In the 1860's and 70's, there was growing controversy about the presence of Indian tribes around the country and their impact on frontier settlements. Many government officials thought the solution to the "Indian Problem" was to place all tribes on large reservations where their movements and actions could be controlled and where, in some instances, they could be protected from hostile settlers.
The Ponca tribe had a treaty with the U.S. government, signed in 1858, guaranteeing them permanent ownership of land along the Niobrara River in what is now north Central Nebraska. By error or ignorance, the same lands were deeded to the Sioux in 1868. Hostilities between the two tribes increased. As a "solution" to the "mistake", in 1877, the Ponca tribe, including Chief Standing Bear, were removed by the U.S. Government to the "Indian Territory" (now Oklahoma). Extremely reluctant to leave their tribal homeland along the Niobrara River, the Ponca were further appalled at their new home -- inhospitable, poor agricultural land, no provisions for their arrival in terms of food, shelter, etc.
The hard journey and the terrible conditions found after they arrived caused the deaths of more than 150 of the tribal members (only around 600 people to begin with). One of those who died was Chief Standing Bear's 16-year old son. In a death-bed promise, Standing Bear agreed to bury the young man in the tribe's ancestral burial grounds at Niobrara.
In January of 1879, Standing Bear and about 30 followers set out for home -- without U.S. Government permission. It took more than two months to travel on foot as far as the tribal home of their cousins, the Omaha, where - sick and exhausted- they accepted the Omaha invitation to stay and regain their strength, working the land for food and continuing their journey later in the spring, when the ground had softened enough to bury the bones of Standing Bear's son.
In late March, Standing Bear and his tribesmen were all arrested by the U.S. military under the command of General George Crook, a noted "Indian fighter" and veteran of many campaigns. They were taken to Fort Omaha and imprisoned for having violated the federal order to remain on their new territorial reservation.
Crook, although following his orders, was sickened by the whole Ponca saga and went to Thomas Tibbles, an editor of the Omaha Daily Herald newspaper. Tibbles and Crook were both members of the Indian "Soldier Lodge" society (a rigorous initiation ceremony experienced by very few white men). Crook urged Tibbles to make Standing Bear's plight known to the general public.
The device the two men arrived at was to file a writ of habeas corpus, charging Crook with wrongful imprisonment of the Ponca. This was a radical notion, since, at that time, Indians had no such rights. Tibbles rapidly visited a series of local churches, whose congregations pledged assistance and support in the interest of humanity and justice. Two local attorneys, Webster and Poppleton, were persuaded to take the case on a pro bono basis. In April, the hearing began, with Judge Elmer Dundy presiding. Standing Bear reportedly spoke no English and a translator was provided.
Here are the key questions Judge Dundy had to consider!