Standing Bear v. Crook: the Case for Equality Under Waaxe's Law

• Publication year: 2022

45 Creighton L. Rev. 455. STANDING BEAR V. CROOK: THE CASE FOR EQUALITY UNDER WAAXE'S LAW

STANDING BEAR V. CROOK: THE CASE FOR EQUALITY UNDER WAAXE'S LAW

Mary Kathryn Naoleft(fn*)

This hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be of the same color as yours. I am a man. The same God made us both. Chief Standing Bear, Standing Bear v. Crook, May 1879.(fn1)

In 1879, a full seventy-five years before the United States Supreme Court issued its decision in Brown v. Board of Education,(fn2) a Ponca Indian Chief stood up in federal court and made one of the most powerful appeals for equality under the law in the history of this nation. In a federal court tucked away in the bustling cow town and railroad hub of Omaha, Nebraska, Chief Standing Bear extended his hand and made a speech.(fn3) It was a simple speech-but powerful in its appeal. By extending his hand and acknowledging that it was not white in color, Standing Bear asked the court to find he was a person under the law-despite the fact that he was an Indian in race.

The effect of Chief Standing Bear's words in the courtroom was palpable-leaving many courtroom observers in tears. Judge Elmer S. Dundy was not immune to the Chief's powerful plea. On May 12, 1879, ten days after the close of arguments, Judge Dundy issued his decision declaring Chief Standing Bear, and all Indians in the United States, to be persons under the law.(fn4) It was the first time a judge had ever recognized a Native American's right to sue out the writ of habeas corpus in a federal court.(fn5) It was the first time a federal court had found that an Indian's race did not justify the government denying him the same rights under the law as whites.

To be sure, Judge Dundy's decision in Standing Bear v. Crook(fn6) is, doctrinally, the equivalent of Brown v. Board of Education. Today no one questions that the "separate but equal" doctrine announced in Plessy v. Ferguson(fn7) was unconstitutional because it was premised on the notion that blacks were racially inferior to whites-and consequently, could be treated differently by the government. Furthermore, no one today questions that Brown rejected and eradicated the discriminatory racial classification inherent in Plessy's separate but equal doctrine. Likewise, in Standing Bear v. Crook, Judge Dundy concluded that Indians have the same rights under the law as whites-despite the numerous contemporaneously controlling Supreme Court precedents stating that Indians were racially inferior to whites and therefore did not enjoy the same rights under the law.(fn8)

In this nation's first significant civil rights case, Chief Standing Bear argued, and Judge Dundy agreed, that labeling an entire race "inferior" could no longer form the basis for the government's denying a person of that race his basic human rights under the law. Thus, almost two decades before the Supreme Court would first introduce its separate but equal doctrine in Plessy v. Ferguson, Chief Standing Bear and Judge Dundy, together, had already deconstructed the doctrine's basic premise.

I. INTRODUCTION

It seems to me an odd feature of our judicial system that the only people in this country who have no rights under the law are the original owners of the soil.

Brig. Gen. George Crook, Defendant in Standing Bear v. Crook.(fn9)

Although he should now be recognized as one of our most important civil rights leaders, Chief Standing Bear certainly never set out to be one. It is true that the Chief wanted to see his people treated with equality before the law, but he did not set out on his six hundred mile march north back to Nebraska to make a political statement. Instead, Standing Bear decided to break federal law and leave the reservation in Indian Territory because he wanted to carry the bones of his son back to the Niobrara River. He simply wanted to bury his son with his ancestors.

The story of this nation's first civil rights decision begins in the mid-nineteenth century. In a span of just fifty-two years, the federal government signed four separate treaties with the Ponca Nation in what is now present day Nebraska, each time taking more land in return for false promises of monetary payments that the Ponca never received.(fn10) When the federal government finally decided to forsake these treaties and take all of the Ponca's land, it forced the Ponca at gunpoint to walk more than six hundred miles south to "Indian Territory."(fn11) Thus, in May of 1877, followed by soldiers bearing bayonets, the Ponca set off on a fifty-five day journey across two states.(fn12) When they finally reached present-day Oklahoma in July, the Ponca had lost nine of their people (including Chief Standing Bear's daughter Prairie Flower), survived two tornadoes, witnessed the attempted murder of their principal chief, and said goodbye to their entire ancestral homeland.(fn13)

After just six months in the new land, malaria spread among the Ponca and they soon lost more than one-fourth of their tribe.(fn14) One of the fallen was Chief Standing Bear's son, Bear Shield.(fn15) As he lay dying, Bear Shield asked his father to promise that he would bury his bones with the bones of their ancestors, along the banks of their beloved Niobrara.(fn16) Bear Shield's father kept his promise.

