Legal Status of Indians in 1890

Many of the North American Indians in 1890 present a lamentable condition. They are natives but they are not citizens, and have no defined status.

In the matter of civil rights the legal status of the North American reservation Indian in 1890 is unstable. A United States district court has said that he is a person within the constitution of the United States. The Commissioner of Indian Affairs says he is a ward of the nation. The allotment act of 1884 says that when allotted he at once becomes a citizen, that is, he is not a citizen until he becomes the occupancy owner of lands held by a suspended fee.

After the government of the United States was organized the Indian was looked upon as a subject, still not a citizen. When the superintendency and agency system combined was in operation the Indians were still considered independent nations until after the adoption of the reservation system, and, until 1871, when President Grant ceased to treat with them as nations.

How Indians Born In The United States May Become Citizens

In 1800 there were 3 ways in which an Indian born in the United States could become a citizen of the United States:

First. By taking an Indian homestead, under provisions of the act of July 4, 1884 (23 United States Statutes, page 90), and adopting the ways of civilized life. The fees for the entry are paid by the nation if the Indian is unable to pay them. The patent for this homestead is issued after 25 years. If the Indian is a citizen at the time of his application for homestead he takes the homestead as do other citizens, in fee.

Second. By reason of allotment to a specific tract of land under law of Congress of February 8, 1887 (24 United States Statutes, page 388).

Third. By renouncing his tribal relations and adopting the ways of civilized life.

In the Oklahoma act of May 2, 1890, there is a special provision for the Indians of Indian Territory.
The United States district court for the western district of New York decided in 1877, in the case of Abram Elm, indicted for voting for a representative in Congress at the election in the town of Lenox, Madison County, in 1876, “that inasmuch as the defendant was subject by the laws of the United States to taxation and to the jurisdiction of the courts in the same manner and to the same extent as other citizens”, and since the tribal government to which he belonged had ceased to exist, he was entitled to vote, and his conviction for illegal voting was reversed. From this opinion by Judge Wallace it appeared that whenever the tribal government of the several Indian nations is broken, no further action will be necessary to make the former members citizens. The opinion of the Supreme Court of the United States in Elk v. Wilkins necessitated new law as to this. The general allotment act of February 8, 1887, followed the suggestions in that case and provided that-

Every Indian born within the territorial limits of the United States who has voluntarily taken up within said limits his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared td he a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United. States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.

Congress can at any time by an act declare all Indians in the United States, including the Six Nations of New York and The Five Civilized Tribes, citizens of the United States. The Indians not citizens now are the unallotted reservation Indians, the Six Nations of New York, and The Five Civilized Tribes of Indian territory.

Alien born Indians, become citizens as do other aliens, and a state can admit an Indian to citizenship, but not while be is on a reservation or a ward of the nation. The reservations and the Indians on them are absolutely under the authority of the United States.

The civil status of the Indians has been defined by a long series of statutes and court rulings. In the cases of the Cherokee Nation .v. Georgia (5 Peters, 1) and Worcester v. Georgia (6 Peters, 515) the Indian tribes residing within the United States were recognized in some sense as political bodies, not as foreign nations nor as domestic nations, but still possessing and exercising some of the functions of nationality; but by act of Congress of March 3, 1871, it was provided that hereafter no recognition by treaty or otherwise should be made by the United States of the claim of any Indian tribe as being an independent nation, tribe, or power. The Indians hold the relation of wards to the general government and are subject to its control. A state legislature has no jurisdiction over the Indian territory contained within the territorial limits of the state; but in the case of New York v. Dibble (21 Howard, 366) it was decided that the state holds the sovereign police authority over the persons and property of the Indians, so far as necessary to preserve the peace and protect them from imposition and intrusion.

