In theory the US Constitution establishes a nation of individual rights, due process, limited government, and equality before the law. However, since the inception of the US, Indians have been discriminated against based on their race and an incorrect stereotype as savages who do not farm the land they live on. The Marshall Trilogy introduced the legal rationales, and throughout the 19th century, Congress and the White House arbitrarily forced Indian tribes to move on account that they were not legal persons with constitutional rights, akin to slaves in the Dred Scott era.
After Ponca Chief Standing Bear was arrested by federal agents for leaving his reservation to try to bury his son, attorneys John Webster and Andrew Poppleton helped him sue for a writ of habeas corpus in federal district court in Nebraska. In what is still considered a landmark decision today, Judge Elmer Dundy ruled that Indians were legal persons, and thus possessed certain natural rights. Dundy asserts: “An Indian then, especially off from his reservation, is amenable so the criminal laws of the United States the same as all other persons. They being subject to arrest for the violation of our criminal laws and being person such as the law contemplates and includes in the description of parties who may sue out the writ, it would indeed be a sad commentary on the justice and impartiality of our laws, to hold that Indians, though natives of our own country cannot test the validity of an alleged illegal imprisonment in this manner, as well as a subject of a foreign government who may happen to be sojourning in this country but owing it no sort of allegiance.”1 In his opinion Dundy uses what resembles the Lockean argument that all men are born free and endowed with unalienable natural rights of life, liberty, and property. Previously, that argument had been used by John Marshall to relegate Indians to a status below citizenship and personhood—since only civilized, agricultural whites held such rights. In a twist Dundy simply reverses and corrects the racist conclusions of Johnson and Cherokee Nation.
It seems that in recognizing the legal personhood of Indians for the first time in US history, Dundy implicitly returned to an original interpretation of the Constitution. After all, the Fifth Amendment states: “No person shall […] be deprived of life, liberty, or property, without due process of law.”2 Clearly due process, of which the writ of habeas corpus is a part, is not available only to those with citizenship or a specific racial makeup. In addition, the Fourteenth Amendment applied the Fifth to former slaves and colored people in general. Seven years later in 1886, the Supreme Court ruled that the Fourteenth Amendment gave corporations constitutional protections as they were legal persons. Thus in Standing Bear Dundy restored the original meaning of the Fifth Amendment, applying its protections to Indians. The writ of habeas corpus extends to all who fit the denotative dictionary definition of persons, which is basically the biological or physiological meaning: a living, breathing, moving human being.
The tragedy of Standing Bear lies in procedure. Since the decision was issued by a district court, the Supreme Court simply ignored it in the future. In fact, in Sagawa and Lone Wolf, the Court invented a doctrine of plenary power to allow Congress to have unlimited authority in regulating the life and liberty of Indians. Today, Standing Bear has nearly vanished in the legal and political curriculums of students. Its holdings were so revolutionary, so epiphanic, so correct—that the supreme judges of the land have chosen to overrule and overshadow it, to the great detriment of the welfare of millions of Indian persons.
1. Standing Bear v. Crook, 25 F.Cas.
2. U.S. Constitution. Amend. V. Print.