The 2020’s is a decade of many historical anniversaries. One that has received little attention so far as best I can determine is the Indian Citizenship Act signed into law on June 2, 1924, by President Calvin Coolidge. As the very title of the legislation states, the act made all Indians in the United States citizens of the United States.
One should not confuse this action with various suffrage movements. This bill did not grant those newly designated citizens any voting rights. Such authorization was at the state level. Think of how New York State among others authorized female suffrage (2017 centennial) prior to the Constitutional amendment.
At first glance the need for the Indian Citizenship Act might seem strange. According to the act,
… all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided that the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.
One might think that under the Fourteenth Amendment (1868) that the citizenship issue had been settled. People born in the United States were citizens of United States with all the rights such designation entails. This amendment has been bandied about in recent political fights about who is and who is not a citizen or if birthright citizenship should be revoked. For the purposes of this blog, that debate is not the subject. However one should note there was a debate following the ratification of the Amendment if it applied to Indians or not.
The debate was so pronounced that the Senate Judiciary Committee pondered the issue. In 1870 it rendered its verdict:
… the 14th amendment to the Constitution has no effect whatever upon the status of the Indian tribes within the limits of the United States…
Strangely enough in the infamous Dred Scott decision in 1857, the frequently reviled Chief Justice Roger Taney had argued that American Indians could in fact become citizens. The caveat was that it had to be under congressional and legal supervision. In 1924, that is exactly what Congress did.
In the interim, Congress had established rules whereby specific actions, such as participation in the Dawes Act, were sufficient to grant citizenship to individuals. The downside of that action was the exposure of previously protected lands to now be available for purchase by outsiders. In any event, by one estimate, in 1924 when the Indian Citizenship Act was passed, approximately 125,000 out of 300,000 Indians were not citizens. And then by the stroke of a pen, they were.
ISSUES – INDIVIDUALS
The action taken in 1924 raises multiple issues. They could be addressed at any time. The centennial affords an opportunity to do by focusing attention on the act.
For example, as noted, citizenship is derived from Congressional and not constitutional action. In theory, Congress could revoke or alter the act for whatever reasons it deems fit. I am not suggesting it has any intention of so doing. I am simply pointing out the potential power is there. I presume that this time the Fourteenth Amendment would be deemed to be applicable but who knows how the legal process would unfold. Of course, Congress could revoke the act by asserting the amendment does apply, that birthright citizenship applies across the board, and that the act is moot. The action might be symbolic but there are benefits to saying all American citizens are citizens under one of two methods: birth or naturalization.
That conclusion leads to a second observation. What about the 125,000 people who were not citizens in 1924, what choice did they have? There is a difference between extending the opportunity to become a citizen to someone versus obligating someone to be a citizen. I am not saying the any of the 125,000 did not want to become citizens or that any of the 175,000 had been coerced into becoming citizens by virtue of participating in the Dawes Act. I am saying that as we approach the centennial of the Indian Citizenship Act, we have the opportunity to do something better: to give people a free choice on whether or not they want to be citizens instead of imposing a decision on them.
In practice, this means two possible actions.
1. For individuals who do not want to be citizens of the United States, they should not be forced to be citizens. Instead they would be citizens of their particular Indian Nation and not dual citizens. I have no idea how many people would choose this route, but I do think it would be better if we do now what was not done in 1924 – offer people a choice.
2. Citizenship Ceremony of Belonging – When immigrants are naturalized as American citizens, they go through a process culminating in a ceremony where they take an oath of allegiance to their new country. Oftentimes family members are present. Oftentimes it is a very emotional experience for all the participants. There was no such ceremony of belonging for the 125,000 who became citizens in 1924 with the stroke of a pen. I doubt there was one or much of one for the 175,000 who preceded them. That oversight should be corrected. There should be ceremonies of belonging held throughout the land in 2024 where Indian Nations/Tribes exist. The ceremony could even be self-designed or local. It would have no legal status. Instead, through these ceremonies, people would have the opportunity to publically affirm their identity as American citizens. Ceremonies of belonging do matter.
Together these two actions would remedy what the Indian Citizenship Act in 1924 left open.
ISSUES – INDIAN NATIONS
The Indian Citizenship Act does not directly address the subject of Indian Nations. At present there are about 574 such groups recognized by the United States plus additional ones which are not. The 2024 Centennial also provides a chance to address what it means to be an Indian Nation today in the 21st century regardless of what it meant in the 18th, 19th, and 20th centuries.
For example, the normal means of discourse between nations is via the treaty. England and France entered in treaties with each other. They, the colonies, and the states also entered into treaties with Indian Nations. The issue here is not the violation of the treaties. It is the legal significance of treaties.
Suppose the signatories of a treaty have a dispute. How is it resolved? Possible there is some provision in a treaty specifying how disagreements are to be resolved, but most likely not. Rather the signatories themselves are supposed to negotiate a solution. If there is an issue with NAFTA or NATO, then the countries involved have to work it out. Even a nuclear treaty with Iran requires the participation of the signatories to discuss the open items or proposed changes.
One might think that the same process would apply to treaties negotiated between the Indian Nations and the United States or the individual states which inherited the colonial treaties. After all, the original agreement was between nations so should not those nations be the ones to resolve the disputes?
WRONG! WRONG! WRONG! In the United States, in 1831, in the time of the Trail of Tears, a dispute between the Cherokee Nation and the State of Georgia reached the Supreme Court. In that case, Chief Justice Marshall termed tribes “domestic dependent nations,” with the federal/tribal relationship resembling “that of a ward to his guardian.” I am not a lawyer yet alone a Constitutional lawyer. My question is under what Constitutional authority did the Supreme Court have to make that decision? Also on what basis did the independent Indian Nations like the Cherokee have to accept that diminution in status save by “might makes for what happens”?
The Cherokees, now in Oklahoma, recently made news in another Supreme Court ruling about jurisdictions in that state. The question I have is why are disputes between nations being resolved in the Courts? That is not the way treaty relationships work. The Supreme Court does not adjudicate treaties entered into by the United States. The Executive branch negotiates them and the Congress ratifies them. The Courts are not involved. Now is a good time to reassess the legal relationship between Indian Nations and the United States from the assertion enunciated by Chief Justice Marshall on “domestic dependent nations” status. I am not proposing a solution to this issue. I am suggesting that it needs to be addressed.
It would also be a good idea for ceremonies of alliance to be held between the United States and the Indian Nations. This is especially true as the county prepares for its 250th anniversary.
One might think how can these nations celebrate an alliance with a country that did so many horrendous things to them? We invaded Canada multiple times and it is our ally. We fought England and the Germans twice each and they are our allies. We dropped two nuclear bombs on Japan and it is our ally. It may well be that not all 574 nations want to be an ally of the United States. We will not know until we ask. States can take the lead if the federal government will not.
One last thought. From time to time the suggestion has been made that a given Indian tribe or tribes form a state starting with the Cherokees. Such a designation would give them a seat at the table for such issues as vaccines or voting rights among others. There are peoples of sufficient numbers on lands of sufficient size where new states could be created from one or more existing state. One would have to weigh carefully the advantages and disadvantages of becoming a state while retaining an identity as an Indian Nation.
In conclusion, the Indian Citizenship Act Centennial provides an excellent chance to think about old issues that really are still part of our heritage today.