Indians are Persons Under the Law

Would you ever question whether American Indians are people?  Of course not… and yet, this was actually argued in a court of law.  It all started with the forced exodus of the Ponca Tribe to Oklahoma, after their homelands were ceded to the Sioux under the Fort Laramie Treaty of 1868, forever changing the course of the Ponca people. I want to tell the whole story, so let’s start at the beginning…

  • In the 1800s, Lewis & Clark first encountered a Ponca band of about 700 members who had separated from the rest of the Omaha Tribe. They were camping “just above the flatlands of the Niobrara River [and the West banks of the Missouri]…” in Nebraska.
  •  In 1817, the Ponca signed a treaty of “peace and friendship” with the U.S. At the time, they were vulnerable to the advancing Sioux as well as the “white settlers.”
  •  In 1825, the Ponca signed another treaty agreeing that they lived within “the territorial limits of the United States” and the U.S. would regulate their trade and commerce. But soon after, the Ponca Tribe lost their land and their burial grounds.
  •  In 1868, they signed a third treaty — the Fort Laramie Treaty — which, due to miswording, gave their land and their burial grounds to the Sioux, never to be returned “except for a small portion on which to colonize or domesticate” the tribe.

    Standing Bear, 1881, pub. at
    Standing Bear, 1881, pub. at

This set the stage for the Ponca’s forced exodus to Indian Territory in Oklahoma, a sickening journey beset by storms, poor traveling conditions, and great suffering. It was one of the many trails of tears for Native American peoples. Hundreds of Ponca died due to grief, the rough passage, and the malaria contracted in Oklahoma. Among the survivors, about a third were left sick or disabled.

The Ponca struggled to put up with the loss of their land and their people, but the final straw broke when the son of Chief Standing Bear died. When his tribe fled the reservation to return home and to take his son to the Ponca burial lands, Standing Bear was arrested.

When the case came before the US District Court in Standing Bear vs. Crook (Apr 30, 1879), the government argued that an Indian was not a “person” under the meaning of the law and that Chief Standing Bear could not even file a complaint of habeas corpus.

Judge Elmer Dundy, pub. at
Judge Elmer Dundy, pub. at

On May 12, 1879, presiding Judge Dundy handed down his ruling that “Indians are ‘persons’ within the meaning of the laws of the United States” and subject to the same Constitutional protections as whites.  Of course, the U.S. appealed to the Supreme Court, but the case was dismissed. This Sunday marks the 134th anniversary of this landmark ruling by Judge Dundy in favor of Native American peoples – a ruling on a question one never need ask.

Standing Bear returned to the hunting grounds of his fathers and buried his son in the traditional way.  Another immediate result of Dundy’s ruling was that Standing Bear did not have to move his tribe back to Oklahoma, at the time a somewhat hollow victory as his people had nowhere to go. Remember, their land had been taken in the previous treaties.

  • In 1881, under a fourth treaty, the government finally returned about 26,000 acres to the Ponca, in what are now Knox and Boyd counties in Nebraska.  About half of the Ponca returned to their homeland, but they were beset for years with poverty and disease from the Oklahoma tribulations and, unfortunately, this was not to be the last of their suffering at the hand of government.
  • In 1945, the U.S. government set a policy to terminate certain Indian tribes. Reportedly, this affected 109 tribes and bands, over 13,000 Indians, and over 1 million acres of land entrusted to the tribes. In 1962, Congress declared that the Northern Ponca Tribe should be terminated.
  •  By 1966, the Ponca Tribe was no longer federally recognized. All of their entrusted holdings were dissolved, and some 442 Ponca were removed from the tribal rolls and dispossessed of 834 acres – which started yet another process of decline for the Ponca people.
  •  In the 1970s, unwilling to accept this fate, the Ponca started a process to restore federal recognition. Due to limited resources, it took until 1987 for the Northern Ponca Restoration Committee to incorporate as a nonprofit in Nebraska, but this then became their base for federal recognition efforts.
  •  In April 1988, the Northern Ponca received state recognition. It took another year, until October 1989, for the Senate to give “consent” for federal recognition. But it was not until October 31, 1990 that the bill passed into law. Thus, only for 23 years has the Ponca Tribe been privy to the benefits and support promised by the federal government for the indigenous people whose land and lives it changed forever.

Today, the Ponca Tribe is headquartered in Niobrara, Nebraska, their aboriginal homeland. They have about 2,800 tribal members. The tribe is sustaining its traditional culture. They’ve acquired a land base of about 725,000 acres in Nebraska, Iowa, and South Dakota. This includes one 50,000 acre site in Norfolk, Nebraska, for their youth, diabetes, social services programs and a dorm that generates tribal income.

All of these years, the Ponca were fighting for a land base and the right to exist – something most Americans take for granted. It’s a testament to their strength that they lost and regained land, lost and regained federal recognition, and rebuilt a tribal economy — all without losing their hope and spirit. Today, the Ponca Tribe has about 2,800 enrolled members.

1 Comment

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  1. Vinny Licitra

    Those were sad times.

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