January 14 was supposed to be the hanging day in 1884 for the Sioux Crow Dog — but instead of being executed he was busy making caselaw.
A sub-chief of the Brule Lakota, Crow Dog on August 5, 1881, met — intentionally? — the tribal chief Spotted Tail on a road in the Rosebud Reservation and shot him dead with a rifle.
The killing was adjudicated the very next day within the Brule community, at a council where the killer and the survivors of his victim agreed together on the appropriate compensation, and paid up.* But the U.S. Indian agent on the scene also arrested Crow Dog a few days later, and had him tried for murder in a non-Indian court in the the frontier town of Deadwood.
Condemned to death early in 1882, Crow Dog had various appeals, respites, and delaying actions that stretched the case out for nearly two years until the U.S. Supreme Court at last stepped in ahead of a scheduled January 14, 1884 execution to adjudicate the question of whether a murder within a tribe, on that tribe’s own reservation, was within the proper jurisdiction of non-Indian courts like the one that tried Crow Dog. Its Ex parte Crow Dog resoundingly answered in the negative, a milestone in the legal framework around Indian sovereignty in the U.S. To execute Crow Dog under the white court’s verdict, the justices ruled, would require Anglo law to be
extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man’s revenge by the maxims of the white man’s morality.
The legal doctrine at work here holds that although conquered, native tribes still possess internal sovereignty. And with Ex parte Crow Dog it became clear and settled American jurisprudence that one attribute of that remaining sovereignty was plenary — that is, absolute — power over purely internal affairs.
At least, for a year.
White America was discomfited by the abrogation of its morality-maxims over the revengeful red man, and the situation invited moral panic around any malfeasance in Indian country. The Washington D.C. Evening Star would complain months later (June 5, 1884) that Ex parte Crow Dog “has had the effect of creating the idea among the Indians that there is no law to punish an Indian for a crime committed on a reservation.” And the Supreme Court itself had slyly noted that it was obliged to make such rulings absent “a clear expression of the intention of Congress” to take a bite out of Indian sovereignty — an intent “that we have not been able to find.”
So in 1885, the U.S. Congress decided to express that intent and voted the Major Crimes Act placing Indians under federal, not tribal, jurisdiction for seven major types of crimes — including, of course, murder. “We all feel that an Indian, when he commits a crime, should be recognized as a criminal,” Michigan Congressman Byron Cutcheon urged on the legislation’s behalf. “It is an infamy upon our civilization, a disgrace to this nation, that there should be anywhere within its boundaries a body of people who can, with absolute impunity, commit the crime of murder, there being no tribunal before which they can be brought for punishment.”
This briefest interim between Ex parte Crow Dog and the Major Crimes Act was in a sense the high water mark for tribal sovereignty. Following the Major Crimes bill, white politicians began almost systematically reaching onto the reservations to legislate, picking away at tribal sovereignty until another much more infamous case, Lone Wolf v. Hitchcock, disastrously declared that plenary power now resided in Congress.
* The price was $600, eight horses, and a blanket.
** Sidney Harring in “Crow Dog’s Case: A Chapter in the Legal History of Tribal Sovereignty,” American Indian Law Review, Vol. 14, No. 2 (1988/1989) — also the source of the preceding footnote.
In the 1870s, the illegal settlement of Deadwood, South Dakota attained pride of place among Old West frontier towns, complete with vigilante justice, lethal gunfights, and lucrative brothels.
Yet even though it was the source of South Dakota’s first legal hanging — Wild Bill Hickok’s murderer Jack McCall, who swung in Yankton — Deadwood itself did not play host to a proper judicial execution until this date in 1882.
The unhappy subject of this occasion? James Gilmore, a surly and perhaps deranged Ohioan who had senselessly gunned down a Mexican fellow-laborer named Bicente Ortez when both men were driving wagons on the Pierre-Deadwood route. Gilmore got upset when Ortez spooked his oxen, waited until the teams made camp that night, and then walked up to Ortez during dinner and shot him in the arm.
