Meanwhile, Barraque had arrived at Fort Smith on Nov. 29. He reported that the two hunting parties had joined forces before the killing and that a number of Quapaw hunters were also members of the group. He stated that in addition to Welborn, Robert Lester, and three men—Sloane and Deterline, and a slave Ben, owned by Barraque—were also dead. The fort's commander, Lieutenant Colonel Matthew Arbuckle, summarized Barraque's report in a letter to General Edmund Gaines, although he added that he doubted the trader's veracity. Barraque reported an attack by only 80 or 100 warriors. Three sons of Sloane were unharmed. One of the Quapaw hunters from Barraque's party stated that he had met an Osage who claimed to be from Claremore's town. Barraque estimated his damages at around $4,000, including 32 horses. (19 Terr. Pap. 570-571.) The December 23d Gazette contained selective facts from Barraque's account.

Arbuckle wrote Gaines a second letter the following day. He blamed the hostility of the Osages on several factors: whites hunting on their hunting ground, Choctaw aggression toward them, and the intervention of the United States between the Osages and the Cherokees. As a result of these complaints of the Osages, which Arbuckle regarded as legitimate, he wrote that "the Osage nation would require to be chastised before long." Claremore, the chief of the Osages, had apologized and stated that he would give up those responsible, but apparently two of his sons were in the war party, and Arbuckle doubted his sincerity. (19 Terr. Pap. 572-573.)

The May 4, 1824 issue of the Gazette announced that three of the Osages involved in the killing had appeared at August Chouteau's trading house on the Verdigris River, for the purpose of traveling downriver in Chouteau's boat to surrender themselves to Col. Arbuckle at Fort Smith, but the boat had left the trading post before they arrived, and so they had returned to the Osage nation.

On June 26, five Osages arrived in Little Rock, under a guard commanded by Captain Philbrick of Fort Gibson (see AG 6/29/24). Six had surrendered, but one had escaped. The five were Chatokawashepeshe (Mad Buffalo), Wanashashinger (Little Eagle), Wasabashinger (Little Bear), Shakushinger (Little Rattlesnake) and Heshakeheree (Caddo Killer) (see AG 10/28/24). They were imprisoned in the Pulaski County Jail. Meanwhile, on July 14 subpoenas were issued for Antoine Barraque, Louis Bartholome, Pierre Beyet, Baptiste, Michel and Bernard Bonne, Auguste Aristide and his nephew August Pierre Choteau, Martin Imbeau, Martin Leran, Thomas Patterson, Isaac Pennington, Nathaniel Pryor, Sr., Thomas, John and Joseph Sloane, and William S. Williams. The subpoenas commanded those served to appear in Little Rock on the first day of the October 1824 term to testify on behalf of the United States. The subpoenas were issued by Deputy Clerk Thomas Newton and served by Deputy Sheriff Henry Armstrong and Deputy Marshal David Barber.

The locations where the witnesses were found are of interest. Antoine Barraque was found in Arkansas County. Louis Bartholome was served "at his usual place of residence (Madam Lafavres) Pulaski County." Pryor, Beyet, Williams and the Choteaus were found at the trading house on the Verdegris. The Bonnes and Imbeau were served in Pulaski County. Thomas Sloane was served at Fort Gibson and the two other Sloanes at their residence in Crawford County. Pennington's subpoena does not indicate that he was served.

The first day of the October Term was Monday, Oct. 11. The presiding judges were Benjamin Johnson, Andrew Scott, and William Trimble. The latter was the replacement for Joseph Selden, who had been killed in a duel by Judge Scott in the spring. On the first day of term the grand jurors were sworn in. They were Edmund Hogan, foreman, Samuel Carnahan, Isaac Watkins, William. G. Saffold, James Peel, Wiley Wilbanks, Aaron Allen, Thomas Burress, John Hushston, Isaac Baldwin, John Hibbons, John Belcher, Elisha Welborn, John D. Mosby, George Rankin, Harris Craw, Abner Titsworth, Creed Taylor and James Pyeatt. The grand jurors retired, and Robert C. Oden, attorney for the five Osages, petitioned for a writ of habeas corpus for the Osages. The petition for writ was accompanied by an affidavit from Oden stating his belief that the Osages were illegally imprisoned. The court ordered Clerk David E. McKinney to issue the writ, commanding the jailor to bring the Indian prisoners into court.