Indian includes descendants of Indians who have an admixture of white or Negro blood, provided they retain their distinctive character as members of the tribe from which they trace descent. 1

The United States adopted the principle originally established by European nations, that the aboriginal tribes were to be regarded as the owners of the territories they respectively occupied. 2

Indians who maintain their tribal relations are the subjects of independent governments, and as such not in the jurisdiction of the United. States, because the Indian nations have always been regarded as distinct political communities between which and the government certain international relations were to be maintained. These relations are established by treaties to the same extent as with foreign powers. They are treated as sovereign communities, possessing and exercising the right of free deliberation and action, but, in consideration of protection, owing a qualified subjection to the United States. 3

If the tribal organization of Indian bands is recognized by the national government as existing; that is to say, if the government makes treaties ‘with and has its agent among them, paying annuities, and dealing otherwise with “headmen” in its behalf, the’ fact that the primitive habits and customs of the tribe have been largely broken into by intercourse with the whites does not authorize a state government to regard the tribal organization as gone and the Indians as citizens of the state where they are and subject to its laws. 4

When members leave their tribe and become merged into the mass of the people they owe complete allegiance to the government of the United States and are subject to its courts. 5

A white man who is incorporated with a tribe by adoption does not thereby become an Indian so as to cease to be amenable to the laws of the United States or to lose the right to trial in their courts. 6

Under the constitution “Indians not taxed” are not counted in apportioning representatives and direct taxes among the states; and Congress has power to regulate commerce with the Indian. tribes. The tribes are alien nations, distinct political communities, with whom the United States have habitually dealt either through treaties or acts of Congress. The members owe immediate allegiance to their several tribes, and are not part of the people of the United States. They are 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, can not be taxed by any state. General acts of Congress do not apply to Indians, unless so expressed as to clearly manifest an intention to include them. The alien and dependent condition of the members of the tribes can not be put off at their own will without the assent of the United States. They have never been deemed citizens, except under explicit provisions of treaty or statute to that effect; nor were they made citizens by the fourteenth amendment. 7

While the government has recognized in the Indian tribes heretofore a state of semi-independence and pupilage, it has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limits of the United States, and necessarily subject to the o laws which Congress may enact for their protection and that of the people with whom they come in contact. A state has no power over them as long as they maintain their tribal relations. The Indians then owe no allegiance to the state and receive from it no protection. 8

In construing a treaty, if words be used which are susceptible of a more extended meaning than their plain import as connected with the tenor of the treaty, they should be considered as used in the latter sense. How the words were understood by the unlettered people, rather than their critical meaning, should form the rule of construction. 9

The relations between the United States and the different tribes being those of a superior toward inferiors’ . who are under its care and control, its acts touching them and its promises to them in the execution of its: own policy and in the furtherance of its own interests are to be interpreted as justice and reason demand in all cases where power is exerted by the strong over those to whom are due its care and protection. The inequality between the parties is to be made good by the superior justice which looks only to the substance of the right, without regard to technical rules framed under a system of municipal jurisprudence formulating the rights and obligations of private persons equally subject to the same laws. A treaty is not to be read as rigidly as a document between private persons governed by a system of technical law, but in the light of that larger reason which constitutes the spirit of the law of nations. 10

Regulation Of Commerce With Indian Tribes

Article 1, section 8, clause 3 of the constitution of the United States says that the Congress shall have power “to regulate commerce with foreign nations and among the several states, and, with the Indian tribes”. Commerce “with the Indian tribes” applies only to cases where the tribe is wholly within the limits of a state. 11


The right of expatriation is inalienable and extends to individuals of the Indian race. 12

