Standingbear2One of the significant legal developments on the War on Terror was the extension of the right of habeas corpus – the ability to challenge what is believed to be an unlawful detention – to enemy combatants. Through the Hamdan v. Rumsfeld and Bormediene v. Bush decisions, the United States Supreme Court affirmed the ability of enemy combatants to address their detention through the federal court system. Even as early as the Civil War, the right was protected from presidential suppression in Ex Parte Merryman. 

Wartime decisions aside, the 1879 Standing Bear v. Crook decision stands as one of the most remarkable preservations of the right of habeas corpus undertaken by American courts. Praising the efforts of General George Crook while recognizing his duty to follow orders, the court nevertheless questioned the forced removal of peaceful Indians from land which they were invited to occupy. In stinging logic and common sense, Judge Elmer Dundy dispatched with the notion that Indians were not people and thus the protection against unlawful detention did not apply to them 

The Standing Bear decision developed in the aftermath of three treaties regulating the Ponca tribe’s reservation land. The first was signed in 1858 and recognized the Ponca tribe’s relinquishing of significant amounts of land in exchange for a small reservation near the Missouri River. The second treaty required the tribe to release additional tracts of their reservation to the United States government.

George CrookThe third treaty was signed between the United States and the Sioux. Without any involvement of the Ponca tribe, the Sioux treaty ended the Ponca’s right to live on their reservation and required their removal to Indian Territory.

Conditions in Indian Territory were horrible. According to Standing Bear, 158 tribe members died in the first year while many more grew sick. Forced to survive, Standing Bear resolved to leave Indian Territory and return to the homeland taken in the United States’ treaty with the Sioux. A band of followers joined him on his trek.

Unfortunately, much of this land was covered by the Omaha Reservation. Federal law vested Indian affairs commissioners with broad authority to control access to the various Indian reservations. Specifically, commissioners were authorized to detain anyone on a reservation without the permission of the federal government.

When federal officials learned of Standing Bear’s presence on the Omaha reservation, General Crook was ordered to forcibly remove Standing Bear and his followers to their allotment in the Indian Territory. Following orders, General Crook arrested Standing Bear and began the process of relocating his band to the Indian Territory.

Standing Bear challenged his detention and forced removal to Indian Territory. According to his attorneys, the forcible removal to Indian Territory exceeded the government’s lawful authority. Instead, due process required that upon arrest, Standing Bear and his followers should have been turned over to civil authorities for trial and if guilty, punishment. As this process was not followed, habeas corpus became the vehicle to challenge his detention by General Crook.

The government disagreed that habeas corpus provided any relief. Based on a tortured analysis of English common law, the government argued that because habeas corpus was only available to “free subjects” of Great Britain, the right was not available to non-citizens in America. Native Americans were not made full United States citizens until 1924.

DundyJudge Dundy was not persuaded by the government’s position. Noting that the United States’ habeas corpus statutes referred to petitioners as “persons” or “parties,” the judge resorted to the common meaning of such terms to determine whether such language limited the application of habeas corpus to only American citizens. Finding that common usage of terms such as “person” were defined as “living souls,” he declared that “the comprehensive language used in [the habeas corpus statutes were] intended to apply to all mankind as well as the [petitioners] and the more favored white race.”

With these words, Judge Dundy declared that Indians were people. While such a statement may seem beyond obvious today, Judge Dundy’s own introduction to his decision illustrates the novelty of his ruling. For example, in an attempt to shame the government’s position, he describes the Indians as “weak, insignificant, unlettered and generally despised race.” The tone of Judge Dundy’s decision reflects his disagreement with these words.

From this point, the decision almost rendered itself. As habeas corpus applied to Standing Bear’s detention, such detention had to be lawful. In order for the detention to be lawful, he had to be delivered to civil authorities for trial. Rather than pursue this course, the government ordered General Crook to transport Standing Bear and his followers directly to Indian Territory rather than any civil authorities.

Standing Bear was released from General Cook’s custody soon after the decision. While significant work still had to be completed to raise Native American’s position to a more equal basis with other Americans, the Standing Bear decision remains a foundational block on the crawl to equality.