Robert B. Porter

The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous Peoples, 15 Harv. BlackLetter L.J. 107-183 (1999)(citations  omitted).

Editor's note: This article has over 400 footnotes. The footnotes have been edited out for presentation in this forum. I encourage you to see the original article for not only the scholarly documentation but the extensive explanations that Professor Porter  provided in his

II.  The Legal Status of American Indians

Conferring American citizenship on all Indians born in the United States was but one of a series of actions taken by the federal government to redefine Indian legal status to suit its purposes. Throughout its history, America has sought to categorize Indians under its law in a variety of ways. At least four different approaches have been taken: (1) treating Indians as citizens of separate nations, (2) treating Indians as wards of the federal government, (3) treating Indians as American citizens, and (4) treating Indians as members of a racial minority group. Despite the efforts taken to have one uniform definition apply, indecision as to how best to deal with the "Indian problem", as well as the wide diversity of self-governing capacity that exists amongst the Indian nations, has prevented any one definition from have any conclusive effect.

A. Treating Indians as Citizens of Separate Nations

As has been discussed above, the United States originally viewed Indians exclusively as citizens of their own separate nations. Early relations with the Indian nations reflected this view as the United States relied upon diplomacy and treaties--the instruments of international relations--as the primary means of discourse with them. In these treaties, the United States acknowledged the separate political status of the Indian nations party to the treaty, even though the same treaty may have contained provisions for the extension of the federal government's protection over them and their lands. This conceptualization was reaffirmed by early federal laws dealing with Indian affairs, which viewed the Indian nations as separate territories over which the United States could not exercise direct control. This policy of treating Indians as citizens of their own separate nations has continued to the present day, albeit with periodic digressions.

B. Treating Indians as Wards of the Federal Government

With the demise of the Indian nations as potent military threats to the United States in the early nineteenth century, there emerged in American law the notion that the Indians were wards of the federal government. This notion emanated from the treaty provisions that acknowledged the protection of the United States. But the real impetus for the incorporation of this view in American law came from the Supreme Court, and in particular, Chief Justice Marshall. In the now famous "Marshall Trilogy" of cases--Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, --the Court laid out the fundamental principles that would define the future legal relationship between the United States and the Indian nations under federal law.

In Johnson, the Court dealt with the question of what power Indian nations had to pass title to non-Indians, holding that Indians had been divested of fee title to their own land solely by virtue of being "discovered" by the European explorers. In Cherokee Nation, however, the Court was called upon to address the question of whether the Cherokee Nation could invoke the Court's original jurisdiction on the grounds that it was a "foreign nation." This directly confronted the question of how the United States would conceptualize Indian legal status under its law. The Court held that the treaty relationship between the Cherokee Nation and the United States required that the Cherokee Nation could only be considered a "domestic dependent nation" under federal law. In part this conclusion was driven by Marshall's assessment that the Indians were "in a state of pupilage" and that:

[t]heir relation to the United States resembles that of a ward to his guardian. 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.

This principle was reaffirmed in Worcester, where the Court held that the relationship between the federal government and the Indian nations was exclusively federal in origin and thus preemptive of state assertions of power in the Indian territory.

As the Indian nations became less and less of a threat to the America and more and more surrounded by it, the predominant view came to be that the Indians were the wards, or beneficiaries, of the federal government, which assumed the role of guardian or trustee. In accordance with this view, Congress passed laws granting the Secretary of the Interior sweeping authority over the management and control of Indian affairs. Thus, the federal government began to assume a wide variety of responsibilities for its Indian "wards" on the grounds of what was later judicially defined as its "trust responsibility." This conception of the federal-tribal relationship was rooted in Marshall's assertion in Cherokee Nation that Indians were in a "state of pupilage."

While as a general matter the United States viewed Indians as citizens of their own nations as well as its wards, some Indians were considered as neither. By the time the Republic was founded, a few Indians had sufficiently assimilated into American society. These Indians had assumed the "responsibilities of civilized life," were taxpayers, and were thus acknowledged to be part of American society by virtue of their acceptance of the American way of life. Thus, the Constitution contained the provision regarding the exclusion of "Indians not taxed" for purposes of apportionment because some Indians were, in fact, taxed and thus eligible to be counted.

Assimilated Indians, however, were not necessarily deemed citizens. In an 1856 opinion, United States Attorney General Caleb Cushing was called upon to determine whether a mixed-blood Chippewa could be considered an American citizen for purposes of exercising preemptive rights available to all citizens. The Attorney General first concluded that Indians could not be born citizens because they were only "subjects" of the United States. As a result, Indians could not be naturalized under existing federal law because "[t]hose acts apply only to foreigners, subjects of another allegiance. The Indians are not foreigners, and they are in our allegiance, without being citizens of the United States." Moreover, he concluded, those acts only apply to "white" men, although Congress could pass laws or enter into treaties that could make Indians citizens.

A further question addressed in this opinion was whether Indians "by continual crossing of blood, cease to be Indians" and thus no longer be considered incapacitated and ineligible for citizenship. His answer was "undoubtedly" and that such a matter was to be determined by the states. While he acknowledged that "[m]any persons of this class ... are of most respectable character, and mentally and morally capable to be citizens of the United States," this could only occur "by ceasing to be a member of the tribe." The Attorney General concluded that it was "reasonable and just" that one "who claims and takes the benefits of such tribal membership, shall not be allowed at the same time to claim benefits which are only attached by law to persons not Indians."

