The relationships between prominent Texas cattleman Tom Burnett, Comanche woman Jennie Ho-we-ah and Comanche Chief Quanah Parker prompted a long courtroom battle.
In 1943 the last battle between Comanches and white men in Texas ended, and as on so many fields before, the Comanches were routed. But this battle was fought not on the Staked Plains of west Texas but in the state Supreme Court. The loser was a half- blood Comanche woman, and the winner was the estate of powerful Texas cattleman Tom Burnett. How those two came to square off in a Texas courtroom is one of the great untold stories of Texas history and a window into the last shameful secret of Indian-white relations.
The Comanches and the whites had been at war for more than a century before peace finally came in the 1870s. The Comanches were settled in Indian Territory (present-day Oklahoma), and the two peoples began living uneasily as neighbors, which led to a different kind of entanglement— miscegenation, or the mixing of the races. In this continuation of conquest and subjugation under another name, the battle of the sexes got all mixed up with conflict between the nations. American history is replete with examples: Thomas Jefferson took his black slave Sally Hemings as a mistress; Comanche Chief Peta Nocona snatched white girl Cynthia Ann Parker from her family during a raid and made her one of his wives (see story in the August 2010 Wild West). These pairings became complicated when they produced offspring and more complicated when they wound up in court. That is what happened with Tom Burnett and Jennie Ho-we-ah.
Thomas Lloyd Burnett, son of legendary cattleman Samuel Burk Burnett, was born in 1871 on the family ranch in Denton County. In 1874 Burk Burnett moved the family 80 miles northwest to Wichita County, where he established the headquarters of his Four Sixes cattle empire. Tom, the younger of two Burnett sons, enjoyed a life of privilege in his youth that included three years at Virginia Military Institute. He was a man’s man in every sense of the term, sowing his share of wild oats but never actually crossing the line insofar as the law was concerned. According to the authoritative Handbook of Texas, he served in the 1st U.S. Volunteer Cavalry under Teddy Roosevelt during the Spanish-American War, though his name is absent from the official unit roster, and Burnett ranch records show him on a cattle drive that summer of 1898. His war service and the title “Colonel” occasionally applied to him are both probably part of the Texas-sized Burnett legend. (It could also be that newspapers had confused Tom with his father, who was known as “Captain Burnett.”)
What is true is that Tom became his father’s right-hand man running the sprawling Burnett ranch, which comprised hundreds of square miles on either side of the Red River. Father and son were lords of their domain. When not on horseback, Tom tooled around in a big gray Pierce-Arrow touring car.
One of the Burnett family’s business partners was Quanah Parker, chief of the Comanche Nation. The reservation lay just north of the Red River, and Quanah arranged to lease 300,000 acres of tribal land to the Burnetts. The partnership blossomed into an enduring friendship, with the Burnett men as occasional hunting guests of Quanah, and the great chief as an honored guest on numerous occasions at cattlemen’s conventions. Quanah, as was traditional among Comanche males, had numerous wives (reputedly seven). He often traveled with two or more of them, at least until the “white fathers” in Washington pressured him to commit to one. Thereafter, he made public appearances with only one, but back home in Indian Territory he remained patriarch of a polygamous family.
Although the Burnetts were considered quite respectable, neither father nor son apparently limited himself to monogamy. Burk divorced first wife Ruth Lloyd and was not always faithful to his second wife, Mary Couts Barradel, but he did keep his affairs discreet. Tom had a string of wives and lovers, including in the former category Ollie Lake of Fort Worth, whom he wed in 1891. They had a daughter, Anne Valliant Burnett. In 1918 Tom took up with rodeo queen Lucille Mulhall and divorced Ollie, an act that so outraged his father that the old man adjusted his will to leave his son what the newspapers called “a paltry $25,000” per year upon his death in 1922, while the balance of the estate, valued at $15–20 million, went to Anne, making her “one of the richest young women in America.” The heiress was single, although later that same year she married 38-year-old Guy Waggoner, scion of another legendary Texas cattle family and worth an estimated $75 million. Tom did not particularly need his father’s money because by this time he was carving out a cattle empire of his own in north Texas and Oklahoma with headquarters in Iowa Park, Texas. He spread his wealth around, giving generously to charity and helping every down-and-out cowboy who put the touch on him. At his death on December 26, 1938, he left an estate worth more than $3 million to Anne. The will was filed for probate in Wichita County on January 3, 1939.
