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Episode 2 of the Constitutional podcast: “Ancestry”

(Michelle Thompson for The Washington Post)

In 1879, a case came before a judge in Omaha that asked the question: Are Native Americans considered human beings under the U.S. Constitution?

That the answer to such a question was unclear gives some indication of the tumultuous and fraught relationship at the time between tribes and the U.S. government—a relationship still riddled with challenges and complexities to this day.

"That tension that was playing out on the Great Plains of America in the last quarter of the 19th century is still playing out on the Great Plains of America in the opening decades of the 21st century," says Joe Starita, a professor at the University of Nebraska-Lincoln and the author of “I Am a Man: Chief Standing Bear’s Journey for Justice.”

Standing Bear was a Ponca chief whose tribe had been forced from its ancestral lands and marched 600 miles south to Indian Territory. When his son died, the chief and fellow tribal members made a hard journey north to return his body to their burial ground. They were intercepted near Omaha and he was arrested. His case, in that Nebraska courtroom, marked an important turning point in granting civil rights to Native Americans under U.S. law. His story is the focus of the second episode of The Washington Post's new "Constitutional" podcast.

Listen to the episode here.

Episode guests include Starita, as well as Ponca Tribe Chairman Larry Wright Jr., and Lindsay Robertson, the Chickasaw Nation Endowed Chair in Native American Law at the University of Oklahoma and the author of "Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands."

Check out the "Constitutional" webpage and subscribe to get new episodes for free on Apple PodcastsStitcher or wherever you listen to podcasts. For updates about the series, you can also follow podcast host Lillian Cunningham on Twitter: @lily_cunningham

Transcript of Episode 2: Standing Bear

Lillian Cunningham: It’s nearly 100 years after the Constitutional Convention, and we’re out on the barren plains. The wind is sweeping across the makeshift shelters of an Indian reservation.

Joe Starita: On Christmas week of 1878, 16-year-old Bear Shield was dying on the bottom of this army canvas tent.

Cunningham: Bear Shield is a member of the Ponca Indian tribe, which recently had been forced to turn over their land and move to this government-run reservation here in Oklahoma.

Starita: But before his eyes closed in death—

Larry Wright, Jr.: As he lies dying from sickness and realizes that he's not going to live—

Starita: He begged his father, the chief. He made his father promise that upon his death he would take his son's remains and re-bury them in their sacred homeland in the White Chalk Bluffs overlooking the Missouri River.

Cunningham: The problem is: The sacred White Chalk Bluffs were a 600-mile trek north, on foot, across the frozen landscape of what’s now Kansas and Nebraska. But after young Bear Shield takes his last breath—and dies in the confines of this camp—his father, Chief Standing Bear, decides he has to make the journey. And 29 members of his tribe say they will go as well.

Wright: And so in almost a hasty fashion they got what they could together and set off on the trip, and by no means was it enough.

Starita: He puts his body in the back of a rickety buckboard wagon and with two feeble, starving horses, they begin walking north.

Cunningham: It’s the second day of January, and a fierce blizzard is swirling across the flat earth.

Starita: The day they leave, the temperature is 16 below zero. The third day out, the estimated wind chill is more than 40 below zero.

Wright: And so here's those 30 people traveling to Nebraska 600 miles in the winter in moccasins and in bare feet. They say they could see the tracks of blood in the snow from when they were walking.

Starita: And it's in this manner that they go one week, one month, three months, four months—until they get within two days of their beloved homeland.

Cunningham: And then there, so close to their journey’s end—severely frost-bitten, starved—something happens: They’re arrested by the United States Cavalry for having left the confines of the reservation.

And this arrest sets off a chain of events: a chain of events that eventually leads to Standing Bear being the first Native American in the entire United States to get a trial and the chance to argue for his rights.

Starita: He was able to bring the entire government of the United States to its knees without ever firing a shot from his Winchester, without ever plucking an arrow from his quiver, without ever unsheathing his hunting knife. And he was able to do this of all things for the first time in American history on the third floor of a courtroom in Omaha, Nebraska.