As the startled Ortez tried to flee, Gilmore pumped three more shots into his back.
(This was near Deadman’s Creek. How trite.)
Anyway, Gilmore’s ox-driving companions might have disliked Ortez themselves because they gave Gilmore a horse and a few bucks and, while his mortally wounded ex-comrade lay painfully expiring all the night long, let the shooter flee into the wilds. He’d be captured only months later, still driving livestock for some ranch.
“Is it for killing that son of a bitch Mexican?” he asked the marshals, incredulously.
(The prosecutor would close his trial with a charge to the jury that “in this land of the free, every man, regardless of color, creed, or other station in life was equal before the law, and the law protected with its folds, the plebian as well as the millionaires, and it knows no difference between the bull-whacker and the bonanza king.”)
Gilmore was convicted of murder and sentenced to die in the autumn of 1881. However, the offender’s advocates pushed his appeals all the way to the U.S. Supreme Court. According to the Cincinnati Daily Gazette (Dec. 16, 1882), whose interest in the case derived from Gilmore’s nativity in Steubenvile, Ohio,
It is the opinion of many who knew him best, that James Gilmore had not a mind sufficiently well balanced to make him responsible for the terrible deed for which he was sentenced. Many stories are told of his strange freaks when a child (he is not yet twenty-two years old), which shows that he was of a very irritable temperament. At one time, fancying himself insulted by a citizen of this place [Steubenville], he attempted to shoot two fine horses belonging to the offender, with a small pistol… At another time he set the school building on fire and then placed himself in the most dangerous position he could find. He would frequently run away from home, and was found once by a brother, who is an officer in the United States Navy, in New York City.
Evidently, Gilmore’s non-naval other brother was a lawyer, who was able to corral testimony as to his sibling’s unsound mind from a variety of worthies who knew the unbalanced James in his youth.
But those appeals ultimately failed, as did Gilmore’s father’s simultaneous push in Washington D.C. (since the Dakotas were still federal territory) for executive clemency. Advised by Gilmore’s detractors that the condemned murderer “was a second Guiteau of a most diabolical character,” (Grand Forks Herald, Oct. 28, 1882), President Chester A. Arthur declined to interfere. Arthur was a guy who couldn’t be soft on Guiteaus.
Gilmore never denied responsibility for murdering Ortez, and at his (private) hanging he attributed the whole thing to his “bad temper” ever since his mother died when he was a child.
Elsewhere in the U.S. on the same busy day, Peter Thomas was hanged in Mansfield, La. for murdering a fellow sharecropper in a rivalry over a woman; John Redd was hanged in Seale, Ala., for murdering a woman in the throes of unrequited love; and, a Mississippi gentleman named A. Farkas was to have been hanged for murdering his wife, Emma, except that the execution was respited at the last moment to permit him a judicial appeal — which Farkas eventually won.
Tonight at 10 p.m. local (U.S. Central) time* in Sioux Falls, South Dakota will administer a toxic lethal injection to Eric Robert … with Robert’s complete consent. (Update: Robert has indeed been executed as scheduled.)
Robert will reach the gurney on the greased-lightning legal path, thanks to his own willingness to die.
It’s a mere 18 months since Robert (then serving a prison term for kidnapping) and another convict murdered guard Ronald “RJ” Johnson for his uniform during an unsuccessful escape attempt.
Robert pled guilty, requested the death penalty, and waived his appeals. This phenomenon is surprisingly common; the Death Penalty Information Center’s invaluable executions database classifies over 10% of modern U.S. executions as voluntary. (138 volunteers out of 1,308 total executions as of this writing: Robert will be the 139th and 1,309th)
While many of those abandoned their appeals in despair once they’d been on death row for a while, Robert has shown uncommon clarity of purpose from the very first, and his firm and intelligent resistance to any attempt to intervene against his death sentence has undermined any possible argument that the guy isn’t in his right mind. So far as anyone can tell, he sincerely believes in a retributive criminal justice ethos.
