The plaintiff, in support of his action, relies on the first clause of the first section of the Fourteenth Article of Amendment of the Constitution of the United States, by which "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;" and on the Fifteenth Article of Amendment, which provides that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."
This being a suit at common law, in which the matter in dispute exceeds $500, arising under the Constitution of the United States, the Circuit Court had jurisdiction of it under the act of March 3, 1875, ch. 137, § 1, even if the parties were citizens of the same State. 18 Stat. 470; Ames v. Kansas, 111 U.S. 449. The judgment of that court, dismissing the action with costs, must have proceeded upon the merits, for, if the dismissal had been for want of jurisdiction, no costs could have been awarded. The Mayor v. Cooper, 6 Wall. 247; Mansfield & Coldwater Railway v. Swan, 111 U.S. 379. And the only point argued by the defendant in this court is whether the petition sets forth facts enough to constitute a cause of action.
The decision of this point, as both parties assume in their briefs, depends upon the question whether the legal conclusion, that under and by virtue of the Fourteenth Amendment of the Constitution the plaintiff is a citizen of the United States, is supported by the facts alleged in the petition and admitted by the demurrer, to wit: The plaintiff is an Indian, and was born in the United States, and has severed his tribal relation to the Indian tribes, and fully and completely surrendered himself to the jurisdiction of the United States, and still continues to be subject to the jurisdiction of the United States, and is a bona fide resident of the State of Nebraska and city of Omaha.
The petition, while it does not show of what Indian tribe the plaintiff was a member, yet, by the allegations that he "is
The question then is, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment of the Constitution.
Under the Constitution of the United States, as originally established, "Indians not taxed" were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several States; and Congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the States of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the President and Senate, or through acts of Congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed
The alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization, and satisfactory proof of fitness for civilized life; for examples of which see treaties in 1817 and 1835 with the Cherokees, and in 1820, 1825 and 1830 with the Choctaws, 7 Stat. 159, 211, 236, 335, 483, 488; Wilson v. Wall, 6 Wall. 83; Opinion of Attorney-General Taney, 2 Opinions of Attorneys General, 462; in 1855 with the Wyandotts, 10 Stat. 1159; Karrahoo v. Adams, 1 Dillon, 344, 346; Gray v. Coffman, 3 Dillon, 393; Hicks v. Butrick, 3 Dillon, 413; in 1861 and in March, 1866, with the Pottawatomies, 12 Stat. 1192; 14 Stat. 763; in 1862 with the Ottawas, 12 Stat. 1237; and the Kickapoos, 13 Stat. 624; and acts of Congress of March 3, 1839, ch. 83, § 7, concerning the Brothertown Indians, and of March 3, 1843, ch. 101, § 7, August 6, 1846, ch. 88, and March 3, 1865, ch. 127, § 4, concerning the Stockbridge Indians, 5 Stat. 351, 647; 9 Stat. 55; 13 Stat. 562. See also treaties with the Stockbridge Indians in 1848 and 1856, 9 Stat. 955; 11 Stat. 667; 7 Opinions of Attorneys General, 746.
Chief Justice Taney, in the passage cited for the plaintiff
The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which "no person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President;" and "the Congress shall have power to establish an uniform rule of naturalization." Constitution, art. 2, sect. 1; art. 1, sect. 8.
By the Thirteenth Amendment of the Constitution slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment 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 v. Sandford, 19 How. 393); 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 Wall. 36, 73; Strauder v. West Virginia, 102 U.S. 303, 306.
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared
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 geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section 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 ambassadors or other public ministers of foreign nations.
This view is confirmed by the second section of the Fourteenth Amendment, which provides that "representatives 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 excluded 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 considered citizens.
So the further provision of the second section for a proportionate
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 Rights 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 Stat. 27; Rev. Stat. § 1992.
Such Indians, then, not being citizens by birth, can only become citizens in the second way mentioned in the Fourteenth Amendment, by being "naturalized in the United States," by or under some treaty or statute.
The action of the political departments of the government, not only after the proposal of the Amendment by Congress to the States in June, 1866, but since the proclamation in July, 1868, of its ratification by the requisite number of States, accords with this construction.
