A new National Endowment for the Humanities grant will help University of Nebraska–Lincoln historian Katrina Jagodinsky illuminate how ordinary people across the American West used habeas corpus to challenge confinement and injustice, offering a new look at cases still shaping American courts today.

With the grant, Jagodinsky is writing a book that builds on her expansive digital humanities project “Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924.” The online searchable database contains analysis and primary documents, transcribed and annotated, for more than 2,000 cases from Arizona, Iowa, Kansas, Missouri, Nebraska, New Mexico, Oregon and Washington. Jagodinsky said there are about 2,000 more to be added.

The forthcoming book will explore the myriad ways habeas corpus — a foundational right to due process to challenge wrongful arrest and detainment — was used by people seeking freedom from enslavement, deportation, institutionalization and even marriage.

“Narrowing it down has been the biggest challenge,” said Jagodinsky, associate professor of history. “With more than 2,000 cases to work from, I have massively increased the scale, and I have the challenge of trying to give each case its due while I’m writing about anywhere from a dozen to hundreds of cases in each chapter.”

Jagodinsky began the research for what would become “Petitioning for Freedom” in 2017, after finishing her first book, “Legal Codes and Talking Trees: Indigenous Women’s Sovereignty in the Sonoran and Puget Sound Borderlands, 1854-1946” (Yale University Press, 2016). During the work of building the database, large groups with similar habeas petitions emerged, and Jagodinsky is organizing her new book by tying individual cases to these overarching themes.

“I’m trying to give my readers an in-depth view of selected cases, while also giving them that bird’s eye view,” she said. “Each chapter of the new book features a different group of petitioners.”

Themes explored include:

• Black petitioners, who used habeas petitions to challenge enslavement;
• Native habeas petitioners, many in Nebraska, challenging various forms of colonialism;
• women who used habeas petitions for family law situations in the 19th century;
• immigrant petitioners who used habeas petitions often to challenge deportation; and
• institutionalized petitioners, often held in carceral asylums or homes for the delinquent, who used habeas to challenge the institutionalization.

Jagodinsky said each of the themes unearths new ways of thinking about history and the legal foundations that still inform American courts and due process. Throughout the development of the digital project, she was surprised to see the diverse ways ordinary people used habeas corpus — and what constitutes detainment.

“Habeas ended up being used to think about child separation and child removal as a form of confinement,” Jagodinsky said. “In the 19th century, women are often depicted as minimal legal actors, but it turns out that women were very active in using habeas. They’re currently showing up in the database at about 20% to a third of the records, depending on the jurisdiction you look at, of all habeas petitioners, which is huge.”

Additionally, the habeas petitions from those institutionalized in asylums and similar facilities shed light on how states developed laws and policies around the disabled. 

“Through this research, I didn’t even expect to find these cases, but the cases are actually teaching us what happened,” Jagodinsky said. “There had been private asylums throughout the 19th century, but at the turn of the 20th century, states throughout the American West began to invest in state-run institutions. They became very carceral spaces, even though they were not criminally sentenced.”

Jagodinsky is excited about the conversations already happening around “Petitioning for Freedom” and hopes the book will encourage more scholars to dive into the database.

“I hope that the database will launch many books and many other projects, and that is why we ended up launching over a year ago,” Jagodinsky said. “I want to encourage people and invite that kind of collaboration, and to see how other scholars think of these cases. It gives us an opportunity to rethink some of the assumptions we have about how the law operated in the 19th century, and I’m excited about that.

“I hope to offer into the contemporary conversation a sense that American legal history is not built on binaries of free and unfree, citizen and non-citizen, franchised or disfranchised. The American legal tradition has all of those people in it from the founding forward.”

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