Canadian Historic Sites: Occasional Papers in Archaeology and History No. 21

Whisky, Horses and Death:
The Cypress Hills Massacre and its Sequel

by Philip Goldring

Anti-Climax

During the late summer of 1873 the Canadian government was forced to pay considerable attention to northwestern affairs. Strong pressure from Morris and authentic reports of the evils of the whisky trade had induced the cabinet, at the end of August, to commit itself to immediate organization of the mounted police force which had been authorized by an Act of Parliament of the previous session. [1] This question had hardly been decided when the Departments of Justice and the Interior began to receive official correspondence respecting the Cypress Hills massacre. The cabinet decided to attempt extradition proceedings and turned the whole matter over to Sir John A. Macdonald, then minister of justice. The latter was beset by all manner of problems at this time, not least among them being his own political survival, and he seems to have been incapable of dealing with more than one matter at once. The mounted police had priority; not until 25 September were the most important decisions respecting the police in process of being implemented by the militia department and the newly appointed police officers. It was late in September, then, when Macdonald turned his attention again to the problem of apprehending the Cypress Hills murderers.

Macdonald then decided on the aggressive course of trying to arrest and extradite the wanted men before they returned to Canada for their winter hunt. This choice underlined the impossibility of administering Canada's laws in the remote parts of the new territory. Since haste was essential, Macdonald chose for the task a man already near the scene, Gilbert McMicken in Winnipeg. McMicken was an old political ally and trusted colleague of Macdonald's and an intimate adviser of Morris, but in Winnipeg he was widely despised as an archetypal carpetbagger. In addition to his offices as a Dominion land commissioner and deputy receiver general for the Dominion in Winnipeg, he carried from his pre-Manitoba career as a Fenian-hunter the almost nominal office of Dominion police commissioner. This aspect of McMicken's official personality was dusted off and he was entrusted with warrants for the arrest of Hardwick, Hale, Devereaux, Harper, Vincent and others, an assurance that American federal officials in Montana had been instructed to assist him in every way and orders to move as quickly as possible. The trip proved impossible at so late a season and the affair languished in McMicken's hands until May 1874 when he was ordered to turn all his instructions and warrants over to George French, the commissioner of the newly formed North-West Mounted Police. [2]

In the hands of the Mounted Police, the investigation virtually vanished from the government's view for the better part of a year. In the spring of 1875, however, Commissioner French indicated that the case could be reopened. Justice Minister Fournier therefore presented a minute to the cabinet recommending that Assistant Commissioner Macleod should be appointed a special agent to proceed to Fort Benton in the early part of the summer, when hunters and traders gathered there. In co-operation with the American authorities, Macleod was to arrest five of the Benton party — Hardwick, Hale, Evans, Harper and Devereaux — and an equal number of the traders or their guests: Hammond, MacFarlane, Vogle, Duval and Bell. [3] In addition to appointing Macleod to this duty, the government accepted the resignation of A.G. Irvine, commandant of the militia garrison at Fort Garry, gave him an inspector's commission in the Mounted Police and ordered him to meet Macleod in Montana and assist his efforts there. En route to this assignment Irvine reaped an unexpected windfall — he encountered Alexis Lebombard and, with a touch of melodrama, hired him as guide and interpreter without advising him that he had really passed into the pay of the crown and would before long be called upon to testify on behalf of the Canadian government at the extradition hearings. [4]

For two years since the Cypress Hills massacre the major participants had gone unmolested and unthreatened. It is therefore not surprising that Macleod and Irvine, aided by two United States marshalls and some soldiers, were able to locate and arrest seven astounded frontiersmen in the streets and saloons of Fort Benton on 21 June 1875. (Two soon escaped.) United States attorney Page had earlier warned the Canadians to have the extradition hearing held in Helena — "I think it would be difficult to detain them at Fort Benton" — and Macleod noted the advice. [5] Accordingly the five prisoners — Hale, Hardwick, Harper, Evans and Devereaux — were sent almost immediately from Benton to Helena where the extradition hearing began on 7 July before United States Commissioner W.E. Cullen. [6]

