Document Type

Article

Publication Date

2013

Publication Information

40 William Mitchell Law Review 1 (2013)

Abstract

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 and white settlers who experienced this tragedy. Hundreds of people lost their lives in just over a month of fighting in 1862. By the time the year was over, thirty-eight Dakota men had been hanged in the largest mass execution in United States history. Not long afterwards, the United States abrogated its treaties with the Dakota, confiscated their reservations along the Minnesota River, and forced most of the Dakota to remove westward.

While dozens of books and articles have been written about these events, scholars have largely ignored an important legal development that occurred in Minnesota during the following summer. 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. The first order authorized the creation of a corps of volunteer scouts that would scour the "Big Woods" in search of Dakota men. 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. 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. 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.

Minnesota was not the only state that placed a bounty on their 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. 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.

This article uses primary historical sources to describe the events leading up to the enactment of a bounty system in 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.

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