THE NEWS FLASHED around the country—Standing Bear had won! The short version of the Dundy judgment, containing the five points of his determination, would have been telegraphed at once to Washington—to the War Department, the Interior Department, and the Bureau of Indian Affairs. The complete written judgment, with the judge’s detailed reasoning for his decisions, would follow a little later.
As the Omaha Herald and countless other papers across the country reported the judge’s decision on May 13, nothing but silence came out of Washington. On the next day, Wednesday, May 14, Secretary of War George W. McCrary in Washington issued an order: “General Crook was to immediately release Standing Bear and those in custody with him and to locate them on Federal Government land near to but separate from the Omaha Indian reservation.”168 The order was to take effect on Monday, May 19.
Judge Dundy’s determination made the release order mandatory. But allocating land to Standing Bear’s party was not, and it showed a certain magnanimity on the part of Secretary of War McCrary. Perhaps he had not been a wholehearted supporter of the hard line taken in the Standing Bear case by his colleague Secretary of the Interior Carl Schurz. Perhaps it was a parting gesture—McCrary resigned his post several months later and was replaced by Alexander Ramsey.
Leading lights in the Interior Department were not so generous. That same afternoon of May 14, Commissioner for Indian Affairs Ezra A. Hayt issued a public statement in Washington. The “perfectly bald” fifty-six-year-old Hayt (“lacking even those three hairs which cartoonists like to implant on all bald heads”) was described by Henry Tibbles as “unimposing” and “insincere.”169 Hayt, Spotted Tail’s “bald-headed liar,” had no admirers in the pro-Indian camp. Lieutenant John Bourke noted in his diary on February 5, 1880, “it would be impossible to find ‘a more thorough rascal’” than Commissioner Hayt.170
The unpopular Hayt, who had been in his post since 1877, was a man of fixed ideas about the American Indian and the firm way the U.S. government should deal with him. His Standing Bear statement of May 14 was published around the country. In it he announced that “the District Attorney at Omaha has been instructed to take the necessary steps to carry the question to higher courts. . . . The decision of Judge Dundy at Omaha in the Standing Bear habeas corpus case in which he virtually declares Indians citizens with the right to go where they please, regardless of treaty stipulations, 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.”171
Newspapers considered supportive of the Indian Ring were immediately outraged by the Dundy decision. The Chicago Times of May 14, for example, branded the verdict “sentimental idiocy.” Others took a good hard look at the decision and as editorial writers began to postulate over its ramifications, the Indian Affairs line began to take hold. The national mood of sympathy for the Poncas weakened in some quarters, as people who initially took a charitable view of a small band of mistreated Native Americans began to fear the broader implications and repercussions of the case when applied to all Indians.
In a typical reflection of Commissioner Hayt’s attitude, the editor of Minnesota’s St. Paul Pioneer Press wrote on May 18, “If the decision of Judge Dundy, of the U.S. Court of Omaha, to the effect that Indians have the legal rights of citizens, is sustained, the Indian policy of the government will undergo a revolution. Any comprehensive and rational Indian policy contemplates the ultimate civilization of the savages.” But the “comprehensive and rational Indian policy” advocated by the St. Paul editor did not envisage an immediate grant of equality to all Indians that the Dundy rulings seemed to them to imply.
Many Americans were all for “civilizing” the Indians, but they saw this as a gradual process of assimilation, with Indians earning their rights as they moved away from tribal customs and culture and into the white man’s world. These people were certainly not ready for the overnight equality that Dundy’s many critics warned would now follow. A sensible observer like Lieutenant John Bourke, who was in court for the Standing Bear judgment, could see that as a result of the Dundy decision “the path to citizenship was opened for the Indian.”172 Bourke rightfully perceived this path to be a long one. But, fed and led by the likes of Commissioner Hayt, some fearful Americans saw the path leading right to their door, and sometime soon.