While the Amendment was pending before the legislatures of the several States, treaties containing provisions for the naturalization of members of Indian tribes as citizens of the United States were made on July 4, 1866, with the Delawares, in 1867 with various tribes in Kansas, and with the Pottawatomies, and in April, 1868, with the Sioux. 14 Stat. 794, 796; 15 Stat. 513, 532, 533, 637.
The treaty of 1867 with the Kansas Indians strikingly illustrates the principle that no one can become a citizen of a nation without its consent, and directly contradicts the supposition that a member of an Indian tribe can at will be alternately a citizen of the United States and a member of the tribe.
That treaty not only provided for the naturalization of members
Since the ratification of the Fourteenth Amendment, Congress has passed several acts for naturalizing Indians of certain tribes, which would have been superfluous if they were, or might become, without any action of the government, citizens of the United States.
By the act of July 15, 1870, ch. 296, § 10, for instance, it was provided that if at any time thereafter any of the Winnebago Indians in the State of Minnesota should desire to become citizens of the United States, they should make application to the District Court of the United States for the District of Minnesota, and in open court make the same proof and take the same oath of allegiance as is provided by law for the naturalization of aliens, and should also make proof to the satisfaction of the court that they were sufficiently intelligent and prudent to control their affairs and interests, that they had adopted the habits of civilized life, and had for at least five years before been able to support themselves and their families; and thereupon
The act of January 25, 1871, ch. 38, for the relief of the Stockbridge and Munsee Indians in the State of Wisconsin, provided that "for the purpose of determining the persons who are members of said tribes and the future relation of each to the government of the United States," two rolls should be prepared under the direction of the Commissioner of Indian Affairs, signed by the sachem and councillors of the tribe, certified by the person selected by the Commissioner to superintend the same, and returned to the Commissioner; the one, to be denominated the citizen roll, of the names of all such persons of full age, and their families, "as signify their desire to separate their relations with said tribe, and to become citizens of the United States," and the other, to be denominated the Indian roll, of the names of all such "as desire to retain their tribal character and continue under the care and guardianship of the United States;" and that those rolls, so made and returned, should be held as a full surrender and relinquishment, on the part of all those of the first class, of all claims to be known or considered as members of the tribe, or to be interested
The Pension Act exempts Indian claimants of pensions for service in the army or navy from the obligation to take the oath to support the Constitution of the United States. Act of March 3, 1873, ch. 234, § 28; 17 Stat. 574; Rev. Stat. § 4721.
The recent statutes concerning homesteads are quite inconsistent with the theory that Indians do or can make themselves independent citizens by living apart from their tribe. The act of March 3, 1875, ch. 131, § 15, allowed to "any Indian born in the United States, who is the head of a family, or who has arrived at the age of twenty-one years, and who has abandoned, or may hereafter abandon, his tribal relations," the benefit of the homestead acts, but only upon condition of his "making satisfactory proof of such abandonment, under rules to be prescribed by the Secretary of the Interior;" and further provided that his title in the homestead should be absolutely inalienable for five years from the date of the patent, and that he should be entitled to share in all annuities, tribal funds, lands and other property, as if had maintained his tribal relations. 18 Stat. 420. And the act of March 3, 1884, ch. 180, § 1, while it allows Indians "located on public lands" to "avail themselves of the homestead laws as fully and to the same extent as may now be done by citizens of the United States," provides that the form and the legal effect of the patent shall be that the United States does and will hold the land for twenty-five years in trust for the Indian making the entry, and his widow and heirs, and will then convey it in fee to him or them. 23 Stat. 96.
The national legislation has tended more and more towards the education and civilization of the Indians, and fitting them to be citizens. But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization, that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are
There is nothing in the statutes or decisions, referred to by counsel, to control the conclusion to which we have been brought by a consideration of the language of the Fourteenth Amendment, and of the condition of the Indians at the time of its proposal and ratification.
The act of July 27, 1868, ch. 249, declaring the right of expatriation to be a natural and inherent right of all people, and reciting that "in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship," while it affirms the right of every man to expatriate himself from one country, contains nothing to enable him to become a citizen of another, without being naturalized under its authority. 15 Stat 223; Rev. Stat. § 1999.
