Ghosts of Sioux warriors surround the controversy on the Military Commissions Act, 38 of them to be precise. They offer a warning that should not be ignored.
On June 29, the U.S. Supreme Court struck down the type of tribunal the Bush administration intended to use for terrorist trials. On Sept. 29, Congress passed a fix that met the court’s objections but left civil libertarians very nervous. The issues are an eerie echo of the debate over one of the most notorious of these tribunals, which 154 years ago ordered the largest mass execution in U.S. history. This was the military commission of Col. Henry Sibley, which tried and condemned alleged participants in the Minnesota Sioux uprising of 1862.
The conflict erupted in August 1862 after a decade in which four Dakota tribes had been pushed from their southern Minnesota territory into reservations along the Minnesota River. Social dislocation was intensified by the corruption of Indian agents and traders. Discontent came to a head when annuity payments were late, and traders in the Lower Agency refused to distribute provisions on credit. An apparently spontaneous murder of a white settler family by a group of young Dakota forced the chiefs of the Mdewakanton and Wahpekute to take up arms. (The Dakota tribes further north opposed the war.)
In the first week of fighting, the Dakota forced settlers out of the southwestern Minnesota frontier and laid siege to Fort Ridgely and the town of New Ulm. Some 250 settlers were dead. Most were relatively innocent, aside from occupying former Dakota land, but some killings were targeted. The Indian trader Andrew Myrick had withheld provisions from the tribes, saying, “So far as I am concerned, if they are hungry, let them eat grass.” He died in the first attacks, and his mouth was stuffed with grass. By September, however, U.S. forces had gathered under Sibley. After some initial losses, they gained the upper hand at the Battle of Wood Lake on Sept. 23, defeating up to 1,200 Dakota warriors.
Almost immediately, Sibley appointed a five-member military commission to conduct summary trials of the prisoners. This kind of military court was relatively new. It originated in 1847 during the Mexican war to conduct trials in occupied territory. But the controversy over Sibley’s commission continues to this day. The military court conducted 393 trials over six weeks, hearing up to 40 cases a day as its pace accelerated. Most defendants were convicted in minutes if they admitted picking up arms. The men conducting the trials were not necessarily Indian-haters, but they admitted still feeling the emotion of the conflict. Much of the fact-finding was done by the Dakota-speaking congregational missionary Stephen Riggs, who devoted most of his life to what he saw as the best interests of the Sioux people. Yet the court sentenced 303 Dakota warriors to die by hanging.
National and local opinion was intensely hostile to the Dakota. It saw the uprising in the middle of the Civil War as a stab in the back, much as the English regarded the Irish Easter Rebellion of 1916 in the midst of World War I. Federal soldiers actually had to defend the Dakota prison camp against vigilante mobs. But one or two voices protested the conduct of the trials. The Protestant Episcopal Bishop of Minnesota Henry Benjamin Whipple, an advocate of Indian reform, met personally with President Abraham Lincoln. Among other things, he argued that the defendants should have been treated as prisoners of war. By his own account, Lincoln was deeply impressed. He had the list of condemned warriors pared down to those accused of actual massacres and spared those who had merely participated in battle. But in the end, 38 were hanged in Mankato, Minn., on Dec. 26 in a single mass execution, to the cheers of thousands of spectators.
This history gives a chilling perspective to the recent expansion of the reach of military commissions. In the universal outrage over the attacks of Sept. 11, 2001, the Bush administration invoked extraordinary powers to deal with real and suspected terrorists. It set up internment at the leased Naval station in Guantanamo Bay, Cuba, on legal advice that it was likely out of the reach of a federal court writ of habeus corpus. (Alternative prison sites on Midway, Wake Island or Tinian Atoll in the Pacific were rejected when it turned out they were in the jurisdiction of the U.S. District Court of Hawaii.) President Bush convened the military commissions by invoking his general war power. His commission order set up unique procedures, such as denying defendants access to the evidence against them, that aren’t allowed in constitutional courts nor, apparently, under the “law of war”.
The Supreme Court called a halt on June 28 in its ruling on Hamdan v. Rumsfeld. This historic, but rather technical decision, said that since the commissions weren’t strictly enforcing the “law of war,” they needed to be authorized by Congress. An administration compromise with Sen. John Warner and Sen. John McCain has just produced that authorization.
The initial response in some quarters has come close to hysterics. We’ve seen claims the republic is coming to an end and that American citizens are falling under military control. This kind of exaggerated rhetoric will unfortunately discredit some very serious concerns. The American public does feel itself under attack. Some of the detainees are undoubtedly evil and dangerous enemies. Bush plays a strong card when he lists the attacks he says have been averted by the interrogation of figures like Khalid Sheikh Mohammed, the mysterious alleged mastermind of the 9/11 attacks. But history warns that no matter how serious the apparent threat or how deep the public emotion, an open-ended response will do its own sort of damage, which in the end will be even greater.
Indian country is very much part of the war on terror, as we have shown among the skyscrapers of New York City and on the battlefields of Afghanistan, Iraq and elsewhere. But in this indefinite conflict, it’s crucial to keep an eye on what we are defending. The “ideological struggle of the 21st century,” as Bush has taken to calling it, makes sense if we are the ones preserving institutions of law, justice and moderation. We begin to lose the fight if we allow ourselves to be tricked into compromising these very institutions.
The aftermath of the Sioux uprising showed how easily military commissions can be abused, even by reputable men. This lesson should not be forgotten.