The First Person

The lawyers had been talking for more than nine hours. The case was United States ex rel. Standing Bear v. Crook. The courtroom sat on the third floor of the federal building at Fifteenth and Dodge in Omaha, and the date was May 2, 1879. The crowd had stayed past the dinner recess and into the dark. When the last argument ended, Judge Elmer Scipio Dundy made an announcement. One more speaker, he said, had asked to be heard, and he believed it was the first time in the country’s history such a request had come from an Indian. Standing Bear rose from among the prisoners. He wore an eagle feather in his braided hair, a blue shirt trimmed in red, deerskin moccasins, a Thomas Jefferson peace medal, and a necklace of bear claws. He walked to the front of the room, faced the audience, and held out his right hand. The hand stayed there, still, for a long time. Then he began to speak in Ponca, in a low voice, and the interpreter gave the room his words in English.

The question before Judge Dundy came down to grammar. Congress had widened the writ of habeas corpus in 1867 to reach any person restrained of liberty in violation of the Constitution, a treaty, or a law of the United States. The statute said person. It did not say citizen. The government of the United States stood in that Omaha courtroom and argued that the Ponca chief in front of it was not a person the law could see. Grammar does double duty in my title. The first person is where the law begins, the person who says I and means himself. It is also where these essays begin. I write in the first person because it is the honest case for an argument made in public. Standing Bear knew it first.

The Ponca had never gone to war against the United States. They farmed. Treaties in 1858 and 1865 left them a reservation of some 96,000 acres where the Niobrara runs into the Missouri, and there they built houses, kept a church, and sent their children to school. Standing Bear said as much on the stand. “We lived well,” he testified. “I had my own land, and raised enough so I could get along nicely. My children were going to school, we had a good school, and everything going on nicely.” Then, in 1868, negotiators at Fort Laramie wrote the Ponca reservation into the lands granted to the Sioux. Nobody consulted the Ponca. The blunder was never explained to them, and it was never corrected in their favor. Lakota raiding parties read the treaty as license, and a tribe of about seven hundred people spent a decade being hunted on ground its own papers said was theirs.

Washington’s answer to its own error was to move the victims. In 1876, Congress provided for removing the Ponca to Indian Territory. An inspector came to the reservation with a missionary and the agent, and a party of chiefs was taken south to look over the new country. They refused to choose any of it. In the spring of 1877, soldiers moved the whole tribe anyway. The dying started on the road south. An eighteen-month-old girl named White Buffalo, the daughter of Black Elk and Moon Hawk, died near Neligh, and the soldiers made the family move on. Standing Bear’s daughter Prairie Flower died on June 5 as the tribe passed through Seward County. A tornado hit the camp the next day and fatally injured a granddaughter of the chief. The people of Milford buried the two in their town cemetery. The tribe reached the Quapaw reservation in midsummer, too late to plant, and the dying kept on in the heat.

They called it the Warm Country, and it killed them. Malaria moved through the camps, and food ran short. Standing Bear gave the number himself, under oath, in Omaha. “From the time I went down there until I left,” he testified, “158 of us died.” His lawyer John Lee Webster framed the count for the judge: in under two years the tribe had fallen from 780 people to 580. That was a death rate worse than the Union Army’s in the Civil War, worse than the stockade at Andersonville. Among the dead was the chief’s son, Bear Shield, sixteen years old, a boy who could speak English and write it. His father had sent him to school believing the boy would stand between the family and the agents. The boy died at the end of December 1878. His last wish was to be buried in the land where he was born, on the Running Water, the Niobrara. Standing Bear made the promise.

Standing Bear gathered about thirty people in the first days of January 1879, most of them women and children, and started walking north. The distance was close to six hundred miles, through the depth of a plains winter. The party had two government wagons and a light spring wagon the chief had bought himself. In a box went the bones of Bear Shield. They walked for two months, and Andrew Jackson Poppleton would later tell the court they had crossed a strange country for sixty days without guide or compass, aided by the sun and stars. On the morning of March 4, the band reached the reservation of the Omaha, kin who fed them and gave them ground. The healthy ones began breaking sod for wheat. A man named Buffalo Chip put in four or five acres.

