by In the Shadow of Wounded Knee: The Untold Final Story of the Indian Wars
And so Plenty Horses' own leader had thrown aside the old way of life. As Plenty Horses sat in the jail at Sioux Falls, awaiting his fate, the world was moving on, and his cause was falling into the past even as it made headlines across the nation, and readers awaited the verdict.
THE JURY RETURNED TO THE courtroom at 9 a.m. on April 30 after a long night of deliberation. "Have you reached a verdict?" asked Shiras.36
"We have not, Your Honor," the jury foreman declared.
In an atmosphere of anticlimax, the judges then discharged the inconclusive jury. That afternoon, Sterling called for a retrial. Nock objected to going to Deadwood, where the court would next be in session, because he and Powers were not being paid for their services. Relocating the trial would pose a serious financial burden. Judge Edgerton agreed and concluded that the retrial would be begin on May 25, 1891, in Sioux Falls.
The jurors had failed to reach a verdict because they had fallen afoul of the issue of manslaughter or murder. The first ballot had come out six for murder and six for manslaughter. After clarifying some issues with the court the previous evening, the jurors voted eight for murder and four for manslaughter. At 1 a.m. the vote fell to six against six. The jury went through twenty-three ballots and came up with nothing closer to a verdict than eight to four. "We could have remained out for four days and never come any nearer to an agreement," said one juror.37 The New York World pointed out that although Sterling had called on the jury's Civil War veterans to debunk the war question, all the veterans had voted consistently for manslaughter.38
Although the whites of South Dakota seemed less eager to hang an Indian than most observers had expected, a juror named House, distinctly in favor of a murder verdict, remarked casually during the courtroom hubbub, "I have lived over the border too long to look upon the outrages of those savages as permitting of any mitigating circumstances."39
Powers quickly responded, "Then you are not without prejudice, although you swore that you had none before becoming a juror."
House, probably uncertain just what penalty such perjury might bring with it, immediately fled the scene.
The jury deliberations were plagued with doubts about the respective punishments for murder and manslaughter. One juror said that several of them voted for murder because they thought the penalty for manslaughter would be only two or three years in jail. Had they known that Plenty Horses could have been locked away for ten years for manslaughter, the jurors might all have voted for that verdict.40
Plenty Horses took the jury action in stride with his usual show of stoical indifference. A reporter asked how he felt, but he answered with silence.41 Not so his father, who had been pacing the hallway outside the courtroom during the tense hours of jury deliberations, wringing his hands and asking the court deputy every few minutes how things were going. When the verdict came down, Living Bear squeezed through the crowd, hands trembling, tears streaming down his face, and seized Nock by the hand, pouring out thanks that "must have compensated the lawyer for the work he had done."42 Formerly so somber, Living Bear was now shaking hands with anyone who would take his, laughing heartily, and talking about nothing but his son's narrow escape from death. He left that night on a train for Pine Ridge.43
A hung Indian, not a hung jury, had been the anticipated result of the trial. But the outcome was not bad for Sioux Falls. Concluded the Argus-Leader, with a stunning display of boosterism, "It is likely that the second trial will attract more attention than the first, and, in a cold-blooded sort of way, Sioux Falls is to be congratulated that it is to take place here."44
Back in jail that evening. Plenty Horses told the New York World's McDonough: "I thought last night that they would hang me sure. But now I feel that it will not be so. My father is glad once more."45
CHAPTER 12
Justice Deferred
INITIALLY, ANY GAMBLER WOULD HAVE bet that the Plenty Horses case would end at the gallows, but somehow Sterling had lost—an inauspicious result for a newly married lawyer with money problems. Then, in early May, he found himself committed to a leading role in another trial involving whites, Indians, and alleged murder. The Culbertson brothers and two South Dakota ranchers, James Juelfs and Alva Marvin, had been arraigned before a grand jury in Sturgis, South Dakota, and charged with killing Few Tails. The U.S. Department of Justice assigned Sterling to help the state attorney try the case. This time, Sterling would be prosecuting whites for killing an Indian, the mirror image of the Plenty Horses trial.
