United States, ex rel. Standing Bear, v. George Crook, a
    Brigadier-General of the Army of the United States.

1. An Indian is a /person/ within the meaning of the /habeas corpus/
act, and as such is entitled to sue out a writ of /habeas corpus/ in the
federal courts when it is shown that the petitioner is deprived of
liberty under color of authority of the United States, or is in custody
of an officer in violation of the constitution <../usconst.htm> or a law
of the United States, or in violation of a treaty made in pursuance
thereof.

2. The right of expatriation is a natural, inherent, and inalienable
right and extends to the Indian as well as to the white race.

3. The commissioner of Indian affairs has ample authority for removing
from an Indian reservation all persons found thereon without authority
of law, or whose presence may be detrimental to the peace and welfare of
the Indians.

4. The military power of the government may be employed to effect such
removal; but where the removal is effected, it is the duty of the troops
to convey the persons so removed, by the most convenient route, to the
civil authorities of the judicial district in which the offense may be
committed to be proceeded against in due course of law. In time of
peace, no authority civil or military exists for transporting Indians
from one section of the country to, another, without the consent of the
Indians, nor to confine then to any particular reservation against their
will; and where officers of the government attempt to do this and arrest
and hold Indians who are at peace with the government for the purpose of
removing teens to and confining them on a reservation in the Indian
Territory they will be released on /habeas corpus/.

(Before DUNDY, J.)

/habeas corpus/.-/Right of Indian to Writ/.

THE facts are fully stated in the opinion of the court.

/A. J. Poppleton/ and /John L. Webster/, for the relators.

/G. M. Lambertson/, United States attorney, for the government.

DANDY, J.-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 then less desirable than perpetual imprisonment in their own
native land. But I think it is creditable to the heart and mind of the
brave and distinguished officer who is made respondent herein to say
that he has no sort of sympathy in the business in which he is forced by
his position to bear a part so conspicuous; and, so far as I am
individually concerned, I think it not improper to say that, if the
strongest possible sympathy could give the relators title to freedom,
they would have been restored to liberty the moment the arguments in
their behalf were closed. No examination or further thought would then
have been necessary or Reliant. But in a country where liberty is
regulated by law, something more satisfactory and enduring than mere
sympathy must furnish and constitute the rule and basis of judicial
action. It follows that this case must be examined and decided on
principle of law, and that unless the relators are entitled to their
discharge under the constitution or laws of the United States, or some
treaty made pursuant thereto, they must be remanded to the custody of
the officer who caused their arrest, to be returned the Indian
Territory, which they left without the consent of the government.

On the 8th of April, 1879, the relators, Standing Bear and twenty-five
others, during the session of the court held at that time at Lincoln,
presented their petition, duly verified, praying for the allowance of a
writ of /habeas corpus/ and their final discharge from custody thereunder.

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.

The writ was issued and served on the respondent on the 8th day of
April, and, the distance between the place where the writ was made
returnable and the place where the relators were confined being more
than twenty miles, ten days were allotted in which to make return.

On the 18th of April the writ was returned, and the authority for the
arrest and detention is therein shown. The substance of the return to
the writ, and the additional statement since filed, is that the relators
are individual members of, and connected with, the Ponca tribe of
Indians; that they had fled or escaped from a reservation situated some
place within the limits of the Indian Territory-had departed therefrom
without permission from the government; and, at the request of the
secretary of the interior, the general of the army had issued an order
which required the respondent to arrest and return the relators to their
tribe in the Indian Territory, and that, pursuant to the said order, he
had caused the relators to be arrested on the Omaha Indian reservation,
and that they were in his custody for the purpose of being returned to
the Indian Territory.

It is claimed upon the one side, and denied upon the other, that the
relators had withdrawn and severed, for all time, their connection with
the tribe to which they belonged; and upon this point alone was there
any testimony produced by either party hereto. The other matters stated
in the petition and the return to the writ are conceded to be true; so
that the questions to be determined are purely questions of law.

On the 8th of March, 1859, a treaty was made by the United States with
the Ponca tribe of Indians, by which a certain tract of country, north
of the Niobrara river and west of the Missouri, was set apart for the
permanent home of the said Indians, in which the government agreed to
protect them during their good behavior. But just when, or how, or why,
or under what circumstances, the Indians left their reservation in
Dakota and went to the Indian Territory, does not appear.

