Enemy Combatants, Then and Now
Earlier this summer, the Ponca Tribe of Oklahoma won a $10.5 million settlement in its case against Continental Carbon for pollution that threatened the environment and the health of people on tribal lands. As Native American property owner Amos Hinton said of Continental’s Taiwanese-based parent company, “Pollution being placed on our ancestors’ graves and our homes for the sake of profit by foreign corporations … is completely unacceptable and it had to be stopped.”
Hinton is a descendent of Ponca Chief Standing Buffalo, a contemporary of Chief Standing Bear, who is the subject of a recent book, “I Am a Man”: Chief Standing Bear’s Journey for Justice. The Oklahoma Ponca are descendents of the Ponca tribe that originated 600 miles north in Nebraska. In the late 1870’s, the federal government forced the tribe out of the homeland and into the then Indian Territories of Oklahoma. But Chief Standing Bear led a band on foot back to their homeland, where they were arrested by the military and imprisoned at Fort Omaha. Local lawyers sympathetic to the Chief came forward to fight another forced exile, and argued against the government’s contention that the Native Americans had no right to a writ of habeas corpus, on the grounds that Indians were not citizens.
In a historic first, Judge Elmer S. Dundy sided in favor of the Chief, ruling that “an Indian is a person within the meaning of the laws of the United States” and that the band could not be forcibly moved or confined to a reservation without their consent. The small band of Nebraska Ponca were ultimately awarded back a small slice of their homeland, where they remain to this day, apart from their Oklahoma kin.
Reflecting on the story of Chief Standing Bear, author Joe Sarita noted the parallels with issues around military tribunals today.
Undoubtedly, Standing Bear would have been considered an enemy combatant of his time….Yet 130 years later, scores of [what until recently were known as] “enemy combatants” remain locked up in Guantánamo, cut off from the oldest liberty in the Constitution, unable to have a court decide their guilt or innocence. And this is not about their guilt or innocence. What has often separated this country from others is its adherence to the belief of “equality before the law.” So how could this have been a guiding principle in 1879 but not in 2009?