The Legal Boundary of Humanity

Webster describes a person as “a living soul; a self-conscious being: a moral agent; especially a living human being; a man, woman or child; an individual of the human race.” This is comprehensive enough, it would seem, to include even an Indian.


General George Crook was not a crook. He was not even an opponent of Standing Bear. Only in legal terminology were they at odds. Also in legal terminology, an American Indian (according to the U.S. government) was not a person. Ponca chief Standing Bear, supported by General Crook and an increasing cadre of others, changed that. In the process, the boundary of Nebraska changed too. Also changed were the lives of every American Indian—though not necessarily in a way that they, or Standing Bear, may have hoped.

In the 1870s Standing Bear was one of a number of chiefs of the Ponca Nation. The Poncas were a small, peaceful nation that occupied land—repeatedly reduced by treaty—between the Missouri and Niobrara Rivers, today a region along Nebraska’s northern border. Standing Bear raised livestock, grew vegetables, often wore Western farm clothes, and lived in a two-story home. Like many of the Poncas, he was a practicing Christian.2 The tribe had long coexisted amicably with nearby white settlers. Their only enemy was the Sioux, who lived to their north and vastly outnumbered them.

Chief Standing Bear (ca. 1834-1908) (photo credit 38.1)

Conflicting treaties

Standing Bear’s troubles began, unbeknownst to him, in 1868, when the Sioux signed a treaty with the federal government redefining the boundaries of their land. Neither the American negotiators, nor anyone in Washington, noticed that the treaty gave land to the Sioux that had belonged to the Poncas. The error provided the Sioux with a new excuse for a series of raids on the Poncas. The federal government, finally reacting to its error in 1877, did so in ways that revealed the complex web in which all Indian tribes were caught.

Standing Bear and his fellow Ponca leaders were called to a meeting with Commission on Indian Affairs inspector Edward Kemble and the government’s local Indian agent. Kemble had been directed by his superiors in Washington to tell the Poncas that “their interests have been carefully considered, and that it is very desirable that they should be established in a country where the circumstances are more favorable.”3 The more favorable country was in the Indian Territory (present-day Oklahoma).

Although resistant to giving up their ancestral land, the Ponca leaders ultimately agreed and went to look at available areas. Or: Although resistant to giving up their ancestral lands, the leaders ultimately agreed to look at available areas. Kemble, claiming the first version, later testified in a Senate investigation:

Most undoubtedly, they could not be removed without relinquishing their land there, and the next step after such relinquishment, or such agreement to relinquish, was to take a delegation to the Indian Territory to select some other home for them.

Standing Bear, claiming the second version, testified:

He told us he would take us to see this land down there first, and if we were suited we could come to Washington and tell the President so, and if not we could tell the President so.

One could be telling the truth and the other lying, or the truth could “lie” in language itself. None of the Ponca leaders spoke English, so a translator had been employed. Kemble testified, however, that he had hired the best man available:

Q: You had Charlie Le Claire as interpreter?

A: Yes, sir.…

Q: Was that before or after he had been driven out of the territory for fomenting trouble?

A: I had no information on that.…

Q: There did not seem to be any objection to him as interpreter?

A: He was the only one we could get.

Ten of the Ponca leaders, including Standing Bear, went with Kemble to look over the land being offered. When a Senate committee later questioned Kemble, words again proved to be problematic:

A: A great many wanted to go, but the instructions I had received … limited the number to ten.… Big Snake, Standing Bear’s brother, head soldier of the tribe, gave me a great deal of trouble. He wished to go.… But these ten men were insisted upon, and—

Q: Who insisted upon these ten men?

A: Myself and the agent.

Q: You picked out the men?

A: I did not say that.…

Q: Did you not say that you insisted that these ten men should go?

A: Subsequently I did, but that was after objection had been raised by Big Snake.

Even among the ten men selected by Kemble, none liked what they saw. “I said to him, ‘We have seen the land; we have told you we do not like it,’ ” Standing Bear recalled to the Senate committee. “ ‘You said you would take us to Washington to see the President.’ … Then he said, ‘The President did not tell us to take you to Washington.’ ‘Well then,’ we said, ‘take us back to our own land that we came from.’ And he said, ‘The President did not tell us to take you back to your own home.’ … He had given us two alternatives: either to take the land or … walk home.”

They walked. All but the two eldest, who could not do the 400-mile winter trek.

Six weeks later, Standing Bear arrived home to find Kemble. Having traveled by train, Kemble arrived ahead of them and now had new orders from the Commissioner on Indian Affairs. “Removal of Poncas will be insisted upon,” he was instructed. “[Sioux Chiefs] Spotted Tail and Red Cloud must move this summer to Missouri River. Their presence will render further stay of Poncas at old location impossible.” No ambiguity there, except in logic. If the Poncas were being moved from their land (south of the Missouri River) to protect them from the Sioux, why was the government now limiting the movement of the Sioux to the Missouri River? The answer would surface five years later, when Nebraska’s boundary changed.

