Chapter 11
THE ARGUMENTS

OTHER THAN STANDING Bear’s testimony, the Poncas did not understood a word spoken on the first day of the hearing. They returned under guard to Fort Omaha late Thursday uncertain about what had taken place in the courtroom and far from optimistic about their chances of being granted their freedom.

Knowing this, Henry Tibbles followed the prisoners out to the fort before he went back to his office to write up an account of the hearing for his editor at the Herald and expectant editors around the country. That night, through an interpreter, identity unknown, Tibbles tried to fill the Poncas in on the day’s legal proceedings. Despite his best efforts, the complexities of the arguments went over their heads.

Standing Bear was not happy with the way things were going. When he testified he was not able to make the points he wanted. The process of answering questions put to him was too limiting as far as he was concerned. For one thing, he wanted to brand Commissioner Hayt a liar. In the second week of April, Tibbles had read him Hayt’s open letter to Secretary Schurz saying that Indians must be made to give up their nomadic ways and become farmers. But, Standing Bear pointed out, Commissioner Hayt knew very well that the Poncas were farmers, not nomads. In that letter Hayt also said that when he visited the Poncas in the Indian Territory, he recognized Standing Bear as a troublemaker who was the only chief to show what he considered a bad spirit. In response, Standing Bear gave Tibbles a character reference Hayt had written for him in December, two months after Hayt’s October visit, in which the commissioner said that Standing Bear’s “influence has been to preserve peace and harmony between the Ponca Indians and the United States, and as such is entitled to the confidence of all persons whom he may meet.”149 But the lawyers did not present this reference in court, and they and Tibbles counseled Standing Bear not to say anything bad about Hayt.

Standing Bear, accustomed to speaking for himself in council, was frustrated by the white man’s way of doing justice, where strangers spoke on his behalf and he could only say what others wanted him to say. The attorneys had told him they’d given the judge written statements dictated by Standing Bear and his co-relators, but that hardly seemed enough to him. Tibbles wrote that the chief asked him many searching questions about what the attorneys were saying, before he finally commented to the newspaperman, “No man can talk for another as well as he can for himself.”¹⁵⁰ Next morning, Friday, May 2, before the court convened for the second day, Tibbles went to see his friend Judge Dundy in his chambers and asked him to allow Standing Bear to make a statement to the court on his own behalf. Dundy smiled and responded, “Was Standing Bear ever admitted to the Bar?”¹⁵¹

If only attorneys recognized by the court could speak at the hearing, it seemed that Standing Bear’s request would be denied. But that morning the judge and Tibbles made a secret agreement. Tibbles was able to discreetly inform Standing Bear, General Crook, Poppleton, and Webster that the chief would indeed be given the chance to personally plead his case. He told them it would be in a way that was unorthodox but perfectly legal and above board. They would have to wait to see how this was accomplished.

Court resumed at 10:00 A.M. on May 2 to a packed courtroom. John Webster, though professing to be feeling very unwell, prepared to launch into his argument. At Judge Dundy’s invitation, Webster took the floor to begin summing up the case for Standing Bear and his corelators.

Webster’s summation lasted until noon, when the judge adjourned for lunch. Resuming at 1:30, Webster spoke for another hour. He addressed several main points. With detailed supporting quotes from a variety of sources, he argued that the Omaha tribe’s legal title to their land was recognized in their treaties with the U.S. government. Consequently the Omahas had every right to invite friends such as Standing Bear and his band to share their land. He went on to assert that Indian tribes could not be moved “at the whim and pleasure” of the commissioner of Indian Affairs, for they had been recognized by treaties endorsed by Congress as independent nations, even quoting Thomas Jefferson in support of his argument.

He pointed out that the treaties signed by the Ponca tribe expressly required the tribe’s consent before it was relocated from its Dakota Territory reservation. Despite the efforts made by Inspector Kemble in 1877 to represent a request for temporary relocation to the Omaha reservation as giving permission for the tribe’s removal to the Indian Territory, the Poncas had never consented to go to Indian Territory, making their removal by the government a breach of those treaties and therefore unlawful.

“They are called barbarian tribes, but these Omahas and Poncas are not savages nor wanderers,” he went on to say. “They cultivate the soil, live in houses and support themselves.” It was the whites who were the savages, he contended, going on to give examples of cruelties inflicted on Indian tribes by whites over the years.

But could an Indian present himself in court to redress an injustice done to him by the U.S. government? Webster cited a number of authoritative legal opinions supporting his argument that an Indian who had severed his tribal relationship and sought to live as a citizen was entitled to be protected by U.S. law.