Cunningham: It’s in that third-floor courtroom in Omaha that a question is set before the judge, Judge Elmer Dundy—a question that the constitutional framers a century before somehow left unclear. And the question is: Does the United States government consider Indians human beings?

I’m Lillian Cunningham with The Washington Post. And this is "Constitutional."


Cunningham: When the framers of the Constitution set out their vision for the new nation, who were the people they considered its citizens? How did they define who was an American? Whose rights did they aim to protect? Whose liberties did they want to secure? And whose did they choose to ignore?

We start our exploration of “we the people” by turning to the land itself, and to those whose families were born on its soil long before the Constitution was written—long before America was even called “America” at all.

Wright: Before the U.S. government was here, our people fought to protect that land and we continually have that tie to the land. It almost becomes part of your DNA.

Cunningham: This is Larry Wright, Jr., chairman of the Ponca tribe. He's one of the voices you heard in our introduction. The other voice was Joe Starita, the author of a book about Standing Bear called “I Am a Man.”

Starita: Native Americans are politically the most powerless people in America. They are still the most invisible people in America.

Cunningham: It took until 1924 for Native Americans to be considered citizens of the United States. And for many today who are part of tribes and who live on Indian reservations, the idea of American citizenship still carries tensions, and questions, and great cultural complexity.

And to a certain extent, the 55 white men debating in Independence Hall, hashing out the Constitution, are responsible for that. So before we dive further into Standing Bear’s story with Joe Starita and Larry Wright, Jr., let’s go back to that summer of 1787.

Now, the backdrop here is that, during the Revolutionary War, many Native American tribes joined with the British to fight against the American revolutionaries. So Americans at the time rightly saw tribes as their own nations that could make treaties, that could form alliances and that could pose a military threat.

Lindsay Robertson: So as the framers were drafting the Constitution, they were thinking about tribes; but primarily as a foreign relations matter.

Cunningham: Lindsay Robertson, of the University of Oklahoma, is the Chickasaw Nation Endowed Chair in Native American Law.

Robertson: The principal challenge at Philadelphia for the framers of the Constitution in relation to the tribes was figuring out which level of the new federal republic would deal with them. Would this be a state matter or would this be a federal matter? One of the goals was to fix that confusion, and they did so in Article 1 by giving Congress—and just Congress—the power to regulate commerce with the Indian tribes.

Cunningham: There really wasn’t any debate about citizenship—or rights—for Native Americans at the time, because they just weren’t viewed as part of the American population.

Robertson: There was universal understanding that tribes were really outside the process. Most people are aware of the three-fifths clause—

Cunningham: Which gave enslaved people only fractional representation.

Robertson: But fewer I think are aware that after the three-fifths clause in Article 1 is the Indians clause, which says that Indians count as zero unless they happened to have assimilated and become taxpayers.

Cunningham: So there’s the clause about Congress having the power to regulate commerce with tribes, and there’s the language about how Indians should go uncounted in the population.

Robertson: And those were the only two appearances of tribes in the Constitution, and that's still true to this day. But I don't think they ever thought it would be easy to navigate those relations.

Cunningham: And those relationships would only grow in complexity as the country itself grew. During Thomas Jefferson’s presidency, in 1803, America bought the Louisiana territory from France. That doubled the size of the United States and expanded its boundaries westward.

Starita: Thomas Jefferson had a very ironclad vision, a very strong belief, in what he wanted to do with that land.

Cunningham: Joe Starita again, our Standing Bear expert.

Starita: And what he wanted to do with that land was create what has become known as Jeffersonian democracy. And the only problem was this wasn’t empty land. This is land that was occupied. And so something had to go. And what had to go were the native people who lived on this land.

Cunningham: This set in motion a dramatic shift away from treating tribes as foreign powers.

Robertson: By the late 1820s, land hunger had made continued healthy relations with tribes very difficult.

Cunningham: Then in 1830, President Andrew Jackson signed the Indian Removal Act, which officially forced Native Americans in the southeast to vacate their lands and move west of the Mississippi river. And during this time—the Trail of Tears era—the U.S. government amassed millions and millions of acres that belonged to the Cherokee, the Seminole, the Creek, the Shawnee, the Choctaw, the Lakota.