Particularly in the frontier states, the local press fanned fears of savage Indians immediately being granted citizenship and let off their reservations en masse. The Daily Commonwealth of Topeka, Kansas, whose editor now looked anxiously to his state’s southern horizon, took a common line when it declared following the Dundy verdict, “Under this decision, there is nothing to prohibit the Cheyennes, the Poncas, the Nez Perces and other tribes now held by force in Indian Territory from immediately taking up their line of march for the North.”173
The reaction in Washington was typified by that of General Sherman, the man whom Judge Dundy found had issued the illegal order that resulted in both the Poncas’ arrest and their discharge. Writing to his boss, Secretary of War McCrary, a week after the Dundy decision became public, Sherman expressed his incensed disapproval of that decision. He declared that the Poncas, who had been “fed and maintained by the Indian Bureau,” were now “paupers turned loose on the community.” He facetiously suggested that since Dundy had seen fit to set them free, he should personally foot the bill for their future care.174
By contrast, in the Standing Bear camp all was heady joy and celebration. In an editorial aside on May 15, the Omaha Daily Herald chortled, “Mr. Hayt says he is a victim of political persecution. Suppose this persecution should land him in the penitentiary, what then, Mr. Hayt?” Standing Bear himself was at first astounded by the court decision.
On May 12, feeling elated by the day’s events, Tibbles parted from Standing Bear as the five Poncas were taken back to the fort by Lieutenant Carpenter. He headed for his desk at the Herald to write up the Ponca victory for next day’s paper and for papers throughout the country waiting on the outcome of the Standing Bear hearing.
Little did Tibbles know that another unexpected drama would soon play out in the Standing Bear affair, a drama involving him personally. Tibbles said that before Poppleton and Webster took their leave of Standing Bear in the courtroom, they passed on a warning to him. “If you set foot now on any Indian reservation, you can be arrested as an intruder.”175 Since, in the eyes of the law, Standing Bear had severed his connections with the Ponca tribe, this included the Ponca reservation in the Indian Territory and the old Ponca reservation in Dakota Territory. Unless they obtained government permission, Standing Bear and his refugee band could never again visit their Ponca relatives in the Indian Territory. Their Pyrrhic victory even excluded them from the Omaha reservation.
The Interior Department decided to exploit this consequence of the Dundy judgment to its advantage. On Tuesday, May 13, the day after Judge Dundy’s judgment was handed down, apparently under instructions from Indian Affairs Commissioner Hayt, who in turn would have been acting on orders from Interior Secretary Schurz, several government lawyers arrived at Fort Omaha to see Standing Bear. Whether District Attorney Lambertson was one of them is unclear, but it is likely. General Crook could not prevent the lawyers from talking to Standing Bear. He was a free man now, even if technically he remained a prisoner until May 19. The government attorneys sat down with him in private. Only later did the general learn what transpired at this meeting.
Through an Indian Affairs interpreter, the government attorneys informed Standing Bear that he could now go back to his old home “perfectly safely.”176 There was definite underhanded intent in this advice.
The 1868 act of Congress that erroneously allocated the Ponca reservation to the Sioux had never been corrected. Officially the old Ponca reservation beside the Niobrara was a Sioux reservation, and if Standing Bear or any of his people set foot in their homeland north of the Niobrara they would be considered trespassers and subject to arrest and trial.
After the government attorneys left Fort Omaha, Standing Bear seems to have asked at the fort whether it was truly safe to go home and was told it was not. The guard placed on the Poncas had been deliberately loose, and now that Standing Bear would soon be a free man, it had been relaxed even more. Which, as it turned out, was not a good thing. Since the previous December, Standing Bear had been nursing a “notion”—he must keep his promise to Bear Shield and take his son’s remains home to the old tribal burial grounds. The government attorneys had given weight to that notion. In the early hours of the next morning, believing what he wanted to believe, Standing Bear slipped out of the fort and set off to walk home to the Niobrara.