The provision of the act of Congress of March 3, 1871, ch. 120, that "hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty," is coupled with a provision that the obligation of any treaty already lawfully made is not to be thereby invalidated or impaired; and its utmost possible effect is to require the Indian tribes to be dealt with for the future through the legislative and not through the treaty-making power. 16 Stat. 566; Rev. Stat. § 2079.
In the case of United States v. Elm, 23 Int. Rev. Rec. 419, decided by Judge Wallace in the District Court of the United States for the Northern District of New York, the Indian who was held to have a right to vote in 1876 was born in the State of New York, one of the remnants of a tribe which had ceased to exist as a tribe in that State; and by a statute of the State it had been enacted that any native Indian might purchase, take, hold and convey lands, and, whenever he should have become a freeholder to the value of one hundred dollars, should be liable to taxation, and to the civil jurisdiction of the courts, in the same manner and to the same extent as a citizen. N.Y. Stat. 1843, ch. 87. The condition of the tribe from which he
The passages cited as favorable to the plaintiff from the opinions delivered in Ex parte Kenyon, 5 Dillon, 385, 390, in Ex parte Reynolds, 5 Dillon, 394, 397, and in United States v. Crook, 5 Dillon, 453, 464, were obiter dicta. The Case of Reynolds was an indictment in the Circuit Court of the United States for the Western District of Arkansas for a murder in the Indian country, of which that court had jurisdiction if either the accused or the dead man was not an Indian, and was decided by Judge Parker in favor of the jurisdiction, upon the ground that both were white men, and that, conceding the one to be an Indian by marriage, the other never was an Indian in any sense. 5 Dillon, 397, 404. Each of the other two cases was a writ of habeas corpus; and any person, whether a citizen or not, unlawfully restrained of his liberty, is entitled to that writ. Case of the Hottentot Venus, 13 East, 195; Case of Dos Santos, 2 Brock. 493; In re Kaine, 14 How. 103. In Kenyon's Case, Judge Parker held that the court in which the prisoner had been convicted had no jurisdiction of the subject matter, because the place of the commission of the act was beyond the territorial limits of its jurisdiction, and, as was truly said, "this alone would be conclusive of this case." 5 Dillon,
The law upon the question before us has been well stated by Judge Deady in the District Court of the United States for the District of Oregon. In giving judgment against the plaintiff in a case resembling the case at bar, he said: "Being born a member of `an independent political community' — the Chinook — he was not born subject to the jurisdiction of the United States — not born in its allegiance." McKay v. Campbell, 2 Sawyer, 118, 134. And in a later case he said: "But an Indian cannot make himself a citizen of the United States without the consent and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form. The Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since." United States v. Osborne, 6 Sawyer, 406, 409.
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 v. Chirac, 2 Wheat. 259; Fellows v. Blacksmith, 19 How. 366; United States v. Holliday, 3 Wall. 407, 420; United States v. Joseph, 94 U.S. 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, and cannot maintain this action.
Mr. Justice Woods and myself feel constrained to express our dissent from the interpretation which our brethren give to that clause of the Fourteenth Amendment which provides that "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."
The case, as presented by the record, is this: John Elk, the plaintiff in error, is a person of the Indian race. He was born within the territorial limits of the United States. His parents were, at the time of his birth, members of one of the Indian tribes in this country. More than a year, however, prior to his application to be registered as a voter in the city of Omaha, he had severed all relations with his tribe, and, as he alleges, fully and completely surrendered himself to the jurisdiction of the United States. Such surrender was, of course, involved in his act of becoming, as the demurrer to the petition admits that he did become, a bona fide resident of the State of Nebraska. When he applied in 1880 to be registered as a voter, he possessed, as is also admitted, the qualifications of age and residence in State, county, and ward, required for electors by the Constitution and laws of that State. It is likewise conceded that he was entitled to be so registered, if, at the time of his application, he was a citizen of the United States; for, by the Constitution and laws of Nebraska every citizen of the United States, having the necessary qualifications of age and residence in State, county, and ward, is entitled to vote. Whether he was such citizen is the single question presented by this writ of error.