The district attorney very earnestly questions the jurisdiction of the
court to issue the write, and to hear and determine the case made
herein, and has supported his theory with an argument of great ingenuity
and much ability. But, nevertheless, I am of the opinion that his
premises are erroneous, and his conclusions, therefore, wrong and
unjust. The great respect I entertain for that officer, and the very
able manner in which his views were presented, make it necessary for me
to give somewhat at length the reasons which lead me to this conclusion.

The district attorney discussed at length the reasons which led to the
origin of the writ of /habeas corpus/, and the character of the
proceedings and practice in connection therewith in the parent country.
It was claimed that the laws of the realm limited the right to sue out
this writ to the /free subjects/ of the kingdom, and that none others
came within the benefits of such beneficent laws; and, reasoning from
analogy, it is claimed that none but American citizens are entitled to
sue out this high prerogative writ in nay of the federal courts. I have
not examined the English laws regulating the suing out of the writ, nor
have I thought it necessary so to do. Of this I will only observe that
if the laws of England are as they are claimed to be, they will appear
at a disadvantage when compared with our own. This only proves that the
laws of a limited monarchy are sometimes less wise and humane than the
laws of our own republic-that whilst the parliament of Great Britain was
legislating in behalf of the favored few, the congress of the United
States was legislating in behalf of all mankind who come within our
jurisdiction.

Section 751 of the revised statutes declares that "the supreme court and
the circuit and district courts shall have power to issue writs of
/habeas corpus/." Section 752 confers the power to issue writs on the
judges of said courts, within their jurisdiction, and declares this to
be " for the purpose of inquiry into the cause of restraint of liberty."
Section 753 restricts the power, limits the jurisdiction, and defines
the cases where the writ may properly issue. That may be done under this
section where the prisoner " is in custody under or by color of
authority of the United States, * * * or is in custody for an act done
or omitted in pursuance of a law of the United States, * * * or in
custody in violation of the constitution or of a law or treaty of the
United States." Thus, it will be seen that when a /person/ is in custody
or deprived of his liberty under color of authority of the United
States, or in violation of the constitution or laws or treaties of the
United States, the federal judges have jurisdiction, and the writ can
properly issue. I take it that the true construction to be placed upon
this act is this, that in /all/ cases where federal officers, civil or
military, have the custody and control of a person claimed to be
unlawfully restrained of liberty, they are /then/ restrained of liberty
under color of authority of the United States, and the federal courts
can properly proceed to determine the question of unlawful restraint,
because no other courts can properly do so. In the other instance, the
federal courts and judges can properly issue the writ in /all/ cases
where the /person/ is alleged to be in custody in violation of the
constitution or a law or treaty of the United States. In such a case, it
is wholly immaterial what over, state or federal, has custody of the
person seeking the relief. These relators may be entitled to the writ in
either case. Under the first paragraph they certainly are-that is, if an
Indian can be entitled to it at all-because they are in custody of a
federal officer, under color of authority of the United States. And they
may be entitled to the writ under the other paragraph, before recited,
for the reason, as they allege, that they are restrained of liberty in
violation of a provision of their treaty, before referred to. Now, it
must be borne in mind that the /habeas corpus/ act describes applicants
for the writ as /"persons,"/ or /" parties,"/ who may be entitled
thereto. It nowhere describes them as citizens, nor is citizenship in
any way or place made a qualification for suing out the writ, and, in
the absence of express provision or necessary implication which would
require the interpretation contended for by the district attorney, I
should not feel justified in giving the words /person/ and /party/ such
a narrow construction. The most natural, and therefore most reasonable,
way is to attach the same meaning to /words/ and /phrases/ when found in
a statute that is attached to them when and where found in general use.
If we do so in this instance, then the question cannot be open to
serious doubt. Webster describes a person as "a living soul; a
self-conscious being; a moral agent; especially a living human being; a
mans or child; an individual of the human race." This is comprehensive
enough, it would seem, to include even an Indian. In defining certain
generic terms, the 1st section of the revised statutes declares that the
word /person/ includes copartnerships and corporations. On the whole, it
seems to me guise evident that the comprehensive language used in this
section is intended to apply to all mankind-as well the relators as the
mere favored white race. This will be doing no violence to language, or
to the spirit or letter of the law, nor to the intention, as it is
believed, of the law-making power of the government I must hold, then,
that /Indians/, and consequently the relators, are /persons/, such as
are described by and included within the laws before quoted. It is said,
however, that this is thirst instance on record in which an Indian has
been permitted to sue out and maintain a writ of /habeas corpus/ in a
federal court, and /therefore/ the court must be without jurisdiction in
the premises. This is a /non sequitur/. I confess I do not know of
another instance where this has been done, but I can also say that the
occasion for it perhaps has never before been so great. It may be that
the Indians think it wiser and better, in to end, to resort to this
peaceful process than it would be to undertake the hopeless task of
redressing their own alleged wrongs by force of arms. Returning reason,
and the sad experience of others similarly situated, have taught them
the folly and madness of the arbitrament of the sword. They can readily
see that any serious resistance on their part would be the signal for
their utter extirmination. Have they not, then, chosen the wiser part by
resorting to the very tribunal erected by those they claim have wronged
and oppressed them ? This, however, is not the tribunal of their own
choice, but it is the /only/ one into which they can lawfully go for
deliverance. It cannot, therefore, be fairly said that because no Indian
ever before invoked the aid of this writ in a federal court, the
rightful authority to issue it does not exist. Power and authority right
fully conferred do not necessarily cease to exist in consequence of long
non-user. Though much time has elapsed, and many generations have passed
away, since the passage of the original habeas corpus act, from which I
have quoted, it will not do to say that these Indians cannot avail
themselves of its beneficent provisions simply because none of their
ancestors ever sought relief thereunder.

