ON WEDNESDAY EVENING in that first week in April, the day after the Ponca story hit the Omaha streets in his paper, Henry Tibbles paid lawyer John L. Webster a visit at his Omaha home. The round-faced Webster was in his thirties. He sported a neat handlebar mustache and combed his hair over on top to hide his spreading baldness. Like just about everyone else in Omaha, he would have read the previous day’s Herald, so he could guess why Tibbles had come calling. Offering Tibbles a seat, he asked what was on the editor’s mind.
Tibbles proceeded to tell him the complete Standing Bear story. He “laid the case before him,” backing up his verbal presentation with documentary evidence, as was his habit.118 Tibbles later wrote that Bright Eyes bombarded him throughout April with almost daily letters from the Omaha reservation containing information about the case. Some information she already possessed, some she diligently gathered from people on her reservation and from letters she received from her Ponca kin stranded down in the Indian Territory. Tibbles would have had the first of those letters in hand at the time of his meeting with Webster. This information from Bright Eyes would have included statements she gathered from members of the Omaha and Ponca tribes relating to the appalling treatment dealt out to the Poncas by government representatives. First and foremost among these statements would have been one from her father Iron Eye, chief of the Omahas, a statement formalizing his offer to make a home on the Omaha reservation for Standing Bear and his fugitive band.
Bright Eyes would also have committed a statement of her own to paper and sent it down to Tibbles with the others. Among the matters to which she could personally testify was the innocent character of Prairie Flower, Standing Bear’s daughter, who had died on the forced march of 1877. Prairie Flower had been around Bright Eyes’s age when she died. Bright Eyes described her as “my girl companion,” and the two evidently grew up together and were close.119
When he finished his presentation, Tibbles eagerly asked Webster if he would represent the Poncas—and without a fee at that. Webster would have sighed deeply. The matter of a fee was neither here nor there to him. He was genuinely moved by the Poncas’ story. But as he would have pointed out to Tibbles, this was a case without precedent, and, on the face of it, a case without any hope of success because Standing Bear was an Indian and therefore in the eyes of the law a ward of the state. And wards of the state could not enter into contracts or be represented in a U.S. court of law.
Naturally Tibbles was disappointed by this response, assuming that Webster was as spineless as the rest of the local legal fraternity, but as he rose to leave, Webster told him to hold his horses. He asked the newspaperman to give him a night to consider the Standing Bear case. He would, he said, take “the matter under advisement” and suggested that Tibbles call back to see him next morning.120 It’s also likely that Webster, being a constitutional lawyer, suggested that in the meantime Tibbles go back to his law books and take a look at the Fourteenth Amendment. Tibbles later took credit for employing the Fourteenth Amendment in the Standing Bear case, but it is more probable that Webster, whom Tibbles described as brilliant, recognized its potential and directed the newspaperman’s attention to it.121
With his hopes raised for the first time since he embarked on the Ponca crusade, Tibbles left for his office. There, on a high shelf, he located a copy of the Constitution, opened it toward the end, and ran his finger down the page until he came to Article 14, the so-called reconstruction amendment, and read section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
It is likely that even after reading it, Tibbles was unclear about how John Webster proposed to apply the Fourteenth Amendment to the Standing Bear case. The amendment spoke of “citizens,” yet Indians were not citizens of the United States and had no rights as far as U.S. law was concerned. Section 2 expressly excluded non–tax paying Indians from the calculation of population size in the allocation of seats in the House of Representatives. And the number of Indians who had assimilated into white society and paid tax, like Ely Parker, a Seneca chief who had become President Grant’s commissioner of Indian Affairs, was miniscule. It was probably a confused Thomas Henry Tibbles who returned to John Webster’s house the next day.
Webster now informed a delighted Tibbles that after considering the facts, he was convinced that the Standing Bear case was a matter concerning “the natural rights of men.” The attorney went on, “You have raised a constitutional question of vast importance,” adding, “The principles to which you are appealing underlie all personal liberty.”122 Despite this, Webster had his doubts about how successful the proposed case might be. “I am not satisfied that a writ would hold, on account of the peculiar relation of Indians to the Government.”123
Tibbles’s heart must have sunk. Webster loved history and music. He had an encyclopedic mind and no detail escaped him, but he was not a magician. Tibbles would have given him credit for being pragmatic enough to know when not to flog a dead horse.
