I Am a Man: When American Indians Were Recognized as People Under U.S. Law

by A. Jay Adler on July 7, 2012
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Standing Bear: James E. Taylor, Smithsonian Institution National Anthropological Archive

This is the story I have meant to share.  You had to know the story of the Massacre of the Cheyenne first. That took place at Fort Robinson, Nebraska on January 9, 1879. This story, and these events, played out only months later, in Omaha, Nebraska, in the spring of 1879. Though I draw on additional sources here, for the full story in all its detailed richness, you must read I Am a Man: Chief Standing Bear’s Journey for Justice, by Joe Starita.

In 1877, as part of the government’s “removal” program (what we would now call ethnic cleansing), the Ponca tribe was forcefully relocated from it homelands in Nebraska to “Indian Territory in present-day Oklahoma. As with every tribe relocated by the U.S. government to strange and inhospitable land, the Ponca suffered huge losses to disease and starvation. However, this itself was not what began the momentous story of Chief Standing Bear.

“My boy who died down there, as he was dying looked up to me and said, ’I would like you to take my bones back and bury them where I was born.’ I promised him I would. I could not refuse the dying request of my boy. I have attempted to keep my word. His bones are in that trunk.”

Starita, Joe (2010-01-05). “I Am a Man”: Chief Standing Bear’s Journey for Justice (pp. 116-117). Macmillan. Kindle Edition.

Standing Bear and twenty-nine other Ponca had spent sixty-two days walking from Oklahoma to northeastern Nebraska in sub-zero temperatures and snow like that the Cheyenne had enc0untered in their own attempt to return to their homeland. They had run out of food and been forced to beg at white homesteads in Kansas.  The Omaha Indian friends who greeted them

were shocked at what they saw—faces hollowed from hunger and skin blackened from frostbite, gaunt children, ragged clothes, emaciated horses, and so many sick. One man wore a string around his neck tied to a sack containing the bones of his grandchild.

Then they were taken into custody by the U.S. Army.

General George Crook, Commander of the Department of the Platte and the most-famed Indian fighter in the Army, had been ordered by his superior General Philip Sheridan, and Sheridan’s superior, the Commanding General of the Army, William Tecumseh Sherman, to return the Ponca to Oklahoma immediately.

Crook’s years of warfare against the Indians had changed him. The various tribes against which he fought acknowledged him as a valiant and honest foe, true to his word, and Crook had come to respect the values of the people he fought and to question the policies pursued regarding them. When Crook’s entreaties of compassion for the condition of the Ponca under Standing Bear were rejected by Washington, he did an extraordinary thing. One evening he secretly visited the office of Thomas Tibbles, assistant editor of the Omaha Herald. He invited Tibbles to be present during an interview Crook would conduct with Standing Bear so that Tibbles would have a first hand account with which to publicize the situation. He did something more: he encouraged Tibble to find attorneys to bring a petition of Habeas Corpus under the new Fourteenth Amendment that guaranteed “due process” and “equal treatment” under the law. Beyond Crook’s act, what was extraordinary was that it had never been considered or intended that the Fourteenth Amendment apply to American Indians.

On the morning of April 1, readers of the Omaha Daily Herald awoke to find “Criminal Cruelty, The History of the Ponca Prisoners Now at the Barracks,” covering most of page four. In it, Tibbles recounted in detail his interviews with Standing Bear and Buffalo Chips, and the meeting with General Crook. In an adjacent column, “The Last Indian Outrage,” he used his editorial as a pointed forum, pleading the Ponca case and Indian reform to his readers. He asked them to examine carefully the Ponca speeches and their remarks to the general.

Soon enough, news of the situation had spread to all the cities of the East and the situation of the Ponca and Standing Bear become a cause célèbre among people advocating a more humane policy toward the Indian tribes. Money was raised and Tibbles found his lawyers.

The trial opened in Omaha on April 30, 1879, and lasted for two days. G. M. Lambertson represented the U.S. Government and their argument was simply that the Indian was neither a person nor a citizen within the meaning of the law, and therefore could not bring suit of any kind against the government. Lambertson further contended that the Poncas adhered to their traditional ways, were dependent on the government, and as Indians, were not entitled to the rights and privileges of citizens.

The attorneys for the Indians stressed that the Poncas had renounced tribal authority, were engaged in farming, had made great advances in assimilation, and were entitled under the provisions of the Fourteenth Amendment to be treated like other people. The lawyers also argued that the U.S. Government had no right to take the Poncas’ land or move them to Indian Territory.

