By Daniel M. Cobb, Ph.D., The University of North Carolina, Chapel Hill
Native people continued fighting for their rights and their land during the late 19th and early 20th centuries. They even fought the very legal system that had done much to dispossess them. They used the ‘courts of the conqueror’ to demonstrate that the conquest was not complete.
The Case of Standing Bear
In 1877, more than 600 Ponca people were forcibly removed from their ancestral home along the Niobrara River in present-day Nebraska. They endured a terrible march several hundred miles south to the Quapaw Agency located in the northeast corner of the Indian Territory. And the Ponca faced incredible hardship there.
By the spring of 1878, one-third of the Ponca people had died. Among the victims was the son of Standing Bear, a Ponca chief.
Honoring his son’s last wishes, Standing Bear and more than 60 other Poncas left the reservation to bury him along the Niobrara River. As soon as the beleaguered contingent reached their Omaha kin in Nebraska, Standing Bear was arrested by the U.S. Army and detained for leaving the reservation without the federal agent’s approval.
Standing Bear fought back. Aided by a local newspaper editor, two lawyers, and the Omaha siblings Susette and Francis La Flesche, Standing Bear sued for a writ of habeas corpus—a court order that demands legal justification for a detention. Standing Bear argued that he was a person under United States law, had been unlawfully detained, and deserved a fair trial. He had his day in court. And on May 12, 1879, Standing Bear won.
Bureau of Indian Affairs
The legal system had done much to dispossess Native people. In 1823, Supreme Court Chief Justice John Marshall referred to it as the courts of the conqueror. Like Standing Bear, however, many Native people used these very same courts to demonstrate that conquest was not complete.
At the local level, Bureau of Indian Affairs agents exercised tremendous power. They could outlaw traditional ceremonies and dances; they could imprison or withhold rations from people they deemed intransigent; they made the decisions about whether Native people could lease or sell their lands and whether they could have access to their own money.
Indian Affairs agents worked to undermine traditional leaders and imposed foreign systems of law and government. They even had their own police force staffed by people from the community they sought to control.
Learn more about the commonly held views of Native Americans.
Divisions in Lakota Kin Groups
Between 1851 and 1877, the Lakota land base was reduced by treaties and congressional acts from 134 million acres to less than 15 million acres. Allotment led to even more land loss.
Throughout this time period, the Lakota were divided over how best to deal with the unprecedented challenges they faced. Some Lakota resisted militarily, winning victories and suffering defeats along the way. Others chose an accommodationist path, believing that diplomacy and treaty-making afforded the best avenue for their people’s survival.
Lakota kin groups were torn apart in the process, and even as they sought to restore their communities during the early reservation period—deep divisions endured.
Tensions grew within Lakota communities, and among the 10,000 Brulé Lakota living in traditional camps around the Rosebud Agency, they ended in murder.
This is a transcript from the video series Native Peoples of North America. Watch it now, on Wondrium.
Spotted Tail and Crow Dog
In 1880, the Brulé chief Spotted Tail—who had fought against the United States during the 1850s, but later advocated for accommodation and was recognized as a chief—exercised control over the Indian police force, much as a traditional leader would have before reservation times.
Other Lakota disagreed with Spotted Tail’s strategy of accommodation, even if it was done in the name of protecting Lakota land and sovereignty, and they challenged his authority.
One of them was Crow Dog, a Brulé bandleader who had twice served as captain of the agency Indian police.
There appeared to be a personal dispute between Spotted Tail and Crow Dog in play, as well. The conflict ended with Spotted Tail being gunned down by Crow Dog a few miles outside of the Rosebud Agency in August 1881.
Lakota Versus American Justice
Following the murder, the dictates of traditional Lakota justice kicked in. Rather than turning himself in to the Bureau of Indian Affairs Police, Crow Dog surrendered to another Brulé named Hollow Horn Bear. To right the wrong and repair the damage that had been done to the community, Crow Dog gave the victim’s family $600 in cash, eight horses, and a blanket.
Customary law was intended to be restorative rather than punitive, and from the vantage point of Lakota jurisprudence, the matter had been settled.
However, that’s not the way non-Indians, including the agency superintendent, saw it. They demanded that American justice be exacted. In their minds, the extension of criminal law over reservations was essential to assimilating Indians, and Crow Dog’s case was their chance to legitimize it.
Learn more about how Native Americans kept or lost their lands.
The Case and the Court Ruling
Between September 1881 and March 1882, Crow Dog was apprehended, indicted, tried, and found guilty of murder in the district court of the Dakota Territory located in Deadwood. He was sentenced to hang. The district court’s ruling was affirmed in May by the territorial Supreme Court, and the case next went to the U.S. Supreme Court on Crow Dog’s petition for a writ of habeas corpus.
Customary law in cases arising between Indians on Indian land, the court held, was considered an inherent attribute of sovereignty recognized by treaties and that it could not be violated through the imposition of state or federal law.
The victory, however, was not as clear-cut as it seemed. The Supreme Court rejected the rationale used to indict and find Crow Dog guilty because Congress hadn’t expressly repealed customary law in cases involving Indians on Indian land. In other words, the Supreme Court found that Congress had not limited this aspect of tribal sovereignty. The Supreme Court didn’t say that Congress couldn’t do it.
Common Questions about Challenges to Tribal Sovereignty
At the local level, Bureau of Indian Affairs agents could outlaw traditional ceremonies and dances; imprison or withhold rations from people they deemed intransigent; make the decisions about whether Native people could lease or sell their lands; and decide if they could have access to their own money.
When his son died, Ponca chief Standing Bear left the reservation to bury him along the Niobrara River. He was detained as he left without the federal agent’s approval.
Between 1851 and 1877, the Lakota land base was reduced by treaties and congressional acts from 134 million acres to less than 15 million acres.
