NO ONE KNEW how long Judge Dundy would deliberate over his decision in the Standing Bear case. In the meantime, Standing Bear and his band remained under guard at Fort Omaha, although their newfound national celebrity meant they had a constant stream of visitors. Most were church people who came to offer their moral support.
After the drama of the hearing, when the days had seemed to fly by, time dragged through the weekend and into the first full week of May as the members of Standing Bear’s defense team tried to get on with their lives and think about anything but the case. General Crook concentrated on military affairs, Andrew Poppleton returned his attention to railroad business, John Webster went back to his practice, and Henry Tibbles went about the business of newspaper reporting and editing, regularly making the trek out to Fort Omaha to see Standing Bear and keep up his spirits.
Back on the Omaha reservation, Bright Eyes returned to the government school and tried to focus on teaching her students their lessons, assuring her tribespeople that if they had faith their Ponca kinfolk would receive justice from the white judge. Her confidence in the U.S. judicial system was not shared by many of her people. As the days passed, her heart must have stopped every time a horseman arrived at the Omaha settlement in case it was a messenger bearing news about the judge’s decision. But still no word came.
Midway through the second week of May, news came at last. Attorneys Webster and Poppleton were advised that Judge Dundy would hand down his judgment at a session of the district court on the following Monday, May 12. The word flashed around Omaha, and around the country.
Henry Tibbles was among a throng of reporters who converged on the second-floor courtroom on May 12 along with interested locals. Standing Bear and his wife were there, so too were Bright Eyes and General Crook, all hoping for justice for the Poncas at last. Poppleton, Webster, and Lambertson came to their feet with their clients as Elmer Dundy entered the court and then, with guarded apprehension, resumed their seats.
Judge Dundy had spent the last twelve days poring over copies of acts of Congress, Indian treaties, and other relevant legal and government documents, and then writing a detailed judgment that ran to many pages. He now began to read that judgment aloud. “During the fifteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under consideration.”
It is not unusual for a judge to make a personal comment when handing down a judgment. This comment would have caused young Genio Lambertson to shift uncomfortably in his seat at what was, to him, an inauspicious opening.
The judge had more to say in the same vein. “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.
“On the one side, we have the representatives of this wasted race coming into this national tribunal of ours, asking for justice and liberty to enable them to adopt our boasted civilization, and to pursue the arts of peace, which have made us great and happy as a nation. On the other side, we have this magnificent, if not magnanimous government resisting this application with the determination of sending these people back to the country which is to them less desirable than perpetual imprisonment in their own native land.” There was no doubting that the judge had fully comprehended the despair that the Ponca people had come to feel.
“But I think it is creditable to the heart and mind of the brave and distinguished officer who is made responsible herein, [Crook], to say that he has no sort of sympathy in the business in which he is forced by his position to bear a part so conspicuous.
“So far as I am individually concerned, I think it not improper to say that, if the strongest possible sympathy could give the relators title to freedom, they would have been restored to liberty the moment the arguments on their behalf had been closed. No examination or further thought would then have been necessary.”
The district attorney would have been glowering at the judge by this time.
“But in a country where liberty is regulated by law,” Dundy went on, “something more satisfactory and enduring than mere sympathy must furnish and constitute the rule and basis of judicial action. It follows that this case must be examined and decided on principles of law, and that unless the relators are entitled to their discharge under the Constitution or laws of the United States, or some treaty made pursuant thereto, they must be remanded to the custody of the officer who caused their arrest, to be returned to the Indian Territory, which they left without the consent of the Government.”
Lambertson would have been feeling a whole lot better by this point. It almost sounded now as if the judge was making an excuse in advance for the verdict he was going to hand down—while Dundy sympathized with the Poncas, the law was the law and he had to rule in favor of the government. At Standing Bear’s table, Poppleton and Webster would have begun to worry that their case might be lost.
The judge turned the page and then began again. “The District Attorney very earnestly questions the jurisdiction of the court to issue the writ, and to hear and determine the case made herein, and has supported his theory with an argument of great ingenuity and much ability. But, nevertheless, I am of the opinion that his premises are erroneous, and his conclusions, therefore, must be wrong and unjust.” The judge would have glanced at Lambertson, before continuing, “The great respect I entertain for that officer, and the very able manner in which his views were presented, make it necessary for me to give somewhat at length the reasons which lead me to this conclusion.”
Dundy was talking about Lambertson’s submission that the original intent in Britain had been that habeas corpus should only apply to free citizens. The judge said that while he had not made a detailed examination of English laws, they seemed to him to be inferior to American law, for the U.S. Congress legislated on behalf of all mankind who came within its jurisdiction, not just the favored few.
“I cannot doubt,” he went on, “that Congress intended to give to every person who might be unlawfully restrained of liberty under color of Authority of the United States the right to the writ and a discharge thereon. I conclude then, that so far as the issuing of the writ is concerned, it was properly issued, and that the relators are within the jurisdiction conferred by the habeas corpus act.”
