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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 entitled 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 entitled 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.

Technically, Dundy’s decision applied only to Standing Bear and his companions. If, however, the Supreme Court upheld his decision, it would apply to American Indians nationwide. The Hayes administration feared that, because of the wrongs done to the Poncas, not to mention the legal basis for Standing Bear’s case, the Supreme Court might well uphold Dundy’s decision.

The case reverberated in other directions as well. It stirred public sentiments regarding the treatment of Indians. The Senate launched an investigation into the manner in which the Poncas had been relocated (at which no one testified about the Senate having ratified a treaty with the Sioux that conflicted with a treaty with the Poncas). At these hearings, the most significant reverberation of Dundy’s decision was voiced by Interior Secretary Schurz. Asked about the future security of tribal lands in the Indian Territory, he answered:

I have no doubt that, in the course of time, the land in the Indian Territory not occupied by Indians, will be occupied by whites. But there are certain things that ought to precede that development. The title to the lands occupied by the Indians ought to be … divided among the Indians in severalty … each upon his own farm, like the white people, and get individual titles.… When such an arrangement as this has once been made, the question whether that part of the Indian Territory not occupied by Indians shall be open to occupation by whites changes entirely.

To shift Indian land from tribal ownership to individual ownership—and with it, the right of each Indian to sell his land—would end the tribal way of life in all but its spiritual aspects (the dismantling of which was being handled by missionaries and their schools). On the other hand, as tribes had increasingly been forced to relinquish good land for desolate land in return for payments,