In the middle of a frigid winter's night in January 1879, with the bones of his son wrapped carefully in a box, Standing Bear set out on a six hundred mile walk to the north-back to the banks of the Nio-brara.(fn17) Traveling by foot in the dead of winter, Chief Standing Bear and twenty-nine other Ponca survived off of the corn and coffee they received from farmers in Kansas along the way.(fn18) When they reached Nebraska, the Secretary of the Interior, Carl Schurz, ordered General Crook to arrest and imprison them at Fort Omaha.(fn19) By leaving the reservation without the federal government's permission, Chief Standing Bear had defied the government and broken federal law.(fn20)

In a story that demonstrates the best and worst of what we know to be the human condition, General Crook, with the help of journalist Thomas Henry Tibbles, recruited two attorneys from Omaha to file a writ of habeas corpus on Standing Bear's behalf.(fn21) In response to the writ, Mr. Lambertson, the United States Attorney, argued that by the very words of the habeas statute Congress had reserved the right to file the writ to "those persons unlawfully detained."(fn22) Mr. Lambertson argued that Standing Bear was not a person because he was an Indian, therefore, he had no right to sue out the writ in a court of law. To support his case, Mr. Lambertson noted that in Dred Scott v. Sand-ford,(fn23) Justice Taney held that Indians, like blacks, were also racially inferior-Justice Taney referred to them as "savages" and "wards" of the government-and therefore they did not have the same rights as whites to sue for their rights in a court of law.(fn24)

Dred Scott was not the only United States Supreme Court case on the government's side. From Johnson v. McIntosh(fn25) in 1823 to Cherokee Nation v. Georgia(fn26) in 1831, the Supreme Court had consistently labeled Indians as "savages," "heathens," and "wards," and the Court consistently declared that Indians did not have the same rights as whites to protect their rights to life, liberty, property, and due process in a court of law.(fn27) In Cherokee Nation v. Georgia, the Supreme Court declared that it had no jurisdiction to hear the Cherokee Nation's case or controversy because an Indian's "appeal was to the tomahawk"- and not a court of law.(fn28) In 1879, all of the applicable Supreme Court precedent supported Mr. Lambertson's argument that an Indian, due to his racially inferior status in American society, could not be a person under the law.

Judge Dundy, however, thoroughly considered and dismissed the U.S. Attorney's arguments.(fn29) That is, seventy-five years before the Supreme Court applied principles of equal protection to declare the separate but equal doctrine of Plessy v. Ferguson(fn30) unconstitutional, a federal district court determined the Supreme Court's racial classification of Indians as inferior "wards" of the government denied Native Americans equal rights under the law.(fn31) Thus, by declaring the Supreme Court's classification of Indians as "untutored" and "savage" a constitutionally irrelevant basis for denying Indians their basic rights under federal law, Judge Dundy's decision signified for Indians what the Supreme Court's decision in Brown v. Board of Education(fn32) would signify for blacks in 1954.

Furthermore, by denying the government's argument that an Indian's basic liberties should be restricted on the basis of his racially inferior status in society, Judge Dundy firmly denounced the very foundation for the Supreme Court's sole constitutional mediating principle in Indian Law: the "plenary power" doctrine. Effectively, Judge Dundy's decision rejected the fundamental basis for what the Supreme Court would later define as the plenary power doctrine.(fn33)

The Supreme Court first fabricated this doctrine in its 1886 decision in United States v. Kagama,(fn34) and later more clearly articulated and even named it the plenary power doctrine in Lone Wolf v. Hitch-cock(fn35) in 1903.(fn36) Since 1903, the plenary power doctrine has constituted the...