The Choctaws were an ancient culture of the Mississippi river valley who came to be defined as one of the ‘Five Civilized Nations’ due to their adoption of European and generally pacific ways. This did not protect them from being ejected from their ancestral lands when they signed away their Mississippi territory under the 1830 Treaty of Dancing Rabbit Creek. The Nation was split asunder. Those that remained, the Mississippi Band, knuckled under and submitted to federal and state law, but between 1831 and 1833, some 15,000 Choctaws made their way westwards to the Indian Territory that would later form part of the state of Oklahoma. It was an arduous trek remembered as the ‘Trail of Tears’: over 2,000 never made it.
The newly settled Nation initially maintained its legal authority in the territory and all those who applied for citizenship came under its jurisdiction, although through successive treaties accommodations were made with federal authorities. In 1866, for instance, it was agreed that the Choctaws would hand over criminals whose apprehension was demanded by state and federal authorities. As the Choctaw economy prospered from mining and timber, it sought to restrict citizenship to preserve social, cultural, and economic harmony. In 1875 the previous custom of admitting white men married to Choctaws to the Nation was restricted although not stopped. Those Choctaws who had remained in Mississippi were, however, encouraged to join the Nation with funds being made available in the 1890s to help poor families to remove to Oklahoma. In 1891 two commissioners, one of them named Solomon Hotema, were appointed to travel to Mississippi to facilitate the relocation of eighty new citizens.31 But external political pressure was increasingly being placed on the Nation to open up land to white interests and end Choctaw legal self-determination.
Solomon Hotema was a full-blood Choctaw bom in Grant, Oklahoma, in May 1854. He was educated locally at Old Spencer Academy for Indians before, in 1878, becoming one of thirty-five young Choctaws given a bursary to attend Roanoke College, Salem, Virginia, which had been founded by Lutheran pastors in 1842. The college had an ethos of education for all and in the 1870s, was proactive in recruiting students from the Choctaw Nation. On his return to Oklahoma in 1881, Solomon, now trained in law, immersed himself in serving his people. He was a county judge between 1884 andi886 and became a minister of the Cumberland Presbyterian church. He was active in Choctaw politics, considered a progressive and a follower of Green McCurtain, principal chief of the Nation during most of the 1890s and early 1900s. Hotema entered the Nation’s senate in 1890 where he made a name for himself as a fine orator, and he also sat on the Choctaw National Education Commission, gaining funds for the creation of a mission school near his home. He had become a prosperous as well as an influential man, with mercantile interests and a farm sustaining a hundred head of cattle and two hundred hogs in the neighbourhood of Cold Spring Church, of which he was the founder and pastor, some six miles from Grant. But in the spring of 1899 this widely respected citizen and fine public servant, described in 1891 as ‘a kind, good neighbour’, went on a killing spree.
Married in April 1883 to Nancy Coleman, the couple produced three children over the next few years, only one of which, Cornelia, bom in 1887, survived. A few years after Cornelia, they had a young son, Solomon’s pride and joy. But in 1898 an outbreak of disease spread through the community and in the spring of the following year Solomon’s son became one of its victims. Rumours rumbled around the neighbourhood that the epidemic was caused by witches, although it was later diagnosed as meningitis. Meetings were held at the church about what to do, and it was agreed to send for a reputed forty-nine-year-old medicine man named Sam Tamatubby, who lived some twenty miles to the east. Tamatubby confirmed that witches were, indeed, responsible and divined that the only way to end the plague was to kill them. During this time the grief-stricken Solomon spent much of his time praying. He beseeched God that the witches might be overcome, and dwelled on Bible stories of sorcery as proof of their existence. He preached on the subject at church, telling his congregation that he feared his people were going back to the witchery and evil of the past. He told them that during prayer he had seen witches coming through the air in the shape of fire balls.
On the 14 April not long after preaching this sermon, Hotema, as headman in the community, felt it was his duty to act. After a few drinks for Dutch courage he summoned two neighbours, Sam Fry (aged thirty) and Tobias Williams to his home. They armed themselves with a Winchester rifle and a shotgun, got into Hotema’s buggy, and set off to the home of his sister-in-law Vina Coleman. Many years later, in her old age, Vina’s daughter Louisa recalled what happened next:
Mr Hotema, he keeping coming nearer to our house and then he pointed his gun our way as he raise it to his shoulder. I run into the house and my mama push baby toward floor. He missed them once, I think, and Mama grabbed baby and tried to run from him. I don’t know just what happened next, but when shooting stopped I looked outside the house. Mr Hotema, he was gone, but Mama was lying on ground near gate. She did not make no noise but little baby was crying. Mama was laying on it, one shoulder holding baby to ground. I told my brother, who was in house, “Mr Hotema, he killed Mama ... we must run...” and we run away. I don’t think I ever saw Mama again ... I don’t never hate Mr Hotema. He was good man. He was our pastor. But I don’t think my mama was a witch.