Standing Bear found his people in panic, with Kemble demanding they pack at once and threatening to use force if they did not. Meanwhile, Standing Bear’s brother, Big Snake, was demonstrating why he was the tribe’s head soldier, having begun to organize resistance. Now that Standing Bear had returned with negative views about the land being offered, Kemble called for the military. He ordered the soldiers to take Standing Bear and Big Snake into custody.

By the time the brothers were released, the forced removal was commencing. Soldiers compelled the Poncas to journey without pause through a spate of horrific weather. The lack of sufficient shelter and rest took the lives of many of the tribe’s oldest, youngest, and otherwise weakest members—including Standing Bear’s tubercular daughter, Prairie Flower, herself the mother of two young children. The death toll did not abate when they were released in the new land, since the government had failed to provide sufficient food, lumber, wagons, and horses. In their first two years in the Indian Territory, one-third of the tribe died. Among them was Standing Bear’s teenage son, Bear Shield.

Following the death of his son, Standing Bear embarked on a plan to lead his people back to their ancestral home. In January 1879 he and twenty-nine carefully selected comrades quietly left the reservation, setting off as the vanguard of what they hoped would be a Ponca exodus. The local Indian agent wired Washington to alert agents posted with other tribes to be on the lookout for Standing Bear and, if seen, to have him returned to the Indian Territory.

Two months after their departure, Standing Bear and his cohorts turned up at the Omaha reservation. They were welcomed by the Omahas and by their government agent. But the agent’s words were deceiving. He contacted the region’s military commander, General George Crook, who promptly sent men and arrested the Poncas.

What happened next, from Standing Bear’s perspective, was difficult to fathom, as he later recalled to the Senate committee:

A: They put us in where the soldiers were, in the fort.… We stayed there all winter.… The soldiers said, “We do this because we were ordered to do so.” …

Q: What did you then suppose they were going to do with you?

A: I supposed they were going to take us back to the Indian Territory.

Q: What did the soldiers actually do?

A: Somebody got the soldiers to let us go. There were three men in Omaha that helped get us away from the soldiers.

Q: You don’t know how?

A: No, sir.

One of the men who helped Standing Bear get away from the soldiers was the assistant editor of the Omaha Herald, Thomas Tibbles. In a book published a year later, Tibbles (masked behind a pseudonym, Zylyff) recalled, “On the 29th of March, 1879, at about eleven o’clock at night … the city editor came in and informed [me] that he had just returned from Fort Omaha … where there was a band of Ponca Indians under arrest for running away from the Indian Territory.” It was not, however, the city editor who came into Tibbles’s office. Tibbles attributed the tip to the city editor to protect his source. It was General George Crook, the commanding officer of Fort Omaha, who came to his office that night.4

General George Crook (1828-1890) (photo credit 38.2)

Tibbles knew a good story when he saw one, and at Fort Omaha he saw one. He wrote it up for the Omaha Herald, then telegraphed it to papers nationwide:

Gen. Crook held a formal council with the Ponca Indians this morning … Standing Bear, hitherto in citizen’s clothes, in full Indian costume [said] … “Before I went to the [Indian] Territory, I had a good house and a barn.… I had cattle and hogs and all kinds of stock, and somebody came and took all my things away.… If a white man had land and someone should swindle him, that man would try to get it back, and you would not blame him. Look on me! … I need help.” …

Gen. Crook, turning to Standing Bear, said, “It is a very hard case, but I can do nothing myself. I have received an order from Washington and I must obey it.”

To describe Tibbles as a journalist is to give his résumé short shrift. As a teenager in Kansas, he had joined the ranks of abolitionist John Brown in the bloody confrontations in which Brown (who later attacked the U.S. Army arsenal at Harpers Ferry, Virginia) was then engaged. After serving in the Civil War—possibly as a Union spy—Tibbles became an itinerant preacher, then a journalist, and eventually an impresario. After seeing his story picked up in Chicago, St. Louis, and three New York newspapers, he knew it would behoove him to keep it going. But how?

Tibbles reasoned that if he were being held by the government, his reaction would be to get a lawyer. He therefore took the case to a lawyer. His keen instincts led him to John L. Webster, a boyhood friend who, much like himself, had substantial ambitions. (Webster later became active in Nebraska politics, unsuccessfully seeking a U.S. Senate seat and the Republican nomination for vice president.) Where Tibbles saw a potentially big news story, Webster saw a potentially big legal issue—so big that, to help assure it got attention, he sought a cocounsel, former Omaha mayor Andrew J. Poppleton. The legal bombshell they spotted was a writ of habeas corpus, a procedure to have a person in custody brought before a judge. It takes place every day in courtrooms across America. But it had never before been applied for an American Indian.