From the first it was a no-holds-barred confrontation between deeply antagonistic groups. On one side was the Canadian government, desirous of punishing the murderers of Indians and represented by Republican attorneys working under instructions from a federal government recently embarked on a course of attempting to mend fences with Britain and with the western Indians. On the opposite side were the Cypress Hills killers, wedded to a philosophy of retaliation and subjugation of the Indians and represented in court by a phalanx of lawyers, who, in the complicated territorial politics of Montana, were intertwined with the Democratic party and anti-British Fenianism. [7] The court was therefore a stage for playing out the passions of the anti-British frontier element against the saner policies of the Grant administration. A formal transcript of the hearing has not survived, but brief summaries were presented in the local newspapers. Considering the depth of public excitement which swirled around the court, an unpopular case was conducted vigorously by the American prosecutor on behalf of Canada and the verdict was a model of judicial impartiality.

When the inquiry opened on 7 July, the prosecution's first witness was Abel Farwell, the man on whose story the Canadian government was to pin its hopes for a year. The flaws in the Canadian case appeared when Farwell declined to make positive identification that any of the prisoners had actually killed an Indian and indicated further that he thought it improbable there would have been any firing if the Indians had really stolen Hammond's horse and had returned it when the Benton party went to the camp. Lebombard's testimony did little good for the prosecution. Then the defence had its innings. It appeared to accept the basic structure of Farwell's story — that the defendants had followed someone from Farwell's post to the Indian camp to assist in recovering a stolen horse — but the first witness, Antonio Amei, testified that he had not seen Devereaux among the men in the coulee. A lengthy succession of witnesses was called to prove that Farwell's testimony was worthless. Some of them claimed to know him personally, others spoke only of knowledge "they had gleaned from the conversation of business men and other residents of Benton." Farwell's reputation was thoroughly dragged through the mud in the effort to destroy the fabric of his testimony. One witness gave the game away when he said that he "never heard a man speak well of Farwell for the last two years." In other words, Farwell acquired his bad name after he reported the massacre to the government! Other witnesses swore that Farwell had, as recently as the current year, said the killers had nothing to fear since it could be proved in court that the Indians had fired first. This the prosecution witness hotly denied, saying that he remembered the conversation in question and it had concerned an entirely different fight. [8] Nonetheless, the defence testimony on 15 and 16 July tended to isolate Farwell's evidence and to cast a bad light on many details of his story which failed to correspond to the evidence of other witnesses.

On 17 July the prisoners themselves began to give evidence. What they said was given scant coverage in the local papers, but it is clear that they stuck to their story that they had gone to the Indian camp with peaceful intentions and were obliged to take shelter in the coulee and fire on the Indians to save their own lives; that they eventually turned from the defensive to the attack and scattered the Indians, inflicting considerable casualties and suffering one themselves. [9] The prisoners were examined during the week ending 24 July and were released early the next week. Commissioner Cullen found himself caught between the wording of the extradition treaty and the spirit in which it was interpreted by American courts. The treaty itself obliged him to commit the prisoners for trial if, according to the laws of Canada, there was enough evidence to justify commitment. American judicial precedent, on the other hand, bound him to discharge the prisoners unless he heard sufficient unequivocal evidence to convict as if he were "sitting upon the final trial and hearing of the case." [10] The evidence on both sides of the case, he said, was heavily laden with inconsistencies, but the prosecution had not made a clear-cut case for convicting the accused of the two crimes with which they stood accused, murder and assault with intent to commit murder. He accordingly discharged all five from custody.