Robert even complained publicly when South Dakota nixed a spring 2012 execution date to conduct the mandatory appellate review all capital cases receive; he wrote a letter to the Associated Press saying that he would kill again.
“Victims of non-capital offenses receive their justice when the perpetrator is placed in custody,” Robert wrote. “Victims in capital cases receive their justice when the perpetrator is executed.” That might indeed constitute a persuasive reason to execute Eric Robert, though the same logic would just as readily dispute the suitability of the death penalty as public policy. It’s invariably justice delayed, after all.
I am free to admit my guilt, as well as acknowledge and accept society’s punishment just as I am free to proclaim innocence in defiance of a verdict. I believe that the sentence of death is justly deserved in any murder and should be carried out … Give the Ron Johnson family their justice, they have been forced to wait too long. I finish where I started — I deserve to die.
The court soon obliged him. With legal interventions seemingly at an end and no reason to expect a change of heart from Robert (who could stop the proceeding at any time by announcing his intent to file additional appeals) his execution tonight appears to be inevitable.
And if legal maneuvering has been light, South Dakota — whose 2007 execution of Elijah Page, another volunteer, was the first in that state since the Truman administration — has not been spared the lethal injection misadventures that have bedeviled American death chambers the country over.
Sodium thiopental, one of the drugs used in the classic three-drug lethal injection cocktail, has become very hard to come by for executions. In 2011, South Dakota was exposed for having purchased a supply of unlicensed thiopental from the India company Kayem Pharamaceuticals.
That led South Dakota to switch its lethal injection process to instead use pentobarbital, again following a nationwide trend. Pentobarbital executions have been subject to their own legal challenges, and in South Dakota such suits have been pushed by advocates for Donald Moeller.
Moeller is the next man scheduled to die at Sioux Falls; like Robert, he’s a volunteer, and he’s successfully rejected the “assistance” of the pentobarbital appeal. If all goes to plan Moeller will die during the week of Halloween: two executions in three weeks for a state where the death chamber went unused for a lifetime.
* See this handy list of the times of day each U.S. jurisdiction conducts its executions. The time is rather unusual; many states have moved away from the stereotypical “midnight assassination” late-night execution in favor of something more proximate to business hours.
** The available public evidence suggests Robert perhaps (and understandably) loathes incarceration; rather than shibboleths about society’s punishment, Robert fought to reduce his kidnapping sentence to bring a potential parole opportunity within his grasp. The escape attempt and bluster about killing people happened after those kidnapping appeals foundered.
In the year of 1902, a couple of young men from Sioux City, Iowa, located on a homestead in eastern Meade county, South Dakota, and there they had built a cabin, fenced their claims and were making great efforts to establish for themselves a home out on the broad prairie. They were fine, industrious and honorable young fellows and at odd times worked among the ranchmen in the neighborhood in order to make the money for their several needed improvements.
In the early days of the west the latch string was hung out and everybody that came to the home of the man on the prairie was welcome whether the hour of coming be day or night.
