Summer heat and biting flies plagued them for another week, and then at last, on July 9, after a severe drenching in a thunderstorm, they reached the Quapaw reservation, their new home, and found the small group of Poncas who had preceded them living wretchedly in tents.
“I am of the opinion that the removal of the Poncas from the northern climate of Dakota to the southern climate of the Indian Territory,” agent Howard wrote his superiors, “will prove a mistake, and that a great mortality will surely follow among the people when they shall have been here for a time and become poisoned with the malaria of the climate.” 8
Howard’s ominous prediction proved to be all too accurate. Like the Modocs, the Nez Percés, and the Northern Cheyennes, the Poncas died so rapidly that by the end of their first year in Indian Territory almost one-fourth of them had received Christian burials.
In the spring of 1878 Washington officials decided to give them a new reservation on the west bank of the Arkansas, but failed to allot funds for their transfer. The Poncas walked 150 miles to their new land, but for several weeks they had no agent to issue them provisions or medicines. “The land was good,” White Eagle said, “but in the summer we were sick again. We were as grass that is trodden down; we and our stock. Then came the cold weather, and how many died we did not know.” 9
One of those who died was the oldest son of Standing Bear. “At last I had only one son left; then he sickened. When he was dying he asked me to promise him one thing. He begged me to take him, when he was dead, back to our old burying ground by the Swift Running Water, the Niobrara. I promised. When he died, I and those with me put his body into a box and then in a wagon and we started north.” 10
Sixty-six Poncas made up the burial party, all of Standing Bear’s clan, following the old wagon drawn by two gaunt horses. It was the Snow Thaws Moon, January, 1879. (Ironically, far away to the north, Dull Knife’s Cheyennes were making their last desperate fight for freedom at Fort Robinson.) For Standing Bear this was a second winter journey home. He led his people over trails away from settlements and soldiers, and they reached the Omaha reservation before the soldiers could find them.
Big Eyes Schurz meanwhile had made several attempts through his agents to arrange for the return of Standing Bear’s Poncas to Indian Territory. Finally in March he asked the War Department to telegraph Three Stars Crook’s headquarters in Omaha, Nebraska, ordering him to arrest the runaways without delay and return them to Indian Territory. In response, Crook sent a company of soldiers up to the Omaha reservation; they arrested Standing Bear and his Poncas and brought them back to Fort Omaha, where they were placed under guard, awaiting arrangements for shipment to Indian Territory.
For more than a decade Three Stars had been fighting Indians, meeting them in councils, making them promises which he could not keep. Grudgingly at first, he admitted admiration for Indian courage; since the surrenders of 1877 he was beginning to feel both respect and sympathy for his old enemies. The treatment of Cheyennes at Fort Robinson during the last few weeks had outraged him. “A very unnecessary act of power to insist upon this particular portion of the band going back to their former reservation,” he bluntly stated in his official report. 11
When Crook went to see the Poncas in the guardhouse at Fort Omaha, he was appalled by the pitiable conditions of the Indians. He was impressed by Standing Bear’s simple statements of why he had come back north, his stoic acceptance of conditions over which he had lost control. “I thought God intended us to live,” Standing Bear told Crook, “but I was mistaken. God intends to give the country to the white people, and we are to die. It may be well; it may be well.” 12
Crook was so moved by what he saw and heard that he promised Standing Bear he would do all he could to countermand the orders for the return of the Poncas to Indian Territory. At this time Crook took action to support his promise. He went to see an Omaha newspaper editor, Thomas Henry Tibbies, and enlisted the power of the press.
While Crook held up orders for transfer of the Poncas, Tibbies spread their story across the city, the state, and then by telegraph across the nation. The churches of Omaha sent an appeal to Secretary Schurz to order the Poncas released, but Mah-hah Ich-hon—Big Eyes—did not bother to reply. A young Omaha lawyer, John L. Webster, then volunteered his services without a fee, and he was soon supported by the chief attorney of the Union Pacific Railroad, Andrew Poppleton.