Nebraska Studies: The Trial of Standing Bear

The following is Thomas Tibbles’ account of what transpired in the courtroom beginning April 30, 1879, in consideration of a petition in which General Crook himself was the named respondent representing the U.S. government.

The court room was crowded with fashionably dressed women; and the clergy, which had been greatly stirred by the incident, were there in force. Lawyers, every one in Nebraska, and many from the big Eastern cities; business men; General Crook and his staff in their dress uniforms (this was one of the few times in his life that Crook wore full dress in public); and the Indians themselves, in their gaudy colors. The court room was a galaxy of brilliancy.

On one side stood the army officers, the brilliantly dressed women, and the white people; on the other was standing Bear, in his official robes as chief of the Poncas, and with him were his leading men. Far back in the audience, shrinking from observation, was an Indian girl, who afterward became famous as a lecturer in England and America. She was later known on both continents by a translation of her Indian name, In-sta-the-am-ba, Bright Eyes.

Attorney Poppleton’s argument was carefully prepared, and consumed sixteen hours in the delivering, occupying the attention of the court for two days. On the third day Mr. Webster spoke for six hours. And during all the proceedings, the court room was packed with the beauty and culture of the city.

Toward the close of the trial, the situation became tense. As the wrongs inflicted on the Indians were described by the attorneys, indignation was often at white heat, and the judge made no attempt to suppress the applause which broke out from time to time. For the department, Mr. Lambertson made a short address, but was listened to in complete silence.

It was late in the afternoon when the trial drew to a close. The excitement had been increasing, but it reached a height not before attained when Judge Dundy announced that Chief Standing Bear would be allowed to make a speech in his own behalf. Not one in the audience besides the army officers and Mr. Tibbies had ever heard an oration by an Indian. All of them had read of the eloquence of Red Jacket and Logan, and they sat there wondering if the mild-looking old man, with the lines of suffering and sorrow on his brow and cheek, dressed in the full robes of an Indian chief, could make a speech at all. It happened that there was a good interpreter present—one who was used to “chief talk.”

Standing Bear arose. Half facing the audience, he held out his right hand, and stood motionless so long that the stillness of death which had settled down on the audience, became almost unbearable. At last, looking up at the judge, he said:

“That hand is not the color of yours, but if I prick it, the blood will flow, and I shall feel pain. The blood is of the same color as yours. God made me, and I am a man. I never committed any crime. If I had, I would not stand here to make a defense. I would suffer the punishment and make no complaint.”

Still standing half facing the audience, he looked past the judge, out of the window, as if gazing upon something far in the distance, and continued:

“I seem to be standing on a high bank of a great river, with my wife and little girl at my side. I cannot cross the river, and impassable cliffs arise behind me. I hear the noise of great waters; I look, and see a flood coming. The waters rise to our feet, and then to our knees. My little girl stretches her hands toward me and says, ‘Save me.’ I stand where no member of my race ever stood before. There is no tradition to guide me. The chiefs who preceded me knew nothing of the circumstances that surround me. I hear only my little girl say, ‘Save me.’ In despair I look toward the cliffs behind me, and I seem to see a dim trail that may lead to a way of life. But no Indian ever passed over that trail. It looks to be impassable. I make the attempt.

“I take my child by the hand, and my wife follows after me. Our hands and our feet are torn by the sharp rocks, and our trail is marked by our blood. At last I see a rift in the rocks. A little way beyond there are green prairies. The swift-running water, the Niobrara, pours down between the green hills. There are the graves of my fathers. There again we will pitch our teepee and build our fires. I see the light of the world and of liberty just ahead.”

The old chief became silent again, and, after an appreciable pause, he turned toward the judge with such a look of pathos and suffering on his face that none who saw it will forget it, and said:

“But in the center of the path there stands a man. Behind him I see soldiers in number like the leaves of the trees. If that man gives me the permission, I may pass on to life and liberty. If he refuses, I must go back and sink beneath the flood.”

Then, in a lower tone, “You are that man.”

There was silence in the court as the old chief sat down. Tears ran down over the judge’s face. General Crook leaned forward and covered his face with his hands. Some of the ladies sobbed.

All at once that audience, by one common impulse, rose to its feet, and such a shout went up as was never heard in a Nebraska court room. No one heard Judge Dundy say, “Court is dismissed.” There was a rush for Standing Bear. The first to reach him was General Crook. I was second. The ladies flocked around him, and for an hour Standing Bear had a reception.

