Native Americans in Court for Murder; 1860s Walla Walla

Native Americans in Court for Murder in 1860s Walla Walla
By Dale Raugust

The Cases

Sha-poon-Mash was said to be stoically indifferent when the finding of guilty was called out by the jury of 12 white men in Walla Walla County. When asked what he had to say to the finding that he had killed a white man named Varble, Sha-poon-Mash looked up at the judge and said in a voice without fear: “Varble laid with his feet towards where the sun rises, his head towards where it sets, and his blood lay upon the ground where it ought to be. The judge then sentenced Sha-poon-Mash to die by hanging. The Judge declared in his written opinion that Sha-poon-Mash was to die sometime between sunrise and sunset on November 20, 1863, and was to be taken by the Marshall to “some suitable place and there to be hanged by the neck until you are dead and may the Great Spirit have mercy on your soul.” Sha-poon-Mash had been found guilty of the murder of Varble upon a complaint filed by his tribal leaders, John and James Lawyer, Chiefs of the Nez Perce, before Robert Newell, Indian Commissioner for the first Judicial District. (William H. Newell, perhaps a relative, was the publisher of the Walla Walla Statesman). Robert Newell signed a document on April 3, 1863 declaring that Sha-poon-Mash had pleaded guilty to the charge and remanding him over to the First Judicial District court “to be dealt with according to law.” On April 30, 1863, Subpoenas were issued for John and James Lawyer, two other Indians and a Thomas Hughes to testify on May 4, 1863.
At the trial Thomas Hughes was sworn to act as the interpreter for the Nez Perce witnesses. James Lawyer testified that he was camping with his brother John Lawyer, when they decided to go to the Indian Agency to get some food. On their way back their horses had gotten frightened by the smell of blood in the road so they stopped and investigated. They found a hat by the road with a bullet hole in it. They decided to investigate further and found the body of the white man later identified as Varble. Then they saw an Indian over a hill racing away on his horse so they took off after him. They had their best ponies so they were able to catch the Indian who they knew as Sha-poon-Mash. When they caught him they saw that his hands were bloody. Lawyer testified that they accused him of killing the white man but that Sha-poon-Mash denied it, claiming that an Indian named Charley had done so and that he, Sha-poon-Mash, had only taken the dead white man’s bloody clothing. Lawyer said that he and his brother sat with Sha-poon-Mash and smoked a pipe to decide what to do. They discovered that Sha-poon-Mash had a pistol under his belt and believed him to be guilty of the crime. They told Sha-poon-Mash to go to the Agency and file a complaint against Charley for killing the white man but Sha-poon-Mash would not do so as he did not believe that the Indian Agent would believe him.
Thomas Hughes had visited Sha-poon-Mash in jail and was asked by the court if he had had any conversations with Sha-poon-Mash about the incident. He said that he had and reported that Sha-poon-Mash had told him that he had lost a horse and that he spotted the horse through a spy-glass. He went up to the white man on the horse and accused him of stealing his horse. The white man accused him of stealing the spy-glass and took the spy-glass from him. When Sha-poon-Mash demanded it back Varble drew his gun. Sha-poon-Mash and the white man fought over the gun which went off. Sha-poon-Mash ended up with the gun and the white man, Varble, had the spy-glass. Hughes testified that Sha-poon-Mash told him he stepped back from the man and offered to give him back his gun if the man returned the spy-glass to him. Instead the man pulled a knife. Sha-poon-Mash said he got mad and fired two shots at the white man hitting him twice in the head. Hughes said that Sha-poon-Mash took $20.00 from the body and dragged the body to a less traveled low place off the road so that the body would not be found.
After Sha-poon-Mash was found guilty by the jury of first degree murder the foreman of the jury signed a statement indicating that they did not believe that the crime was one of first degree murder but that it should have been manslaughter instead, but that they believed to have no option other than to find him guilty of murder or acquit him. They did not want to acquit him so they found him guilty. A motion for a new trial was filed by the defendants’ attorneys on May 11, 1863. At the same time a motion to dismiss was filed based upon lack of jurisdiction as the crime had occurred on the Nez Perce Reservation and allegedly outside the jurisdiction of the District Court of the First Judicial District. Other errors were also assigned by defense counsel including the absence of a member of the jury during crucial testimony. Meanwhile the defendant was sentenced to be hung. The lower court denied the motion and an appeal was filed to the Supreme Court of the Territory of Washington which reversed the conviction and ordered a new trial. The Mandate from the Supreme Court filed in the lower court does not indicate the reasons for the decision dated March 10, 1864, nor does the file indicate what became of Sha-poon-Mash. There was limited newspaper coverage of the trial. The Washington Statesman reported of Sha-poon-Mash’s “stoical indifference” to the charge and his description of how Varble laid in death, the filing of the appeal to the Supreme Court a few days before the November 20, 1863, scheduled execution, and the fact that Sha-poon-Mash remained confined in jail after he was given a new trial. . The trial itself went uncovered. We do not know the relationship between Indian Commissioner Robert Newell and Washington Statesman publisher William Newell or whether the lack of coverage had anything to do with the relationship.
