How The States Got Their Shapes Too Part 12

-SIDNEY EDGERTON1 Clearly, one of these men had a faulty memory. The fault line dividing their recollections can be seen on the map. It is the boundary between Montana and Idaho-a border that often raises questions, since Montana would be quite a large state even if it didn't overflow its straight lines as it barrels into the Rockies, pus.h.i.+ng Idaho every which way until only a thin panhandle remains.

Sidney Edgerton was an Ohio congressman from 1859 to 1863. James Ashley was an Ohio congressman from 1859 to 1869. Both were abolitionists who a.s.sisted escaped slaves via Ohio's Underground Railroad. They were good men, but not perfect, as hinted in their divergent recollections regarding Montana's western border.

Following Edgerton's second term in Congress, President Lincoln appointed him to a judges.h.i.+p in the newly formed Idaho Territory. This first territorial incarnation of Idaho was very different from today's state. It encompa.s.sed present-day Idaho, Montana, and Wyoming. Edgerton and his family set off for the arduous journey to the territorial capital at Lewiston. But they stopped short of their destination. "It is difficult to understand what it meant in 1863 to undertake a journey from Ohio to Lewiston, the capital of Idaho," Edgerton's daughter later recollected. "News of the recent gold discoveries at Bannack, together with the fact that the [winter] season was somewhat advanced, brought about the decision to go [to Bannack]."2 Another reason for not continuing to Lewiston was the fact that it was not in Edgerton's judicial district. Some historians believe that territorial governor William H. Wallace was demonstrating his well-known opposition to imported judges by a.s.signing to this Ohioan a vast and spa.r.s.ely populated district east of the Rockies. Others believe that Wallace's insult motivated Edgerton's efforts the following year to push the western border of the Montana Territory as far as he could into the original Idaho Territory. And others, such as eminent Idaho historian Merle W. Wells, maintain that, because of the gold discoveries at Bannack, "Edgerton's district had far greater importance than the one containing the temporary capital, and because of his financial interests in the district to which he was a.s.signed, Edgerton had no great desire to make the long, hard trip to Lewiston."3 Financial interests? Perhaps Judge Edgerton would have recused himself from any cases in which he would have had a conflict of interest. At it happened, he never presided at any trials because, before the snows had melted, he had accepted the task of returning to Was.h.i.+ngton to represent this region in the creation of the Montana Territory.

Whatever his motive, time was of the essence. James Ashley, chairman of the House Committee on Territories, was about to set the boundary ball in motion. During the previous Congress, Ashley had proposed radically different-and far more equal-borders for Idaho and Montana. Ashley's plan was to divide the region horizontally, with Montana occupying the southern half and Idaho occupying the north. The proposal was then sent to committee.

Sidney Edgerton (1818-1900) (photo credit 36.1) James Ashley (1824-1896) (photo credit 36.2) Ashley's original proposal Word arrived in Bannack shortly after Edgerton's arrival that Ashley was now planning to bring the bill back to the House floor. To rank-and-file miners, the boundary made little difference. But to those with financial interests in the mines, Ashley's horizontal division would dilute their political clout in their respective territories by dividing the mountainous mining region and combining it with soon-to-be agricultural and ranching regions. Mine owners in Idaho could maintain more clout with a vertical division, since it would result in an agricultural region limited to the Snake River Valley in what would then be its south. In Montana, however, limiting the vast agricultural regions was not an option, no matter how you sliced it. Consequently, it was imperative for the mine owners that they acquire a western border with as much of the gold-rich mountains as possible.

The logical choice to make the case for Montana was Edgerton. Not only had he served in Congress, but he had done so from the same state and political party (Republican) as Ashley, the territorial committee chairman. Moreover, Edgerton was personally acquainted with President Lincoln. And he knew what to wear and how to pack. "Ingots were quilted into the lining of my father's overcoat," his daughter recollected, "and he carried in his valise immense nuggets wherewith to dazzle the eyes of Congressmen and to impress upon their minds by means of an object lesson some adequate idea of the great mineral wealth of this section of the country."

