A shot rang out across the bottomland littered with cottonwood trees. The bullet killed the little boy’s horse. Peter White Elk, a member of the Oglala Nation ran as fast as he could back towards Hope Clear, an 18-year-old girl who was helping him and another boy herd horses ahead of the main party.
A second shot hit White Elk in the back of the head, and he died on the cold, windswept prairie of modern-day Niobrara County, Wyoming. No one was ever tried, or convicted for the unwarranted killing of this child.
It was Halloween, 1903, but no one was trick or treating.
A party of Oglala, one of the seven nations of the Sioux, was returning from a federally authorized expedition to look for medicinal plants and roots towards their home on the Pine Ridge Reservation.
They were ambushed by the overzealous sheriff of Weston County, Billy Miller.
Niobrara County was eight years away from being annexed out of Converse County where the posse ambushed the Oglala. Miller had no jurisdiction, no authority, and no reason to open fire on the teenagers, but he did, starting what many call the final battle of the Plains Indians against government authority in Wyoming.
The main group of Oglala trailed the teenagers when the shooting began.
“I saw the white men aiming their guns at me, so I started back to the wagons,” Clear said. There was no warning shot, just the one that killed the horse, and the second that killed the boy.
When they heard the shots, the men of the Oglala band raced forward to the site. In the ensuing melee, seven people were killed, including Sheriff Miller.
Prior to their departure, the Pine Ridge Reservation Indian Agent, John Brennan, provided written passes to the tribal members to “gather herbs, roots and berries” as the pass read.
Brennan wrote passes for two plant hunting parties, the first on September 30 to William Brown, and the second on October 20, to Charles Smith.
Brennan later testified that he had warned the Natives to hunt only plants, not to shoot at deer, antelope, or elk they encountered when they crossed from South Dakota, into Wyoming and Montana.
The idea that the Oglala were illegally hunting big game, gave the riled-up posse all the impetus they needed to set up an ambush.
Ranchers in Weston and Converse Counties began complaining that the Oglala were hunting illegally and killing cattle as well.
“So explicit and positive were these statements that, although no complaints had been filed by the stockmen, Sheriff Miller thought it his duty to look after the matter and put a stop to the lawbreaking and to protect the property of our citizens, which it was said was being destroyed,” said Weston County Clerk A.L. Putnam in an official statement.
The alleged complaints were made between October 20 and 22, resulting in Miller forming a posse in Newcastle on October 23.
In reality, the Oglala had taken no game. Smith was stopped before the ambush by Miller, but no arrests or citations were issued.
Miller’s story changed after the encounter, telling the members of his posse that Smith had a pronghorn buck strapped across his saddle when Miller found him.
There was a history between the two men, and not a good one. Two years prior Miller had claimed Smith was hunting illegally off the reservation in Weston County, but as in the future, the sheriff had no evidence.
The issue of indigenous people leaving reservations to hunt on state and federal lands wasn’t just a local one, it had national ramifications.
Provisions in the Ft. Laramie Treaty of 1868 indicated that the tribes in the Dakotas, Nebraska, Wyoming, and Montana had hunting rights “as long as the grass shall grow.” But U.S. attorneys argued that his applied only to hunting buffalo. The American bison had been hunted almost to extinction with fewer than 1500 head remaining by 1900. This reduced number invalidated the 1868 agreement according to the federal claim.
With those provisions gone, the tribes would no longer be able to leave their respective reservations to hunt. It was a bitter pill to swallow for people who just a few years before roamed freely across the open countryside in search of game.
In 1896 the United States Supreme Court in a very vague, very biased decision ruled in Ward vs. Race Horse that tribal members could hunt on the unoccupied white territory, but failed to clearly define what “unoccupied” meant. The lack of precision in the judgment left the question of hunting rights very much in limbo.
Race Horse was a member of the Bannock Tribe, placed on the reservation at Ft. Hall, Idaho.