The lawyers had to work quickly to build a case for the Poncas; any day, General Crook could receive orders from Washington compelling him to start the Indians southward, and then nothing could be done for them. All efforts were bent toward obtaining the cooperation of Judge Elmer S. Dundy, a rugged frontiersman with four main interests in life—good literature, horses, hunting, and the administration of justice. It so happened that Dundy was away on a bear hunt, and the Ponca supporters spent several anxious hours before messengers could find and bring the judge back to Omaha.
With Crook’s tacit agreement, Judge Dundy issued a writ of habeas corpus upon the general, requiring him to bring the Ponca prisoners into court and show by what authority he held them. Crook obeyed the writ by presenting his military orders from Washington, and the district attorney for the United States appeared before the judge to deny the Poncas’ right to the writ on the ground that Indians were “not persons within the meaning of the law.”
Thus began on April 18, 1879, the now almost forgotten civil-rights case of Standing Bear v. Crook. The Poncas’ lawyers, Webster and Poppleton, argued that an Indian was as much a “person” as any white man and could avail himself of the rights of freedom guaranteed by the Constitution. When the United States attorney stated that Standing Bear and his people were subject to the rules and regulations which the government had made for tribal Indians, Webster and Poppleton replied that Standing Bear and any other Indian had the right to separate themselves from their tribes and live under protection of United States laws like any other citizens.
The climax of the case came when Standing Bear was given permission to speak for his people: “I am now with the soldiers and officers. I want to go back to my old place north. I want to save myself and my tribe. My brothers, it seems to me as if I stood in front of a great prairie fire. I would take up my children and run to save their lives; or if I stood on the bank of an overflowing river, I would take my people and fly to higher ground. Oh, my brothers, the Almighty looks down on me, and knows what I am, and hears my words. May the Almighty send a good spirit to brood over you, my brothers, to move you to help me. If a white man had land, and someone should swindle him, that man would try to get it back, and you would not blame him. Look on me. Take pity on me, and help me to save the lives of the women and children. My brothers, a power, which I cannot resist, crowds me down to the ground. I need help. I have done.” 13
Judge Dundy ruled that an Indian was a “person” within the meaning of the habeas corpus act, that the right of expatriation was a natural, inherent, and inalienable right of the Indian as well as the white race, and that in time of peace no authority, civil or military, existed for transporting Indians from one section of the country to another without the consent of the Indians or to confine them to any particular reservation against their will.
35. Chief Standing Bear of the Poncas. Courtesy of Nebraska State Historical Society
“I have never been called upon to hear or decide a case that appealed so strongly to my sympathy,” he said. “The Poncas are amongst the most peaceable and friendly of all the Indian tribes. … If they could be removed to the Indian Territory by force, and kept there in the same way, I can see no good reason why they might not be taken and kept by force in the penitentiary at Lincoln, or Leavenworth, or Jefferson City, or any other place which the commander of the forces might, in his judgment, see proper to designate. I cannot think that any such arbitrary authority exists in this country.” 14
When Judge Dundy concluded the proceedings by ordering Standing Bear and his Ponca band released from cust
ody, the audience in the courtroom rose to its feet and, according to a newspaper reporter, “such a shout went up as was never heard in a courtroom.” General Crook was the first to reach Standing Bear to congratulate him. 15
At first the United States district attorney considered appealing the decision, but after studying Judge Dundy’s written opinion (a brilliant essay on human rights), he made no appeal to the Supreme Court. The United States government assigned Standing Bear and his band a few hundred acres of unclaimed land near the mouth of the Niobrara, and they were back home again.
As soon as the surviving 530 Poncas in Indian Territory learned of this astonishing turn of events, most of them began preparations to join their relatives in Nebraska. The Indian Bureau, however, was not sympathetic. Through its agents the bureau informed the Ponca chiefs that only the Great Council in Washington could decide if and when the tribe might return. The bureaucrats and politicians (the Indian Ring) recognized Judge Dundy’s decision as a strong threat to the reservation system; it would endanger the small army of entrepreneurs who were making fortunes funneling bad food, shoddy blankets, and poisonous whiskey to the thousands of Indians trapped on reservations. If the Poncas were permitted to leave their new reservation in Indian Territory and walk away as free American citizens, this would set a precedent which might well destroy the entire military-political-reservation complex.