Every /person/ who comes within our jurisdiction, whether he be
European, Asiatic, African, or "native to the manor born," must obey the
laws of the United States. Every one who violates them incurs the
penalty provided thereby. When a person is charged, in a proper way,
with the commission of crime, we do not inquire upon the trial in what
country the accused was born, nor to what sovereign or government
allegiance is due, nor to what race he belongs. The questions of guilt
and innocence only form the subjects of inquiry. An Indian, then,
especially off from his reservation, is amenable to 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 persons 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. I cannot doubt that congress intended to give to /every
person/ who might be unlawfully restrained of liberty under color of
authority of the United States, the right to the writ and a discharge
thereon. I conclude, then, that, so far as the issuing of the writ is
concerned, it was properly issued, and that the relators are within the
jurisdiction conferred by the /habeas corpus/ act.

A question of much greater importance remains for consideration, which,
when determined, will be decisive of this whole controversy. This
relates to the right of the government to arrest and hold the relators
for a time, for the purpose of being returned to a point in the Indian
Territory from which it is alleged the Indians escaped. I am not vain
enough to think that I can do full justice to a question like the one
under consideration. But, as the matter furnishes so much valuable
material for discussion, and so much food for reflection, I shall try to
present it as viewed from my own standpoint, without reference to
consequences or criticisms, which, though not specially invited, will be
sure to follow.

A review of the policy of the government adopted in its dealings with
the friendly tribe of Poncas, to which the relators at one time
belonged, seems not only appropriate, but almost indispensable to a
correct understanding of this controversy. The Ponca Indians have been
at peace with the government, and have remained the steadfast friends of
the whites, for many years. They lived peaceably upon the land arid in
the country they claimed and called their own.

On the 12th of March, 1858, they made a treaty with the United States,
by which they ceded all claims to lands, except the following tract:
"Beginning at a point on the Niobrara river, and running due north so as
to intersect the Ponca river twenty-five miles from its mouth; thence
from said point of intersection up and along the Ponca river twenty
miles; thence due south to the Niobrara river; and thence down and along
said river to the place of beginning; which tract is hereby reserved for
the future homes of said Indians." In consideration of this cession, the
government agreed " to protect the Poncas in the possession of the tract
of land reserved for their future homes, and their persons and property
thereon, during good behavior on their part." Annuities were to be paid
them for thirty years, houses were to be built, schools were to be
established, and other things were to be done by the government, in
consideration of said cession. (See 12 Stats. at Large, p. 997.)

