Some common misperceptions regarding histories of U.S. law and race are that American courts operated exclusively for citizens, that Indigenous people did not appear in American courts, and that American law did not extend into Indian Country.1 As many elements of the U.S. Law & Race Initiative demonstrate, the reality is much more complicated. American courts routinely denied the rights of citizen women under the system of coverture while also recognizing the rights of noncitizens like Indigenous people from the founding era forward. This module explains the extensive presence of Native people in American courts and American law in Indian Country throughout the nineteenth century with a particular focus on habeas corpus petitions.
In the colonial period, British, French, and Spanish officials incorporated Indigenous people as litigants and defendants within imperial legal systems even as they restricted Native rights and waged war against tribal nations. Scholars refer to the practice of "legal pluralism" to explain the multiple legal systems imperial nations established in colonial jurisdictions that defined rights and procedures for colonial subjects separate from the body of law applied to colonial authorities and distinct from the laws governing their internal territory.2 Even as imperial nations brokered treaties with sovereign Indigenous nations throughout colonial North America, they also viewed individual Native people as potential litigants and as residents subject to their legal authority as defendants, developing a legal pluralism distinct to North America.3
As Americans proclaimed their independence from British colonial authority, they also borrowed many British legal practices, including the recognition of Indigenous nations as sovereign authorities on one hand, and the simultaneous incorporation of Indigenous people as subject to American legal regimes on the other hand. In the Constitution's Commerce Clause, lawmakers authorized Congress "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Tribal nations have relied on this language to assert their sovereign status equivalent to foreign nations and state governments into the present period, while the federal government has consistently pointed to this provision as the source of federal authority in regulating relations between tribes and states, and between Native and non-Native people.
Adding flesh to the bare bones of the Commerce Clause, Congress passed a series of Trade and Intercourse Acts from 1790 through 1834 that restricted tribal diplomatic and economic negotiations to authorized federal agents, nullifying any agreements made by unauthorized persons.4 These acts also acknowledged that Native people frequently traveled and lived outside of treaty designated lands and that non-Native people often entered tribal lands, granting tribal nations the authority to hold the federal government accountable for crimes committed by non-Indians on tribal lands and granting state and federal courts authority over Native people accused of crimes outside of tribal lands.
These acts acknowledged legal pluralism even if it was poorly defined. To ensure that non-Native people faced legal consequences for their actions within tribal lands, Sections 5 and 6 of the 1790 Act to Regulate Trade and Intercourse with Indians stipulated that:
if any citizen or inhabitant of the United States . . . shall go into any town, settlement or territory belonging to any nation or tribe of Indians, and shall there commit any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians, which, if committed within the jurisdiction of any state, or within the jurisdiction of either of the said districts, against a citizen or white inhabitant thereof, would be punishable by the laws of such state or district, such offender or offenders shall be subject to the same punishment . . . as if the offence had been committed within the jurisdiction of the state or district to which he or they may belong, against a citizen or white in habitant thereof.
And be it further enacted, That for any of the crimes or offences aforesaid, the like proceedings shall be had . . . as by the act to establish the judicial courts of the United States, are directed for any crimes or offenses against the United States.
Importantly, the statute specified that crimes against "peaceable and friendly Indian or Indians," would be punishable, thus sanctioning violence against Native people deemed hostile or threatening.
Within three years, Congress expanded its regulations in the 1793 Trade and Intercourse Act to clarify that "nothing in this act shall be construed to prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the United States, and being within the jurisdiction of any of the individual states." As early as 1793, then, the federal government acknowledged that Native people lived in non-Native communities, just as they had in the colonial era, and then brought those Native residents under state and federal jurisdiction even though they did not also expressly grant them citizenship status.5 Subsequent revisions of the Trade & Intercourse Acts continued to assert that non-Native people suspected of crimes within Indian Country would face prosecution and that Native people living outside of treaty lands fell under state and federal legal authority. After centuries of colonial practice codified in the Trade and Intercourse Acts, Indigenous people entered the nineteenth century understanding that they held sovereign authority over tribal lands and that they entered non-Native jurisdictions when they traveled or chose to live outside of treaty lands. As the remainder of this essay shows, not all Native people encountered justice on either side of that line, but habeas corpus gave them the opportunity to seek redress when needed.
Habeas corpus featured prominently in the U.S. Constitution as one of the only civil rights guaranteed to the people outside of the amended bill of rights. Article 1, Section 9 asserted that "the privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Habeas corpus is the mechanism used to challenge wrongful arrest and/or violations of due process, then and now. American founders valued the writ because under British colonial rule, dissenters faced arrest and conviction without due process, and at times, the right to habeas was denied to those labeled as rebels.6 Though American lawmakers insisted on the fundamental right to habeas in the Constitution, they maintained the right of the federal government to suspend habeas in similar circumstances. State lawmakers followed suit, anchoring habeas rights within their territorial and state constitutions. Many states went further than the federal constitutional provision, however, by granting the right of habeas to those being held in private, unlawful bondage as well as those facing unlawful arrest by state or federal agents. They also protected habeas rights for "poor persons," guaranteeing legal representation to those who needed habeas but could not afford an attorney. Each of these elements are important since Native people faced dubious arrests as well as interpersonal confinement and could rarely afford their own legal counsel. That habeas rights were not contingent on citizenship status also meant the tool would become useful to Indigenous people, most of whom did not become American citizens until 1924.
The majority of lower court records in the United States are unpublished and unindexed, making it difficult to simply survey historic case files for the presence of Indigenous litigants and defendants, but we can turn to the Annual Reports of the Commissioner of Indian Affairs for evidence of Native people's nineteenth-century legal practices and the extension of American laws in Indian Country. These annual reports compiled the complaints and summaries of Indian agents accounting for every reservation within the United States, growing in number each year as the federal government continually dispossessed and consolidated tribal nations from East to West over the course of the century. Skewed by the perceptions and biases of the agents submitting their reports, the annual record nonetheless offers a remarkably detailed view of concerns facing Native people and the agents licensed to work with them. One of those concerns, it would turn out, was the use of habeas in and beyond Indian Country.
A close reading of the Commissioner's Reports reveals that concerns about habeas first emerged in 1844 in response to criminal charges against a white man, Jacob West, who had married into and was adopted by the Cherokee Nation. According to Indian Agent William Armstrong, West filed a habeas petition to the Arkansas Territorial Court after the Cherokee Nation found him guilty of murder and sentenced him to death.7 The Arkansas Court agreed with the Cherokee Nation that West fell under tribal jurisdiction when he accepted his adoption and married into the Tribe. Once West was executed, Agent Armstrong expressed concerns that white men not only faced tribal sentencing, but also that white men could dodge American jurisdiction through their incorporation into tribal nations. Armstrong argued that American and tribal citizenship were racial rather than political: "The indelible mark by which nature has distinguished the two races is not plainer nor more unchangeable than the political difference which exists between the Indians and whites domiciliated among them." He also predicted that white men would seek tribal citizenship to avoid American jurisdiction as outlined in the Trade and Intercourse Acts and claim Native privileges:
Supposing the question of citizenship to be determined, if the white man has really, 'for all legal purposes, become one of the tribe,' he will…insist that he is not amenable to our [American] courts for injuries done to the persons or property of other Indians; cannot be removed from the Indian country, unless his adopted countrymen request it; requires no license to trade, and no passport, if a foreigner; and, in short, is entitled to all the distinctions in favor of Indians expressed or implied in the laws of the land.
Agent Armstrong's concerns made their way to the U.S. Supreme Court in a case very similar to West's earlier case. Like West, William S. Rogers had married into the Cherokee Nation and was adopted into the Tribe. Rogers faced charges for murdering another white man adopted into the Cherokee Nation in 1845, and the Arkansas District Circuit Court of the U.S. took jurisdiction of the case because it featured two white men in Indian Country. Rogers appealed his conviction on the grounds that he was a Cherokee citizen exempt from federal jurisdiction when in Indian Country, but the federal Supreme Court echoed Armstrong's sentiments. In response to Rogers's claims, the justices ruled that:
1st. That a native-born citizen of the United States cannot expatriate himself, so as to owe no allegiance to the United States, without some law authorizing him to do so.
