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  • Writer's pictureBruce Boyce

"I am a man."

"But a man bars the passage … If he says that I cannot pass, I cannot. The long struggle will have been in vain.

My wife and child and I must return and sink beneath the flood. We are weak and faint and sick. I cannot fight...

You are that man."

Chief Standing Bear, 1879

The Ponca are among several Siouan-speaking tribes who inhabit North America's Upper and Central Plains. According to their oral traditions, which they share with the Omaha, Osage, and Kansas tribes, the Ponca originated along the Ohio River valley. In the 16th century, these tribes were pushed out of this territory by the encroaching Iroquois from the north. The tribes migrated westward and up along the Missouri and Mississippi Rivers. A map by fur trader Pierre-Charles Le Sueur placed the Ponca near the vicinity of present-day Sioux Falls, South Dakota, and other areas along the upper Missouri. The Ponca were not a large tribe and generally more sedentary and peaceful. They needed to move settlements often due to conflicts with their more hostile Lakota cousins. The Lakota continually sought to seize Ponca lands for themselves. In 1789, fur trader Juan Baptiste Munier established a trading post at the mouth of the Niobrara River in northeast Nebraska. At the time, this had become the Ponca homeland, but by his estimates, the tribe numbered roughly 800 people. Shortly after, the tribe was hit with a devastating smallpox epidemic that reduced their number. When Lewis and Clark encountered them, the Ponca numbered only 200.

Along the banks of the Niobrara River, the Ponca cultivated corn, squash, beans, and fruit trees, unlike many of the other tribes of the Plains. Twice a year, they conducted buffalo hunts trying to avoid the Lakota in the north. The tribe attempted to maintain good relations with the United States and avoided getting involved with intertribal clashes among their more hostile neighbors of the Northern Plains.

1825 Treaty with the Ponca

They signed treaties with the United States in 1817 and 1825. The passage of the Kansas-Nebraska Act in 1854 changed the relationship between the Ponca and the US. The act opened the territory up to a flood of white settlers. The tribe was forced to accept a treaty in which they ceded nearly two million acres of their traditional homelands. In 1858, another treaty was signed reducing the Ponca lands to a mere 100,000 acres in exchange for protection from the Lakota. But the Lakota raids continued, and by the early 1860s, settlers had built towns on the Ponca’s summer farmlands. In 1865, another treaty was negotiated to guarantee the Ponca their traditional farming and burial grounds. Unfortunately, three years later, the United States concluded a treaty with Red Cloud, the chief of the Oglala Lakota. The treaty with Red Cloud gave the Lakota rights to the Ponca lands. This resulted in increased tensions between the Lakota and Ponca.

In 1876, Congress decided to relocate several Northern Plains tribes to the Indian Territory of present-day Oklahoma. Due to the conflict with the Lakota, the Ponca were added to the list to be removed. The tribal leadership visited the proposed reservation. They found the arid conditions lacking in resources and unsuitable for sustained agriculture. When US Indian officials came to relocate them, the Ponca chiefs steadfastly refused. They pointed out the earlier treaties with the government and their promises. In 1877, the US military forcibly removed the tribe from their land and forced them to walk hundreds of miles southward across Nebraska and Kansas. Their homes, farms, and equipment were demolished, and they could only take what they could carry. Many of the nearly 700 who made the march were women and children. Nine people died along the way, but they reached Indian Territory too late in the season for planting crops. Starvation and malaria would subsequently take another third of the population. It was the Ponca’s personal “Trail of Tears.”

Among the people who died on the march was the daughter of Chief Standing Bear. Standing Bear was born in 1829 and had grown up witnessing many of the tribulations of his tribe. He was the strongest voice against removal. Soon after they arrived in Indian Territory, his son fell sick. As his condition worsened, his son requested that his father bury him in the traditional burying grounds along the Niobrara River. Standing Bear promised that this would be done. When his son died, Standing Bear placed him in a box and loaded him onto a wagon. Along with a few dozen of his fellow Ponca, the chief trekked back across the Plains. They left amid winter and without adequate supplies. The winter was a particularly harsh one, and they were sick and starving when they reached the lands of their Omaha cousins. The Omahas welcomed them and offered them food and protection for the winter. But shortly after, General George Crook arrived with a contingent of soldiers to arrest the Ponca for leaving the reservation.

General George Crook

Crook was an experienced Army officer who had seen combat through the significant campaigns of the Civil War. He also saw action in many conflicts with Native Americans in Oregon, Arizona, and the Dakotas. General Sherman called him “the greatest Indian fighter and manager of the army the United States ever had.” Yet, unlike his fellow officers, Crook sympathized with Native Americans and their treatment by the US government. Crook was appalled by the condition of the Ponca at the Omaha camp. His orders had been to return the Ponca to Indian Territory, but he felt the Ponca had been mistreated. Instead, he escorted Standing Bear and the others to Crook’s headquarters at Fort Omaha. At the end of March 1879, Crook met with the editor of the Omaha Herald, Thomas Henry Tibbles.