The next day the record book indicates that James H. Lucas was sworn as an interpreter of the French Language during the present Term. Lucas is the only interpreter listed, and the Gazette reported that both Mad Buffalo and Little Eagle spoke through an interpreter, raising the question of whether the Osages spoke French. A number of Frenchmen had been subpoenaed who would have spoken Osage (e.g. the Chouteaus) so perhaps one of the French hunters or traders interpreted for the Osages. Later in the day the grand jurors indicted the five Osages. For each count, the indictment stated that the accused "not having the fear of God before their eyes but being moved and seduced by the instigation of the Devil," both killed Welborn and commanded others to kill him. The indictment placed the killing on November 17, on the Blue River branch of the Red River, in the territory of Arkansas (today Oklahoma). The indictment claims that Welborn was shot, stabbed and struck with guns, butcher's knives and tomahawks, and that his head was severed from his body. It makes clear that the five indicted Osages were chiefs but were in control and command of other Osages who may have actually killed Welborn. U.S. Attorney and prosecutor Samuel C. Roane signed the indictment. Later that day, the court ordered a "venire facias" or literally "you shall cause to come" writ to issue to the Marshal of the Territory so that he could summon a jury. The writ was issued to Henry Armstrong, deputy marshal (also the deputy sheriff) and called for James M. Gibson, John R. Thompson, Benjamin L. Miles, Gilbert Borden, James Lockhart, William Blaylock, Daniel Plott, Joseph Egner, R.N. Rowland, and William Shipley to be summoned. The names of Andrew Latting and William Woodruff were crossed out. In this subpoena Henry Armstrong was referred to as a "deputy marshal."

On Oct. 14, Oden and Roane filed a demurrer and joinder with the court. Wasabashinger argued that the court did not have jurisdiction over the Osages because the alleged crime had been committed on land belonging to the Choctaw nation.

Chatokawashepeshe, or Mad Buffalo, was tried singly on Saturday, Oct. 16, after he pleaded not guilty. According to the Gazette, the trial took the whole day, which was unusual in those times. The court was full of spectators. It was difficult to assemble a jury; the newspaper reported that around 50 prospective jurors were rejected for cause. In addition to those summoned and listed above, the jury consisted of Joshua Morrison (the foreman), A.S. Badgley, John Moore, H.S. Hilman, Morgan Magness, Sampson Gray, and Abner Harold. John R. Thompson, Benjamin Miles, James Lockhart, Daniel Plott, and R.N. Rowland did not serve. The same day, the jury returned a verdict of guilty. In an expanded account of the trial published in the Oct. 28 Gazette, it was reported that the Osages had started at the north fork of the Canadian River, looking for a party of Caddos to attack. Mad Buffalo admitted that the Osages had killed the Americans, but claimed it had happened by mistake, and that he was not there when it happened, but some distance away in a cave. The Gazette reported that Mad Buffalo was "large and well-proportioned, of fine and commanding mien, and shows from his interesting countenance and manner, that he possesses a superior mind and great intelligence, for one of his race." Apparently, from the Gazette account, Mad Buffalo was not informed of the verdict until the 21st.

The remaining four Osages were tried on Tuesday, Oct. 19, after they pleaded not guilty. Their jury consisted of Charles Legat, Thomas Montgomery, Rensilleer Munson, David Mill, Garrett McCarty, George Ferebee, James H. Martin (the foreman), Thomas Holoman, Larkin N. West, Charles Anthony, John G. Glover, and Samuel Hinkston. The jury convicted Wanashashinger, or Little Eagle, and acquitted the other three Osages. The Oct. 19 issue of the Gazette reported that their trial began in the morning and was not yet over by 3 PM, when the Gazette went to press. The Gazette mentions Ambrose Sevier as joining Roane in the prosecution, even though his name is not included in any of the documents in our collection.

The following day, Oden and attorney Townsend Dickinson moved for a new trial for the two convicted Osages. In denying a new trial, the court issued an opinion, reported in Hempstead and reproduced here. The court claimed jurisdiction because of a federal statute, which it did not name or cite, and because the Osage nation had turned over the Osages. Counsel also objected that the verdict was contrary to the evidence, but the court rejected that argument, overruling the motion for a new trial.

On Oct. 21, Oden moved for an arrest of judgment. The record book indicates that after hearing the arguments, "the court overruled the motion and pronounced Sentence on the prisoners, that they shall be hanged on the Twenty-first day of December next, between the Hours of Twelve and four O Clock in the afternoon of said day by the proper officer of this Court, towit, the Marshall." Indeed, in the version of the decision published by Samuel Hempstead, Hempstead incorrectly states that the Osages were hanged.