In his annual report, Big Eyes Schurz admitted that the Poncas in Indian Territory “had a serious grievance,” but he strongly opposed permitting them to return to their homeland because it would make other Indians “restless with a desire to follow their example” and thereby cause a breakup of the territorial reservation system. 16
At the same time, William H. Whiteman, who headed the lucrative Ponca agency, tried to discredit Standing Bear’s band by describing them as “certain renegade members of the tribe,” and then he wrote in glowing terms of his considerable expenditures for materials and tools to develop the reservation in Indian Territory. Whiteman made no mention of the discontent prevalent among the Poncas, their constant petitions to return to their homeland, or of his feud with Big Snake.
Big Snake was Standing Bear’s brother, a giant with hands like hams and shoulders as big as a buffalo’s. Like many huge men, Big Snake was quiet and gentle of manner (the Poncas called him the Peacemaker), but when he saw that White Eagle and the other head men were being intimidated by agent Whiteman, he decided to take action on his own. After all, he was the brother of Standing Bear, the Ponca who had won freedom for his people.
Determined to test the new law, Big Snake requested permission to leave the reservation and go north to join his brother. As he expected, permission to leave was refused by agent Whiteman. Big Snake’s next move was not to leave Indian Territory, but to travel only a hundred miles to the Cheyenne reservation. With him went thirty other Poncas, making what they believed to be a gentle testing of the law which said that an Indian was a person and could not be confined to any particular reservation against his will.
Whiteman’s reaction was that of any entrenched bureaucrat whose authority is threatened. On May 21, 1879, he telegraphed the Commissioner of Indian Affairs, reporting the defection of Big Snake and his party to the Cheyenne reservation, and requesting that they be arrested and detained at Fort Reno “until the tribe has recovered from the demoralizing effects of the decision recently made by the United States district court in Nebraska, in the case of Standing Bear.” 17
Big Eyes Schurz agreed to the arrest, but evidently fearing another challenge in the courts, he asked the Great Warrior Sherman to transport Big Snake and his “renegades” back to the Ponca reservation as quickly and quietly as possible.
In his usual blunt manner, Sherman telegraphed General Sheridan on May 22: “The honorable Secretary of the Interior requests that the Poncas arrested and held at Fort Reno, in the Indian Territory … be sent to the agency of the Poncas. You may order this to be done.” And then, as if anticipating Sheridan’s apprehensions about flying in the face of Judge Dundy’s recent decision, Sherman decreed: “The release under writ of habeas corpus of the Poncas in Nebraska does not apply to any other than that specific case.” 18 For the Great Warrior Sherman it was easier to unmake laws than it was for the courts of the land to interpret them.
And so Big Snake lost his first test of his brother’s victory at law, and he never had a chance to try again. After being brought back to the Ponca agency in the Corn Is in Silk Moon, Big Snake was marked for destruction. Agent Whiteman reported to Washington that Big Snake had “a very demoralizing effect upon the other Indians … extremely sullen and morose.” In one paragraph Whiteman charged that Big Snake had repeatedly threatened to kill him, and in another complained that the Ponca had never spoken to him since his return. The agent became so furious that he begged the Commissioner of Indian Affairs “to arrest Big Snake and convey him to Fort Reno and there confine him for the remainder of his natural life.” 19
Finally, on October 25, Whiteman obtained authorization from Sherman to arrest Big Snake and imprison him in the agency guardhouse. To make the arrest, Whiteman requested a detail of soldiers. Five days later, Lieutenant Stanton A. Mason and thirteen soldiers arrived at the agency. Whiteman told Mason that he would send out a notice to the Poncas, ordering those who had money coming to them for special work to report to his office the next day. Big Snake would be among them, and as soon as he entered the office, Mason was to make the arrest.
On October 31 Big Snake entered Whiteman’s office about noon and was told to take a chair. Lieutenant Mason and eight armed men then surrounded him, Mason informing him that he was under arrest. Big Snake wanted to know why he was being arrested. Whiteman spoke up then and said one charge against him was threatening his (Whiteman’s) life. Big Snake calmly denied this. According to the post trader, J. S. Sherburne, Big Snake then stood up and threw off his blanket to show he was not armed.
