"Excluding Indians Not Taxed": Dred Scott, Standing Bear, Elk and the Legal Status of Native Americans in the Latter Half of the Nineteenth Century
Tennant, Brad, International Social Science Review
Throughout American history, the federal government has failed to follow a consistent approach in determining the legal and political status of individual Native Americans and Indian tribes. Such policies (i.e., treaty-making and reservations, allotment, reorganization, termination, and, currently, self-determination) range from the treatment of Indian tribes as sovereign nations to the assimilation of individual Native Americans as U.S. citizens in the dominant white society. (1) Assimilation generally meant that Native Americans should adopt Euro-American clothing, language, religion, and an agricultural lifestyle before qualifying for citizenship. Even at that, most Native Americans could only expect second-class citizenship status when it came to exercising their constitutional rights and protections. Simply put, the legal status of individual Native Americans has often been unclear.
During the latter part of the nineteenth century, social reformers, the courts, and politicians at the local, state, and federal level attempted to clarify this issue. To understand the difficulty in determining the legal standing of Native Americans, one must first examine the historical meaning and significance of the phrase "excluding Indians not taxed" as it appears in the U.S. Constitution. Attention should then be directed toward Dred Scott v. Sandford (1857), Standing Bear v. Crook (1879), and Elk v. Wilkins (1884), arguably the three most significant cases involving the legal status of Native Americans during the latter half of the nineteenth century. (2) Collectively, they tried to determine: (1) how Native Americans could obtain citizenship; (2) the legal rights of individual Native Americans notwithstanding their tribal affiliation; and, (3) the legal status of individual Native Americans who had paid taxes or had separated themselves from their tribes. (3) Despite having the means to readily grant citizenship to Native Americans, the U.S. government largely ignored the wishes of individual Native Americans and often used citizenship as a means of assimilating tribal Indians into the dominant white society.
After more than a century of treaties and legislative acts affecting the legal status of Native Americans, Congress adopted H.R. 6355, the Indian Citizenship Act of 1924, which granted citizenship to all "noncitizen Indians born within the territorial limits of the United States." (4) By then, almost two-thirds of the Native American population had gained citizenship through treaties or congressional legislation. (5) For example, the 1830 treaty with the Choctaws, which is noteworthy within the context of Indian removal, contained a provision which stated that "each Choctaw head of family being desirous to remain and become a citizen of the States, shall be permitted to do so." (6) Likewise, the 1887 General Allotment Act declared:
every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, ... who has voluntarily taken up ... his residence separate and apart from any tribe of Indians therein, and has adopted the habit of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens. (7)
The prospect of citizenship, however, did not necessarily guarantee that Native Americans actually gained it or, if they did, that they enjoyed the same rights and privileges as other U.S. citizens. (8) Consequently, whether a citizen or not, the actual legal status of Native Americans remained controversial well into the twentieth century, long after passage of the Indian Citizenship Act of 1924. (9)
"EXCLUDING INDIANS NOT TAXED"
The phrase "excluding Indians not taxed" appears in the Constitution in regard to determining the apportionment of taxes and representation among the states, but little is known about the intent of inserting this clause into that governing document. …