Tom L. Burnett’s relations with the Comanches didn’t stop with Quanah Parker and land-lease deals. He also became involved with Jennie Ho- we-ah, a full-blood American Indian born on the Comanche reservation in 1884. Her journey through life was sad even before she met Burnett. Her mother was Kah-che, and, according to later court papers, the girl had been born “while [Kah-che] was living under the roof of Ho-we-ah,” who may or may not have been Jennie’s father, since she later claimed a connection to Quanah Parker, which was quite possible, considering the convoluted family relations among the Comanches. After Jennie’s birth Ho-we-ah kicked out mother and child, perhaps over Kah-che’s purported liaison with Quanah. They went to live with Jennie’s grandmother, Kerts-sumah, at Red Store (aka the Old Agency Village), near Fort Sill, Oklahoma Territory. By 1904 Kerts-su-mah was suffering from tuberculosis, but that didn’t stop 20-year-old Jennie from continuing to live in her tepee. The girl knew little about the outside world. Her only white contacts were the federal agents, soldiers and storekeepers at Fort Sill, and the farthest she had ever traveled from home was the Chilocco Indian School in northern Oklahoma Territory, where she boarded during the 1903–04 school year. It was at Chilocco that Jennie learned to read and write and took instruction in traditional domestic skills. Years later she would sign for her annuities in neat script, using her alternate Comanche name, Tah-kof-per.
Jennie’s time at school was as much an exile as an educational experience. Kerts-su-mah sent her to Chilocco to keep her away from Tom Burnett, who may have seduced Jennie when she was perhaps as young as 16. The 30ish Burnett was often in the Red Store area looking after the family cattle interests. It was only a two- or three-day ride from his home in Wichita County. Apparently both the cattleman and the maiden were smitten, because they made no attempt to hide their relationship. Burnett’s visits stretched out sometimes to 10 days, and it was generally agreed around Red Store that he “kept company with Jennie” during those visits.
In 1904 the Indian agent at Fort Sill arranged for Jennie to work for Walter Silcott, a stockman in northern Oklahoma Territory, earning $2 per week as a domestic. The ulterior motive was to keep her away from Burnett. The stratagem failed, however, as in December 1904 Jennie was discovered to be several months pregnant, a condition that by law had to be reported to the Indian agent, Colonel James F. Randlett, who ordered Jennie to identify the man “guilty of her downfall.” The government was not so much worried about her virtue as about establishing “the quantum of Indian blood” in her child, thus determining their eligibility for a federal annuity. Silcott, concerned for his own reputation, forced her to sign an affidavit naming a local farmer as the father. The child, a girl, was born on March 29, 1905. Jennie entered her on the Comanche rolls as Lenna Ho-we-ah and wrote “unknown” in the space for the father’s name. According to Comanche custom, Lenna went by her mother’s Indian surname as long as she remained single, thus keeping Tom Burnett anonymous, at least legally. In the absence of DNA testing and with Jennie remaining stubbornly silent, rumors were rife that “any one of several white men in the area” might be the father. If Jennie was connected in any way to Quanah, the great chief did not reach out to her or her daughter.
There was not room for three in Kerts-su-mah’s tepee. Perhaps feeling a twinge of guilt, Burnett bought a brand-new canvas tepee for mother and daughter and set them up nearby. In a trial nearly 40 years later, contested testimony suggested that Burnett continued to see Jennie regularly, often stopping over on the way to and from home, an arrangement that continued until she came up pregnant again in 1906. A pregnant woman with a toddler could not live in a tepee on the prairie, and she could not move to the Burnett ranch. Other living arrangements would have to be made. A middle-aged couple, Mr. and Mrs. Edward Emmett Cox of Lawton, took them in. He was a successful rancher who leased Comanche allotments and was prosperous enough to afford house servants. More important, Mrs. Cox was Nau-nocca, eldest daughter of Quanah Parker. In the first quarter of 1907 Jennie gave birth to a son, whom she entered on the Comanche rolls as Leslie Ho-we-ah with “unknown” again written in the space for the father’s name. Two-year-old Lenna now had a baby brother, or at least half brother—which one was yet to be determined. Burnett publicly owned up to his paternity in Leslie’s case and paid all of Jennie’s medical bills.
