THE GOINGSNAKE MASSACRE by Tom Rizzo

In the spring of 1872, a posse of ten lawmen from Fort Smith rode into a clearing in front of a schoolhouse in Indian Territory to monitor the trial of a Cherokee named Ezekiel, or Zeke, Proctor—a trial that would turn deadly minutes later.   

Proctor faced charges for shooting at an American named Jim Kesterson and for killing Kesterson’s Cherokee wife, Polly Beck, at the Hildebrand Mill in what is now Adair County, Oklahoma. 

Procter maintained the shooting was an accident.
The details of the February 13, 1872, shooting vary, depending on what account you read.  

According to Cherokee Nation,  Kesterson was married to Proctor’s sister, Susan, and abandoned her. Proctor “discovered that her husband had left her and her children, and they were hungry,” and escorted them to another sister’s home. 

Proctor then headed out to find Kesterson, who moved in with the widow. Beck had been married to Stephen Hildebrand, who owned a share of the mill, and who was killed during the the Civil War.

Whether Kesterson was even married to Susan Proctor isn’t quite clear. 

Cherokee Nation reports that when Proctor found the Kesterson and Beck together, he became enraged and tried to shoot his brother-in-law, “but Polly jumped in the way and was killed by the bullet meant for Jim.”

Another account points out bad blood was already flowing because Kesterson accused Proctor of stealing stock. 

 Hildebrand Mill

Yet another version suggests Proctor may have rode to the mill in his capacity as deputy sheriff in the Goingsnake District to warn Polly Beck to control her livestock, which was straying onto other people’s properties.

Ironically, the two families had once been close. Until the Civil War. The Becks aligned themselves with the Confederacy while some of the Proctors, including Zeke, went to war for the Union.

The shooting triggered a firestorm of political maneuvering involving jurisdictional issues. Indian courts, at the time, handled all legal issues involving Indians, while American courts conducted proceedings of white settlers. 

The Beck family and Kesterson, who survived the shooting, feared the Cherokee court would acquit Procter. 

In an effort to assure justice, the Becks and Kesterson sought help from the local government. 

The Becks vowed that if the courts failed, they were prepared to exact their own revenge. 

The U.S. commissioner issued an arrest warrant stipulating it be served only if Procter won an acquittal. 

What happened next is open to dispute because two different versions exist. 

According to the United States Marshal Service, Deputy U.S. Marshals Jacob Owens and Joseph Peavy led eight deputy marshals into Tahlequah on April 15th. 

They dismounted and started walking toward the makeshift courtroom to takes seats in the rear and await the verdict. 

The warrant specified that if Proctor was acquitted, he and others identified in the warrant would be brought to Fort Smith.

Before reaching the entrance, several armed Cherokees swarmed out of the front door and began shooting at the lawmen. 

With nowhere to hide in the prairie clearing, deputies returned fire, trying to get back to their horses. 

The marshals killed three Indians and wounded about six others.

But Cherokee firepower proved too daunting, and eight marshals fell dead. 

Former agency historian Ted Calhoun called the killings, ”…the worst slaughter of marshals in history.”

Cherokee Nation contends the lawmen didn’t wait for a verdict and charged the schoolhouse where the trial was being held. The posse, “led by the Becks burst in and opened fire…”

The Cherokee court found Proctor not guilty. Although arrest warrants were issued for Proctor and everyone supporting him, Proctor disappeared. Relatives and neighbors banded together to protect from from white authorities. 

In October 1873, the United States District Court dismissed the case of U.S. v Zeke Proctor two months after announcing it would not proceed with prosecution of the others involved in the shootout.

The Cherokee National Council passed an amnesty act in February 1874 preventing legal action against anyone involved in the case. 

Proctor eventually held offices in the Cherokee Nation, including Senator and sheriff, and lived as a law-abiding citizen.  Zeke Proctor is said to be the only single individual to have a treaty with the United States.

