A. Citizenship and Early Federal Indian Control Policies

Upon the founding of the American Republic, it was well acknowledged that the Indians were citizens of their own nations separate and apart from the United States. This was an easily drawn conclusion because most Indians were located outside the territorial boundary of the original thirteen states. As a result, early relations with the Indian nations were based upon the discourse of international relations and were reflected by the primary instrument of international law-treaties. This was an acknowledgment of both the legal status of the Indian nations as well as the practical limitations associated with the federal government's lack of power. Following the Revolutionary War, it was simply impossible for the new United States to address Indian affairs in any other way.

The first half of the eighteenth century saw the United States emerge as the dominant continental power. The Indian nations resisted the onslaught of American military and economic power but were ultimately unsuccessful. They were thus made subject to policies that effectuated forced removal, confiscation of lands, and relocation to “reservations.”

These policy developments were not surprising, since for nearly 300 years, the American mentality regarding Indians was founded upon the belief that they were uncivilized savages that had to be kept at bay so that “civilization” could thrive. The historian Frederick Hoxie writes that “[t]he belief that savagery was the antithesis of civilization à fueled American expansion and development by assuring presidents, soldiers, and historians that civilization could only succeed where Indian culture failed.” As a result, early American Indian policy focused on controlling the Indian nations and keeping them separate from American society. Indians had to be removed to the West and forced onto reservations simply because their uncivilized nature was viewed as a potent threat to the American way of life.

Associated with the process of removing the Indians to the West, a number of “incentives” were offered, including the grant of American citizenship. Rather than be confronted with the need to remove all of the Indians, it was thought that the burden on the federal government could be lessened if some Indians simply decided to stay behind and assimilate. Thus, some of the early treaties between the United States and the Indian nations provided that Indians could obtain American citizenship. Against the backdrop of impending forced removal, it could hardly be said that these grants of citizenship were consensual. To receive American citizenship, it was often required that tribal lands be sold, individual allotments issued, and the tribe's status dissolved.

In addition to the treaty process, there were other ways in which Indians could become citizens. Congress began to grant citizenship to Indian tribes through legislation. In other instances, Indians could also obtain American citizenship upon their assimilation and acceptance of the American way of life. Finally, there was the unique case of the Pueblo Indians, who were deemed United States citizens in 1846 by virtue of their failure to elect Mexican citizenship under the Treaty of Guadalupe Hildalgo. This was the first instance in which “Native citizens [were] æpermittedÆ to retain their tribal organization and culture” and thus be considered as dual citizens.

These early instances of granting Indians American citizenship had to overcome two primary legal barriers. The first barrier was that federal naturalization statutes restricted American citizenship to free whites. While there was some ambiguity associated with applying these statutes to Indians, it was generally believed that Indians could not be naturalized. The second was that early citizenship was deemed to be exclusive; because Indians had an allegiance to their own Indigenous nation, they could not become American citizens.