On this date in 1879, a US judge declared that “an Indian is a person” and may not be imprisoned (so long as they renounce their Indian ways).
Following two decades of some of the most genocidal “extermination” policies, the US government, at least in one courtroom, paused. Standing Bear had left his reservation in Oklahoma without permission. He had traveled back to the Niobrara River valley in Nebraska to bury his son. The funeral procession ended up in jail and Standing Bear ended up in court. US District Judge Elmer “Skip” Dundy then turned US law and policy on its head with his ruling before a packed courtroom at Fort Omaha:
Standing Bear vs George Crook, Brigadier-General of the Army of the US.
“During the fifteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under consideration. On the one side we have a few of the remnants of a once numerous and powerful, but now weak, insignificant, unlettered and generally despised race. On the other, we have the representative of one of the most powerful, most enlightened, and most christianized nations of modern times. On the one side we have the representatives of this wasted race coming into this national tribunal of ours asking for justice and liberty to enable them to adopt our boasted civilization and to pursue the arts of peace, which have made us great and happy as a nation. On the other side we have this magnificent, if not magnanimous, government, resisting this application with the determination of sending these people back to the country which is to them less desirable than perpetual imprisonment in their own native land.
The petition alleges in substance that the relators are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn from the tribe and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty, by order of the respondent, George Crook.
Webster describes a person as ‘a living soul; a self conscious being; a moral agent; especially a living human being; a man, woman or child; an individual of the human race.’ This is comprehensive enough, it would seem, to include even an Indian.
The reasoning advanced in support of my views, leads me to conclude:
First. That an Indian is a Person within the meaning of the laws of the United States, and has therefore the right to sue out a writ of habeas corpus in a federal court or before a federal judge, in all cases where he may be confined, or in custody under color of authority of the United States, or where he is restrained of liberty in violation of the constitution or laws of the United States.
Second. That General George Crook, the respondent, being the commander of the military department of the Platte, has the custody of the relators under color of authority of the United States, and in violation of the laws thereof.
Third. That no rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do.
Fourth. That the Indians possess the inherent right of expatriation as well as the more fortunate white race, and have the inalienable right to ‘life, liberty and the pursuit of happiness,’ so long as they obey the laws and do not trespass on forbidden ground. And
Fifth. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered.”
And so Standing Bear was released.