2d. That no white man can rightfully become a citizen of the Cherokee tribe of Indians, either by marriage, residence, adoption, or any other means, unless the proper authority of the United States shall authorize such incorporation.
3d. That the proviso of the act of Congress,8 relating to crimes committed by one Indian upon the property or person of another Indian, was never intended to embrace white persons, whether married and residing in the Indian nation or not.
The 1846 U.S. v. Rogers ruling upheld the Trade and Intercourse Acts that extended American jurisdiction over white actors within Indian Country and denied white Americans' capacity to expatriate, or surrender their American citizenship in favor of tribal citizenship.9 Importantly, the ruling did not impede tribal jurisdiction over Indigenous actors within Indian Country (though it did limit the terms of tribal citizenship bestowed on non-Indians), and it still left open the federal and state exercise of authority over Native people acting outside of Indian Country. These considerations would remain important for Native habeas petitioners in subsequent decades. Although Indian Agents continued to complain about the criminal actions of white Americans in Indian Country throughout the remainder of the century, they began to focus on Native habeas petitioners by the 1860s.
While national attention focused on the abolition of slavery and the emancipation of enslaved Black people over the course of the Civil War, many Westerners adopted coercive labor practices targeting Indigenous people. In places like California, Arizona, and New Mexico, Americans coupled violence with the forced servitude of Indigenous children and captive adults.10 Indian agents in California, New Mexico, and Arizona reported that white Americans were murdering Native adults and then abducting surviving children into servitude. To counter these genocidal acts, Indian agents attempted to use habeas corpus to redeem children from their murderous kidnappers. Learning about the power of habeas from white defendants in Indian Country, Indian agents applied the legal mechanism against white men who trafficked Native children after murdering their parents. Although Indian agents sometimes placed such children in non-Native homes after redeeming them, many also returned Native children to their Indigenous relatives who were sometimes key witnesses and agitators for justice when their communities suffered such tragedies. The importance of habeas as a tool against colonial violence and trafficking thus became shared knowledge among Native people and Indian Agents, and the use of habeas to redeem children from colonial violence and servitude in the Reconstruction Era echoed the use of habeas as freedom suits to redeem children from wrongful enslavement in the Antebellum Era.
In 1871, Yaqui woman Lucía Martínez used habeas to secure custody of her three- and five-year-old daughters from the former legislator who had fathered them. Her attorney had written a report on the Camp Grant Massacre that targeted Apache families and prompted Arizona Indian agents to orchestrate a habeas campaign on behalf of Apache children trafficked in the aftermath of the violent episode. Because Martínez and her children lived off reservation, Martínez filed the petition herself instead of relying on an Indian agent. She also turned the petition against her children's own father, illustrating that the white men known as Indian killers were also the fathers of Native children through the sexual violence that accompanied colonial genocide.11
After 1871, more Native women and parents used habeas to redeem their children from boarding schools that constituted an institutional form of colonial violence. An 1885 case in Sitka, Alaska, demonstrates just how widely habeas had spread throughout Indian Country. When one family successfully used habeas to force a boarding school to return their daughter, other families moved forward with their petitions. To counter this wave of legal resistance, federal officials replaced the judge who had ruled in favor of the Tlingit family's claim to their daughter and the new judge promptly denied subsequent Tlingit petitions. Remarkably, the boarding school superintendent then began using habeas to remove children from their homes and extinguish their parents' legal rights, indicating that habeas was not always used for redemption. Despite these losses in Alaska, Indigenous petitioners used habeas to challenge boarding schools, often successfully, in Iowa, Kansas, Nebraska, New Mexico, and Washington into the twentieth century.12
Just as Native parents used habeas to challenge child removal throughout the Reconstruction Era and into the Progressive Era, other petitioners used habeas to challenge reservation confinement in the aftermath of the 14th Amendment, which promised due process and equal protections under the law regardless of race. In 1868, Sac and Fox chief Moses Keokuk led a delegation to Washington, D.C., to discuss the terms of a removal treaty that would relocate his tribe from Kansas to Indian Territory, and Indian Agent Albert Wiley ordered him arrested at the Lawrence, Kansas, train station. Keokuk successfully used habeas to challenge his arrest and sue Agent Wiley for $10,000 in damages, though the cCourt only awarded him $1000. Agent Wiley appealed, and the Kansas Supreme Court upheld Keokuk's claim, agreeing that Indigenous people enjoyed the same liberties even as the President of the United States, and Keokuk continued to lead his nation until his death in the early twentieth century.
