Page:Harvard Law Review Volume 12.djvu/492

472 472 HARVARD LAW REVIEW. And yet the Supreme Court has held that the Fourteenth Amend- ment did not make tribal Indians citizens of the United States. That Amendment, coming into effect in July, 1868, provided that " all persons born or naturalized in the United States and subject to the jurisdiction thereof" are citizens of the United States. Distinguished persons used to think that all tribal Indians born in our country, like the Chinese, as recently held, were thus made citizens of the United States. That was the publicly expressed opinion of Senator Hoar and of Senator Morgan. But fifteen years ago the contrary was decided by the Supreme Court of the United States.^ Since they are born, said the Court, " 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," they are in the same case with chil- dren of a foreign ambassador born here. Yet, remember, we hold these people, the Indians, in the hollow of our hand; it is in our power, and has been from the beginning, and not in theirs, to say whether they shall continue to hold this relation. We can reduce them at any moment to full subjection ; so that we are to observe that the question of whether, while living and teing born here, they shall become citizens, is a question to be determined by the mere will and pleasure of Congress. Long ago, more than fifty years ago, in aflSrming the right of the United States to exercise its jurisdiction in the *' Indian country," Chief Justice Taney, giv- ing the opinion of the Supreme Court, said, " But. . . were the right and propriety of exercising this power now open to question, yet it is a question for the law-making and political power of the government, and not for the judicial. It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute that the Indian tribes resid- ing within the territorial limits of the United States are subject to their authority." We may take it, then, as settled, that it is for Congress or the treaty-making power to say what shall be the per- manent political position of the new people. As to no one of them is it yet determined, except in the case of Hawaii, that it is a " territory." The Spanish possessions are held now and will continue to be held, as we held the southern states after the War of the Rebellion, under military government. Such a government may continue as 1 Elk V. Wilkin^, 112 U. S. 94.