NEITHER ALIEN NOR
Nebraska's role in
the murky waters of Indian Rights.
The U.S. Constitution did not include
Indians in "we."
Were American Indians aliens in their own land? Were they wards
of the United States, adopted orphans? Were they people to be
eventually afforded the rights and responsibilities of citizenship?
Who would decide? Events in Nebraska's history played a substantial
role in defining the rights of Indian peoples.
Is an Indian
a person under the law?
Standing Bear: "I am a Man"
In 1879 the Ponca leader, Standing
Bear, stood before U.S .District Court Judge Elmer Dundy.
Fundamental legal questions were at issue. Was Standing Bear
a person under the law entitled to due process? Or could the
government arrest and detain him as an Indian, without charging
him with a crime?
14, Section 2
persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
of the Ponca Land
The Treaty of 1868 at Fort Laramie
created a vast tract of protected land for the Lakota Sioux.
Either by accident or intent, that land included the land occupied
by the Ponca and explicitly guaranteed to them by the Treaty
of 1865.The U.S. Government's solution to the problem was to
relocate the Ponca to Indian Territory in what is now Oklahoma.
Signing the Treaty of 1868 at Fort
Photograph by Alexander Gardner.
of the United States, by way of rewarding them for their constant
fidelity to the Government and citizens thereof, and with a view of returning
to the said tribe of Ponca Indians their old burying-grounds
and corn-fields, hereby cede and relinquish to the tribe of
Ponca Indians the following-described fractional townships,
to wit: township (31) thirty-one north. . . lying south of Ponca
Creek; and also all the islands in the Niobrara or Running Water
River, lying in front of lands or townships above ceded by the
United States to the Ponca tribe of Indians. . . .
Quote from the Treaty of 1865
Many of these Ponca
chiefs, pictured here in the April 17, 1858, edition of Leslie's
Illustrated, were involved in the 1865 treaty. Back row,
l-r: William Smith, Francis Roy, Gen. J.B. Robertson and U.S.
interpreter. Front row, l-r: Tah-Tungah-Mushi, Nah-Shka-Moni,
Wai-Gah-Sah-Fi, Gish-Tah-Wah-Gu and Ashman-Nikah-Gah-Hi.
In April and May of 1877 the Ponca were
forcibly removed to Indian Territory (now Oklahoma). They had
been successful farmers along the Niobrara River, but they arrived
too late to plant crops that would thrive in the arid lands of
the territory. The Ponca soon fell victim to warm weather diseases,
particularly malaria. By the spring of 1878 nearly a third of
the Ponca had died from starvation and disease.
Standing Bear's son, Bear Shield, was among
the victims. His dying request was to be taken home to be buried
on the banks of the Niobrara. Standing Bear and a group of the
Ponca headed north into the dead of winter with Bear Shield's
They reached the reservation of their Indian
cousins, the Omaha, and there stopped to rest. They were but
a few miles from their destination. But government orders came
from Washington to take the Ponca into custody and return them
to Oklahoma immediately. General George Crook placed the exhausted
Ponca under arrest and took them to Fort Omaha.
map is digitally created from a much larger original map
found at the Library of Congress. The original, published in
1888, intended to show all Indian lands in America. It shows
the Great Sioux Reservation created by the Treaty of 1868 and
the traditional Ponca lands. Note the long distances traveled
by Standing Bear and his people, mostly on foot, from their homelands
to Indian Territory and back.
General George Crook . Though a model soldier, George Crook
was appalled by the government's plan to return the Ponca to
Indian Territory. He secretly brought the story of the Ponca
to journalist Thomas Tibbles, who shared it with the world.
OF A FREE PRESS
Thomas Tibbles attacked the government's
plans in the pages of the Omaha Daily Herald. Soon the
story of the Ponca's plight had the attention of the entire nation.
Tibbles' stories prompted two prominent Omaha attorneys, Andrew
Poppleton and John Webster, to take on the case without charge.
Editorials from the Omaha Daily
OF THE COURT OF LAW
Attorneys Poppleton and Webster came before
Federal District Court Judge Elmer Dundy with a bold argument:
Indians were, by virtue of the 14th Amendment, persons under
the law. As such they were due the protection of the Constitution.
They offered a writ of habeas corpus claiming that the government
had no legal authority to arrest and detain the Ponca.
Judge Dundy arrived at a simple conclusion.
The 14th Amendment protects all persons born or naturalized in
the United States. Standing Bear and the Ponca were persons,
and therefore due the full protection of the law.
The first page of the writ of habeas corpus
filed on behalf of Standing Bear and his people by Andrew J.
Poppleton and John Webster, April 8, 1879.
Courtesy the National Archives and Records Administration, Kansas
is not the color of yours, but if I prick it, the blood will
flow, and I shall feel pain. The blood is of the same color as
yours. God made me, and I am a man. I never committed any crime.
If I had, I would not stand here to make a defense. I would suffer
the punishment and make no complaint."
- Standing Bear