Deconstructing the mythology of the Standing Bear case

Elmer Scipio Dundy is pictured.  He served from 1868-1896.  The photo is taken from the archives of the United States District Court for the District of Nebraska.

Judge Elmer Scipio Dundy is pictured. He served from 1868-1896. The photo is taken from the archives of the United States District Court for the District of Nebraska.

It t is fashionable among do-gooders to make myths about overcoming racism and federal judges who rule for the downtrodden and against “the man.”  Please don’t get me wrong.  Racism is real, it exists still and it is awful.  And, it is also true that there are courageous judges.  But, myths are unhelpful to an honest understanding of the federal trial courts.  And that brings to me to the subject of this post.

In United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 700-01 (C.C.D. Neb. 1879) (No. 14,891) the court issued a writ of habeas corpus in favor of an Indian and his companions.  The Standing Bear case has taken on a mythic status.  See, for example, Mary Kathryn Nagle, Standing Bear v. Crook: The Case For Equality Under Waax’s Law, 45 Creighton Law Review, 455, 456 (2012) (“To be sure, Judge Dundy’s decision in Standing Bear v. Crook is, doctrinally, the equivalent of Brown v. Board of Education.”)

Despite the fact that many, perhaps most, of the contemporary accounts of the trial came from those who were rabid partisans bent upon publicizing the Indian cause (like the editor of the local newspaper, Thomas Henry Tibbles*), those embellishments continue to be used without skepticism to reinforce the mythology that now fuels the legend of Standing Bear.  In truth, when Judge Elmer S. Dundy, one of my predecessors, decided Standing Bear, his decision was a narrow one.  The decision was not one of mythic proportion, but rather one of studied judicial minimalism.

Having provided this introduction, let’s start with a brief recitation of the facts.

The story is fairly well-known.  The Ponca tribe in Nebraska entered into a pact with the government exchanging their claim to land in Nebraska for reservation land in Oklahoma.  Some later claimed that the Indians thought they were promised land in Nebraska, but there is also countervailing evidence that the Ponca knew full well that the consequence of their agreement meant a move to Oklahoma.**

Once situated in Oklahoma, the Ponca found life hard.  Many in their tribe, including the son of Chief Standing Bear, died, probably from lack of food.  In turn, these hardships caused Standing Bear and a small band of Ponca to leave the Oklahoma reservation and head back to Nebraska.  They were intercepted on the Omaha Indian reservation in Nebraska.  The Indians were detained by Brigadier General George Crook and his men on orders from Washington.  Crook was instructed to return the Ponca to Oklahoma.

Crook was sympathetic to the plight of Standing Bear and his Poncas.  He sought out help for the Indians.  Thomas Henry Tibbles, an editor of the Omaha Daily Herald, took up the Poncas’ cause. Tibbles obtained the services of two skilled Nebraska lawyers, John L. Webster and Andrew J. Poppleton.  Poppleton was the chief attorney for the Union Pacific Railroad.  He was, as they say now, a “heavy hitter.”  Those highly regarded lawyers sought a writ of habeas corpus in the federal district court in Omaha.

There were two primary questions presented.  First, could the Indians use the habeas corpus statute as a jurisdictional hook to garner review of their detention?  Second, as opposed to threatening to take them back to Oklahoma, had General Crook violated federal law by failing to “immediately” present the Ponca to a court in the jurisdiction of the Omaha Indian Reservation where the Ponca had been found?***

As to the first question, Judge Dundy observed that the habeas corpus statute used the word “persons” and not “citizens.”****  Standing Bear, 25 F. Cas. at 697. Because it was obvious that Indians were “persons,”  the judge easily concluded that Indians could use the statute to challenge their confinement.

