Unavoidable Contradictions

Unavoidable Contradictions

by Daniel Orr -
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Relying upon the political question doctrine Chief Justice Marshall ruled in Cherokee Nation v. Georgia that the Cherokee Nation had no place in a court of law. The Court’s reasoning appealed to two sections of the Constitution and treaties between various Indian nations and the United States. In laying out the judicial powers, the Constitution states that judicial authority extends to cover conflicts between states of the Union, or citizens thereof, and foreign nations, and citizens or subjects thereof. The Cherokee’s case was dismissed after the court had reasoned that their tribe, although a political state, could not be considered a state of the Union or a foreign nation.

Nebraska District Attorney Genio Lambertson made his case in Standing Bear v. Crook based upon the precedent established by Cherokee Nation.  Because Standing Bear was a member of the Ponca tribe, and as a consequence not a citizen of any state or foreign nation, he had no place before the court, as Marshall had decreed forty-eight years earlier. Lambertson’s argument was overturned by Judge Dundy’s definition and interpretation of the writ of habeas corpus. Constitutionally, the right to sue out of habeas corpus was given to all “persons,” regardless of citizenship. The Judge then read out the Webster Dictionary definition of person, determining that the definition was expansive enough to include Indians (and most likely would have been broad enough to include their legal status as wards, pupils, or even savages.) Consequently, the writ of habeas corpus held true for Standing Bear, and his case fell under federal court jurisdiction.

Between these two cases, there appears to be a contradiction within Indian Law. Because of Judge Dundy’s ruling, responding directly to District Attorney Lambertson’s citation of Cherokee Nation, the legal conclusions of each case are at odds. Marshall declared that Indians, and Indian Nations, had no place to sue in the courts. Yet Dundy declares that all persons have the right to sue out of habeas corpus. Perhaps the Judge meant for this to be only an exception, rather than to contradict Marshall’s ruling. But either way, the two decisions are inconsistent.

There are three possibilities for what caused this situation. 1) “Person” as defined by the Constitution does not extend to include Indians (and ample evidence exists to support the idea that its writers held restrictive notions of personhood.) If this is true, Judge Dundy’s decision would either be a misinterpretation of the writ of habeas corpus as established in the Constitution, or an extension on his own part of the term “person” beyond its original meaning. 2) The Judicial Branch was not explicitly denied the authority to oversee conflicts involving Indian Nations or their citizens, and Chief Justice Marshall unfairly limited his own federal power. If “person” had been intended to include Indigenous peoples, then it’s highly probable that framers of the Constitution would have expected Indians to be subsumed in the clause outlining judicial jurisdiction as either citizens of states of the Union or foreign nations. John Marshall’s construction of the domestic dependent nation and the subsequent trustee relationship would have had no constitutional basis, and he would have curbed judicial power over a significant part of the inhabitants of U.S territory (this despite his earnest efforts to affirm federal power.) 3) Those who wrote the Constitution did intend to exclude Indians from the rights to sue in court but still considered them “persons” to whom the writ of habeas corpus applied. This of course would be a contradiction inherent to the Constitution itself and in the minds and intentions of the framers themselves, and does not seem likely.