“My hand is not the color of yours, but if I pierce it, I shall feel pain. The blood that will flow from mine will be the same color as yours. The same god made us both. I am a man.”
— Chief Standing Bear, 1878
“An Indian is a ‘person’ within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge”
— U.S. ex Rel. Standing Bear v. Crook, 1879
Bear Shield’s death was both tragic and unnecessary. The youngster was the son of one of the chiefs of the Ponca tribe, who had been living on land in present-day Ponca, Nebraska. Statehood had been granted to Nebraska in 1867 and 10 years later, as settlers flocked westward to claim territory in the state, federal authorities decided that it was time to relocate the tribe.
It’s worth noting that the Ponca had already ceded most of their land, and that their 1877 inclusion in the relocation treaty was itself a mistake when their remaining land was accidentally included in a treaty with the Sioux tribe. This led both the Sioux and the federal government to claim the Ponca’s land, and an 1876 act of Congress affirmed the treaty.
The Ponca believed that they were being relocated to the nearby Omaha reservation. Federal authorities believed that there was an agreement in place to move the tribe to “Indian Territory” (present-day Oklahoma). Taken to that territory to view potential relocation sites, the Ponca were furious when they saw that the land was inferior and unmanageable.
Most of the Ponca chiefs, including Standing Bear, refused the relocation and returned to Nebraska, but were shortly forced to relocate to Oklahoma. By the time of the forced relocation in late 1877, it was too late in the season to plant crops. Winter set in, and over the course of the season nearly a third of the Ponca’s total population had died of starvation or disease. The dead included Chief Standing Bear’s sister, and his teenage son, Bear Shield.
In later testimony before a federal judge and statements to Nebraska newspapers, Standing Bear explained that it was the belief of his people that in order to enjoy the afterlife with their ancestors, they had to be buried on ancestral land. Thus, before Bear Shield’s death, Standing Bear had promised him that he would take his remains back to Nebraska and bury them with past generations.
But when they left the Indian Territory and traveled back to Nebraska, Secretary of the Interior Carl Schurz ordered them arrested. The job of effectuating that arrest fell to Brig. Gen. George Crook, a Dayton native and veteran of the Civil War. Crook immediately became sympathetic to Standing Bear, calling the arrest a “very disagreeable duty.” He enlisted the help of Thomas Tibbles, editor of the Omaha Daily Herald, who spread the story far and wide, and attorneys John Webster and Andrew Poppleton agreed to serve as legal counsel for the Ponca.
The lawyers brought a federal court action asking for a writ of habeas corpus — an order finding that the confinement of the Ponca was without legal authority and they should be released. On the final day of trial, the attorneys called Standing Bear as a witness, and over the objections of the U.S. Attorney, who claimed that Standing Bear was not a “person” under federal law, Judge Elmer Dundy — a Youngstown native — permitted him to testify.
His words were dramatic and changed the scope of American law forever. He told the story of his promise to his dying son and professed that despite their different backgrounds, he and the judge had the same blood coursing through their veins and were children of the same Creator. Poppleton would later say that he could not recall, in his entire life, “any two hours work with which I feel better satisfied.”
Judge Dundy was moved, both by Standing Bear’s testimony and by the actions of Brig. Gen. Crook. He said that he had never heard a case that “appealed so strongly to my sympathy.” He noted that the treaty with the Sioux should never have included the Ponca at all. And he praised Crook for handling his duties loyally, but without abandoning his principles.
As to the central legal issue in the case, Judge Dundy concluded: “I cannot doubt that congress intended to give to every person who might be unlawfully restrained of liberty under color of authority of the United States, the right to the writ and a discharge thereon.” Standing Bear and his compatriots were released, and the Hayes administration granted them back a portion of their ancestral lands in Nebraska.
The 140th anniversary of the decision has recently passed, and 14 decades later, the holding that any person held under the authority of law in the United States has standing to ask for their release and a review of the lawfulness of their detention continues to be good law.
Late last month, a statue of Standing Bear joined the 99 other figures commemorated in Statuary Hall at the U.S. Capital, having been designated as one of the two representative figures for the state of Nebraska. But while Standing Bear’s statue is now in Washington, his remains, like those of his son Bear Shield, are buried with their ancestors in Nebraska.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas.