426 



LAW, CONSTITUTIONAL. (INDIANS NOT CITIZENS.) 



members of it as chose to remain behind on 

 the removal of the tribe westward ; or author- 

 izing individuals of particular tribes to become 

 citizens by naturalization. 



Coming to the consideration of the four- 

 teenth amendment, the Court says that the 

 main object of the opening sentence was " to 

 settle the question, upon which there had been 

 a difference of opinion throughout the country, 

 and in this court, as to the citizenship of free 

 negroes (Scott vs. Sandford, 19 Howard, 893) ; 

 and to put it beyond doubt that all persons, 

 white or black, and whether formerly slaves 

 or not, born or naturalized in the United States, 

 and owing no allegiance to any alien power, 

 should be citizens of the United States, and of 

 the State in which they reside. (Slaughter- 

 House Cases, 16 Wallace's Reports, 36, 73 ; 

 Strauder vs. West Virginia, 102 U. S. Reports, 

 303, 306.") The opinion then proceeds : 



This section contemplates two sources of citizen- 

 ship, and two sources only : birth and naturalization. 

 The persons declared to be citizens are " all persons 

 born or naturalized in the United States, and subject 

 to the jurisdiction thereof." The evident meaning of 

 these last words is, not merely subject in some respect 

 or degree to the jurisdiction of the United States, but 

 completely subject to their political jurisdiction, and 

 owing them direct and immediate allegiance. And 

 the words relate to the time of birth in the one case, 

 as they do to the time of naturalization in the other. 

 Persons not thus subject to the jurisdiction of the 

 United States at the time of birth can not become so 

 afterward, except by being naturalized, either individ- 

 ually, as by proceedings under the naturalization acts, 

 or collectively, as by the force of a treaty by which 

 foreign territory is acquired. 



Indians born within the territorial limits of the 

 United States, members of, and owing immediate 

 allegiance to, one of the Indian tribes (an alien, 

 though dependent, power), although in a geographi- 

 cal sense born in the United States, are no more 

 " born in the United States and subject to the juris- 

 diction thereof," within the meaning of the first sec- 

 tion of the fourteenth amendment, than the children 

 of subjects of any foreign government born within 

 the domain of that government, or the children, born 

 within the United States, of embassadors or other 

 public ministers of foreign nations. 



This view is confirmed by the second section of the 

 fourteenth amendment, which provides that " repre- 

 sentatives shall be apportioned among the several 

 States according to their respective numbers, counting 

 the whole number of persons in each State, excluding 

 Indians not taxed." Slavery having been abolished, 

 and the persons formerly held as slaves made citizens, 

 this clause fixing the apportionment of representatives 

 has abrogated so much of the corresponding clause of 

 the original Constitution as counted only three fifths 

 of such persons. But Indians not taxed are still ex- 

 cluded from the count, for the reason that they are 

 not citizens. Their absolute exclusion from the basis 

 of representation, in which all other persons are now 

 included, is wholly inconsistent with their being con- 

 sidered citizens. 



So the further provision of the second section for a 

 proportionate reduction of the basis of the representa- 

 tion of any State in which the right to vote for presi- 

 dential electors, representatives 'in Congress, or exec- 

 utive or judicial officers, or members of the Legislature 

 of a State, is denied, except for participation in re- 

 bellion or other crime, to "any of the male inhabit- 

 ants of such State, being twenty-one years of age and 

 citizens of the United States," 'can not apply to a de- 

 nial of the elective franchise to Indians not taxed, 



who form no part of the people entitled to representa- 

 tion. 



It is also worthy of remark that the language used 

 about the same time, by the very Congress which' 

 framed the fourteenth amendment, in the first section 

 of the Civil Eights Act of April 9, 1866, declaring who 

 shall be citizens of the United States, is " all persons 

 born in the United States, and not subject to any 

 foreign power, excluding Indians not taxed " (14 U 

 S. Stat., 27 ; U. S. Kev. Stat., 1992). 



Such Indians, then, not being citizens by birth, 

 can only become citizens in the second way men- 

 tioned in the fourteenth amendment, by being "nat- 

 uralized in the United States," by or under some 

 treaty or statute. 



The Court adds that since the ratification of 

 the fourteenth amendment Congress has passed 

 several acts for naturalizing Indians of certain 

 tribes, " which acts would have been superflu- 

 ous if Indians were or might become, without 

 any action of the Government, citizens of the 

 United States " ; and that "the recent statuteg 

 concerning homesteads are quite inconsistent 

 with the theory that Indians do or can make 

 themselves independent citizens by living apart 

 from their tribes." In conclusion, the Court 

 says : " Upon the question whether any action 

 of a State can confer rights of citizenship on 

 Indians of a tribe still recognized by the United 

 States as retaining its tribal existence, we need 

 not and do not express an opinion, because 

 the State of Nebraska is not shown to have 

 taken any action affecting the condition of this 

 plaintiff. (See Chirac vs. Chirac, 2 Wheaton's 

 Reports, 259; Fellows vs. Blacksmith, 19 

 Howard's Reports, 366 ; United States vs. Hol- 

 liday, 3 Wallace's Reports, 407, 420; United 

 States vs. Joseph, 94 U. S. Reports, 614, 618.) 



"The plaintiff, not being a citizen of the 

 United States under the fourteenth amendment 

 of the Constitution, has been deprived of no 

 right secured by the fifteenth amendment, end 

 can not maintain this action." 



From this decision Justices Harlan and Woods 

 dissented, in an elaborate opinion written by 

 the former. They maintain that there is 

 nothing in the history of the adoption of the 

 fourteenth amendment that justifies the con- 

 clusion that only those Indians are included in 

 its grant of national citizenship who were, at 

 the time of their birth, subject to the complete 

 jurisdiction of the United States. "A careful 

 examination of all that was said by Senators 

 and Representatives, pending the consideration 

 by Congress of the fourteenth amendment, 

 justifies us in saying that every one who par- 

 ticipated in the debates, whether for or against 

 the amendment, believed that, in the form in 

 which it was approved by Congress, it granted, 

 and was intended to grant, national citizenship 

 to every person of the Indian race in this coun- 

 try who was unconnected with any tribe, and 

 who resided, in good faith, outside of Indian 

 reservations, and within one of the States or 

 Territories of the Union. This fact is, we 

 think, entitled to great weight in determin- 

 ing the meaning and scope of the amend- 

 ment." 



