Habeas Corpus and the Intimate Variability of Federal Indian Law

In 1901, Bad River Ojibwe John Blackbird strung his nets across Bear Trap Creek within the boundaries of Bad River Reservation, the same waters where he had fished for suckers his entire life. This time, however, a Wisconsin fish and game warden arrested him for violating state law. Unable to pay a nearly forty-dollar fine, Blackbird was sentenced to thirty days of hard labor. From his cell, he petitioned for a writ of habeas corpus that reached the desk of Federal District Judge Romanzo Bunn. Bunn ordered Blackbird’s release. Notably, Bunn grounded his decision not in a defense of treaty-reserved rights, nor did he dismantle Wisconsin’s legal logics. Instead, he offered an empathetic—if patronizing—account of Ojibwe dispossession and poverty at the hands of state and federal governments, portraying Blackbird as driven by necessity to harvest a fish most white men would not eat. The decision freed blackbird without furthering scrutinizing treaty rights in a state legal system hostile to Ojibwe sovereignty. Blackbird was one of at least a dozen Ojibwe hunters and fishers who turned to habeas corpus in the early twentieth century to navigate a settler colonial legal order intent on criminalizing treaty-protected subsistence practices. Because habeas petitions are inherently individual, they reveal the uneven and personalized nature of federal Indian law in practice: Blackbird succeeded, while others in nearly identical circumstances, appealing before different judges, did not. This paper argues that habeas corpus functioned as an under-recognized site of Indigenous legal strategy. Habeas created tactical openings—temporary spaces in which Indigenous petitions compelled federal courts to confront the contradictions of US treaty obligations. In doing so, these petitioners illuminate both the fragility of settler authority and the ongoing Indigenous insistence that the United States be held to its promises.