Roger Di Silvestro

by In the Shadow of Wounded Knee: The Untold Final Story of the Indian Wars

  Whatever Plenty Horses' intention in shooting Casey, the act fell short of the Lakota standard for bravery. In the world of his own culture, Plenty Horses had lost his way, and in his attempt to win a place for himself there, he had blundered. Nevertheless, the defense might be able to win acquittal with Plenty Horses' claim that he had shot Casey to protect the camp.

  CHAPTER 11

  On Trial

  THE FIRST DAY OF THE trial, the witnesses walked from their lodging at the brick, three-story Merchants Hotel to the courthouse in the Masonic Building, an imposing structure built of stone probably from the local quarry and topped with a clock tower that may have been the tallest structure in town. A heavy, ponderous edifice that filled almost half a city block, the building faced wagon-rutted dirt streets but was fronted with clean wooden sidewalks.1

  The presiding judges were Civil War veteran Oliver Shiras, on loan from the Iowa federal district court, and South Dakotan Alonzo J. Edgerton, who also had presided at Plenty Horses' grand jury hearing. Edgerton was a civic-minded politico who recently had turned down an opportunity to run for the Senate.2 The two judges looked out over a packed courtroom. Bevies of brightly dressed women were given priority seating. Men stood at the edges of the room or sat on windowsills. In the front of the courtroom sat Plenty Horses, a red silk kerchief around his neck. Behind him sat the Lakota witnesses, most of them in three-piece suits and boots or shoes. Jack Red Cloud, his long hair parted on the right, wore a gold watch chain on his vest and dangling metal earrings similar to a pair worn by Plenty Horses. Living Bear wore striped slacks and beaded moccasins with his dark jacket and vest. Least dapper of all was Plenty Horses in worn shirt and slacks and tasseled moccasins.

  Beside Plenty Horses were Nock and Powers, who were working without pay but in the hope that the Indian Rights Association eventually would cover their costs, including a trip to Pine Ridge by Powers to study the crime scene and ferret out witnesses. Both attorneys wore their hair cropped short, pomaded to their scalps and parted high on their heads with mustaches that would have done a walrus proud. Like prosecutor William Sterling, they wore conservative suits, including frock coats that reached almost to the knee.

  Sterling's round face, with prominent nose and sloping chin, looked distinctly twentieth century because he lacked a mustache and combed his hair back, parting it low at the side. His assistant in the prosecution, an army captain named J. G. Ballance, made up for Sterling's more futuristic style. With receding hairline and full beard, he looked as if he had just stepped off a box of Smith Brothers cough drops.

  The Merchants Hotel in Sioux Falls, South Dakota, provided rooms for participants in the Plenty Horses trial. (Courtesy of the Siouxland Heritage Museums, Sioux Falls, South Dakota)

  The first day of the trial was devoted primarily to jury selection, which was not completed until 4 p.m. Nock and Powers sought to place eastern men on the jury, while Sterling aimed for men born in the West, who were less likely to indulge any sympathies for Indians. The selected jury was made up mostly of farmers who the New York World reporter concluded were intelligent men representative of their area and likely to give Plenty Horses a fair trial.3

  Witness testimony began on the second day, an unusually beautiful one for that time of year, townspeople said.4 Some Lakota said the weather was the work of the Messiah, although they did not specify whether it was a good or a bad omen for Plenty Horses—they would not discuss the subject with even their most trusted interpreters.

  Much of the opening testimony was designed to inform the jury about details of the Casey shooting and related events. The first witness whom Sterling called, for example, was Dr. B. L. Ten Eyck, an assistant army surgeon from Leavenworth, Kansas, who ascertained that Casey was killed by a bullet that "entered the back of his head and came out under the right eye." One witness after another, from White Moon to Pete Richard, from Broken Arm to Philip Wells, laid out the details of Casey's death or of the various battles that had followed Wounded Knee.