Robertson: The Trail of Tears era marks a dramatic transformation. The respect for and the possibility of tribal and non-tribal political communities coexisting vanished.

Cunningham: And for lots of these tribes—including, eventually, Standing Bear’s Ponca tribe—the place where they’re being forced to relocate is Oklahoma.

Robertson: The tribes ended up in Oklahoma because, at the time of the Indian Removal Act, this was the western limit of the United States. It's really as far as the tribes could be removed and still stay within the national limits of the United States. And I suppose some also thought that it might be useful to have the tribes in that southwestern corner of the U.S. as a buffer in case of military conflict with Mexico.

Cunningham: Around this time, there are two cases that go to the Supreme Court where the Cherokee Nation basically sues the state of Georgia for taking its land. And the opinion that comes out of the court gives us a window into how attitudes about tribes have fundamentally changed. Chief Justice Marshall decides the Cherokees aren’t a foreign nation, they’re a domestic dependent nation, resembling “a ward to his guardian.”

Robertson: It also introduced into Supreme Court case law this notion that the tribes were somehow, in some important way, inferior or incompetent to manage their own affairs. And by Standing Bear’s time, that notion had degenerated to the point that some people were thinking: Well now, maybe they're not even persons.

Cunningham: And so all of this has been building and building—or devolving and further devolving for decades—when, in 1879, Chief Standing Bear finds himself in that Omaha courtroom, arguing for his rights.

But before we discuss how his case played out, let’s wind back in time to the beginning of Standing Bear’s story, before his son’s death and his subsequent arrest—all the way back to when his tribe is kicked off their homeland.

Starita: It all begins on a very cold January day in 1877, when 700 Ponca were gathered in their winter camp along the Niobrara river; and out of the blue comes this strange white man from Washington, D.C., and he has this astounding announcement.

Cunningham: The tribe needs to hand over their land in this upper corner of Nebraska to the U.S. government and relocate to this thing called a reservation, nearly 600-miles south in Oklahoma.

Starita: Nobody among the Ponca could comprehend what they were hearing. This is land that they had lived on for more than 200 years. This is land that not one U.S. Senate treaty said they had, but two US Senate treaties said they were the legal owners of. Wendell Berry, the great Kentucky novelist and poet and essayist and environmentalist, once famously wrote that "if you don't know where you are, you don't know who you are."

Nobody understood this better than the Ponca. They had sunk this deep cultural taproot into this beautiful land. And most of all, this land contained their seven sacred burial grounds—one of which was in this magnificent formation of White Chalk cliffs that rose 300-feet high above the Missouri River. And among American Indians there is nothing, absolutely nothing, more sacred than where their dead are.

And so Standing Bear is listening to this, and the other eight sub chiefs are listening to this. And they are hearing that some stranger from some place far beyond their sacred burial sites is saying to them they have to pack up as fast as possible, clear out their houses, get rid of all their farming implements, saddle their horses and start riding 550 miles south to some abstract place they never heard of. This was profoundly shocking.

Cunningham: At first, Standing Bear refuses. But the U.S. Cavalry officers start blocking the tribe’s food and water supply. And so after several months of protest and pleading, they have no other options.

Starita: And they begin walking. They begin taking the first steps with bayonets to their back, saying goodbye to their beloved homeland, many of them weeping—both the men and the women. And they keep going and they keep going. And on the third day, a baby girl dies. She is six-months old. Her name is White Buffalo Girl.

And they keep going, and eight more people die. And then in July of 1877, they finally get to the Indian territory and they are unceremoniously dumped on the land. They no longer have any means of support. There are no housing supplements set up for them. There are no farming utensils. There is very little food. And the Ponca cluster in the ravines and the creeks; and it's July, and they are feeling a heat and humidity that they never have felt before.