I think he was wrong about that but he thought she was’.32
Hotema and his two accomplices moved on to the home of Hull Greeenwood. They asked where his wife Lucy was, and when she appeared and pleaded for her life, she too was shot dead. Next on their list was Amos Morris. Their final destination was the home of Eastman Missippi, but fortunately for him, he was out. Panic surged through the community as news of the killing spree spread. Some hid out in the brush fearful that they might be the next to be accused of witchcraft. Deputy Marshals Ennis and Everidge got up a posse and set out from Grant to find the killers. They tracked down Hotema the next day as he was about to take a train to Paris, Texas. He was going to give himself up he said. He was escorted to the jail at Antlers while the posse went after Fry, Williams, and Tamatubby, who were all subsequently arrested.33
At the ensuing examination before Commissioner Benjamin F. Hackett, Hotema seemed tranquil, talkative, and clear minded. There were no words of remorse. When asked why he had murdered three people, he replied ‘I have the authority to do so’. Where did you get this authority?’ he was asked. ‘In the book of all books, the Bible, in the passage wherein it says: “Thou shalt not suffer a witch to live’”, he answered. While in jail at Antlers he asked the jailer to forward a letter to the press. It began, ‘I have on yesterday killed one man and two women. A man certainly does not know what his destiny shall be’. He then provided a brief biography and an account of his good works, before moving on to matters at hand:
Since 1898 an opposition to the work has been manifested, threatened to wipe us out of existence with mal practice, and threats have been repeated on Thursday night April 13 1899. The people are afraid of them and have been dodging for about a week and saw them in their fires. Appeared and took it upon myself to sacrifice my life for the Lord’s cause and for the love of the people. Now I am numbered with the law breakers, only awaiting for trial, not only for trial, but humbly submit my neck to the gallows.
I ask all the Christian people of the land to remember me and my dear wife, Nance Hotema, and my loving little daughter, Cornelia, and my darling little son, Frank Hotema, for their consolation and denying themselves for Christ, so that we may meet each other in heaven, where there is not parting. Yours in Christ, S.E. Hotema.34
The three defendants were taken to the holding jail at Atoka where Tobias Williams suddenly died of unknown causes. Hotema, and the two other defendants were then removed to Paris, Texas, to await trial before a federal judge. There we find them in the 1900 census, languishing in Lamar county jail.
A year earlier, with the passing of the Curtis Act, written by the ‘mixed-blood’ Congressman of Kansas, Charles Curtis, Choctaw customary law had pretty much been junked after years of smaller-scale erosion. Thereafter all peoples in the Indian Territories of the ‘Five Civilized Nations’ were subject to federal law.35 The Major Crimes Act of 1885 had already imposed federal jurisdiction over murders committed in Indian territories. Under federal law the three men applied for bail, Fry and Hotema were denied, but Tamatubby was admitted to bail for $2,000 because he was not present during the killings, but was nevertheless an accessory before the fact. As he sat in jail Hotema began writing a book on the ‘Passing of the Indian’ and biographical notes that he hoped would be published. He believed that within a few years the Native American would become extinct, absorbed into the larger American culture. Here was a man not only struck with terrible personal grief but also grappling with the complex balance he and his fellow leaders of the Choctaw Nation had pursued with both the white population and the judiciary and legislature of the United States. While eschewing the ‘old ways’, perhaps he thought he and his fellow Choctaws had gone too far.
Despite his apparent intention to provide a written record of his life and times, when the days of his trial finally came in 1901, he proved remarkably reticent about events. Further drama was to occur in the meantime. In February 1901 the bailed Tamatubby was standing around a fire near Goodwater, near Grant, when he was struck with paralysis and fell in the fire, suffering serious bums. Shortly before the trial of Hotema and Fry, Deputy Marshall John B. Walter went to pick up Hotema’s nephew, Stuart Pierce, to give testimony. Pierce was found shot dead on some rocks not far from Cold Spring Church, his Winchester rifle at his feet. It was not known whether he killed himself or was murdered.36
When the trial of Hotema and Fry began some fifteen local physicians were examined as to Hotema’s sanity, with a majority of the opinion that he was insane. So on 13 April 1901, two years nearly to the day since the killing spree, Hotema was acquitted of the murder of Lucy Greenwood and Amos Morris on account of temporary insanity. Sam Fry was acquitted for his role as accomplice. Tamatubby was acquitted separately as an accessory due to insufficient evidence.37 Now Hotema faced trial before Judge Bryant for the murder of Vina Coleman. He pleaded not guilty, but was reticent as to his motives, although his defence introduced evidence that he believed in witches based on his reading of the Bible, and was convinced his people were being afflicted by witchcraft. This resulted in a hung jury, and a second trial was set for 26 November. Some forty witnesses were called to attend. This time he was found guilty of first-degree murder and on 5 December he was sentenced to be hanged on 14 February 1902. When a journalist interviewed him in jail, Hotema blankly refused to discuss the subject of witchcraft. Why he killed was a mystery to him and to others he said, but made it clear it had nothing to do with whisky.38 An appeal was made to the United States Supreme Court, and his execution was stayed until his appeal was considered on the 28 April.