Because Standing Bear was in the custody of General Crook, the petition was presented in court as Standing Bear v. Crook. General Crook, the nominal defendant, did not testify in the proceedings for reasons that, in his memoirs, become crystal clear. “[I] stated bluntly that [my] interest in the case was official, that personally [I] sided with the Poncas,” he wrote, adding, “The Poncas were … simply another case of injustice to the Indians, a subject with which [I] was becoming increasingly familiar.”

As Tibbles had hoped, the court case quickly commanded the attention of the nation’s press. “At Omaha yesterday, Judge Dundy of the United States Court granted a writ of habeas corpus commanding General Crook to show cause why he has in custody Standing Bear and other Ponca Indians who fled from the Indian Territory,” the New York World reported in August 1879. “The United States District Attorney has been directed to … endeavor to have the writ dismissed. He takes the ground that … the Indians stand as wards of the government, as minors are to their parents.”

The U.S. attorney’s legal argument matched the attitude of many Americans at that time, as expressed by Kemble in his later Senate testimony:

A: If the Senator will permit me to say, in dealing with Indians, we must sometimes do as we do in dealing with children … and may have to decide for them what is best … in order to bring them to see things correctly.

Q: To see things as you see them?

A: To see things correctly.

Q: As you see them?

A: As white men see them.

On May 12 Judge Elmer Dundy ordered that Standing Bear and the other Poncas, having committed no crime nor having been charged with committing any crime, be released from custody. In rendering his decision, Dundy rejected the U.S. attorney’s claim that Indians had no legal right to a writ of habeas corpus. “The district attorney … claimed that none but American citizens are entitled to sue out this high prerogative writ in any of the federal courts,” he ruled. “The habeas corpus act describes applicants for the writ as persons or parties who may be entitled thereto. It nowhere describes them as citizens.”

The significance of the judge’s decision detonated in the pages of the press. “The decision of Judge Dundy … virtually declares Indians citizens of the United States, with the right to go where they please, regardless of treaty stipulations,” Boston’s Daily Advertiser reported in May 1879. “The district attorney at Omaha has been instructed to take the necessary steps to carry the case to … the Supreme Court, if necessary. It is felt that to surrender this point is to surrender the whole Indian system.”

The ruling also detonated in the halls of government. Secretary of the Interior Carl Schurz, whose department included the Commission on Indian Affairs, wrote in his memoirs that President Rutherford B. Hayes, in meeting with his cabinet, ultimately opted not to appeal the decision:

The judge’s decision opened up an alarming vista of … restless braves and ambitious attorneys [who] could … thwart the government in its efforts to control the movements of the Indians. Despite this prospect, however … [it was] decided not to take an appeal to the Supreme Court.… [W]rong had been done to the Poncas … but far greater wrongs would result if … [the Supreme Court were] to undo the action of Congress.

Technically, Dundy’s decision applied only to Standing Bear and his companions. If, however, the Supreme Court upheld his decision, it would apply to American Indians nationwide. The Hayes administration feared that, because of the wrongs done to the Poncas, not to mention the legal basis for Standing Bear’s case, the Supreme Court might well uphold Dundy’s decision.

The case reverberated in other directions as well. It stirred public sentiments regarding the treatment of Indians. The Senate launched an investigation into the manner in which the Poncas had been relocated (at which no one testified about the Senate having ratified a treaty with the Sioux that conflicted with a treaty with the Poncas). At these hearings, the most significant reverberation of Dundy’s decision was voiced by Interior Secretary Schurz. Asked about the future security of tribal lands in the Indian Territory, he answered:

I have no doubt that, in the course of time, the land in the Indian Territory not occupied by Indians, will be occupied by whites. But there are certain things that ought to precede that development. The title to the lands occupied by the Indians ought to be … divided among the Indians in severalty … each upon his own farm, like the white people, and get individual titles.… When such an arrangement as this has once been made, the question whether that part of the Indian Territory not occupied by Indians shall be open to occupation by whites changes entirely.

To shift Indian land from tribal ownership to individual ownership—and with it, the right of each Indian to sell his land—would end the tribal way of life in all but its spiritual aspects (the dismantling of which was being handled by missionaries and their schools). On the other hand, as tribes had increasingly been forced to relinquish good land for desolate land in return for payments, rations, and supplies, the tribal way of life had become vulnerable to massive graft and fraud on the part of government agents, their suppliers, and on occasion the Indians’ own leaders.