On the 4th day of June, 1902, William Horlocker came riding into Sturgis upon a foaming horse and reported to the sheriff, John Smith, that the day before upon going to the cabin occupied by the men, George Puck and Henry Ostrander, he noticed that the door was ajar and in walking in he found before his startled eves the evidence of a foul murder and in going to the bed in the room he found it occupied by two forms who were strangely still beneath the covers. He turned the covering down and beheld their faces smeared with blood and crushed in a horrible manner. As investigation by the authorities failed to disclose any immediate clue but on the 6th day of June, 1902, a young half breed Indian had attended a picnic at Whitewood and had passed to one of the merchants in that little town a check for 125.00 drawn upon a Rapid City bank, made payable to Ernest Loveswar and purporting to have been signed by George Puck. The next day the check was returned to Whitewood by the Rapid City bank on the grounds that it was an absolute forgery. The cashier of the Whitewood bank thereupon called up Henry Perkins, cashier of the Meade County Bank at Sturgis, who immediately reported this information to Jesse Brown, acting deputy sheriff. Brown at the time was alone in town as both the sheriff and deputy were absent on other duties and he immediately proceeded to ascertain the whereabouts of the Indian, Loveswar, as he realized the check was an important clue pointing to the Indian as being implicated in the murder. Before he had proceeded very far he was met by Mr. Smith, the sheriff, who was returning from the inquest and who upon learning of the news from Brown decided to rest his horses and proceed out into the country in search of the Indian.
Accordingly Smith and Brown, after a change of teams went to the Smith ranch on the Belle Fourche river, made another change of teams, and then after a night of travelling arrived at the place where they expected to find the man, Loveswar. Here, hiding their team behind some bushes just about sunup they quietly proceeded to the house, each one to take a separate door to prevent the escape of the Indian if any attempt should be made. There happened to be but, one door leading into the kitchen and as they came quietly without warning they greatly frightened the lady who was preparing breakfast. Paying no attention to her screams. Brown quickly moved to an adjoining room where he soon had Mr. Loveswar under arrest as he had left his guns in the kitchen. A close search of the Indian failed to reveal anything that would connect him with the crime. However, the Indian was taken along Avith the two men and a stop was made for a time at the Jewett’s road house where Sheriff Smith, who had not been asleep for two days and nights rested for awhile. While he was resting Mr. Brown did not ask the Indian any direct questions as to his knowledge of the crime but volunteered the information that the party, whoever it was, that had committed the deed made a mistake. The Indian thereupon became interested and asked in what way and Brown replied, “In not burning the cabin.” This had the effect of causing the Indian to appear to be very much occupied in deep study and convinced Brown that he had the right man.
The next day the prisoner was taken to the sheriff’s office in Sturgis and very closely examined and questioned but he denied any knowledge of the crime whatever. He was finally asked where he was on the night of the murder and he replied, “At the Pete Culbertson ranch and that no one had seen him because it was late and he had slept in the barn.” The officers told him that two cowboys slept in the barn that same night and that no one else slept there, and in this way several other excuses volunteered by the Indian were rebutted until finally he weakened, broke down and cried and admitted killing the two men.
In his confession he told that he went to the home of the boys and asked them to permit him to stay all night. They told him to come in and gave him a cot to sleep on and he waited until they were in a deep sleep then he quietly took Puck’s gun from the wall, placed it to Puck’s head and his own gun to Ostrander’s head and then pulled the triggers of both guns at the same time. Then he procured an axe and crushed the skull of Ostrander but spared the head of Puck. After covering the faces of the dead men with the blankets he carried Puck’s gun away, but on the road near a Cottonwood tree he threw it away.
The gun was later picked up by Frank Smith and Doctor McSloy. In due course of time a charge of murder was placed against the Indian to which he entered a plea of guilty but Judge Rice refused to accept the plea and ordered that a regular trial be held. States Attorney McClung introduced the evidence on the part of the State and Michael McMahon appeared for the defendant. The evidence on the part of the State of course was mostly circumstantial and the defendant on the other hand had no witnesses except himself. He took the witness stand and denied everything and claimed that the confession had been obtaind by duress and that he had been annoyed and bothered so that he did not remember what he had confessed to but the fact that he had told where the gun he had taken from Puck might be found and that the gun later was found just where he said it would be, and despite the fact that he explained the possession of the check as being the difference paid to him in a horse trade made with Puck whom he claimed wrote it out in the field, explaining the difference of the check signature and the original signature on file at the bank, the jury after retiring brought in a verdict of ”Guilty” and placed the penalty at death.
