Indians as People Under American Law

Very soon after the Spanish began their invasion of this continent, both the European courts and clergy declared Indians to be “people” in a biological and spiritual sense. However, the concept of Indians as “people” in a legal sense was tested in the United States in 1879.  

In 1879, Standing Bear and about 30 Ponca left their Oklahoma reservation and traveled to Decatur, Nebraska where they were welcomed by the Omaha (the tribe, not the city) and given food and shelter. Standing Bear explained why he left Oklahoma:

“My boy who died down there, as he was dying looked up to me and said, I would like you 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.”

At this time, Indians were not allowed free movement outside of their reservations. In order to leave the reservation they were required to have the written permission of their Indian agent. The Department of the Interior (the federal agency in charge of Indian affairs) notified the War Department that the Ponca had left without permission and the army was ordered to return them to the reservation. The Ponca were then detained by the army under the command of General George Crook at Fort Omaha. Illness among the Indians and the poor condition of their horses made it impossible to return them to Oklahoma immediately. During the delay, a local newspaper story about the plight of the Ponca stirred up interest and support which resulted in an historic court case.

In an interview with newspaper editor Thomas Henry Tibbles, Ta-zha-but (Buffalo Chip) asked:

“I have done no wrong, and yet I am here a prisoner. Have you a law for white men, and a different law for those who are not white?”

In defending the arrest of Standing Bear’s people, the Commissioner of Indian Affairs wrote:

“If the reservation system is to be maintained, discontented and restless or mischievous Indians cannot be permitted to leave their reservation at will and go where they please. If this were permitted the most necessary discipline of the reservations would soon be entirely broken up, all authority over the Indians would cease, and in a short time the Western country would swarm with roving and lawless bands of Indians, spreading a spirit of uneasiness and restlessness even among those Indians who are now at work and doing well.”

Under American law, everyone, including non-citizens, who is held by U.S. authorities has the right to challenge the legality of the custody through a writ of habeas corpus. The attorney for the Ponca filed a writ of habeas corpus to free them from Army custody. The U.S. Attorney argued that Indians were not persons under the law and therefore were not entitled to a writ of habeas corpus. According to the government an Indian was neither a person nor a citizen within the meaning of the law, and therefore could bring no suit of any kind against the government.

After hearing the case of Standing Bear v Crook, the United States District Court found that if Indians must obey the laws of the land, then they must be afforded the protection of these laws. In other words, Indians are “people” under United States law and therefore have the right to sue for a writ of habeas corpus. The judge observed:

“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 representatives of one of the most powerful, most enlightened, and most Christianized nations of modern times.”

The Court’s ruling ordered Crook to release Standing Bear and his people.

The Commissioner of Indian Affairs responds to the judge’s ruling by noting that it–

“is regarded by the Government as a heavy blow to the present Indian system, that, if sustained, will prove extremely dangerous alike to whites and Indians.”

Not all Americans agree with the Court’s decision. One writer in New York City, asked of the Ponca:

“What right have they to be in the country, anyhow?” The writer goes on to say: “They are nothing but barbarians; they have no vote; while we are Christians and voters. Therefore, the land they occupy is unprofitable, and I for one cannot see why any white man who is a voter, and desires the land, should not make a claim to it, and if necessary, get help from the Government to obtain it.”

In theory, this ruling should have changed the legal relationships for Indian people on reservations throughout the United States. However, it was almost universally ignored by the Indian Service (later known as the Bureau of Indian Affairs), Indian agents (the people in charge of the reservations), the army, and the local courts. The ruling was not appealed as it was felt that it would probably be upheld by the Supreme Court and this would only give it more weight in American law.

Following the Standing Bear versus Crook decision, newspaper editor Henry Tibbles arranged a six-month lecture tour of eastern cities for Standing Bear. When Standing Bear traveled, he would wear European-style clothing. On stage, however, he would wear buckskins, feathers, beaded belt, claw necklace, and red blanket. In Boston, Standing Bear’s lecture was attended by Helen Hunt Jackson, Senator Henry Dawes, Henry Wadsworth Longfellow, and other notables who were so moved that they formed the Boston Indian Citizenship Committee to fight for the rights of the Ponca and other Indians.

The Removal of the Ponca Indians

( – promoted by navajo)

In 1877 the United States government informed the Ponca that they were going to be removed from their traditional homelands in Nebraska and reassigned to a reservation in Indian Territory (now Oklahoma). The Ponca, a nation which had been at peace with the United States and was considered friendly, were to be moved from their reservation on the Nebraska-Dakota border to Oklahoma because their reservation had been given to their traditional enemies, the Sioux, in the 1868 Treaty of Fort Laramie.