From the decision a few days later of Judge Elmer S. Dundy of the United States District Court:

George Crook: James E. Taylor, Smithsonian Institution National Anthropological Archives

During the fifteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under consideration. On the one side we have a few of the remnants of a once numerous and powerful, but now weak, insignificant, unlettered, and generally despised race. On the other, we have the representative of one of the most powerful, most enlightened, and most christianized nations of modern times. On the one side we have the representatives of this wasted race coming in to this national tribunal of ours asking for justice and liberty to enable them to adopt our boasted civilization and to pursue the arts of peace which have made us great and happy and a nation. On the other side we have this magnificent, if not magnanimous government, resisting this application with the determination of sending these people back to the country which is to them less desirable than perpetual imprisonment in their own native land. But I think it is creditable to the heart and mind of the brave and distinguished officer who is made respondent herein, to say that he has no sort of sympathy in the business in which he is forced by his position to bear a part so conspicuous. And so far as I am individually concerned I think it not improper to say that if the strongest possible sympathy could give the relators title to freedom, they would have been restored to liberty the moment the arguments in their behalf were closed. No examination or further thought would then have been necessary or expedient. But in a country where liberty is regulated by law, something more satisfactory and enduring than mere sympathy must furnish and constitute the rule and basis of judicial section. It follows that this case must be examined and decided on principles of law, and that unless the relators are entitled to their discharge under the constitution or laws of the United States, or some treaty made pursuance thereto, they must be remanded to the custody of the officers who caused their arrest, to be returned to the Indian Territory, which the left without the consent of the government.

….

Now it must be borne in mind that the habeas corpus act describes applicants for the writ as persons or parties, who may be entitled thereto. It nowhere describes them as citizens, nor is citizenship in any way or place made a qualification for sueing out the writ, and is the absence of express provision or necessary implication, which would require the interpretation contended for by the district attorney, I should not feel justified in giving the words person or party such a narrow construction. The most natural, and therefore most reasonable way, is to attach the same meaning to words and phrases when found in a statute that is attached to them when and where found in general use. If we do so in this instance then the question cannot be open to serious doubt. 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. In describing and defining generic terms, the first section of the revised statutes declares that the word person includes co-partnerships and corporations. On the whole it seems to me quite evident that the comprehensive language used in this section is intended to apply to all mankind, as well the relators as the more favored white race. This will be doing no violence to language nor to the spirit or letter of the law, nor to the intention, so it is believed of the law-making power of the government.

Standing Bear was freed. He buried his son on native grounds, and he and those among the Ponca who had followed him back to Nebraska were allowed to remain and live their lives there. Standing Bear lived until 1908.

If this were a Hollywood movie, it would end with the courtroom response to Standing Bear’s speech and a coda like the one just above. As it is, moments of triumph recede into their daily aftermath, lives lived after the cheers and attention have faded. The issues were more complex and varied than encompassed by this single case. The Ponca remained afterwards permanently divided between a Southern Tribe that remains in Oklahoma on a reservation and the Northern Ponca who reside in Nebraska, but who have no tribal lands. Not long after the trial,

Big Snake, Standing Bear’s brother, was denied permission to leave Ponca lands in Indian Territory to visit the nearby Cheyenne, but he went anyway. He argued that his brother’s court case gave him the right to do so. The Ponca Indian Agent convinced the federal authorities to authorize the arrest of Big Snake when he returned. When the army personnel attempted to arrest him, Big Snake physically resisted and was shot and killed in the altercation. His failure to successfully defy federal authority based on Standing Bear’s court victory, greatly dampened the enthusiasm of other Indians to attempt it.

Nebraska Studies: The Trial of Standing Bear

And, then, recognition of American Indians as persons under the law did not grant them citizenship, which was not theirs for another forty-five years, in 1924. For the Northern Ponca, as for many other Native Americans, citizenship was not a miraculous cure for conquest and the government’s continuing and often malign mismanagement of it’s trust relationship with the tribe. In the 1960’s, under another of the government’s frequent changes of  policy, the Nortern Ponca were misled into giving up their federally recognized status. When, within twenty years, they had recognized their error and sought arduously and expensively to correct it, they were at the last stage of the process coerced by their own non-Native U.S. congressman – against pain of his blocking the restored recognition – to forswear in perpetuity any future claim to a tribal reservation in Nebraska, on land that was theirs to begin.

AJA

 

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