On the 10th of March, 1865, another treaty was made, and a part of the
other reservation was ceded to the government. Other lands, however,
were, to some extent, substituted therefor, " by way of rewarding them
for their constant fidelity to the government, and citizens thereof, and
with a view of returning to the said tribe of Ponca Indians their old
burying-grounds and cornfields." This treaty also provides for paying
$15,080 for spoliations committed on the Indians. (See 14 Stats. at
Large, p. 675.)

On the 29th day of April, 1868, the government made a treaty with the
several bands of Sioux Indians, which treaty was ratified by the senate
on the 16th of the following February, in and by which the reservations
set apart for the Poncas under former treaties were completely absolved.
(15 Stats. at Large, p. 635.) This was done without consultation with,
or knowledge or consent on the part of, the Ponca tribe of Indians.

On the 15th of August; 1876, congress passed the general Indian
appropriation bill, and in it we find a provision authorizing the
secretary of the interior to use $25,000 for the removal of the Poncas
to the Indian Territory, and providing them a hone therein, with consent
of the tribe. (19 Stats. at Large, p.192.)

In the Indian appropriation bill passed by congress on the 27th day of
May, 1878, we find a provision authorizing the secretary of the interior
to expend the sum of $30,000 for the purpose of removing and locating
the Ponca Indians on a new reservation, near the Kaw river.

No reference has been made to any other treaties or laws, under which
the right to arrest and remove the Indians is claimed to exist.

The Poncas lived upon their reservation in southern Dakota, and
cultivated a portion of the same, until two or three years ago, when
they removed therefrom, but whether by force or otherwise does not
appear. At all events, we find a portion of them, including the
relators, located at some point in the Indian Territory. /There/, the
testimony seems to show, is where the trouble commenced. Standing Bear,
the principal witness, states that out of five hundred and eighty-one
Indians who went from the reservation in Dakota to the Indian Territory,
one hundred and fifty-eight died within a year or so, and a great
proportion of the others were sick and disabled, caused, in a great
measure, no doubt, from change of climate; and to save himself and the
survivors of his wasted family, and the feeble remnant of his little
band of followers, he determined to leave the Indian Territory and
return to his old home, where, to use his own language, "he might live
and die in peace, and be buried with his fathers." He also states that
he informed the agent of their final purpose to leave, never to return,
and that he and his followers had finally, fully, and forever severed
his and their connection with the Ponca tribe of Indians, and had
resolved to disband as a tribe, or band, of Indians, and to cut loose
from the government, go to work, become self-sustaining, and adopt the
habits and customs of a higher civilization. To accomplish what would
seem to be a desirable and laudable purpose, all who were able so to do
went to work to earn a living. The Omaha Indians, who speak the same
language, and with whom many of the Poncas have long continued to
intermarry, gave them employment and ground to cultivate, so as to make
them self-sustaining. And it was when at the Omaha reservation, and when
/thus/ employed, that they were arrested by order of the government, for
the purpose of being taken back to the Indian Territory. They claim to
be unable to see the justice, or reason, or wisdom, or /necessity/, of
removing them by force from their own native plains and blood relations
to a far-off country, in which they can see little but new-made graves
opening for their reception. The land from which they fled in fear has
no attractions for them. The love of home and native land was strong
enough in the minds of these people to induce them to brave every peril
to return and live and die where they had been reared. The bones of the
dead son of Standing Bear were not to repose in the land they hoped to
be leaving forever, but were carefully preserved and protected, and
formed a part of what was to them a melancholy procession homeward. Such
instances of parental affection, and such love of home and native land,
may be /heathen/ in origin, but it seems to me that they are not unlike
/Christian/ in principle.

What is here stated in this connection is mainly for the purpose of
showing that the relators did all they could to separate themselves from
their tribe and to sever their tribal relations, for the purpose of
becoming self-sustaining and living without support from the government.
This being so, it presents the question as to whether or not an Indian
can withdraw from his tribe, sever his tribal relation therewith, and
terminate his allegiance thereto, for the purpose of making an
independent diving and adopting our own civilization.

