This and that

1. There are things I see and hear at sentencing that deaden my soul. Like the parents who made child pornography with their own little kids. The excellent panel lawyer who represented one of the defendants refused to accept my thanks and compliments for taking this horrific case. In chambers, he said, wryly, “Hell, judge, I thought it was a drug case.”

2. A young black man on supervised release on my docket was driving drunk with his pals. A white cop pulls them over. The driver–my kid on supervised release–tries to slide into the back seat. His buddy takes the driver’s seat. He intends to take the rap for his friend. The only problem is that the officer’s cam captures the stupid scheme. As the officer is arresting my supervised release offender, the kid becomes abusive. He brings up Ferguson, Missouri and utters the slogan “Hands up, don’t shot.” Other racial abuse follows. The officer doesn’t react. Later the kid admitted to me that he played the race card in an effort to provoke a fight with the cop and avoid state prosecution that would surely result in his return to federal prison.*

3. I finished my Federal Sentencing Reporter article. It argues that actuarial data relating to similar offenders such as race, gender and age that are empirically correlated with a risk to reoffend should be taken into account at sentencing. It is a detailed rebuttal to General Holder’s speech this summer. I’ll let you know when it comes out.

4. This Thursday, I will be honored to give the George Norris Lecture at the University of Nebraska a Kearney. I will be talking about “judicial activism” and asking whether Nebraska’s first federal judge, Elmer Scipio Dundy, was an “activist judge” when he granted a writ of habeas corpus to a band of Indians. For those of you who read this blog, you may remember I am speaking of the famous Standing Bear case that I have previously written about.

5. Cover_art_for_Firing_Line_program_featuring_William_f._BuckleyI remain tired and weak. Slept most of Friday and Saturday. UNK will kindly allow me to give my lecture from a nice soft chair if I tire at the podium. Sorta reminds me of William F. Buckley’s “Firing Line” where Buckley held forth while seated in a comfy chair. Except my presentation will lack the erudition of the intellectual giant who was Buckley. I do think, however, that I may use a pencil as a prop.

 

RGK

*In the study of rhetoric, there is something called the “moral equivalence fallacy.” See Odessa College, Fallacies of Argument. It suggests that serious moral wrongs are no different in kind than minor offenses. Therefore, and to be clear, the act of an offender provoking a police officer does not justify, for example, the officer shooting the suspect in the back.

 

More on mythology and Standing Bear

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Photo credit:  Part of a painting done by Zoey Wood-Salomon used as a banner by the Indigenous Law and Policy Center Blog.

For an interesting take on mythology and the Standing Bear and Elk cases, see Adrea Korthase’s May 11, 2013, post in “Turtle Talk,” the Indigenous Law and Policy Center Blog at the Michigan State University College of Law.  The author helpfully refers to Volume 4, part 4 of Seen & Heard (November 2,1904) published shortly after the beginning of the 20th century in Philadelphia by Louis N. Megargee.*   Entitled “The Suppression of the Indian,” the full essay can be found at pages 4753 through 4771.  Among other things, it provides fascinating insights about Tibbles.

Thanks to Turtle Talk and Adrea Korthase!

RGK

*The collection is edited by James Hoyt.  It is available as a free EBook.

Deconstructing the mythology of the Standing Bear case

Elmer Scipio Dundy is pictured.  He served from 1868-1896.  The photo is taken from the archives of the United States District Court for the District of Nebraska.

Judge Elmer Scipio Dundy is pictured. He served from 1868-1896. The photo is taken from the archives of the United States District Court for the District of Nebraska.

It t is fashionable among do-gooders to make myths about overcoming racism and federal judges who rule for the downtrodden and against “the man.”  Please don’t get me wrong.  Racism is real, it exists still and it is awful.  And, it is also true that there are courageous judges.  But, myths are unhelpful to an honest understanding of the federal trial courts.  And that brings to me to the subject of this post.

In United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 700-01 (C.C.D. Neb. 1879) (No. 14,891) the court issued a writ of habeas corpus in favor of an Indian and his companions.  The Standing Bear case has taken on a mythic status.  See, for example, Mary Kathryn Nagle, Standing Bear v. Crook: The Case For Equality Under Waax’s Law, 45 Creighton Law Review, 455, 456 (2012) (“To be sure, Judge Dundy’s decision in Standing Bear v. Crook is, doctrinally, the equivalent of Brown v. Board of Education.”)

Despite the fact that many, perhaps most, of the contemporary accounts of the trial came from those who were rabid partisans bent upon publicizing the Indian cause (like the editor of the local newspaper, Thomas Henry Tibbles*), those embellishments continue to be used without skepticism to reinforce the mythology that now fuels the legend of Standing Bear.  In truth, when Judge Elmer S. Dundy, one of my predecessors, decided Standing Bear, his decision was a narrow one.  The decision was not one of mythic proportion, but rather one of studied judicial minimalism.

Having provided this introduction, let’s start with a brief recitation of the facts.

