authorized a bounty on all Dakota men. Later, it
altered this order and restricted the bounty to “hostile” Dakota
men, but this hostility requirement was never enforced in practice.
None of the Dakota killed under this bounty system instigated the
conflict that ultimately led to their death; these men were shot
simply because they were Dakota. The federal bounties, on the
343. Letter from John Pope, Major-Gen., to Henry Sibley, Brigadier-Gen.
(Oct. 6, 1862) (on file with the Minnesota Historical Society).
344. Letter from Major-Gen. John Pope to Major-Gen. Henry Halleck (Oct. 7,
1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 716.
345. Unfortunately, a copy of this letter was not included in W
AR OF THE
REBELLION, and this author has been unable to locate it in the collections of the
Minnesota Historical Society or the National Archives. It is therefore unclear
which specific Dakota General Sully was requesting federal bounties be placed on.
346. Letter from Major & Assistant Adjutant-Gen. R. O. Selfridge to Brigadier-
Gen. Alfred Sully (June 1, 1863), in 22 W
AR OF THE REBELLION, SER. I, PART II,
supra note 82, at 306.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 51
other hand, were tied to specific named persons who were believed
to have played a key role in the war during the fall of 1862.
While there is no indication that the federal government knew
about the Minnesota bounty system, it was aware of similar systems
in other states. For example, around the same time that the
Minnesota Adjutant General was placing a bounty on Dakota
heads, the Arizona Legislature was placing a bounty on Apache
people,
347
and local governments in California were attempting to
eradicate all Indian people through their own public and private
bounties.
348
The federal government not only knew about these
347. In 1864, John Goodwin, the federally appointed Territorial Governor of
Arizona, successfully pushed the Arizona Legislature to pass a resolution
endorsing the extermination of Apaches. KATHLEEN P. CHAMBERLAIN, VICTORIO:
APACHE WARRIOR AND CHIEF 107 (2007). The legislature ultimately offered a
“reward for every Apache brought in, dead or alive,” and the system was described
as “the same sort of bounty that was used to be offered for wolf scalps.” Id.
Prior to 1864, bounties were placed on Apache by local governmental units
within the Arizona territory or, in the alternative, by private groups who raised
money to pay their own bounty for Apache scalps.
Karl Jacoby, “The Broad Platform
of Extermination”: Nature and Violence in the Nineteenth Century North American
Borderlands, 10
J. GENOCIDE RES. 249, 253 (2008). Connecticut-born judge Joseph
Pratt Allyn, for example, noted upon his arrival in Arizona in 1863 that “a war of
extermination has in fact already begun” and that Apache “Indians are shot
wherever seen.” Id. The judge witnessed several organizational meetings for
civilian campaigns, at which settlers not only volunteered their own services as
“Indian hunters,” but also contributed towards a bounty for Indian scalps. Id. The
judge noted that these expeditions “enjoyed a degree of official support” and were
widespread. Id. An article published in the New York Times
in 1885 shows that these
Apache bounties were used until the late 1800s, with rewards ranging from $250 to
$500 for Apache scalps in Cochise, Pima, and Yavapai Counties. Money for Indian
Scalps, N.Y. TIMES, Oct. 12, 1885 (“From time immemorial all border countries
have offered rewards for bear and wolf scalps and other animals that destroyed the
pioneer’s stock or molested his family. Why, therefore, asks the Arizona settler,
should not the authorities place a reward upon the head of the terrible Apache,
who murders the white man’s family and steals his stock like the wolves?”).
348. Municipal governments in California offered bounties for Indian heads
or scalps.
JAMES J. RAWLS, INDIANS OF CALIFORNIA: THE CHANGING IMAGE 185 (1984).
Shasta City, for example, offered $5 for every Indian head presented at city
headquarters. Id. In 1859, a community near Marysville paid bounties that were
collected by public subscription “for every scalp or some other satisfactory
evidence” that an Indian had been killed. Id. Funds were raised in Tehama County
in 1861 “to be disbursed in payment of Indian scalps.” Id. And two years later, the
citizens of Honey Lake paid twenty-five cents for each Indian scalp. Id.
In addition to these local governmental programs, men joined various
volunteer militia groups to exterminate California Indians, and they were
permitted to submit claims to the state for their expenses. Id. In 1851 and 1852,
the California legislature authorized payment of claims totaling over $1 million.
Id. The federal government later reimbursed the state for these expenses. Id.
at 186; see also W
ALTON BEAN & JAMES J. RAWLS, CALIFORNIA: AN INTERPRETIVE
52 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
programs, but it reimbursed some of the expenses associated with
them.
In fact, during this time period, federal officials frequently
called for the extermination of all Indians. Indeed, extermination
could be said to be the official policy of the federal government
until President Grant unveiled his “Peace Policy” in 1870, and state
bounties were one means of achieving this goal. But were these
bounties legal? More specifically, was the Minnesota bounty system
legal when enacted? What about the federal bounty on Dakota
leaders?
If the Dakota were citizens of a sovereign state at war with the
United States, the legality of the orders is measured against the laws
and customs of war. As discussed in Part III.A below, those laws
establish that offering a monetary reward for the killing of enemy
troops is an assassination, and even in 1863, assassinations were
clearly prohibited both by the European laws of war, and by U.S.
domestic law. Consequently, offering money for Dakota scalps was
illegal if the Dakota could be considered a sovereign state at war
with the United States, regardless of whether the bounty was placed
on Dakota leaders or Dakota men in general.
349
On the other hand, if the Dakota were not considered a
sovereign state engaged in war with the United States, those
persons involved in attacks or assaults on U.S. citizens might
instead be considered outlaws or guerrillas. In that case, the Dakota
who killed military and civilian forces would be considered to have
violated the laws of war and could be lawfully punished. The laws of
war suggested that punishment be meted out by a military
commission or court martial, but in the heat of war, it was not
uncommon for blame to be assigned and punishment carried out
by summary execution. Still, even in these cases, the individuals
HISTORY 130–31 (1988).
349. The laws of war also prohibited the killing of disabled enemy soldiers,
and such acts were punishable by death. Disabled enemy soldiers were to be taken
as prisoners of war and were entitled to certain minimum conditions while being
held as such. If the Dakota were considered a sovereign state at war with the
United States in 1863, then the prohibition on killing disabled enemy soldiers
should have applied to U.S. and Minnesota forces engaged in fighting them. At
least one of the bounty payments made violated these principles. John C. Davis was
mustered in as a member of the Minnesota military under General Orders 41, yet
he accepted payment for the killing of a wounded Dakota solider. See supra notes
196–210 and accompanying text. He should have been subjected to trial by courts-
martial or military commission, and if found guilty, been executed. This, of
course, did not happen.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 53
subject to punishment bore individual culpability. Thus, if the
fighting Dakota were not lawful belligerents under the laws of war,
they might be legally executed for their crimes, but only for their
individual acts. The federal bounty on Taoyateduta might therefore
have been legal, but the initial Minnesota bounty, which authorized
the killing of all Dakota men, was clearly not. Likewise, the
amended Minnesota bounty orders could provide no defense to
persons who murdered Dakota men in the summer of 1863 without
any proof of their “hostility.”
A. Laws and Customs of War in 1863
In 1863, the United States was in the middle of the Civil War.
The international laws and customs of land warfare did not
technically apply to that conflict, since those laws pertain only to
wars between sovereign nations or belligerents, not internal strife.
350
At first, the Union adopted this hardline position, claiming that full
belligerent rights would not be granted to the Confederate armies,
and persons taking up arms against the United States would be
liable for treason. But as the hostilities increased in intensity during
1861, the Lincoln administration began applying more of the laws
and customs of land warfare to the conflict.
351
By 1862, the Union
had accorded the Confederate States full belligerent rights on
humanitarian grounds, even though it still did not recognize the
Confederacy as a separate sovereign.
352
The conduct of the Civil
War is thus a rich resource for the laws and customs of war
prevailing at the time the Minnesota Adjutant General authorized a
bounty system on Dakota men.
Proclamations, orders, and correspondence issued by Union
officers during the first two years of the Civil War establish the basic
contours of the laws and customs of land warfare. For example, on
January 1, 1862, Major General Halleck
353
issued General Orders
350. Mark Grimsley, “Rebels” and “Redskins”: U.S. Military Conduct Toward White
Southerners and Native Americans in Comparative Perspective, in C
IVILIANS IN THE PATH
OF
WAR 139 (Mark Grimsley & Clifford J. Rogers eds., 2002).
351. B
URRUS M. CARNAHAN, LINCOLN ON TRIAL: SOUTHERN CIVILIANS AND THE
LAW OF WAR 9–10 (2010); RICHARD SHELLY HARTIGAN, MILITARY RULES,
REGULATIONS & THE CODE OF WAR: FRANCIS LIEBER AND THE CERTIFICATION OF
CONFLICT 8 (Transaction Publishers 2011) (1983).