The Few Tails case had gone before the grand jury on May 13, 1891, with the prosecution represented by the state attorney and the assistant U.S. attorney. Few Tails's widow, Clown, and their daughter were among the witnesses. Clown spoke of her dangerous days and nights on the frozen prairie, an experience which, the Sioux Falls Argus-Leader reported, had crippled her for life. The paper characterized the slain Few Tails as "one of the most reliable and progressive Indians of [Pine Ridge] agency" and recalled the Culbertsons' "well known reputation as horse thieves and border ruffians." Few Tails's killing was "one of the most cold-blooded and unjustifiable murders ever committed on the frontier," according to the Argus-Leader.1
Given that the Culbertsons were none too popular locally and that Clown's emotional testimony could not fail to stir juror empathy, Sterling stood a chance of winning in Sturgis. After all, the cowboys had been jailed thanks to a persistent cry for bringing them to justice. They had been arrested even over the protest of Meade County officials, who had been pleading lack of funds as an excuse for ignoring the murder. But a win for Sterling in the Few Tails case would be influenced by the outcome in Sioux Falls.
* * *
As PLENTY HORSES' SECOND TRIAL neared, the New York World editorialized:
The killing of Lieut. Casey was brutal and cowardly. His death was a distinct loss not only to the service but to the Indians whom he was teaching to be civilized soldiers. He was a brave, conscientious, honorable officer, and his slayer was a savage with all the mean as well as honest instincts of the savage.
But is it well for the Government to accuse PLENTY HORSES of murder?
PLENTY HORSES and other Sioux went on the warpath because the government starved them. The administration has not yet remedied the evil that caused the trouble. Will it help matters to hang for murder an Indian who supposed that he did only what war gave him a right to do? Can the United States afford to drive them into revolt and then hang them for the killing that they do?2
Heartened by the first trial and the hopeful outcome, the defense team was primed for round two. Despite little time to prepare their case, the two attorneys had every weapon in their arsenal fully loaded. They prepared tough, clear arguments to convince judges and jurors that Pine Ridge was at war at the time of Casey's shooting. They lined up excellent new witnesses. During the first trial they had wanted testimony from American Horse—the well-known progressive whose bravery had kept the attempted arrest of Little from breaking into a bloody riot on Royer's office doorstep—but he had not been able to appear. This time, he was on board.
They also beat William Sterling in the critical matter of getting a witness to testify on behalf of General Nelson Miles. Sterling had gone to Chicago to enlist Miles for the prosecution, wanting him to deny that the reservations were at war the previous winter. Miles had dismissed that plan. "My boy, it was a war," he told Sterling. "You do not suppose that I am going to reduce my campaign to a dress-parade affair? Oh no. I am sorry, but I cannot do it."3 The defense, on the other hand, wanted Miles to testify that war it had been indeed, and that Miles was eager to do.
But Nock and Powers at the outset of the second trial also found themselves missing two critical witnesses: Philip Wells and Living Bear. Wells's appearance was blocked by vengeful army officers who feared that his participation would help Plenty Horses.4 Living Bear's absence was a mystery. The strongest defense witness at the first trial, he had failed to return to Sioux Falls from the Rosebud Reservation. Nock and Powers suspect
ed that someone— perhaps soldiers bent on undermining Plenty Horses' defense—kept Living Bear away. The attorneys stated firmly that the case would not close until Bear had testified. The court immediately sent a telegram to Rosebud, asking where Living Bear was. The next morning came the answer: about twenty miles from reservation headquarters. The court sent a deputy marshal to track him down.