Fluent in English and habeas corpus, Omaha leader Susette LaFlesche helped her Ponca friends and relatives petition in 1879 when they were arrested for leaving their Indian Territory reservation to return to their Nebraska homelands. Ponca chief Standing Bear testified in his Native language while LaFlesche translated, and though Standing Bear's circumstances differed greatly from Keokuk's, the Ponca petition echoed many of the arguments made in the Kansas case from a decade prior. Though the Nebraska judge upheld Standing Bear and his companions' right to leave their reservation, he also ruled that the petitioners were no longer members of the Ponca Tribe and were therefore stateless since they were also not U.S. citizens. This misapplication of the law had negative consequences for Standing Bear's band that required a Congressional investigation to repair, and the Northern Ponca Tribe of Nebraska continues to be a persistent presence in their homelands with extensive outreach across the state.13
Outside of the Great Plains, Chehalis man John Heo used habeas in Washington Territory when Puyallup Indian Agent Robert H. Milroy arrested him in 1880 and insisted that Heo remain within reservation boundaries. When Heo argued that he was not a member of the Puyallup Tribe and that Agent Milroy had no authority over him, the District Court Judge disagreed, declaring that "Heo is an Indian under the charge of said Milroy, as an Indian agent of the United States." This remarkable ruling not only turned away from the Kansas Supreme Court's acknowledgment of Keokuk's right to due process and equal protections of the law regardless of race, it also expanded Indian agents' authority over all Native people regardless of their tribal affiliation, indicating that Indian agents could exercise authority over tribal members beyond the reservation. In conflating tribal status and racial status, the Washington judge reflected the Gilded Age shift in federal Indian policy away from treaty negotiation and toward assimilation and consolidation, reducing members of sovereign nations to "Indians" temporarily under guardianship until they could be assimilated into the larger fabric of the American body politic.
Whereas the Trade and Intercourse Acts of the Early Republic had acknowledged tribal jurisdiction over Native people, criminal accountability of non-Indians in Indian Country, and the lawful presence of Native people outside of treaty lands, judges and Indian agents by the 1880s advocated for the containment of Native people within treaty lands regardless of their tribal affiliation and in defiance of the 14th Amendment promise of due process and equal protection. Congress and the federal Supreme Court would go even further after Crow Dog's successful use of habeas in 1883 to challenge his conviction and death sentence in a Dakota Territory court for the murder of Spotted Tail, his Lakota adversary. The 1885 Major Crimes Act extended exclusive federal jurisdiction over crimes committed on reservations in direct violation of tribal sovereignty, and the Act continues to wreak havoc in Indian Country to this day. Passed in response to a Native petitioner's defiant use of habeas corpus to challenge state jurisdiction over Indian Country, the 1885 Major Crimes Act did not prevent Native people from continuing to use habeas, even if some courts denied their civil rights and sovereignty. Indigenous people continue to invoke their right to habeas, as the 2020 McGirt v. Oklahoma ruling demonstrates.