352. H
ARTIGAN, supra note 351, at 9.
353. As a graduate of West Point and an army officer of more than twenty
years, Halleck was well acquainted with the international laws and customs of war.
He was also an attorney and an author, having written several books on military
54 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
No. 1, which established the rules of engagement for troops in the
Department of the Missouri, where he was the commanding
officer.
354
That order noted that a soldier in the enemy’s service was
not individually responsible for killing a human being in battle,
and he could not be punished for doing so. Enemy soldiers were
only subject to punishment if they violated the laws of war by, for
example, committing common crimes (e.g., robbery, theft,
arson),
355
killing an enemy who had already been disabled, crossing
enemy lines in civilian clothing and failing to report to the nearest
post,
356
using poisoned weapons, or committing an assassination.
357
In such cases, they were to be tried and punished by courts-martial
or military commissions.
358
If captured Confederate soldiers had not violated the laws and
customs of war, they were to be accorded all of the rights of
prisoners of war.
359
Military correspondence indicated that
prisoners of war were “entitled to proper accommodations, to
courteous and respectful treatment, to one ration a day and to
consideration according to rank.”
360
It was impractical to house
subjects. CARNAHAN, supra note 351, at 28. One of those books was a treatise on
international law published just prior to the start of the Civil War, which included
a detailed discussion of the laws of war. See generally H.W.
HALLECK, INTERNATIONAL
LAW OR RULES REGULATING THE INTERCOURSE OF STATES IN PEACE AND WAR (1st ed.
1861).
354. General Orders No. 1, Hdqrs. Dep’t of the Mo. (Jan. 1, 1862), in 1 U.S.
DEP’T OF WAR, THE WAR OF THE REBELLION: A COMPILATION OF THE OFFICIAL
RECORDS OF THE UNION AND CONFEDERATE ARMIES, SERIES II 247, 247–49 (1894)
[hereinafter W
AR OF THE REBELLION, SER. II].
355. Id. at 249; see also Proclamation of J.C. Fremont (Aug. 30, 1861), in 1 W
AR
OF THE
REBELLION, SER. II, supra note 354, at 221 (stating that all persons who
destroy railroad tracks, bridges, or telegraph wires “shall suffer the extreme
penalty of the law” and that all persons not in military uniform but “with arms in
their hands within [Union] lines shall be tried by court-martial and if found guilty
will be shot”).
356. Letter from Major-Gen. Henry Halleck to Confederate Maj.-Gen. Sterling
Price (Jan. 27, 1862), in 1 W
AR OF THE REBELLION, SER. II, supra note 354, at 161
(discussing the capture of a Confederate soldier in civilian dress with a flag of
truce in his pocket who had not reported to the first military post upon crossing
Union lines, and noting that this was a violation of “the laws and usages of war”
and should it happen again, the soldiers would be “regarded as spies and tried and
condemned as such”).
357.
HALLECK, supra note 353, at 399–400.
358. General Orders No. 1, supra note 354, at 248–49.
359. Id.
360. Letter from Quartermaster-Gen. M.C. Meigs to Sec’y of War Simon
Cameron (July 12, 1861), in 3
U.S. DEP’T OF WAR, WAR OF THE REBELLION, SER. II 8,
8 (1898).
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 55
large numbers of prisoners of war, so prisoners were often
exchanged during the Civil War. Prisoners of war were also
released after offering an oath of allegiance or signing a general
parole agreeing not to take up arms against the United States
again.
361
Despite the clarity of these basic principles, there was
considerable confusion about how to handle particular situations
that arose in the field.
362
Orders issued by military commanders
were not always available on the front lines, and regardless, they
were not meant to be comprehensive. Military officers were
expected to have a base of knowledge about the international laws
and customs of war through their military training. Unfortunately,
they did not. When the Civil War started in 1861, there were only
16,000 men in the entire U.S. army. More than 2 million men
would serve in the Union army alone by the end of the war.
363
Consequently, nearly all of the troops and officers were civilians
with no knowledge of the laws of war.
364
This problem was exacerbated by the lack of readily available
resources on the laws and customs of war. While international law
theorists had written numerous treatises on how states should treat
each other’s armies and civilian populations during wartime, these
treatises were hardly practical sources for military officers in the
middle of a war. No government had ever codified these practices
into domestic law.
365
As a result, there was no source for new
officers to quickly learn the international laws and customs of land
warfare.
In the summer of 1862, Halleck had an opportunity to correct
this deficiency when he was promoted to General-in-Chief of the
361. See, e.g., General Orders No. 44, War Dep’t, Adjutant-Gen.’s Office (July
13, 1861), in 3 W
AR OF THE REBELLION, SER. II, supra note 360, at 9; Letter from
Winfield Scott to Major-Gen. McClellan (July 14, 1861), in 3 W
AR OF THE
REBELLION, SER. II, supra note 360, at 9–10; Letter from Assistant Adjutant-Gen.
E.D. Townsend to Major-Gen. Nathaniel Banks (July 15, 1861), in 3 W
AR OF THE
REBELLION, SER. II, supra note 360, at 10.
362. Quincy Wright, The American Civil War (1861–65), in T
HE INTERNATIONAL
LAW OF CIVIL WAR 54 (Richard A. Falk ed., 1971).
363. C
ARNAHAN, supra note 351, at 28.
364. H
ARTIGAN, supra note 351, at 7; see also Letter from Major-Gen. Henry
Halleck to Brigadier-Gen. George Thomas (Jan. 28, 1862), in 1 W
AR OF THE
REBELLION, SER. II, supra note 354, at 162 (stating that Halleck had “not been able
to get the names of many of the prisoners taken in Northern Missouri as the
officers there pay very little attention to orders or regulations respecting returns”).
365. H
ARTIGAN, supra note 351, at 1–2.
56 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
Union army. The previous year, he had become acquainted with
Dr. Francis Lieber, a German immigrant and law professor at
Columbia College in New York. Lieber had delivered a series of
lectures at Columbia College entitled Twenty-Seven Definitions and
Elementary Positions Concerning the Laws and Usages of War. Some of
these lectures appeared in the New York Times and were noticed by
Halleck.
366
After reviewing Lieber’s work and corresponding with
him, the two men became friendly.
Halleck appointed Lieber to a special War Department Board
tasked with developing a “code of regulations for the government
of Armies in the field as authorized by the laws and usages of
War.”
367
Lieber was the only civilian on the board, which also
included four military officers. Despite this, Lieber did all of the
drafting.
368
After revisions and additions, some of which were made
by Halleck himself, the final draft was approved by President
Lincoln on April 24, 1863, as General Orders No. 100: Instructions
for the Government of Armies of the United States in the Field.
369
Today, the document is more commonly referred to as the Lieber
Code, named after its drafter.
Enacted more than two months before the Minnesota Adjutant
General issued the first bounty order on July 4, 1863, the Lieber
Code contains several provisions that indicate the illegality of these
bounty orders if the Dakota were considered lawful belligerents in
a war with the United States. The Code notes that in modern wars,
the object is not to kill the enemy. Killing is only a means to obtain
the object that lies beyond the war.
370
As a result, placing a bounty
on the heads of enemy soldiers is not permitted. This is stated
clearly by paragraph 148 of the Lieber Code:
The law of war does not allow proclaiming either an
individual belonging to the hostile army, or a citizen, or a
subject of the hostile government an outlaw, who may be
slain without trial by any captor, any more than the
modern law of peace allows such international outlawry;
on the contrary, it abhors such outrage. The sternest
retaliation should follow the murder committed in
consequence of such proclamation, made by whatever
authority. Civilized nations look with horror upon offers
366. Id. at 13.
367. Id. at 14.
368. CARNAHAN, supra note 351, at 30.
369. General Orders No. 100, ¶ 68, in H
ARTIGAN, supra note 351, at 58.
370. Id.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 57
of rewards for the assassination of enemies as relapses into
barbarism.
371
Additionally, as applied, the bounty order violated other clear
provisions of the Lieber Code. As described in II.B above, at least
two of the bounties paid out by the Minnesota Adjutant General
involved the killing of Dakota men who had already been wounded
and were no longer a threat. The Lieber Code establishes that
enemy soldiers that are already disabled must be taken as prisoners
of war. Intentional acts that inflict additional wounds or result in
the death of a disabled enemy soldier are violations of the law of
war. If these acts can be proven, the soldier and anyone who
encouraged or ordered the action can be sentenced to death.