Cullen criticized the prisoners' rashness in the harshest terms, but popular opinion ignored the legal nuances and Cullen's view that the prisoners were guilty, if not of murder, then of various lesser crimes. The town of Helena broke into celebration at the announcement of the verdict; the erstwhile prisoners were treated as conquering heroes when they returned to Fort Benton. The frontier hailed these men, the products of its own harsh conditions. But beneath the anti-British rhetoric and the intricate judicial questions of fact and interpretation there lay a deeper and more important misunderstanding between the prisoners and the Canadian authorities. This misunderstanding was the whole attitude toward Indians and the enforcement of law in frontier regions where groups of fundamentally different origin and divergent interests existed in discord along a fluid line of settlement. To the Mounted Police, the Hardwick gang was a band of outlaws who had, in a dubious cause, settled a quarrel by force and killed many innocent people. To a vocal sector of the Montana populace, the Cypress Hills killers had courageously shown themselves to be the "true advance guards of civilization" who protected their compatriots more efficiently even than "the military forces of the general government." [11] The Fort Benton Record expressed views which were fundamentally at variance with the traditions of justice and of native policy, which had been transplanted from England to British North America. The Assiniboine, argued the Record, had kept the peace ever since they were taught their salutary lesson on 1 June 1873. Even while the affair was sub judice, the Record argued that conviction of the prisoners would be an invitation to Indians to swoop down on settlements of Montana, hitherto indebted to the Hardwick gang for the peaceful continuance of life. [12] A view even more radically opposed to the British tradition of justice was expressed in a resolution passed by a meeting at Benton which was presided over, appropriately enough, by two Fenians. It was necessary, said a resolution, for citizens to "protect their own lives and property" and the arrested prisoners were congratulated for doing just that. The meeting then endorsed a dangerous principle, always tempting to those who are impatient with judicial safeguards during times of difficulty — guilt by association, the treatment of a complex group of individuals as if it were a single responsible entity. The hostile attitude of Indians, declared the public meeting, prompted retaliation by the whites and the whole situation was "due entirely to the failure of the government to hold the Indians responsible, individually and collectively, and to punish them for their crimes." [13] The people of the Gallatin valley were less sophisticated: a meeting at Bozeman simply declared that the white population was safe only if it pursued and punished Indians "according to their own method of warfare." [14]

One fact must be admitted in partial extenuation of the white attitude at the time. All the editorials and resolutions quoted above based their strong opinions, in part, on the government's inability to control and punish individual wrongdoers — hence the impatient conclusion that whole bands of Indians ought to be punished for individual crimes. Such an attitude, of course, encouraged the friction between races and thus perpetuated the disorder of the frontier. It was just such a vicious circle that the Canadian authorities sought to avoid in the Northwest Territories. And it was clear to the Mounted Police, as it was to Morris, that the Indians and whites alike must benefit from (and when guilty, suffer by) the law if the two races were to live in any sort of amity. They also realized that white attacks on Indians tended to be reprisals for native depredations and it was therefore crucially important to win the early confidence of the Indians. The extradition of five members of the Benton gang would have provided a superb demonstration that an Indian life was worth no less than a white one in the eyes of the law in Canada.

In a childish gesture of revenge, Jeff Devereaux swore out a writ against Macleod, charging him with false arrest. He was briefly detained until the writ was cancelled by a local judge who pointed out that Macleod was in no way personally responsible for the arrests; he was simply following orders in which the Canadian and American governments concurred. [15] The temporary detention must have sharpened Macleod's anxiety to get back to Canada, even though he returned without prisoners. There was a surprise for him, however, when he got back: Philander Vogle and James Hughes were living quite openly in the vicinity of Fort Macleod and the assistant commissioner, sitting as a stipendiary magistrate for the Northwest Territories, quickly dispatched them for trial to Fort Garry in care of Inspector Irvine. The latter set out for Manitoba by way of the Cypress Hills, intending to take Abel Farwell and Lebombard to the scene of the killing, go over the grounds with each of them separately and thereby get an indication of how valuable their testimony was. This he did, and although the two men differed by 100 feet in their estimation of where the campsite stood, their descriptions of the massacre and of where the various parties had been corresponded fairly well. [16] Apart from this partial confirmation of the prosecution's evidence, Irvine's trip had another cheering feature: while he was in the Cypress Hills he found yet another of the men whom he was hoping to arrest, Soloman's old trading partner, George M. Bell. He was quickly added to the little procession heading towards the Winnipeg jail.