Among the committee members hearing this suggestion was Massachusetts Senator Henry L. Dawes. Quite likely, Dawes played a role in getting the suggestion into the record, for seven years after the 1880 hearings, the Dawes Act mandated exactly the change in land ownership that Schurz had described. For better or for worse, Indian life would never be the same (see “Alfalfa Bill Murray, Edward P. McCabe, and Chief Green McCurtain” in this book).

For journalist Tibbles, the news event ended with Dundy’s decision … unless a new event were to occur. Tibbles therefore replaced his reporter’s hat with that of an impresario and undertook arrangements for a speaking tour for Standing Bear—a challenging project, since the speaker spoke no English. To serve as a translator, Tibbles arranged for an appealing young woman from the Omaha tribe, Susette LaFlesche, whose uncle was one of the Ponca chiefs. Miss LaFlesche spoke impeccable English, having recently graduated from the Elizabeth Institute for Young Ladies in New Jersey. Tibbles introduced her to the American public using the English translation of her Omaha name, Bright Eyes. Five months after the court case concluded, the trio spoke at a church gathering in Omaha; in October 1879 they began a nationwide tour. The Chicago Inter-Ocean found it to be a highly polished performance:

Last evening at the New England Congregational Church … Bright Eyes, a comely young Indian maiden … attired in Indian costume … [detailed] the wrongs committed by the federal authorities … in simple but forcible style.… Mr. Tibbles, who seems to be a sort of a manager for the Indian troupe … gave a bragging account of what he had done for the Poncas.… Standing Bear, the Ponca Chief, was then introduced and spoke in his own language, which was translated by Bright Eyes. The chief … wore a bright blanket in sash form and a heavy necklace.

Meanwhile, back among the Poncas in the Indian Territory, life continued as if nothing had ever happened. The St. Louis Globe-Democrat reported in early November:

Some time ago, a report was received by [Indian] Commissioner Hayt from the Ponca Reservation … that Big Snake … who last summer caused his arrest and imprisonment for a month at Fort Reno for brutal and disorderly conduct, was making himself a terror to the Indians as well as the agency employees. His rearrest was ordered.… Big Snake, resisting arrest, was shot dead by a soldier. The occurrence caused considerable excitement among the Indians, but it was soon quieted.

Despite the death of Standing Bear’s brother (and, days later, the death of Tibbles’s wife), the show went on. The tour made its way to Boston, where standing-room-only audiences energetically responded. Carefully choreographed or not, the event made its point: Indians were people with the same inalienable rights as other Americans to life, liberty, and the pursuit of happiness. That point became ironic as they arrived at their final destination, New York City. In the Fifth Avenue hotel where they were staying, Standing Bear mentioned to Tibbles that he was going to the hotel’s barber shop to get a haircut. Tibbles was aghast; he insisted that Standing Bear keep his braids. The day after the tour ended, Standing Bear got a haircut and changed into his normal clothes.5

Standing Bear returned to his ancestral land, but it was now desolate. The Poncas were gone. The Sioux had never settled there. The homes and structures had been demolished on government orders.

But big things were about to happen, beginning with the arrival of the Central Pacific Railroad. The only thing in its way, from Nebraska’s point of view, was the state line. The now extraordinarily valuable land was in the Dakota Territory. To remedy this, Nebraska Senator Alvin Saunders sought to relocate that segment of his state’s border northward to the Missouri River. Dakotans were not happy, but in 1882, lacking voting representation in Congress, they had to rely on others to speak on their behalf. None spoke, though some asked:

Sen. Plumb: What is the feeling of the people of Dakota about it? We are taking away what is apparently valuable property from the Territory of Dakota, which is here seeking admission as a state. It seems to me we ought to have regard for the wishes of those people.…

Sen. Saunders: This bill was before the Senate more than a year ago.…

Sen. Hale: Is there any population there?

Sen. Saunders: There is no population.…

Sen. Teller: I should like to inquire if the Indians are not affected by it? …

Sen. Dawes: The Indians have all been removed to the Indian Territory.

Sen. Edmunds: At the point of the bayonet.

Sen. Dawes: They have been removed at the point of the bayonet, so that the bill does not affect them.

Relocation of Nebraska border

Congress relocated the boundary.

Standing Bear lived out his remaining days on his ancestral land along the Niobrara River. Thomas Tibbles and Bright Eyes married each other in 1882 and continued to write on Indian issues. Other Poncas returned to what, by then, were their individually owned plots of lands. Most of the tribe, however, now settled and adjusting to the Indian Territory, opted to remain where they were. Standing Bear died in 1908 and was buried on his allotment of land in Nebraska. In the 1920s the property was sold to a white farmer who plowed the land, with the result that the location of Standing Bear’s remains is now unknown.

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