JUDGE ELMER SCIPIO Dundy’s middle name came from Scipio Africanus, the Roman general who defeated Carthaginian general Hannibal to end the Second Punic War in the third century B.C. It suited him admirably—Judge Dundy was similarly unafraid of taking on formidable odds if he thought the cause was just.
Physically, the forty-nine-year-old Dundy was a trim, slight figure. Almost completely bald, he had a closely trimmed gray mustache and beard, high cheekbones, a sloping brow, and small but intense eyes. Initially a lawyer and subsequently a member of the Nebraska territorial legislature for two terms, Dundy became Nebraska’s first district court judge when it gained statehood in 1867. He’d been a territorial and then a federal judge for the past fifteen years. Dundy had a crusty, austere manner and was a little self-important and patronizing (as some judges can be) and had the habit of using the royal “we” when on the bench. He scared the daylights out of some people, none the least being his seventeen-year-old son, Elmer Scipio Dundy Jr. (or Skip), who had grown up with a severe nervous stutter.
Judge Dundy had four main interests in life—good hunting, good horses, good literature, and the administration of justice. But hunting was his passion. He counted among his colorful friends and hunting partners the legendary Buffalo Bill Cody. The chief scout for the 5th Cavalry, Cody gained his nickname as a buffalo hunter for the Kansas Pacific Railroad by delivering 4,280 dead bison in eight months to feed the railroad construction workers. He was made famous by dime novelists Ned Buntline and Prentiss Ingraham, and for the past seven years had been appearing in hugely successful (if largely fictional) stage plays about his adventures written by Buntline.
When Buffalo Bill came to dinner at Dundy’s Lincoln home, young Skip Dundy would listen wide-eyed to his tales of adventure and his musings about the commercial possibilities of a Wild West troupe that would tour the entire country. Four years later, Cody launched his Buffalo Bill’s Wild West and Congress of Rough Riders of the World, and the Wild West show was born. Young Skip Dundy eventually also became a showman. With a partner, Frederick Thompson, he developed Coney Island’s Luna Park and Manhattan’s Hippodrome Theater.
On Monday, April 7, 1879, Judge Dundy would have had the pending petition from Omaha attorneys John L. Webster and Andrew J. Poppleton on his mind. Dundy was aware of the nature of the submission that Webster and Poppleton intended making to him, and it’s likely that he had already decided his attitude to their petition. That same Monday, Webster and Poppleton took the train down to Lincoln prior to presenting their petition to the judge on behalf of Standing Bear and their other Ponca clients the next day.
The following morning, Judge Dundy presided over the district court session in the state capital. There, on April 8, attorneys Poppleton and Webster presented the detailed written petition prepared by Webster on behalf of their twenty-six clients and signed by the eight men of Standing Bear’s party. Once the clerk verified the petition and the judge read it, Dundy issued the writ of habeas corpus on behalf of Standing Bear and the other members of the Ponca tribe in custody with him—who, in legal jargon, were now considered his “co-relators.” Now the fox was set among the chickens.
A relieved General Crook was served with the writ later that same day, as Webster and Poppleton returned to Omaha. The serving of the writ effectively blocked any further action by the secretary of the Interior, di- rectly or through the War Department, until the district court either validated or dismissed the habeas corpus action. General Crook was restrained from acting on any further orders from Washington regarding the Poncas until the writ had been confirmed or dismissed. It would have been with disguised pleasure that Crook promptly advised General Sheridan in Chicago that he had been served with the writ.
The shocked, outraged reaction in official Washington circles can only be imagined. Secretary Schurz had previously ignored pleas on behalf of the Poncas from the clergy of Omaha and a subsequent pro-Ponca petition from the people of Niobrara and the leading citizens of Yankton. He had agreed to a meeting to discuss the Poncas with a former employee of the Bureau of Indian Affairs, Alfred B. Meacham, the friend of Reverend Dorsey to whom Dorsey had written on behalf of the Poncas. The Washington-based Meacham was also editor of The Council Fire, a monthly journal on the subject of the American Indian. Meacham reported back to Dorsey that in their meeting, held in early April, Schurz expressed sympathy for the Poncas but declared that his hands were tied in the matter. Commissioner Hayt was at the same meeting and did most of the talking, telling Meacham that “there was no use talking about the Poncas going North” and insisting that Standing Bear and his fellow escapees must return to Indian Territory.133 The reason that Schurz and Hayt had discussed the Poncas with Meacham when they didn’t even acknowledge other approaches on their behalf would soon become apparent—before long The Council Fire would support the government line on the Poncas.