Meanwhile, the trial went on without Plenty Horses' father. When court opened at 9:30 a.m. on Monday, May 25,1891, Plenty Horses sat behind the rail that separated spectators from judges, jury, and attorneys. He was a bright spot in the room, in scarlet shirt and yellow silk scarf, probably gifts from supporters. These colors had religious significance for the Lakota.5 Yellow was the color of Inyan, God as rock, the primal source of all things and the patron of revenge, destruction, and violence. It was also the color of Wakinyan, the Winged God or Thunderbird, created by Inyan as his companion. A Lakota who had escaped a personal encounter with an enemy was entitled to wear upright in his hair an eagle tail feather dyed yellow. Red, like yellow, was a favorite color of the Lakota gods, but it was special to the Sun God, Wakan Tonka Kin, the greatest of all the gods. Wakan Tonka Kin was pleased by people who wore red and would listen if they spoke to him.
J. J. McDonough thought he could see signs of wear and tear in Plenty Horses but also praised him as if he were assuming heroic stature: "Long imprisonment has wasted the defendant considerably. His face is quite pale, and his frame has very little flesh on it. But with all his suffering there is the same dauntless spirit in the fellow which no power on earth can subdue. His eyes are bright, he holds his head erect, and the same old smile plays over his face when he greets a friend."6
The Argus-Leader reporter saw something else in Plenty Horses' countenance: hope. "His face at times lost the stolid indifferent expression and to the careful eye betrayed something very akin to nervous anxiety. This morning he asked his attorney, 'Have you not any new evidence';—the first time he has shown any interest whatever in the evidence or in his case. The fact is that during the former trial Plenty Horses had the idea that he was a prisoner of war and that the trial was only a formality to precede execution. The disagreement of the former jury put new hope in his breast, and now for the first time he takes a keen and almost nervous interest in the testimony."7
In his opening remarks William Sterling tried to discredit Plenty Horses' claim that he had shot Lieutenant Casey while defending his people in a time of war. Not so, Sterling said. Plenty Horses' people scorned him for being a "book Indian," one who had attended the white school. Plenty Horses killed Casey to win the approval of the Lakota. Casey was a sacrifice to the would-be warrior's ambition.
Sterling's first witness was Rock Road, who wore "a jaunty spring suit with loud checks and looked very much as though civilization agreed with him," McDonough wrote.8 He described the killing yet again.
In cross-examination Nock seemed determined to show the antipathy between Rock Road and Plenty Horses, perhaps to suggest that Rock Road's description of the murder, and therefore the motive, was questionable. "You do not like the prisoner?" Nock asked.
"No," Rock Road said firmly.
"You hate him, don't you?"
"Yes," the scout said without a moment's hesitation. He said if he had been there when Casey was shot, Plenty Llorses would not now be sitting there alive in the courtroom, or anywhere else for that matter. He hated him because he had killed the lieutenant.
Trying to erode the jury's trust in Rock Road's veracity, Nock asked Rock Road whether, at the previous trial, he had testified that he had been afraid to enter Two Strike's camp. He had in fact said so, but now he denied it. "If I said at the other trial I was afraid, I don't remember it, and it was not true."9 Nock would get back to that point later.
Next, Sterling brought White Moon to the witness stand. The Cheyenne scout and Casey loyalist also described the shooting, emphasizing how Plenty Horses had acted friendly, shaking hands with the officer and talking with him pleasantly before assassinating him.
But during cross-examination White Moon's truthfulness took severe blows. Powers had traveled to Pine Ridge during the period between t]je two trials and learned that, after the shooting, White Moon had told two people that he could not identify the man who shot Casey. He also had claimed that he had fired twice at the killer on the outskirts of the Brulé camp. "Did you tell [William] Thompson [an interpreter from Fort Keogh] on returning to camp, that you did not know who shot Casey, as the man who shot him was painted?" Nock asked.
"No."
"Did you tell Thompson, or say in his presence that you fired two shots at the man who killed Casey?"
"I did not."
"Did you say in his presence that you regretted you had missed killing the party who shot Casey, and that the scouts there applauded you?"
"I think not."
"Do you know a man by the name of William Craven?"