Irvine's arrival at Winnipeg was greeted by the local press with some enthusiasm and special attention was paid to Bell, the one prisoner who had not yet been through a preliminary hearing. Bell, wrote the correspondent of the Free Press, was a relatively young man who from appearances "might or might not be a murderer." Still, he looked every inch a frontiersman and had "probably been educated at Benton and thereabout, to believe that the killing of a few Indians is only what is expected of him, as his mite of assistance towards the march of civilization." [17] (In fact his initial instruction along these lines had been during his stint in the infantry.) Bell was brought before Judge Bétournay at the police court where he pleaded not guilty. The hearing took only three days; Farwell was interrogated first, gave his story succinctly and escaped unscathed from Bell's attempt at cross-examination. He was followed by Lebombard, who began nervously in the unaccustomed solemnity of a courtroom, but gained confidence as he moved along, finally giving a curt and dignified defence against Bell's insinuation that he had been drunk and lying under a cart during the whole affair. (Witnesses on later occasions would swear that Lebombard had not been present at all!) Irvine was the third witness: he presented a map he had made of the massacre ground and testified about the measurements he had taken on the site and the walks he had taken across the terrain with Farwell and Lebombard. The defence called only one witness, Farwell, and counsel's attempt to shake him from his former story was wholly unsuccessful. As a result, Bétournay committed Bell to stand trial for murder, along with Hughes and Vogle, at the October assizes. [18]

At this point James Wickes Taylor, the American consul in Winnipeg, intervened to muddy the wafers of justice. It is unclear how he first became involved, but he was successful almost immediately in delaying the trial. His intervention added eight months to the proceedings, forcing postponement from the October assizes to those of February 1876 and then to June. He failed then to secure a third postponement, while the Montana press railed against the slowness of Canadian justice. Taylor, not to draw the point too finely, had realized the government would welcome a conviction and he entertained severe doubts whether the prisoners would get a fair trial in Winnipeg. He evidently shared the view of the Benton traders and editors that the crown's evidence was perjured, but would suffice for a conviction in a Canadian court. Accordingly, Taylor sought the postponements while he tried to secure admissible testimony from other members of the Benton party. The latter were willing enough to come to Winnipeg, but only if they received a guarantee that they could testify without fear of being arrested, as Van Hale put it, "by the same officers, chained in the same den" as the men "whom we can prove innocent." To secure this testimony Taylor waded into a sea of red tape which ultimately engulfed Canada's justice minister, Edward Blake, the British minister in Washington. Sir Edward Thornton, the governor of Montana, B.F. Potts, and John H. Evans, who had become the owner of the impudently named Extradition Saloon at Fort Benton. All were anxious to see the witnesses given safe conduct to and from the court, except for Blake, who coyly washed his hands of the affair by saying that he would not interfere with the interpretation put on the law by the court before which the prisoners stood charged. Thus Taylor's scattered pleas all returned him to his own doorstep. Ministers and secretaries of state had failed to get results: the fate of the trial rested with Manitoba's chief justice, Edmund Burke Wood. That fiery old jurist gave short shrift to the suggestion that Hardwick, Evans and party should enter his court any way but in chains. [19]

Taylor had a short-lived hope that the testimony of the Benton party might be taken by a rogatory commission in American territory. Blake turned down this suggestion too, but Taylor anticipated an amendment in the laws of Canada and the United States and continued to hope that evidence might soon be taken from Evans, Hale and the rest on the American side of the frontier. [20] With this in mind he approached the court on 19 June and in an affidavit presented by the prisoners' counsel, S.C. Biggs, pleaded for yet another adjournment. Wood could no longer be induced to hold the prisoners longer simply on the distant prospect that men accused of the same crimes might give evidence. Nor, for obvious reasons, was Wood about to release the prisoners for trial at a later date. So on 19 June the trial of Bell, Hughes and Vogle finally got under way in the crowded Winnipeg courtroom. [21]

The prosecution entered the lists with some misgivings. Representing the crown was Francis Cornish, a recent immigrant from Ontario who had been a troublesome character in the province until the government calmed his political passions by the simple expedient of putting him on the public payroll. Irvine had used the postponements of the trial to round up additional witnesses for the crown and he had brought in some of the Assiniboine from whom he had taken written depositions the previous winter. The Indian witnesses proved a disappointment to Cornish, who found them "through no unwillingness on their part" unable to give clear evidence to incriminate any of the three men actually on trial. Several Métis witnesses proved an even greater disappointment. Cornish suspected that they could "give important evidence" if they wished, but were "most unwilling, and inclined to favor the prisoners." After three meetings with them he concluded they were being tampered with. [22 ] He resolved not to call them, but Biggs summoned them for the defence and the testimony they gave put a serious dent in the prosecution's armour.