If Indian tribes are to be regarded and treated as separate but
dependent nations, there can be no serious difficulty about the
question. If they are not to be regarded and treated as separate,
dependent nations, then no allegiance is owing from an individual Indian
to his tribe, and he could, therefore, withdraw therefrom at any time.
The question of expatriation has engaged the attention of our government
from the time of its very foundation. Many heated discussions have been
carried on between our own and foreign governments on this great
question, until diplomacy has triumphantly secured the right to every
person found within our jurisdiction. This right has always been claimed
and admitted by our government, and it is now no longer an open
question. It can make but little difference, then, whether we accord to
the Indian tribes a national character or not, as in either case I think
the individual Indian possesses the clear and God-given right to
withdraw from his tribe and forever live away from it, as though it had
no further existence If the right of expatriation was open to doubt in
this country down to the year 1868, certainly since that time no sort of
question as to the right can now exist. On the 27th of July of that year
congress passed an act, now appearing as section 1999 of the revised
statutes, which declares that: " Whereas, the right of expatriation is a
natural and inherent right of all people, indispensable to the enjoyment
of the rights of life, liberty, and the pursuit of happiness; and,
whereas, in the recognition of this principle the government has freely
received emigrants from all nations, and invested them with the rights
of citizenship. * * ,* Therefore, any declaration, instruction, opinion,
order, or decision of any officer of the United States which denies,
restricts, impairs, or questions the right of expatriation, is declared
inconsistent with the fundamental principles of the republic."

This declaration must forever settle the question until it is reopened
by other legislation upon the same subject. This is, however, only
reaffirming in the most solemn and authoritative manner a principle well
settled and understood in this country for why years past.

In most, if not all, instances in which treaties have been made with the
several Indian tribes, where reservations have been set apart for their
occupancy, the government has either reserved the right or bound itself
to protect the Indians thereon. Many of the treaties expressly prohibit
white persons being on the reservations unless specially authorized by
the treaties or acts of congress for the purpose of carrying out treaty
stipulations.

Laws passed for the government of the Indian country, and I for the
purpose of regulating trade and intercourse with the Indian tribes,
confer upon certain officers of the government almost unlimited power
over the persons who go upon the reservations without lawful authority.
Section 2149 of the revised statutes authorizes and requires the
commissioner of Indian affairs, with the approval of the secretary of
the interior, to remove from any "tribal reservation" any person being
thereon without authority of law, or whose presence within the limits of
the reservation may, in the judgment of the commissioner, be detrimental
to the peace and welfare of the Indians. The authority here conferred
upon the commissioner fully justifies him in causing to be removed from
Indian reservations /all/ persons thereon in violation of law, or whose
presence thereon may be detrimental to the peace end welfare of the
Indians upon the reservations. This applies as well to an Indian as to a
white person, and manifestly for the same reason, the object of the law
being to prevent unwarranted interference between the Indians and the
agent representing the government. Whether such an extensive
discretionary power is wisely vested in the commissioner of Indian
affairs or not, need not be questioned. It is enough to know that the
power rightfully exists, and, where existing, the exercise of the power
must be upheld. If, then, the commissioner has the right to cause the
expulsion from the Omaha Indian reservation of all persons thereon who
are there in violation of law, or whose presence may be detrimental to
the peace and welfare of the Indians, then he must of necessity be
authorized to use the necessary force to accomplish his purpose. Where,
then, is he to look for this necessary force? The military arm of the
government is the most natural and most potent force to be used on such
occasions, and section 2150 of the revised statutes specially authorizes
the use of the army for this service. The army, then, it seems, is the
proper force to employ when intruders and trespassers who go upon the
reservations are to be ejected therefrom.

The first subdivision of the revised statutes last referred to provides
that "the military forces of the United States may be employed, in such
manner and under such regulations as the president may direct, in the
apprehension of every person who may be in the Indian country in
violation of law, and in conveying him immediately from the Indian
country, by the nearest convenient and safe route, to the civil
authority of the territory or judicial district in which such person
shall be found, to be proceeded against in due course of law." * * *
This is the authority under which the military can be lawfully employed
to remove intruders from an Indian reservation. What may be done by the
troops in such cases is here fully and clearly stated; and it is /this/
authority, it is believed, under which the respondent acted.

All Indian reservations held under treaty stipulations with the
government must be deemed and taken to be a part of the /Indian
country/, within the meaning of our laws on that subject. The relators
were found upon the Omaha Indian reservation. That being a part of the
Indian country, and they not being a part of the Omaha tribe of Indians,
they were there without lawful authority, and if the commissioner of
Indian affairs deemed -their presence detrimental to the peace and
welfare of the Omaha Indians, he had lawful warrant to remove them from
the reservation, and to employ the necessary military force to effect
this object in safety.