372
The Lieber Code applied directly only to the “Armies of the
United States in the Field.” It was not, therefore, directly applicable
to the scouts employed by the State of Minnesota under the bounty
orders. But the Lieber Code was, for the most part, merely a
convenient codification of the international laws and customs of
war. These laws and customs had long prohibited assassination of
enemy troops for bounties, as well as the killing of disabled
soldiers. In the 1855 decision of Jecker v. Montgomery, the U.S.
Supreme Court stated that the laws of war form a portion of “the
municipal jurisprudence of every country” without any
congressional action.
373
As a result, if the Dakota were a sovereign
state engaged in a war with the United States, the bounty order as
written and applied, constituted a violation of domestic and
international law.
B. Laws Relating to Guerrilla Warfare
If the Dakota were not considered a sovereign state engaged in
a war with the United States, then those persons involved in attacks
or assaults on U.S. citizens could be considered part of a guerrilla
force. Once again, the Union’s conduct during the Civil War is a
resource to determine the contemporaneous definition and
treatment of guerrilla parties. The western frontier of the Civil War
was replete with armed groups that had only a tenuous connection
to the Confederate government. Missouri, for example, had
descended to “near anarchy,” as persons in plain clothes snuck
371. Id. ¶ 148, at 69.
372. Id. ¶ 49, 61, 71, at 55, 57–58.
373. Jecker v. Montgomery, 59 U.S. (18 How.) 110, 112 (1855).
58 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
across Union lines to destroy infrastructure (e.g., roads, bridges,
railroads) and kill both soldiers and civilians.
374
Halleck believed that these acts were violations of the laws of
war and punishable by death, but Confederate officers argued
otherwise.
375
Convinced of his position, on March 13, 1862, Halleck
issued General Orders No. 2, which warned citizens that if they
“join any guerrilla band they will not, if captured, be treated as
ordinary prisoners of war, but will be hung as robbers and
murderers.”
376
The real issue, however, was determining who
should and should not be classified as a guerrilla group.
In July and August 1862, Halleck wrote to Dr. Lieber and
requested his assistance in determining how the laws of war defined
guerrilla warfare.
377
Lieber responded quickly to Halleck’s request
by providing him with a lengthy essay entitled Guerrilla Parties
Considered with Reference to the Laws and Usages of War, which
contained a compendium of historical examples.
378
In that
document, Lieber defined a guerrilla party as “an irregular band of
armed men, carrying on an irregular war.”
379
The “irregularity” of
the guerrilla band stemmed from the fact that it was both self-
constituted and separate in pay, provisions, and movements from
the government’s army. Members of the band wore plain clothes
and moved back and forth from civilian life to participation in
armed raids.
380
Guerrilla parties were especially dangerous because
they could not be saddled with prisoners of war, prompting them
to kill any captured soldiers.
381
According to Lieber, guerrilla members were not entitled to
the protections of prisoners of war. In fact, Lieber indicated that at
least in some circumstances it would be proper to execute a
374. See CARNAHAN, supra note 351, at 28–29.
375. See, e.g., Letter from Confederate Major-Gen. Sterling Price to Major-
Gen. Henry Halleck (Jan. 12, 1862), in 1 WAR OF THE REBELLION, SER. II, supra note
354, at
255–56; Letter from Major-Gen. Henry Halleck to Confederate Major-Gen.
Sterling Price (Jan. 22, 1862), in 1 W
AR OF THE REBELLION, SER. II, supra note 354,
at 258–59.
376. MICHAEL FELLMAN, INSIDE WAR: THE GUERRILLA CONFLICT IN MISSOURI
DURING THE AMERICAN CIVIL WAR 87–88 (1989).
377. Letter from Major-Gen. Henry Halleck to Francis Lieber (July 30, 1862)
& Letter from Major-Gen. Henry Halleck to Francis Lieber (Aug. 6, 1862),
in H
ARTIGAN, supra note 351, at 75–76, 78.
378. H
ARTIGAN, supra note 351, at 2, 31.
379. Id. at 33.
380. Id. at 33, 41.
381. Id. at 32–33.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 59
guerrilla on the spot,
382
without proceeding to a court-martial or
military commission. Relaxation or mitigation of these rules was
possible, however, and the most humane belligerents in recent
times would provide that guerrillas captured in a fair fight be
treated as a prisoner of war until it was proven that they were guilty
of murder, destruction of property, or some other crime.
383
Still,
Lieber concluded that it was up to the executive and legislative
branches to determine what mitigation, if any, would have a
beneficial effect on the conduct of the war.
384
Halleck agreed with
the essay and ordered 5000 copies to be distributed to military
personnel.
385
The Union army followed Halleck’s and Lieber’s approaches.
If caught, guerrilla members were not entitled to prisoner-of-war
status. The official policy was to speedily try suspected guerrillas
and civilians who harbored or supported them by courts-martial or
military commissions. In private and public communications,
however, certain Union officers suggested that the proper
approach was to shoot guerrillas on the spot rather than capture
them. This was true even if they were unarmed.
386
For example, on April 21, 1862, Brigadier General James
Totten, commanding officer for the District of Central Missouri,
issued Special Orders No. 47, complaining that “jayhawkers,
guerrillas, marauders, murderers and every species of outlaw are
infesting to an alarming extent all the southwestern portion of
Jackson County.”
387
These guerrillas were frequently being
harbored by civilians living there. The Special Order referred
specifically to William Quantrill, noting that he was the “desperate
leader of these outlaws.”
388
It stated that “[a]ll those found in arms
and open opposition to the laws and legitimate authorities who are
known familiarly as guerrillas, jayhawkers, murderers, marauders,
and horse-thieves, will be shot down by the military upon the
spot.”
389
Civilians who “knowingly harbored . . . these outlaws . . .
382. Id. at 33, 40.
383. Id. at 42, 44.
384. Id. at 44.
385. Letter from Major-Gen. Henry Halleck to Francis Lieber (Aug. 20, 1862),
in H
ARTIGAN, supra note 351, at 78.
386. F
ELLMAN, supra note 376, at 86–87, 91–92, 120–121, 123.
387. W
ILLIAM ELSEY CONNELLEY, QUANTRILL AND THE BORDER WARS 236 n.1
(1956) (reproducing Special Order 47, dated April 21, 1862, in its entirety).
388. Id.
389. Id.
60 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
[would] be arrested and tried by a military commission for their
offenses.”
390
Even though the treatment of guerrillas was harsh during the
Civil War, the Union does not appear to have authorized bounties
for killing them. On certain occasions, Union officers did offer
rewards for the capture of specific persons,
391
but there is no
indication that such rewards would be paid if the person were
killed. Instead, “dead or alive” bounties were reserved only for
notorious criminals operating outside of war times. Thus, if the
Dakota were considered guerillas, they could have been legally
executed (even on the spot) for their crimes. But this was only true
for those specific Dakota who were actually engaged in hostilities
against the United States, and it does not explain the bounty system
put in place by either the federal or state governments.
IV. T
ESTING THE LEGALITY OF MINNESOTA’S BOUNTY SYSTEM
A. The Dakota as Sovereigns Capable of Declaring War
As the above discussion indicates, one of the crucial questions
that must be answered in determining the legality of the Minnesota
Adjutant General’s bounties orders is whether the Dakota should
have been treated as lawful belligerents or merely guerrillas.
Answering this question requires resort to contemporaneous
decisions of the U.S. Supreme Court and statements made by
executive branch officials about the status of Indian tribes
generally, as well as more specific interactions with and statements
about the Minnesota Dakota communities.
By 1863, the U.S. Supreme Court had a long history of treating
Indian tribes as sovereign states. In its 1831 decision in Cherokee
Nation v. Georgia, the Court refused to exercise original jurisdiction
over a lawsuit brought by the Cherokee Nation because it
390. Id.
391. For example, in April 1865, the United States authorized a $2000 reward
for the capture of John Mosby when he refused to surrender with the rest of his
men. Letter from Major-Gen. Winfield Hancock to Sec’y of War Edwin Stanton
(Apr. 22, 1865), in 46 U.S. DEP’T OF WAR, WAR OF THE REBELLION, SER. I, Part III
897, 897 (1894) (“Some of Mosby’s own men are in pursuit of him for a reward of
$2,000 . . . .”). That reward was later increased to $5000 at the request of Grant
and Halleck. Letter from Gen. Ulysses Grant to Major-Gen. Henry Halleck (May 4,
1865), in 46 W
AR OF THE REBELLION, SER. I, Part III, supra, at 1082; Letter from
Major-Gen. Henry Halleck to commanding officer at Charlottesville, Va. (May 18,
1865), in 46 WAR OF THE REBELLION, SER. I, Part III, supra, at 1173.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 61
concluded that Indian tribes were not foreign states within the
meaning of Article III of the U.S. Constitution.
392
Still, a majority of
the Court did agree with Cherokee contention that it was a “state”
in the sense of being “a distinct political society, separated from
others, capable of managing its own affairs and governing itself.”
