University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Court Review: The Journal of the American Judges Association American Judges Association 2009 The Case of Standing Bear: Establishing Personhood under the Law Joe Starita University of Nebraska - Lincoln, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/ajacourtreview Starita, Joe, "The Case of Standing Bear: Establishing Personhood under the Law" (2009). Court Review: The Journal of the American Judges Association. 287. https://digitalcommons.unl.edu/ajacourtreview/287 This Article is brought to you for free and open access by the American Judges Association at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Court Review: The Journal of the American Judges Association by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. The Case of Standing Bear: Establishing Personhood under the Law Joe Starita t ten o’clock on the morning of May 1, 1879, in Omaha, Yes, for the most part, the witness said. Nebraska, U.S. District Court Judge Elmer Dundy’s The young agency store clerk left the stand and Lieutenant Agavel smacked against a wooden bench and the trial of Carpenter, the arresting officer, was sworn in as the second Ma-chu-nah-zha v. George Crook1 was officially underway. witness. Standing Bear’s attorney again focused on dress and Delayed by heavy spring rains and widespread flooding, the work habits. judge had just arrived from Lincoln the night before, but now When you arrested the prisoners, he asked, were they wear- he was settled at the bench and he asked the attorneys repre- ing citizens’ clothing? senting Standing Bear to call their first witness. The lieutenant said the majority of the men were – only two Willie W. Hamilton, the son of the missionary on the wore blankets and leggings. And two of the sick Indians had Omaha Reservation, approached the stand. Hamilton, 22, had recently said they wanted to go to work. lived on the reservation for 12 years, working at the agency The general’s lawyer approached, focusing again on loyalty store for the past six. He spoke both Omaha and Ponca fluently to the chiefs. and had first met the prisoners when they arrived on Omaha “How many chiefs are there?” Lambertson asked. Reservation land two months earlier. The younger of Standing The judge: “Why is that material?” Bear’s two attorneys, John Lee Webster, began the questioning, The district attorney: “To show that these Indians have their asking the witness to describe the condition of the prisoners. chiefs, to whom they profess allegiance.” When the prisoners first arrived on the morning of March With that, the trial recessed for lunch, resuming again at 2 4, Hamilton testified, they were in bad shape. Those who had p.m. When the plaintiffs announced the name of their third them wore white man’s clothes. They lived as families, as man witness, the government lawyer jumped to his feet. and wife, with their children – two of whom were orphans. “Does this court think an Indian is a competent witness?” What did they do after they arrived? Attorney Webster Lambertson asked. asked. “They are competent for every purpose in both civil and All the healthy ones began to break ground and sow crops, criminal courts,” the judge replied. “The law makes no dis- mostly wheat, the witness replied. tinction on account of race, color, or previous condition.” Did any of the prisoners put in a crop for themselves? Standing Bear approached the bench. He took the oath and Buffalo Chip had put in four or five acres of wheat on land the store clerk, Hamilton, was sworn in as interpreter. Webster the Omaha gave him. asked the questions and, sentence by sentence, the store clerk On that Sunday, the attorney asked, were the prisoners rest- translated the testimony from Ponca to English. ing on the Sabbath or working? How had things been for them on their old reservation on The judge: “Is that necessary?” the Niobrara? Webster asked. The attorney: “The theory of this government is to “We lived well,” Standing Bear said. “I had my own land, Christianize these Indians, I believe.” and raised enough so I could get along nicely. My children The witness: “It is about the same as it is with white men, were going to school, we had a good school, and everything some do, and some do not.” going nicely.” When his opponent finished, Genio Lambertson had some Were they becoming civilized up on the Niobrara? questions for the witness on behalf of the government and his “He says he wants to work, and become like a white man, client, General Crook. Young and brash, Lambertson was try- and that he has tried his best.” ing his first case as the newly minted district attorney. How were things in the Warm Country? When the prisoners were on the Omaha Reservation, “I couldn’t plow, I couldn’t sow any wheat, and we all got Lambertson asked, who was their chief? sick, and couldn’t do anything….Instead of our tribe becoming Standing Bear was the head chief, the witness replied. prosperous, they died off every day during the time. From the “Did they obey his orders?” time I went down there until I left, 158 of us died.” “Yes, sir.” The witness looked up at the judge. The district attorney asked if they depended on the govern- “I thought to myself, God wants me to live, and I think if I ment for their wagons, clothes and blankets. come back to my old reservation he will let me live. I got as far Authors’ Note: This article is excerpted from JOE STARITA, “I AM A Footnotes MAN:” CHIEF STANDING BEAR’S JOURNEY FOR JUSTICE (Chapter 6, “The 1. United States ex rel. Standing Bear v. Crook, 25 F.Cas. 695 Color of Blood”) (2008), reprinted with permission of the publisher, (C.C.D.Neb. 1879) (No. 14,891). St. Martin’s Press. 4 Court Review - Volume 45 as the Omahas, and they brought me down here,” he said, his down to one essential issue: [H]is son when he voice getting louder and stronger. “What I have done? I am Had the Ponca prisoners gen- brought here, but what have I done? I don’t know.” uinely expatriated themselves died made him Standing Bear got up from his chair and began to gesture, from their tribal past and promise... he speaking louder to the faces staring back from the sides, the become firmly lodged on civi- would take his back and the benches. “It seems as though I haven’t a place in lization’s path? If so, then they the world, no place to go, and no home to go to, but when I were entitled to the protection bones there and see your faces here, I think some of you are trying to help me, of the Fourteenth Amendment bury him, and so that I can get a place sometime to live in, and when it comes and the government had no that he has got my time to die, to die peacefully and happy.” business trying to deprive The judge told the interpreter to tell the witness not to get them of life, liberty and prop- his bones in a too excited, to stay calm. Standing Bear sat back down. His erty. If not, then they were gov- box, and... he will lawyer turned to the interpreter. ernment wards who had ille- bury his bones “Ask him how many of his children died in the Indian gally left their reservation and there.... Territory before he came away?” it was the military’s duty to “He says two died down there. He says his son could talk return them to the Indian English and write, and was a great help to him…and whenever Territory. he thinks of it, it makes him feel bad.” Promptly at ten the next morning, the younger lawyer, Does he still consider himself the chief of his people? Webster, still a bit under the weather, began to lay out his case “He says he didn’t consider himself a chief…He says he felt in support of the Indian prisoners. First of all, he told the himself to be as poor as the rest of them.” judge, the Omaha legally owned their reservation and, as such, The general’s lawyer approached the witness. He told the had every right to share the land with their Ponca friends and interpreter to ask if he was the chief of those Ponca now in the relatives. Standing Bear and the Ponca did not want the gov- north or any of those in the Territory? ernment’s help. They simply wanted their own land and the “He says, I was not the head man; I don’t consider myself chance to work it and become self-supporting. They cannot, he any better than they are.” stressed, be moved “at the whim and pleasure of the commis- The district attorney wanted to know if the government fur- sioner at Washington” who does not have “the power to move nished them with wagons and farming tools. the Indians when and where he pleases.” In fact, the govern- “He says they got some wagons and some mowing ment’s behavior in this case, he told the judge, openly defies machines.” the philosophy of the nation’s third President, who, in a letter Did they escape from the Territory in government-issued to an Indian chief in 1803, had said, “these lands can never go wagons? from you but when you wish to sell.” Thomas Jefferson also Two were government-issued.