The Gazette reported that the sentence of death "was pronounced in a very impressive manner by Judge Johnson." It was not unusual for newspapers to reprint death sentencing speeches of judges; the Gazette did so on several occasions. At the sentencing, Mad Buffalo was asked why he should not receive a death sentence. Apparently "he made a long and sensible speech to the Court; in the course of which, he admitted that he belonged to the party who committed to murder, but denied having any agency in it hemself." He stated that he was friendly to Americans. In fact, reportedly he was a friend of Nathaniel Pryor (click here for more information). The Gazette was impressed by Mad Buffalo's reaction to the death penalty. "The sentence of death he received with the greatest composure, and without betraying the slightest emotion of fear. . . we understand, he declared to the interpreter, that he would kill himself before the day appointed for his execution arrives. Indeed, so determined is he to avoid the ignominious death that awaits him, that on Friday evening last, he made an attempt on his life, by stabbing himself with a small pen-knife, (which had been given to him for the purpose of cutting tobacco)." The wound was not fatal. The Gazette described Little Eagle as elderly, and not as impressive as Mad Buffalo.

On December 25, Acting Governor Robert Crittenden wrote to John C. Calhoun, the Secretary of War. Crittenden claimed that there was no doubt that Mad Buffalo and Little Eagle were guilty as convicted, and that “they Sanctioned if they did not order and direct the attack.” Crittenden noted that the Osages were highly interested in the outcome. Crittenden stated that he had postponed the execution until Calhoun and the President could decide whether to act. He concluded “The Little Eagle is quite a contemptable man in any respect. The execution of the Made Buffaloe alone would probably have the desired effect. If there be a discrimination it should certainly I think be made in his favor.” (19 Terr. Pap. 737.)

After receiving Crittenden's letter, Calhoun replied, asking for all the evidence and facts pertaining to the trial. Crittenden responded that he was not present at the trial but had obtained a detailed statement from Judge Scott and U.S. Attorney Sam Roane. Crittenden repeated his opinion that both should be punished–“as a matter of policy I am certain they both Should not escape the Mad Buffaloe being the only considerable man condemned should be the sufferer.” He added that the Indians had told him they would rather be executed than be imprisoned for a lengthy time. (19 Terr. Pap. 761-62.)

At the same time, however, President Monroe received a letter of a very different sort from Alexander McNair, U.S. Agent to the Osages. McNair, newly arrived in Indian Country, stated that diverse groups including the army officers at Fort Gibson, the respectable traders and the mission families all hoped that the two Osages would be pardoned. They believed that all of the Osages charged had been equally guilty and that it was unfair to execute two and not all–and in addition, Mad Buffalo was the most influential of all, and a friend to whites. The Osages also mentioned a past incident five years previous on the Missouri, where several Osages, including the father of one of the murderers, were killed, and nothing was done. McNair urged the release of Mad Buffalo and Little Eagle. (19 Terr. Pap. 762-63.)

On Mar. 29, 1825, Secretary of War James Barbour wrote a letter to Acting Territorial Governor Robert Crittenden. Accompanying the letter was a pardon of the two convicted Osages from President Adams. Barbour directed Crittenden to "take the opportunity of using this act of Clemency on the part of their Great Father, as an instrument to secure, so far as the occasion will enable you to do so, their gratitude and future peaceable and good conduct–and let them know that this proof of forbearance is not to be looked upon by them as evincing any want of abhorrence on the part of their Great Father, or the enormity of their crime, but as an act of Compassion for them as his Red Children, whose lives he has given them to be spent for the future in peace and harmony and with a particular respect and friendship for all the Citizens of the United States." (20 Terr. Pap. 17-18.)

The June 7 issue of the Gazette contained an account of the return of the two to their nation. According to the Gazette, the two had taken different routes home, and Mad Buffalo returned "much exhausted by the fatigue and hunger which he indured during his journey through the wilderness." On the other hand, "Little Eagle fared much better, he having subsisted on deer and turkeys which he killed on his route." The Gazette added "we understand they were somewhat dissatisfied with their detention here, and that they gave a very ludicrous and amusing account of their trial, imprisonment, and treatment, while they sojourned among us."

George Catlin journeyed extensively through the western United States during the 1830s. On his travels, he met Mad Buffalo and painted his portrait, which today hangs in the Smithsonian. Of Mad Buffalo, George Catlin said, "The last mentioned of these was tried and convicted of the murder of two white men during Adams's administration, and was afterwards pardoned, and still lives, though in disgrace in his tribe, as one whose life had been forfeited, "but (as they say) not worth taking." " Click here to see Catlin's letter.

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