Jennie had a much bigger problem than questions of paternity. Leslie’s birth caused serious complications for the mother that required surgery three years later in a Lawton hospital. Burnett paid all those bills, too, plus a generous $100 tip to the surgeon. For the next two years he supported Jennie and the two children (encouraging speculation that both were his). Leslie was a sickly baby, however, and died before his second birthday. Jennie and Lenna continued to live with the Coxes, who did not approve of her unmarried state yet refused to allow her to marry Burnett, something he wanted very badly. Whether the Coxes thought they were protecting the girl or the Burnett family is unclear, but they pressured Jennie instead to marry one of their farmhands, a widower named Jess Davis. Burnett supported Jennie financially right up until the knot was tied. Tom and Jennie’s relationship ended in the latter part of 1910. Jess and Jennie were wed in a civil ceremony on February 4, 1911. She was 21. Their marriage lasted just a year and nine months, ending when Jennie died on November 30, 1912. During the last few months Jess’ sister-in-law, Mary Davis, cared for Jennie.
Now an orphan, Lenna became the object of a tug-of-war between her white stepfather, Jess Davis, and her white self-appointed guardians, Mary and husband George Davis. Both sides expressed a desire to adopt her, an arrangement that would not only be a kindness for the girl but also give them access to her Indian annuities. Because of Lenna’s ethnicity, however, no white person could adopt her without the consent of Ernest Stecker, the Kiowa-Comanche Agency superintendent. It would be his decision, not a judge’s, where Lenna Ho-we-ah ended up. Mary Davis wrote the agent an unpolished but heartfelt letter stating it had been Jennie’s last request that Davis “take care of the child,” and “I would like to have her as my own.” Stecker took his time deciding. He asked Dr. Louis A. Milne of Lawton to investigate, including Lenna’s family background and the fitness of all petitioners for adoption. Of all the involved parties, Milne was the only one whose motives seemed purely altruistic; he had no financial interest, no name to protect, nothing to gain or lose in where Lenna wound up.
Milne’s investigation convinced him Lenna’s father was white, but that did not make Burnett the father. He characterized her as “a bright child and above the average physically” for an 8-year-old. He also offered his candid impressions of the respective Davises, describing Mary as “an ordinary country woman [whose] interest in the child is sincere.” Jess Davis, he wrote, “is an easygoing sort of fellow, not overambitious and very ordinary, but I believe he is honest. He wants to care for this child but is entirely incompetent, [because] he is too young and has no way of caring for the child himself.” Milne’s considered judgment would play the biggest part in determining where Lenna was placed, and his concern for her welfare was obvious. “She needs a mother or guardian very badly,” he wrote. “Within the next four or five years this child will be a woman.…If she has not the proper surroundings, she will be sure to marry or go the same way as her mother.”
Based on the doctor’s recommendation, Lenna was made a ward of Mary and George Davis. On April 21, 1913, they formally adopted her and applied in federal court for her allotments. It would be nice to think that all the whites in Jennie’s and Lenna’s lives wanted only what was best for them, but the evidence suggests otherwise. To anyone not as wealthy as Tom Burnett, Jennie brought an attractive dowry to a marriage; she had both allotments and annuities, the latter totaling $800 per year for herself and Lenna. During the adoption battle over Lenna, the clerk of the Kiowa-Comanche Agency noted, “There is quite a bit of land involved here.” Jess Davis collected wife Jennie’s annuity checks until her death. He soon remarried, and he and his new wife collected Lenna’s checks in some kind of unofficial arrangement with Mary and George Davis. How much of her federal annuities Lenna ever received is unclear.
What is known is that when Lenna reached adulthood (then going by the name of “Lena”), she fled her adoptive parents. By the time she fell in love with Perry McArthur in 1929, she had become “a woman of notable dignity and beauty.” According to later court testimony, McArthur, a Methodist preacher, went to see Burnett at Iowa Park to ask for Lena’s hand in marriage. The couple tied the knot that same year in Devol, Okla. They eventually moved to Washington state and had three children. Sometime after 1938 they learned of Burnett’s death and together decided Lena should file suit in Wichita County Court, Texas, demanding a share of the estate. That was done on October 28, 1941. Three months later the case was moved to district court.
