It would take 40 years for a series of legal changes to make full citizenship a reality for all American Indians living in the United States, despite the 14th Amendment’s promise of equal protection and due process under the law for all Americans.
As late as 1948, two states (Arizona and New Mexico) had laws that barred many American Indians from voting, and American Indians faced some of the same barriers as blacks, until the passage of the Civil Rights Act of 1965.
The case of Elk v. Wilkins in 1884 dealt with a birthright citizenship claim. John Elk was an American Indian who gave up his tribal affiliation, moved to Omaha, spoke English, paid taxes, and then tried to vote.
Writing for the majority, Justice Horace Gray said Elk had no claim to citizenship because he had never been naturalized as an American citizen through a treaty or statute. Even though he was born within the territorial jurisdiction of the United States, the 14th Amendment didn’t apply to Elk, Gray said, because Elk was born as a subject of an Indian nation that was an alien power.
The argument over Indian nations went back to the era of Chief Justice John Marshall. In what was later known as the Marshall Trilogy rulings, the Chief Justice established the precedents for how the United States legal system would deal with political and social rights for American Indians who lived in the territorial boundaries of the United States.
Marshall wrote in Cherokee Nation v. Georgia in 1831 that the Cherokees didn’t have legal standing to prevent the state of Georgia from seizing its lands because Indians were “in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”
American Indians were also part of the Dred Scott decision in 1857 but in a much different way. Chief Justice Roger Taney argued that American Indians, unlike enslaved blacks, could become citizens, under congressional and legal supervision.
The citizenship of Indian tribes or nations came up a decade later as Congress considered the Civil Rights Act and the 14th Amendment. In January 1866, when the Senate started debating the Civil Rights Act there were concerns that the bill’s broad language would confer citizenship on all American Indians. The final bill just granted citizenship to American Indians “who are domesticated and pay taxes and live in civilized society” and were therefore “incorporated into the United States.”
When Justice John Marshall Harlan looked at these debates as he wrote his dissent in Elk v. Wilkins in 1884, the intent seemed obvious. “It would seem manifest, from this brief review of the history of the act of 1866, that one purpose of that legislation was to confer national citizenship upon a part of the Indian race in this country—such of them, at least, as resided in one of the states or territories, and were subject to taxation and other public burdens,” Harlan said.
Harlan also said the 14th Amendment’s intention was equally clear in this area, as an extension of the Civil Rights Act of 1866.
“There is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States,” he concluded.
After the Elk v. Wilkins decision, the Dawes Act in 1887 gave American citizenship to all Native Americans who accepted individual land grants under the provisions of statutes and treaties. But the issue of American Indian birthright citizenship wouldn’t fully be settled until 1924 when Congress conferred citizenship on all American Indians under the Indian Citizenship Act.
The act said that “all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.” At the time, 125,000 of an estimated population of 300,000 American Indians weren’t citizens.
Scott Bomboy is the editor in chief of the National Constitution Center.
This past week the Chief Justice of the US Supreme Court ordered a stay, delaying the start of the trial of the case, Juliana v US. this is the second time that there has been a stay in the famous case, which seeks to force the US Government to pursue policies that would “keep warming in check.” Both the Obama Administration and the Trump administration (which submitted a 103-page argument to the Court asking for the stay) have argued that the case is problematic, in that it violates the separation of powers in the Constitution.
The plaintiffs, supposedly a group of young people, claim that their civil rights have been violated and they have demanded policy changes that would “protect their civil rights” from the effects of global climate change in the future.
This raises a number of questions, one of which is, what exactly is a “civil right?”
On October 20, 1803, the Senate ratified a treaty with France, promoted by President Thomas Jefferson, that doubled the size of the United States. But was Jefferson empowered to make that $15 million deal under the Constitution?
The Louisiana Purchase was a seminal moment for a new nation. The land involved in the 830,000 square mile treaty would eventually encompass 15 states. In 1800, the vast region came under French control after Napoleon reached a treaty agreement with Spain. Jefferson was very familiar with the French, due to his time in Europe as an American envoy. He also understood the potential military danger a French regime posed as a neighbor that controlled the Mississippi River.
Jefferson sent James Monroe in 1803 to France to join Robert R. Livingston in an attempt to buy some part of the territory from the Napoleon regime, in order to head off a potential armed conflict. Jefferson told his friend Monroe that “all eyes, all hopes, are now fixed on you, …. for on the event of this mission depends the future destinies of this republic.” Monroe had the authority to spend up to $10 million to acquire New Orleans and all or parts of Florida.
But when Monroe arrived in Europe, Napoleon had already made a decision to sell the territory to the United States, in order to protect other French territories in the Caribbean and to finance his military efforts in Europe. Monroe and Livingston found out Napoleon wanted $22 million for the entire territory. After several weeks of negotiations, the Americans made a deal for the $15 million purchase, which also exceeded what they had the authority to spend. It took several months for the official news to reach Jefferson in Washington, D.C., and it was announced on July 4, 1803.
While the deal was instantly popular, there were problems. Negotiations would need to start with Great Britain and Spain about shared boundaries. And there was a debate about how such a large purchase was allowed under the Constitution.
Jefferson took a strict, literal view of constitutional powers, meaning that specific powers reserved for the President and Executive Branch needed to be spelled out in the Constitution. The ability to buy property from foreign governments was not among these powers listed in Article IV of the Constitution – a fact that his political opponents, the Federalists, were eager to point out to the President.
Instead, Jefferson considered a constitutional amendment as the only way to conclude the deal with France. “The General Government has no powers but such as the Constitution gives it,” he wrote to John Dickinson in 1803. “It has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this.”
However, Jefferson had no intention of losing the deal with France. “In the meantime we must ratify and pay our money, as we have treated, for a thing beyond the Constitution, and rely on the nation to sanction an act done for its great good, without its previous authority,” he told Dickinson.
Jefferson’s cabinet, including James Madison, disagreed about the need for a constitutional amendment. The President also had been assured earlier in the year by Albert Gallatin, his Treasury Secretary, that any potential deal with France would be permissible and implied under the Constitution’s treaty-making provisions.
Jefferson rationalized his decision for the treaty to be sent to Congress without an amendment to John Breckinridge. “It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good,” he said in August 1803.
By that time, Jefferson and his supporters faced an October 31, 1803 deadline to ratify the treaty or lose the purchase. Ironically, the deal to expand federal powers would need to be sold to the Federalists, who had advocated such a position before the treaty was signed, and supported by the Republicans, Jefferson’s party, which had opposed such a broad extension of presidential powers.
The debate in the Senate only lasted for two days. On October 20, 1803, the Senate voted for ratification 24-7, and the treaty was signed on October 31, 1803. In the treaty’s aftermath, although some Federalists continued to view the Louisiana Purchase as unconstitutional, the purchase was never questioned in court. If it had been, Jefferson may have come in conflict with his own cousin and political rival, Supreme Court Chief Justice John Marshall.
But years later, Marshall made his thoughts clear about the treaty clause in an 1823 decision called American Insurance Co. v. Canter. “The Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty,” Marshall said.
Scott Bomboy is the editor in chief of the National Constitution Center.