DEADWOOD
Dock at Winding Creek
DRAPER’S PAPER ROUTE
DEADWOOD
by Adam Carroll Draper
Lawyers often joke among ourselves that no good deed goes unpunished. I don’t really believe that, but I understand the sentiment. Consider the untimely demise of Wild Bill Hickok, for instance.
Wild Bill was playing cards one night with a stupid drunk named Jack McCall at Nuttall and Mann’s # 10 Saloon in a place called Deadwood in Sioux Territory. Jack lost everything he had (mostly to Wild Bill) and was trying to borrow more. Perhaps rubbing it in a bit, Wild Bill gave Jack enough money to buy himself breakfast, suggesting as well that he not gamble any more until he actually had some money. Jack felt slighted by this.
The next day, August 1, 1876, was Wild Bill Hickok’s last. He went back to Nuttall and Mann’s and seated himself with his back to the door. Jack McCall was drinking at the bar. At a time deemed opportune by Jack, he walked up behind Wild Bill and shot him in the back of the head with a .45 caliber pistol, yelling, “Take that!” (which is, incidentally, the punch line to one of my favorite jokes). If you will recall, Wild Bill Hickok was holding a fairly good hand, two pair – aces and eights, now known as “the dead man’s hand.”
Paula Parker, my former paralegal (now retired), called me yesterday with what I call a Rooster question. I call her “Rooster” because she is apt to make various and sundry pronouncements of the obvious, such as, “It’s quittin’ time,” and because she has a penchant for pestering me with questions that tend to be involved and inane. Apparently, Rooster has been watching the HBO series Deadwood, and one of the episodes they are running is about the Hickok and McCall saga.
Deadwood was not anything close to a recognized entity. The people were there illegally, looking for gold, in what was recognized by treaty as Sioux Territory. So when the “townsfolk” grabbed Jack McCall, they had to decide what could be done with him, since they were themselves living in a state of lawlessness. This is the question they were dealing with in the episode of Deadwood that Rooster watched. She wanted to know the answer to that question. In fact, she wanted to know how any court could have tried Jack since he was essentially in another country when he killed Wild Bill.
Well, here is what actually happened. The people of Deadwood set up a mining camp court (which was done quite frequently in those days), assigned a prosecutor, defense attorney, judge and jury. Jack testified that he killed Wild Bill Hickok because Wild Bill killed his brother; and the mining camp jury acquitted him. It was later determined that Jack never had a brother, but I guess it seemed plausible at the time. After hanging out a bit in Deadwood, some less than gentle cajoling lead Jack to understand that that his continued presence there was not necessarily conducive to his health. He went to Wyoming. Remember when I called him stupid earlier? Jack started running all over Wyoming, claiming that he had killed Wild Bill Hickok in a fair fight. He was arrested in Laramie by a U.S. Deputy Marshall, who hauled him to Yankton (now South Dakota) before the Chief Justice Peter C. Shannon, presiding over the supreme territorial court.
Judge Shannon appointed General William S. Beadle and C.J. Shannon (a distant relative of the judge) to defend Jack. They made a motion to dismiss the government’s case, arguing that the crime happened in Sioux Territory and the court did not have jurisdiction. The judge dismissed the motion. Jack McCall was convicted of the murder of Wild Bill Hickok and sentenced to death by hanging. The case was appealed to the U.S. Supreme Court, which refused to hear it. Jack McCall was hanged thereafter and buried with the noose still around his neck.
The answer to Rooster’s question is that the United States retains jurisdiction over its citizens wherever they are. This was well settled as a principal of international law in 1876. She said she thought that if you did something in another country that was not a crime there, you could not be tried for it here. And I answered her the way any lawyer would, “Well, it depends.” Rooster doesn’t like that. She always wants to know what the rule is.
Let me say this very generally, if you go over to another country and do something so bad that our government thinks it harms America or another American, they are going to find a way to prosecute you. That current way of looking at the law differs greatly from how jurisdiction was viewed at the time of Jack McCall’s case. Even then, however, if an American murdered another American in Canada and came home bragging that he got away with it, the result might have been the same. In Jack McCall’s case, the fact that it happened in Sioux Territory is another wrinkle because Sioux Territory was still considered to be part of the United States. Considering that the Supreme Court just decided this week to hear a case (Herrera vs. State of Wyoming) involving a member of the Crow Nation’s complaint that the government was denying him hunting rights in Wyoming in violation of a treaty made in the late 1800’s, you can imagine the prickly nature of Jack McCall’s case then.
The list of things done abroad that the government says affect America has expanded considerably since 1876. It is sort of like what has become of the interstate commerce clause in the Constitution, which gives the federal government jurisdiction over anything that affects interstate commerce. According to Dan Pollock, one of my professors in law school, the way the Supreme Court interprets the interstate commerce clause now, “unless you live naked in a tree, you affect interstate commerce.” The governments view of what affects America has “evolved” similarly. After all, In 1876 we still considered ourselves a neutral country, not the semi-reluctant officiant of Pax Americana. The government is far more likely now to punish American citizens for things done in other countries. If you want to know more about this jurisdictional issue, I offer the following for your reading pleasure. See U.S. v Youssef, 327 F.3d 56 (2nd Cir.)(2003); and U.S. v. Ali, 885 F.Supp.2d 17 (US District Court DC)(2012). You can read this law review article on line as well: https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1333&context=facpub
This is likely way more information than you wanted, but please excuse that as I am also answering Rooster. I ran her question by some friends yesterday, although doing so - and writing this - both make me an accessory to a Rooster question. Larry Wagner, partner at my firm, said Jack McCall’s story reminded him of an old lawyer down East, who kept a large mouth bass mounted on the wall behind his desk. He would often ask his clients, “Do you know why that thing is mounted on my wall?”
Because it had a big mouth!
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