Lena’s suit claimed that Tom Burnett and Jennie Ho-we-ah had lived together as man and wife from 1903 until 1911 and that “Thomas Lloyd Burnett provided all the necessities of life for the said Jennie and her daughter Lena.” The suit further stated that Jennie had “no knowledge whatsoever” of Burnett having another family in Texas.
Indians had been allowed to sue in federal court since 1879 and considered full U.S. citizens since 1924, so presumably the McArthurs had standing in Texas courts. Now, in 1941, those rights were about to bite Anne Burnett Hall where it hurt most—in her bank account.
Anne was no shrinking violet. She had inherited her grandfather’s toughness and knew her way around a courtroom. She had already divorced one husband and was working on a second divorce when the McArthur lawsuit landed in her lap. The family business interests could not allow this assault on the Burnett patrimony. Anne Hall kept Cantey, Hanger, McMahon, McKnight & Johnson of Forth Worth on retainer for all of her legal affairs. Her attorneys began by digging deep into Lena’s family background, going back to her grandparents. Among the first things they discovered was that the Comanche side of the Parker family did not claim her. On May 27, 1911, 16 of Quanah’s children had held a powwow at Star House and drawn the family circle tight, recognizing To-nar-cy as Quanah’s legal wife and themselves as the only lawful heirs. Quanah had died just three months before, and opportunists were coming out of the woodwork to claim the name and a share of the estate of the great Comanche chief. That powwow excluded Jennie Ho-we-ah from the family circle for all time, at least insofar as they were concerned. It was a devastating snub. And that was just one part of the defense’s case.
On June 9, 1942, the trial of Lena McArthur, et al v. Anne Valliant Burnett Hall, et al opened in district court at Wichita Falls, the heart of Burnett country. Still, it promised to be a complicated affair. There were two questions before the court: 1) whether plaintiff was the daughter of Tom Burnett; and 2) whether she was entitled “to inherit from him.” Even if Lena won on both of those points, a separate trial would be necessary to determine the validity of Burnett’s will, and breaking a legally drawn-up will would be every bit as difficult as establishing paternity. But the case never got that far because the jury found for the defendant, declaring Jennie Ho-we-ah’s claims “unsubstantiated.”
The verdict was hardly surprising, as the plaintiff had played a weak hand. Lena never claimed her mother had married Burnett in “a tribal, ceremonial marriage.” Instead, she took the trickier route of arguing that Jennie and Tom had “cohabited,” making theirs a common-law marriage. Since Tom lived in Texas and Jennie lived in Oklahoma, and since Burnett was already legally married, a fact known to folks on both sides of the Red River, proving cohabitation was hopeless. The defense even produced a photo of Burnett holding his infant daughter Anne that had hung in Quanah’s house at Cache for years, thus refuting Lena’s claim the Comanche community knew nothing of Tom’s white family.
Both sides called a parade of Indian witnesses who testified that Tom and Jennie were or were not a couple. There were so many such witnesses that the court employed a Comanche man, Albert Attocknie, to spend the duration of the trial sitting in front of the bench “ready to serve as interpreter when needed.” The defense subpoenaed Quanah’s only surviving wife, To-pay, and her testimony cast aspersions on Jennie’s character, rebutting Lena’s contention that her mother “had never lived with any other man, either Indian or white,” before Burnett. What was clear from all the Comanche testimony was that Burnett and Quanah had been “lifelong friends.” More questionable was the defense claim that Anne herself had been a favorite of Too-nicey, another of Quanah’s wives.
In the end, the most that could be proven was that Tom had been a frequent visitor and that the most substantial gift he had ever given Jennie was the store-bought tent they were said to have shared when he came calling in Oklahoma. Counsel for the plaintiff tried to show that Tom and Jennie were a couple in 1904 when Lena was conceived, but even that would only establish a relationship, not a common-law marriage, much less paternity. Witnesses for the plaintiff testified that Burnett had “called Lena his child and Jennie his wife,” but nobody called to testify had ever heard Jennie say she thought of Tom as her husband, and when she went to the Indian agent to register Lena, she did not enroll the child as a “Burnett.” The court ultimately found that Tom Burnett and Jennie Ho-we-ah had never entered into a common-law marriage “in good faith.”