And what they have in common—no matter which ravine or creek bank they are settled in—it is swarming with mosquitoes. The mosquitoes are carrying malaria. And within the first year of their forced removal from their beloved homeland to this scorching-hot red earth of Oklahoma, one third of the tribe has died.

And on Christmas week of 1878, after they'd been there about a year and a half, Standing Bear's only son—this beloved boy, 16-years-old, his name is Bear Shield—he is curled up in a fetal position on the bottom of the army canvas tent. And he too is dying of malaria.

Standing Bear had invested enormous energy and effort into trying to shape his son to become the next leader of the tribe. He wanted him to learn the ways of the white man. He thought the only chance they had to survive was to embrace and adopt some of the values of the more powerful external culture that was moving them from their beloved homeland to this hated scorched earth of the Indian Territory. So he had sent him to school to learn English. He had sent him to the White man's church to learn about the white man's God. He had done everything he could to position this boy to become the bridge from the old way of life to the new way of life.

Cunningham: But instead, his life ends here—in this cold Army tent.

Starita: And so on the afternoon of January 2, 1879, about 1 o’clock in the afternoon, Standing Bear dresses the body of Bear Shield in his finest clothes. He wraps his body in a buffalo robe.

Cunningham: And we know what happens next: The four-month, 600-mile journey back across the ice-covered plains. Only to be arrested, just short of the burial site. But for what, exactly?

It turns out the head of the U.S. Department of the Interior had heard that Standing Bear and some of the Ponca tribe left the Oklahoma reservation where they had been confined. And so he dispatched forces to round them up and force them to march all the way back to the reservation.

But there’s a man who stops this: Brigadier General George Crook. Crook is supposed to carry out the orders to force the tribe back to Oklahoma, now that they’ve been arrested. But he’s having trouble bringing himself to do it.

Starita: He is standing on the general's quarters when he sees these prisoners being marched along the lower parade ground at Fort Omaha, in late March of 1879. And he is shocked, he is physically sickened and shocked at what he's looking at. He's looking at 30 people who can barely walk. He's looking at women who are so severely frostbitten that clumps of their skin are hanging off of their elbows and their wrists like sacks of charred bacon. They stumble, they fall down, they get back up. They finally make it to the stockade, and he has a crisis of conscience as he is watching this.

Cunningham: So he telegraphs his superior—

Starita: General Philip Sheridan, in Chicago—a man who had famously said some years earlier that the only good Indian is a dead Indian.

Cunningham: And Crook says, what should I do?

Starita:  And General Sheridan immediately telegraphs back: What he should do with them is very simple. He should turn their faces south and march them back to the reservation they came. They have violated federal law. They are not citizens. They are not even legally defined as people. In March of 1879, they are legally defined as wards of the government and they have left their government reservation without permission—a violation of the law. Gather all 30 up turn them around March them straight back from where they came, because we do not want to set an example that just because some Indian is homesick, they can leave the reservation and start going home.

Cunningham: General Crook hears this from his superior, and he can't decide what to do. Follow orders? Go against them?

Starita: I can kind of imagine him pacing back and forth deep into the night. And finally shortly after midnight, he walks down to the stable, he saddles a horse, he gets on it, and under the cover of darkness he rides three miles south. He knocks on the door of what is then called the Omaha Daily Herald.

Cunningham: And here, he whispers in the ear of a local newspaper editor, Thomas Henry Tibbles. He says:

Starita: I think I have a story you might be interested in.

Cunningham: Tibbles interviews Standing Bear a few days later, and—

Starita: He starts banging out story after story after story about the injustice of the federal government preventing a devoted father from carrying out the last wishes of his only son.

Cunningham: And soon enough, the story has spread all across the country. It’s also roused the interest of a prominent attorney right here in Omaha—Andrew Jackson Poppleton. Brigadier General Crook, who’s already disobeyed orders to forcibly return the tribe, goes to this lawyer Poppleton.

Starita: And he suggests to him: Why don't you try filing a writ of habeas corpus?

Cunningham: By which he means, basically: Argue that Standing Bear was detained unlawfully. Make the court have to prove it had a valid reason for arrest (which is a right the framers included in section 9 of the Constitution).

