E 93 .143 2nd ser. no. 22 39031027481100 The Attorney-General and seven Indian policemen of Cheyenne River Agency : a case where to serve faithfully came near meaning the gallows DOES NOT CIRCULATE [No. 22 .—Second Series, 3000.] Indian Rights Association, 1305 Arch Street, Philadelphia, March, 1895. The Attorney-General and Seven Indian Police¬ men of Cheyenne River Agency—A Case where to Serve Faithfully Came Near Meaning the Gallows. No men have rendered more faithful service to the Govern¬ ment of the United States in our western country than the members of the native Indian police force, which on most of the agencies has been organized to serve as a constabulary, under the orders of the Indian Agent. These men have proved them¬ selves susceptible of thorough discipline, they have shown a remarkable sense of responsibility, and in no case known to us have they betrayed their trust. Where commanded by a strong- superior, in whom they could have confidence, they have often shown distinguished courage—even heroism. The case of the arrest of Sitting Bull during the Sioux outbreak of 1890, where seven Indian policemen heroically sacrificed their lives in the defence of the Government, will come to mind as a pertinent illustration of the truth of this claim. That another seven out of this native force,—to which we must look for preservation of the peace of the border,—should have narrowly escaped death for fidelity to duty, not at the hands of crazed fanatics of their own race, nor in honorable battle, but by the machinations of the very Government they served, and by the ignominy of the 93 I*f3 N 3.ni c Jla • flO • nncmN COLLEGE 3 9031 027 48110 0 hangman’s noose;—for coming very close to such a ghastly paradox as this, we must thank an Attorney-General of the United States! It might naturally be supposed that in this statement we did Mr. Olney an injustice, but an examination of the facts of this remarkable case will make it clear beyond contradiction that upon him principally must rest responsibility for a wholly uncalled for and cruel legal process, which, if suc¬ cessful, would have taken the lives of seven faithful men, and, which, though it happily resulted in failure, has nevertheless put the Government to great expense, which will cost the Indian Rights Association a large sum, and has impoverished the un¬ fortunate victims of the scheme. Had Mr. Olney acted in ignorance of the facts, or upon mis¬ representations of legal subordinates, whose malicious purpose he had not the means of discovering, we should regret the matter as a misfortune, but should attach no personal blame to him. But the action which he authorized against these Indian policemen was taken in spite of a respectful and courteous statement of the facts of the case made to him by the Com¬ missioner of Indian Affairs, through the Secretary of the Interior; it was persisted in, notwithstanding the fullest per¬ sonal explanation of the equities of the case made by the Agent of this Association, Mr. Francis E. Leupp. The Attorney- General’s conception of his official duty in the matter seems to have led him to determine to procure a conviction of the un¬ fortunate Indians, if the machinery of the law could be forced to accomplish that result, though the well authenticated facts of the case, justice and public policy, clearly forbade such action. This pitiful story can, perhaps, best be given by publication of a series of appeals and letters, in which it is narrated chrono¬ logically. The following explanatory letter was to have been sent to influential correspondents when it seemed as though the MAR 1 0 2000 3 only way to save the Indians was to ask the President, in case of their conviction, to pardon them : — Dear Sir : The Rev. Edward Ashley, Episcopal Missionary on the Chey¬ enne River Agency, S. D., has appealed to the Association for aid on behalf of three Indian policemen who under orders from their Agent undertook to arrest a white “ squaw man,” named Fielder, and in the melee which resulted from his resistance, shot him dead. The facts of the case are as follows: In March, 1893, these policemen were sent by the Indian Agent to arrest Fielder for a most brutal assault on his Indian wife. Fielder resisted arrest, and attempted to kill some of the policemen, who shot him in self-defence. An informal inquest was held by the Agent, and the jury summoned found that “Fielder came to his death from pistol shots fired by the U. S. Indian Police—firing done in self-defence, while Fielder was resisting arrest and attempted to kill some of the police.” The Indian Agent made his report to the Department. All the papers in the case were referred by the Secretary of the Interior to the Attorney-General, who directed the U. S. Dis¬ trict Attorney for South Dakota to cause a thorough investi¬ gation to be made, and wrote back to the Secretary of the Interior: “As the matter is presented, it would seem that the killing was done in self-defence, but I agree with *you that so serious a thing should not be passed without inquiry by the Courts.” The District Attorney for South Dakota reported to the Attorney-General— “As soon as I learned of the killing of Fielder, I investigated the matter, and although I was satisfied that the Indian police had not been guilty of any crime in connection with Fielder’s death, I thought that a judicial investigation ought to be had, and accordingly had all the Indian police concerned arrested 4 and brought before a Commissoner. On the hearing before the Commissioner, the