As to the second question,  the judge recognized that there was a specific federal law that required “every person” found unlawfully on an Indian reservation (such as the Omaha reservation) to be taken “immediately” to the “nearest . . . judicial district to be proceeded against in due course of law.”  Id. at 700.  Since the Ponca were “persons” found unlawfully on the Omaha Indian reservation (their presence was unlawful since they did not belong to the Omaha tribe), Crook had the right to arrest them.  Crook erred, however, by not “immediately” presenting them for potential prosecution in the Nebraska federal court.  As a consequence, Standing Bear was entitled to relief from the unlawful detention.

It is gross hyperbole to suggest that Standing Bear is to Indians as Brown v. Board of Education is to blacks.  In truth, Standing Bear was a cautious decision that made a little new law, but certainly nothing earth shattering.  For example, the Standing Bear decision was in fact supported by precedent. See, e.g., Ex Parte Dos Santos, 7 F. Cas. 949 (C.C.D. Va. 1835) (No. 4,016) (ordering the release of an alleged murderer from Portugal even though he was not a citizen of the United States because he could not lawfully be detained in this country).

As the Supreme Court later observed, by the time Standing Bear was decided, it had been the law for more than four decades in America that “any person, whether a citizen or not, unlawfully restrained of his liberty, [was] entitled to that [habeas corpus] writ.” Elk v. Wilkins, 112 U.S. 94, 108 (1884) (discussing Standing Bear and citing, among other cases, Ex Parte Dos Santos).*****

To sum up then, Standing Bear was a minor but not insignificant case.  For the first time, it allowed Indians access to the federal courts.  However, the mythology surrounding the decision is unfounded and should be stripped away.  Judge Dundy did what cautious yet concerned federal district judges have done for a long time.  He read the law for its plain meaning and then he issued a narrow decision accordingly.  That is plenty good enough.


*Tibbles in particular is viewed as a “questionable source[]” by trained legal historians.  See, e.g., Patrick G. Blythe, Book Review, Stephen Dando-Colins, Standing Bear is a Person: The True Story of A Native American’s Quest for Justice, 49 Am. J. Legal Hist. 462 (2007).  Parenthetically, Tibbles is the person who described Standing Bear’s “I am a man” speech and it is that description that is frequently quoted.  Intending no disrespect to the memory of Standing Bear, one wonders whether to trust Tibbles’ account.

**Although no site was actually selected, there is historical evidence that in 1878 eight Ponca chiefs, including Standing Bear, visited the Osage reservation in Oklahoma to select a site in anticipation of their move.

***There was also a third question about whether Indians could sever their ties to tribes (“expatriation) and thus avoid control of the government as “Indians.”  Judge Dundy, while believing they had that right, did not specifically determine whether Standing Bear and his group were in fact “expatriated.”  Id. at 699.  (It is important not to confuse “expatriation” with “citizenship” as both Judge Dundy and the Supreme Court would make clear just a few years after Standing Bear.)

****As a class, Indians did not become citizens until passage of the Indian Citizenship Act of 1924.

*****A few short years after Standing Bear was decided, Judge Dundy himself made it clear that the reach of Standing Bear was very limited.  In Elk v. Wilkins, Judge Dundy, sitting with another judge as Circuit judges, denied an Indian’s claim that he was a “citizen” because he had left his tribe.  The Supreme Court affirmed.  The Court held that an Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe and taken up his residence among the white citizens of a state, but who has not been naturalized or taxed or recognized as a citizen, either by the United States or by the state, is not a citizen of the United States, within the meaning of the 14th Amendment, which declares that “all 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.”

My first bank robbery trial

Photo credit:  By roberthuffstutter ROBERT HUFFSTUTTER per Creative Commons License.   Willie Sutton is pictured.  Sutton is known for saying he robbed banks "because that's where the money is."

Photo credit: By ROBERT HUFFSTUTTER per Creative Commons License. Willie Sutton is pictured. Sutton is known for saying that he robbed banks “because that’s where the money is.”