393
Chief Justice John Marshall described Indian tribes as “domestic
dependent nations”
394
and said that the United States had
recognized them “as a people capable of maintaining the relations
of peace and war.”
395
Chief Justice Marshall’s vision of the federal-tribal relationship
was confirmed by a majority of the Court just one year later in
Worcester v. Georgia.
396
In Worcester, the Court overturned the
criminal convictions of two missionaries who had failed to obtain a
license mandated by the state of Georgia for all persons residing in
Cherokee Territory.
397
Speaking for the Court, Marshall held the
Georgia statute unlawful under the Supremacy Clause.
398
Marshall
concluded that Indian tribes “had always been considered as
distinct, independent political communities retaining their original
natural rights.”
399
Therefore, the Cherokee Nation was “a distinct
community occupying its own territory, with boundaries accurately
described, in which the laws of Georgia can have no force.”
400
In a
392. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). The Cherokee
Nation was seeking to enjoin enforcement of Georgia statutes that purported to
annul the Nation’s laws, confiscate Cherokee lands, and extend state laws over all
persons residing on those lands. Id. at 15. In holding that the Court could not
exercise jurisdiction over the lawsuit, Chief Justice Marshall pointed to Article I,
section 8, clause 3, which is the only place where Indian tribes are mentioned in
the U.S. Constitution. That clause empowers Congress to “regulate commerce with
foreign nations, and among the several states, and with the Indian tribes.” In
determining that Indian tribes were not foreign nations, Marshall emphasized the
fact that Indian tribes were contradistinguished from foreign nations by name in
this clause. Id. at 18–19.
393. Id. at 16. Chief Justice Marshall wrote the opinion and was joined only by
Justice McLean. Justices Johnson and Baldwin concurred in the result, but
believed that tribes possessed no sovereignty. Justices Thompson and Story
dissented, arguing that the Cherokee Nation was a foreign state. As a result, a
majority of the Justices held that the Cherokee Nation was a state (Marshall,
McLean, Thompson, and Story), but not a foreign state (Marshall, McLean,
Johnson, and Baldwin). Id.
394. Id. at 17.
395. Id. at 16.
396. 31 U.S. 515 (1832).
397. Id. at 538–39.
398. Id. at 561–62.
399. Id. at 559.
400. Id. at 561.
62 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
concurring opinion, Justice McLean discussed the ability of Indian
tribes to declare war against the United States:
We have recognised in them the right to make war. No
one has ever supposed that the Indians could commit
treason against the United States. We have punished them
for their violation of treaties; but we have inflicted the
punishment on them as a nation, and not on individual
offenders among them as traitors.
401
Read together, Cherokee Nation and Worcester recognized that Indian
tribes were “states” as that term is used in international law,
possessed territorial sovereignty, and had the right to declare war
against the United States.
In the decades that followed Cherokee Nation and Worcester,
some doubt as to the status of Indian tribes crept into federal court
decisions. In the 1846 decision in United States v. Rogers, the
Supreme Court addressed whether a white settler adopted into the
Cherokee Nation should be considered an Indian for purposes of
federal criminal statutes.
402
If both the defendant and victim were
Indians, then the federal government could not prosecute any
crimes between them. If the defendant and/or victim were non-
Indian, then the federal government could initiate a federal
prosecution pursuant to a provision in the Trade & Intercourse
Acts.
403
Chief Justice Taney wrote the unanimous opinion for the
401. Id. at 583.
402. 45 U.S. 567, 571 (1846). The leading scholarly work on Rogers is Bethany
R. Berger, “Power Over This Unfortunate Race”: Race, Politics and Indian Law in
United States v. Rogers, 45 W
M. & MARY L. REV. 1957 (2004).
403. Act of June 30, 1834, ch. 161, § 25, 4 Stat. 729 (“[M]uch of the laws of the
United States as provides for the punishment of crimes committed within any
place within the sole and exclusive jurisdiction of the United States, shall be in
force in the Indian country: Provided, The same shall not extend to crimes
committed by one Indian against the person or property of another Indian.”).
Today, this provision, as amended, is referred to as the Indian Country Crimes
Act, the General Crimes Act, or the Interracial Crimes Act. It is codified at
18 U.S.C. § 1152 (2012).
In Rogers, both the defendant and victim were white men who had been
adopted into the Cherokee Nation by virtue of their marriages to Cherokee
women. Rogers, 45 U.S. at 568. Thus, if the defendant was not considered
Cherokee, his victim must have been considered non-Indian as well. Decades later,
the Supreme Court held that if both the defendant and victim are non-Indian, the
federal government lacks jurisdiction to prosecute crimes committed in Indian
country within an existing state, despite the explicit language of the Indian
Country Crimes Act. Instead, those crimes fall to the state to prosecute. See, e.g.,
Draper v. United States, 164 U.S. 240 (1896); United States v. McBratney, 104 U.S.
622 (1881). These decisions are not necessarily inconsistent with Rogers, however,
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 63
Court, which claimed—without reference to Cherokee Nation or
Worcester—that Indian tribes “have never been acknowledged or
treated as independent nations by the European governments.”
404
Instead, the Court argued that they were subject to the authority of
the federal government because they had been incorporated within
the territory of the United States through the doctrine of
discovery.
405
Confusion can also be found in United States v. Coxe, decided in
1855.
406
Writing on behalf of a unanimous court, Justice McLean
began by seemingly reaffirming the Cherokee Nation and Worcester
decisions (although once again, without reference to either).
McLean stated that the Cherokee Nation could not be considered a
foreign state, but the Cherokee people were still governed by their
own laws, and the federal government “guarantee[d] their
independence” from the states.
407
The Court went on, however, and
reasoned that Indian tribes were under the U.S. Constitution, and
that the Cherokee Nation should be considered “a domestic
territory—a territory which originated under our constitution and
laws.”
408
If Indian tribes were domestic territories under “our
constitution and laws,” could they declare a lawful war against the
United States? While this was not at issue in Coxe, it would appear
that Justice McLean’s formulation of Cherokee sovereignty could
lead to the conclusion that Indian tribes engaged in hostilities
against the United States were part of a rebellion or uprising and;
therefore, not entitled to the protections of the international law of
war.
Despite the language in Rogers and Coxe, several other Supreme
Court decisions continued to recognize both that tribal sovereignty
was independent of U.S. sovereignty and that Indian tribes could
because the latter involved a crime committed outside of any state in the Indian
Territory. Rogers, 45 U.S. at 571–72 (“The country in which the crime is charged to
have been committed is a part of the territory of the United States, and not within
in [sic] the limits of any particular State.”).
404. Rogers, 45 U.S. at 572. The opinion actually did not cite any legal
authorities other than the 1834 Trade & Intercourse Act and the Cherokee Treaty
of New Echota. Id. at 572–73.
405. Id. The doctrine of discovery gave European nations and their successors
in interest title to the lands they had “discovered,” but that title was subject to the
Indians’ aboriginal occupancy rights. Johnson v. M’Intosh, 21 U.S. 543, 573
(1823).
406. 59 U.S. 100 (1855).
407. Id. at 103.
408. Id. at 103–04.
64 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
wage lawful wars against the United States. For example, in an 1850
case entitled Parks v. Ross, the Court was asked to hold the
Cherokee Nation’s principal chief, John Ross, personally liable for
damages under a contract executed with an individual who had
provided wagons and horses to assist Nation members in their
forced relocation to the Indian Territory.
409
It refused to do so.
The Court noted that it was settled law that public officers acting
for their government were not personally liable for contracts made
in their official capacity.
410
The unanimous opinion written by
Justice Grier held that this precedent applied to John Ross, who was
acting as a public officer of the Cherokee Nation at the time he
signed the contract in question. In doing so, the Court noted that
“[t]he Cherokees are in many respects a foreign and independent
nation. They are governed by their own laws and officers, chosen by
themselves.”
411
Dicta in the U.S. Supreme Court’s 1856 decision in Dred Scott v.
Sanford
412
also supports the notion that Indian tribes should have
been considered lawful belligerents if they declared war against the
United States. In that decision, authored by Chief Justice Taney—
the same Justice who had authored the Rogers decision ten years
earlier—the Court stated:
These Indian Governments were regarded and treated as
foreign Governments . . . and their freedom has
constantly been acknowledged, from the time of the first
emigration to the English colonies to the present day, by
the different Governments which succeeded each other.
Treaties have been negotiated with them, and their
alliance sought for in war; and the people who compose
these Indian political communities have always been
treated as foreigners not living under our Government.