While members of Congress may have been familiar with the quant.i.ties of gold being mined in the region, Edgerton's daughter was quite right that the object itself would have dazzled their eyes-and possibly ethics. "Arriving safely in Was.h.i.+ngton, the gold was exhibited, Congressmen interviewed, and at length the desired end was accomplished," her recollection continued, concluding, "Judge Edgerton saved to Montana all of her rich territory lying west of the summit of the Rockies."

Idaho's representative, William H. Wallace (the man who, as territorial governor, had a.s.signed Edgerton his judicial district) joined Edgerton in supporting the vertical division over Ashley's horizontal proposal. Wallace, however, sought a vertical boundary along the Continental Divide, whereas Edgerton sought a boundary that s.h.i.+fted to the more westerly crest of the Bitterroot Range. Edgerton won (though the northernmost segment of the border departs from the Bitterroots, preserving the Kootenai River Valley for Idaho).

Who, among those congressmen Edgerton "interviewed," as his daughter put it, might have been both persuaded by his "object lesson" and sufficiently influential to change Congressman Ashley's proposed borders so radically? The ideal person, of course, would have been Congressman Ashley himself. But could a man so committed to the most progressive issues of his day (abolition of slavery, the right of women to vote) have been influenced by the sight of gold? It doesn't seem unlikely; in April 1869 the New York Times devoted four articles to Ashley, detailing "abundant evidence of his public corruption."

Edgerton left Was.h.i.+ngton not only with the boundary he had sought for Montana but also with the governors.h.i.+p of the new territory. He soon discovered, however, that the line he purchased failed to take into account other lines that divided the region, such as the interests of farmers and ranchers. He was unable to govern the various groups opposed to his personal interests. He left the territory before his term expired and was replaced by an interim governor until-small world-James Ashley was appointed.

Learning of Ashley's appointment, Montana's congressional delegate, James M. Cavanaugh, stated on the floor of the House that he "never solicited [Ashley] to come among us." Cavanaugh (who, unlike a territorial governor, was elected, not appointed) characterized Ashley as "having been spewed out at the mouth" and protested that the territories were "being made receptacles for political convicts."

Idaho's border proposal Like Edgerton, Ashley proved unable to govern the tough, pugnacious people of Montana. He was dismissed by the president before his term expired. Together, Sidney Edgerton and James Ashley demonstrated that all that's gold does not glitter.

ALASKA.

WILLIAM H. SEWARD.

Why Buy Alaska?

Seward appeared before the Committee and made a long explanation of the status of affairs in Alaska and the reasons which induced him to make the purchase.... The discussion which followed was decidedly spicy, and somewhat acrimonious.

-NEW YORK TIMES, MARCH 19, 1868 On a map, Alaska looks like it ought to be part of Canada. How and from whom did the United States obtain it? Not from the Canadians, since it never belonged to them, nor to their colonial predecessors, the British. Since the Battle of Sitka in 1804, it had essentially belonged to Russia (although indigenous peoples such as the Tlingits, Aleuts, and Yupiks would have begged to differ). In 1867 the United States acquired Alaska when Secretary of State William H. Seward negotiated a treaty with Russia for its purchase.

At the time, Alaska was popularly derided as "Seward's folly" and "Seward's icebox." Even the New York Herald, which supported the purchase, couldn't resist Alaska laughs. Its November 12, 1867, edition contained an abundance of what purported to be cla.s.sified ads, among them: Cas.h.!.+ Cas.h.!.+ Cas.h.!.+-Cash paid for cast off territory. Best price given for old colonies, North or South. Any impoverished monarchs retiring from the colonization business may find a purchaser by addressing W.H.S., Post Office, Was.h.i.+ngton, D.C.

Aside from its coastline, Alaska was viewed by many as little more than a mammoth stretch of barren tundra and ice. It is indeed a lot of land-over twice the size of the nation's second largest state, Texas. Virtually no public opinion was expressed leading up to the treaty's signing, since only a select few knew that it was in the wind. The purchase of Alaska was not revealed, even to Congress, until the day the treaty was signed. At that point, it became headline news.

