On May 21, 1850, the trial of five Cayuse men accused of murdering Protestant missionary Marcus Whitman begins in Oregon City, capital of the newly organized Oregon Territory. Whitman, his wife Narcissa, and 11 others had been killed during a Cayuse attack on the Whitman Mission near Walla Walla two and a half years earlier. The defendants were indicted on several charges associated with the attack but were tried on only a single count, that of “feloniously, wilfully and of their malice aforethought” killing “one Marcus Whitman” (Grand Jury indictment No. 11). The trial lasts four days and ends when all five defendants are convicted and sentenced to death by hanging.
A Demand for Protection
The attack on the Whitman Mission, on November 29, 1847, was an isolated incident but it generated widespread fear among whites who had settled in what was then called Oregon Country, and accelerated efforts to designate the region a United States territory. A delegation of leading citizens from Oregon City, led by former fur trapper Joseph L. “Joe” Meek (1810-1875), made the months-long journey to Washington, D.C., to demand that Congress act on a long-delayed bill to establish the Oregon Territory. The bill had been stalled because of a dispute over whether slavery would be permitted in the new territory. Its passage, in August 1848, extended federal protection to an area that included the present-day states of Washington, Idaho, Oregon and parts of Montana and Wyoming.
President James K. Polk (1795-1849) appointed the first slate of territorial officers, including the governor, secretary (second in command after the governor), district attorney, judge, and marshal. Joseph Lane (1801-1881), an Indiana legislator and Mexican War veteran, was named governor. The position of secretary went to Kintzing Pritchette (1800-?), a lawyer from Pennsylvania who had served as secretary of the Michigan Territory before it became a state in 1837. Joe Meek returned to Oregon with the title of United States Marshal. All three men would serve important positions in the trial of the Cayuse Five — Meek as bailiff, jailer, and executioner.
Lane’s administration as governor of the Oregon Territory officially began on March 3, 1849, when he arrived in Oregon City, the territorial capital, about 20 miles south of present-day Portland. He promptly opened negotiations with the Cayuse for the arrest of “those concerned in that horrible massacre.” In a meeting with tribal leaders at The Dalles in April, he offered peace and friendship if “the murderers” were given up, “to be tried and dealt with” in accordance with federal law. If not, he promised the Cayuse a war “which would lead to their total destruction,” because “we could not discriminate between the innocent and guilty” (Message to the Territorial Legislature).
The Cayuse had already been subject to nearly two years of harassment and skirmishes with volunteer militias in what has come to be known as “the Cayuse War.” One band, led by a former Whitman protégé named Tiloukaikt, had been forced into hiding in the Blue Mountains. The tribe as a whole had been weakened by the effects of epidemic diseases introduced by whites; and by the loss of traditional hunting, fishing, and gathering grounds, due to encroachment by whites. An estimated half of the tribe died during a measles epidemic that began at the Whitman Mission in 1847. In a letter to the Secretary of War in October 1849, Lane said there were no more than 800 Cayuse left, of whom only about 200 were men of fighting age.
The pressure on the tribe increased with the arrival of federal troops that fall. Company D of the Mounted Rifle Regiment, consisting of about 400 well-equipped men, reached the Willamette Valley in September 1849. Two companies of the First Artillery had arrived at Fort Vancouver a short time earlier, after traveling by sea around Cape Horn. As historians Robert Ruby and John Brown point out, the troops gave Lane “leverage to persuade the Cayuses to deliver the murderers — considerably more than he had enjoyed in the spring” (Ruby and Brown, 155).
The governor also had support from the Hudson’s Bay Company, which had commercial reasons for wanting peace among the Northwest tribes; and from an increasing number of Cayuses, Walla Wallas, and Nez Percés, who were losing sympathy for the attackers as the hostilities dragged on. William McBean (1807?-1872), chief factor of the Hudson’s Bay post at Fort Walla Walla, apparently gave Lane the names of five people believed most responsible for the attack, along with eight others considered less culpable. The list included Tiloukaikt and Tomahas: two of the five men who were eventually brought to trial.
In November, Lane again demanded that the Cayuse turn over the suspects or face annihilation. Tauitau (sometimes spelled “Tawatoe,” also known as Young Chief), leader of a large group of Cayuse on the Umatilla River, finally arranged the surrender, delivering three prisoners to Lane and a military escort at The Dalles in April 1850, and bringing two others to Oregon City in early May.
How the Cayuse made the decision to turn in those five men is not known. There was some speculation, at the time and afterward, that the Cayuse simply gave up five volunteers in order to appease the whites and end the fighting. For his part, Lane seemed unconcerned about whether any of the prisoners had participated in the killings or whether any of the actual attackers had gone free. “The punishment of these Indians,” he told the Territorial Legislature on May 7, 1850, two weeks before the trial, “will remove the barrier to a peace with the Cayuse, and have a good effect upon all the tribes.”
United States v. Telakite et al.
