Standing Bear

More contradictions, sovereignty and personhood

More contradictions, sovereignty and personhood

by Lillian Jamison-Cash -
Number of replies: 0

As Nagle points out, Standing Bear has several parallels with Dred Scott: “In both Dred Scott and Johnson, the Court relied on inferior racial classifications to strip blacks and Indians of their inherent right to their own body and physical property – while simultaneously justifying the creation of an extraconstitutional property right in whites” (Nagle, 465). Though as Nagle also pointed out, the difference is that the Court still sites Lone Wolf and not Dred Scott (Nagle, 481). Both justified federal authority on notions of racial inferiority, which determined that they had no place in court.

The Court, with a firm notion of black slaves as property, had no precedence and no idea how to rule on Indians – who were not technically slaves but similarly treated as racially inferior under the letter of the law. Slaves are not persons who can appear in court because they are property – this then begs the question of how it was justified that Indians should not appear in court. The federal government had entered into treaties with Indians, yet simultaneously did not consider them as people, so the treaties were often broken. Congress got around this in 1871 by forbidding treaties and enacting instead laws which governed Indians.

One question I was left with about Standing Bear was about the proof that he presented in court to prove that he could file the writ of habeas corpus. If he could file the writ as someone who had voluntarily left the reservation and no longer wanted to return, what kind of precedent does this set? Standing Bear and his attorney’s argued that since he had voluntarily extracted himself from his reservation, Crook had no right to arrest him. How was Standing Bear able to return to his reservation later? What would Judge Dundy have said about an Indian who was not intending to renounce his status as Indian, as Standing Bear did?

This case is a landmark moment because it recognized the personhood of all Indians under the law – importantly, under the law of the United States. Standing Bear was not allowed to appear in court as a citizen of a foreign nation. This case therefore delineates Indians as under United States law, perhaps further stripping them of their sovereignty and anticipating the plenary power doctrine and the “political question” doctrine. As Indians became more subjugated to U.S. laws (i.e. with Congress’s act in 1871), they gained no more political rights in the American system and simultaneously lost their own self-governance.

This case provokes the larger ethical question of who constitutes a person. Before Standing Bear Indians could be arrested, but not tried in court. In order to avoid a contradiction, the justice system had to rely on the trust responsibility and plenary power – Indians were people, simply people that the federal government had control over and a responsibility towards. “Judge Dundy ruled that the classification of Indians as racially inferior ‘wards’ did not grant the government unlimited authority to deny an Indian his basic rights under the law” (Nagle, 472). It’s also not a contradiction because the plenary power doctrine is extraconstitutional.

I find it highly instructive that corporations were considered people that could be tried in court, but Indians could not. The federal government still exercises the power to categorize Indians today, as some tribes are federally recognized and some are not.