But then Webster said, “It seems to me there ought to be a power somewhere to stop this inhuman cruelty. And if it doesn’t reside in the courts, where shall we find it?” He would have smiled and leaned forward as he went on, “Mr. Tibbles, my services are at your disposal. But on account of the magnitude of the questions involved I would like to have assistance.”124 Webster firmly believed that an advocate would need the ability to charm a bird from a bough in order to convince a judge of the applicability of the Fourteenth Amendment argument and set a legal precedent. “If the Honorable A. J. Poppleton will assist me, I will go right ahead and draw up the papers.”125
Tibbles’s eyes must have popped out of his head on hearing this. Andrew Jackson Poppleton was an institution in Nebraska. Tibbles knew that “he was considered without a peer in the legal profession in the state” and that he had an awesome reputation as a public speaker and debater.126
With a note from Webster to Poppleton explaining the case and how Webster proposed to approach it, Tibbles hurried away to track down the second lawyer, thinking of the pros and cons of Poppleton agreeing to take on the case as Webster’s courtroom partner. The pros were many. In his youth, Poppleton left Michigan to find fame and fortune in gold-rich California. In 1854 he came to Omaha and discovered a new town with opportunities for a twenty-four-year-old attorney. There he terminated his journey and set up as Omaha’s first lawyer. In an era when cardsharps and frontiersmen walked the city’s streets alongside immigrants and fortune hunters, he struck gold of a different kind. He was soon elected to the Nebraska legislature as a Democrat, serving as Speaker for a time, and became Omaha’s second mayor, all before he was thirty. First president of the Nebraska Bar Association, president of the Omaha Board of Trade, major shareholder of a bank, director of the Omaha Public Library, where Tibbles had been spending so much time lately, and now, at age forty-eight, chief attorney for the Union Pacific Railroad, A. J. Pop- pleton was wealthy and influential, a man to be reckoned with in this part of the world.
Described as “a most eloquent and fascinating speaker,” Poppleton was a passionate debater in his political heyday, with the ability to make things warm for his opponents.127 He developed the ability to catch the Speaker’s eye and always be recognized first during debates in the legislature. When it came to advocating a cause, Andrew J. Poppleton displayed all the oratorical skills and all the tricks to win the day. But there was one problem, which caused Tibbles to doubt whether Poppleton had what it took to win over a judge in what was shaping up as one of the most famous cases in U.S. legal history—Poppleton hadn’t appeared in court for a private client since beginning work for the Union Pacific sixteen years before, in 1863.
With its headquarters in Omaha, the Union Pacific Railroad was a catalyst for the city’s spectacular growth and was one of the region’s major employers. Because he knew Poppleton as a commercial lawyer, Tibbles probably did not think of approaching him. But, as Webster would have pointed out, Tibbles’s fellow Episcopalian and Webster’s colleague was accredited to the Omaha bar and could appear in court on behalf of litigants.
Poppleton’s offices were then located in Hearndon House. A four-story brick building on the corner of Omaha’s 9th and Farnam Streets, it opened in 1857 as the Hearndon House Hotel and was promoted as the most luxurious hotel west of Chicago. With the philosophy that a grand enterprise deserves a grand edifice, the Union Pacific Railroad took over the hotel and turned it into its head office several years later.
Poppleton’s staff informed Tibbles that Poppleton had just returned from attending to Union Pacific legal business in St. Louis and was too busy to see him. Painfully aware that every minute was crucial in this affair, let alone every day, Tibbles stressed the urgent nature of his business and implored Poppleton’s people to place the note from John Webster before their boss at once, along with the written material about the Standing Bear case that he turned over to them. He left only after promising to return first thing next morning for an answer.
Tibbles then put in his usual fifteen hours labor at the Herald that Thursday afternoon and evening. After four hours of sleep, he appeared, bleary-eyed, at Poppleton’s rooms on Friday, April 4, and was relieved to be ushered straight into the great man’s office.
