Posted May 21, 2020 by Tiffany Lee
Translated from Latin, habeas corpus means “show me the body.” Originally codified in the 1215 Magna Carta, and later adopted by the United States, habeas is a legal principle that originally enabled prisoners to challenge the legality of their detentions.
But after the Civil War, Congress expanded the rule through the Habeas Corpus Act of 1867, aimed at protecting recently freed slaves. The act’s language extended habeas beyond criminal law and into the interpersonal realm, sparking its transformation into a tool of liberation for marginalized people.
With a three-year, $460,000 grant from the National Science Foundation, University of Nebraska–Lincoln historian Katrina Jagodinsky will explore how habeas corpus was used in the American West by various marginalized groups — immigrants, women, and indigenous and enslaved people, for example — to claim freedom and establish their rights between 1812 and 1924. She is one of the first historians to study these groups’ habeas efforts as a whole, focusing on the overlapping and distinctive ways they used the law.
“Despite there being hundreds of these types of habeas petitions, no one has looked at them collectively,” said Jagodinsky, Susan J. Rosowski Associate Professor of history. “Putting all of these groups together is a very innovative aspect of the project.”
In collaboration with Nebraska’s Center for Digital Research in the Humanities, she also will develop a first-of-its-kind digital database archiving approximately 6,000 previously unpublished habeas petitions, which will be searchable by detailed demographic information.
Jagodinsky is the first woman in Nebraska’s history department, and just the second Husker historian overall, to receive an NSF grant.
The groups she’s focused on used habeas to challenge a wide array of injustices. Black petitioners resisted enslavement. Indigenous people dodged federal Indian agents — the government’s representatives on reservations — and reclaimed their children from boarding schools and settler families. Chinese immigrants challenged deportation following the Chinese Exclusion Act of 1882. Parents sought custody of children from former spouses or in-laws. And patients and inmates challenged detention in state asylums and institutions.
Though researchers have studied each type of case in isolation, no one has studied the petitioners as a comparative whole. Jagodinsky expects this bird’s-eye view to reveal a trend of marginalized people informally exchanging legal knowledge both within their own groups and with other groups. These informal networks bolstered their ability to pursue expanded rights through the legal system.
She said people often express surprise that these groups, often uneducated and illiterate, used the legal system as a vehicle for gaining rights. But their practice of sharing legal knowledge, and the circumstances of their lives, enabled them to exploit habeas effectively.
“I think it’s important to remember that these people’s lives were heavily regulated and legislated,” Jagodinsky said. “When that is the nature of your daily life, even when you are not literate, you carry a common knowledge of the law and the way it affects you.”
She is particularly interested in how black and indigenous people, and indigenous people among themselves, shared knowledge. For example, though scholars often point to the 1879 Standing Bear petition in Omaha as the first instance of a Native American using habeas to challenge federal authority over Native people, that case actually had a predecessor. In 1868, Moses Keokuk in Kansas successfully used habeas to challenge his arrest by an Indian agent.
Jagodinsky said there is evidence of a connection between the two cases. In 1878, Standing Bear and Keokuk were in Indian Territory and Standing Bear’s translator, Susette La Flesche, visited both men there as part of her work to reform Native American policy. As part of Jagodinsky’s NSF research, she will map out how they potentially traded legal knowledge during that encounter.
Jagodinsky is also working with CDRH to build a database of thousands of habeas petitions from eight states across the American West. The digital archive will be a major advance in organizing habeas petitions, which currently are stored in state and federal archives not readily accessible to the public.
Her team will index the petitions so they are searchable by race, relationship, gender, age and petition type. Right now, habeas documents are searchable only by legal party name, which isn’t always known. More expansive search capabilities will open the door for enhanced scholarship, enabling legal historians to unearth documents that were previously inaccessible, said Katherine Walter, co-director of CDRH.
“The project will allow CDRH to visualize relationships in the data by adapting different types of database structures and connecting the resulting data to the legal system,” Walter said. “We believe this has implications for future scholars of legal history.”
The database will also serve as a replicable digital tool for researchers who want to build relational archives for legal records in other areas, like family law, child custody law or other types of civil and criminal law. Jagodinsky said this aspect of the project — the creation of a new digital ontology, or categorization system based on relationships — is of particular interest to NSF because of the need to digitally archive and index records across a wide range of fields.
“I think the structure we’re using could be applied to many other types of cases,” Jagodinsky said. “If we can create the data template, then other archives can use that for their data.”