Indians as People Under the Law

Very soon after the Spanish began their invasion of this continent, both the European courts and clergy declared Indians to be “people” in a biological and spiritual sense. However, the concept of Indians as “people” in a legal sense was tested in the United States in 1879.

In 1877, the United States had forcibly removed the Ponca from their homeland in northern Nebraska and resettled far to the south in Indian Territory (now Oklahoma). One-third of the tribe died from starvation and disease shortly after their arrival on the new reservation.

In 1879, Standing Bear and about 30 Ponca left their Oklahoma reservation and traveled to Decatur, Nebraska where they were welcomed by the Omaha (the tribe, not the city) and given food and shelter. Standing Bear explained why he left Oklahoma:

“My boy who died down there, as he was dying looked up to me and said, I would like you take my bones back and bury them where I was born. I promised him I would. I could not refuse the dying request of my boy. I have attempted to keep my word. His bones are in that trunk.”

At this time, Indians were not allowed free movement outside of their reservations. In order to leave the reservation they were required to have the written permission of their Indian agent. The Department of the Interior (the federal agency in charge of Indian affairs) notified the War Department that the Ponca had left without permission and the army was ordered to return them to the reservation. The Ponca were then detained by the army under the command of General George Crook at Fort Omaha. Illness among the Indians and the poor condition of their horses made it impossible to return them to Oklahoma immediately. During the delay, a local newspaper story about the plight of the Ponca stirred up interest and support which resulted in an historic court case. Carl Waldman, in his book Who Was Who in Native American History, writes:

“When the true purpose of Standing Bear’s journey was published, some whites, including Crook himself, showed sympathy.”

In an interview with newspaper editor Thomas Henry Tibbles, Ta-zha-but (Buffalo Chip) asked:

“I have done no wrong, and yet I am here a prisoner. Have you a law for white men, and a different law for those who are not white?”

In defending the arrest of Standing Bear’s people, the Commissioner of Indian Affairs wrote:

“If the reservation system is to be maintained, discontented and restless or mischievous Indians cannot be permitted to leave their reservation at will and go where they please. If this were permitted the most necessary discipline of the reservations would soon be entirely broken up, all authority over the Indians would cease, and in a short time the Western country would swarm with roving and lawless bands of Indians, spreading a spirit of uneasiness and restlessness even among those Indians who are now at work and doing well.”

Under American law, everyone, including non-citizens, who is held by U.S. authorities has the right to challenge the legality of the custody through a writ of habeas corpus. Two attorneys, John Webster and Andrew Poppleton, volunteered their services to the captive Poncas and filed a writ of habeas corpus to free them from Army custody. The U.S. Attorney argued that Indians were not persons under the law and therefore were not entitled to a writ of habeas corpus. According to the government an Indian was neither a person nor a citizen within the meaning of the law, and therefore could bring no suit of any kind against the government.

After hearing the case of Standing Bear v Crook, the United States District Court found that if Indians must obey the laws of the land, then they must be afforded the protection of these laws. In other words, Indians are “people” under United States law and therefore have the right to sue for a writ of habeas corpus. The judge observed:

“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 representatives of one of the most powerful, most enlightened, and most Christianized nations of modern times.”

The Court’s ruling ordered Crook to release Standing Bear and his people.

The Commissioner of Indian Affairs responded to the judge’s ruling by noting that it–

“is regarded by the Government as a heavy blow to the present Indian system, that, if sustained, will prove extremely dangerous alike to whites and Indians.”

Not all Americans agreed with the Court’s decision. One writer in New York City, asked of the Ponca: “What right have they to be in the country, anyhow?” The writer goes on to say:

“They are nothing but barbarians; they have no vote; while we are Christians and voters. Therefore, the land they occupy is unprofitable, and I for one cannot see why any white man who is a voter, and desires the land, should not make a claim to it, and if necessary, get help from the Government to obtain it.”

In theory, this ruling should have changed the legal relationships for Indian people on reservations throughout the United States. However, it was almost universally ignored by the Indian Service (later known as the Bureau of Indian Affairs), Indian agents (the people in charge of the reservations), the army, and the local courts. The ruling was not appealed as it was felt that it would probably be upheld by the Supreme Court and this would only give it more weight in American law.