The first morning of the trial was inconclusive. Taylor's unsuccessful plea for postponement consumed a good deal of time and the examination of Farwell did not elicit much information before the recess was taken for lunch. In the afternoon, however, he gave the evidence on which the crown's case rested. He had seen trouble brewing over Hammond's missing horse and hurried to the Assiniboine camp, explained the problem to a chief and convinced the chief to surrender two horses until Hammond's should be found. But, Farwell said, the other whites were by now in the coulee and calling to him to get out of the way so they could fire on the camp. Farwell tried to convince them to hold fire, but they did not believe his story of a deal with the Indian chief. One of them promised to wait until the trader could get Lebombard, but as soon as Farwell turned his back, Hammond started to fire. At the trial, Farwell was quite certain the prisoners had taken part in the fight:

When the firing was going on Hughes was in the coulee; Bell and Vogle were near it; it saw Hughes shooting in the direction of the camp; all the men at Soloman's took a hand in, after the firing commenced; they stood near Soloman's fort, firing in the direction of the Indian camp.

Cornish must have been pleased with this statement and more so when Biggs's vigorous cross-examination failed to shake Farwell from his story, apart from the unimportant admission that the Indians might conceivably have shot an arrow before the whites began firing.

On the following morning, the case began to turn against the prosecution as Alexis Lebombard took the stand and shook Farwell's account to its foundations. When the trader was in the Indian camp, said Lebombard, he was

surrounded by Indians, and seeming as if trying to make himself understood; I knew from my relation with Farwell and the Indians that he could not understand them, and that there was none in the Assiniboine camp who understood any English, except a few words about trade.

This statement cast a pall across Farwell's testimony; his story of negotiating with the Indian about the missing horse was not vital to his contention that the whites fired first, but to anyone even remotely sympathetic to the prisoners this revelation that Farwell was lying in one part of his testimony must have opened the floodgates to all sorts of doubts about other aspects of his story which stood uncorroborated by the prosecution and contradicted by the defence. Despite this setback, Cornish returned to his examination of the interpreter after the noon recess and once again Lebombard's testimony let Cornish down badly. He did not remember seeing Hughes that day and as for Bell and Vogle, "I did not notice the two men . . . participating in the fight." There were men firing from the roof of Fort Soloman, but they were partially concealed and too far away to be recognizable.

The remainder of the prosecution testimony was of little use to either side; Biggs's cross-examination of Lebombard failed to elicit any new information, but corroborated Farwell's view that Vogle, though slightly lame, was well able to walk by spring. Mary Farwell's evidence, given in the last few minutes before the court rose on the twentieth, contributed nothing to either case. It was a bad day for the prosecution and Cornish must have realized that the deck was stacked against him when he informed the court he expected to present his last evidence for the crown the following day.

Cornish called no more witnesses. When court opened at 9:30 Wednesday morning, 21 June, the crown surprisingly rested its case and Biggs's witnesses were summoned from the dock. The first was Bell, whose hazy story was tied in knots before Cornish had finished. He testified, on behalf of Vogle, that the latter had barred the gate of Fort Soloman when the fighting started and therefore could not have gone outside, Bell claimed he was in the bastion above the Indian room when the fight started, when he called down to Vogle to put the bar across the gate. When Cornish pressed him on the point of whether or not Vogle could have slipped out of the fort during the fight, he became confused and said, at different times within the space of an hour, "I did not stay in the bastion all the time," "I did not go down to tell Vogle because I wanted to see the fight" and at last, under heavy pressure from Cornish, "I was not watching the camp steadily; I only looked now and again." As for Lebombard's assertion that somebody was shooting from the roof of the fort, Bell made the absurb claim that it was impossible to get on top of the bastion.

Vogle himself told a more coherent story. He had been in the Indian room when Bell called down and told him to bar the gate; instead he seized his gun and went to the door where a Métis tried to take his gun, telling him he was too lame to fight. Instead of giving him the weapon, Vogle left the Métis and went into Soloman's room where he got on the bed and watched the fight through the window. From where he was at various times throughout the fight, claimed Vogle, he could swear with certainty that Bell had not left the fort until the fighting was over.