Webster then elaborated the sad tale of the injustices done to the Poncas over the past two decades, up to and including the death of Standing Bear’s son Bear Shield, before turning to the issue of the power of the Indian commissioner to use the U.S. Army to enforce his orders. He pointed out what the statutes did and did not allow, and stressed that the law only gave the army power “to hold persons who had committed crimes for five days, and then hand them over to the civil authorities.”

Webster next dealt with the appalling conditions the Poncas had endured in the Indian Territory, including the fact that one in four of them had died during and after their forced removal from their own land, a higher mortality rate, he said, than Union army prisoners suffered in the worst Confederate prisons during the Civil War. Standing Bear and the other prisoners before the bar, said the attorney, fled the potential prison of Indian Territory to save their wives and children “and now ask the protection of this court.”

“A man belongs to himself,” Webster declared, employing the words of black rights activist Frederick Douglass, and would remain so “until you storm the citadel of heaven and wrest from the bosom of God man’s title deed to himself!” With that, he sat down, his words making a favorable impression on the spectators.

Judge Dundy now invited the district attorney to make the case for the government, and Genio Lambertson came to his feet. Shaken the previous day by the revelation about General Crook’s true loyalties in the case, the young district attorney had been given a night to get over it and prepare to strut his stuff on this second day of the hearing. Now he was as ready as he ever would be to step into the spotlight and dispose of his learned opponents’ propositions.

Lambertson began with a syrupy tribute to Poppleton and Webster, “for their generosity in coming to the assistance of these poor people, prisoners and friendless in a strange land.” He indicated Standing Bear and his four fellow Poncas.

Lambertson then turned to the evidence. He was confident of having the case thrown out without the judge even giving thought to the submissions of Webster and Poppleton in their writ of April 8 about the right of expatriation or the provisions of the Fourteenth Amendment to the Constitution. But he considered himself a thorough individual and would cover all the bases before he was finished.

Without fear of offending the judge, the young DA questioned the jurisdiction of the court to issue the writ or even hear and determine the case put by the petitioners. Lambertson was of the opinion that Judge Dundy had erred in law in agreeing to consider a petition from an Indian, a noncitizen, and told the court so. It’s not recorded, but Judge Dundy may have broached a smile at this point—before he invited Lambertson to “support his theory” with legal argument.

Lambertson proceeded to argue that Standing Bear and his colleagues had no legal recourse to habeas corpus. To him, whatever the precise wording of the act, the intent of the legislators who created habeas corpus and passed it into American law was clear, as was evident from subsequent practice—no application for a writ by an American Indian, a noncitizen, had ever been entertained by a federal court. To prove his submission, he embarked on a detailed discussion of how and why the writ of habeas corpus had been created in the first place and used over time, beginning with the origin of the writ and how it had been applied in Great Britain.

The crux of the twenty-eight-year-old district attorney’s lengthy argument on this point was that in Britain the act of habeas corpus had limited the right to this writ to the free subjects of the kingdom. By extension, this meant that only American citizens were entitled by law to be granted a writ of habeas corpus in a federal court, and so it had always been interpreted in the United States. Accordingly, the DA respectfully submitted that no grounds existed for His Honor to create a precedent and grant a writ to a noncitizen. Like it or not, he said, Congress had deemed that Indians were not U.S. citizens. And so, Indians had no more rights in a court of law than beasts of the field.

As strongly as he felt that he had shown that the Poncas had no grounds for their writ and that the judge must find in his client’s favor in that regard and dismiss the application, Lambertson was obliged to also answer the relators’ assertion that the government had illegally arrested and detained them for the purpose of returning them to Indian Territory.

He contended that the treaties of 1858, 1859, and 1865 (extracts from which he read aloud to the court), treaties that the Ponca tribe had signed, very clearly stated that members of the tribe could not leave their reservation without government permission. He submitted that, no matter what Standing Bear may have told Agent Whiteman, the members of the tribe who departed the reservation in the Indian Territory were still Ponca Indians by virtue of their ancestry and place of birth; they could not cease to be Ponca Indians simply because they said they were no longer Ponca Indians. And they certainly hadn’t claimed to have left their Indian Territory reservation with government permission. They were therefore to be considered escapees in the eyes of the law.

In addition, the treaties that the Omaha tribe had signed with the U.S. government prohibited any person who was not a member of the Omaha tribe from entering their reservation. Those treaties obliged the U.S. government to arrest and remove any person who was on the reservation without government permission. As Standing Bear and the other relators had been found on the Omaha reservation by General Crook’s troops, a fact that no one denied or disputed, and as neither General Crook nor any other person in authority had given the Poncas permission to enter the Omaha reservation, Lambertson contended that General Crook had both the right and the obligation to arrest and remove them.