Counsel for the plaintiff had suffered a stinging defeat but refused to give up, appealing to the Texas Court of Civil Appeals. That court affirmed the original verdict on February 26, 1943, dismissing the plaintiff’s claims as circumstantial evidence. Worse, the judges dismissed the case “with prejudice,” meaning Lena could not file additional claims based on the same facts. Still she was not done. The Comanches had fought hopeless battles before. Her grandfather would have said the honor was in the fight, not the victory. She took the appeals court verdict to the Texas Supreme Court, citing “errors” in the original court proceedings. Lena was denied a third time. The state Supreme Court refused even to consider the case, citing “want of merit.” Final score: white men’s courts 3, Comanches 0. But hardly anyone noticed. Although the courtroom fight had dragged on nearly a year, involving one of the richest families in America—among the best-known not only in Texas but also the entire Southwest—it flew below the radar, because the nation was in the midst of World War II.
As for dragging Quanah’s name through the mud, it had been the Burnett estate that introduced the purported connection, not the plaintiffs. That was because Lena, growing up, had always heard from her mother that Jennie was the offspring of the great Comanche chief, but there was no paperwork to back up this (not unreasonable) claim. And when Jennie left Walter Silcott’s household with Lena, they were taken in by Quanah’s oldest daughter, Nau-nocca (Mrs. Emmett Cox). And it was the Coxes who blocked her marriage to Burnett, although it is unclear whether they thought they were protecting Tom or Jennie. In preparation for the trial 35 years later, the defense team had assembled Indian registries and annuity payrolls to prove Jennie was not a blood relative to Quanah—just to be ready for any curveballs the plaintiff might throw. All counsel for the plaintiff was able to prove was that Jennie had been a full-blood Comanche born on the reservation.
Lena’s case was sunk by a combination of factors, mostly by being unable to meet the burden of proof and coming up against some of the best trial lawyers money could buy. Her mother’s relationship with Burnett, intimate though it may have been, simply did not meet the legal definition of “common-law marriage” in either Oklahoma or Texas statutes. The biggest sticking point was that everyone knew Tom had a wife and child back in Fort Worth, so no one could have reasonably assumed a common-law marriage existed between him and Jennie.
Then, of course, there were the high-powered lawyers. Cantey Hanger brought in a local firm, Kilgore & Rogers of Wichita Falls, to assist on the case, but there was no doubt who was pulling the strings—the big boys out of Fort Worth. Cantey Hanger had been one of the most prestigious firms in the state for years, and the senior partners only devoted their personal attention to the biggest cases. Counsel for the plaintiff, on the other hand, comprised a bunch of Wichita Falls and Lawton lawyers with less sterling pedigrees. The court battle was a massacre. Lena’s side didn’t even score sympathy points after the defense portrayed her as a golddigger and her mother as a woman of easy virtue.
When the legal affair was all over, the celebrated friendship of the Burnett and Parker families had been upheld and Tom Burnett’s estate disposed of as he had wished. Anne Valliant Hall went on to two more high-profile marriages that kept the Burnett name as high in Texas society as it was in Texas history. But the McArthur-Hall lawsuit is not part of the family’s public history, at least not around Fort Worth, where Burk Burnett Park, Burnett Plaza and the Burnett Foundation all stand as visible symbols of their Lone Star State wealth and influence.
As for Lena McArthur, she went home to Washington state, and there is no evidence she ever returned to Texas. If her defeat at the hands of Cantey Hanger was not exactly the white man’s revenge for the Comanche kidnapping of Cynthia Ann Parker and countless other innocents in the early days, it was definitely the Comanches’ last stand in their historic war with the whites.
Richard Selcer of Fort Worth often writes historical books and articles about his hometown and is a frequent contributor to Wild West. Suggested for further reading: Written in Blood: The History of Fort Worth’s Fallen Lawmen, Vol. 1, by Richard Selcer and Kevin Foster; and From Guns to Gavels: How Justice Grew up in the Outlaw West, by Bill Neal.
Originally published in the February 2011 issue of Wild West. To subscribe, click here.