The following year two other Indians were charged with the murder of a white man. On April 4, 1864, Stanislaus and Puk-el-peet-se, (also spelled Pet-al-Pesa in some pleadings), members of the Okanogan Tribe, were charged with the murder of a white man “whose name is unknown to the grand jurors”. This unknown white man was alleged to have been killed on August 15, 1863, by Stanislaus using a pistol, which caused a “mortal wound of the depth of ten inches” and a knife “commonly called a sheath knife to the front of the neck of him…which caused a mortal wound of the depth of five inches.” The killing was alleged to have been committed by Stanislaus. Puk-el-peet-sa was not charged with actually killing anyone but with inciting Stanislaus to do so. Testifying against the defendants were Lieutenant Max Weisendoff and Henry Shettleworth. Both defendants had court appointed counsel. Apparently the jury concluded that Stanislaus did the killing, which the record does not indicate was vigorously contested and that Puk-el-peet-se’s role was limited to the encouragement of the crime which occurred sometime before the crime took place and that he could not be held accountable as an accessory to the crime. Stanislaus was convicted and sentenced to death and Puk-el-peet-se was acquitted.
The only newspaper coverage was on June 3, 1864 in the Washington Statesman. It was reported that on May 20, 1864, Stanislaus was executed and that he declared on the scaffold that the “other Indian” had nothing to do with the killing. The Statesman reported that Stanislaus “manifested no fear and asked that his blanket be left in his cell as he would need it when he returned.” From the April 4th charging of the crime to the May 20th execution of Stanislaus there passed only 6 weeks, an indication perhaps of how swift justice was in the frontier days.
The “Common Theme”
It seems clear that under the federal Indian Intercourse Act of 1834, the United States District Court had proper authority to file charges against Sha-poon-Mash. It was alleged that he had killed a white man and whether or not it allegedly occurred on the reservation, the fact that it was an interracial crime gave the federal government jurisdiction. The conviction was probably overturned on the basis that the trial judge failed to give a lesser included offense instruction which would have allowed the jury to find the defendant guilty of manslaughter instead of first degree murder.
A common theme in both the Sha-poon-Mash and the Stanislaus case is that counsel was appointed to represent the defendants, at a time before the Supreme Court declared this to be the right of citizens in Gideon vs. Wainwright. In the Sha-poon-Mash case counsel took the case to the Territorial Supreme Court and won a reversal. Apparently the defendants were also given interpreters, although in the Sha-poon-Mash case the interpreter was used as a witness against the defendant. There also seemed to be a genuine respect for the law by the jury and a desire to do what was right irrespective of the color of the defendant’s skin. The jury cared enough about the law and it’s application to the facts to convict Sha-poon-Mash of murder but to sign a note to the judge indicating that they believed him to be not guilty of first degree murder, but instead to be guilty of only manslaughter. This set up the appeal. Defense counsel cared enough about their client and the application of principles of justice to appeal the conviction to the highest court in the Territory in order to insure that justice was done. This was court appointed counsel and likely not well paid counsel.
In the Stanislaus and Puk-el-peet-sa case, the jury was able to differentiate between the roles played by two Indian defendants and to apply the facts and the law separately to the two defendants, finding one guilty and acquitting the other, when it would have been easy and convenient to have found both guilty.
From a review of these two cases, it is clear that within the 1860s cultural and sociological environment in which the justice system operated, most of the time justice was done and the jury members took their responsibilities seriously and tried to do what they believed to be the right thing. From the perspective of the Native American the entire process must have been confusing and intimidating, however, it appears that within the limited review of these cases they were treated fairly within the system.
Dated: October 15, 2008
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Dale L. Raugust, History 590


References

Territory of Washington vs. Stanislaus and Puk-el-pett-sa, United States District Court, First Judicial District, County of Walla
Walla, WAL 119

United States vs. Sha-poon-Mash, United States District Court, First Judicial District, County of Walla Walla, WAL 23

Washington Statesman October 24, 1863, 3:1
Washington Statesman, 10-24-1863 3:1
Washington Statesman, 11-14-1863
Washington Statesman, 4-9-1864
Washington Statesman, 6-3-1864 2:2