413
Consequently, at the time of the U.S.-Dakota War in
Minnesota, while the question was not free from doubt, the Rogers
and Coxe decisions appear to have been outliers. Elements of these
decisions would later gain sway in the Supreme Court during the
assimilation era of Federal Indian policy,
414
but prior to 1863, these
409. 52 U.S. 362, 373–74 (1850).
410. Id. at 374.
411. Id.
412. 60 U.S. 393 (1856).
413. Id. at 404.
414. See, e.g., United States v. Kagama, 118 U.S. 375, 381–82 (1886) (referring
to tribes as “local dependent communities,” rather than “domestic dependent
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 65
were the only times in twenty-eight Indian-law related decisions that
the Supreme Court failed to acknowledge tribal sovereignty as
inherent and distinct from the United States.
415
The language in
Cherokee Nation, Worcester, Parks, and Dred Scott supports the notion
that Indian tribes were sovereigns capable of declaring war against
the United States or serving as an ally to the United States during
war.
The actions of the executive branch also support the
interpretation that Indian tribes generally, and the Dakota
specifically, were sovereigns capable of declaring war against the
United States. For example, in 1828, Attorney General William Wirt
was asked to opine as to whether the Creek Nation could be held
liable for certain property destruction that occurred in Georgia
prior to 1802, when the Creek were at war with the United States.
416
In a lengthy opinion, Wirt concluded that “[l]ike all other
independent nations, [the Creek] have the absolute power of war
and peace,” and unless their treaties with the United States
provided otherwise, they were not liable for such damages.
417
Another example can be found in an opinion issued by the
U.S. Attorney General in 1873.
418
Between 1872 and 1873, the
United States was engaged in an armed conflict with a band of the
Modoc tribe, led by Kintpuash, better known as Captain Jack.
419
In January 1873, the Secretary of the Interior appointed a peace
commission to negotiate with Captain Jack in an effort to end the
war.
420
At a negotiation session in April 1873, the Modoc killed two
nations,” and noting that they had a semi-independent position “not as states, not
as nations, not as possessed of the full attributes of sovereignty, but as separate
people, with the power of regulating their internal and social relations”).
415. See, e.g., Blake A. Watson, The Thrust and Parry of Federal Indian Law, 23
U.
DAYTON L. REV. 437 (1998) (collecting cases). In fact, the closest the Court
came to questioning tribal sovereignty after Rogers was in Fellows v. Blacksmith in
1856. 60 U.S. 366 (1856). In that case, the Court still referred to the Seneca
Nation “as a quasi nation, possessing some of the attributes of an independent
people.” Id. at 371.
416. Georgia and the Treaty of Indian Spring, 2 Op. Att’y Gen. 110 (1828).
417. Id. at 133.
418. While this opinion was issued after the U.S.-Dakota War had ended, there
is no indication that it was based on a change in governmental policy.
419. R
OBERT M. UTLEY & WILCOMB E. WASHBURN, INDIAN WARS 250 (2002);
J
EROME A. GREENE, INDIAN WAR VETERANS: MEMORIES OF ARMY LIFE AND CAMPAIGNS
IN THE
WEST, 1864–1898, at 306–07 (2012) (account of Oliver Applegate, a captain
in the Oregon Militia).
420. A
RTHUR QUINN, HELL WITH THE FIRE OUT: A HISTORY OF THE MODOC WAR
85–86 (1997).
66 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
members of the U.S. Peace Party, General Canby and Reverend
Thomas, during negotiations.
421
When the war ended a month
later, Colonel Jefferson Davis (no relation to the former
Confederate President) decided to execute between eight and ten
Modocs. He believed the Modoc were “a band of outlaws, robbers
and murderers,” and as the field commander, he had the authority
and “no doubt of the propriety and the necessity of executing them
on the spot, at once.”
422
Others were not as sure. President Grant
asked for an opinion from the U.S. Attorney General, George
Williams.
Williams concluded that the international laws of war should
apply to the conflict with the Modoc, who were lawful belligerents:
That these hostile Indians were and are a distinct people
and therefore capable of legal and legitimate war with the
United States seems to me to be open to no doubt. They
are in no sense citizens of the United States, and owe it no
allegiance; they are governed by their own laws and owe
no obedience, and pay none, to the laws of the country in
which they live. . . . They are dealt with only by the
General Government through the instrumentality of
treaties, which treaties are an evidence and
acknowledgment of their independent position as distinct
peoples.
423
Williams noted that the Lieber Code and the laws of war required
that “a regular unoffending soldier of the opposing party to the
war” should be treated with “courtesy and kindness” as a prisoner
of war.
424
Soldiers who had violated the laws of war, such as by
acting as a spy, breaking their parole, or operating as a
“bushwhacker, a jayhawker, a bandit, a war-rebel, [or] an assassin,”
should be tried by a military commission if there was no statutory
grant of authority enabling them to be subject to a courts-martial.
425
Williams concluded that the laws of war acknowledged that a flag of
truce, dispatched in good faith, was sacred. The assassination of the
bearer of a flag of truce was the “great[est] act of perfidy and
treachery,” and should result in the trial of Captain Jack and the
other Modoc responsible.
426
421. GREENE, supra note 419, at 308.
422. Q
UINN, supra note 420, at 175.
423. Id.
424. The Modoc Indian Prisoners, 14 Op. Att’y. Gen. 249, 251–52 (1873).
425. Id. at 250–52.
426. Id. at 250.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 67
The Attorney General’s opinion was followed. Six Modoc were
tried (without the benefit of a lawyer or interpreter), convicted,
and sentenced to death by a military commission for killing U.S.
officials under a flag of truce.
427
President Grant approved the
death sentence for Captain Jack and three other Modoc while
commuting the sentence of the remaining two to life
imprisonment.
428
The remainder of the Modoc who participated in
the 1872 war—approximately 160 men, women, and children—
were treated as prisoners of war and sent east to the Indian
Territory.
429
These actions clearly demonstrate that the United
States treated the Modoc as lawful belligerents, which requires that
the conduct of war be governed by the international laws of war
and the Lieber Code.
There is no reason that the Dakota should have been treated
differently.
430
By 1862, the Dakota had already entered into treaties
with the United States in 1805, 1825, 1837, 1851, and 1858.
431
Each
one of these treaties is necessarily an acknowledgment of Dakota
sovereignty, and lawful belligerent status flows from this
sovereignty. In a January 1863 address to the Minnesota legislature,
Minnesota Governor Ramsey acknowledged that the Dakota were,
like other Indian tribes, “independent nations, competent to
declare war, to make laws for their own guidance, and to hold and
dispose of property,” even while he urged that this status should be
427. UTLEY & WASHBURN, supra note 419, at 253.
428. See id.
429. Id. at 254.
430. Professor Finkelman claims that the Dakota should not be viewed as
sovereigns in 1862 because the Dakota had ceded most of their land in Minnesota
and were almost entirely dependent on treaty annuities for their survival.
Finkelman, supra note 66, at 416. As an initial matter, treaty annuities are legal
obligations, not gratuities from the United States; they were promised as payment
for lands ceded, and therefore, it is unclear how “dependence” on such annuities
could result in a loss of sovereignty. Likewise, a small land base does not
necessarily result in a loss of sovereign status. The country of Monaco is currently
less than one square mile, and thus, far smaller than the Dakota reservation in
1862. In Worcester, Justice McLean hypothesized that “[i]f a tribe of Indians shall
become so degraded or reduced in numbers, as to lose the power of self-
government, the protection of the local law, of necessity, must be extended over
them.” Worcester v. Georgia, 31 U.S. 515, 593 (1832). But McLean’s theory was
never adopted by the majority of the Court, the Dakota still had thousands of
tribal members in 1862, and the 1858 treaty is conclusive evidence that the federal
government, not the state of Minnesota, maintained a government-to-government
relationship with the Tribe.
431. See sources cited supra note 22 and sources cited infra notes 437–38.
68 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
changed.
432
The fact that Governor Ramsey—who was certainly no
friend to the Dakota—held this view shows just how settled it was at
the commencement of the U.S.-Dakota War in 1862.
B. The Dakota Decision to Go to War
A few legal scholars and historians claim that even though the
Dakota were sovereigns, the individuals who fought the United
States in the fall of 1862 should not receive lawful belligerent status
because the tribe as a whole never declared war against the United
States. In support of this assertion, some have emphasized that
many of the principal chiefs of both the Lower Dakota and Upper
Dakota, including Wabasha, Wacouta, Traveling Hail, Red Iron,
and Standing Buffalo, were opposed to the War.
433
Others have
focused on the fact that many Dakota, particularly those who had
converted to Christianity and become farmers, were opposed to the
War from its inception.
434
Therefore, according to this viewpoint,
the War was simply the work of a hostile minority.
435
If this is true,
then the actions of the Dakota in 1862 and 1863 could be
analogized to guerrilla warfare and might be punished as mere
criminal behavior, rather than the protected actions of a lawful
belligerent under the international law of war.