The Webster connection did the trick. Despite their different political leanings—while Poppleton was a Democrat through and through, Webster was a Republican—the two men liked and respected each other. There in Andrew Poppleton’s plush Hearndon House office, sitting on a soft leather chair before a grand marble fireplace, Tibbles put the case for Standing Bear, appealing to Poppleton’s creed that all men were equal in the eyes of God. A solidly built man with a shiny bald head, a full beard, and a pronounced paunch, Poppleton sat with assessing eyes, taking it all in.
As Tibbles gushed his tale, he referred to his editorials and newspaper articles on behalf of Standing Bear and the Poncas, and he would have produced Bright Eyes’s statements. Tibbles later wrote that he also made a point of telling Poppleton of General Crook’s covert but supportive part in the enterprise.128
The most telling moment must have come when Tibbles raised Webster’s suggestion of basing an argument on Standing Bear’s behalf around the Fourteenth Amendment. No general in his right mind goes into battle without ammunition, and here was the ammunition the Standing Bear case needed. As Webster would have told Tibbles, the Fourteenth Amendment, then only eleven years old, had rarely been tested in court.
The pitiable plight of the Poncas and the opportunity to test the U.S. Constitution in court combined to win Poppleton’s interest. “I believe you have a good case,” Poppleton told Tibbles. “I think we can make the writ hold.” He agreed with Webster that the ward of the state issue had to be overcome, but on principle he felt that it should be contested. “A ward cannot make a contract, but it doesn’t follow that from that the guardian [in this case the U.S. government] can imprison, starve or practice inhu- man cruelty upon the ward.” He held out his hand to the editor. “I will undertake this case, and you can inform Mr. Webster that I will give it my close attention and my best efforts.” And, he added, like Webster, he would appear for the Poncas without a fee.129
Tibbles gratefully, triumphantly shook Poppleton’s hand on it. Now Standing Bear had a legal team. And a potentially formidable legal team at that. Webster would have to do all the preliminary work; the bulk of Poppleton’s time was committed to his railroad employer. As Poppleton began to think about dusting off his courtroom skills, Tibbles hurried back to see John Webster.
Much now needed to be done in a short time. Webster, thrilled that Poppleton was on board, brought out the petition he had drafted overnight, and together he and Tibbles took a carriage out to Fort Omaha to visit General Crook. The general saw them at once. Webster advised Crook of the course he proposed to follow—he and Poppleton would apply to a judge to issue a writ of habeas corpus against General Crook, as the commander of the military district ordered by Washington to arrest Standing Bear. The writ would require the general to appear before a district court judge and show cause why the Ponca chief and his companions should not be released and allowed to go free.
The issuing of a writ of habeas corpus was an ancient legal process inherited from Great Britain. As a basic tenet of British law, habeas corpus had been in force in North America during British colonial days and was retained by American lawmakers after the United States achieved its independence. In full it was habeas corpus ad subjiciendum, a question in Latin: Have you the body to answer? Directed at a person detaining another, it commanded him to produce the body of the prisoner before a judge or court and to submit to whatever that judge or court might decree.
The intent of habeas corpus was to prevent a person from being imprisoned indefinitely without being charged. In practice, it required a law officer to either charge a prisoner with a crime or immediately set him free. Poppleton and Webster were convinced that Standing Bear and his tribes-people had committed no crime and had to be released. The secretary of the Interior was clearly of the opinion that these Poncas had committed a crime by leaving the reservation in Indian Territory without the government’s permission and by entering the Omaha reservation without the government’s permission, making their arrest lawful.
There was also the question of whether Indians could litigate in a U.S. court of law. Webster, the constitutional expert, had discovered an answer to that, unearthing an 1870 report by the Senate Judiciary Committee which deemed that the Fourteenth Amendment of the Constitution did apply to Indians who had dissolved their relationship with their tribes. As General Crook was informed by Webster, for the purposes of a habeas corpus petition, Webster and Poppleton would contend that in leaving the bulk of the tribe at the Indian Territory reservation and traveling to the Omaha reservation and commencing to farm there, Standing Bear and his companions had severed relations with the Ponca tribe and were therefore entitled to the protection of the law under the provisions of the Fourteenth Amendment.
For these reasons the two lawyers felt that, given their day in court before an impartial judge, they could successfully argue for the issuing of a writ of habeas corpus for Standing Bear and his fellow applicants and force the government to release them.