Thereafter on the 6th day of August he was sentenced to be hanged on the 19th day of September, 1902.
The sentence was duly carried out on that day before a number of invited officials and within an enclosure erected at the side of the court house. This was the last legal hanging in Meade county.
The Indian made out and delivered to Jesse Brown the following written confession : “I am going to write just what I have done in this matter, just the truth so that you all may know. Well, I had a quarrel with Ostrander. I come pretty near having a fight with him. It was about a girl but I will not tell who the girl was but he said he would take her away from me. I waited to get him alone but they were always together so I had to kill both of them. I had nothing against Puck. Well, I went to that house about dark. They said, ‘Stake out your horse and come in.’ I did just that and went to bed. When they were asleep I get up and take Puck’s gun off the wall, held guns in each hand, placed one to Puck’s head and one to Ostrander’s head and pulled both triggers. The thing was done. I ain’t got time to look things around the house. I looked for money but found none, I get blank checks and gun. Now this is all.”
On this date in 1894, Sioux Chief Cha Nopa Uhah (“Two Sticks”) was hanged in Deadwood, S.D., for instigating the murder of white ranchers on the Pine Ridge Reservation.
The story begins little more than two years after one of the most tragic and emblematic events in the white conquest of North America — Wounded Knee:
By early 1893, the “Ghost Dance” religious movement that had animated the Lakota people had not disappeared … nor had the futile dream of armed resistance to white domination.
A band under Chief Two Sticks, a leader described as resistant to settled white civilization and inclined towards retaining the traditional nomadic life, raided a white cattle ranch. The raid was not deadly, but its consequences were.
Indian police dispatched to arrest the raiders were killed in a shootout, after which the raiders again attacked the ranch — looking this time for men, not cattle. Four white cowboys were killed.
A number of additional Indians died when tribal authorities deployed in force to stop Two Sticks’ followers, perhaps narrowly averting much worse — as it’s a given that federal authorities would not have countenanced Two Sticks’ continued liberty.
The chief himself was severely wounded in the process, and only after a lengthy recovery was he well enough to stand trial in the white men’s courts in Deadwood.
His last words, according to an impressive HistoryNet retelling of Chief Two Sticks’ tale with a great deal of detail about his last hours (including an attempted suicide, so that he could die by Indian hands), denied responsibility for the violence.
My heart is not bad. I did not kill the cowboys; the Indian boys [meaning White Faced Horse, Fights With, Two Two and First Eagle] killed them. I have killed many Indians, but never killed a white man; I never pulled a gun on a white man. The great father* and the men under him should talk to me and I would show them I am innocent. The white men are going to kill me for something I haven’t done. I am a great chief myself. I have always been a friend of the white man. The white men will find out sometime that I am innocent and then they will be sorry they killed me. The great father will be sorry, too, and he will be ashamed. My people will be ashamed, too. My heart is straight and I like everybody. God made all hearts the same. My heart is the same as the white man’s. If I had not been innocent I would not have come up here so good when they wanted me. They know I am innocent or they would not let me go around here. My heart knows I am not guilty and I am happy. I am not afraid to die. I was taught that if I raised my hands to God and told a lie that God would kill me that day. I never told a lie in my life.
On this date in 1882, Thomas Egan was hanged in Sioux Falls in the Dakota Territories (present-day South Dakota) for strangling his wife, Mary.
It took three tries to get the hanging right … and it still turned out they got it wrong: years later, Egan’s stepdaughter copped to the crime on her deathbed.
Egan was the first man hanged (.doc) by state officers in the Dakota Territory; earlier, Jack McCall had been executed there by the feds.
Let’s start with the twice-botched hanging, whose can’t-look-away horror can hardly be improved from its original coverage by The Chicago Tribune (picked up elsewhere as well — such as The Alexandria Post of Douglas County, Minnesota):
A HORRIBLE AFFAIR.
