Judge Dundy issued a writ of habeas corpus upon the general, requiring him to bring the Ponca prisoners into court and show by what authority he held them. Crook obeyed the writ by presenting his military orders from Washington, and the district attorney for the United States appeared before the judge to deny the Poncas’ right to the writ on the ground that Indians were “not persons within the meaning of the law.”
Thus began on April 18, 1879, the now almost forgotten civil-rights case of Standing Bear v. Crook. The Poncas’ lawyers, Webster and Poppleton, argued that an Indian was as much a “person” as any white man and could avail himself of the rights of freedom guaranteed by the Constitution. When the United States attorney stated that Standing Bear and his people were subject to the rules and regulations which the government had made for tribal Indians, Webster and Poppleton replied that Standing Bear and any other Indian had the right to separate themselves from their tribes and live under protection of United States laws like any other citizens.
The climax of the case came when Standing Bear was given permission to speak for his people: “I am now with the soldiers and officers. I want to go back to my old place north. I want to save myself and my tribe. My brothers, it seems to me as if I stood in front of a great prairie fire. I would take up my children and run to save their lives; or if I stood on the bank of an overflowing river, I would take my people and fly to higher ground. Oh, my brothers, the Almighty looks down on me, and knows what I am, and hears my words. May the Almighty send a good spirit to brood over you, my brothers, to move you to help me. 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. Take pity on me, and help me to save the lives of the women and children. My brothers, a power, which I cannot resist, crowds me down to the ground. I need help. I have done.”
Judge Dundy ruled that an Indian was a “person” within the meaning of the habeas corpus act, that the right of expatriation was a natural, inherent, and inalienable right of the Indian as well as the white race, and that in time of peace no authority, civil or military, existed for transporting Indians from one section of the country to another without the consent of the Indians or to confine them to any particular reservation against their will.
“I have never been called upon to hear or decide a case that appealed so strongly to my sympathy,” he said. “The Poncas are amongst the most peaceable and friendly of all the Indian tribes. … If they could be removed to the Indian Territory by force, and kept there in the same way, I can see no good reason why they might not be taken and kept by force in the penitentiary at Lincoln, or Leavenworth, or Jefferson City, or any other place which the commander of the forces might, in his judgment, see proper to designate. I cannot think that any such arbitrary authority exists in this country.”
When Judge Dundy concluded the proceedings by ordering Standing Bear and his Ponca band released from custody, the audience in the courtroom rose to its feet and, according to a newspaper reporter, “such a shout went up as was never heard in a courtroom.” General Crook was the first to reach Standing Bear to congratulate him.
At first the United States district attorney considered appealing the decision, but after studying Judge Dundy’s written opinion (a brilliant essay on human rights), he made no appeal to the Supreme Court. The United States government assigned Standing Bear and his band a few hundred acres of unclaimed land near the mouth of the Niobrara, and they were back home again.
As soon as the surviving 530 Poncas in Indian Territory learned of this astonishing turn of events, most of them began preparations to join their relatives in Nebraska. The Indian Bureau, however, was not sympathetic. Through its agents the bureau informed the Ponca chiefs that only the Great Council in Washington could decide if and when the tribe might return. The bureaucrats and politicians (the Indian Ring) recognized Judge Dundy’s decision as a strong threat to the reservation system; it would endanger the small army of entrepreneurs who were making fortunes funneling bad food, shoddy blankets, and poisonous whiskey to the thousands of Indians trapped on reservations. If the Poncas were permitted to leave their new reservation in Indian Territory and walk away as free American citizens, this would set a precedent which might well destroy the entire military-political-reservation complex.
In his annual report, Big Eyes Schurz admitted that the Poncas in Indian Territory “had a serious grievance,” but he strongly opposed permitting them to return to their homeland because it would make other Indians “restless with a desire to follow their example” and thereby cause a breakup of the territorial reservation system.
...The Interior Department first issued a statement that Standing Bear’s brother “Big Snake, a bad man” had been “shot accidentally.” The American press, however, growing more sensitive to treatment of Indians since the Standing Bear case, demanded an investigation in Congress. This time the military-political-reservation complex was operating in the familiar climate of Washington, and nothing came of the investigation.
The Poncas of Indian Territory had learned a bitter lesson. The white man’s law was an illusion; it did not apply to them. And so, like the Cheyennes, the diminishing Ponca tribe was split in two—Standing Bear’s band free in the north, the others prisoners in the Indian Territory.
-Bury My Heart At Wounded Knee: An Indian History of the American West