This approach, however, seems to gloss over both the
governmental structure of the Dakota in 1862, and the means that
the Dakota used to reach decisions. Each Dakota band was a
separate political unit with the ability to make decisions that
affected their own citizens. Thus, the Dakota were more properly
thought of as a confederacy: individual bands that may be united in
pursuit of a common goal, but need not be.
436
This is evident in the
432. Annual Message of Governor Ramsey to the Legislature of Minnesota
(Jan. 7, 1863), in 1862 M
INN. EXEC. DOCS., supra note 33, at 3, 27.
433. M
EYER, supra note 34, at 118.
434. Finkelman, supra note 66, at 415.
435. See, e.g., id. (“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.”); M
EYER, supra note 34, at 118
(referring to the events of 1862 as a “war” and “uprising” interchangeably, yet
concluding that “[t]he Sioux were at no time united, at no time committed as a
nation to the purposes of the hostile minority”).
436. C
HARLES ALEXANDER EASTMAN (OHIYESA), THE SOUL OF THE INDIAN 10
(2003) (“The family was not only the social unit, but also the unit of government.
The clan is nothing more than a larger family, with its patriarchal chief as the
natural head, and the union of several clans by intermarriage and voluntary
connection constitutes the tribe.”); 4 LEWIS H. MORGAN, HOUSES AND HOUSE-LIFE
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 69
very name of the tribe—Dakota—which means “Allied People.”
437
For this reason, the decisions and actions of individual bands
should be considered, not simply those of the entire Dakota tribe.
At a minimum, the United States recognized the independent
sovereignty of the Mdewakanton, Wahpekute, Sisseton, and
Wahpeton bands. The clearest example of this can be found in the
treaties between the United States and the Dakota. Those treaties
sometimes included only the Mdewakanton bands,
438
only the
Lower Dakota bands (Mdewakanton and Wahpekute), or only the
Upper Dakota bands (Sisseton and Wahpeton).
439
Additionally, focusing on the individual beliefs of Dakota
chiefs
440
is improper, since they could neither make laws nor
execute them. Decisions were made democratically, by consensus
or at least majority vote, in large councils.
441
If the decision would
affect the entire nation, multiple bands would usually be
represented at the council.
442
Chiefs played an important role in
council, gathering support for their views through oratory.
443
But
they did not have authoritarian power.
444
OF THE AMERICAN ABORIGINES 23 (1881) (referring to the Dakota League of the
Seven Council Fires as a confederacy).
437. EASTMAN, supra note 436, at 10.
438. The 1805 and 1837 treaties were negotiated and executed only by the
Mdewakanton bands. 1837 Treaty with the Sioux, Sept. 29, 1837, 7 Stat. 538;
W
INGERD, supra note 3, at 77, 134; see also WESTERMAN & WHITE, supra note 23,
at 157 (noting that Dakota leaders from Wahpekute, Sisseton, and Wahpeton
bands were present at the 1837 Treaty negotiations, although they were not
signatories to that treaty).
439. Two sets of 1851 treaties were executed. First, the United States
negotiated the Treaty of Traverse des Sioux with the Sisseton and Wahpeton
bands. 1851 Treaty of Traverse des Sioux, July 23, 1851, 10 Stat. 949; W
ESTERMAN &
WHITE, supra note 23, at 167. Then, it negotiated the Treaty of Mendota with the
Mdewakanton and Wahpekute bands. 1851 Treaty of Mendota, Aug. 5, 1851,
10 Stat. 954; WESTERMAN & WHITE, supra note 23, at 182. The same pattern was
followed in 1858, although the negotiations for both of those treaties occurred in
Washington, D.C. WESTERMAN & WHITE, supra note 23, at 192.
440. The office of chief was usually hereditary, although chiefs were also
chosen because they were well respected as warriors, had demonstrated spiritual
powers, or had the power to persuade others. A
NDERSON, LITTLE CROW, supra
note 1, at 4–5; S
AMUEL W. POND, THE DAKOTA OR SIOUX IN MINNESOTA AS THEY
WERE IN 1834, at 67–68 (1986).
441. P
OND, supra note 440, at 66, 68; Chomsky, supra note 61, at 82; see also
E
LLA CARA DELORIA, THE DAKOTA WAY OF LIFE 12 (2007) (discussing how the
council tipi was selected).
442. Chomsky, supra note 61, at 82.
443. A
NDERSON, KINSMEN, supra note 28, at 12.
444. A
NDERSON, LITTLE CROW, supra note 1, at 4; see also WESTERMAN & WHITE,
supra note 23, at 169 (“For the Dakota, chiefs acted only with the consent of their
70 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
Finally, it is important to recognize that the traditional Dakota
governmental system had been placed under considerable strain
since the 1830s and was beginning to break down. Chiefs had
become more susceptible to the machinations of white traders, and
their influence among the Dakota had diminished.
445
The United
States’ assimilation programs had created deep divides between
those “farmer Indians” who had adopted western attire,
Christianity, and farming, and the traditionalists or “blanket
Indians” who had refused to do so. At first, this made consensus
more difficult to obtain; later, it became nearly impossible.
446
As
white traders and farmer Indians began to assert more control over
council proceedings, an old organization—the soldiers’ lodge—
began to take on a new role. Traditionally, the soldiers’ lodge
served many functions, including operating as a police force to
carry out the will of the council, organizing and controlling hunts,
and protecting the village from outside threats.
447
Now, the soldiers’
lodge began to operate more as a decision-making body, and it
precluded mixed-bloods and farmer Indians from participating.
448
This background discussion is necessary to demonstrate that in
determining whether the Dakota declared war on the United States
in 1862, the focus should not be on the views of individual chiefs,
but rather, on whether (1) councils were held, and if so, which
bands participated in those councils; or (2) the soldiers’ lodge
convened, and if so, whether that lodge had expanded its powers
by 1862 to enable it to declare war and not simply execute one
already authorized by the council. Some scholars have argued that
the council system was used and a decision was made to go to war.
For example, Carol Chomsky, the leading scholar on the military
trials held in the fall of 1862, has acknowledged that there was
dissension among the Dakota and the decision to go to war was
made with great haste, but she still concluded that the Dakota must
be considered legitimate belligerents because “[c]ouncils were held
and group decisions were made, both to begin and to continue the
fighting.”
449
Alternatively, Gary Clayton Anderson, a noted authority
on the Dakota during this time period, claimed that the decision to
people. It was important for their bands to be well represented, so as to develop a
consensus.”).
445. A
NDERSON, KINSMEN, supra note 28, at 111, 174–75, 236–37.
446. Id. at 174–75, 238–40.
447. Id. at 12; ANDERSON, LITTLE CROW, supra note 1, at 13–14, 41.
448. A
NDERSON, LITTLE CROW, supra note 1, at 81–82, 116–119.
449. Chomsky, supra note 61, at 83.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 71
go to war was made by “a minority of warriors from the
Mdewakanton soldiers’ lodges: a tribal or band council never even
met to consider the prospect of war.”
450
A closer look at the events
of August 17, 1862, is therefore necessary.
451
On that August night, the Dakota men responsible for the
killings at Acton returned to their homes at the Rice Creek
Village.
452
There, they consulted with their headman, Red Middle
Voice, and convened a council of the soldiers’ lodge.
453
There was
concern that the whites would seek widespread retaliation for these
murders, and that the annuity payment would now either be
permanently withheld or at the very least, withheld until the
responsible persons had been surrendered.
454
Middle Voice
decided to seek the opinion of Chief Shakopee, whose village was
nearby,
455
and Shakopee decided that a council of chiefs should be
convened that night at Taoyateduta’s village.
456
Runners were sent
to the heads of the Mdewakanton and Wahpekute bands.
457
At the council, it was apparent that the young traditionalists
who led the soldiers’ lodge were in favor of a war, while the older
leaders of the Mdewakanton and Wahpekute bands were
450. ANDERSON, KINSMEN, supra note 28, at 255.
451. The possibility of war appears to have been discussed long before August
17, 1862. In 1894, Big Eagle gave an account of the war to Return Holcombe, a
newspaper reporter. Big Eagle noted that in 1862, “[i]t began to be whispered
about that now would be a good time to go to war with the whites and get back the
lands” because the U.S. was distracted by the Civil War. T
HROUGH DAKOTA EYES,
supra note 8, at 26. When the Union formed a company of mixed-blood Dakotas
(the Renville Rangers) in Minnesota to assist in the Civil War, many Dakota saw
this as a sign of weakness. Id. at 26–27. While talk of war died down, it started up
again when the United States failed to deliver the treaty annuities due to the
Dakota on time. Id. at 27. But none of these earlier discussions led to a decision to
go to war.