Typical of the initial press reports was that of the San Francis...o...b..lletin, whose March 30, 1867, front page story trumpeted: Important Treaty With Russia She Surrenders Sovereignty to all Russian America British Excluded From the Ocean The President has communicated to the Senate a treaty with Russia. The latter surrenders to the United States sovereignty over all Russian America and adjacent islands, and especially includes a strip of 400 miles down the coast, excluding British America from the ocean. British diplomats are highly excited.

Britain was indeed "excited" but not, as first reported, excluded from the ocean. British Columbia, with its bustling port at Vancouver, remained between Alaska and the rest of the United States.

How could-and why would-such a huge purchase be pulled off so secretly? The answer can be summed up in two words: William Seward.

Seward had been raised in Orange County, New York, the son of a prosperous doctor. As a young lawyer, he became a protege of Thurlow Weed, a political boss from whom he learned his way around back rooms. He was elected to the state senate in 1830 and later became New York's governor and then senator. In 1860 he was the odds-on favorite to become the Republican nominee for president. But he lost out to a relative newcomer from Illinois named Abraham Lincoln. Lincoln chose Seward to be his secretary of state. It was a smart choice.

Though the purchase took place after the Civil War, Seward's reasons for purchasing Alaska were rooted in that war's underlying element. Before, during, and after the war, Seward's greatest political fear was that the United States might disunite.

William H. Seward (1801-1872) (photo credit 37.1) Seward first voiced this fear in 1849 when California sought statehood. That suddenly populated gold rush region presented Congress with proposed boundaries that were outrageously large. Many members of Congress sought to create two states-in effect, North and South California-and to push back the proposed eastern boundary to the crest of the Sierra Nevada range, thereby sharing its gold with the neighboring states yet to be created. Seward opposed these adjustments. Pointing out that the U.S. military had no direct access by rail or sea, if it were needed to prevent California from declaring itself a separate nation, he argued in the Senate, "Are we so moderate, and has the world become so just, that we have no rivals and no enemies to lend their sympathies and aid to compa.s.s the dismemberment of our empire?"

Seward's remarks on California reflected his insight into foreign affairs, which he viewed as a multidimensional chess game. As secretary of state he demonstrated this view in the way he went about the purchase of Alaska and, prior to that, in the way he urged Lincoln to avert the Civil War. In April 1861, with Southern states seceding and war appearing inevitable, he sent Lincoln a memo ent.i.tled, "Some Thoughts for the President's Consideration." Among those thoughts were such notions as, "I would demand explanation from Spain and France [regarding intervention in Mexico to retrieve unpaid debts].... And if satisfactory explanations are not received from Spain and France, would convene Congress and declare war against them." In a letter to governors of those states bordering the Great Lakes, Seward suggested going to war to acquire Canada. With the nation on the verge of Civil War, such actions were not the kind of recommendations one would expect from the nation's premier diplomat.

But these were not actions, they were words, and the key to understanding Seward's words is to ask what he was doing by saying them. In this instance, Seward was suggesting a "chess move" to create fear of an imminent war with outsiders, in the hope that it would rally enough Americans to forestall the crumbling of the Union. He had no intention of France or Spain mistakenly interpreting such saber rattling as a genuine threat.1 When it suited his purpose, Seward readily admitted that his words should not be taken at face value. Shortly before his appointment as secretary of state was made public, he told a British diplomat that he would soon be in a position that would require him to insult Great Britain. Years later it was discovered that, five weeks before Seward's private memo to Lincoln, the British foreign secretary recorded in his diary that he'd received information indicating that the United States might create a quarrel with Britain in an effort to prevent the nation from dividing.2 Seward believed that Alaska was of vital importance to strengthening the bond securing the West Coast (whose residents relied on Alaska for imports of fish, timber, and fur) to the rest of the nation. Further securing that bond was also embedded in Seward's other main reason for purchasing Alaska: to promote and protect American commerce with China and j.a.pan.

