That hand is not the color of yours.

The Standing Bear case has been long overlooked, and so too, his brother's life

Photo credit the U.S. Postal Service

The most famous case you never hear about is Standing Bear v. Crook,¹ the case that decided that Native Americans were persons under the U.S. Constitution. But it did not happen until 1879 in the U.S. Circuit Court in the District of Nebraska.² Now, in 2023, the U.S. Postal Service will recognize Standing Bear with a new, forever stamp, in May.³

You will not find this case taught in the typical Federal Indian Law course, largely due to the colonized content and structure of how federal Indian law is taught. But why? It should be at least as well known as the Dred Scott case that held that freed slaves were not citizens under the Constitution for purposes of bringing an action in federal court.⁴

The Writ of habeas corpus

In the case Standing Bear v. Crook (1879), a Nebraska federal court held that Indians are persons for the purpose of bringing a writ of habeas corpus⁵ to hear whether they were being wrongfully held. So before a court could hear whether it was lawful to arrest Standing Bear and prevent him from traveling to bury his son, a court had to first determine whether he and his fellow Poncas with him were “persons” under the Constitution and could therefore bring a writ of habeas corpus.

A threat to the reservation system

The gravity of such a decision was evident and the trial was watched very closely, because to find that an Indian was a “person” under the law, able to challenge their confinement, could challenge the entire reservation system.

Standing Bear was Chief of the Ponca Tribe. The Poncas were removed from their traditional lands in Nebraska, driven down another trail of tears of which there were many in our sad and shameful American past, to Oklahoma in 1877. More than 100 members of the Ponca Tribe died on this forced march including Chief Standing Bear’s son.

Culturally, it is important to be buried in their traditional lands and for their bodies to return to the earth and become part of it. Standing Bear’s son asked to be buried in their homelands from which they had just been forcibly removed. Chief Standing Bear set out to return to their home with his son’s remains when he was arrested by General Crook’s officers for leaving the confinement of their reservation, on order of the Secretary of Interior, Carl Schurz, who had been alerted to the absence of Standing Bear. Gen. Crook who is said to have had a personal dislike for the governments policies toward the Ponca, alerted a local newspaper reporter about the case.

The facts

The facts of the case are the following:  Standing Bear and other Poncas, left their reservation and their tribal governments to become independent of their tribe. They moved to the Omaha reservation, and were arrested by the Army General Crook, acting upon orders of the Secretary of Interior, and detained until they could be removed back to their tribe and reservation. The District Attorney who was seeking their removal, argued that the court had no jurisdiction to hear their argument to challenge their confinement, because they were not American citizens, and only American citizens were entitled to file writs of habeas corpus. The court found otherwise, holding that any person is entitled to a writ of habeas corpus. The District Attorney further challenged that argument, citing the famous Dred Scott decision, which held that a slave could not challenge his confinement, even in a free state, because he was not a “citizen” under the law.

The Omaha Daily Herald editor, T. Tibbles, having been alerted to the case by Gen. Crook, was outraged by the cruelty of confinement of Standing Bear and his group, so he used his position as editor to gain attention to their plight. He also sought the representation of John Lee Webster, a prominent attorney and A.J. Poppleton as co-counsel.

The legal issues were presented at length, but particularly facts about whether the Indians were leading “civilized” lives, rather than what was considered the primitive lifestyle of Indians, dominating the colonized views of the case.  With what were inordinately long arguments, Standing Bear’s attorney, John Lee Webster, opened with a six-hour argument; the United States District Attorney, Lambertson gave a five hour argument; and Poppleton finished with a four hour argument. 

Then the court allowed Standing Bear to speak, although it was not part of the trial transcript. His remarks were interpreted for the court and saved to history only because a newspaper reporter wrote them down.  It was recorded that Standing Bear rose, extended his hand toward the Judge’s Bench, and for a long period of time, stood in that position, then spoke:

“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 the same color as yours. I am a man. God made us both. . . [ after explaining that he wanted to return to the traditional Ponca homelands, he said:] “a man bars the passage . . . I . . .must obey his orders.  If he says that I cannot pass, I cannot.  The long struggle will have been in vain.” [After another long pause, he continues:] “You are that man.”⁶ 

Tibbles in the style of a reporter of the time, described the reaction in the court:  “the arresting Army General Crook leaned forward and covered his eyes with his hands, women sobbed and tears appeared on the judge’s face, then the entire courtroom shouted approval of the speech.”⁷

This was a victory for Chief Ponca and for all Native Americans but it would still bring tragedy in the lack of recognition of the weight and meaning of this opinion and a corrupt military and Indian Affairs office. The good news was that Chief Standing Bear was able to return to his homelands and bury his son.