  When Sterling called for White Moon, the Casey scout walked to the stand with rigid military bearing. He wore his blue uniform with red and white trouser stripes and a white chevron on either arm indicating his corporal's rank. His long braids were tied with strips of mink skin, and he took his oath solemnly. His testimony was translated by William Rowland, the gaunt, white-mustached interpreter from Fort Keogh. Sterling led the scout, who bowed his head at the mention of Casey's name, through the details of the shooting. Every so often, White Moon shot Plenty Horses a withering look. When Sterling asked him, "Do you know who shot Lieutenant Casey?" White Moon almost shouted, "Plenty Horses!" Plenty Horses gazed at White Moon without a flicker of emotion.5

  Sterling, attempting to define Casey's death as murder, might have built his prosecution on the fact that White Moon, a uniformed army scout, was not killed, as he might reasonably have been had Plenty Horses been engaged in an act of war against enemy troops. But nothing in the existing record suggests that Sterling pursued that line of inquiry. Instead, he asked White Moon what he did after the killing.

  "I started back to camp," the scout replied. "I could do nothing else."

  "What did you take with you?" Sterling asked.

  "I took Lieutenant Casey's horse and led him home, led him to the camp."

  "Did you remain there by the side of Lieutenant Casey any length of time after he was killed?"

  "I went right away," White Moon said.6 During cross-examination Nock asked White Moon about the specific purpose of Lieutenant Casey's mission. Was the officer trying to set up peace talks with a chief or chiefs of the hostile camp?7 No, White Moon said, Casey wanted only to see the camp, an admission that Nock would use later to suggest that Casey was a spy, not a peacemaker.

  White Moon was followed on the witness stand by the other scout who had ridden with Casey the day of the shooting. Rock Road, according to newspaper accounts, sounded almost cheerful as he ran through the events that led to the shooting, though he responded to Sterling's questions with more or less the same story White Moon had told. Then Nock approached the witness for the cross-examination. As with White Moon, Nock asked about Casey's mission. "What did Casey say he was going to the Indian camp for?"

  "To get a view of it."

  "Were you armed?" Nock asked.

  "Yes. We had rifles and revolvers."

  "Would you go into that camp alone?"

  "No. I was afraid."

  "Did Casey say anything about holding a counsel when he left?"

  "No, sir, he just wanted to see the Indian camp."

  Rock Road had offered scant tidbits to the defense, but some elements were beginning to surface that Nock and Powers might use in their argument that the Indians and the army were at war. Reported the New York World: "That the defense will attempt to show that Casey was a spy from Gen. Brooke's company and the Government was at war with the Sioux Nation was made apparent by the line of questioning indulged in by Mr. Nock for the defense when selecting the jury. Today he went further in the same direction, although not quite to the point, probably because he did not desire to show his hand at this early stage."8

  Nock was playing a crafty game, because he knew the judges would resist any suggestion that the Lakota were an independent nation capable of declaring war. "The great legal battle will be on admitting testimony to show that war was acknowledged on both sides and that the soldiers were there for the purpose of engaging the Indians in battle should the occasion arise for it," explained the New York World. "Such a question has not been raised in late years. It will settle the status of the Indians, for, if decided adversely to the defendant here, it will undoubtedly be carried to the Supreme Court."9

  Rock Road was followed by Bear Lying Down, also called Bear That Lays Down, who was Plenty Horses' uncle, but he added nothing that had not been said before. At the end of his testimony, about 3 p.m., the court adjourned until the following Monday, giving everyone Sunday off. This announcement was "a great relief to
the Indians who do not fancy sitting in the hot room," reported the New York World. "The defendant stood up, languidly smiled and walked out like a chieftain: too proud to look at any one [sic] near."10

  * * *

  BY THE THIRD DAY OF the trial, crowds of would-be spectators had besieged the courthouse since early morning in hope of getting seats. Half the people who jammed sidewalks and doorways were women "radiant in their Spring bonnets and attractive costumes, forming a picturesque group, with the brown-skinned Sioux for a background," according to New York World reporter J. J. McDonough. The crowd gawked at the Lakota, who ignored them with a great show of dignity. "These Sioux are wonders of stoical indifference," McDonough wrote. "They have no care for their surroundings, and while preferring to be back on the reservation, they give no sign of discontent at their long stay here."11

