United States ex rel. Standing Bear v. Crook

Having received funding and direction from the federal government, Indian agents from the BIA began seeking land in 1877. Among a group of Ponca that traveled to Indian Territory with the agents to find land was a respected tribal leader named Standing Bear. Greatly discouraged by what they saw, the group abruptly returned to the Ponca reservation. However, by the end of April a large group of Poncas were convinced to move and left for their new home. Fearing that Standing Bear and his brother were serving as a disruptive force with the remaining Ponca, the Indian agent directed the military to arrest and confine them. With Ponca resistance somewhat defused, the last group, including Standing Bear, began their journey southward in May. Conditions along the journey were harsh and Standing Bear's daughter died on the trip. In their new home, the Ponca found that no reservation had yet been established apart from other tribal lands. Through 1878, with the lack of housing and little government support for cultivation, many died, including a son of Standing Bear. Distressed, he and over 20 others left in January of 1879 to return home. Upon arrival at the Omaha Reservation en route to their homeland, they were arrested in a strictly military operation and taken to Fort Omaha, Nebraska, with the intent of being sent back to Indian Territory.

Lawyers for Standing Bear filed for a writ of habeas corpus, a request that a person being detained be brought before a court to review the legality of the imprisonment, with the U.S. Circuit Court of the District of Nebraska. Standing Bear argued before Judge Elmer Dundy that, having committed no crime and not being informed why he was arrested, he should be released. He also claimed to no longer be a member of the Ponca, having left the tribe in Indian Territory so as to adopt "the general habits of the whites" and become self-sufficient. General George Crook, on behalf of the United States, responded that the Ponca prisoners were still members of the tribe and had disobeyed Indian agent orders to settle in Indian Territory and pursue "the habits and vocations of civilized life." Crook, using the 1857 Dred Scott slavery case findings, argued that Indians, like blacks, did not possess rights to sue in federal courts as part the Fourteenth Amendment's Due Process Clause. He contended only U.S. citizens could request writs.

With an Indian suing a U.S. Army general for the first time in the federal courts, the trial received national attention. Judge Dundy ruled on several key points. First, Dundy found that U.S. habeas corpus law applied "to all mankind" without requirement of citizenship, and that "even an Indian" is a person under the Webster Dictionary definition. Dundy wrote that when "a person is charged we do not inquire upon the trial in what country the accused was born nor to what race he belongs." Therefore, Dundy continued, "it would, indeed, be a sad commentary on . . . our laws, to hold that Indians . . . cannot test the validity of an alleged illegal imprisonment." Therefore, Standing Bear could bring the lawsuit. Second, Dundy found that all persons in the United States had the "natural and inherent right . . . to . . . life, liberty, and pursuit of happiness." Therefore, Standing Bear had the legal right to withdraw from tribal membership. Third, Dundy assessed whether the United States had legal power to dictate to Indians who were not members of tribes where to live. He could not find any law or treaty that gave the United States that power.

Dundy concluded that the United States could use military force to remove a person from a reservation, but law required the person be turned over to civilian custody after removal, which had not happened with Standing Bear. The army had no broad authority to detain Indians without full civilian due process protections. Dundy wrote, "In time of peace no authority, civil or military, exists for transporting Indians from one section of the country to another, without the consent of the Indians, nor to confine them to any particular reservation against their will." Dundy ordered Standing Bear and the other Poncas "discharged from custody." Crook filed an appeal, but the United States decided to drop the case.