Laws As To Indian Tribes And Marital Relations

No state laws have any force over Indians in their tribal relations: Kansas Indians, 72 U. S., 5 Wall., 737 (18 L. ed., 667); New York Indians, 72 U. S., 5 Wall., 761 (18 L. ed., 708); United States v. Kagama, 118 U. S., 375 (30 L. ed., 228); United States v. Holiday, 70 U. S., 3 Wall., 407 (18 L. ed., 182); United States v. Shanks, 15 Minn., 369 (Gil., 302.); Dole v. Irish, 2 Barb,, 639; Hastings v. Farmer, 4 N.Y., 293; Cherokee Nation v. Georgia, 30 U. S., 5 Pet., 1 (8 L. ed., 25); Worcester v. Georgia, 31 U. S., 6 Pet., 515 (8 L. ed., 483); Wall v. Williamson, 8 Ala,, 48; Wall v. Williams, 11 Ala., 826; Morgan v. McGhee, 5 Humph., 13; Johnson v. Johnson, 30 Mo., 72; Boyer v. Dively, 58.Mo., 510; Tuten v. Byrd, 1 Swan, 108; Jones v. Laney, 2 Tex., 342.

The civil laws of the state do not extend to an Indian country within a state (United States v. Shanks, 15 Mimi., 369) nor to Indians maintaining tribal relations (United States v. Payne, 4 Dill., 389).

Indian Descent

The rules of Indian descent are: Partus (L.): that which is brought forth, or born; offspring, young. Partus sequitur patrem: the offspring follows the father; the condition of the father. Partus sequitur ventrem: the offspring follows the mother. Partus: the former rule prevails in determining the status of children born of a mother who is a citizen of the United States or of an Indian living with his people in a tribal relation, This was the principle of the Roman and of the common law with regard to the children of freemen; but in the case of animals the second maxim still obtains: the owner of the female, owns her progeny, whether brood, foal, or litter. Formerly, also, in the southern states, the children of Negroes took the mother’s condition. 13

The supreme court of Minnesota, January 17, 1890, in the case of Esther Earl at al. v. Eugene M. Wilson et al., appellants, held that “an Indian tribe within the state, recognized as such by the United States government, is to be considered as a separate community or people, capable of managing its own affairs, including the domestic relations, and those persons belonging to the tribe who are recognized by the custom and laws of the tribe as married persons must be so treated by the courts, and the children of such marriages can not be regarded as illegitimate. (Kansas Indians, 72 U. S., 5 Wall., 737 (18 L. ed., 667); Kobogum v. Jackson Iron Company, 76 Mich., 498, and cases cited; Boyer v. Dively, 58 Mo., 510; Sutton v. Warren, 10 Met., 452.)

A marriage according to the custom of an Indian tribe need not be contracted in the territory of that tribe in order to be valid. (La Riviere v. La Riviere, 97 Mo., 80.) Indians within a state are not citizens or members of the body politic, but are considered as independent tribes governed by their own laws and usages. (Holden v. Joy, 84 IL S., 17 Wall., 211 (21 L. ed., 523); Goodell v. Jackson, 7 Johns., 290; Strong v. Waterman, 11 Paige.)

Individual Liability of Tribal Indians

Indians in tribal relations, as well as allottees, can make personal debts, their liability for such legal debts being subject to the following rules:
1. An Indian is not incapable of giving a valid promissory note by reason of the fact that he belongs to a band which is governed by ancient Indian customs and retains a tribal organization, unless it grows out of sonic contract prohibited by law.

2, The fact that the lands of a defendant, who is an Indian, are not liable to levy and sale under a judgment is no ground for refusing a judgment against him.

3. Rendering judgment for a sum in excess of that covered by the prayer of the complaint is not ground for reversal where it does not exceed the amount due, as the complaint might have been amended if the objection had been made in the lower court. (Ke-tuc-e-mun-guah, appellant, v. Samuel McClure, Indian.)