Buying Alaska revealed Seward's diplomatic skills; selling to the public the buying of Alaska required his political skills. He knew he was investing in a huge amount of territory about which most Americans knew nothing. Other than Americans on the West Coast, awareness of Alaska's significance was limited primarily to a few intellectuals. But even these citizens did not know that diplomatic signals regarding Alaska's potential sale to the United States were in the works, and had been for over a decade. In 1854 Russia, at war with Britain, offered the Americans a "treaty of purchase." Being an act of diplomacy, the words did not necessarily mean what they said; the treaty was actually a fake. The Russians' idea was to leak the treaty's existence to avert a British attack on Alaska.3 As it turned out, Russia and the United States decided not to release the phony agreement. But Tsar Alexander II's advisers increasingly viewed Alaska as more of a liability than an a.s.set, and American political figures increasingly broached the purchase of Alaska with members of the cabinet and Russian ministers.

The Civil War slowed the frequency of these winks and nods but did not end them. Nor did the a.s.sa.s.sination of President Lincoln end Seward's tenure as secretary. By 1867 he and Russian amba.s.sador Eduard Stoeckl were exchanging offers and counteroffers. On the evening of March 29, Stoeckl called upon Seward at his home to inform him that his government had accepted the deal, and to ask for time the next day to begin drafting the actual treaty. Seward, wanting to keep the agreement under wraps, suggested they start now. The family's dinner table was cleared, secretaries were summoned, and at four o'clock in the morning, a treaty was ready to take to the White House. President Andrew Johnson signed it the following day, sending word of his action to Congress.

The treaty now needed Senate ratification. That debate took place in executive session, away from public scrutiny. Nevertheless, the debate commenced immediately in the press. Most newspapers initially touted the purchase's virtues in nearly identical language.4 Clearly, someone had prepared a public relations campaign timed to the release of the treaty. Given that the treaty had just been written the night before in Seward's dining room, only Seward himself could have masterminded such a campaign.

The need for this public relations blitz quickly became evident. Opposition to the purchase commenced as soon as it was made public. On the East Coast, some papers such the New York Times supported the purchase while others such as the New York Tribune opposed it. Midwestern newspapers were likewise divided.5 West Coast newspapers, not surprisingly, vigorously endorsed it. And Southern newspapers-hardly fans of the man whose diplomacy had helped prevent European aid to the Confederacy-urged the Senate to vote no.

The Senate, as it turned out, was less divided. Emerging from private deliberations, it voted thirty-seven to two in favor of ratification. Const.i.tutionally, once the Senate ratifies a treaty, that's that. In this instance, however, the treaty required the United States to pony up $7,200,000, and that appropriation required approval by the House of Representatives. In effect, it too would have to ratify the treaty.

The House debate was public, and so heated one might think the purchase of Alaska entailed some master plan for the future. In fact, it did. The New York Herald wrote in March 1867 that the purchase of Alaska was "an important step toward the absorption of the whole continent by the United States." Seward himself believed that, with the purchase of Alaska, the United States would inevitably come to acquire the land separating Alaska from the lower forty-eight states: the Canadian province of British Columbia. Those opposed to the purchase worried that the United States would expand too far-geographically and racially.6 Ultimately, however, over a year after the signing of the treaty, the House of Representatives sent to the Senate a bill containing the funds for the purchase of Alaska.

William Seward, meanwhile, had continued his efforts to expand America both westward and eastward. He sought to purchase the Dominican Republic and the Virgin Islands. He sought to gain a privileged American connection with Hawaii. And he acquired another barely habitable territory: a tiny group of islands in the Pacific, mid-distance between the American West Coast and Asia, and thus named Midway. The strategic importance Seward foresaw in this forlorn little atoll was borne out in World War II, when it became the scene of a critical battle between the United States and j.a.pan.

NEBRASKA, SOUTH DAKOTA.

STANDING BEAR V. CROOK.

The Legal Boundary of Humanity

Webster describes a person as "a living soul; a self-conscious being: a moral agent; especially a living human being; a man, woman or child; an individual of the human race." This is comprehensive enough, it would seem, to include even an Indian.