  Plenty Horses seemed now to rise from his lethargy. The courtroom buzzed when he entered, the whispered conversations growing louder until the judges came in and marched to their seats. Plenty Horses, pale and thin, scanned the room, his gaze coming to rest on the jury, studying them closely, minutely, as if trying to read their minds. He had presumed that the trial was a mere formality that the whites wanted to go through before hanging him. But his first two days in court had shown him that his lawyers were putting up a good fight, and he had begun to think that his chances of acquittal were good. He could understand all that the lawyers said, though he was not sure why they were saying it. He was even able to take an objective view of the whole affair, enjoying the lawyerly discourse. "The Indians all like good speakers, and of course we feel pleased to have these men speak," he told a newspaper reporter. He demonstrated what can only be called extreme objectivity when he even praised the quality of Sterling's opening remarks.12

  During cross-examination of Bear Lying Down, Nock eased into his argument about war on the reservations, asking Bear to describe the condition of the Indian camp. Instantly, William Sterling objected.13 Nock rose to his feet and said: "I want to show by this man what the condition of the average Sioux in these camps was at the time: that they were in a state of foment bordering on fenzy, quite enough to unsettle any man's mind. This we will present in order to make plain the fact that the defendant was not responsible for the crime alleged against him, which I will now state is to form part of our defense."

  Sterling responded by asking that all testimony of that nature be stricken from the record. The judges overruled the objection, permitting Bear Lying Down to say that the camp was fortified because the people in it thought of themselves as combatants. So many Indians had been killed at Wounded Knee, he said, that all had fled to the White Clay Creek encampment. "We had a battle at White Clay Creek one day and thought there might be another fight," he said. "All were armed in some way with guns, revolvers and knives."

  The Masonic Building, which housed a drugstore and real estate office on the first floor and served as the site of the Plenty Horses trial. (Courtesy of the Siouxland Heritage Museums, Sioux Falls, South Dakota)

  After Bear Lying Down came Pete Richards, Red Cloud's half-white son-in-law, who described the Casey shooting in lurid details that held the crowd in rapt attention but again added nothing of note to the case against Plenty Horses. Broken Arm then recalled stripping Casey's body of its pistols, displaying the dry matter-of-factness with which denizens of the plains dealt with gunfire and sudden death: "Casey had a pistol shoved down along side of his leg, down in the boot. He had two belts on. One of them had a pistol, the other was a cartridge belt. He was lying on his face. He had one leg drawn up and one leg stretched. I took him by the arm and pulled him over on his back so I could take his belt off. His hat was off a little ways from him. I went and picked the hat up and laid it close to his head. Then I jumped on my horse and started off. One pistol I gave to Red Cloud's son and told him to give it to the owner. The other I gave to Little Wound."14

  The prosecution's final witness was a translator from Fort Keogh who described the area in which Casey was shot.

  David Edward Powers then rose to make introductory remarks to the jury, putting the defense's spin on the trial.

  You have heard from the different witnesses who have been called on the part of the Government the story of how the life of Lieutenant Casey came to such a sudden and sad end, and we assure that there is nothing can be said complimentary to Lieutenant Casey that will not meet the unqualified endorsement of the counsel for this unfortunate savage. This calamity is certainly a deplorable one, and we wish it were in our power to return Lieutenant Casey to a life of usefulness on this earth. It probably will not be denied in this case the fatal shot which ended the life of Lieutenant Casey was fired by this poor fellow, but we maintain and shall insist, not only on the jury, but the Court, that the shot was fired under circumstances which, so far as the civil authorities of this Government are concerned, they have nothing at all to do with.

  The Messiah craze talked of was the result of abuse by Government agents. Not only the Messiah craze excited those people, but we shall show you that they conceived that the treaty relations existing between the Sioux Nation and the United States Government had been violated. They believed that they had been wronged. The next thing that occurred was the killing of Sitting Bull, and the manner in which that wiley chief came to his end was communicated from tribe to tribe.

  Then followed the terrible battle of Wounded Knee. It is true that Plenty Horses was not at that battle and did not participate in it, but the Indians' version of that battle was communicated to the hostile camp of which he was a member. He caught the impression and he believed that at Wounded Knee the United States troops seduced the Indians into giving up their arms and, after they had made a surrender of their arms, they slaughtered them in cold blood. This was the version substantially of the battle of Wounded Knee that reached this hostile camp.

