Tuesday, June 3, 2014

American Indians and the Law Part 3

Troy D. Smith

Welcome to part three of this series dealing with American Indians and the courts. If you missed them, you can go back and check out PART ONE and PART TWO.

As promised, from this point I am going to discuss some especially important legal cases that took place in the post-Civil War American West. Most of these cases are at least partially linked to precedents set in the Marshall decisions in the era leading up to the Trail of Tears, but further refined legal concepts introduced in those earlier rulings. We will begin with one of those (unfortunately) rare cases that has kind of a happy ending for the indigenous people involved.


If you are familiar with Western history and particularly the Indian Wars, you might immediately wonder if the "Crook" in question was General George Crook, who at various times opposed the Sioux and fought against Geronimo's Apaches. The answer is yes, THAT Crook. But who was Standing Bear?

Standing Bear was a Ponca Indian- a small tribe who had long lived in what would later be Nebraska. In 1877 they were forcibly removed to Indian Territory (Oklahoma.) About a third of the tribe perished upon arriving, many of starvation, including Chief Standing Bear's son. Standing Bear had promised his son that he would bury him in their Nebraska homeland, so when his son expired the chief and a Ponca contingent left the reservation and traveled north to do just that. General Crook was ordered to Nebraska to arrest them.

The general, however, was sympathetic to their plight, especially after he heard about the abysmal conditions on the reservation to which they had been removed. He arranged to get legal counsel for the chief, and they agreed to work pro bono. Susette La Flesche also agreed to help, serving as interpreter; La Flesche was a well-educated Native American woman who was married to an Omaha newspaper editor. Soon Standing Bear's story was being spread around the country, to mostly sympathetic ears.

Standing Bear's counsel sued for a writ of habeas corpus -that is, to have a hearing to be released from unlawful detention without evidence or cause. General Crook, even though he was sympathetic to Standing Bear's cause, was named as defendant because technically he was the government agent holding him under arrest. The case was heard in district court in Omaha.

Standing Bear was allowed to testify on his own behalf, and -raising his right hand -said: "That hand is not the color of yours, but if I prick it, the blood will flow, and I shall feel pain. The blood is of the same color as yours. God made me, and I am a man."   

The judge ruled in Standing Bear's favor. These were the five principle points of the judge's decision:

"First. That an Indian is a person with the meaning of the laws of the United States, and has therefore the right to sue out a writ of habeas corpus in a federal court and before a federal judge, in all cases where he may be confined, or in custody under color of authority of the United States, or where he is restrained of liberty in violation of the constitution or laws of the United States.

Second. That General George Cook, the respondent, being the commander of the military department of the Platte, has the custody of the relators [the Poncas] under color of authority of the United States, and in violation of the laws thereof.

Third. That no rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do.

Fourth. That the Indians possess the inherent right of expatriation as well as the more fortunate white race, and have the inalienable right to 'life, liberty and the pursuit of happiness,' so long as they obey the laws and do not trespass on forbidden ground. And

Fifth. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered."

In other words, Standing Bear and his contingent were free to go, and free to bury his son.

On a larger level, though, there were much broader implications. The biggest one was: An Indian is a person, according to law.  As a person, even though not American citizens (that didn't come until 1924, despite the Fourteenth Amendment stating that anyone born on American soil was an American citizen), Indians therefore have "natural rights" such as "life, liberty, and the pursuit of happiness." And individual Indians, if detained for no justifiable reason, have recourse to the courts.

Of course, there was still a long way to go, and a lot of legal points to be decided. One of them -one of the biggest, in fact -is: who has jurisdiction on an Indian reservation, the Indians or the federal government? Next time we'll look at a couple of cases that helped refined the court's official approach to that question.

You might also enjoy reading my blog series "Writing About Indians When You're Not One," which I will be adding to soon. Here are the topics we've covered there:


You might also want to check out these fictional works with American Indian themes, available at amazon, smashwords, and barnes and noble...

TROY D. SMITH is an assistant professor of history at Tennessee Tech University, where he teaches American Indian History, American Indian Law, Environmental History, and Cherokee History.


  1. Wow. The things you learn. I had no idea that Indians were not considered people until 1924! That is just mind boggling to think about. Troy, I always enjoy these posts of yours so much--I learn so many things from them.

    I see you also have some new stories out I wasn't aware of! Thanks for posting those, too.

  2. Dr. Troy,

    Must be great to be a University Professor! Not so great of course, when a fact goes wrong.

    I knew that our past history and treatment of American Indians was very convoluted and tragic. Will be reading and following each word you write about this subject.

    I knew the Fourteenth Amendment was written so that blacks could own land and be declared citizens. The fact that American Indians were left out, proves the continuing deplorable state of Native Americans on American soil.

    Thank you for your academic knowledge and continued posts about this subject.

    There is nothing stronger than facts and the real truth about a subject terribly misunderstood and distorted for so many years.

    Charlie Steel

  3. The other day was the 90th anniversary of the American Indian Citizenship Act, Cheryl. Know what finally got it done, at least in part? The loyal military service of SO MANY American Indians in WWI, even though they weren't citizens.

    1. WOW. That is pretty humiliating for the government of the US. But I'm sure they never even saw it that way--probably just thought, "Well, I guess we better do something or else they'll stop volunteering as canon fodder." UGH.

  4. In every war since WWI, American Indians have had the highest military service percentage of any group in America.

  5. I have read and been fascinated with Standing Bear and his court case since I started researching and performing as Helen (Hunt) Jackson. Her name is linked with that of Standing Bear and if information is correct the reason she became involved with the Indians and their 'fights'. Doris