Shortly after my nomination was sanctified by the Senate, and I took the oath, I drew my first bank robbery trial.  At that time, I was stationed in Omaha

Back then, the federal district court in Omaha used the 8th and 9th floors of a building that also housed the Army Corps of Engineers.  Built during the late 1950s or early ’60s, the eyesore rose nine stories above the street.  It was adjacent to a highway under which bums slept away the hours.  The exterior facade of the building was largely clad in greenish-blue panels.  As I look back, I think the building was intended to presage global warming or some other apocalypse.  It certainly was frightfully ugly.

Anyway, I had been assigned to the Court of Appeals courtroom on the 9th floor.  All the real trial courtrooms had been taken.  The curved bench, meant to handle en banc appeals, was gigantic.  The room had a jury box that could seat 16 people.  The well of the courtroom could have handled a legion of lawyers.  It was a big place.

The defendant was an old and broken-down drunk.  He had been found residing in a dumpster behind the bank.  The homeless man had orange dye on his hands from the exploding money packs that tellers were trained to give bank robbers.  But, no one could find the money.  To make matters more complicated, the camera in the bank was on the fritz so there was no recording of the robbery.  Worse, the teller could not identify the robber. The defendant told a story of finding an empty bank bag covered in wet dye.  He said he kept the bag because it might become useful when he was out scavenging.  He said the dye didn’t bother him because it was sorta pretty.  He steadfastly denied robbing the bank.

Nearing the end of the trial, I sensed something going on to my right.   Because the curved bench was so large (being meant to hold multiple judges), I did not have a good view of the entire jury box positioned to my right.  Reacting to the commotion, I stiffly turned my head to see what was going on.  In the back row, an older lady was slumped over in her chair.  It looked for all the world that the woman was dead or nearly so.  The middle-aged male juror sitting next to the older lady was gesturing wildly trying to get my attention.

It was at that point that all hell broke loose.  I don’t remember the exact sequence of things, but the following is pretty close:

*  The male juror stood up.

*  Russ M., the prosecutor with a Bronx accent, began to rise.

*  I exclaimed, “Marshals.”   They looked back blankly just as stunned as I was.  Then, they hurried toward the jury box.

*  The male juror lifted the older juror and began to carry her out of the jury box.

*  Russ M., also trained as a paramedic, rushed into the jury box.  I sprinted from the bench, grabbed him around the waist and told him to sit down.

*  The male juror, looking now like a real hero, began to descend the two steps at the end of the jury box.  The older juror was in his arms.

*  Suddenly, he disappeared from sight.  The older woman vanished as well.

*  With a loud groan, the man fell fracturing his leg.  The older juror lay conked out on the courtroom floor.

*   The Omaha fire department arrived in two ladder trucks with about 30 firefighters.  Why they brought the two big ladder trucks was never explained.

*   Ambulances took the two jurors to the Creighton University Hospital which was only a few blocks away.

*  The chaos began to subside.  I searched for the defendant and found him seated at counsel table.  Although he had been left unattended, the defendant had not moved a muscle.  But, he did have a wry grin on his face.  While he didn’t speak, he seemed to me to be saying, “See, I told you.  Shit happens!”  Agreeing with him on that point, I declared a mistrial.

Both jurors survived.  The older lady had forgotten to take her blood pressure medication and that problem was quickly remedied.  She was released that same day.  The male juror wasn’t so lucky.  With a badly broken leg, he spent several days at the hospital.  I am told that he had a complete recovery, although the poor man had to threaten to file a federal tort claim in order to get the government to pay for his medical bills.

Several months later we tried the case again.  The second jury returned a verdict of not guilty.  In a cosmic sense, I thought the result was just about right.

Over the ensuing decades, I have dealt with many a bank robber.  One young punk by the name of Shon Hopwood grew up, turned his life around, wrote a petition for another inmate that resulted in review by the Supreme Court, authored a best-selling book, got married and is now in law school on scholarship.  Even so, and all these years later, no other case comes close to my first bank robbery trial.


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