A grand jury in Oregon City indicted the prisoners on charges of murder on May 13, 1850, in one of the first formal judicial proceedings to be held in the new territory. The jury issued a total of 19 “true bills,” but only one went to trial: Indictment Number Eleven, alleging that “Telakite, Tomahas otherwise called the Murderer, Clokomas, Isiaasheluckas and Kiamasumkin, with certain other Indians whose names are to the Jurors unknown, with force and arms in and upon one Marcus Whitman, the said Whitman not then and there being an Indian, did make an assault,” resulting in “several mortal wounds, of which said mortal wounds, he the said Marcus Whitman then and there died” (reprinted in Lansing, 16).
The names of all five defendants were spelled in various ways in the trial record, but the court clerk had particular trouble with Tiloukaikt. The variations included “Telakite” (in the indictment); “Teloquit” and “Teloquoit” (in a defense motion challenging the court’s jurisdiction); “Telekite” and “Telokite” (in a motion for a new trial); and “Tilikite” (in an appeal). The spelling on the indictment prevailed, and the case was filed as United States v. Telakite et al.
The presiding judge was Orville C. Pratt (1819-1891) — at that time the only federal judge in Oregon Territory. The prisoners appeared before him in chains on the opening day of the trial, May 21. They remained chained throughout all their court appearances. Pratt ordered the indictment read to them. He then appointed Kintzing Pritchette, the territorial secretary, as the lead defense counsel, to be assisted by two officers in the Mounted Rifle Regiment. Pritchette was the only member of the defense team who had any legal training.
The following day, the defense filed a motion arguing that the court lacked jurisdiction because the killings had occurred on Cayuse land, before Oregon became a territory subject to federal law. Pratt gave what the local newspaper called “a labored and very lucid opinion on the whole matter” before rejecting the motion (Oregon Spectator, May 30, 1855). The defense then asked for a change of venue, on the grounds that the prejudice and hostility of the citizens of Oregon City would deny the defendants a fair trial; and for a continuance, to allow Pritchette more time to prepare. Pratt denied the motions and ordered the trial to proceed.
Oregon City at that time was a frontier town of about 500. The jail was a one-room structure on Abernethy Island, at the foot of Willamette Falls. There was no courthouse; the trial took place in a tavern, crowded with a couple of hundred onlookers. During the jury selection process, on the morning of May 23, the defense issued so many preemptory challenges that the original panel of 24 prospective jurors had to be augmented with people chosen at random from among the spectators. Eventually, a jury of 12 was empaneled and District Attorney Amory Holbrook (1820-1866) began presenting the prosecution’s case.
Holbrook called four witnesses, all of them survivors of the attack at the mission. Only two of them testified to having seen any of the defendants engage in violence. Eliza Hall, an emigrant who was spending the winter at the mission with her husband and five children, said she saw “Telokite” hit Whitman in the head with a hatchet, three times, in the yard outside the Mission House. The defense did not challenge her testimony, although according to numerous contemporary accounts, Whitman was assaulted inside the Mission House, in the kitchen; and Hall herself admitted she was about 100 yards from the yard and her view was blocked by other Indians.
Elizabeth Sager (1837-1925), who was 10 years old at the time of the attack, said she saw Isiaasheluckas and another Indian “attempting to throw down” Luke Saunders, the mission’s schoolteacher. She also testified that the day after the attack, Clokomas had laughingly pointed a gun at her older sister Catherine, to frighten her. Both Elizabeth and Catherine later embellished and elaborated on what they thought happened at the Whitman Mission on November 29, 1847. At the trial, however, only Elizabeth testified, and her testimony was limited.
The defense case centered on traditional Cayuse practice involving healers who did not heal. John McLoughlin (1784-1857), former chief factor at the Hudson’s Bay Company’s Fort Vancouver and founder of Oregon City, testified that he had warned Whitman of the dangers of living among the Cayuse, partly because they customarily killed medicine men whose patients died. A Cayuse chief named Istachus (called Stickus by white pioneers) and the Rev. Henry Harmon Spalding (1803-1874), Whitman’s fellow missionary, also said that Whitman knew he faced danger because of his inability to combat the lethal effects of measles on the Cayuse. Ronald Lansing, an Oregon law professor and author of a book about the trial, concluded that the defendants in effect “confessed the killing but said the killing was fitting and proper” (Lansing, 46).
The court heard three hours of summation from the defense and the prosecution and then adjourned. In giving his charge to the jury, at 9 a.m. Friday, May 24, Judge Pratt basically said the defendants’ guilt was proven by the fact that the tribe had turned them over to the authorities. As Lansing points out, “Today, Judge Pratt’s actions would have been a clear violation of the hearsay rule and the U.S. Constitution’s Sixth Amendment confrontation clause: ‘the accused shall enjoy the right … to be confronted with the witnesses against him’ ” (Lansing, 151).
The jury deliberated for one hour and 15 minutes before returning the expected verdict: guilty. The defense immediately filed several motions on appeal; all were denied. At 4 p.m., Judge Pratt reconvened the court and pronounced his sentence. He ordered the prisoners to be confined until 2 p.m. on Monday, June 3, 1850, when they were to be taken by the U.S. marshal — Joe Meek — to a gallows to be erected in Oregon City, “and there by him be hung by the neck, until you are dead” (Oregon Spectator, May 30, 1850).