-JUDGE ELMER S. DUNDY, 18791 General George Crook was not a crook. He was not even an opponent of Standing Bear. Only in legal terminology were they at odds. Also in legal terminology, an American Indian (according to the U.S. government) was not a person. Ponca chief Standing Bear, supported by General Crook and an increasing cadre of others, changed that. In the process, the boundary of Nebraska changed too. Also changed were the lives of every American Indian-though not necessarily in a way that they, or Standing Bear, may have hoped.

In the 1870s Standing Bear was one of a number of chiefs of the Ponca Nation. The Poncas were a small, peaceful nation that occupied land-repeatedly reduced by treaty-between the Missouri and Niobrara Rivers, today a region along Nebraska's northern border. Standing Bear raised livestock, grew vegetables, often wore Western farm clothes, and lived in a two-story home. Like many of the Poncas, he was a practicing Christian.2 The tribe had long coexisted amicably with nearby white settlers. Their only enemy was the Sioux, who lived to their north and vastly outnumbered them.

Chief Standing Bear (ca. 1834-1908) (photo credit 38.1) Conflicting treaties Standing Bear's troubles began, unbeknownst to him, in 1868, when the Sioux signed a treaty with the federal government redefining the boundaries of their land. Neither the American negotiators, nor anyone in Was.h.i.+ngton, noticed that the treaty gave land to the Sioux that had belonged to the Poncas. The error provided the Sioux with a new excuse for a series of raids on the Poncas. The federal government, finally reacting to its error in 1877, did so in ways that revealed the complex web in which all Indian tribes were caught.

Standing Bear and his fellow Ponca leaders were called to a meeting with Commission on Indian Affairs inspector Edward Kemble and the government's local Indian agent. Kemble had been directed by his superiors in Was.h.i.+ngton to tell the Poncas that "their interests have been carefully considered, and that it is very desirable that they should be established in a country where the circ.u.mstances are more favorable."3 The more favorable country was in the Indian Territory (present-day Oklahoma).

Although resistant to giving up their ancestral land, the Ponca leaders ultimately agreed and went to look at available areas. Or: Although resistant to giving up their ancestral lands, the leaders ultimately agreed to look at available areas. Kemble, claiming the first version, later testified in a Senate investigation: Most undoubtedly, they could not be removed without relinquis.h.i.+ng their land there, and the next step after such relinquishment, or such agreement to relinquish, was to take a delegation to the Indian Territory to select some other home for them.

Standing Bear, claiming the second version, testified: He told us he would take us to see this land down there first, and if we were suited we could come to Was.h.i.+ngton and tell the President so, and if not we could tell the President so.

One could be telling the truth and the other lying, or the truth could "lie" in language itself. None of the Ponca leaders spoke English, so a translator had been employed. Kemble testified, however, that he had hired the best man available: Q: You had Charlie Le Claire as interpreter?

A: Yes, sir....

Q: Was that before or after he had been driven out of the territory for fomenting trouble?

A: I had no information on that....

Q: There did not seem to be any objection to him as interpreter?

A: He was the only one we could get.

Ten of the Ponca leaders, including Standing Bear, went with Kemble to look over the land being offered. When a Senate committee later questioned Kemble, words again proved to be problematic: A: A great many wanted to go, but the instructions I had received ... limited the number to ten.... Big Snake, Standing Bear's brother, head soldier of the tribe, gave me a great deal of trouble. He wished to go.... But these ten men were insisted upon, and- Q: Who insisted upon these ten men?

A: Myself and the agent.

Q: You picked out the men?

A: I did not say that....

Q: Did you not say that you insisted that these ten men should go?

A: Subsequently I did, but that was after objection had been raised by Big Snake.

Even among the ten men selected by Kemble, none liked what they saw. "I said to him, 'We have seen the land; we have told you we do not like it,' " Standing Bear recalled to the Senate committee. " 'You said you would take us to Was.h.i.+ngton to see the President.' ... Then he said, 'The President did not tell us to take you to Was.h.i.+ngton.' 'Well then,' we said, 'take us back to our own land that we came from.' And he said, 'The President did not tell us to take you back to your own home.' ... He had given us two alternatives: either to take the land or ... walk home."

They walked. All but the two eldest, who could not do the 400-mile winter trek.