The two prisoners from Soloman's party, then, were each other's witnesses for the fact that neither had left the fort or fired from within it. Hughes was not called. His defence rested on Bell's assertion that he was not among the men in the coulee, a story corroborated by affidavits written by Hale and Evans, which had been submitted to the court by Taylor. So far the testimony for the defence rested entirely on the evidence of men indicted for murder. Biggs, however, drew a trump card: the Métis witnesses, brought to Winnipeg by the prosecution, were willing to testify that the Indians had been unruly before the fight and had probably fired the first shots.

The witnesses were members of the party of Métis whom Farwell had hired to cart his stock and furs back to Fort Benton. Their testimony was inconsistent, but the weight of numbers and the apparent objectivity of the witnesses themselves cast further doubts on many facts for which Farwell alone was the source. Their testimony was directed by Biggs to prove two points: that the Indians had fired first and that they had been threatening for some time to slaughter the whites in the two trading posts. Joseph Vital Turcotte said of the circumstances immediately preceding the general firing that "four Indians came towards them [the men in the coulee] apparently challenging them, " the Assiniboine fired in the general direction of the whites and moments later the latter responded. Baptiste Champagne, the second Métis witness, stated that he had anticipated fighting and, while he was moving his horses out of the probable line of fire, two naked Indians passed by loading firearms. Shortly afterward he saw four Indians fire a volley at the whites before hiding among the lodges. A third Métis, Joseph Laverdure, admitted under cross-examination that the Americans had fired the first volley, but only as a warning. The Indians had taken it as a challenge and the battle was on. The effect of this testimony was to undermine Farwell's statement that Hammond fired first without provocation.

Laverdure was also induced to advance a further point which had already been mentioned by Turcotte, that the Métis had been warned in advance of an Indian attack upon the traders. Turcotte claimed that an Assiniboine had detached himself from the camp a few days before the massacre and had gone to the Métis, to whom he confided that "the Indians intended to attack the whites, but he had left them sooner than be a party to such an evil affair." Turcotte also claimed to have heard an Indian in his cups warn Laverdure, about two hours before the massacre, that "It is a pity you half-breeds are here now, for we have determined to clean out the whites and take all their stock." Such warnings and braggadocio were probably commonplace for the Métis do not seem to have paid any attention nor to have communicated the warnings to the whites. On the other hand, this evidence may simply have been a dramatic embellishment on the well-known friction between the Assiniboine and Soloman.

Biggs now concluded his courtroom tactics with an unprincipled appeal to prejudice. Notwithstanding the civilized disdain with which the Free Press had treated the prisoner Bell, public opinion was by no means all on the side of the Indians and Cornish was disturbed to find that a section of the community thought the attack was justifiable. [23] This comment is reminiscent of the American Indian agent's remark three years earlier that people felt "the fact of those murdered being Indians, a justification for the outrage." Biggs played up to this feeling when he called the Honourable James McKay to the stand. McKay was by birth half-Scottish, half-Indian, but in the course of a remarkable career he had managed to assimilate himself to the Métis, white and Indian elements of the Northwest. (He had been the indispensable go-between during the Indian treaty negotiations in Manitoba in 1871.) Now he shed all pretence of sympathy for the Indians; he had had a bad experience with Little Soldier years before and he assured the Cypress Hills trial jury that "from what I know of the Assiniboine Indians I have no hesitation in saying that they would rob, pillage and murder if they had the opportunity."

It is hard to say how much effect this irrelevant diatribe had on the jury; considering the other testimony. It was hardly required. Chief Justice Wood furiously struck McKay's remarks from the record and ordered the jury to disregard them. He also pointed out every avenue by which the jury might find the prisoners guilty of the murder of Little Soldier. It was not necessary to prove that the prisoners. or any one of them, had actually killed the chief; it was enough to prove that they had acted in a criminal combination with the individuals most directly responsible for the killings, and it was necessary to find that the killing was actually murder. This the jury refused to do. The foreman, according to Cornish, declared it "unsafe to convict for want of sufficient evidence of actual participation by the parties under trial." [24] There were two other charges pending against the three men, but Wood chose simply to discharge them on their own recognizances to reappear when summoned. They quickly left the province and were never called back. The affair languished for years until 1882 when Consul Taylor, still in contact with John Evans in Montana, persuaded the provincial attorney general to issue writs of nolle prosequi for all the accused. [25] The dossier was closed on the Cypress Hills massacre.