It is said that the petition contains no averment that Elk was taxed in the State in which he resides, or had ever been treated by her as a citizen. It is evident that the court would not have held him to be a citizen of the United States, even if the petition had contained a direct averment that he was taxed; because its judgment, in legal effect, is, that, although born within the territorial limits of the United States, he could not, if at his birth a member of an Indian tribe, acquire national citizenship
While denying that national citizenship, as conferred by that amendment, necessarily depends upon the inquiry whether the person claiming it is taxed in the State of his residence, or has property therein from which taxes may be derived, we submit that the petition does sufficiently show that the plaintiff is taxed, that is, belongs to the class which, by the laws of Nebraska, are subject to taxation. By the Constitution and laws of Nebraska all real and personal property, in that State, are subject to assessment and taxation. Every person of full age and sound mind, being a resident thereof, is required to list all of his personal property for taxation. Const. Neb., art. 9, § 1; Compiled Stat. of Neb., ch. 77, pp. 400-1. Of these provisions upon the subject of taxation this court will take judicial notice. Good pleading did not require that they should be set forth, at large, in the petition. Consequently, an averment that the plaintiff is a citizen and bona fide resident of Nebraska implies, in law, that he is subject to taxation, and is taxed, in that State. Further: The plaintiff has become so far incorporated with the mass of the people of Nebraska that, being, as the petition avers, a citizen and resident thereof, he constitutes a part of her militia. Comp. Stat. Neb., ch. 56. He may, being no longer a member of an Indian tribe, sue and be sued in her courts. And he is counted in every apportionment of representation in the legislature; the requirement of her Constitution being, that "the legislature shall apportion the Senators and Representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army." Const. Neb., art. 3, § 1.
By the act of April 9, 1866, entitled "An Act to protect all persons in the United States in their civil rights, and furnish means for their vindication" (14 Stat. 27), it is provided that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." This, so far as we are aware, is the first general enactment making persons of the Indian race citizens of the United States. Numerous statutes and treaties previously provided for all the individual members of particular Indian tribes becoming, in certain contingencies, citizens of the United States. But the act of 1866 reached Indians not in tribal relations. Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race (excluding only "Indians not taxed"), who were born within the territorial limits of the United States, and were not subject to any foreign power. Surely every one must admit that an Indian, residing in one of the States, and subject to taxation there, became, by force alone of the act of 1866, a citizen of the United States, although
In the bill as originally reported from the Judiciary Committee there were no words excluding "Indians not taxed" from the citizenship proposed to be granted. Attention being called to this fact, the friends of the measure disclaimed any purpose to make citizens of those who were in tribal relations with governments of their own. In order to meet that objection, while conforming to the wishes of those desiring to invest with citizenship all Indians permanently separated from their tribes, and who, by reason of their residence away from their tribes, constituted a part of the people under the jurisdiction of the United States, Mr. Trumbull, who reported the bill, modified it by inserting the words "excluding Indians not taxed." What was intended by that modification appears from the following language used by him in debate:
"Of course we cannot declare the wild Indians who do not recognize the government of the United States, who are not subject to our laws, with whom we make treaties, who have their own laws, who have their own regulations, whom we do not intend to interfere with or punish for the commission of crimes one upon the other, to be the subjects of the United States in the sense of being citizens. They must be excepted. The Constitution of the United States excludes them from the enumeration of the population of the United States when it says that Indians not taxed are to be excluded. It has occurred to me that, perhaps, the amendment would meet the views of all gentlemen, which used these constitutional words, and said that all persons born in the United States, excluding
In replying to the objections urged by Mr. Hendricks to the bill even as amended, Senator Trumbull said:
"Does the Senator from Indiana want the wild roaming Indians, not taxed, not subject to our authority, to be citizens of the United States — persons that are not to be counted in our government? If he does not, let him not object to this amendment that brings in even [only] the Indian when he shall have cast off his wild habits, and submitted to the laws of organized society and become a citizen." Ibid. 528.
The entire debate shows, with singular clearness, indeed, with absolute certainty, that no Senator who participated in it, whether in favor of or in opposition to the measure, doubted that the bill, as passed, admitted, and was intended to admit, to national citizenship Indians who abandoned their tribal relations, and became residents of one of the States or Territories, within the full jurisdiction of the United States. It was so interpreted by President Johnson, who, in his veto message, said:
"By the first section of the bill all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States."