Starita: Andrew Poppleton is intrigued with the constitutional dimensions that this could set off, because it's never happened before.

Cunningham: Not with an American Indian, that is—

Starita: The only thing missing is they have to find a federal judge. And there's only one federal judge in Nebraska in the spring of 1879. His name is Elmer Dundy. And Elmer Dundy is a grizzled frontiersman who has from all previous rulings indicated that he is no fanatical supporter of anything that has to do with Indians. And it also happens that he is out hunting grizzly bear in the spring of 1879, so they have to send out trackers into the wilderness to find this federal judge.

Cunningham: Poppleton and his law colleague John Webster are both working pro bono on Standing Bear’s behalf, and they eventually track down Judge Dundy.

Starita: And much to the shock of both Webster and Poppleton, this grizzled grizzly bear-hunting, Indian-hating judge agrees and accepts the writ of habeas corpus. So that sets in motion this chain of events that culminates in this historic, landmark civil rights trial that Standing Bear unwittingly has stepped into—when all he wanted to do was just get to those sacred white cliffs and bury his son and fulfill that promise.

But now he has two of the most powerful lawyers in the state of Nebraska representing him. He has a federal judge who has signed off on the writ of habeas corpus. And now a trial has been scheduled to determine whether or not an American Indian has a legal right to sue the government of the United States and ask for his freedom—ask the government of the United States, under what right does it have to keep him and his people in jail?

Cunningham: By the time of his case, in 1879, the United States had broken all 371 treaties it had made over the course of decades and decades with native tribes. And the only cases involving Native Americans that had come before the courts were about these land disputes, like Cherokee Nation v. Georgia. There had never been a civil rights case. So Standing Bear’s odds of convincing Judge Dundy he should be protected under the U.S. Constitution were not good.

Starita: When the gavel smacks down at 10 a.m. on May 1, 1879, on the third floor of a limestone courthouse on the corner of 15th and Dodge Streets, this courtroom is packed. It's packed with other judges. It's packed with other lawyers. It's packed with ladies. It's packed with gentlemen who have come in to see this historic event.

And when they enter this third-floor courtroom and they look around, they see something that they have never seen before—that no American has ever seen before. Seated at the plaintiff's table is a very powerfully built, middle-aged American Indian chief with an eagle feather in his hair, with otter braids, with a spectacular bear-claw necklace, with blue and red robes on, and deerskin moccasins.

He is seated at the plaintiff's table and across the way at the defendant's table is none other than Brigadier General George Crook, who is now the defendant in the case—even though he has secretly set all of this in motion.

Cunningham: Crook is the defendant here because technically he’s the commander under whose charge Standing Bear was arrested.

Starita: A young, green, inexperienced prosecutor by the name of William Lambertson is representing the federal government and representing General George Crook. And throughout the trial, he goes back time and time again to the central defense of his case, which is: Judge Dundy has grievously erred in granting this writ of habeas corpus because only a citizen—only an American citizen—can seek out a writ of habeas corpus.

Cunningham: And the lawyer’s point is Indians are not U.S. citizens. He keeps saying: Just look back at the famous Dred Scott decision by the Supreme Court two decades ago.

Starita: Lambertson is telling Judge Dundy: "The courts have already decided this case. If a black man has no legal standing in a federal courtroom, how could an Indian possibly have any legal standing in a courtroom?" And he circles back to that defense, time and time again.

Cunningham: And then it’s Poppleton’s turn to argue, on behalf of Chief Standing Bear.

Starita: And he goes to the judge and he says: "If you look at American law, if you read the law, it says specifically and I quote: Any person or parties can sue out for a writ of habeas corpus. So Judge, the only question now before you is whether or not Standing Bear is a person. That's the only thing you have to decide. Because the law is very clear on this.

"Either you are going to decide that Standing Bear is a person, entitled to the same constitutional rights as the more fortunate white race, or you are going to support and agree with the Dred Scott decision that was made 22 years ago. The law is very clear. A person, any person, can sue for a writ. So you have to decide if Standing Bear is a person. If you do, then he has to be set free."