The unprecedented legal maneuver and the issuing of a writ on behalf of Standing Bear by a district court judge would have seemed laughable to Hayt and Schurz had it not seriously challenged their Indian policy. And they didn’t intend to let that challenge stand.
Given ten days to answer the writ of April 8, the government acted quickly. On April 10, the Associated Press reported out of Washington: “The United States district attorney has been directed to appear for the United States and endeavor to have the writ dismissed. [The commissioner of Indian Affairs] takes the ground that under the law, and according to repeated decisions of the Supreme Court, the Indians stand as wards of the government, and are under the same relations to the government as minors to their parents or guardians.” In a pointed comment aimed at Judge Dundy, castigating him for even entertaining the petition by Webster and Poppleton, Commissioner Hayt had told the Associated Press, “No attorney has the right or can appear for an Indian, until authorized to do so by the Indian Department.”
Also on April 10, Commissioner Hayt released to the press copies of a long letter he had sent Secretary Schurz relating to the Ponca case. In that letter, reproduced in part or in full by many newspapers across the country, Hayt firmly stated the government’s position—that the Poncas had been lawfully moved from their old reservation to Indian Territory as required by Congress, and there were no legal grounds for their return to Dakota Territory. According to Hayt, any blame for the Poncas’ situation had to be laid at the feet of the Ulysses S. Grant administration and Congress. His department, he said, had merely followed orders.134
Referring to the Poncas’ relocation place, he noted that he had visited the Poncas in the Indian Territory the previous October, and “there is probably no finer location for an Indian settlement in the Indian Territory, and in all respects it is far superior to their old location in Dakota, from which, in previous years, they had themselves asked the department to remove them.”135 The latter reference was to the Poncas’ request in 1876 to be relocated to the Omaha reservation to escape Sioux attacks. Hayt knew that the Poncas hadn’t asked to be removed to the Indian Territory, a place they had never even heard of in 1876. But, like his inspector Edward Kemble, he was happy to misconstrue that request to suit his purposes.
Judge Dundy would have read that letter in the press, together with the Associated Press article containing Hayt’s barbed comment aimed specifically at him. As he became further acquainted with the Ponca case through the month of April, he would have appreciated that Hayt had emphatically drawn a line in the sand, signaling the Interior Department’s intended tactics in and out of court. In his letter to Schurz, Hayt said, “If the reservation system is to be maintained, discontented and restless or mischievous Indians cannot be permitted to leave their reservations at will and go where they please.”136 The Interior Department, or more specifically Carl Schurz and his underling Hayt, feared that if they acceded to the request of one insignificant Indian tribe for a return to its original homeland, even if that request had a legitimate basis, all the relocated tribes would clamor for the same treatment. But it was not Judge Dundy’s task to consider other tribes. He could only and would only consider the case that was brought before him, the case of Standing Bear and his Poncas.
While the Indian commissioner was conducting his publicity campaign, the district attorney’s office in Lincoln, acting on behalf of General Crook and the U.S. government, worked quickly to counter the petition for the writ of habeas corpus, sending General Crook a detailed return of writ that set out the general’s authority to arrest the Ponca band. On April 11, Crook swore before a notary public that the return was true and correct and forwarded it to the DA’s office together with copies of all orders received and issued by him in relation to the arrest of the Poncas. The DA subsequently lodged the return with the clerk of the district court by the due date.
Judge Dundy then required all parties to appear before him in the U.S. district court in Omaha on Wednesday, April 30, to present legal argument for and against the execution of the writ. If the judge found that Standing Bear and his people had been arrested contrary to federal law, he would order the prisoners released. If, on the other hand, the judge was convinced that the original arrest had been legal, then he would dismiss the writ and the government would be free to remove the prisoners to Indian Territory as Secretary Schurz had requested.
The battle lines had been drawn. Now the fate of the Standing Bear case was in the hands of the legal combatants.