With regard to the Standing Bear case, in his book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, attorney Walter Echo-Hawk writes:

“This decision opened Indian eyes to the possibility of protecting their rights through litigation.”

Following the Standing Bear versus Crook decision, newspaper editor Henry Tibbles arranged a six-month lecture tour of eastern cities for Standing Bear. When Standing Bear traveled, he would wear European-style clothing. On stage, however, he would wear buckskins, feathers, beaded belt, claw necklace, and red blanket. In Boston, Standing Bear’s lecture was attended by Helen Hunt Jackson, Senator Henry Dawes, Henry Wadsworth Longfellow, and other notables who were so moved that they formed the Boston Indian Citizenship Committee to fight for the rights of the Ponca and other Indians.

In 1880, Congress appointed a committee to study the Ponca situation. As a result, Standing Bear and his small band were given a permanent home in Nebraska.

Federal Agencies and NAGPRA

( – promoted by navajo)

After decades of struggles by Native American tribal governments and individual Indians, in 1990 Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA). This act requires a number of institutions, such as museums, federal agencies, and universities, to inventory certain categories of human remains and associated funerary objects. Under NAGPRA, the inventory was to be completed by 1995.

Two decades after NAGPRA became law, the Government Accountability Office (GAO) has issued a report showing that many key federal agencies are not yet in compliance with the law. The GAO concludes:

Despite the fact that key federal agencies have now had almost 20 years to comply with the act, they still have not fully complied.

The GAO report looks at eight federal agencies: the Bureau of Indian Affairs, Bureau of Land Management (BLM) , National Park Service (NPS), U.S. Fish and Wildlife Service (FWS), U.S. Forest Service, U.S. Army Corps of Engineers, and the Tennessee Valley Authority (TVA), and the Bureau of Reclamation. These agencies have millions of American Indian artifacts and human remains in their possession. The GAO report:…

According to agency data and our survey results, a total of 55 percent of human remains and 68 percent of associated funerary objects have been repatriated as of September 30, 2009.

Human remains held by the eight agencies included 5,246 held by the Forest Service, 4,053 by NPS, 1,565 by BLM, 550 by the Bureau of Reclamation, and 464 by the BIA.  According to the report:

Of the eight key agencies we reviewed, the Forest Service and FWS had the lowest repatriation rates for human remains among the key agencies with published notices of inventory completion.

The Forest Service had repatriated only 15% of its human remains and the FWS had repatriated less than 50%. On the other hand, the Bureau of Reclamation had repatriated all of theirs and the BIA had repatriated 95%.

Lack of repatriation in some cases is due to multiple competing repatriation requests and the federal agency has been unable to clearly determine which requesting party is most appropriate. The report provides this example:

For example, in a case involving human remains that represent approximately 1,400 individuals removed from the Tonto National Forest in Arizona, there is a disagreement among some of the culturally affiliated tribes over the place and manner of the final disposition of the human remains. According to the Forest Service, because this involves differing cultural views among culturally affiliated tribes, it is leaving the matter to the tribes to resolve. As a result, the repatriation cannot proceed until the disagreement is resolved.

There are also differences in the reburial policies among the agencies. For example, the Bureau of Reclamation does not allow reburial on the land which it manages and thus the tribes must find appropriate reburial sites.

Repatriation involves not only human remains, but also unassociated funerary objects, sacred objects, and objects of cultural patrimony. By the end of fiscal year 2009, federal agencies had published 78 notices of intent to repatriate in the Federal Register covering 34,234 objects.   Of these the BIA has 24,200 and NPS has 3,352.

While NAGPRA has provided the Indian Nations with some power over their ancestors and important cultural artifacts, this power is diluted by the inability of the federal agencies to comply with it. According to the GAO, this lack of compliance is not due to racism or anti-Indian sentiment, but due to a lack of funding and a lack of knowledgeable staff to implement it.  