defendants were bound over to await the action of the Grand Jury, which convened at Pierre on March 28. The case was there presented to the Grand Jury, and, after a thorough investigation, a return of * No bill found ’ was made. In my judgment, no blame can be attached to the Agent, and none to the Indian police, except, perhaps, that they were too hasty in their action.” In transmitting this letter to the Secretary of the Interior, Attorney-General Olney remarked— “ You will observe that the matter was investigated by the Grand Jury and no bill found, since it appeared that the killing was done in self-defence.” This was in the Spring of 1893. Nothing more was heard of the matter until November 26th, 1894, when a deputy marshal visited the Cheyenne River Agency and arrested three of the Indian police concerned in the Fielder fight. He took them before U. S. Commissioner Hoover at Gettysburg, S. D., who held them for the action of the next Federal Grand Jury at Dead- wood, to be held in February, 1895. In the meantime Agent Lillibridge had given place to a new appointee, Mr. Coucnman. It appears that the latter after an investigation of the affair was entirely satisfied with the action of Mr. Lillibridge and with the position of the Indian police in the Fielder matter. In report¬ ing, on November 29th, last, the arrest of his police, he wrote * to Commissioner Browning— 11 I would respectfully state that this revival of a matter that has already been investigated and presumably long settled by the civil authorities, has anything but a good effect upon the affairs of this Agency. The policemen who are involved in this most unfortunate case are the best men I have on the force, and always cheerfully and promptly obey their orders, and are very careful not to go beyond them or exceed their authority in any way.” 5 The Washington correspondent of the New York Evening Post, in referring to this matter says (March 7th, 1895)— “Any one who knows the Indian country, the Indian charac¬ ter, and the service of the Indian police, need not be told that Mr. Couchman had undoubtedly the right view. At the Depart¬ ment of Justice, however, knowledge of these conditions is ex¬ ceedingly scarce. It seems to have been enough for the Attorney- General that a new Democratic District Attorney, who from all accounts was a gentleman of the strictly South-Dakotan frontier type, had found it convenient to satisfy the cravings of a popu¬ lace always ready to condemn a 4 -Indian’ with or without a hearing, by raking up a matter nearly two years old and dragging the defendants nine hundred miles to a court when there were three very much nearer. Federal courts are held at Pierre, fifty- five miles down the river from the Agency; at Aberdeen, one hundred and twenty-five miles distant by rail; and at Sioux Falls, about two hundred and twenty-five miles away. But Deadwood, nine hundred miles from the spot where the homicide occurred, was chosen as the one place in the State for subjecting these men to trial by ‘ a jury of the vicinage’ ! “ Besides the three first arrested, the remaining four were brought in later. The Agent was resolved to see his police through their trouble, and Commissioner Browning cordially approved his course, directing, by authority of Secretary Smith, that proper counsel should be procured, as the poor fellows on trial were without means to employ any. The court appointed two local lawyers to defend the accused without pay, but what further assistance the agent was able to procure has not yet been ascertained. It is supposed that the trial is now on. “In a report to the Commissioner, under date of February 22d, Agent Couchman wrote: — “ ‘.I cannot too strongly represent the moral effect of forcing these police to stand trial for an act which they consider but the performance of their duty. Their ideas of the workings of our courts will not be improved if they are thus harassed and perse¬ cuted, and the good order and discipline of all the Sioux reser¬ vations will be prejudiced thereby.’ “This appeal, together with evidence laid before him that the 6 Grand Jury had found their indictment upon an insufficient inquiry into the facts, induced Commissioner Browning to ask to have the case nolle-prosequied. The Attorney General was unwilling to make such an order. In response to an inquiry from the Evening Post 1 s correspondent as to why he had per¬ mitted the case to go to trial, he said: ‘The District'Attorney reported to me that he believed he could now secure a convic¬ tion, and I wired him to go ahead.’ When asked whether it would not have been consistent with his duty to look into the merits of the case before authorizing the District Attorney to proceed, he answered that the Indian Office had made a repre¬ sentation of the case to him, but he did not feel justified in ordering a nolle pros, when his District Attorney was on the spot and presumptively knew what he was about. He had no explanation to offer of the reason why these Indians should be taken 900 miles away from their reservation when there were three other courts within vastly easier reach, nor had He any¬ thing to say in response to the reminder that Deadwood juries are notorious for their disregard of an Indian’s rights where a white man is in any way concerned. “If the accused Indians are found guilty on insufficient testi¬ mony and any harm comes to them, we are likely to see another and very serious upheaval in the Sioux country. Not only will the Indians generally be incited to a race war, but both