Six weeks later, Standing Bear arrived home to find Kemble. Having traveled by train, Kemble arrived ahead of them and now had new orders from the Commissioner on Indian Affairs. "Removal of Poncas will be insisted upon," he was instructed. "[Sioux Chiefs] Spotted Tail and Red Cloud must move this summer to Missouri River. Their presence will render further stay of Poncas at old location impossible." No ambiguity there, except in logic. If the Poncas were being moved from their land (south of the Missouri River) to protect them from the Sioux, why was the government now limiting the movement of the Sioux to the Missouri River? The answer would surface five years later, when Nebraska's boundary changed.

Standing Bear found his people in panic, with Kemble demanding they pack at once and threatening to use force if they did not. Meanwhile, Standing Bear's brother, Big Snake, was demonstrating why he was the tribe's head soldier, having begun to organize resistance. Now that Standing Bear had returned with negative views about the land being offered, Kemble called for the military. He ordered the soldiers to take Standing Bear and Big Snake into custody.

By the time the brothers were released, the forced removal was commencing. Soldiers compelled the Poncas to journey without pause through a spate of horrific weather. The lack of sufficient shelter and rest took the lives of many of the tribe's oldest, youngest, and otherwise weakest members-including Standing Bear's tubercular daughter, Prairie Flower, herself the mother of two young children. The death toll did not abate when they were released in the new land, since the government had failed to provide sufficient food, lumber, wagons, and horses. In their first two years in the Indian Territory, one-third of the tribe died. Among them was Standing Bear's teenage son, Bear s.h.i.+eld.

Following the death of his son, Standing Bear embarked on a plan to lead his people back to their ancestral home. In January 1879 he and twenty-nine carefully selected comrades quietly left the reservation, setting off as the vanguard of what they hoped would be a Ponca exodus. The local Indian agent wired Was.h.i.+ngton to alert agents posted with other tribes to be on the lookout for Standing Bear and, if seen, to have him returned to the Indian Territory.

Two months after their departure, Standing Bear and his cohorts turned up at the Omaha reservation. They were welcomed by the Omahas and by their government agent. But the agent's words were deceiving. He contacted the region's military commander, General George Crook, who promptly sent men and arrested the Poncas.

What happened next, from Standing Bear's perspective, was difficult to fathom, as he later recalled to the Senate committee: A: They put us in where the soldiers were, in the fort.... We stayed there all winter.... The soldiers said, "We do this because we were ordered to do so." ...

Q: What did you then suppose they were going to do with you?

A: I supposed they were going to take us back to the Indian Territory.

Q: What did the soldiers actually do?

A: Somebody got the soldiers to let us go. There were three men in Omaha that helped get us away from the soldiers.

Q: You don't know how?

A: No, sir.

One of the men who helped Standing Bear get away from the soldiers was the a.s.sistant editor of the Omaha Herald, Thomas Tibbles. In a book published a year later, Tibbles (masked behind a pseudonym, Zylyff) recalled, "On the 29th of March, 1879, at about eleven o'clock at night ... the city editor came in and informed [me] that he had just returned from Fort Omaha ... where there was a band of Ponca Indians under arrest for running away from the Indian Territory." It was not, however, the city editor who came into Tibbles's office. Tibbles attributed the tip to the city editor to protect his source. It was General George Crook, the commanding officer of Fort Omaha, who came to his office that night.4 General George Crook (1828-1890) (photo credit 38.2) Tibbles knew a good story when he saw one, and at Fort Omaha he saw one. He wrote it up for the Omaha Herald, then telegraphed it to papers nationwide: Gen. Crook held a formal council with the Ponca Indians this morning ... Standing Bear, hitherto in citizen's clothes, in full Indian costume [said] ... "Before I went to the [Indian] Territory, I had a good house and a barn.... I had cattle and hogs and all kinds of stock, and somebody came and took all my things away.... 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! ... I need help." ...

Gen. Crook, turning to Standing Bear, said, "It is a very hard case, but I can do nothing myself. I have received an order from Was.h.i.+ngton and I must obey it."