Round 1 to Standing Bear. Judge Dundy ruled that Standing Bear was a human being and was therefore legally entitled to sue for a writ of habeas corpus. This was a momentous, groundbreaking decision. In the eyes of the law, Standing Bear was a person!
But Standing Bear’s victory on this point would count for nothing if the judge subsequently found that the Poncas had been on the Omaha reservation illegally and that their arrest had been lawful. In that case, the judge would dismiss their application and return them to the army’s custody. The smarting Lambertson would have been glad that he had put some effort into defending the arrest of the Poncas on the Omaha reservation, even though he had never expected the judge’s deliberations to extend that far.
Judge Dundy next turned to the matter of the right of Standing Bear and his fellow Poncas to separate themselves from their tribe and live and support themselves independently like any white person. In their written petition, the relators claimed that they had done the former and had been attempting to do the latter at the time of their arrest; the district attorney, for the government, submitted that Indians did not have this right of expatriation from their tribe and a separate life as citizens. The judge now proclaimed that he had not found a law preventing Indians from doing this. And an Indian, like a foreigner traveling in the United States or a foreigner who separated from his former nation and came to the United States as a migrant, who had separated from his tribe and the laws governing that tribe and was living as an individual in the United States, even if not a citizen of the United States, had an inalienable right to the protection of U.S. law.
“A question of much greater importance remains for consideration,” Judge Dundy continued, “which, when determined, will be decisive to this whole controversy. This relates to the right of the Government to arrest and hold the relators for a time, for the purpose of being returned to a point in the Indian Territory from which it is alleged the Indians escaped. I am not vain enough to think that I can do full justice to a question like the one under consideration. But, as the matter furnishes so much valuable material for discussion, and so much food for reflection, I have tried to present it as viewed from my own standpoint, without reference to consequences or criticisms, which, though not specially invited, will be sure to follow.” Dundy would prove to be so right on that score.
Again the judge elaborated, going into a detailed discussion of the matters arising from this point before moving on to conclude that “General Crook had the rightful authority to remove the relators from the reservation, and must stand justified in removing them therefrom.” But that was not all. “When the troops are thus employed they must exercise the authority in the manner provided by [section 2149 of] the revised statutes. This law makes it the duty of the troops to convey the parties arrested by the nearest convenient and safe route, to the civil authority of the territory or judicial district in which persons shall be found, to be proceeded against in due course of law.”
This revelation would have stunned the courtroom. John L. Webster, in his verbal submission, had stated that the army could only hold a prisoner for five days before handing him over to the civil authorities, but he hadn’t elaborated. What the judge was saying was that General Crook had been right to obey the order from Washington to arrest the Poncas; Standing Bear and his band did not have government permission to be on the Omaha reservation, and as far as the law was concerned they were trespassing. But the orders to General Crook from General Sherman had been faulty. As the judge now pointed out, the law required that anyone caught on a reservation without permission must be arrested and immediately handed over to the nearest civil law officer and brought before a judge. General Crook had been ordered to arrest the Poncas for removal back to the Indian Territory, but he had not been ordered to hand them over to the civil authorities to be proceeded against in a court of law, as he should have been.
Either someone in Washington had screwed up badly, or someone in authority at the highest level in Washington had deliberately and arrogantly ignored the requirements of the laws governing such actions. Judge Dundy felt the latter had been the case. “This course was not pursued in this case. Neither was it intended to observe the laws in that regard, for General Crook’s orders, emanating from higher authority, expressly required him to apprehend the relators and remove them by force to the Indian Territory, from which it is alleged they escaped. But in what General Crook has done in these premises no fault can be imputed to him. He was simply obeying the orders of his superior officers. But the orders, as we think, lack the necessary authority of law, and are, therefore, not binding on the relators.”
Put plainly, in the judge’s opinion the orders to General Crook had not complied with the law and therefore could not be enforced. Judge Dundy then ruled:
Translated from the legalese, the judge found that an Indian was a person and could apply for a writ of habeas corpus, that the orders to General Crook from Washington to arrest and detain Standing Bear and his party for removal back to Indian Territory were in contravention of the law, and they must be released.
Judge Dundy brought down his gavel. With the rap of wood on wood, the case of Standing Bear versus George Crook was concluded, and Standing Bear was a free man. The response from the gallery was spontaneous and deafening, a shout unlike any sound normally heard in a courtroom. The St. Louis Republican wrote of the reaction of Standing Bear and his wife, Susette, “At the close of the reading they received their liberty and congratulations of friends with feelings of great joy.”167
Amid the excited crowd, the numbed Genio Lambertson attempted to grasp the enormity of the decision that had gone against him. There would be people in Nebraska, in Washington, and throughout the country who would want his scalp after this, demanding to know how he could have bungled such an apparently simple case, and how he could have permitted such a precedent to be set. Lambertson would turn twenty-nine in five days time, and this was definitely not the way he had planned to celebrate his birthday.
But to Standing Bear’s joyous supporters, it appeared that Judge Dundy’s groundbreaking decision was the dawning of a new era in American history. It seemed no accident that the Ponca tribe’s name translated as Those Who Lead.