The Execution of Thomas Egan, the Wife Murderer, at Sioux Falls, Dak — The Drop Fails Three Times Before the Culprit is Deprived of Life, Owing to Rotten Ropes.
On Thursday, July 13, occurred at Sioux Falls the first judicial hanging ever done in the territory of Dakota. Nearly two years ago Thomas Egan, who suffered the death penalty, most foully and cruelly murdered his wife, with whom he had lived for nearly a quarter of a century. From evidence produced at the trial it would appear that they had frequent quarrels which at length culminated on this fatal morning in her death. He deliberately sent the children away, and while she was washing dishes at the table came behind her, and after throwing a rope around her neck and strangling her, pounded the life out of her with a club. The body was then thrown through a trap door into the cellar, where it was found three days after, horribly mutilated. The skull was fractured and the head was covered with frightful gashes made by the club. It appeared also as if she were not dead when thrown down, as she was discovered partly reclining against the call [sic] of the cellar, which added to the horribleness of the crime. Eagen [sic] was arrested and tried, and although there was every effort made by his attorneys to save him; he was convicted and sentenced to be hanged at Sioux Falls by Judge Kidder of the Fourth judicial district of the territory.
On Thursday, 13th, after eating a hearty breakfast, hearing the sentence read, and some religious exercises by a Catholic priest, Eagan [sic] was taken to the gallows. All eyes were intently fixed on the prisoner. His face was somewhat pale, but his lips were firm and he seemed to exhibit no sign of fear. He was a straight, heavy-set man, weighing 180 lbs., with a retreating forehead, heavy projecting eyebrows and an ugly looking eye. His general appearance was far from prepossessing. He was dressed in a plain black suit, with clean white shirt, collar and tie, and low shoes. He walked straight up to the platform to the scaffold, taking his place on the fatal trap, turned around and faced the crowd below. The sheriff now asked him if he had any thing to day [sic], but his lips still were kept sealed to his secret, and he shook his head and answered in a low voice, “No.” His legs were now tied, he himself assisting the officer by placing his feet close together. The black cap was put on his head, but not a limb quivered. The noose was adjusted and the fatal moment had come. While the priests were chanting their solemn service, and while the attending officers and crowd were holding their breath in silence, the sheriff touched the trigger which alone kept Thomas Egan from his death. There was a crash as the door flew back against the boards and body, deprived of its footing, shot through the door, and now, horror or horrors!
The rope snaps like a piece of thread, the body drops to the earth with a dull thud, partly on its back, and rebounding rolls over on its face. The crowd are paralyzed with astonishment and fear. An unearthly gurgling sound now breaks forth from the prisoner. His neck is not broken, but the cord is wound tightly about it and he is strangling. A half a dozen men now rush forward, one seizes him by the arm, another by the leg, another by the waist, another by the head. It is seventy-five feet from the ground, where he has fallen, back to the jail-door, and around to the platform of the scaffold he is hurriedly conveyed through the crowd, the broken rope in the meanwhile dangling from his neck, while his horrible groaning strikes terror to the bystanders. Once more on the scaffold, another rope is adjusted and the sickening details once more gone through with, the trap falls again and the half dead man drops once more; but worse. The rope was not fully adjusted before the excited sheriff again touched the trigger and down the body goes a second time but not with sufficient force to accomplish the desired result.