_______

Tom Rizzo blames the The Lone Ranger, Durango Kid, Randolph Scott, Tim Holt, and Paladin for triggering his lifelong obsession with the American Frontier—and for convincing him that outlaws must face justice, no matter how many guns they carry or how high the odds. 

A novelist and naturally curious amateur historian, Tom’s new three-volume collection, Tall Tales from the High Plains & Beyond, features dozens of quick-read true stories featuring characters and events of the Old West, crafted with a fictional technique that drops readers into the middle of the action. If you enjoyed the story above, please share it with your friends. And visit Tom's Blog and rediscover the Old West. 

American Indians and the Law, part 2

Troy D. Smith

Last month, in part one of this discussion -you can read it here- I talked about the fact that many of the most significant battles between the U.S. government and American Indians have taken place in the courtroom. Part one ended with Indian Removal, and I plan to eventually discuss, first, the western tribes and then, ultimately, all tribes in the 20th century (contrary to popular belief, reinforced by the fact that most high school and college American history classes never mention native peoples after this point, American Indian history did not end at the Wounded Knee massacre.)

Before I begin that, however, I want to use this space today to mention several important Supreme Court cases that led up to Indian Removal. These three cases in particular are known as the Marshall Trilogy, as all three were decided during the tenure of Chief Justice John Marshall (the fourth Chief Justice, serving from 1801 to 1835.) These cases remain very important, for many of the principles presented in them have provided precedent; much of modern-day American Indian Law is based upon them.

JOHNSON V. M'INTOSH, 1823   The Johnson in question was Thomas Johnson, first governor of Maryland and a member of the first cohort of the Supreme Court. In 1773 and 1775 Johnson bought some land from the Piankeshaw band of Miami Indians. The land was passed down in the family after Johnson's death. Eventually the fur trader William M'Intosh (pronounced McIntosh) obtained a grant for the land from the federal government. The Johnson family went to court to evict M'Intosh off what they considered to be their land.

The Marshall Court ruled in favor of M'Intosh. In his opinion, Marshall traced the history of land ownership where Europeans and Indians were concerned, summarizing the European "law of nations" as articulated in 1557 by the Dominican scholar Franciscus Victoria, to wit: any land without an owner can be claimed by the first person to find it (the "doctrine of discovery".) Since Indians had "no concept of personal property" and did not "use" the land, it was impossible for them to own it; they only had the right to inhabit it. Therefore, the first European power to "discover" land with Indians on it could claim that land, under right of discovery. (And, again according to Franciscus -whose arguments formed the basis, or justification, for Spanish dominance- if the Indians resisted the Europeans taking their land or extracting the minerals from it, it was legally justifiable to kill them, for they were interfering with the Europeans' natural rights.) This doctrine began with the Spanish (Ferdinand and Isabella consulted with lawyers immediately upon getting a report back from Columbus) -who based it on the precedent of taking infidels' lands during the Crusades -and was itself used as precedent by the English when they started colonizing in North America.

According to Marshall, when the United States of America was formed during the Revolution, it thereby immediately took over the English rights of discovery. And since Indians can't own land, Indians can't SELL land to individuals; they could only sign it over to the federal government, per the Commerce Clause of the Constitution. The Johnson family's claim, based on a private transaction with Indians, was therefore void. The federal government took the land from the Miami Indians when they took up arms against the U.S., then transferred it to M'Intosh.

This case continues to be used as precedent, and is usually one of the first cases studied by beginning law students, as it helps provides the basis for land ownership law in the U.S.

I feel compelled to point out the chain of legal events here. American law is built on precedent. Modern-day American Indian Law is based on the precedent of Johnson v. M'Intosh -which was based on the precedent of English law articulated in the early 1600s -which was based on the precedent of Spanish law articulated in the 1500s -which was based on the precedent of medieval church law dealing with the Crusades. So if the government's dealing with indigenous tribes seems outdated at times, remember it is ultimately rooted in the Crusades.