To describe Tibbles as a journalist is to give his resume short shrift. As a teenager in Kansas, he had joined the ranks of abolitionist John Brown in the b.l.o.o.d.y confrontations in which Brown (who later attacked the U.S. Army a.r.s.enal at Harpers Ferry, Virginia) was then engaged. After serving in the Civil War-possibly as a Union spy-Tibbles became an itinerant preacher, then a journalist, and eventually an impresario. After seeing his story picked up in Chicago, St. Louis, and three New York newspapers, he knew it would behoove him to keep it going. But how?

Tibbles reasoned that if he were being held by the government, his reaction would be to get a lawyer. He therefore took the case to a lawyer. His keen instincts led him to John L. Webster, a boyhood friend who, much like himself, had substantial ambitions. (Webster later became active in Nebraska politics, unsuccessfully seeking a U.S. Senate seat and the Republican nomination for vice president.) Where Tibbles saw a potentially big news story, Webster saw a potentially big legal issue-so big that, to help a.s.sure it got attention, he sought a cocounsel, former Omaha mayor Andrew J. Poppleton. The legal bombsh.e.l.l they spotted was a writ of habeas corpus, a procedure to have a person in custody brought before a judge. It takes place every day in courtrooms across America. But it had never before been applied for an American Indian.

Because Standing Bear was in the custody of General Crook, the pet.i.tion was presented in court as Standing Bear v. Crook. General Crook, the nominal defendant, did not testify in the proceedings for reasons that, in his memoirs, become crystal clear. "[I] stated bluntly that [my] interest in the case was official, that personally [I] sided with the Poncas," he wrote, adding, "The Poncas were ... simply another case of injustice to the Indians, a subject with which [I] was becoming increasingly familiar."

As Tibbles had hoped, the court case quickly commanded the attention of the nation's press. "At Omaha yesterday, Judge Dundy of the United States Court granted a writ of habeas corpus commanding General Crook to show cause why he has in custody Standing Bear and other Ponca Indians who fled from the Indian Territory," the New York World reported in August 1879. "The United States District Attorney has been directed to ... endeavor to have the writ dismissed. He takes the ground that ... the Indians stand as wards of the government, as minors are to their parents."

The U.S. attorney's legal argument matched the att.i.tude of many Americans at that time, as expressed by Kemble in his later Senate testimony: A: If the Senator will permit me to say, in dealing with Indians, we must sometimes do as we do in dealing with children ... and may have to decide for them what is best ... in order to bring them to see things correctly.

Q: To see things as you see them?

A: To see things correctly.

Q: As you see them?

A: As white men see them.

On May 12 Judge Elmer Dundy ordered that Standing Bear and the other Poncas, having committed no crime nor having been charged with committing any crime, be released from custody. In rendering his decision, Dundy rejected the U.S. attorney's claim that Indians had no legal right to a writ of habeas corpus. "The district attorney ... claimed that none but American citizens are ent.i.tled to sue out this high prerogative writ in any of the federal courts," he ruled. "The habeas corpus act describes applicants for the writ as persons or parties who may be ent.i.tled thereto. It nowhere describes them as citizens."

The significance of the judge's decision detonated in the pages of the press. "The decision of Judge Dundy ... virtually declares Indians citizens of the United States, with the right to go where they please, regardless of treaty stipulations," Boston's Daily Advertiser reported in May 1879. "The district attorney at Omaha has been instructed to take the necessary steps to carry the case to ... the Supreme Court, if necessary. It is felt that to surrender this point is to surrender the whole Indian system."

The ruling also detonated in the halls of government. Secretary of the Interior Carl Schurz, whose department included the Commission on Indian Affairs, wrote in his memoirs that President Rutherford B. Hayes, in meeting with his cabinet, ultimately opted not to appeal the decision: The judge's decision opened up an alarming vista of ... restless braves and ambitious attorneys [who] could ... thwart the government in its efforts to control the movements of the Indians. Despite this prospect, however ... [it was] decided not to take an appeal to the Supreme Court.... [W]rong had been done to the Poncas ... but far greater wrongs would result if ... [the Supreme Court were] to undo the action of Congress.