US Supreme Court Elk v Wilkins 112 US 94 (1884)

                                                 Elk v. Wilkins

                                       Argued April 28, 1884

                                   Decided November 3, 1884

                                                   112 U.S. 94

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COMMENTARY: The Highlighted Text in the SEVENTH Paragraph Defines That the First and Foremost Allegiance a Citizen of a Tribe Has Is To That Tribe and No Other Government.

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MR. JUSTICE GRAY delivered the opinion of the Court. He stated the facts in the foregoing language, and continued:

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, c. 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. 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 an Indian, and was born within the United States," and that "he had severed his tribal relations to the Indian tribes," clearly implies that he was born a member of one of the Indian tribes within the limits of the United States which still exists and is recognized as a tribe by the government of the United States. Though the plaintiff alleges that he "had fully and completely surrendered himself to the jurisdiction of the United States," he does not allege that the United States accepted his surrender, or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the state or by the United States. Nor is it contended by his counsel that there is any statute or treaty that makes him a citizen.

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 by any state. General acts of Congress did not apply to Indians unless so expressed as to clearly manifest an intention to include them. Constitution, Article I, Sections 2, 8; Article II, Section 2; Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; United States v. Rogers, 4 How. 567; United States v. Holliday, 3 Wall. 407; Case of the Kansas Indians, 5 Wall. 737; Case of the New York Indians, 5 Wall. 761; Case of the Cherokee Tobacco, 11 Wall. 616; United States v.Whisky, 93 U. S. 188; Pennock v. Commissioners, 103 U. S. 44; Crow Dog's Case, 109 U. S. 556; Goodell v. Jackson, 20 Johns. 693; Hastings v. Farmer, 4 N.Y. 293.

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, c. 83, § 7, concerning the Brothertown Indians, and of March 3, 1843,c. 101 § 7, August 6, 1846, c. 88, and March 3, 1865, c. 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.