452. The Rice Creek Village was of fairly recent vintage and consisted largely
of young warriors who, dissatisfied with life on the Reservation, had deliberately
moved north of the mouth of the Redwood River into an area that had been
ceded to the United States in the 1858 treaty. At the time of the U.S.-Dakota War,
the Village included approximately fifty people, many of whom were formerly part
of Chief Shakopee’s band. 3 L
UCIUS F. HUBBARD & RETURN I. HOLCOMBE,
M
INNESOTA IN THREE CENTURIES 274, 302 (1908).
453. A
NDERSON, LITTLE CROW, supra note 1, at 130–31; ANDERSON, KINSMEN,
supra note 28, at 253–54.
454. A
NDERSON, KINSMEN, supra note 28, at 253.
455. 3 H
UBBARD & HOLCOMBE, supra note 452, at 274, 311.
456. M
EYER, supra note 34, at 117.
457. 2 F
OLWELL, supra note 7, at 240; 3 HUBBARD & HOLCOMBE, supra note 452,
at 312.
72 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
opposed.
458
Taoyateduta and other leaders had been to
Washington, DC, to negotiate the 1858 Treaty. Their trip to the
country’s capital had shown them the strength of the United States
and the futility of a war. Taoyateduta tried to communicate this
futility to the young Dakota warriors, but they insisted on a war, and
the band leaders—who did not have coercive power in the Dakota
governmental system—could not convince them otherwise.
459
The
young men called Taoyateduta a coward, and eventually, seeing
that there was no way to convince those men that a war would be
unsuccessful, Taoyateduta agreed to lead them into battle.
460
Sources indicate that leaders from many of the Mdewakanton
and Wahpekute bands were present on the evening of August 17,
1862, along with at least one hundred members of the soldiers’
lodge.
461
Big Eagle was present, and in his account he stated that
Wabasha, the head Mdewakanton chief, and Wacouta (also spelled
Wakute), another Mdewakanton chief, were also there.
462
Modern
authors have claimed that other Mdewakanton chiefs, including
Traveling Hail, the recently elected speaker of the Dakota, and
Chief Mankato, were present on this night for deliberations.
463
Big
Eagle’s account seems to settle this scholarly debate by stating that
“[a] council was held and war was declared.”
464
If these accounts are accurate, a majority of the Mdewakanton
chiefs—Wabasha, Wacouta, Taoyateduta, Shakopee, Red Middle
Voice, Traveling Hail, and Mankato—would have been present on
August 17, 1862, lending greater credibility to the conclusion that
458. ANDERSON, KINSMEN, supra note 28, at 254.
459. Id.
460. Being called a coward struck a nerve with Taoyateduta. He had recently
lost an election to remain speaker for the Dakota; the much younger Traveling
Hail had taken his place. D
OANE ROBINSON, A HISTORY OF THE DAKOTA OR SIOUX
INDIANS 264 (1967). Taoyateduta famously responded: “You will die like the rabbits
when hungry wolves hunt them in the Hard Moon (January). Taoyateduta is not a
coward; he will die with you.” Taoyateduta Is Not a Coward, MINN. HISTORY, Sept.
1962, at 115.
461. ANDERSON, LITTLE CROW, supra note 1, at 130–31 (noting that the
soldiers’ lodge consisted of no more than one hundred men).
462. T
HROUGH DAKOTA EYES, supra note 8, at 36.
463. C
ARLEY, supra note 2, at 11, 12 (claiming, without citation, that “riders
were sent to summon such leaders as Mankato, Wabasha, Traveling Hail, and Big
Eagle to the war council at Little Crow’s house” and that Wabasha advocated
against the War during the council);
DAHLIN, DAKOTA UPRISING, supra note 2, at 71
(claiming, without citation, that Mankato was present at Taoyateduta’s house for
deliberations on the early morning of August 18, 1862).
464. THROUGH DAKOTA EYES, supra note 8, at 36.
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 73
this was a traditional council, at least for the Mdewakanton bands.
But there are reasons to doubt the presence of some of these
chiefs. Wabasha claimed that he only found out about the war
when the attack was occurring on August 18 and that he
immediately sent word to chiefs Wacouta and Red Legs, “who had
not yet heard of the outbreak.”
465
Additionally, it seems unlikely
that Traveling Hail would have been summoned to this meeting,
since he was supportive of the “farmer Indians,” rather than the
soldiers’ lodge.
466
Regardless of who was present on that night, most of the
Mdewakanton and Wahpekute chiefs led their warriors into battle
during the course of the fall of 1862, thereby seemingly ratifying
the decision that had been made at that first council.
467
Furthermore, throughout the hostilities, numerous additional
council meetings were held where representatives of nearly all of
the bands were present.
468
Faced with these facts, it is hard to
conclude that a formal war was not commenced by the Lower
Dakota bands.
The Upper Dakota bands (i.e., Sisseton and Wahpeton),
however, are a different matter. Neither their young men nor their
leaders were involved in the initial decision to go to war. They
found out about the war the next day, after the attack on the Lower
Agency. A council of Sisseton and Wahpeton chiefs was
465. Id. at 30–31. At least one historian has called Big Eagle’s claim that
Wabasha and Wacouta were present on the evening of August 17, 1862,
“improbable” because of the distance of their villages from Taoyateduta’s. 2
F
OLWELL, supra note 7, at 241 n.34.
466. G
REGORY F. MICHNO, DAKOTA DAWN: THE DECISIVE FIRST WEEK OF THE
SIOUX UPRISING, AUGUST 17–24, 1862, at 53. Furthermore, accounts of
Taoyateduta’s speech at this council establish that he attempted to shrug off the
representatives of the soldiers’ lodge by telling them they should consult with
Traveling Hail, the newly elected speaker, instead. Id. This would make little sense
if Traveling Hail were already present for these discussions.
467. Big Eagle fought in the second battle of Fort Ridgley, the battle of New
Ulm, and the battle of Birch Coulee, the latter with about thirty warriors from his
band. He was also present at the battle of Wood Lake, observing it with
Taoyateduta and some other chiefs from a hill on the west side. D
AHLIN, DAKOTA
UPRISING, supra note 2, at 40. Chief Mankato participated in the battles of Fort
Ridgley, New Ulm, Birch Coulee, and Wood Lake. He was killed during the latter
battle. Id. at 71. Wabasha was present at the battles of Fort Ridgley, Birch Coulee,
and New Ulm. Id. at 98. Wacouta fought at the battle of Fort Ridgely. Id. at 224.
Red Legs was a Wahpekute chief and one of the leaders at the battle of Birch
Coulee. Id. at 226.
468. B
ERG, supra note 9, at 104–07, 114–15, 151, 157.
74 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
immediately convened.
469
John Other Day, head of one of the
Wahpeton bands of “farmer Indians,” argued against the war,
stating: “We are a different tribe. Their actions are nothing to us.
I do not want to see a white man killed.”
470
Walking Iron (also
known as Iron Walker or Mazomani), another Wahpeton chief,
replied that the Mdewakantons were their relatives and it was “too
late for us to keep aloof from this trouble” since the whites would
hold them all responsible irrespective of their actual participation
in the war.
471
Ultimately, the Wahpetons advocated for emptying
the traders’ stores but not killing anyone.
472
White Lodge and most
of the Sisseton chiefs who were present were in favor of joining the
war, especially upon hearing that Captain Marsh’s company had
been eliminated at Red Wood Agency.
473
The chiefs broke the
council with no consensus being reached.
474
Throughout the fall of 1862, many of these Upper Dakota
bands continued to refuse to participate in the hostilities, and
instead, they rendered aid to fleeing white settlers while refusing to
do the same for the Lower Dakota bands.
475
The Upper Dakota
then could reasonably be seen as not having declared war against
the United States. That should not, however, have precluded
individual band members from changing their allegiance, joining
the Lower Dakota’s war efforts, and achieving the protections of
lawful belligerents in the conflict.
476
C. Federal Acknowledgement of the War
The conclusion that a formal war was declared against the
United States, at least by the Lower Dakota bands, is also supported
by contemporaneous statements and actions of federal and state
officials. Throughout the fighting in August and September 1862,
469. THROUGH DAKOTA EYES, supra note 8, at 120 (interview with John Other
Day).
470. WHIPPLE, supra note 7, at 119.
471. Id.
472. THROUGH DAKOTA EYES, supra note 8, at 120 (interview with John Other
Day).
473. Id. at 123.
474. Other Day remained opposed to all hostile actions and left in the middle
of the council to warn his white friends. He ultimately led more than sixty
individuals to safety. Id. at 121–22.
475. B
ERG, supra note 9, at 104–06, 114–15, 152; 2 FOLWELL, supra note 7, at
117–19.