Cunningham: The trial went on for two days. And as it’s wrapping up after 10 hours of closing arguments, Judge Dundy announces that something very unusual is about to happen. Standing Bear, an Indian, is about to address the court.

Wright: For many people there, they never heard an Indian talk before.

Cunningham: This is Ponca Chairman Larry Wright, Jr., again.

Wright: Standing Bear stood up when he was given the opportunity to speak, and he faced the audience. And he held out his hand and stood there for a while until the room was silent. And he made a speech, and he was talking to the judge. He said: "That hand is not the color of yours; but if I prick it, the blood will flow and I should feel pain. The blood is of the same color as yours. God made me and I am a man."

Cunningham: And then he goes on. Standing Bear describes not just that he bleeds the same blood, feels the same pain, was created by the same God. He also shares this poetic metaphor: He says he feels like he’s standing on the bank of a great river as a flood rises. On the other side is his homeland, freedom. He says:

Wright: "I see the light of the world and liberty just ahead. But in the center of the path there stands a man. Behind him I see soldiers in numbers like the leaves of the trees. If that man gives me the permission, I may pass to the life and liberty. If he refuses, I must go back and sink beneath the flood." And as he’s pointing at the judge, he says: "You are that man."

Cunningham: There was silence in the room. Silence among the lawyers, and the locals, the white men and women of Omaha, the journalists, the Ponca tribe members. Standing Bear sat back down. And Judge Dundy said: “Court is dismissed.”

Starita: Ten days later, the judge offered his opinion. He said he simply went to Webster’s Dictionary and looked up Webster’s definition of a person. And he wrote in his opinion that Webster describes a person as “a living soul, a self-conscious being, a moral agent, an individual of the human race.” This, the judge concluded in his opinion, is comprehensive enough it would seem to include even an Indian.

And so on May 12th, 1879, Standing Bear had done something historic. For the first time in the 103-year history of the United States, a federal judge had declared that an Indian from that point forward would have to be regarded as a person within the meaning of the law.

And it's one of the major reasons why many Native American people view Standing Bear through the lens of this case and see him as the Martin Luther King of Native American people.

Wright: And I think that shed a new light, maybe a brighter light, on the wrongs that were happening and how Indian country was being treated. At the time, I don't believe that that was in Standing Bear's thought process—I think at the time the fight was truly to be able to come back home where he lived, where he was born, where he was raised, where his people were buried, where he promised his son that he wanted to bury him. That to me is the legacy of Standing Bear.

And for our own people, that story is just at the basis of everything we do. But as a non-native or a non-Ponca member, anybody can relate to that story, just the human element of it. And that goes again to what Standing Bear said: The color of our skin doesn't matter. We all bleed the same blood, the same God made us all, and we may call him something different but we all come from that same place.

Cunningham: It was a landmark ruling—that Native Americans must be treated as human beings under U.S. law. But it was only a first step in an imperfect march forward. In 1887, less than a decade after Standing Bear’s case, the U.S. Congress passed the General Allotment Act, which gave the government authority to break up the remaining tribal lands.

Robertson: And this era, which lasted for decades, was devastating to the tribal land base.

Cunningham: Law professor Lindsay Robertson again.

Robertson: The tribes who were subject to allotment ended up losing in the neighborhood of 90 million acres of land. And in many instances, this was the most valuable land that they had possessed.

Cunningham: It also took another 50 years after Standing Bear for the U.S. government to recognize American Indians as citizens.

Robertson: In 1924, Congress passed the Indian Citizenship Act, which recognized finally all persons born in the U.S.—including Indians—as American citizens. But there are two ways to look at this. One is that this was something that should have happened ages before, finally tribal citizens will acquire the rights that all other citizens have.

The other way to look at it is as sort of the capstone for the assimilation movement, which is: Well now we've destroyed the land base. We've been attempting to educate them, suppress tribal languages, et cetera. Now we're going to absorb them into the body of American citizens as a final step in the destruction of separate tribal government.

