Indian Citizenship
I. Foreigners in their Own Land: Indians and the U.S. Constitution
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Commerce Clause (Art. 1, Sec. 8)
restriction of treaty-making to the federal government (Art. 2, Sec. 2)
the Supremacy Clause (Art. 6, Sec. 2) treaties as "highest law of the land
II. The Marshall Court Decisions: Cherokee v. Georgia (1831) and Worcester v. Georgia (1832)
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"They may, more correctly be denominated domestic dependent nations. They occupy a
territory to which we assert a title independent of their will, which must take effect in
point of possession when their right of possession ceases. Meanwhile, they are in a state
of pupilage. Their relation to the United States resembles that of a ward to his guardian."
(Cherokee v. Georgia)
Native Americans (nor African Americans) were part of the political community
addressed by the U.S.Constitutionl they are citizens of their own "domestic dependent
nations"; each Indian nation with established treaty relationship has a government-togovernment relationship with the U.S.
III. The Corrective (for African Americans):14th Amendment to the U.S. Constitution
(1868)
Section 1
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein
they reside. No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the
laws.
A. Test Cases:
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Standing Bear v. Crook, (aka the Dundy Decision) (1879)
"If they could be removed to Indian Territory by force, and kept there in
the same way, I can see no good reason why they might not be taken and
kept by force in the penitentiary.... I cannot think that any such arbitrary
authority exists in this country.... [Indians] have the right to 'life, liberty,
and the pursuit of happiness.' ...." Justice Dundy
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Elk v. Wilkins (1884)
B. Indian Policy Reform
Statements from Public Officials and Christian Humanitarian Reformers
A "radical change in Indian policy" is "an absolute necessity" said
Commissioner Hiram Price in 1881. One of 2 things must eventually take
place: civilization or extirmination. "Savage and civilized life cannot live
and prosper on the same ground. [50 million non-Indians and 1/4 million
Indians in 1880] The few must yield to the many."
"[T]he sacrafice of a few chieftan's feathers, a few worthless bits of
parchment [i.e. treaties], cohesion of the tribal relations, and the traditions
of their race" is a small price to pay for "life, manhood, civilization, and
Christianity." Quaker Philip Garrett
"The legal status of the uncivilized Indians should be that of wards of the
government." Board of Indian Commissioners
"[T]he ties which bind him to his tribe in the communal sense should be
severed." Commissioner of Ind. Affairs Leupp, 1907
"Barbarism has no rights which civilization is bound to respect."
"Treaty obligations themselves violate the superior law of civilization."
Dr. Lyman Abbott
IV. Keystone Legislation: The Dawes Allotment Act, 1887 : "Emancipation proclamation
for Indians" (Charles Painter, IRA) -- "the bridge over which the Indian may be led from
barbarism to civilization" (Herbert Welsh, IRA)
"It has become the settled policy of the Government to break up reservations, destroy
tribal relations, settle Indians upon their own homesteads, incorporate them into the
national life, and deal with them nots as nations or tribes or bands, but as individual
citizens. the American Indian is to become the Indian American." Commissioner of
Indian Affairs T.J. Morgan, 1890
Requirements of Coexistence from Anglo-Perspective: becoming "civilized" :
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Christianity
Education (English, 3-Rs, gender
roles)
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Protestant Work Ethic: hard
work, sobriety, saving $
Private property ownership:
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family farms
Nuclear family organization
After all above: U.S. Citizenship
C. Limbo between "pupilage and citizenship" 1887-1928 Incompetent vs Competent Indians
“Supposing you were the guardian or ward of a child 8 or 10 years of
age,” said Commissioner of Indian Affairs William Jones, [ca. 1908]
“would you ask the consent of a child as to the investment of its funds?
No; you would not.”
D. American Indian Ambivalence about U.S. Citizenship
Attending a national conference on Indian citizenship in Minneapolis in
1919, Francisco Patencio (Cahuilla) of Agua Caliente listened and said:
I hear that you want citizenship, I and my people we do not want
citizenship, because we have already been citizens in this country always….
You want citizenship. What my people in California want is to know their
reservation boundary lines.
"I know of instances where allotments have been made to an Indian without
his application, without his knowledge, and without his desire--where in
twenty-five years he has never set foot upon his alleged land, does not know
where it [is] and does not want it. He is in possession of land that he does
not want and citizenship that he does not know, much less understand." -Charles Buchanan, Tulalip Agency Superintendent.
Asked if he wanted to become a citizen in 1917, an Indian replied, "No, I
don't know how to drive a car."
E. Native Activism in World War I over conscription of non-citizen wards
V. Snyder Act (Indian Citizenship Act), 1924
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Many States continue to deny Native people voting rights into the 1930s
VI. Key Legislation reversing the Dawes Act, 1934: The Indian Reorganization Act
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Dual citizenship and sovereign immunity issues
VII. 1968 Indian Civil Rights Act applies (Bill of Rights) to Native Americans