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.
The Congress shall have Power To …regulate Commerce…with the Indian Tribes…
ARTICLE I, SECTION 8, CLAUSE 3
That’s how it always begins. Very small.
A man living in Oklahoma has a girlfriend who has an ex-boyfriend who gets into it with the man. In a gruesome crime, the ex-boyfriend is murdered, his genitals left on his chest on the side of the road. Not being a criminal mastermind, the man, Murphy, is caught. As there is little doubt and much evidence that he did it, he is tried and convicted of capital murder. The sentenced is death.
Not so fast…
The crime was committed by a member of the Creek Nation. The victim was also a Creek. And it appears that the crime was committed on Creek land. That being the case, the state of Oklahoma would have no jurisdiction, it would be a Federal case, requiring a Federal 9not State) prosecution. Because of the laws and agreements with the Tribes, such a crime cannot have a death penalty unless the tribe agrees to it, which they almost never do.
Not so fast… was it on Creek land? The Treaty of 1831 says that it is, but subsequent treaties (1966) make it less than clear. Did Congress intend to take the land where the crime occurred away? Did they actually do it? Did somebody make a big mistake and forget a sentence in a document more than a century ago?
And if it is Creek Land, what does that mean to the State of Oklahoma? What if the State of Oklahoma, as we’ve known and loved it since 1907, isn’t the state of Oklahoma? what if it’s only half the size it is today?
Absurd, you say? That’s not what the 10th Circuit Court says. And depending on how the Supreme Court rules, it might not be so crazy. By next June there might be a new old Territory and fifty percent less of the State of Oklahoma.
It’s Constitution Thursday on The Dave Bowman Show…