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AMERICAN CONSTITUTIONALISM VOLUME II: RIGHTS AND LIBERTIES

Howard Gillman • Mark A. Graber • Keith E. Whittington

Supplementary Material

Chapter 6: The Civil War and Reconstruction—Equality/Native Americans

The Senate Debates Native American Citizenship (1866)1

The Senate briefly debated Native American citizenship when considering the Civil Rights Act of 1866 and

the Fourteenth Amendment. The debate on February 1, 1866, was over Senator Lyman Trumbull’s proposal that “Indians not taxed” be excluded from American citizenship. Senator John Henderson of Missouri insisted that only Native Americans who retained tribal allegiances be excluded from citizenship. Congress rejected that suggestion. The debate on May 30 was over whether the proposed Fourteenth Amendment should include a specific exemption for “Indians not taxed.” Most senators agreed that, because the United States did not exercise complete jurisdiction over Native American tribes, the phrase “All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States” excluded members of Native American tribes.

When reading the excerpts below, notice that all participants in the debates agreed that members of Native American tribes were not American citizens, but that Native Americans who left tribes to engage in conventional occupations were American citizens. On what basis did political leaders assume that members of tribes were not American citizens? On what basis did they assume that Native Americans who abandoned their tribes and became farmers, merchants, teachers, or the like were American citizens? Why did Senator Henderson believe all Native Americans who abandoned tribes should become citizens? Does the Fourteenth Amendment take his position? Henderson assumed that states could constitutionally forbid selling liquor to Native Americans after the passage of the Civil Rights Act of 1866? Could states also forbid persons from selling liquor to persons of color after the passage of the Civil Rights Act? If so, what rights did the Civil Rights Act and Fourteenth Amendment protect? SENATOR JOHN HENDERSON (Republican, Missouri)

. . . My point is that the Indian, if he is connected with no tribe, whether he is taxed or not, ought to

be a citizen of the United States. What harm can there be in declaring that fact? . . . The State need not admit him to the franchise. He may be a citizen of the United States, and yet not have all the privileges and all the immunities of a citizen of the State in which he may be. The State may deny him any of them that it chooses to deny. But why not declare him a citizen of the United States? What harm can there be in that? It will enable him to sue in the courts of the United States to enforce his rights there. . . .

. . . Now that we are fixing the law on the subject, why not declare every man born in the United States to be a citizen of the United States, irrespective of race or previous condition? . . .

. . . I am speaking only of this privilege of each individual, as I hold, to be a citizen of the United States. Why not? He may pay no tax to the State of Georgia, but should that fact deprive him of the privilege of being a citizen of the United States? Was he not born here? Does he owe any allegiance to a foreign Power? Is he not bound to bear arms in defense of his country? Certainly he is. Cannot the State of California or Minnesota, where the Indian is living among the whites, owing no tribal allegiance, compel him to bear arms in defense of the State and the United States? Unquestionably so. Why not, then, make him a citizen of the United States?

1 Congressional Globe, 39th Cong., 1st Sess. (1866), 571–74, 2890–97.

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SENATOR JAMES ROOD DOOLITTLE (Republican, Wisconsin)

. . . If you make them citizens, of course they will not only have the privileges of citizens, but they

will be subjected to the duties of citizens. They will not only have the right to sue, but they will be liable to be sued. They will not only have the right to make contracts, but they will be bound by their contracts; and that is a policy which the Government has resisted from the beginnings in its dealings with the Indians, except with those Indians who have become citizens and are liable to be taxed. Then they are regarded as citizens of the United States. Without going into the argument at length, I am decidedly of the opinion that if by declaring the Indians to be citizens you are going to bind them by their contracts and permit them to be sued as other citizens in the courts of the United States, the Indians are not prepared for citizenship.