John Bourke indicates that Standing Bear headed home with the bones of his son hanging in a sack around his neck.177 Up to that time, Standing Bear had kept Bear Shield’s remains in the larger of two wooden trunks he had brought up from Indian Territory. The Ponca and Omaha Indians shared the same traditional burial practice. The bodies of the dead were left in trees or on raised platforms of rock, earth, and branches, and exposed to the elements, together with tribal religious artifacts. Once the flesh rotted away, the bones were removed and buried among the bones of relatives in a sacred riverside burial ground. In this way, it was believed, the deceased could mix with their ancestors in the afterlife. This was why Bear Shield had wrung the promise from his father on his deathbed—that Standing Bear would inter his bones among their ancestors on the Niobrara—so terrified was the youth of being alone in the afterlife.
The night of May 13, a message was relayed to Henry Tibbles in Omaha from General Crook at the fort, telling him that Standing Bear had disappeared. Tibbles could guess where his friend was heading and feared for him. If found on the Niobrara reservation by government representatives, Standing Bear would be arrested and dragged into court. If he resisted, he could be shot by a trigger-happy soldier. If he was arrested, his cause, and that of his people, would suffer significant damage, since Commissioner Hayt and Secretary Schurz were looking for an opportunity to discredit him.
Tibbles suspected that Schurz was hoping for just this sort of rash reaction from Standing Bear when he sent the government lawyers to see him at the fort. For all he knew, Indian Affairs officials were lying in wait for Standing Bear at the Niobrara. Tibbles didn’t have to think twice about what to do—he set off after the chief, determined to bring him back before he was caught on the old Ponca reservation.
Standing Bear had at least an eighteen-hour start on Tibbles by the time the pursuit began that night. The newspaperman apparently borrowed a buggy and set off north, driving like a maniac, for the Omaha reservation. He knew Iron Eye kept two fast ponies at his house in Joe’s Village, the house that housed him, his two wives, and his numerous children, including Bright Eyes. Tibbles reached Joe’s Village in the middle of the night after driving all day and told the chief about Standing Bear’s flight. Iron Eye unhesitatingly loaned the ponies to his friend.
Tibbles also needed a good interpreter who could help him talk Standing Bear into turning around and coming back. It would have to be someone the chief knew and respected. Tibbles says he took “a young Indian” with him for that purpose.178 That rules out Willie Hamilton, a white, and Iowa Charles Morgan, who was apparently a mature man, as well as a middle-aged Omaha who sometimes served as an interpreter, Henry Fontanelle, son of a famous Omaha chief of the 1850s. The “young Indian” may have been Iron Eye’s son Frank La Flesche. He spoke excellent English and had a good mind. After his sister described the performance of Andrew Poppleton and Andrew Webster in court on behalf of his people, and in the wake of the unexpected legal victory, Frank La Flesche set his sights on becoming a lawyer one day. But if Frank was the interpreter used by Tibbles on this occasion it’s strange that Tibbles chose not to name him.
The fact that Tibbles didn’t reveal this person’s identity makes it likely that interpreter was in fact Bright Eyes. Standing Bear liked and trusted the twenty-four-year-old school mistress. Besides, she had translated for him in court, and he knew that she had been acting in his best interests ever since she went to General Crook to initiate his defense. If anyone could talk Standing Bear out of his notion, it would be Bright Eyes. What’s more, at Tibbles’s instigation, Bright Eyes and her father would carry out another sensitive mission involving the Poncas within the next few weeks. As with previous episodes, Tibbles failed to identify Bright Eyes as the interpreter at his side in this Standing Bear chase for reasons that became clear later.
Iron Eye would have had concerns about his daughter riding off into the night with a white man, but he trusted no one more than he trusted his “brother” and fellow Soldier Lodge member Henry Tibbles. The urgent and imperative nature of the mission would have convinced the chief of the Omahas to let Bright Eyes go along. The pair set off toward the Niobrara together on Iron Eye’s horses at four o’clock in the morning.