Word of the runaways reached Washington, and Washington ordered them sent back. General George Crook, commander of the Department of the Platte, drew the assignment, and by March 27 the band was under guard at Fort Omaha, with return to the Territory the plan. Crook was a famous Indian fighter, and he did not want the job. He had seen the condition of the prisoners, and he knew what they were being sent back to. He stalled the removal and reached out to Thomas Henry Tibbles, an editor at the Omaha Daily Herald. Tibbles interviewed the chief at the fort on March 30 and put the story in newspapers as far east as New York and Chicago. Then he found lawyers. John Lee Webster was a young Omaha attorney. Poppleton was the Union Pacific’s chief attorney and the dean of the Nebraska bar. Both took the case for nothing, and in April they sued out a writ of habeas corpus against Crook, the officer holding the prisoners, a man who seems to have been glad to be sued.

The hearing opened at ten in the morning on May 1. Dundy had been off in the wilds, and heavy rain and flooding slowed his return from Lincoln; he reached Omaha the night before. The first witness was Willie Hamilton, twenty-two, the son of the Omaha Reservation missionary, a store clerk who spoke Ponca and Omaha. Then came Lieutenant Carpenter, the arresting officer. The government’s district attorney, a young man named Genio Lambertson trying his first case in the job, fought over blankets and wagons. When the prisoners called their third witness, Lambertson was on his feet. “Does this court think an Indian is a competent witness?” Dundy answered that they were competent for every purpose in civil and criminal courts, and that the law made no distinction for race. So Standing Bear testified, with Hamilton translating sentence by sentence. He gave the count of the dead. He said his son’s bones were in a box, and that he meant to bury them where the boy was born. “What I have done?” he asked the room. “I am brought here, but what have I done?” His voice rose as he spoke, and the judge asked the interpreter to tell him to stay calm. The government called no witnesses of its own.

The arguments consumed the second day. Webster, sick and on his feet anyway, spoke for three and a half hours, ranging from Jefferson to Tocqueville to Frederick Douglass. If the Ponca were neither citizens nor persons, he asked, what were they? “Are they wild animals, deer to be chased by every hound?” Lambertson took three hours for the government, and his anchor was Dred Scott: if a Black man had no standing to sue in federal court, neither did an Indian, because the writ belonged to citizens. Poppleton answered after the dinner recess and spoke nearly three hours into the evening. Dred Scott was a citizenship case, he said, and the Fourteenth Amendment had buried its logic. The habeas statute did not say citizen. It said any person or party. So there was one question before the court, he told the judge, and that question was whether Standing Bear was a person. To turn the prisoners away, the court would have to say they were not human beings. “And who will undertake that?”

The judge had allowed one more address. Standing Bear held out his hand and the room went still. His words came through a second interpreter, a young Omaha woman named Susette La Flesche, soon to be known across the country as Bright Eyes. He spoke about his hand. Then he looked out the window and told the court what he saw. A man stands on the bank of a rising river with his wife and child, cliffs at his back, one steep path up the rock. A man bars the passage. If that man refuses, the family sinks beneath the flood. “We are weak and faint and sick,” Standing Bear said. “I cannot fight.” He turned and faced the judge. “You are that man.” The room broke. Women in the back cried. Crook, the general who had arrested him, leaned forward with his face in his hands, and when the applause came, the general was first out of his chair to cross the room and take the chief’s hand.

Dundy took ten days. On May 12 he delivered a long written opinion, and he did not hide what the case had done to him. In fifteen years of administering the laws of his country, he wrote, no case had appealed so strongly to his sympathy, and sympathy alone would have freed the prisoners the moment the arguments closed. Sympathy, though, was not law. The opinion is a period piece in places. The judge’s own sentences carry the era’s condescension, calling the Ponca weak and unlettered and despised even while ruling for them. The holding underneath is clean. The statute said person, and Webster’s dictionary defined a person as 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,” Dundy wrote. To the argument that habeas corpus had belonged in England only to free subjects of the kingdom, he answered that he had not examined the English laws and did not think it necessary. While Parliament legislated for the favored few, he wrote, Congress legislated for all mankind within its jurisdiction. An Indian who cut his tribal ties held the same natural right of expatriation as any white man, the right Congress itself had declared inherent in all people in 1868. The opinion closed in five numbered conclusions. The first: an Indian is a person within the meaning of the laws of the United States. The last: the relators must be discharged from custody, and it is so ordered.