The appeal rested in part on double jeopardy, in other words the ruling under the Fifth Amendment that persons cannot be convicted of a crime for which they have been acquitted. The defence based this plea on the fact that Hotema had been acquitted of the other two murders. This was described as ‘wholly without merit’ by the Supreme Court. The remaining defence rested principally on his belief in witchcraft. The Court’s decision rested on whether:
The evidence shows that the defendant Hotema believed in witches, and that it was the result of his investigation and belief as to what the Scriptures taught, and that he acted upon that belief, thinking he had the right to kill the party he is charged with killing, because he thought she was a witch, but at the time he knew it was a violation of human law and that he would be punished therefore, in that event it would not be an insane delusion upon the part of Hotema, but would be an erroneous conclusion, and, being so, would not excuse him from the consequences of his act.39
The Supreme Court agreed, and although Hotema’s letter to the press in April 1899 was not considered, it confirmed that he knew he was violating human laws as set down by the United States legislature
A campaign now began to seek a presidential pardon to commute the death sentence. The eminent psychiatrist Dr Alonzo Blair Richardson, superintendent of the Government Hospital for the Insane at Washington DC (now St Elizabeth’s Hospital), a published authority on melancholia and delusions, and recently elected president of the American Medico-Psychological Association, was requested to investigate Hotema’s mental state. He concluded that Hotema earnestly believed in witches and that there was no evidence of insanity ‘outside of the belief in witches’. The motive for the killing and the act itself were attributed to defective reasoning stemming from ‘racial characteristics, the degeneration of brain due to habits of intoxication, or more probably the increase in the strength of his racial characteristics’. Richardson, who died shortly after writing this, recommended that the sentence of death be commuted to life imprisonment.40 One of the key petitioners on Hotema’s behalf was Republican Judge Thomas Chauncey Humphry (1846—1937), an active member of the Paris First Methodist Church. President Theodore Roosevelt obliged. Connected or not, in 1904 Humphry was appointed by Roosevelt as United States District Judge for the Central District of the Indian Territory. Roosevelt faced some criticism for the decision, but as the Dallas Morning News commented:
If the convict really believed the persons to be witches, and that they were using the power of Satan to destroy his family, as he claimed, then he should not be hanged for the crime. It has not been so long a time since some of our ancestors were doing the same thing, and, however revolting the chase after witches may now appear to be, we should not forget to be merciful to the benighted Indian who has not yet caught up with the procession.41
While criminals convicted by the Paris court usually ended up at Fort Leavenworth, Kansas, because of his age and having lived in a southern climate all his life, the Department of Justice agreed that Hotema be incarcerated in the Atlanta Penitentiary. One of the Texas marshals who escorted him to Atlanta remarked,
I have guarded the prisoner all through his incarceration and I never saw a man with a better disposition. His meetings with his family and friends have been particularly affecting. He is a proud man and has never complained. We have never placed a handcuff on him. As you saw us bring him in, so we have always treated him. During his term in jail he has always read his Bible and prayed daily.42
Hotema now claimed that he was temporarily insane when he committed the murders, and expressed confidence that he would be pardoned and so be allowed to spend the rest of his days at home with his family. In December 1906 a meeting of evangelical ministers in Atlanta, amongst them E.C. Cronk, and J.F. Purse, passed a resolution to campaign for Hotema’s pardon. He was by now in failing health, and it was thought he did not have long to live. They were unsuccessful, for Solomon died in prison on 23 April 1907 from phthisis pulmonalis, tuberculosis, in other words; the white plague. He was buried in an unmarked grave in the prison cemetery.43 No-one knows what happened to his prison manuscripts. An attempt to trace the trial records in 1999 proved unsuccessful.44
Hotema’s case proceeded in a relatively straightforward manner. It was not always the case when Native-American witch slayers were prosecuted. The Major Crimes Act of 1885 should have clarified the law, but well into the twentieth century, witch killings continued to expose unresolved tensions regarding the boundaries between Native American, state, and federal law. When, in 1886, a Zuni man was put on trial for witch murder in the district court at Albuquerque, New Mexico, for instance, the presiding judge ruled that the offence was not against the United States and referred the case to the territorial grand jury.45 The following year Dick Wyneco shot dead a medicine man in the Yakima Agency, Washington, believing he had bewitched his son. He was arrested by the agency authorities and a council of Yakima asked what would happen to him. They were informed of the Major Crimes Act of 1885. In response they complained they knew nothing about this law, and that while they were satisfied with its application in the future, they felt it was unfair that Wyneco be tried under this federal law when he and they were unaware of it.46 In 1902 two headmen of