Tibbles says he had traveled 120 miles in eighteen hours by the time he and his Indian companion caught up with Standing Bear in the night. The Ponca chief was warming himself at a campfire, waiting by the bank of the fast-flowing Niobrara for the dawn to show him a safe crossing place. It must have taken some doing, convincing Standing Bear to turn around when he was so close to his destination, so near to interring his son’s bones with those of his ancestors. But Tibbles and his companion eventually made him realize the danger of being found on the old reservation by government representatives. They would have pointed out that those representatives may have been lying in wait at the ruined Ponca settlement north of the river, where Standing Bear’s house had previously stood, a place that Standing Bear would have been drawn to once he crossed the river.
Tibbles and his companion escorted Standing Bear back south, first to Joe’s Village. At the Omaha settlement, Tibbles and Standing Bear rested briefly and spoke with Iron Eye and Bright Eyes about their strategy in the fight to bring all the Poncas home from Indian Territory. Tibbles and Standing Bear then transferred to the newspaperman’s buggy and continued on to Fort Omaha. It would have been when Tibbles brought the miserable chief back to the fort that Lieutenant Bourke saw Standing Bear and noted the bag of bones around his neck as he dejectedly dismounted from the vehicle. It would have been an image that lodged in Bourke’s mind for the rest of his days.
With the broken-hearted Standing Bear confined to the fort under a closer watch until the following week, when he was due for release, General Crook, Tibbles, and Webster met to discuss the fate of his little band. They agreed that a committee of concerned citizens should be formed to support the Poncas in their endeavors to start a new life. Now that Standing Bear’s group had been legally declared separate and individual from their tribe, and Standing Bear had given the understanding that he and his people could support themselves, the government was under no obligation to provide them with protection, food, shelter, livestock, seed, tools, or education, as provided by past treaties between the Ponca tribe and previous U.S. administrations.
Tibbles made the rounds of his church connections, and before long the Omaha Ponca Relief Committee was formed. Chaired by Robert Clarkson, Episcopal bishop of Nebraska, the committee’s founding members included James O’Connor, Congregational bishop of Nebraska, Reverend William Harsha of the Presbyterian Church, and Judge James W. Savage. O’Connor and Savage were later replaced by Leavitt Burnham, W. M. Yates, and P. L. Perine. The committee treasurer was Congregational minister Alvin F. Sherrill. While the committee deliberated on the most constructive ways to help the Poncas, General Crook looked at maps of Nebraska as he considered the best place to settle Standing Bear and his little band.
On Sunday, May 18, one day before Standing Bear’s official release date, Henry Tibbles went to the fort to say good-bye to the Poncas, and Standing Bear took him out to a low hill outside the fort behind General Crook’s residence. Over the past six weeks Standing Bear had sometimes gone to this wildflower-dotted hill for contemplation.
There on the hill, Standing Bear said, “When I was brought here a prisoner, my heart was broken. I was in despair. I had no friend in all the big world. Then you came. I told you the story of my wrongs. From that time until now you have not ceased to work for me.” On his worst days, he said, he came out here to the hill and looked toward the city of Omaha, knowing that there was a man in that city who was working to save him. And now he was saved.179
Taking Tibbles back to the fort, he led him into his shelter. Opening a trunk, he took out his tomahawk, a war bonnet, and beaded leggings. The leggings he presented to Tibbles. “If you ever want a home, come to me or my tribe,” he said. “While there is one Ponca alive you will never be without a friend. Mr. Poppleton and Mr. Webster are my friends. You are my brother.”180
He asked Tibbles to give his tomahawk and bonnet to Webster and Poppleton, but Tibbles suggested that it would be more meaningful if he did it himself. So Tibbles took Standing Bear into Omaha to pay his respects to the two lawyers and present his gifts. At the Webster house Standing Bear shook hands with the Webster ladies and then stood before John L. Webster himself.