But how would George Crook react to this? The lawyers were proposing that the general take the part of the bad guy. If he agreed to cooperate, he would be hauled into court by Standing Bear, who would demand his freedom before a judge on the basis that Crook had no legal right to arrest him in the first place or to continue to detain him. The attorneys didn’t know the imposing, stern-faced general very well, and they must have worried how he would react to their proposal. After all, how many generals would agree to become a willing accomplice in their own trial in a federal court, for the sake of a bunch of Indians? As John Bourke wrote, those who were not well acquainted with General Crook found him “aloof, stern, even gloomy.”130
If they had known him better, Poppleton and Webster would have known that George Crook was totally without ego. A man of honor, he could be counted on to do the right thing, no matter how his actions painted him. Those close to him, such as his aide John Bourke, knew that under the taciturn exterior he was “sunny and genial.”131 They also knew that he was not afraid to do the unexpected. As he had proven with his initial approach to Tibbles on Standing Bear’s behalf, George Crook did things that other men would not even dream of doing.
Crook listened to the strategy that Webster proposed with the expressionless face of an expert poker player, which he happened to be. His officers often found his ability to listen patiently without a flicker of emotion or a word of comment disconcerting. But as he appreciated both the implications and the potential of the plan, Crook’s blue eyes began to sparkle, and finally a smile tugged at the corners of his mouth. The idea tickled Crook enormously. He urged Webster to proceed on the proposed course—the attorneys must take him to court, and without delay.
A potential flaw in the strategy, as Webster and Poppleton well knew, was the matter of finding a friendly judge who would agree to issue the writ. The Standing Bear habeas corpus writ would be the first of its kind issued in the name of an American Indian, and not every judge would have the initiative or the courage to set a precedent by taking the case on. In fact, most judges could be counted on to steer away from precedent or controversy. The consensus among the quartet was that their ideal candidate, in fact their only realistic candidate, would be Judge Elmer S. Dundy. Both Crook and Tibbles knew the judge well. Dundy was an avid woodsman and Tibbles counted him among his friends, having hunted and fished with him on a number of occasions. Crook had also hunted with him. To Tibbles’s mind, no judge was more learned or more liberal minded. The others agreed: Elmer S. Dundy it must be.
While Tibbles remained at the fort, Webster rushed back into Omaha and sent a telegram to Judge Dundy’s chambers at Lincoln, the state capital, to determine the earliest possible time that he and Poppleton could appear before the judge to present the petition on behalf of Standing Bear and his band. At the same time, he sent an Omaha notary public, Homer Stull, galloping out to the fort with the final draft of the petition, which was in the name of Standing Bear and the twenty-five Poncas under arrest with him, including the women and children.
Tibbles had in the meantime explained to a stunned Standing Bear and his followers that the two white lawyers had taken their case. When Stull arrived with the petition, Tibbles had it read to them and then had Standing Bear and the seven other men of his band sign it with their marks. Tibbles and Lieutenant Carpenter, commander of the Poncas’ guard detail, then signed the document as witnesses.
When Tibbles arrived back in town with the signed petition, he found Webster looking worried. Judge Dundy’s clerk had wired back from Lincoln to say that the judge had set off into the wilds on a bear hunt, and no one was sure when he would be back. Webster had sent a series of telegrams to various towns along the judge’s possible route hoping to track him down, but for good measure Tibbles arranged for several mounted men to go off in search of the bear-hunting judge.
Two days passed over the weekend without word of Dundy. Tibbles later said that General Crook, who was dreading the momentary arrival of orders from Washington to remove the Poncas to Indian Territory, “was the most anxious person I ever saw to have a writ served on him.”132
To the relief of Crook and his colleagues Judge Dundy returned to civilization on Sunday night, having been located by one of Tibbles’s messengers. From his Lincoln residence the judge sent word he would hear Standing Bear’s habeas corpus petition during a session of the district court at Lincoln the following Tuesday.
Another anxious thirty-six hours lay ahead—enough time for Washington to order General Crook to remove the Standing Bear party to Indian Territory, an order that Crook could not and would not disobey. All it would take was a telegram clicking down the line from the War Department via General Sheridan’s headquarters in Chicago. And that would be the end of the matter.