Elk v. Wilkins/Dissent Harlan

HARLAN, J., dissenting.

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 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 by force of the fourteenth amendment, but only in pursuance of some statute or treaty providing for his naturalization. It would, therefore, seem unnecessary to inquire whether he was taxed at the time of his application to be registered as a voter; for, if the words 'all persons born * *  * in the United States and subject to the jurisdiction thereof' were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several states, then, manifestly, the legal status of such Indians is not altered by the fact that they are taxed in those states. 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 was 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 his personal property for taxation. Const. Neb. art. 9, § 1; Comp. St. Neb. c. 77, pp. 400, 401. 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. St. Neb. c. 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; for the requirement of her constitution is 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.

At the adoption of the constitution there were, in many of the states, Indians, not members of any tribe, who constituted a part of the people for whose benefit the state governments were established. This is apparent from that clause of article 1, § 3, which requires, in the apportionment of representatives and direct taxes among the several states 'according to their respective numbers,' the exclusion of 'Indians not taxed.' This implies that there were, at that time, in the United States, Indians who were taxed; that is, were subject to taxation by the laws of the state of which they were residents. Indians not taxed were those who held tribal relations, and therefore were not subject to the authority of any state, and were subject only to the authority of the United States, under the power conferred upon congress in reference to Indian tribes in this country. The same provision is retained in the fourteenth amendment; for, now, as at the adoption of the constitution, Indians in the several states, who are taxed by their laws, are counted in establishing the basis of representation in congress. 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 St. 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 he may have been, when born, a member of a tribe. The exclusion of Indians not taxed evinced a purpose to include those subject to taxation in the state of their residence. Language could not express that purpose with more distinctness than does the act of 1866. Any doubt upon the subject, in respect to persons of the Indian race residing in the United States or territories, and not members of a tribe, will be removed by an examination of the debates, in which many distinguished statesmen and lawyers participated in the senate of the United States when the act of 1866 was under consideration.

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 Indians not taxed, and not subject to any foreign power, shall be deemed citizens of the United States.' Cong. Globe, (1st Sess. 39th Congress,) p. 527. In replying to the objections urged by Mr. Hendricks to the bill even as amended, Mr. 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.' Id. 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 their names being made. The citizenship conferred was made to depend wholly upon the existence of the facts which the statute declared to be a condition precedent to the grant taking effect. 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, pending the consideration of the 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 territories outside of any reservation 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 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 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 St. 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 the tribe. The act required the petition 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,' etc. Similar legislation was enacted with reference to the Stockbridge Indians. 5 St. 646, 647. Legislation of this character has an important bearing upon the present question, for it shows that prior to the adoption of the fourteenth amendment it had often been the policy of congress to admit persons of the Indian race to citizenship upon their ceasing to have tribal relations, and without the slightest reference to the fact that they were born in tribal relations. It shows, also, that the citizenship thus granted was not, in every instance, required to be evidenced by the record of a court. If it be said that the statutes prior to 1866, providing for the admission of Indians to citizenship, required in their execution that a record be made of the names of those who thus acquired citizenship, our answer is that it was entirely competent for congress to dispense, as it did in the act of 1866, with any such record being made in a court, or in any department of the government. And certainly it must be conceded that except in cases of persons 'naturalized in the United States,' (which phrase refers only to those who are embraced by the naturalization laws, and not to Indians,) the fourteenth amendment does not require the citizenship granted by it to be evidenced by the record of any court, or of any department of the government. Such citizenship passes to the person, of whatever race, who is embraced by its provisions, leaving the fact of citizenship to be determined, when it shall become necessary to do so in the course of legal inquiry, in the same way that questions as to one's nativity, domicile, or residence are determined.

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 fourteenth 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 that only those Indians are included in its grant of citizenship who were, at the time of their birth, subject to the complete jurisdiction of the United States. As already stated, according to the doctrines of the court, in this case,-if we do not wholly misapprehend the effect of its decision,-the plaintiff, if born while his parents were members of an Indian tribe, would not be embraced by the amendment even had he been, at the time it was adopted, a permanent resident of one of the states, subject to taxation, and, in fact, paying property and personal taxes, to the full extent required of the white race in the same state.

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 national 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 amendment 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.' Cong. Globe, pt. 4, (1st Sess. 39th Cong.) pp. 2890-2893. Alluding to the phrase 'Indians not taxed,' he remarked that the language of the proposed constitutional amendment was better than that of the act of 1866 passed at the same session. He observed: '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.' Id. 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; S.C.. 4 SUP. CT. REP. 279. 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 fourteenth 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 fourteenth amendment, 'subject to the jurisdiction' of the United States, and therefore that such Indians have not become citizens of the United States by virtue of that amendment; and, if your committee are correct in this conclusion, it follows that the treaties heretofore made between the United States and the Indian tribes are not annulled by that amendment.' The report closes with this significant language: 'It is pertinent to say, in concluding this report, that treaty relations can properly exist with Indian tribes or nations only, and that, when the members of any Indian tribe are scattered, they are merged in the mass of our people, and become equally subject to the jurisdiction of the United States.'

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 hand, subjected to the full responsibilities-of American citizens. It would not for a moment be contended that such was the effect of this amendment. 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, Const. (Cooley's Ed.) § 1933, p. 654. To the same effect are Ex parte Kenyon, 5 Dill. 390; Ex parte Reynolds, Id. 397; U.S. v. Crook, Id. 454; U.S. v. Elm, Dist. Ct. U.S., N. D. N. Y. 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 who had never been in slavery, and who, by becoming bona fide residents of states and territories within the complete jurisdiction of the United States, had evinced a purpose to abandon their former mode of life, and become a part of the people of the United States? If this question be answered in the negative, as we think it must be, then we are justified in withholding our assent to the doctrine which excludes the plaintiff from the body of citizens of the United States upon the ground that his parents were, when he was born, members of an Indian tribe; for, if he can be excluded upon any such ground, it must necessarily follow that the fourteenth amendment did not grant citizenship even to Indians who, although born in tribal relations, were, at its adoption, severed from their tribes, subject to the complete jurisdiction as well of the United States as of the state or territory in which they resided.

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 extraterritoriality 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, Int. Law, c. 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 Nation plaintiff were members was not 'a foreign state, in the sense of the constitution,' but a domestic dependent people, 'in a state of pupilage,' and 'so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered an invasion of our territory and an act of hostility.' They occupied territory which the court, in that case, said composed 'a part of the United States,' the title to which this nation asserted independent of their will. 'In all our intercourse with foreign nations,' said Chief Justice MARSHALL in the same case, 'in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our citizens. * *  * They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.' And, again, in U.S. v. Rogers, 4 How. 572, this court, speaking by Chief Justice TANEY, said that it was 'too firmly and clearly established to admit of dispute that the Indian tribes, residing within the territorial limits of the United States, are subject to their authority.' The Cherokee Tobacco, 11 Wall. 616. 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, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.