The Bannock Reservation was created by treaty on February 24, 1869. It was part of the division of the Wind River Indian Reservation, known initially as the Shoshone-Bannock Reservation, but carved up when gold was discovered at South Pass, Wyoming. Gold, oil, or just about any other precious mineral was always a foundation for removing the lands from indigenous people for the federal government.
This treaty, along with the Ft. Laramie Treaty the year before, created special problems for tribes, Indian agents, and the surrounding white settlements in Wyoming, since they were put into effect before Wyoming was a territory, and long before it was a state in 1890.
The term, “unoccupied” land meant any area away from settlements to the tribes, but it meant something entirely different to the United States.
In the Ward vs. Race Horse decision, the U.S. Supreme Court defined unoccupied land as not being used for any purpose by a state. Since all state lands were subject to school taxes, grazing rights, and associated state regulations, the court ruled the land Race Horse was hunting on near Evanston was occupied when he was arrested.
Race Horse was sent back to prison after his appeal failed to serve out his sentence. Minority opinions on the court, were strongly worded, indicating the obvious conflict of interest this represented between the original tribal treaties and the newly formed western states.
Wyoming was in dire need of revenue from eastern hunters. If Native people hunted game, it reduced the number of animals that attracted wealthy eastern hunters to the state, reducing revenue as well. It didn’t matter to the Wyoming government that food was short and of poor quality on reservations, or that the people indigenous to the area had hunted there for thousands of years, the dollar was king.
As is often the case when tribes battle the federal government, it was a solution in search of a problem.
That problem came when the two bands of Oglala people found themselves fired on by a sheriff’s posse.
Miller’s posse set out from Newcastle, in Weston County on October 23, shortly after the six men were sworn in.
Miller left the next day and arranged to meet the posse southwest of the town somewhere on the border with Converse County.
Just west of the tiny hamlet of Lance Creek in present-day Niobrara County, the posse found a small group of Oglala, took their weapons and three of the posse members took them back to Newcastle under arrest.
They headed west but didn’t find either of the two Oglala parties. In the interim, Brown and Smith’s groups found each other and formed one larger group.
A wagon had snapped a wheel. Without a replacement, the Sioux tied a stout limb to the carriage, travois-style, and continued back towards Pine Ridge.
The limb dragging across the prairie left a distinctive track that was easy for the posse to follow.
A day later the posse found the group around noon. Smith was away from camp. The posse ate lunch with the tribal members waiting for his return.
When Miller arrived Smith told him he was under arrest for illegal hunting and had to go back to Newcastle to stand trial.
Smith ignored Miller, a couple of hours later the Oglala loaded into the wagons and on horseback and headed not for Newcastle, but back towards Pine Ridge.
Miller didn’t follow them. Instead, he went to local ranches and added more men to the posse.
On the afternoon of October 31, the posse discovered the teenagers on a ridge above Lightning Creek, a seasonal tributary of the Cheyenne River about 45 miles northwest of Lusk.
Posse members claimed they warned the teenagers before they opened fire, but later evidence indicated that wasn’t true. The teenagers were unarmed when the posse began firing. The 11-year-old White Elk was killed instantly by a bullet to the head.
The area of the ambush is open grass, punctuated by cottonwood trees twisted by the prevailing northwest wind.
One tree, in particular, remains 120 years after the incident in the same peculiar shape. A large limb grew off the main trunk of the tree, and turned back into the ground twice, creating what looked like a serpent undulating across the prairie. It was from this location that the Oglala men advancing toward the gunfire took their positions.
Miller was hit in the upper thigh and bled to death 30 minutes later. Weston County deputy sheriff Louis Falkenberg was hit in the neck, killing him instantly.
Smith was mortally wounded and died on November 1. Black Kettle, Gray Bear, and Smith’s wife Susie all died of wounds suffered in the fight. Last Bear was shot in the back but recovered.
