C. Treating the Indians as American Citizens
1. Legal Development Prior to the Indian Citizenship Act of 1924
As has been discussed above, the United States took concerted action throughout the nineteenth and early twentieth centuries to ensure that all Indians became American citizens and citizens of the states in which they resided. This has further added to the confusion regarding Indian status under American law. Today, Indians can be citizens of their own Indigenous nation, as well as both citizens and wards of the United States.
An important question regarding this “layering” of political status was similar to that raised in the Attorney General Cushing's 1856 opinion--whetherrrrrrr r an Indian could become a citizen simply by virtue of abandoning his tribal affiliation and choosing to assimilate into American society. In 1884, the Supreme Court addressed this issue in Elk v. Wilkins. The plaintiff, an Indian named John Elk, sought to vote in an Omaha city election on the grounds that “he had severed his relation to the Indian tribes, and had fully and completely surrendered himself to the jurisdiction of the United States à.” Elk argued that by virtue of the newly adopted 14th Amendment and the fact that he had been born in the United States, he should be allowed to vote.
The Court denied Elk's petition on the grounds that Indians could not become American citizens of their own accord, but only if the United States explicitly consented through a naturalization process to such a grant of citizenship. In doing so, the Court reaffirmed the principle that the Indian tribes were not “foreign states”, but “alien nations”, and as a result, Indians “owed immediate allegiance to their several tribes, and were not a part of the people of the United States.” As regarding the Fourteenth Amendment argument that Elk had been born in the United States and was thus entitled to citizenship, the Court concluded that
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 æborn in the United States and subject to the jurisdiction thereof,Æ 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.
The Court determined that while Congress had taken specific action to make citizens out of Indians of some Indian nations after the adoption of the Fourteenth Amendment--it had not done so with respect to Elk or Elk's tribe and thus he was not an American citizen eligible to vote.
As the campaign to “civilize” and assimilate the Indians into American society continued throughout the late nineteenth and early twentieth century, Congress increasingly took efforts to grant citizenship to Indians. Eventually, however, the question arose as to what effect the granting of American citizenship had on retention of citizenship in an Indian nation and status as a ward of the federal government. As to citizenship, Elk rejected the notion that “a member of an Indian tribe can at will be alternatively a citizen of the United States and a member of the tribe.” This decision was affirmed by the Court's later decision in Matter of Heff, where it was held that wardship status terminated, and American citizenship was conferred, upon issuance of title under the General Allotment Act.
The Court, however, transformed this conception of the citizen/ward dichotomy in 1916 when it decided U.S. v. Nice. Nice had sold liquor to a Sioux Indian on his trust allotment on the Rosebud Sioux Reservation in violation of a 1897 federal statute regulating liquor transactions with Indians. The questions presented to the Court were (1) whether the Indian had been granted citizenship under section 6 of the Allotment Act when his trust allotment was issued in 1889 and (2) whether the federal government retained power to regulate liquor transactions with Indians in this situation.
As to the first question, the Court overruled its decision in Heff and concluded that
[c]itizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians, or placing them beyond the reach of congressional regulations adopted for their protection.
It then concluded that Congress had not totally dissolved tribal status under the General Allotment Act and thus the “allottees remain tribal Indians, and under national guardianship.” Accordingly, it reversed the dismissal of Nice's indictment because Congress was determined to have the power to regulate liquor transactions with Indians.
In arriving at this conceptualization, Congress placed Indians in a unique position under American law, one that has withstood constitutional challenge. In some respects, Indians today have the status of a minor--acknowledged as citizens but not fully recognized as being able to care for one's own affairs. But unlike minors or any other group dealt with by American law, Congress has also continued to recognize Indians as citizens of separate nations. While Congress abandoned its commitment to this principle during the Allotment and Termination eras, and effectively eliminated Indigenous citizenship for some Indians, it nonetheless has recognized since America's founding that Indians retain citizenship in their own Indigenous nation.
2. The Constitutionality of the Indian Citizenship Act of 1924
The Supreme Court has not passed upon the constitutionality of the Citizenship Act, but every federal court that has done so has upheld it. The rationale of these cases, however, is thin and does not adequately address the question of “whether a self-governing people can be made citizens of the United States by the unilateral fiat of the federal government.” Failure to address this question raises the possibility that the Citizenship Act might be found unconstitutional if fully reviewed by the Supreme Court at a later date.
