"The trials of the Dakota were conducted unfairly in a variety of ways. The evidence was sparse, the tribunal was biased, the defendants were unrepresented in unfamiliar proceedings conducted in a foreign language, and authority for convening the tribunal was lacking. More fundamentally, neither the Military Commission nor the reviewing authorities recognized that they were dealing with the aftermath of a war fought with a sovereign nation and that the men who surrendered were entitled to treatment in accordance with that status."

Carol Chomsky, Associate Professor, University of Minnesota Law School

On September 28, 1862, two days after the surrender at Camp Release, a commission of military officers established by Henry Sibley began trying Dakota men accused of participating in the war. Several weeks later the trials were moved to the Lower Agency, where they were held in one of the only buildings left standing, trader François LaBathe’s summer kitchen.

As weeks passed, cases were handled with increasing speed. On November 5, the commission completed its work. 392 prisoners were tried, 303 were sentenced to death, and 16 were given prison terms.

President Lincoln and government lawyers then reviewed the trial transcripts of all 303 men. As Lincoln would later explain to the U.S. Senate:

"Anxious to not act with so much clemency as to encourage another outbreak on one hand, nor with so much severity as to be real cruelty on the other, I ordered a careful examination of the records of the trials to be made, in view of first ordering the execution of such as had been proved guilty of violating females."

When only two men were found guilty of rape, Lincoln expanded the criteria to include those who had participated in “massacres” of civilians rather than just “battles.” He then made his final decision, and forwarded a list of 39 names to Sibley.