As they recrossed the Dove at a dead gallop, they found Fossett heavily engaged. He had occupied a live oak ridge facing the Indian camp and was in a “V” of land formed by a small branch adjoining Dove Creek, the branch to his right and the dove to his left. The position was poorly chosen. The Indians slipped up the two channels, caught the Confederates in. a deadly cross-fire and threatened to overrun the ends of the . To protect his flanks Fossett sent lieutenant J.R. Giddens and one company to the left along the Dove and Lieutenant Brooks and another company to the right along the branch. Fossett held the center with the remainder of the troops.

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After only an hour of fighting, the mystery of the Indians’ identity and their intentions was solved. Fossett’s Confederates captures three of the herders, an old man who could speak English and two ten-year-old boys. When questioned, the old warrior told them that the Indians were Kickapoos and a few Potawatomies who had been in the service of the Confederacy in Kansas. Growing tired of the war, they had decided to migrate to Mexico where a small band of their tribesmen lived. He showed them a pass issued by W.M. Ross of the Potawatomy Agency in Kansas, authorizing him to hunt buffalo until February 4.(They later discovered similar passes on the bodies of two other Indians.) He also laconically informed them that the battle might be stopped if they could talk to his chief, No-Ko-Wat, but it might be dangerous to try it at that moment.

The soldiers asked Fossett what they should do with the prisoners. He replied, “In Indian fighting it is not customary to take prisoners.” the soldiers shot the old man and had turned their rifles on the boys when Brooks Lee told them he would kill the first man who harmed them. Fossett did not speak up, and the men backed down. Later in the day the boys escaped to their own camp. Even then, with disaster looming and knowing that the battle might be stopped, Fossett still made no attempt to contact the Kickapoo chief.

About 2:00 the temp of the fighting died down. Most of the Kickapoos retired toward their central camp, leaving about seventy-five sharpshooters to keep the troops pinned down. What the soldiers had guessed about the Indians’ accuracy with the Enfields was borne out when one warrior from several hundred yards dropped Private Wylie with a bullet through the head.

As the Confederates began to hope that the Indians were disengaging, a fierce fight broke out on the right. Fossett sent urgent word to Lieutenant Giddens that the withdrawing Indians had concentrated against Brooks and were overrunning him. Giddens sent all the men he could spare, thirty-five, as reinforcements. They joined a contingent released by Fossett and attempted to reach the embattled lieutenant. They found him and his men in full retreat toward the center, driven by the Indians after being forced out for their position in an oak grove. Rallying, the three squads charged the Kickapoos who bravely stood their ground. When the whites were within twenty yards of them, the Indians broke back to the cover of the creek. The soldiers reoccupied the position.

By three o’clock, everyone realized that the situation was desperate. The Indians had been rounding up stray horses all day and now had about eighty-five warriors mounted. Besides the dead, there were at least thirty-five Confederate wounded lying under the oaks at the aid station 500 yards to the rear. The Regulars could expect no help from Totton and his thoroughly beaten militiamen. Their only hope was to hold out until dark and make a run for it.

Fossett circulated the plan for the retreat. The wounded who could ride would be put on horses; those who could not would be tied in their saddles and led by the slightly wounded on foot. As soon as they had started, Cureton would move the herd. It was imperative that the horses be kept from the Indians: If they were to pursue the retreating Confederates in strength, they had to be mounted. The main force under Fossett would screen the wounded and the herd as they crossed Dove Creek upstream. A rear guard of two companies under Lieutenant Giddens would keep the mounted Indians busy. The order to cross the creek is inexplicable, as the soldiers could have retreated in safety to the west.

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