His neck is still unbroken, and the slow process of suffocation is all this time going on. The attendants seize him by the arms and again pull him on the scaffold while the death struggle continues. The first rope is flopping from his neck and he still has life enough, so one says who was on the scaffold, to brace his feet for the third and last fall. If at this juncture some one had mercifully stepped up and put a bullet through his head, it would have been an act which would have certainly been appreciated by the crowd. The rope is finally fixed, the door drops once again, the man shoots down, and there is a snap which is heard all around the yard and outside. There is a shrugging of the shoulders, a twitching of the legs a convulsive shudder and all is still. The body swings slowly around. There is no motion of leg or arm or muscle, and in eight and one half minutes the doctors pronounced him dead, and shortly after the body was taken down. Yes, he is dead at last, and the sightseers heave a genuine sigh of relief. The corpse is now cut down and the pinioned arms and legs released. The dirt was brushed from the clothing and body laid in a coffin, where it was afterwards viewed by the crowd, both outside and inside the jail. The effects of the strangulation were fearfully evidence about the neck. The first cord had embedded itself, but the action of the heart had forced the blood under it and the flesh was swollen, purpled and discolored. There was a sightless stare to the eyes and blood was flowing out of the corners of his mouth. After all those desiring had seen the corpse it was boxed up, and early in the afternoon it was taken to the Catholic burying-ground where it was buried, and with it the club and cord with which he killed his wife.
Nobody in a position to help Egan knew he hadn’t “most foully and cruelly murdered his wife” or that “the horribleness of the crime” stained some other’s soul, of course … but one wonders how the writer thinks he did know it. The obscure considerations of jurymen might well be the most virtuous structural safeguard of the Republic, but as a dependable compass of fact, one might as well scry the entrails of a sacred ox.
It has always seemed misfortunate to the Headsman that journalists prone to the most tedious wheedling over the use of the qualifier “allegedly” to uphold the principle of innocent before proven guilty consider the epistemological certitude of a juridical conviction sufficient to abandon full stop the (admittedly inelegant) qualifier and speak of Revealed Truth. The New York Times would hardly think to make apology for flatly calling Egan — who did keep his peace about the verdict — “the wife murderer”:
… any more than the San Antonio Express-News would regret the assertive headline “Father who killed 3 is executed” mounted atop an article reporting the executed man’s continued insistence upon his innocence. Any good scribe frets more readily about column-inches and legal ass-covering than bickering and arguing over who killed who. But shame if not stylistics merits less awe before the particular sausage-making of the judiciary when such modern cases too turn out to have been cock-ups from start to finish.
McCall‘s grievance against Wild Bill remains unclear, which seems no less than properly atmospheric. One version has him losing at cards to Hickok the night before the murder, then humiliated to accept Hickok’s charity for his evening meal. Since Deadwood sprang up on Lakota Sioux land in defiance of treaty obligations and thus was an outlaw settlement without legal oversight, McCall might also have been engaged by another party to eliminate the town’s de facto source of law further to some private profit.
That speculation gains some circumstantial support from the surprising proceedings the following day. An impromptu “miner’s court” acquitted McCall — the defendant claimed to have been avenging the murder of a brother who does not seem to have ever existed at all — of a murder they plainly knew he committed. This obliging verdict prompted a newspaper to remark,
Should it ever be our misfortune to kill a man … we would simply ask that our trial may take place in some of the mining camps of these hills.
McCall made for Wyoming, but couldn’t resist boasting of his famous crime, which was known to have graduated into a fair gunfight in his retelling. The times and the lands were unsettled enough that with an ounce of discretion he might have vanished. Instead, his loose lips got him nabbed by a federal marshal and extradited back to South Dakota — where he learned that the miner’s court verdict of an illicit settlement didn’t count as a legal acquittal for purposes of double jeopardy.
Like the reason for his one memorable act, McCall was an obscure character; his background was uncertain even when he lived. It was only through his victim that he left an imprint: he certainly elevated the legend of Hickok, whose cinematic demise also bequeathed to the arcane poker argot the term “dead man’s hand” — a pair of aces and a pair of eights (or more specifically, the black aces and black eights; the fifth card is uncertain) — after the last hand of cards Wild Bill ever held.
A sub-chief of the Brule Lakota, Crow Dog on August 5, 1881, met — intentionally? — the tribal chief Spotted Tail on a road in the Rosebud Reservation and shot him dead with a rifle.
Robert will reach the gurney on the greased-lightning legal path, thanks to his own willingness to die.
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