  The question of an Indian's rights in case of war will be fully and thoroughly discussed, and I believe you will agree with me that the case in hand was the result of war and one of its unfortunate incidents.

  Nock and Powers then called their first witness to the stand, Philip Wells, the Pine Ridge government scout and interpreter who had nearly left his nose at Wounded Knee. Powers established Wells's familiarity with the Lakota and his participation in the Wounded Knee battle, then asked simply, "Who was the battle fought between?"

  Sterling stood up. "I object to the introduction of any testimony for the purpose of showing that a state of war existed between the Sioux Indians and the Government of the United States, and before any testimony of that kind is admitted I desire to be heard," he said. "While they may desire to introduce evidence of this nature in order to lessen the degree of his crime, yet I submit that is not admissible evidence in this case. The Government did not concede that there was a war at the time Casey was killed, and no Department held that such was the case."15

  This objection spurred a prolonged debate, in which Powers countered:

  By the treaty of 1869 the United States Government recognized the Sioux tribes as a nation. As a nation they have certain attributes of nationality, and the right to declare and prosecute a war which is secured by implication to the Sioux Nation by treaty since King Philip's war in 1675.l6The right of the Indian tribes of this country to appeal to arms has never been questioned, and the United States Supreme Court, in several cases, has distinctly held that the Indian tribes of this country and dependent nations possess certain political powers and functions, and among these powers and functions is the right to declare war. In this case the act of defendant in killing Casey was the act of a belligerent and in the prosecution of a war, and inasmuch as his act in killing Casey has been endorsed by the Sioux Nation, the civil authorities of this Government have no jurisdiction to try him for murder.17

  Captain J. G. Ballance, who was assisting Sterling in the case, responded, pointing out that all treaties with the Lakota referred to them as a tribe, not a nation.

  These treaties h
ave sometimes been made with one tribe of the Sioux Indians and at other times with more, each time recognizing the particular tribe or tribes with whom they were treating as Sioux Indians. It will be observed on examination that the treaty of 1868 has no signature of any chief or head man [sic] belonging to or pretending to belong to the Sioux Nation, but each signer purports to belong to a particular tribe. These different tribes are called Sioux merely because they speak the same tongue and have common characteristics and interests. Those interests may differ, and under the old system different tribes of the Sioux Indians might be at war with each other, or one tribe might be at war with the whites or an Indian tribe with whom another tribe of Sioux Indians might be at peace.

  The Sioux Indians, by an agreement embodied in the law of 1877,18 especially agree that they will be subject to the laws of the United States, and Congress in 1885 enacted a law providing that offenses committed on an Indian reservation situated within a State should be subject to the exclusive jurisdiction of the United States Courts. This law did recognize the Indians as nations, but it was a legislative declaration that the Congress believed that justice for offenses on an Indian reservation could be better meted out by the United States Courts.19

  Anyone who had been following the trial would have known that much of Plenty Horses' fate hinged on how Judge Shiras and Judge Edgerton responded to these different points of view about Lakota independence as a nation and their right to conduct a war as well as the court's authority to try Plenty Horses. Most trial aficionados believed the judges would decide in Plenty Horses' favor. But the judges were not about to reach a conclusion on that issue with haste. After hearing the arguments, they adjourned until 9:30 the following morning.

  WHEN THE TRIAL RECONVENED ON April 28, the courtroom was crowded with women, who seemed daily more interested in the trial. They were on hand for an important victory for the defense: The judges ruled that the court did have jurisdiction over the case but agreed to allow testimony about war that might offer mitigating circumstances for Plenty Horses. Judge Shiras explained that he and Judge Edgerton were not going so far as to say that the Lakota were an independent nation, but did recognize that the Indians could be a belligerent in a war. Sterling nevertheless would struggle all day to block testimony about the killing of any Indians, and Nock and Powers would fight back just as hard to show that the killing and other events surrounding Wounded Knee had preyed on and distorted their client's mind. "No better battle was ever made for the life of a man than these men have made," reported the ever-present New York World, "and that, too, in the face of insurmountable difficulties."20