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. And it is to be observed that, whoever was included within the terms of the grant, contained in that act, became citizens of the United States, without any record of
At the same session of the Congress which passed the act of 1866, the Fourteenth Amendment was approved and submitted to the States for adoption. Those who sustained the former urged the adoption of the latter. An examination of the debates in Congress, pending the consideration of that amendment, will show that there was no purpose, on the part of those who framed it or of those who sustained it by their votes, to abandon the policy inaugurated by the act of 1866, of admitting to national citizenship such Indians as were separated from their tribes, and were residents of one of the States or of one of the Territories, outside of any reservation or territory set apart for the exclusive use and occupancy of Indian tribes.
Prior to the adoption of the Fourteenth Amendment numerous statutes were passed with reference to particular bodies of Indians, under which all the individual members of such bodies, upon the dissolution of their tribal relations or upon the division of their lands derived from the government, became or were entitled to become, citizens of the United States by force alone of the statute, without observing any of the forms required by the naturalization laws in the case of a foreigner becoming a citizen of the United States. Such was the statute of March 3, 1839, 5 Stat. 349, relating to the Brothertown Indians, in the then Territory of Wisconsin. Congress consented that the lands reserved for their use might be partitioned among the individuals composing that tribe. The act required the partition to be evidenced by a report and map to be filed with the Secretary of the Interior, by whom it should be transmitted to the President; whereupon, the act proceeded, "the said Brothertown Indians, and each and every of them, shall then be deemed to be, and, from that time forth, are hereby declared to be, citizens of the United States to all intents and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens," &c. Similar legislation was enacted with
If it be also said that, since the adoption of the Fourteenth Amendment, Congress has enacted statutes providing for the citizenship of Indians, our answer is, that those statutes had reference to tribes, the members of which could not, while they continued in tribal relations, acquire the citizenship granted by the Amendment. Those statutes did not deal with individual Indians who had severed their tribal connections and were residents within the States of the Union, under the complete jurisdiction of the United States.
There is nothing in the history of the adoption of the Fourteenth Amendment which, in our opinion, justifies the conclusion
When the Fourteenth Amendment was pending in the Senate of the United States, Mr. Doolittle moved to insert after the words "subject to the jurisdiction thereof," the words "excluding Indians not taxed." His avowed object in so amending the measure was to exclude, beyond all question, from the proposed grant of citizenship, tribal Indians who — since they were, in a sense, subject to the jurisdiction of the United States — might be regarded as embraced in the grant. The proposition was opposed by Mr. Trumbull and other friends of the proposed constitutional amendment, upon the ground that the words "Indians not taxed" might be misconstrued, and, also, because those words were unnecessary, in that the phrase "subject to the jurisdiction thereof" embraced only those who were subject to the complete jurisdiction of the United States, which could not be properly said of Indians in tribal relations. But it was distinctly announced by the friends of the measure that they intended to include in the grant of national citizenship Indians who were within the jurisdiction of the States, and subject to their laws, because such Indians would be completely under the jurisdiction of the United States. Said Mr. Trumbull: "It is only those who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens." Congress. Globe, Pt. 4, 1st. Sess., 39th Cong., pp. 2890 to 2893. Alluding to the phrase "Indians not taxed," he remarked that the language of the proposed constitutional amendment was
"There is a difficulty about the words `Indians not taxed.' Perhaps one of the reasons why I think so is because of the persistency with which the Senator from Indiana himself insisted that the phrase `Indians not taxed,' the very words which the Senator from Wisconsin wishes to insert here, would exclude everybody that did not pay a tax; that that was the meaning of it; we must take it literally. The Senator from Maryland did not agree to that nor did I, but, if the Senator from Indiana was right, it would receive a construction which, I am sure, the Senator from Wisconsin would not be for, for if these Indians come within our limits and within our jurisdiction and are civilized, he would just as soon make a citizen of a poor Indian as of the rich Indian." Ibid. 2894.
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 participated 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 country 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 determining the meaning and scope of the amendment. Lithographic Co. v. Sarony, 111 U.S. 57.