Including Indigenous litigants as central actors in American legal history expands our understanding of the rights of non-citizens in the eighteenth and nineteenth centuries and offers a more accurate picture of the everyday workings of state, federal, and tribal jurisdiction into the twenty-first century. As federal lawmakers acknowledged the complex patchwork of law within and beyond Indian Country, and the persistence of Native people in courts on and off reservation, historians should likewise pursue deeper analysis of Native petitioners with claims that remain relevant today.
1. Indian Country refers to territory governed by Native nations, both those held prior to treaty negotiations and those with treaty-defined boundaries.
2. A widely known example of legal pluralism includes the British ban on slavery within the British mainland while pursuing the slave trade throughout their colonial territories. Another example includes the legal system established to govern colonial Indian subjects that operated separately from the laws regulating British nationals in colonial India. Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (Cambridge University Press, 2011); Christian R. Burset, An Empire of Laws: Legal Pluralism in British Colonial Policy (Yale University Press, 2023); Somerset v. Stewart, 98 Eng. Rep. 499 (1772).
3. Nathaniel B. Shurtleff, ed, Records of the Colony of New Plymouth in New England, Court Orders: Vol. I-V (Boston: From the Press of William White, 1855); Lisa Brooks, Our Beloved Kin: A New History of King Philip's War (Yale University Press, 2018); Virginia DeJohn Anderson, "King Philip's Herds: Indians, Colonists, and the Problem of Livestock in Early New England," The William and Mary Quarterly 51, no. 4 (1994): 601–24.
4. EBSCO, "Trade and Intercourse Acts," published 2023; The Avalon Project, "Statutes of the United States Concerning Native Americans," accessed April 15, 2026.
5. Native people often chose to remain in tribal homelands even if that meant living outside of treaty-designated lands and becoming neighbors to non-Native people occupying Indigenous lands.
6. Lisa Ford, The King's Peace: Law and Order in the British Empire (Harvard University Press, 2021).
7. This incident is deeply connected to the history and politics of Cherokee Removal and is of great significance to the Cherokee Nation for reasons not fully elaborated here.
8. This was a reference to section 25 of the 1834 Trade and Intercourse Act which extended the criminal laws of the United States over Indian Country, with a proviso that they shall not include punishment for "crimes committed by one Indian against the person or property of another Indian."
9. Bethany R. Berger, "'Power Over This Unfortunate Race': Race, Politics, and Indian Law in United States v. Rogers," William and Mary Law Review 45, no. 5 (2004).
10. Katrina Jagodinsky, "Territorial Bonds: Indenture and Affection in Intercultural Arizona, 1864–1894" in On the Borders of Love and Power, 1st ed., edited by David Wallace Adams and Crista DeLuzio (University of California Press, 2012); Benjamin Madley, An American Genocide: The United States and the California Indian Catastrophe, 1846-1873 (Yale University Press, 2016); Michael F. Magliari, "'A Species of Slavery': The Compromise of 1850, Popular Sovereignty, and the Expansion of Unfree Indian Labor in the American West," The Journal of American History 109, no. 3 (2022): 521–47.
11. "Lucía Martínez: Yaqui Arizona, 1854-1900" in Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924, edited by Katrina Jagodinsky, et al. University of Nebraska–Lincoln.
12. Matthew Villeneuve, "Habeas Corpus and American Indian Boarding Schools: Indigenous Self-Determination in Body and Mind, 1880–1900," Western Historical Quarterly, 56, no. 2 (Summer 2025): 93–115; Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924, edited by Katrina Jagodinsky, et al, University of Nebraska–Lincoln, accessed December 14, 2025.
13. U.S. Congress, Senate, A Report of the Commission Appointed December 18, 1880, to Ascertain the Facts in Regard to Removal of the Ponca Indians, 46th Cong., 3d Sess., Ex. Doc. No. 30. 1881; Elizabeth S. Grobsmith and Beth H. Ritter, "The Ponca Tribe of Nebraska: The Process of Restoration of a Federally Terminated Tribe," Human Organization, 51, no. 1 (1992): 1-16.
Constitution of the United States of America (1787)