CHEROKEE NATION V. GEORGIA, 1831   In the 1820s, the state of Georgia began agitating for the removal of the Cherokees and Creeks from within their borders. Two decades earlier, Thomas Jefferson had promised federal aid in doing just that in return for Georgia ceding part of its western claims to the U.S., but Jefferson's approach was a very long-term one that did not involve physical coercion. By the late 1820s, Georgia passed several laws that interfered with the Indians' sovereignty, in essence treating them as citizens of Georgia (one of those laws forbade any white person from living with the Indians without obtaining a state license to do so -this was aimed at preventing missionaries from encouraging the Indians to resist giving up their rights.) Georgia's aim was to make the Indians' lives miserable enough that they would leave the state voluntarily.

Cherokee Principal Chief John Ross took the matter to the federal courts, suing the state of Georgia. While the case made its way to the Supreme Court, The Indian Removal Act was passed.

The Supreme Court heard the case, but refused to rule on its merits. In his opinion, Chief Justice Marshall explained that -while referred to as "nations" -Indian tribes were not actual foreign nations. Instead, they were "domestic dependent nations," whose relationship to the federal government was like that of "a ward to its guardian." Therefore, the Cherokee Nation had no right to sue Georgia. This decision did not in itself support Georgia's right to pursue its policies; the Court left open the possibility the case could be heard in the future, just not as a foreign nation suing an American state.

This, too, laid the groundwork for all American Indian Law to follow, establishing a special ward-guardian relationship between Indians and the U.S. government.

WORCESTER V. GEORGIA, 1832   This case revolved around that Georgia law that made it illegal to live with Indians without a state license. This time -in view of Cherokee Nation v. Georgia -it was not the Cherokee Nation that brought suit against Georgia, but the missionary Samuel Worcester, who had been arrested for violating Georgia law.

The Marshall Court ruled in favor of Worcester. As Marshall explained, the Constitution gives the federal government the exclusive right to treat with, and interact with, Indian tribes -not individuals, and not states. Georgia, therefore, had no right to pass laws dealing with Indians. As you are no doubt aware, though, President Jackson -a staunch supporter of Removal -refused to intercede when the state of Georgia continued its actions, even though they had been ruled unconstitutional.

Nonetheless, the Court's ruling in this case has been cited ever since in support of the concept of limited Indian sovereignty. Indian tribes are nations -kinda sorta -but not foreign nations. Therefore, they have local sovereignty -state and local governments have no jurisdiction over them. The federal government, however -as established in Johnson v M'Intosh -does.


There is one more pre-Civil War case that has bearing on this discussion, which revolves around events that occurred in Indian Territory after Removal. This one is closely attached to the Marshall Trilogy, but took place during the tenure of Marshall's successor Roger Taney (of Dred Scott fame.)

U.S. V. ROGERS, 1846    This case deals with the murder of Jacob Nicholson by William S. Rogers. A fairly simple and straightforward situation -except for one detail. Both men, U.S. citizens, had been adopted by the Cherokee Nation and lived among the Cherokees in Indian Territory. Rogers argued that the U.S. did not have the authority to arrest him, as he was a Cherokee citizen; his fate must be decided by the Cherokee courts. The Supreme Court ruled to the contrary; being adopted by an Indian tribe did not absolve an American of their responsibilities as a U.S. citizen.

Interestingly, when the Confederacy was trying to woo the Cherokee Nation into an alliance during the Civil War, one of the things they promised was that the C.S.A. would never interfere with Indian sovereignty and jurisdiction; if a white man from Texas committed a crime in the Cherokee Nation, he would be subject to Cherokee justice. The U.S., however, never made that concession.

Next time: American Indian Law goes West!


(Troy D. Smith teaches American Indian History, Cherokee History, American Indian Law, and Environmental History at Tennessee Tech University.)