As to the reasons and circumstances of the Ponca tribe’s removal to Indian Territory, Lambertson did not believe that it was necessary to discuss them. They didn’t have a bearing on the right of the U.S. Army to arrest and detain Standing Bear and his companions for being illegally on the Omaha reservation. But prior to beginning his summation (either before 10:00 A.M. or during the lunch interval), the district attorney was informed by Judge Dundy that he intended to give Standing Bear the opportunity to make a statement at the close of the hearing. Knowing that what he said in defense of the government was destined to be considered in the national court of public opinion as well as in the district court, Lambertson decided to counter what he expected Standing Bear to say in his upcoming statement by reading the court a letter from former Indian Affairs commissioner John Quincy Smith. In that letter Smith explained the reasons for removing the Poncas to Indian Territory and the legal basis for that removal—the acts of Congress that required and authorized the removal and allocated funds for it to take place.

As to John Webster’s contention that the removal of the Poncas to Indian Territory had been unlawful because the tribe had not given its consent, Lambertson pointed out that in 1871 Congress had determined that no more treaties would be entered into between the U.S. government and Indian tribes. The laws passed by Congress since that time requiring and allowing for the Poncas’ removal to Indian Territory had superseded the earlier treaties, he said, just as all new laws superseded old laws on the same subject, making it unnecessary for consent to be sought or given.

In summation, Lambertson declared that the federal laws which applied to Indians clearly and unequivocally gave the government the legal right to order its military forces to arrest any Indian who escaped from his reservation and return him to it. In the same way, General Crook could legally use his troops to remove any outside person, Indian or white, who was on a reservation without his permission. For their part, the relators did not claim to have such permission. Consequently the order issued by General W. T. Sherman commanding Brigadier General Crook to arrest and detain Standing Bear and his Poncas was lawful. Therefore, on these grounds too the writ of habeas corpus must be dismissed.

As Lambertson resumed his seat after three long and sometimes eloquent hours, there would have been a feeling in the body of the court that his credible, cogent argument might win the day. But Henry Tibbles was not impressed. While he devoted several pages in the Daily Herald to the arguments made by Standing Bear’s lawyers, he dismissed Lambertson’s address with a nineteen-line synopsis.¹⁵²

Judge Dundy, who had a busy court schedule in the days ahead and had allocated only two days to the hearing, wanted to wrap it up this same day. So he announced that he would adjourn the session until after supper that evening, at which time he would hear final arguments. An evening session was not considered unusual. This was a time when professional people such as doctors typically kept office hours of 8:00 A.M. to 1:00 P.M., 2:00 to 6:00 P.M., and 7:00 to 8:00 P.M., six days a week.

Many an observer who trooped down the stairs from the courtroom and headed for city restaurants and nearby private dining rooms would have felt swayed toward the district attorney’s view that Standing Bear and his Poncas did not have the right to appear in court or sue for a grant of habeas corpus.

When court resumed at 7:30 P.M., again with a crowded gallery, Andrew Poppleton rose to deliver the final address on behalf of Standing Bear and his band. It had been sixteen years since Poppleton had last stood up in a courtroom to argue on behalf of a private client. Sixteen years of handling contracts for land acquisition and construction works involving millions of dollars for the Union Pacific Railroad. But the years had not dulled the public speaking skills that had won him the admiration of voters who sent him to the legislature and later hung Omaha’s mayoral chain around his neck. The proverbial rust dissolved, and the courtroom warrior went to war.

“May it please the court,” he began. “I suppose it would be impossible for counsel under any circumstances to approach a case of this character without a feeling of oppression at its magnitude and the consequences involved in it.”

Poppleton’s argument extended well into the night, the spectators hanging on his every word. Many had come specifically to witness Poppleton in action for the first time in years, such was his past reputation as a podium speaker. He had a rich voice, and he used evocative words, dramatic pauses, theatrical gestures. It has been said that many a courtroom lawyer is a frustrated stage actor. The courtroom, like the floor of an elected assembly, was Andrew Poppleton’s stage.

In the course of his address he quoted from numerous treaties, laws, and legal opinions, invoked the Greeks and ancient Romans, even read from the latest edition of an encyclopedia. But the early part of his address was like an appetizer before the main course, with Poppleton frequently making reference to himself and his feelings about the case. In this opening he made a point of saying how surprised he’d been by the defense offered by the “gentleman” representing the government, a de- fense that characterized the Poncas as savages who were entitled to no rights whatsoever.