476. See 2 F
OLWELL, supra note 7, at 131 (noting that many of the younger
Upper Dakota warriors joined in the fighting).
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 75
those officials described the conflict between the Dakota and the
United States as a “war.” Minnesota Governor Alexander Ramsey
gave status reports to President Lincoln and Secretary of War
Stanton about “the Indian war” in the state,
477
and when action
seemed to lag at the federal level, he implored Lincoln to provide
them with resources, noting “[t]his is not our war; it is a national
war.”
478
Official correspondence sent by Brigadier General Henry
Hastings Sibley,
479
Commissioner of Indian Affairs William Dole,
480
Minnesota Adjutant General Oscar Malmros,
481
General John
Pope,
482
and General Halleck
483
all referred to the fighting between
the Dakota and the United States as a “war.”
During the fighting, General Sibley also took specific actions
demonstrating that he believed the conflict to be a war between
lawful belligerents. For example, on several occasions Sibley
communicated with Dakota forces under a flag of truce and he
informed his superiors, including General Pope, of this fact.
484
This
477. Letter from Governor Alexander Ramsey to Sec’y of War Edwin Stanton
(Aug. 25, 1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 596; Letter
from Governor Alexander Ramsey to Sec’y of War Edwin Stanton (Aug. 27, 1862),
in 13 WAR OF THE REBELLION, SER. I, supra note 2, at 599. Ramsey, however, also
referred to the conflict as the “Indian outbreak” on several occasions. See, e.g.,
Letter from Governor Alexander Ramsey to Sec’y of War Edwin Stanton (Aug. 26,
1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 597; Letter from
Governor Alexander Ramsey to President Abraham Lincoln (Aug. 26, 1862), in
13 W
AR OF THE REBELLION, SER. I, supra note 2, at 597.
478. Letter from Governor Alexander Ramsey to President Abraham Lincoln
(Sept. 6, 1862), in 13 WAR OF THE REBELLION, SER. I, supra note 2, at 617; see also
Annual Message of Governor Ramsey to the Legislature of Minnesota, supra note
432, at 30 (noting that in 1862, “the State [of Minnesota] found herself engaged
in a defensive war” with the Dakota).
479. Letter from Colonel Sibley to Minn. Adjutant-Gen. Malmros (Sept. 13,
1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 631; Letter from
Colonel Sibley to Major-Gen. John Pope (Sept. 19, 1862), in 13 W
AR OF THE
REBELLION, SER. I, supra note 2, at 650–51.
480. Letter from W.P. Dole et al. to the President of the United States (Aug.
27, 1862), in 13 WAR OF THE REBELLION, SER. I, supra note 2, at 599.
481. Dispatch from Minn. Adjutant-Gen. Malmros to Wis. Governor Salomon
(Sept. 6, 1862), in 13 WAR OF THE REBELLION, SER. I, supra note 2, at 616–17.
482. Letter from Major-Gen. John Pope to Major-Gen. Halleck (Oct. 10,
1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 724.
483. Letter from Major-Gen. Henry Halleck to Quartermaster-Gen. Meigs
(Oct. 14, 1862), in 13 WAR OF THE REBELLION, SER. I, supra note 2, at 738.
484. Report of Colonel Henry Sibley to Governor Alexander Ramsey (Sept.
23, 1862), in 13 WAR OF THE REBELLION, SER. I, supra note 2, at 278–80; Letter from
Colonel Henry to Minn. Adjutant-Gen. Malmros (Sept. 13, 1862), in 13 W
AR OF
THE
REBELLION, SER. I, supra note 2, at 631; Letter from Colonel Henry Sibley to
Dakota (Sept. 13, 1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 632;
76 WILLIAM MITCHELL LAW REVIEW [Vol. 40:1
is important because flags of truce could only be exchanged with
enemy belligerents in a war, not with guerrillas or common
criminals.
485
Despite being informed of this practice on numerous
occasions throughout the fighting, General Pope only objected in
October 1862, after the fighting had ended for the year. He then
told Sibley, “I only regret that you even permitted a flag of truce to
be used with them.”
486
The inference that can be drawn from this
statement is that General Pope was well aware that the use of a flag
of truce was acknowledgement of the lawful status of the opposing
force.
Even those outside of the military were aware of the impact of
a flag of truce. On November 12, Bishop Whipple wrote Senator
Rice and asked him to deliver a letter to President Lincoln. In his
letter to Rice he stated:
We cannot hang men by the hundreds. Upon our own
premises we have no right to do so. We claim that they are
an independent nation & as such they are prisoners of
war. The leaders must be punished but we cannot afford
by any wanton cruelty to purchase a long Indian war—nor
by injustice in other matters purchase the anger of God.
487
Whipple later confronted Sibley in correspondence: “The civilized
world cannot justify the trial by a military commission of men who
voluntarily came in under a flag of truce.”
488
The tougher question, however, is whether a state of war could
be said to still exist in 1863, when the Minnesota Adjutant General
issued his order. Most of the fighting concluded in September
Letter from Colonel Henry Sibley to Colonel Flandreau (Sept. 13, 1862), in 13
W
AR OF THE REBELLION, SER. I, supra note 2, at 637–38; Letter from Colonel Henry
Sibley to Major-Gen. John Pope (Sept. 19, 1862), in 13 W
AR OF THE REBELLION, SER.
I, supra note 2, at 650–51; Letter from Colonel Henry Sibley to Ma-za-ka-Tame et
al. (Sept. 24, 1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 666–67;
Letter from Colonel Henry to Major-Gen. John Pope (Sept. 27, 1862), in 13 W
AR
OF THE
REBELLION, SER. I, supra note 2, at 679; Letter from Colonel Henry Sibley to
Major-Gen. Pope (Oct. 5, 1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2,
at 711; Letter from Brigadier-Gen. Henry Sibley to Major-Gen. John Pope (Oct. 7,
1862), in 13 WAR OF THE REBELLION, SER. I, supra note 2, at 717.
485. C
ARNAHAN, supra note 351, at 18–19.
486. Letter from Major-Gen. John Pope to Brigadier-Gen. Henry Sibley (Oct.
6, 1862) (on file with the Minnesota Historical Society).
487. Letter from Bishop Henry Whipple to Sen. Henry Rice (Nov. 12, 1862),
Whipple Papers, box 40, letterbook 4 (on file with the Minnesota Historical
Society).
488. N
ICHOLS, supra note 23, at 124 (citing Letter from Bishop Henry Whipple
to Brigadier-Gen. Henry Sibley (Mar. 7, 1863), Whipple Papers, box 3, letterbook
3 (on file with the Minnesota Historical Society)).
2013] MINNESOTA BOUNTIES DURING U.S.-DAKOTA WAR 77
1862, and by the beginning of October, General Pope had
announced that “[t]he Sioux war may be considered at an end.”
489
But Taoyateduta had not been captured, and he fled westward
along with at least 150 persons. It appears that General Halleck had
it right when he wrote that “[t]he Indian war in [Minnesota] is
deemed to be ended for the season.”
490
C
ONCLUSION
Federal, state, and local governments all had a hand in
creating the bounty system that provided monetary rewards for the
killing of Dakota men beginning in 1863. This system was illegal
from its inception because the Dakota were engaged in a war with
the United States and were entitled to the status of lawful
belligerents under both the international laws of war and the
domestically created Lieber Code. Yet despite this, the bounty
system remained in Minnesota for years, and similar systems existed
in other states such as California and Arizona. While many scholars
today refer to this time period as the “Reservation Era,” it could
also be viewed as the “Extermination Era,” an ugly bit of our
collective history where elected officials advocated for the mass
murder of Indian people. The story of the U.S.-Dakota War is
incomplete without this history.
489. Letter from Major-Gen. John Pope to Major-Gen. Halleck (Oct. 9, 1862),
in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 722; Letter from Major-Gen.
John Pope to Major-Gen. Halleck (Oct. 10, 1862), in 13 W
AR OF THE REBELLION,
S
ER. I, supra note 2, at 724; Letter from Major-Gen. John Pope to Major-Gen.
Halleck (Oct. 21, 1862), in 13 W
AR OF THE REBELLION, SER. I, supra note 2, at 755.
490. Letter from Major-Gen. Henry Halleck to Quartermaster-Gen. Meigs
(Oct. 14, 1862), in 13 WAR OF THE REBELLION, SER. I, supra note 2, at 738 (emphasis
added); see also Letter from WM. Crooks et al. to Brigadier-Gen. Sibley (Oct. 7,
1862), in 13 WAR OF THE REBELLION, SER. I, supra note 2, at 720 (requesting, long
after the last battle of 1862 had concluded, that Sibley “remain in command [of
the expedition] till the end of the war,” necessarily implying that the war had not
ended).