Hairy Bear’s statement: “The officer told Big Snake to come along, to get up and come. Big Snake would not get up, and told the officer he wanted him to tell him what he had done. He said he had killed no one, stolen no horses, and that he had done nothing wrong. After Big Snake said that, the officer spoke to the agent, and then told Big Snake he had tried to kill two men, and had been pretty mean. Big Snake denied it. The agent then told him he had better go, and would then learn all about it down there. Big Snake said he had done nothing wrong, and that he would die before he would go. I then went up to Big Snake and told him this man [the officer] was not going to arrest him for nothing, and that he had better go along, and that perhaps he would come back all right; I coaxed all I could to get him to go; told him that he had a wife and children, and to remember them and not get killed. Big Snake then got up and told me that he did not want to go, and that if they wanted to kill him they could do it, right there. Big Snake was very cool. Then the officer told him to get up, and told him that if he did not go, there might something happen. He said there was no use in talking; I came to arrest you, and want you to go. The officer went for the handcuffs, which a soldier had, and brought them in. The officer and a soldier then tried to put them on, but Big Snake pushed them both away. Then the officer spoke to the soldiers, and four of them tried to put them on, but Big Snake pushed them all off. One soldier, who had stripes on his arms, also tried to put them on, but Big Snake pushed them all off. They tried several times, all of them, to get hold of Big Snake and hold him. Big Snake was sitting down, when six soldiers got hold of him. He raised up and threw them off. Just then one of the soldiers, who was in front of him, struck Big Snake in the face with his gun, another soldier struck him alongside the head with the barrel of his gun. It knocked him back to the wall. He straightened up again. The blood was running down his face. I saw the gun pointed at him, and was scared, and did not want to see him killed. So I turned away. Then the gun was fired and Big Snake fell down dead on the floor.” 20
The Interior Department first issued a
statement that Standing Bear’s brother “Big Snake, a bad man” had been “shot accidentally.” 21 The American press, however, growing more sensitive to treatment of Indians since the Standing Bear case, demanded an investigation in Congress. This time the military-political-reservation complex was operating in the familiar climate of Washington, and nothing came of the investigation.
The Poncas of Indian Territory had learned a bitter lesson. The white man’s law was an illusion; it did not apply to them. And so, like the Cheyennes, the diminishing Ponca tribe was split in two—Standing Bear’s band free in the north, the others prisoners in the Indian Territory.
SIXTEEN
“The Utes Must Go!”
The Army conquered the Sioux. You can order them around. But we Utes have never disturbed you whites. So you must wait until we come to your ways of doing things.
—OURAY THE ARROW, CHIEF OF THE UTES
I told the officer that this was a very bad business; that it was very bad for the commissioner to give such an order. I said it was very bad; that we ought not to fight, because we were brothers, and the officer said that that didn’t make any difference; that Americans would fight even though they were born of the same mother.
—NICAAGAT (JACK) OF THE WHITE RIVER UTES
THE UTES WERE Rocky Mountain Indians, and for a generation they had watched the invading white men move into their Colorado country like endless swarms of grasshoppers. They had seen the white men drive their old enemies, the Cheyennes, from the Colorado plains. Some Ute warriors had joined the Rope Thrower, Kit Carson, in the white men’s war against the Navahos. In those times the Utes believed the white men were their allies, and they enjoyed visiting Denver to exchange buffalo hides for gaudy trade goods in the stores. But each year these strange men from the East became more numerous, invading the Utes’ mountains to dig for yellow and white metal. In 1863 the governor of Colorado Territory (John Evans) and other officials came to Conejos in the San Juan Mountains to meet with Ouray the Arrow and nine chiefs of the Utes. A treaty was signed there, giving the white men all the Colorado land east of the mountaintops (the Continental Divide), leaving the Utes all the land west of the divide. In exchange for ten thousand dollars’ worth of goods and ten thousand dollars’ worth of provisions to be distributed annually for ten years, the Utes agreed to relinquish mineral rights to all parts of their territory, and they promised not to molest any citizen of the United States who might come into their mountains to dig.