“Hitherto,” he said through an unidentified interpreter, “when we have been wronged, we went to war to assert our rights.” He looked sternly at Webster. “We had no law to punish those who did wrong to us, so we took our tomahawks and went to kill. If they had guns and would kill us first, it was the fate of war. But you have found a better way. You have gone into the court for us, and I find that our wrongs can be righted there. Now I have no more use for the tomahawk. I want to lay it down forever.” The chief then stooped and placed the tomahawk on the ground at his feet, before straightening and folding his arms. “I lay it down, I have no more use for it,” he said. “I can now seek the ways of peace.”181
In accepting the chief ’s tomahawk, Webster declared, “I shall continue to fight your battles as long as it is necessary to give you the protection of the laws.”182
Tibbles and Standing Bear moved on to Andrew Poppleton’s house. “For many years we have been chased about as a dog chases a wild beast,” Standing Bear told Poppleton. “God sent you to help me. I thank you for what you have done.”183 He held out his gift. A traditional Plains Indian feather headdress, it reached almost to the ground when worn, which was only on the most sacred ceremonial occasions. Standing Bear said that this was his clan’s most ancient relic, and Tibbles estimated it to be at least three hundred years old. Standing Bear, referring to the bonnet as a “holy thing,” had told Tibbles he’d previously refused large sums for it. It was all he had to give, he said, as he handed the headdress over with tears in his eyes.184
Both Poppleton and Webster would treasure their gifts from Standing Bear, the most valuable possessions of a man who had lost virtually everything except his freedom. Had it not been for the attorneys, Standing Bear would not have had his day in court, and Henry Tibbles deserved every word of praise he received. Yet, in reality, the man who deserved the most thanks from Standing Bear was Judge Elmer Dundy. In their submissions to the district court, Webster and Poppleton had missed the one point of law which resulted in Standing Bear’s release. Webster had brushed over it in his address, but it had taken Dundy to explore the statute fully and realize the army should have been ordered to hand the Poncas over to the civil authorities. A less thorough judge, or a judge less inclined to the Indians’ cause, may not have gone to such lengths.
More than that, Judge Dundy was concerned about what would happen to Standing Bear following his release. Webster and Poppleton had used the claim of expatriation in their initial petition merely to ensure the Poncas qualified for protection under the Fourteenth Amendment. They had not explored the issue of expatriation in their addresses, but Dundy had when considering his judgment. In conferring the right of expatriation on Standing Bear and his companions, the judge guaranteed them the right to live wherever they chose. But it was illegal to give gifts to judges, so an embarrassing incident was probably avoided when Standing Bear failed to realize his debt to the judge in his case.
Meanwhile, though the government may have failed in a bid to trick Standing Bear and arrest him a second time, it was not going to stop there in its efforts to counter the district court judgment. A smarting Genio Lambertson appealed to the Supreme Court, as he had been instructed. The Daily Herald had heard from unidentified contacts in the government that two judges, Miller and Dillon, had been instructed to set aside an early date to hear the government’s appeal.185 It was duly brought before Associate Justice Samuel F. Miller of the Supreme Court on June 5.
But, to Lambertson’s embarrassment, the judge refused to hear the government’s grounds for appeal because “the Indians who had petitioned for the writ of habeas corpus were not present, having been released by the order of Judge Dundy,” and District Attorney Lambertson had not taken steps to require “security for their appearance” at a subsequent appeal.186 Genio Lambertson had screwed up.
The district attorney applied for a continuance and went away to prepare his case all over again—a setback and delay the Interior Department hadn’t reckoned on. With their fresh appeal unlikely to be heard for another six months or more, Secretary Schurz and Commissioner Hayt would have to devise a new strategy to counter the Standing Bear decision and prevent the feared “revolution” in U.S. Indian policy.