. . . If you undertake to provide in this proposition that every Indian born in the United States who may not be for the time being incorporated in any tribe shall be a citizen of the United States you may compel some of us to vote against the amendment altogether. Although some of these Indians may be disconnected from their tribes, and may be wandering in bands and in families, as there are some in the State of Wisconsin and in other States, I do not think they are yet in a condition to be incorporated as part of the citizens of the United States and made liable to be bound by the contracts which they make and to be sued upon their contracts. SENATOR ALEXANDER RAMSEY (Republican, Minnesota)

The Senator from Missouri seems to base his position upon the mistaken theory that all Indians who are no longer connected with their tribes or under a tribal government are civilized Indians, living as farmers, or in some other way earning a livelihood in the white settlements. This is an entire mistake. Where that happens to be the case, they are probably civilized Indians, holding property in that way. But in all the border States there are large numbers of wild, savage Indians, as uncivilized and as untamed as any on the plains, who have no tribal government, who are outlaws from their tribes and their nations. It certainly is not the intention of the Senator or the intention of the Senate to admit Indians of that class to citizenship. SENATOR GEORGE WILLIAMS (Republican, Oregon)

. . . Thousands of Indians in the State that I have the honor to represent are collected upon reservations; they are not subject to tribal authority; their tribes are broken up and destroyed; they consist of the fragments and remnants of tribes gathered together upon these reservations; but they are no more competent or qualified to vote than they were when they existed in the original tribes. SENATOR HENDERSON

. . . If citizenship be conferred upon the Indian, what right will be conferred that he objects to? The Indian, like the negro, was born upon our soil, and I say let him be declared a citizen also, unless some right will be thereby conferred upon him that will conflict with the general interests of the States. SENATOR WILLIAMS

. . . A white man has the legal right in the State of Oregon to buy a gallon or a barrel of whisky; but

the law forbids white men selling whisky to Indians, because it endangers the peace and safety of the community. But if Congress declares that Indians in the State of Oregon shall have the same right to buy and hold all kinds of property that white men have, then, it seems to me, if a man is indicted in that State for selling liquor to Indians, by which he puts the lives of the white people in peril, he may defend

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himself upon the ground that Congress has declared that an Indian has as much right to buy, sell, and use that kind of property as a white man has. SENATOR HENDERSON

I desire to ask the Senator if the law of Oregon now does not forbid the selling of intoxicating liquors to minors under twenty-one years of age. . .? SENATOR WILLIAMS

. . . The object is not to make taxation a criterion or a test of citizenship; but, although it is not absolutely certain and may operate with hardship in individual cases, it is the most certain way of defining the distinction between the wild, savage, and untamed Indians, and whose who associate with white people, own property, and exercise the privileges that generally attend a citizen in the community. SENATOR LYMAN TRUMBULL (Republican, Illinois)

. . . I wish this whole Indian question was out of the way. It is not the great object of the bill. SENATOR DOOLITTLE

. . . I move to amend the amendment . . . by inserting after the word “thereof” the words “excluding Indians not taxed.” The amendment would then read:

All persons born in the United States, and subject to the jurisdiction therein, excluding Indians not taxed, are citizens of the United States and of the States where they reside.

SENATOR JACOB HOWARD (Republican, Michigan)

I hope that the amendment to the amendment will not be adopted. Indians born within the limits of the United States, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations. SENATOR DOOLITTLE

I moved this amendment because it seems to me very clear that there is a large mass of Indian population who are clearly subject to the jurisdiction of the United States who ought not be included as citizens of the United States. All the Indians upon reservations within the several States are most clearly subject to our jurisdiction, both civil and military.

. . . [B]y a constitutional amendment you propose to declare the Utes, the Tabahuaches, and all those wild Indians to be citizens of the United States, the great Republic of the world, whose citizenship should be a title as proud as that of king, and whose danger is that you may degrade that citizenship.

. . . SENATOR HOWARD

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. . . Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State is subject to this full and complete jurisdiction. That question has long since been adjudicated, so far as the usage of the Government is concerned. The Government of the United States

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have always regarded the Indian tribes within our limits as foreign Powers, so far as the treaty-making power is concerned, and so far especially as the commercial power is concerned. . . .

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. . . I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to tribal relation, are to become my fellow-citizens and go to the polls and vote with me and hold lands and deal in every other way that a citizen of the United States has a right to do. SENATOR DOOLITTLE

. . . In purpose I agree with [Senator Howard]. My purpose is to exclude them and the question between us is whether his language includes them and mine excludes them, or whether his language excludes them and mine includes them. . . . SENATOR WILLARD SAULSBURY (Democrat, Delaware)

I feel disposed to vote against [this] amendment because if these negroes are to be made citizens of the United States, I can see no reason in justice or in right why the Indians should not be made citizens. If our citizens are to be increased in this wholesale manner, I cannot turn my back upon that persecuted race, among whom are many intellect and educated men, and embrace as fellow-citizens the negro race. . . .

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