One of the concerns of American Indians has been the ongoing desecration of American Indian graves and the sale of sacred artifacts. There has been a long history of the ghoulish exploitation of Native American remains in museums and popular tourist attractions. After decades of struggles by Native American tribal governments and individual Indians, in 1990 Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA). This act requires a number of institutions, such as museums, federal agencies, and universities, to inventory certain categories of human remains and associated funerary objects. Culturally affiliated tribes are then to be notified of these remains and objects so that they can be reclaimed by the tribes.

With NAGPRA Indians are allowed to designate what is sacred to them. Previous legislation, in the form of several archaeological acts, had defined the past, and who determines what is important in the past, without consultation with Indians. NAGPRA has marked a significant change with regard to the rights of Indian people and the practice of American archaeology. No longer does science (i.e. archaeology) have a monopoly on defining the meanings of the past: with NAGPRA, American Indian groups are invited to assign their own spiritual and historical meanings to archaeological sites and artifacts.

NAGPRA jurisdiction includes Indian burials, burial artifacts, and sacred cultural objects whether they are found on federal, state, local, or private land. Items do not need to cross state lines to be subject to this law. Under NAGPRA, any human remains found in North America that predate European contact, of whatever age, are considered American Indian.  

NAGPRA also makes it a felony to traffic in Native American human remains and burial artifacts. NAGPRA attempts to undercut the lucrative market in Indian grave goods and cultural treasures, especially items that have sacred significance. NAGPRA makes it possible to prosecute dealers and collectors as well as looters. Previous archaeological laws had focused solely on the prosecution of looters.

NAGPRA has brought about changes in the tribes. Many tribes responded to NAGPRA by creating advisory councils to deal with cultural issues, including outsiders who are dealing with cultural issues. For anthropologists and other researchers, this often means that fieldwork has to begin by contacting and making presentations before the cultural committees. NAGPRA is a powerful tool which enables the tribes to control and direct archaeological exploration.

One of the most visible impacts of NAGPRA involves museums. While most visitors to museums notice only the displays, museums also house a great deal of material which is not displayed, but is held for further analysis. With NAGPRA, museums can no longer hold onto American Indian human remains and funerary objects indefinitely, but must contact the culturally affiliated tribes to discuss the management of these items. In many cases, the tribes have demanded the return of human remains for reburial. Because of NAGPRA, museums now consult with Native American tribal elders regarding exhibits which might be culturally offensive.

There are some archaeologists and physical anthropologists who feel that NAPGRA, by making it more difficult to excavate aboriginal grave sites and to study the bones of the dead, has limited their ability to make new findings regarding the past. They feel that future advances in knowledge from continuing archaeological and osteological research are in doubt.

One of the major challenges to NAGPRA began in 1996 when a skeleton was found on the banks of the Columbia River. Law enforcement was notified of the finding and law enforcement then called in forensic anthropologist James C. Chatters to look at the remains. His initial impression is that the remains are not recent, but are most likely those of a European settler. However, the discovery of a leaf-shaped stone spear point in the man’s pelvis was unusual. Radiocarbon dating showed that the man died about 7265 BCE, thus making him Native American under the law.

Under the terms of the NAGPRA, four tribes — Colville Confederated Tribes, Nez Perce, Confederated Tribes of the Umatilla Reservation, and the Yakama Indian Nation — claimed the remains as ancestral. Three of the four tribes wanted the skeleton buried without further study, but the Colville indicated a willingness to have it studied first.

The scientists were dismayed as only a handful of skeletons of this age have been discovered in North America. A group of eight scientists filed the first lawsuit – Bonnichsen et al v. United States – to ever challenge a repatriation under the NAGPRA. One of the points raised in the lawsuit is that the skeleton did not have a demonstrated relationship with any present-day Native Americans and that this relationship may be determined by further study. The lawsuit also raised First Amendment concerns about NAGPRA and government control and manipulation of information. If scientists were prohibited from studying the skeleton, they and the American people would be deprived of potentially irreplaceable information about the past.

The lawsuit stopped immediate repatriation and court decisions permitted the scientists to study the remains. Eventually, the skeleton will be repatriated, but first the scientists hope to give him an opportunity to teach us about the past.