General Crook had the rightful authority to remove the relators from the
reservation, and must stand justified in removing them therefrom. But
when the troops are thus employed they must exercise the authority in
the manner provided by the section of the law just read. This law makes
it the duty of the troops to convey the parties arrested, by the nearest
convenient and safe rote, /to the civil authority of the territory or
judicial district in which persons shall be found, to be proceeded
against in due course of law/. The /duty/ of the military authorities is
here very clearly and sharply defined, and no one can be justified in
departing therefrom, especially in time of peace. As General Crook tad
the right to arrest and remove the relators from the Omaha Indian
reservation, it follows, from what has been stated, that the law
required him to convey them to this city and turn them over to the
marshal and United States attorney, to be proceeded against in due
course of law. Then proceedings could be instituted against them in
either the circuit or district court, and if the relators had incurred a
penalty under the law, punishment would follow; otherwise, they would be
discharged from custody. Put this course was not pursued in this case;
neither was it intended to observe the laws in that regard, for General
Crook's orders, emanating from higher authority, expressly required him
to apprehend the relators and remove them by force to the Indian
Territory, from which it is alleged they escaped. But in what General
Crook has done in the premises no fault can be imputed to him. He was
simply obeying the orders of his superior officers, but the orders, as
we think, lack the necessary authority of law, and are, therefore, not
binding on the relators.

I have searched in vain for the semblance of any authority justifying
the commissioner in attempting to remove by force any Indians, whether
belonging to a tribe or not, to any place, or for any other purpose than
what has been stated. Certainly, without some specific authority found
in an act of congress, or in a treaty with the Ponca tribe of Indians,
he could not lawfully force the relators back to the Indian Territory,
to remain and die in that country, against their will. In the absence of
all treaty stipulations or laws of the United States authorizing such
removal, I must conclude that no such arbitrary authority exists. It is
true, if the relators are to be regarded as a part of the great nation
of Ponca Indians, the government might, in time of war, remove them to
any place of safety so long as the war should last, but perhaps no
longer, unless they were charged with the commission of some crime. This
is a war power merely, and exists in time of war only. Every nation
exercises the right to arrest and detain an alien enemy during the
existence of a war, and all subjects or citizens of the hostile nations
are subject to be dealt with under this rule.

But it is not claimed that the Ponca tribe of Indians are at war with
the United States, so that this war power might be used against them; in
fact, they are amongst the most peaceable and friendly of all the Indian
tribes, and have at times received from the government unmistakable and
substantial recognition of their long-continued friendship for the
whites In time of peace the war power remains in abeyance, and must be
subservient to the civil authority of the government until something
occurs to justify its exercise. No fact exists, and nothing has
occurred, so far as the relators are concerned, to make it necessary or
lawful to exercise such an authority over them. If they could be removed
to the Indian Territory by force, and kept there in the same way, I can
see no good reason why they might not be taken and kept by force in the
penitentiary at Lincoln, or Leavenworth, or Jefferson City, or any other
place which the commander of the forces might, in his judgment, see
proper to designate. I cannot think that any such arbitrary authority
exists in this country.

The reasoning advanced in support of my views, leads me to conclude:

/1st./ 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 <../usconst.htm> or laws of the United States.

/2d./ That General George Crook, the respondent, being 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.

/3d./ 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.

/4th./ 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,

/5th./ Being restrained of liberty under color of authority of t the
United States, and in violation of the laws thereof, the relators must
be discharged from custody, and it is so ordered.

ORDERED ACCORDINGLY.

NOTE-At the May term, 1879, Mr. Justice MILLER refused to hear an appeal
prosecuted by the United States, because the Indians who then petitioned
for the writ of /habeas corpus/ were not present, having been released
by the order of DUNDY, J., and no security for their appearance having
been taken.

* Source:
Cases Determined in the United States Circuit Courts for the Eighth Circuit
Reported by John Dillon, The Circuit Judge.
Volume 5
Davenport, Iowa: Egbert, Fidlar, & Chambers. 1880.
*

© 1997 The Avalon Project.