Big Snake is Deceived by our Legal System

Unfortunately, perhaps given the new hope from this court’s opinion on May 12, 1879; on May 13, 1879,  Standing Bear’s brother, Big Snake and 65 other Poncas left the Ponca reservation to visit the Cheyennes, although they had been denied permission from their federal Indian agent, William Whiteman. Big Snake was arrested, and General Sherman (not sympathetic as was Gen. Crook) authorized the arrest, writing, “The release under writ of habeas corpus of the Poncas in Nebraska does not apply to any other than that specific case.”  After several months of confinement, Big Snake was released and returned to the Ponca reservation, only to be arrested two months later, because Whiteman feared that Big Snake might assault him.  On this basis Whiteman ordered Big Snake arrested and to be confined for the remainder of his life to Fort Reno, hundreds of miles away.  When Big Snake resisted the arrest, a corporal shot him in the head using a rifle.⁸

“The officer then, seeing that ·Big Snake did not intend to go along, save be was forced to do so, orderetl the corporal (Dobbins) to bring in six men to assist him; they took holcl of Big Snake and told him to go with them; he hung· back and wonli not stir. The officer then ordered his men to handcuff him. At this time Big Snake began to make use of all the wonderful strength with which he was possessed. He threw the soldiers from him like chaff. A soldier struck him over the head with the uutt of his gnu a blow that would have brought an ox to the ground, but still Big Snake kept his feet and would not be taken. The soldiers say that at this time Big Snake drew a knife, and the corporal, seeing the knife and believing that he would kill the lieutenant, who was struggling with him, shot him dead. I did not see Big Snake have any weapon, but as several of the soldiers were between him and myself, he may have had it and I not see it. Mr. Frisbie, the agency carpenter, says he noticed Big Snake reaching into bis blanket or shirt as if searching for something, but did not see him draw any weapon.”⁹

A statement from one of the military witnesses suggests that the killer did nothing more than teach them “ a very good lesson”:

“They were all of the opinion that Big Snake was a very bad Indian; that he should have gone peaceably with me; lmt that they diclnot like- to have him shot down like a beef. At the same time they had neither arms, ammunition, nor men to avenge his death, if they wished. I have ascertained that this Indian had fixed a time to kill the agent, and that he was trying to get the Nez Perce's to go north as soon as they had received their annuity goods. This Indian was the main disturbing element in the tribe, and I believe his death has taught them a very good lesson.”¹⁰

There was no evidence that Big Snake was armed, and in fact to the contrary a Trader who wrote a statement said Big Snake held his arms up to show he was not armed. ¹¹Satterwhite, the agent’s clerk testified that after Corporal Dobbin shot Big Snake, Lt. Mason said, “My God, corporal, I did not intend for you to shoot.”¹²

The record does not show any hearing and certainly no punishment for Corporal Dobbins, who committed the murder. There was no reprimand or punishment for Agent Whitehead who ordered the arbitrary life imprisonment hundreds of miles away for Big Snake, which was the trigger for his resistance.

Big Snake with his brother, Standing Bear about four years before Big Snake’s murder.

The Legacy of the Standing Bear Case

This is an important opinion.

Native Americans did not become citizens for almost fifty more years but from this moment Native Americans could no longer be denied personhood under the Constitution. So as we commemorate Standing Bear, let us not forget Big Snake, his brother, who was senselessly killed and his murderer was never brought to justice by a government that failed him in its promise of fairness and integrity and respect for the rule of law. The rule of law should not depend on the right arresting officer, the right prosecutor, the right judge or the right news media to protect our rights.

This new stamp has much meaning.

(This article includes excerpts from Sutton, Decolonizing the Foundation cases in American Indian Law: Revisiting the Foundation Trilogy (2021) available on Amazon.com at https://a.co/d/8ypGkUD )

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1. https://casetext.com/case/us-ex-rel-standing-bear-v-crook

2. UNITED STATES ex rel. STANDING BEAR v. CROOK, 25 F. Cas. 695 (D. Neb. 1879).

3. https://about.usps.com/newsroom/national-releases/2023/0406ma-usps-honors-chief-standing-bear.htm

4. https://supreme.justia.com/cases/federal/us/60/393/

5. https://en.m.wikipedia.org/wiki/Habeas_corpus

6. James A. Lake, Sr., Standing Bear! Who?, 60 Neb. L. Rev. 451, 476 (1981).

7. James A. Lake, Sr., Standing Bear! Who?, 60 Neb. L. Rev. 451, 476 (1981).

8. James A. Lake, Sr., Standing Bear!  Who?, 60 Neb. L. Rev. 451, 492 ,fn 102 (1981).

9. Letter from Whiteman, the agent who ordered incarceration of Big Snake for no reason except he was afraid of him, Oct 31, 1879. S. Exec. Doc. No. 14, 46th Cong., 3rd Sess. (1881), at https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=4087&context=indianserialset

10. Letter from Whiteman, Nov 3, 1879 at S. Exec. Doc. No. 14, 46th Cong., 3rd Sess. (1881) .

11. Statement from Trader, S. Exec. Doc. No. 14, 46th Cong., 3rd Sess. (1881)

12. Statement from Satterwhite, S. Exec. Doc. No. 14, 46th Cong., 3rd Sess. (1881)