the Umatilla tribe in Oregon named Toy Toy and Columbia George murdered a medicine woman named Anna Edna believing her to have witched Toy Toy’s father to death. George killed her by dosing her with strychnine. A county court found the two men guilty—they did not deny it—and sentenced them to hang. After an appeal, the Oregon Supreme Court ruled surprisingly that state courts did not have jurisdiction over killings between Indians. They were tried again at a federal district court in Portland before an all-white jury, where it was reported that ‘an odder plea and a more picturesque trial have never been known here’. The defence played the witchcraft card ‘for all it was worth’, making reference to the Salem trials. The two men were found guilty but the jury recommended life imprisonment rather than hanging. Toy Toy continued to launch appeals over the next few years, and US President William Howard Taft eventually pardoned both men in 1911 and 1912.47
Even when the supremacy of US law was clearly established, prosecutions were difficult to pursue because sometimes Native Americans were reluctant to give evidence or gave false information, unwilling to submit their own people to the scales of‘ white man’s’ justice. An Indian agent supervising the Mescaleros of New Mexico reported in 1885 that an attempt had been made to execute an old woman after a medicine man had identified her as a witch. She was shot through the hip, and survived after treatment by an agency doctor. ‘The punishment of the perpetrators of this dastardly outrage is next to impossible, as the Indians will give no information’, he complained.48
Then there were the cultural issues about imposing the full weight of American jurisprudence where it clearly conflicted with native moral and judicial conceptions of justice. Considering the pervasive racism towards Native Americans at the time, white juries and judges sometimes demonstrated surprising sensitivity to cultural defence arguments. Salem nagged the white conscience of course. When a Mescalero Apache agent reported in 1883 that an old woman had been burned to death for witchcraft, he remarked that while people might be shocked, the Indians were only a century behind the Puritan fathers, and in this light it was not ‘such a strange thing after all’.49 In 1874 an all-white jury at Olympia, Washington territory, returned a verdict of not guilty on a mixed-race Indian named Harry Fisk who shot dead a Squaxin medicine man who he believed was responsible for his wife’s long illness and death, accusing him of throwing an evil spirit into her. Fisk pleaded self-defence and his case was successfully argued by Judge Dennison. Fisk and his wife sincerely believed that she would die if the medicine man was not killed. Still, the court’s decision smacked of double standards to some in the Squaxin community. When, in 1879, an old man of another Washington tribe, the Puyallup, was tried for killing a medicine man he accused of bewitching his children, the grand jury refused to indict him. ‘This was unfortunate as it leads them to believe our laws do not punish for such matters’, reported the local Indian agent. ‘I will now have to turn the old man over to the council of the reservation to be punished as they may direct’.50 Thirty-three years later, two Navajos killed a medicine man with an axe because they said he had done much harm in the community and had to be killed. They had been appointed to do it by the community, and if they had not done it then others would have: the witch had to die. Again their defence team did a good job. There was a hung jury, and after long delays for a retrial it was decided that they be paroled to the superintendent of the Fort Defiance agency.51
Why could the cultural defence not also be applied to some European-American witch killers as well? Joseph Heidt could have argued that the custom and belief of his Bavarian ancestors considered witches real and deserving of death. In his father’s grandfather’s time witches were still being executed by the state. Was another double standard at work? The fundamental legal difference of course, was that some Native American tribal laws had ‘from time immemorial’ ruled that witchcraft was a capital offence, and, as with the Navajo, they had not been changed or expunged. In America and Europe, the law, at least by the nineteenth century, was clear that witchcraft was no longer recognized as a crime. The belief in witches might mitigate a murder but only if it could be proven that witchcraft belief was symptomatic of insanity. The argument that the killer did not know that witchcraft was no longer a crime, while plausible, as evident from examples in a previous chapter, was never raised as mitigation. After all, execution was murder if not sanctioned and performed by the state.
So Hotema’s lawyers had few options. A cultural defence stood no chance, partly because he was so thoroughly westernized and educated in US law, but principally because his offence also contravened the Choctaw laws against witchcraft drawn up in 1834, though this was not raised in reports of the trial. What made Hotema’s case more unusual was that rather than appealing to indigenous custom, his defence argued on the basis of his profound belief in the supremacy of
Mosaic law. While the courts may have decided Hotema’s biblical conviction was ‘an erroneous conclusion’, the decision raises intractable issues about cultural moral equivalency before the law. In essence, the Bible on which American society was often claimed to be founded, was deemed a less convincing justification for witch killing than the customary law of peoples often decried as pagans.