The Constitution says very little about Indians. Its only provisions exclude “Indians not taxed” from the American population for representation and taxation purposes and give to the Congress the power to regulate commerce “with the Indian tribes.” Despite the limited reference to Indians, however, these provisions reveal a great deal on the question of what power the federal government has over Indians.
The “Indians not taxed” provision--by explicitly excluding tribal Indians from the American population--combined with the language allowing Congressional regulation “with” the Indian nations strongly suggests that the Indian nations exist outside of the federal government's authority to regulate their internal affairs. Despite the inherent logic of this conclusion, however, the Supreme Court has consistently upheld plenary Congressional power over Indians. Nonetheless, there remains a lingering Constitutional problem that the Indians--at least those who continue to assert their Indigenous citizenship--cannot be incorporated into the American citizenry without a Constitutional amendment.
Despite the absence of Constitutional authority, the United States has long exercised authority over Indians as its dependent “wards.” This authority has been exercised on an individual basis devoid of any connection to Indigenous citizenship and, in some respects, can be said to “follow” the individual regardless of their tribal status. Thus, the granting of American citizenship to its “wards”--with the implication of equal status with other Americans--naturally challenges the continued viability of the wardship status.
As a general matter, citizens of the United States are such by virtue of their consent to become “members of the geographic community who have established the constitutional government for the promotion of their general welfare and the protection of their individual and collective rights.” In accordance with American political theory then, citizens can establish any government they choose and are generally viewed as possessing the ultimate sovereignty.
The Constitution established by the American people, pursuant to the Fourteenth Amendment, provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” The Supreme Court, however, has determined that Indians cannot become American citizens solely by virtue of being born within the United States and desiring American citizenship.
Nonetheless, in addition to being born in the United States, a person can also become a citizen if naturalized in accordance with federal law. Congress has established two primary mechanisms for obtaining citizenship, through a uniform rule or statute, or by treaty or statute under which a group of individuals is collectively naturalized. The Court acknowledged in Elk that an Indian could become a citizen in accordance with such a naturalization act.
Since the first naturalization act was passed in 1790, Congress has required that an individual seeking American citizenship (1) take an oath of allegiance to the United States, (2) be able to read, write, and speak the English language, (3) understand basic American history and government, and (4) be well disposed to good order and happiness. On the basis of these requirements, it reasonably can be concluded that those people who wish to become American citizens must give their consent. This makes even more sense given that Congress has always required that those becoming American citizens “renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whereof such alien may, at the time be subject.”
Obtaining consent is obviously problematic in cases where collective, rather than individualized naturalization is involved. In such a case, the individual cannot be said to have explicitly consented to the grant of citizenship. As a result, “there should be serious doubt as to the constitutionality of a legislative fiat collectively conferring citizenship upon a group of individuals.”
The Supreme Court has addressed this question in Boyd v. Nebraska in considering how Congress had collectively naturalized both Indians and non-Indians. In cases involving newly admitted states, the Court determined that the body of individuals comprising the political community seeking statehood, while not actually consenting, had effectively consented to becoming American citizens. And as to collective naturalization through treaties, it was determined that the subjects of another sovereign, by their request or cession of territory, would become American citizens after a certain period of time unless they indicated otherwise. The other instances of collective naturalization discussed in Boyd involved the Indian nations. In these instances, as well as in every other discussed case of collective naturalization, “the sovereign to which the naturalized individual had formerly owed allegiance either disclaimed dominion by treaty or was incorporated as a state of the Union.”
Against this legal backdrop, the Citizenship Act of 1924 is fundamentally flawed because it does not require relinquishment of an individual Indian's Indigenous citizenship or the dissolution of that individual Indian's Indigenous nation. In short, it does not require consent to either individual or collective incorporation into the citizenry of the United States as a precondition to naturalization. In the United States, the citizenry is the ultimate sovereign and so consent is the sine qua non to becoming a member of that citizenry. While it could be argued that tacit consent might exist where individual Indians assert the rights and assume the duties of citizenship that might be collectively conferred, consent cannot be inferred so long as individual Indians assert, and Congress recognizes a right to self-government existing outside of the Constitution. Because Indians do in fact assert a right of self-government and Congress continues to recognize it, the Citizenship Act of 1924 is a constitutionally suspect act of collective naturalization.