Tibbles was no stranger to fighting for moral causes. He had been an active abolitionist before the Civil War. He was a member of abolitionist militias, including one commanded by John Brown, and Tibbles saw action in the battles of “Bleeding Kansas.” He barely escaped being hanged by pro-slavery forces and fled to Nebraska Territory to live with the Omaha. After the war, he spent some time in the US Army as a scout in Kansas and Missouri. He also worked as a newspaper correspondent and as a circuit preacher. He was the perfect person Crook could enlist to assist the Poncas.

Tibbles visited Standing Bear and the other Ponca being held at Fort Omaha. He wrote about their situation in an op-ed for the Omaha Herald. He also contacted two lawyers, John Lee Webster and Andrew Jackson Poppleton. Both men agreed to represent Standing Bear in court. Their first action was to file a writ of habeas corpus. The writ of habeas corpus allows a prisoner to be brought before a court to determine if he is being detained unlawfully. Therefore, the custodian of the prisoner had to provide sufficient proof of authority. The concept of habeas corpus, originating in 12th-century England, was one of the cornerstones of an individual’s rights. The attorneys for Standing Bear filed their writ on April 8 in the Nebraska District Court headed by Judge Elmer Dundy. Washington officials were unhappy, and the Indian Affairs Commissioner declared that “no attorney has the right or can appear for an Indian until authorized to do so by the Indian Department.” General Crook, as the custodial authority, was named the defendant. The trial was set for April 30, 1879.

Judge Dundy was delayed a day, and the trial didn’t begin until May 1. The courtroom was packed due primarily to Tibble’s publicity. A key question before the court was whether or not Standing Bear had any right to present a writ of habeas corpus. In other words, was he a citizen of the United States with the protections guaranteed by the law. Webster and Poppleton argued that he was a citizen. They based their argument on the 14th amendment, which applied to all Indians “who did not owe allegiance to any other form of government.” The lawyers argued that Standing Bear and the other Poncas had severed tribal ties and therefore were citizens. On the other side, the US attorney defended the government’s position. In doing so, he fell back upon the Dred Scott decision. Native Americans were not citizens and, therefore, could not sue in court.

After the attorneys on each side presented their cases, Dundy broke with precedent. Quietly declaring the court adjourned, he told Standing Bear that he could address the courtroom. Dressed in full Ponca regalia, he stood and spoke to the judge through his interpreter, Bright Eyes, the daughter of the Omaha chief who had sheltered them. Standing Bear raised his hand and told the judge: “That hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be of the same color as yours. I am a man. The same God made us both.”

As Tibbles would recount, Judge Dundy listened with tears as Standing Bear, using metaphorical language, described his plight and his desire to return his son to his homeland. Upon the completion of his speech, the courtroom exploded with applause.

Left: Thomas Henry Tibbles Right: Bright Eyes

Judge Dundy delivered his decision on May 12, 1879. He noted that the laws regarding habeas corpus spoke of “persons” or “parties.” Therefore, a Native American should be considered a person and have the same rights and protections under the law as any other person. The judge acknowledged General Crook’s authority to arrest the Poncas but ruled that the government failed to show a valid reason for the arrest. The government had violated a fundamental human right—the one of expatriation. The Native Americans had the right to leave their reservations just like immigrants left Europe to come to the United States. Dundy declared, “The right of expatriation is a natural, inherent, inalienable right and extends to the Indian as well as to the more fortunate white race.” The court ordered that Standing Bear and the others be released.

Dundy’s decision in United States ex rel. Standing Bear v. Crook was a landmark in the advancement of Native American civil rights. For the first time, Native Americans were afforded the same rights and privileges as any other person living in the United States. The decision itself was met with a variety of reactions. Many were dismayed, fearing roving bands of Native Americans. Native Americans were viewed as lazy and a burden to society. Others interpreted the decision to apply only to Standing Bear and his fellow Ponca. And some delighted with the decision and saw it as a positive step in correcting the failures of US policy toward Native tribes.

Standing Bear was able to bury his son along the Niobrara River, but he had no possessions, no money, and no land. For this reason, he agreed to join Tibbles and Bright Eyes on the speaking circuit. They hoped to increase awareness of the Native American plight much the same as the abolitionists did for slavery before the Civil War. But despite his immediate notoriety, Standing Bear died impoverished and forgotten in 1906. Tibbles and Bright Eyes married and continued to fight for and defend Native American rights. In 2019, the state of Nebraska dedicated a statue of Standing Bear to be placed in the US Capital statuary hall.

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