"I do not."
William Craven, an interpreter from the Cheyenne River reservation, would come up again later in the trial, much to White Moon's dismay.
Dr. Ten Eyck followed, describing Casey's fatal wounds, as at the first trial, and the court adjourned.
That evening, a hot rumor circulated through town. Captain Frank Baldwin was coming to Sioux Falls from Chicago to testify on General Miles's behalf that the Lakota and the army had not been at war. If the rumor was true, then Baldwin, the two-time Congressional Medal of Honor winner who had investigated the Wounded Knee fight and related shootings, would be a powerful prosecution witness. Only later, when he actually did take the witness stand, would it become clear that this longtime ally of Miles was anything but a boon to William Sterling.
AT 9 A.M. THE NEXT DAY, U.S. Deputy Marshal F. Curtis Fry's sonorous voice rang out to announce the beginning of day two of the trial. The first witness, Broken Arm, had ridden up to Casey with Plenty Horses. He described the shooting much as White Moon had and repeated the story of how he had taken Casey's pistols and left the body turned on its back when he rode back to camp.
Nock and Power's main interest on cross-examination lay in asking who gave Broken Arm his ration tickets for food. They wanted to establish that the Lakota must have been at war if the Indians were receiving ration tickets not from the Bureau of Indian Affairs in the Department of the Interior but from the War Department. They substantially made their point. "Are there two kinds of tickets issued at the agency, one from the interior [sic] and one from the war department [ c]?" Nock asked.10
Sterling objected and was overruled. Broken Arm answered, "I don't know."
"Isn't it a fact that since you came into the agency, you have been drawing rations from the war department?"
"I don't know that." Referring to the fact that the reservations had been turned over to military control shortly after Royer was discharged as agent, Broken Arm added, "We have a soldier for our father, and we get tickets from him."
"Before you went into the No-water [sic] camp who gave you tickets?"
"Before that we had a short, little man [Royer] for a father. He was a new man and he wasn't no soldier."
The spectators got a laugh out of that—Royer's reputation as Young Man Afraid of His Indians still overshadowed him.
Nock switched course, getting now to the question of why Plenty Horses might have had his face painted the day of the shooting. "Do Indians paint their faces when they go on the warpath?"
"Yes."
"Do Indians paint their faces when they go see different nations?"
"Yes." Broken Arm explained that they painted their faces for a variety of reasons, from going to social gatherings to visiting friends, from going to war to preparing to die.
The question of paint came up again in the testimony of the following witness, Bear Lying Down, who was Plenty Horses' uncle by marriage. Nock was trying to establish that the paint indicated a state of war, that the Indians wore it because they thought they might at any moment be attacked and killed, l
ike the members of Sitanka's band. Bear Lying Down admitted that he had worn paint while in Two Strike's camp. "Why were you painted?" Nock asked.
"I expected to die every day," Bear Lying Down said simply.
Sterling called only two more witnesses, Pete Richard and Thomas Flood, the Pine Ridge interpreter, who testified that he had talked with Plenty Horses in English at Pine Ridge and that the young man was fluent in the language. Nock, when his turn with Flood came, established that Plenty Horses usually spoke in Lakota. Clearly, the attorneys were maneuvering for the time when Plenty Horses might be called to the witness stand.
In any event, Flood's testimony ended the prosecution's case, and David Powers gave the opening defense remarks.11 He described how the government had failed to keep its promises to the Lakota. "We have evidence to show you, thank God, that two years ago men, women and children actually starved because of the failure of this government to keep its treaties and to furnish the proper supplies. . . . [The Lakota] committed no outrages until they heard that the soldiers were coming to exterminate them. When the soldiers came, they took it as a declaration of war. But even the Indians made no move until five or six Indians were shot down by the whites in cold blood, one of them a cousin of the defendant. Then came the news of the death of Sitting Bull, which was either a war measure or a cowardly murder. Then came the battle of Wounded Knee."