Wright: You know, my father, my relatives, my elders, they were born Poncas; and during their lifetime, the federal government said you're no longer Poncas, you’re no longer Indians.

Cunningham: And yet even after being stripped of much of their tribal identity and way of life, many Native Americans still couldn’t fully participate in the U.S. system either. In some states, it would take decades and decades before they were able to get voting rights. New Mexico, for example, was the very last state to do so. It didn’t give Native Americans the right to vote until 1962.

Yet during this time, the Indian Rights Movement—which had really taken off in the 1800s, in part due to Standing Bear—it continued to grow and find new advocates for tribal autonomy and for self-determination. And among those advocates, ultimately, was a president of the United States.

Archival news clip: “President Nixon asked Congress today to help what he called the most deprived and most isolated minority group in our nation, American Indians. The president declared an end to a policy of 'suffocating paternalism' and proposed a series of actions, chief among them giving Indians control and operation of federal programs for their benefit."

Robertson: The great modern hero in federal Indian policy, in Indian self-determination, is Richard Nixon, who introduced the current policy of support for tribal governments, encouragement of tribal economic development, and encouragement of local self-governance by tribes of tribes.

Today we're still in the sort of Nixonian period—the self-determination era. We have 567 federally recognized tribes, each of them exercising powers of self-government, developing and supervising functioning economies. All tribal citizens today are dual citizens, recognized as dual citizens: citizens of their tribes and citizens of the United States.

Wright: I was born during that time when the Ponca tribe didn't exist. And through our elders’ efforts and the spirit of Standing Bear, if you will, they fought to get reinstated as a federally recognized tribe—as it had been since the beginning. And that's where we stand today.

You know, my children were born after that time and they were born Ponca again. So I feel that's something that continues to this day—that we still look to Standing Bear, as Nebraska Ponca especially, and what it represented to allow us to be back here in our homeland.

Cunningham: In every culture on earth, the concept of home is sacred and defining. It’s what underpins the very idea of a nation—this idea that there’s a connection between people simply because they share the same land; that soil shapes their identity.

Even today, in America, it means something to say you grew up in the Midwest. Or you grew up in the mountains. Or along the coast. The land, however many buildings and highways we’ve constructed on top of it, is a part of who we are.

Starita: The land has a spiritual component to it. Native Americans do not look at land and say: "That will make a great wheat field. That will make a great cornfield. That's an ideal spot to run an oil pipeline over." When they look at land, they see it as place. And when they see a place, they see it as having a spiritual value.

And that tension that was playing out on the Great Plains of America in the last quarter of the 19th century is still playing out on the Great Plains of America in the opening decades of the 21st century. Braided into the narrative arc of the story of Standing Bear are all the themes and all the values that we ourselves hold dear as people. In the end, Standing Bear was able to turn those questions around and hold a mirror up to the United States of America.

Cunningham: After the trial was over on May 12, Standing Bear was immediately freed. He left Omaha and set out again north, toward the plains of the Niobrara river and the White Chalk Bluffs. He carried the bones of Bear Shield now in a deerskin drawstring bag. He was walking home, to finish burying his son.


Many thanks to this week’s guests:

Ponca Chairman Larry Wright, Jr.

Joe Starita, professor at the University of Nebraska and the author of “I Am a Man: Chief Standing Bear’s Journey for Justice.”

And Lindsay Robertson, the Chickasaw Nation Endowed Chair in Native American Law at the University of Oklahoma.

The archival Nixon tape is courtesy of the Richard Nixon Presidential Library and Museum.

Fief and drum music is by Other Turner and the Rising Star Fief and Drum Band. Special thanks to Sharde Thomas and the rest of the Turner family for its use.

Our theme music and additional compositions are by Ryan and Hays Holladay. The original artwork for our podcast is by Michelle Thompson. And Ted Muldoon is my producer here at The Washington Post. Thanks to him.

If you like the show, we’d really appreciate if you’d rate and review us on whatever platform you’re listening to this. And if you want more info about the series, just go to

Thank you all so much for listening! Stay tuned next week for another episode of Constitutional.