By the late nineteenth century, the notion that Indians were the wards (or subjects) of the federal government was firmly embedded in American law. In U.S. v. Kagama, the Supreme Court was called upon to decide the question of whether Congress had the authority to exercise its criminal jurisdiction within Indian territory. In upholding this assertion of power, the Court held:

These Indian tribes are the wards of the nation. They are communities dependent on the United States .... From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and, with it, the power.

Both the federal government's trust responsibility and the idea that Indians are wards (or beneficiaries) of the federal government have continued to the present day. Because the United States has continued to recognize Indians as citizens of their own nations, this has established the somewhat incongruous status that Indians are both citizens of one nation but wards of another. This status, perhaps, can only be reconciled if one accepts the Supreme Court's conclusion in Cherokee Nation that Indians are merely citizens of "domestic dependent nations."

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-- whether 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 ...." 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 'born in the United States and subject to the jurisdiction thereof,' 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 --even 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.

D. Treating Indians as Minorities on the Basis of Race, Ethnicity, or National Origin

Within the framework of being considered American citizens, a further question arises whether Indians constitute a minority group subject to the prohibitions against discriminatory treatment on the basis of race, ethnicity or national origin.

Regarding race, the Supreme Court has determined that Indians shall not be considered as a racial class and thus, acts of Congress in relation to Indian affairs will not be subject to strict scrutiny. In Morton v. Mancari, non-Indian employees of the Bureau of Indian Affairs challenged the BIA's Indian preference hiring and promotion policy on the grounds that it constituted "invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment." The Court recounted the unique history and treatment of Indians under the Constitution, federal laws, and court decisions and concluded that the preference at issue was "not even a 'racial' preference" but rather "an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups." In doing so, the Court stated: "The preference, as applied is granted to Indians not as a discrete racial group, but, rather as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion."

In construing Indians as a "political" class of persons, rather than a "racial" class, the Court did not disrupt the Congressional power to take action that, in some cases, might be construed as beneficial to Indians vis-a- vis other groups, but that, in other cases, clearly would be discriminatory and detrimental. For example, under federal law it is clear that Congress could grant a hiring preference in federal employment to Indians that it could not grant to racial minorities solely on the basis of race. At the same time, however, Congress could deny recognition of one's status as an Indian in a way that it could not deny to someone else solely on the basis of his or her race.

In contrast to being classified as members of a political class, Indians are acknowledged as racial and ethnic minorities when dealt with by the government outside of the context of the unique federal-tribal relationship. The Equal Protection Clause of the Fourteenth Amendment prohibits state officials from discriminating against a person based on race, color, creed, or religion. IndividualIndians have challenged various discriminatory state measures and have succeeded in ensuring equal protection of the laws in a manner similar to other racial minorities.

Not only have Indians been treated as a political class and as a racial minority, Indians have also been classified on the basis of national origin. In Dawavendewa v. Salt River Project Agricultural Improvement and Power Districti, the plaintiff, a Hopi Indian, alleged that he was discriminated against because the private employer defendant hired a Navajo in accordance with Navajo Nation preference law and its lease with the Navajo Nation. He claimed that granting the preference constituted "national origin" discrimination on the basis of Title VII of the Civil Rights Act of 1964. The court determined that "national origin" discrimination occurs when "discriminatory practices are based on the place in which one's ancestors lived." Thus,

Because the different Indian tribes were at one time considered nations, and indeed still are to a certain extent, discrimination on the basis of tribal affiliation can give rise to a "national origin" claim under Title VII. The fact that "new political structures and boundaries" now exist has no significance.

The court then held in plaintiff's favor because Congress had not intended to favor some Indians over other Indians when it enacted the "Indian Preferences exemption" to Title VII.

Looking at the overall treatment of Indians as members of a minority class, it is possible, depending upon the circumstances, for an Indian to fall into a number of different classes. If the circumstances relate to the uniqueness of the federal-tribal relationship, then the political classification will govern and Congress can do whatever it desires. If the circumstances relate to treatment by a non-federal authority, or a federal authority outside the context of the unique federal-tribal relationship, then a racial, ethnic, or national origin classification may apply.

E. Treating Americans as Indians

A discussion of the legal status of Indigenous peoples would not be complete without mentioning that the United States not only has acted to confer American citizenship upon Indians, but it has also acted to confer Indian status on people who would otherwise simply be considered solely as Americans.

This situation arises in at least two different ways. First, the United States currently makes determinations whether a group of Americans claiming to be an Indian nation will be recognized as such and thus have all of the benefits and burdens associated with that status. This can occur through a regulatory recognition process conducted by the BIA or through recognition by Congress. Second, the United States characterizes individuals as Indians for certain purposes who may not be citizens of Indian nations. For example, eligibility for certain federal services may be determined on the basis of percentage of Indian blood rather than tribal citizenship. Another example would be the way in which the United States determines Indian population statistics on the basis of one's self- identified racial background regardless of Indigenous citizenship. Federal redefinition of Indian status is a significant contributing factor to the emergence of the racial minority group known as "Native Americans," which is composed of persons who are not Indigenous citizens but are of Indigenous descent.