The story is fairly well-known.  The Ponca tribe in Nebraska entered into a pact with the government exchanging their claim to land in Nebraska for reservation land in Oklahoma.  Some later claimed that the Indians thought they were promised land in Nebraska, but there is also countervailing evidence that the Ponca knew full well that the consequence of their agreement meant a move to Oklahoma.**

Once situated in Oklahoma, the Ponca found life hard.  Many in their tribe, including the son of Chief Standing Bear, died, probably from lack of food.  In turn, these hardships caused Standing Bear and a small band of Ponca to leave the Oklahoma reservation and head back to Nebraska.  They were intercepted on the Omaha Indian reservation in Nebraska.  The Indians were detained by Brigadier General George Crook and his men on orders from Washington.  Crook was instructed to return the Ponca to Oklahoma.

Crook was sympathetic to the plight of Standing Bear and his Poncas.  He sought out help for the Indians.  Thomas Henry Tibbles, an editor of the Omaha Daily Herald, took up the Poncas’ cause. Tibbles obtained the services of two skilled Nebraska lawyers, John L. Webster and Andrew J. Poppleton.  Poppleton was the chief attorney for the Union Pacific Railroad.  He was, as they say now, a “heavy hitter.”  Those highly regarded lawyers sought a writ of habeas corpus in the federal district court in Omaha.

There were two primary questions presented.  First, could the Indians use the habeas corpus statute as a jurisdictional hook to garner review of their detention?  Second, as opposed to threatening to take them back to Oklahoma, had General Crook violated federal law by failing to “immediately” present the Ponca to a court in the jurisdiction of the Omaha Indian Reservation where the Ponca had been found?***

As to the first question, Judge Dundy observed that the habeas corpus statute used the word “persons” and not “citizens.”****  Standing Bear, 25 F. Cas. at 697. Because it was obvious that Indians were “persons,”  the judge easily concluded that Indians could use the statute to challenge their confinement.

As to the second question,  the judge recognized that there was a specific federal law that required “every person” found unlawfully on an Indian reservation (such as the Omaha reservation) to be taken “immediately” to the “nearest . . . judicial district to be proceeded against in due course of law.”  Id. at 700.  Since the Ponca were “persons” found unlawfully on the Omaha Indian reservation (their presence was unlawful since they did not belong to the Omaha tribe), Crook had the right to arrest them.  Crook erred, however, by not “immediately” presenting them for potential prosecution in the Nebraska federal court.  As a consequence, Standing Bear was entitled to relief from the unlawful detention.

It is gross hyperbole to suggest that Standing Bear is to Indians as Brown v. Board of Education is to blacks.  In truth, Standing Bear was a cautious decision that made a little new law, but certainly nothing earth shattering.  For example, the Standing Bear decision was in fact supported by precedent. See, e.g., Ex Parte Dos Santos, 7 F. Cas. 949 (C.C.D. Va. 1835) (No. 4,016) (ordering the release of an alleged murderer from Portugal even though he was not a citizen of the United States because he could not lawfully be detained in this country).

As the Supreme Court later observed, by the time Standing Bear was decided, it had been the law for more than four decades in America that “any person, whether a citizen or not, unlawfully restrained of his liberty, [was] entitled to that [habeas corpus] writ.” Elk v. Wilkins, 112 U.S. 94, 108 (1884) (discussing Standing Bear and citing, among other cases, Ex Parte Dos Santos).*****

To sum up then, Standing Bear was a minor but not insignificant case.  For the first time, it allowed Indians access to the federal courts.  However, the mythology surrounding the decision is unfounded and should be stripped away.  Judge Dundy did what cautious yet concerned federal district judges have done for a long time.  He read the law for its plain meaning and then he issued a narrow decision accordingly.  That is plenty good enough.

RGK

*Tibbles in particular is viewed as a “questionable source[]” by trained legal historians.  See, e.g., Patrick G. Blythe, Book Review, Stephen Dando-Colins, Standing Bear is a Person: The True Story of A Native American’s Quest for Justice, 49 Am. J. Legal Hist. 462 (2007).  Parenthetically, Tibbles is the person who described Standing Bear’s “I am a man” speech and it is that description that is frequently quoted.  Intending no disrespect to the memory of Standing Bear, one wonders whether to trust Tibbles’ account.

**Although no site was actually selected, there is historical evidence that in 1878 eight Ponca chiefs, including Standing Bear, visited the Osage reservation in Oklahoma to select a site in anticipation of their move.

***There was also a third question about whether Indians could sever their ties to tribes (“expatriation) and thus avoid control of the government as “Indians.”  Judge Dundy, while believing they had that right, did not specifically determine whether Standing Bear and his group were in fact “expatriated.”  Id. at 699.  (It is important not to confuse “expatriation” with “citizenship” as both Judge Dundy and the Supreme Court would make clear just a few years after Standing Bear.)

****As a class, Indians did not become citizens until passage of the Indian Citizenship Act of 1924.

*****A few short years after Standing Bear was decided, Judge Dundy himself made it clear that the reach of Standing Bear was very limited.  In Elk v. Wilkins, Judge Dundy, sitting with another judge as Circuit judges, denied an Indian’s claim that he was a “citizen” because he had left his tribe.  The Supreme Court affirmed.  The Court held that an Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe and taken up his residence among the white citizens of a state, but who has not been naturalized or taxed or recognized as a citizen, either by the United States or by the state, is not a citizen of the United States, within the meaning of the 14th Amendment, which declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.”

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