The Ponca first heard about their proposed removal a year earlier. At this time, the chiefs called a great council to discuss the matter. Speaking to the representatives from the American government who attended the council, Standing Bear said:

“This land is ours, we have never sold it. We have our houses and our homes here. Our fathers and some of our children are buried here. Here we wish to live and die.”

The representatives from the American government simply told the Ponca that Indian Territory was a better country.

In 1877, the Ponca were informed of their impending relocation during a Christian church service. During the service, the Indian agent addressed the Ponca and painted a glowing picture of their new lands in Oklahoma. Standing Bear responded to the announcement by pointing out to the agent that they had never sold their land nor had they ever asked to go to Indian Territory. He also reminded the agent that the Ponca had kept their treaty with the United States and that they had harmed no one.

Standing Bear, White Eagle, Standing Buffalo, Big Elk, Little Picker, Sitting Bear, Little Chief, Smoke Maker, Lone Chief, and White Swan were then taken to Oklahoma to see their new lands. For the journey south, the government purchased “civilized clothing” (primarily shirts and vests) for the chiefs. Once in Oklahoma, the Ponca chiefs found that the land did not suit them. They felt that this was not a land where corn and potatoes would easily grow. The land did not compare favorably with their lush green homeland in Nebraska. At this point, the Ponca chiefs realized that once again the Indian agent had lied to them.

The Ponca leaders informed the government that the heat, humidity, and poor soil conditions did not suit them. The Indian agent told them that they were to select land in Indian Territory or starve. The government then refused to take them back north. The chiefs were stunned to find that they were going to be stranded in a strange land because they disagreed with the government. They had visions of dying here without ever seeing their families again.

They had only $8 between them and only the clothes on their backs, They had almost no understanding of English. In spite of this, the chiefs made the 500 mile walk back to Nebraska where the Indian agent had them arrested.

The Ponca chiefs met with Omaha chief Iron Eyes (Joseph La Flesche) and his daughter Bright Eyes wrote out a statement from the chiefs which tells of their ordeal. She then wrote a telegram to the President.  

In response to their complaints, an inspector from the Indian Office and the Indian agent called for a council with the Ponca. Before the inspector could address the council, Standing Bear came to his feet. Pulling his red council blanket around his shoulders, he asked why the Indian Affairs men had come to the Ponca reservation when they had not been invited. He concluded by telling the Indian Office men to leave at once.

Standing Bear and his brother Big Snake were then arrested, placed in chains, and jailed for resisting the removal order. The other Ponca chiefs, however, defiantly told the Americans that they would not be removed. The Indian Office inspector simply informed the council that they could move of their own volition or the Americans would use force against them.

At sunrise, army troops-four detachments of cavalry and one of infantry-surrounded the Ponca village. The troops dragged men, women, and children from their cabins. There was no discussion, no negotiation, and no toleration of resistance. The Ponca left behind their homes, their farms, and their farm equipment.

The Ponca were marched south under escort. They were deluged with rain and two Ponca children soon died from exposure. The army showed them no mercy, forcing the wet, cold people to travel along mud-clogged byways and across swollen rivers. When a tornado struck the camp, destroying tents, damaging wagons, and injuring several people, the army simply ordered the march to continue with no delay, except for burying the dead.

It took the Ponca 50 days to reach their destination. They were informed that they were now prisoners and they would be punished if they attempted to leave the reservation. The Ponca disliked their new home, and the chiefs petitioned the authorities in Washington to return to their ancestral lands.

Nearly one-fourth of the Ponca died during their first year in Indian Territory.

A delegation traveled to Washington, D.C. where four Ponca chiefs met President Rutherford Hayes. Each of the chiefs expressed dissatisfaction with their land in Oklahoma and their desire to return to their homeland. Standing Bear reverently, respectfully told the story of how his people had been wronged. He pointed out that they were now in a bad place, and that he hoped the President would do something for them. President Hayes was astonished at the story of their forced march and told the chiefs that this is the first he has heard of it.

At a meeting in the Department of the Interior, the Commissioner of Indian Affairs informed the Ponca chiefs that there was no way that their request to be returned to the north could be honored without Congressional action. At a second meeting with President Hayes, who had now been briefed by the Department of the Interior, the President told them that the Ponca must stay in Indian Territory. He assured them that they would be treated well.

Chief Standing Bear is shown below:

Standing Bear