The prisoners walked free. Washington let the decision stand, and no court has reversed it since. It was also narrower than its legend. Dundy had ruled on personhood and the writ. He had made no one a citizen, and he had handed back no acre of the Niobrara. The limits showed five years later, in the same city. John Elk was a Winnebago who had left his tribe, lived in Omaha, and tried to register to vote in April 1880. The registrar, a man named Charles Wilkins, refused him. Elk sued, and his case climbed to the Supreme Court as Elk v. Wilkins, with Webster and Poppleton again arguing for the Indian and Lambertson again against. The Court’s opinion cited Dundy’s ruling. Then, on November 3, 1884, the justices held, seven to two, that an Indian born into a tribe was not a birthright citizen under the Fourteenth Amendment, no matter how fully he had surrendered himself to American jurisdiction. Justice Harlan dissented, joined by Justice Woods. Personhood had held. Citizenship would not come from the courts.

Congress did what the courts would not, slowly and on its own terms. The Dawes Act of 1887 declared a citizen of every Indian who took an allotment, or who lived apart from any tribe and had, in the statute’s words, “adopted the habits of civilized life.” The phrase shows who was grading the test. On June 2, 1924, the Indian Citizenship Act made citizens of all Native people born in the United States, forty-five years after an Omaha judge had ruled they were persons at all. The Ponca got their own partial repair sooner. President Hayes appointed a commission in 1880, Crook among its members, and it found the removal a wrong and recommended letting the Ponca choose their home. An act of March 3, 1881 did roughly that. About half the tribe came back to Nebraska, where some forty square miles of the old country were restored to them. The rest stayed in the Territory. The Ponca are two tribes to this day, one in Oklahoma and one in Nebraska.

Standing Bear spent one season as a public man. Tibbles organized an eastern lecture tour that opened in an Omaha church on September 6, 1879, then ran through Chicago, Boston, and New York. With the chief went Bright Eyes and her brother Francis La Flesche, who would grow into an ethnologist at the Smithsonian. In Cambridge, Longfellow entertained the party at his home, looked at Bright Eyes, and said, “This could be Minnehaha.” Helen Hunt Jackson heard them and went home to write Ramona. Senator Henry Laurens Dawes listened too, and his name ended up on the allotment act. Then Standing Bear went home. He buried his son’s bones in the Niobrara valley, farmed his allotment, and lived there until September 1908. He is buried on a hill above the river he had walked six hundred miles to reach.

Nebraska took a long time to put him up in bronze, and then it did so three times over. A twenty-two-foot statue by Oreland C. Joe went up in Ponca City in 1996, down in the country he had been carried off to. Benjamin Victor’s bronze shows the chief with his right hand extended, as it had been in that courtroom. The statue was cast first for Centennial Mall in Lincoln in 2017, again for the Ponca headquarters at Niobrara in 2018, and a third time for National Statuary Hall. There it was unveiled on September 18, 2019, in place of William Jennings Bryan. I grew up in Lincoln, and I have stood in front of the Centennial Mall casting more than once. The statue holds out the same open hand. On May 12, 2023, the Postal Service issued a Chief Standing Bear Forever stamp, dedicated in Lincoln beside that statue, its portrait drawn from a photograph taken in 1877. The state that once had him under guard now mails his face around the country. A new public high school in Lincoln carries his name.

The case is a landmark now. It gets taught as a civil rights ruling and retold as a courtroom story. I keep coming back to the grammar. A statute is a generalization until someone stands up and makes it particular, and the law said person. Standing Bear supplied the first person, singular, present tense, with no lawyer between the claim and the man making it. A reporter took it down, and the record holds. “That hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be of the same color as yours. I am a man. The same God made us both.”