In this connection we refer to an elaborate report made by Mr. Carpenter, to the Senate of the United States, in behalf of its judiciary committee, on the 14th of December, 1870. The report was made in obedience to an instruction to inquire as to the effect of the Fourteenth Amendment upon the treaties which the United States had with various Indian tribes of the country. The report says: "For these reasons your committee do not hesitate to say that the Indian tribes within the limits of the United States, and the individuals, members of such tribes, while they adhere to and form a part of the tribes to which they belong, are not, within the meaning of the
The question before us has been examined by a writer upon constitutional law whose views are entitled to great respect. Judge Cooley, referring to the definition of national citizenship as contained in the Fourteenth Amendment, says:
"By the express terms of the amendment, persons of foreign birth, who have never renounced the allegiance to which they were born, though they may have a residence in this country, more or less permanent, for business, instruction, or pleasure, are not citizens. Neither are the aboriginal inhabitants of the country citizens, so long as they preserve their tribal relations and recognize the headship of their chiefs, notwithstanding that, as against the action of our own people, they are under the protection of the laws, and may be said to owe a qualified allegiance to the government. When living within territory over which the laws, either State or Territorial, are extended, they are protected by, and, at the same time, held amenable to, those laws in all their intercourse with the body politic, and with the individuals composing it; but they are also, as a quasi-foreign people, regarded as being under the direction and tutelage of the general government, and subjected to peculiar regulations as dependent communities. They are `subject to the jurisdiction' of the United States only in a much qualified sense; and it would be obviously inconsistent with the semi-independent character of such a tribe, and with the obedience they are expected to render to their tribal head, that they should be vested with the complete rights, or, on the other
"When, however, the tribal relations are dissolved, when the headship of the chief or the authority of the tribe is no longer recognized, and the individual Indian, turning his back upon his former mode of life, makes himself a member of the civilized community, the case is wholly altered. He then no longer acknowledges a divided allegiance; he joins himself to the body politic; he gives evidence of his purpose to adopt the habits and customs of civilized life; and as his case is then within the terms of this amendment, it would seem that his right to protection, in person, property and privilege, must be as complete as the allegiance to the government to which he must then be held; as complete, in short, as that of any other native born inhabitant." 2 Story's Const., Cooley's Edi., § 1933, p. 654.
To the same effect are Ex parte Kenyon, 5 Dillon, 390; Ex parte Reynolds, Ib. 307; United States v. Crook, Ib. 454; United States v. Elm, Dist. Ct. U.S., Northern District of New York, 23 Int. Rev. Rec. 419.
It seems to us that the Fourteenth Amendment, in so far as it was intended to confer national citizenship upon persons of the Indian race, is robbed of its vital force by a construction which excludes from such citizenship those who, although born in tribal relations, are within the complete jurisdiction of the United States. There were, in some of our States and Territories at the time the amendment was submitted by Congress, many Indians who had finally left their tribes and come within the complete jurisdiction of the United States. They were as fully prepared for citizenship as were or are vast numbers of the white and colored races in the same localities. Is it conceivable that the statesmen who framed, the Congress which submitted, and the people who adopted that amendment, intended to confer citizenship, national and State, upon the entire population in this country of African descent (the larger part of which was shortly before held in slavery), and by the same constitutional provision to exclude from such citizenship Indians
Our brethren, it seems to us, construe the Fourteenth Amendment as if it read: "All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the State in which they reside;" whereas the amendment, as it is, implies in respect of persons born in this country, that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States. This would not include the children, born in this country, of a foreign minister, for the reason that, under the fiction of extra-territoriality as recognized by international law, such minister, "though actually in a foreign country, is considered still to remain within the territory of his own State," and, consequently, he continues "subject to the laws of his own country, both with respect to his personal status, and his rights of property; and his children, though born in a foreign country, are considered as natives." Halleck's International Law, ch. 10, § 12. Nor was plaintiff born without the jurisdiction of the United States in the same sense that the subject of a foreign State, born within the territory of that State, may be said to have been born without the jurisdiction of our government. For according to the decision in Cherokee
Born, therefore, in the territory under the dominion, and within the jurisdictional limits of the United States, plaintiff has acquired, as was his undoubted right, a residence in one of the States, with her consent, and is subject to taxation and to all other burdens imposed by her upon residents of every race. If he did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the States, subject to the complete jurisdiction of the United States, then the Fourteenth Amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it; and 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,