Indians and lawless whites will be impressed with a contempt for the Indian police service, feeling sure that they can commit any sort of offence with impunity, because they will have only to resist arrest with violence and then go to see their would-be captors punished by the Federal courts. If all this comes about, Mr. Olney may feel justified, toward the latter end of his official career, in looking more carefully into the merits of a case before turning the judicial machinery of the Government against its own generally faithful servants.” In a letter written by the Rev. Mr. Ashley from Deadwood, S. D., under date of March 6th, he states: — “ I have always taken the ground, from the evidence, that the Police did their duty in this matter. Afterwards when they 7 were taken before the U. S. Commissioner at Pierre, he took the same viewof it, though, to quiet all parties concerned turned them over to the Grand Jury. They found no bill against them and they were discharged. It is not presumed that they have found new evidence, and hence have summoned men from For¬ est City, who now claim to know everything about the case, claiming to have seen the transaction through a field glass. In¬ deed, they know more than those of us who were right there, and knew all the facts. * * * The friends of the police believe that the present move is a scheme to make money. They have nineteen witnesses, and of these only one or two know anything, and they, I think, will testify as much for the defence as for the prosecution. Some of us were summoned here, as we supposed, to testify before the Grand Jury, but we were not allowed to do so. The Indian witnesses who testified before the Jury had their statements interpreted by the half-breed, above mentioned, in¬ stead of by the official interpreter. This was done at the in¬ stance of the District Attorney.” “When we first came here we tried to have the Indian Department ffirnish money for the defence, as the attorneys we applied to would not take the case for less than $1,000, but the Office could not. We then succeeded in having Judges Burns and Bennett appointed by the Court, on our paying them $200 as a retaining fee. This I paid them myself. Recently the attorneys desired us to obligate ourselves for a further amount. * * * * Your telegram came opportunely, and while I have not told them just how much the Association would furnish, I have informed them that it would help. They are good attorneys, I think, and will, I believe, be earnest in their efforts to secure an acquittal.” On receipt of this information a telegram was sent to Mr. Ashley stating that this Association would be responsible for securing competent counsel to defend these Indians, as they were wholly without means to procure it. That the lives of these policemen should be imperilled through a faithful performance of their duty is outrageous, and calls for a most emphatic protest from all lovers of justice. 8 t Should the case be decided against the Indians, every effort will be made to secure a pardon from the President. • A petition is now being prepared for such use, if necessary, and copies will be sent you shortly. I trust you will do all in your power to secure the signatures of influential men and women to this peti¬ tion and return it to this office at your earliest convenience. Very truly yours, Herbert Welsh, Corresponding Secretary . The foregoing statement was prepared when the lives of the Indian police were in imminent peril. Had a verdict of guilty been rendered against them, the efforts of this Association would have been directed toward obtaining a pardon from the Presi¬ dent, which the circumstances of the case, in our judgment, would doubtless have secured. Just as this appeal was about to be issued information was received by telegram from Mr. Ashley stating that five of the Indian police were acquitted and two were held to answer charges for assault “with intent to do great bodily harm.” Since then the following interesting letter has been received from Bishop Hare, which sets forth more recent developments in this important case. The Indian Rights Association guaranteed compensation for the attorneys whom it was necessary to engage for the defence of these accused Indians. The circumstances of the case fully warranted such an expenditure on our part, though the tax upon our resources is a severe and unusual one. We could not stand by silent and see officers of the government put in peril of their lives for doing their plain duty to the Government, without ex¬ erting ourselves to the utmost to save them. In this we have succeeded. What judgment an intelligent public opinion, cog¬ nizant of the facts, should pass upon those other officers of the Government whose deliberate action thus imperilled the lives of 9 these humble men, we do not pretend to say. That must be de¬ termined by the court of public opinion itself. It is not the first time that this Association, which acts simply as a represen¬ tative of sound public sentiment and of Indian Rights, has been obliged to pay bills which, under any fair moral interpretation, should have been paid by the Government itself. “Sioux Falls, S. Dakota, March 19, 1895. “My Dear Mr. Welsh:— “ Mr. Ashley spent last night here on his way home from the trial of the seven Indian police. “The police came off practically victorious, the verdict dis¬ charging five, and holding two on a minor charge, ‘ assault with intent to do bodily harm,’ of which it is doubtful whether any- thing can be made. “But it was a prolonged and desperate contest, and heavy as is the burden which will fall upon the Indian Rights Associ¬ ation, viz., $700.00, I feel that the emergency justifies it. * * * * The case had been investigated in 1893, under the late U. S. District Attorney, W. B. Sterling, a man of high ability and standing in his profession. * No bill was found/ and Mr. Sterling reported to the Attorney-General, ‘ In my judgment, no blame can be attached to the Agent, and none to the Indian police, except, perhaps, that they were too hasty in their action.’ “ Why was the case not allowed to rest ? “It excited indignation and alarm among certain classes; for, if Indian police under order of a U. S. Agent were justified in arresting Fielder, even if in the effort his death ensued, then “ (a) White men could be arrested by ‘-—- ’ Indians, a proposition most obnoxious to a certain class of the border population. “ (£) Then there was a power that could reach a certain par¬ ticular class of Squaw men. Many Squaw men are quiet, ex¬ cellent men ; but there is a drinking, lawless, almost desperate class, who, in their retreats on Indian Reservations, distant from settlements, think they can there violate law out of reach of the operation of ordinary justice. IO “The case of Fielder, who was a man of this class, alarmed these men and rallied them in an effort to down the Indian po¬ lice. No wonder. “ But many do wonder why it was that such a cause was taken up with such alacrity and zeal by the representatives of the De¬ partment of Justice. “ A reliable gentleman who was frequently present during the proceedings writes me as follows, and I know he does not stand alone in the opinions which he expresses. “ ‘ The trial of the Indian Police is over. Five are acquitted, two held on some minor charge; the opinion seems to be that these latter two will be set free. Mr. Ashley has worked inces¬ santly, and I have not the slightest doubt that had he not been on the ground all seven of the police would have been convicted of murder. There was nothing that was not done to vex and insult him; there was no little, mean, contemptible, underhanded trick that was not resorted to in order to convict the men. All these matters you will talk over with Dean Ashley, but the half will never be told. We have been very sad for fear of what might happen to those poor fellows at the hands—(not of the public, not of the sentiment of the public—for every one I have heard speak of it has expressed the same view and belief; ‘ they are policemen, and they did their duty, and we should like to see a few more of these Squaw men run down. It is they who create all the trouble on the reservations’)—but at the hands of such men as Miller and Van Buskirk, who regard neither honor nor sincerity, who stop short at nothing (no, not even seven quiet, orderly, faithful men’s lives ) that they may gain their point.’ “ ‘ It is time the Government of these United States provide military courts-martial for the trial of such men as these, who are her most efficient military force in these Indian countries, and not expect them to do their duty, and, after doing it, have to spend every dollar they have to save their necks. *These men should be especially commended for their loyal obedience to orders and assured in the future of loyal support of the Govern¬ ment. Unless this is done, who is to live in this country? What assurance is there of protection to those who live near reservations ? ’ “In the same line as the evidence of this letter falls the fol¬ lowing which I clip from a Deadwood paper and which also ap¬ peared in a telegram to the Argus Leader of Sioux Falls:— “ ‘ When the jury in the Straight Head et al. case returned its first verdict, yesterday, finding five of the defendants not guilty, and two, Straight Head and Scares the Hawk, “guilty of assault with intent to do great bodily harm,” it was found by the court to be defective in form, and the court directed the United States attorney to draw the verdict up in due form. Assistant United States Attorney Van Buskirk performed the task, and it was handed to the jury. The jury retired, and the foreman was about to sign the verdict when it was discovered that instead of finding the two defendants guilty of assault with intent to do great bodily harm, as the first verdict read, the attorney had made it read “guilty of assault with intent to kill.” This attempt at sharp practice and imposition upon the jury aroused a very just storm of disgust and indignation in the minds of the jury, and had the case not been already passed upon, a speedy and total acquittal would have resulted. “ ‘The spurious Van Buskirk verdict* was handed to Judge Burns, with the suggestion that it be presented to Judge Dundy, and this will probably yet be done. “ ‘The importance of the change attempted by the govern¬ ment attorneys will be apparent when it is understood that as¬ sault with intent to kill is an offence under the Federal statutes punishable by imprisonment in the penitentiary, whereas assault with intent to do great bodily harm, as intended by the jury, is probably not punishable at all by any law of the United States. The inference seems fair that it was supposed the jury in their anxiety to be discharged from the case, would sign the verdict hastily and without noticing the change. If such was the case it was unworthy the attorneys for the government.’ “ Very sincerely yours, “ W. H. Hare.” * Mr. Ashley saw this verdict: —W. H. Hare. *' . V. ; . ■ ' ' *. • , » ,* . . ■ . * * . , ^ '4 I