He moved on. “May it please Your Honor, it is said that it must be ‘presumed’ that these Indians were lawfully in the Indian Territory. I take issue with that proposition.” Poppleton then went into a lengthy discussion of the treaties signed by the U.S. government with Indian tribes, and the treaties signed by the Poncas in particular, and their interpretation by various legal authorities, and also of Congress’s subsequent appropriation bills for the removal of the Poncas. He made three key points. One, that no new reservation was set aside by Congress for the Poncas in the Indian Territory—they had been sent south to share the reservation of the Quapaw people. Two, Lambertson had failed to remind the court that while Congress had decided in 1871 that it would no longer enter into treaties with Indian tribes, it had stated that this measure in no way affected the rights granted to Indians in treaties agreed prior to that date. And three, the appropriation bills repeated the stipulation set out in the treaties that any removal must be with the written consent of the Ponca tribe.

He also pointed out that while Lambertson had made much of the fact that the government had given the Poncas wagons, stock, and farming equipment, this had in fact been in exchange for tens of thousands of acres of the Poncas’ Dakota Territory land that the tribe had ceded to the United States in the 1860s.

Poppleton then focused on the right of Standing Bear and his companions to apply for a writ of habeas corpus. He did not believe, he said, that U.S. courts would agree to the proposition that these people were nothing more than wild beasts. They were human beings, and as such had as much right to the protection of the courts as anyone else. He asked the court to consider the language used by the U.S. Constitution and the relevant statutes. None expressly forbade Indians from seeking the protection of habeas corpus. Unless a law could be found that excluded the relators as persons from the benefits of habeas corpus, he contended it must cover them. In the past, he said, the courts had recognized that children and even the insane had a right to the protection of habeas corpus, whether U.S. citizens or not. It had even been found to apply to slaves.

At this point Genio Lambertson interjected with a derisory comment about a famous case decided against a black slave appellant by the Supreme Court in 1857. Poppleton frowned at the young district attorney and dismissed the example cited by Lambertson as irrelevant and out of date.

The district attorney had used the example of habeas corpus as it had originally applied in Great Britain to “freemen” to suggest that in the United States it could only, by extension, be applied to “citizens.” Poppleton disagreed and read from numerous reference works to show that nowhere was a petitioner for relief under the habeas corpus act required to be a citizen. Opening the new American Cyclopedia to an article on habeas corpus, he remarked that it was as good an authority as the letter from John Quincy Smith tendered by his opponent.

Again Genio Lambertson interjected. “I put that letter in as an offset to the speech that Standing Bear is going to make.”

Again a frown crossed Poppleton’s face. “That is about the only way that Standing Bear has been answered (before today)—by a letter from the Interior Department,” he shot back, before reading aloud the Cyclopedia’s description of the history and interpretation of habeas corpus.

He went on to quote from numerous books describing the petition of habeas corpus, none of which stipulated that petitioners had to be citizens. Yet the district attorney contended that Indians must be citizens for habeas corpus to apply to them. Poppleton suggested that the only way the court could find against his clients’ petition would be to find that they were not human beings. But who had not been touched by Standing Bear’s heart-rending description of his son’s death in his arms, and of Standing Bear’s promise to him that he would bury his bones in their home soil? No one could tell him that these were not human beings, Poppleton dramatically declared.

Poppleton reminded the court that in his argument the district attorney said he had not been able to find a single instance where an Indian had been permitted to sue for a writ of habeas corpus. Because such a thing was without precedent, Lambertson had said, the writ must not be allowed to stand. “If there is no precedent for the issuing of a writ on behalf of an Indian,” said Poppleton, “then I say in God’s name it’s high time to make one!” He turned to the judge. “If I sat where Your Honor does I should consider it a pleasant duty to establish a precedent on behalf of these poor Indians!”

Poppleton then returned to a condemnation of the government for characterizing the Poncas as savages—because Indians had not achieved in two hundred years the same degree of civilization that whites had achieved in two thousand. Was this really the way the government proposed to treat all Indians who, like Standing Bear, attempted to step away from their tribal ways and lead a civilized life and provide for themselves, just like whites? As for the government resting its entire defense on the proposition that Indians had no rights in any court, “I say that is a monstrous proposition, and I shall continue to say so until I have seen better authority than has been produced here.”¹⁵³

Checking the courtroom clock and realizing that he had been talking for over two hours, and feeling exhaustion creeping over him, the attorney wrapped up and expressed the hope that the court would find in his clients’ favor and open the way to a whole new era for all Indian peoples.