Black Kettle, Gray Bear, and the Smiths were buried a hundred yards from the undulating tree. In 1935, four stern-looking Oglala men arrived at the ranch site in a Ford Model A and asked permission from the ranch owner to exhume the bodies of their four kinsmen from the burial site.
The burial area was now a horse corral over three decades later.
The men had been boys with the original party when it was ambushed. They went to the odd-shaped tree and paced in counted steps towards the northeast before digging. They found the burial site on the first digging attempt and return the remains to the Pine Ridge Reservation.
Miller was carried to a nearby ranch, where he died. Members of the posse feared an attack, staying awake all night to defend the cabin. An attack never came.
The posse returned to the site the next morning. Most of the party was gone, but a few women were tending Smith’s wounds and were wounded themselves.
The posse took Smith to the same cabin that Miller had been taken to the day before. Smith died in the cabin later that day.
Lusk had a town doctor, and other posse members took two wounded women to the central terminus on the Cheyenne-Deadwood stage route for treatment.
The gunfight was over, but the legal battle was just beginning.
In Sundance, Crook County sheriff Lee Mather received news of the fight through a telegram and formed a posse of his own.
A few of the Oglala made it back to Pine Ridge, others were captured by Mather and arrested near Edgemont, South Dakota.
The captured tribal members were taken at gunpoint to Douglas, the seat of Converse County.
Agent Brennan received news of the incident and traveled quickly to Douglas. He gained the release of the women and children, arranging for their transport back to the reservation, but nine men remained in the Converse County jail, charged with murder. These men were Jesse Little War Bonnet, Broken Nose, High Bull, Charge Wolf, Iron Shield, High Dog, James White Elk, Red Pin, and Chief He Crow
A preliminary hearing was held in Douglas two weeks after the shooting.
U.S. District Attorney Timothy Burke represented the Oglala and had a strong case. He didn’t call the tribal members to the stand, and no private area was provided to take their statements, so he later took statements when the men were released back to Pine Ridge.
Weston County prosecutor W.F. Mecum acted on behalf of Converse County in a questionable conflict of interest since the two white men killed in the fight were both from Weston County and clearly out of their jurisdiction when they ambushed the three teenagers.
Charges against the Oglala were dropped and they returned home.
The dropping of charges infuriated Wyoming interim governor Fenimore Chatterton, U.S. Senator Francis E. Warren, and Congressman Frank Mondell. Mondell was from Newcastle and knew Miller and Falkenberg personally.
No posse member was ever charged with any crime associated with the ambush.
The governor, senator, and congressmen called for a special federal investigation, not to alleviate any doubt about what happened, but to try to get a stronger ruling that would prohibit any further travels by people from the Pine Ridge Reservation into Wyoming.
Burke did a thorough investigation of his own, concluding that Miller had no authority to challenge the Oglala and that he was well out of his jurisdiction. He went on record stating that the Indians were within their rights to resist arrest after the boy was killed in the surprise attack.
Burke noted that Miller’s claim that Smith had taken an antelope illegally was never substantiated by any other witness.
That didn’t satiate the racial prejudice that dominated Wyoming and surrounding states toward Native people at the time.
State and regional newspapers sold a lot of copies of their publications with wild stories of marauding Indians attacking defenseless ranchers and their families, but none of it was true.
The Oglala found a unique ally in Park County, at Cody 250 miles to the northwest.
Buffalo Bill, the man Cody was named after, supported the Oglala.
In an interview printed in a Denver newspaper, Cody said, “The tribes have a right to shoot game. Not for the sake of slaughter, but for personal use. We must make allowance for the fact that they and their ancestors have lived largely by the chase, so some concession along that line should to my way of thinking, be granted them.”
The legendary buffalo hunter, showman, and personal friend of the late Sitting Bull made sense, and his statement was much appreciated by the Oglala, but their rights remained severely limited and they were never again allowed to leave their reservation in large groups to hunt on the land that was once their own.