The assignment of errors calls in question the correctness of the ruling of the circuit court in sustaining the demurrer to these answers, as well as the propriety of the ruling in overruling a Motion for a new trial. It is earnestly contended by the appellant that the band of Indians of which he is a member is the ward of the United States government, and that by reason thereof each member of said band is under legal disability, and is incapable of making a binding contract. It is admitted by the appellee, as we understand his brief, that the band to Which the appellant belongs is, in a sense, the ward of the government of the United States; but it is denied that any law exists creating a general legal disability, and that the individual members of said band are not prohibited from contracting debts and making such contracts as the one now in suit. As all persons not under legal disabilities are capable of making and entering into binding contracts, it follows that the note in suit is a binding obligation, unless it can be shown that the making of such note was prohibited by some law or contrary to the public policy. In support of his contention the appellant cites the cases of Cherokee Nation v. Georgia, 30 U. S., 5 Pet., 1 (S L. ed., 25); Worcester v. Georgia, 31 U. S., 6 Pet., 515 (8 L. ed., 483), and Goodell v. Jackson, 20 Johns:, 693.

While it was held in the case of Cherokee Nation v. Georgia that the Cherokee Nation was a separate state, a, distinct political society, separated from others, capable of managing its own affairs and governing itself, it was held also that it was not a foreign state in the sense of the constitution of the United States, and could not maintain an action as such in the courts of the United States.

The case of Worcester v. Georgia was a prosecution against Worcester, a white missionary, who resided within the territory reserved, by treaty with the government of the United States, to the Cherokee Nation. The prosecution was instituted under a, law of the state of Georgia making it a penal offense to reside in that territory without a license from the governor of the state. It was held that the Cherokee Nation was a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of the state of Georgia could have no force, and which the citizens of Georgia had no right to enter, except with the assent of the Cherokees themselves or in conformity with the treaties and with the acts of Congress, as the whole intercourse with that nation was, by the constitution and laws, vested in the United States.

While the chancellor in the case of Goodell v. Jackson, 20 Johns, gives a comprehensive review of the acts of Congress relating to the various tribes of Indians and the treaties made with them, and reaches the Conclusion that they are to be regarded as separate and distinct nations, subject, however, to the protection of the general government, the case depended wholly upon the statutes of the state of New York, and the questions there adjudicated can have no bearing upon the question for determination. Indeed, there would seem to be no doubt that the different Indian tribes residing within the territory of the United States, while they keep up their tribal relations, are to be regarded, in the absence of some act of Congress upon the subject, as separate and distinct nations. The government has always treated with them as such, and, when engaged in war against the whites, they have never been treated as rebels, subject to the law of treason, but, on the contrary, have always been regarded and treated as separate and independent nations, entitled to the rights of ordinary belligerents, and subject to no other penalties. Acting upon the theory that the Indians, maintaining their tribal relations: residing on reservations secured to them by treaties with the United States government, constitute separate and distinct nations, and following the law as announced in the ease of Worcester v. Georgia, it was held by this court, in the case of Me-shing-go-me-sia v. State, 36 Lid., 310, that this state had no power to tax the lands reserved to the tribe to which the appellant belongs. But none of these cases decide that an Indian belonging to a tribe or nation has not the power to make a contract of the kind now before us, and our attention has not been called to any law which prohibits him from making such contract. Very many of the acts of Congress, as well as the adjudicated cases, proceed upon the theory that an Indian may bind himself by an ordinary executory contract debt. Most, if not all, 9f the acts of Congress granting annuities to the Indians provide that such Indians shall not be bound by any contract whereby such annuity is disposed of or pledged before the same is actually paid by the government.

By the Revised Statutes of the United States, 1878, page 367, it is provided that no agreement shall be made by any person with any individual Indian, not a citizen of the United States, for the payment or delivery of any money, or other thing of value, in present or prospective,, or for the granting or procuring any privilege to him or any other person, in consideration of services for said Indians relative to their lands, or to any claim growing out of, or ‘in reference to, annuities, installments, or other Moneys, claims, demands, or things, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contractor agreement be executed and approved as therein provided. It does not appear that the contract in suit MS within the class of contracts prohibited by this act of Congress; Unless it appears that such contract falls within the provisions of this statute, or some other statute, rendering it illegal, it must be held to be valid and binding. (Godfrey v. Scott, 70 Ind., 259.)Citations:

  1. Wall v. Williams, 11 Ala., 836 (1847). See Relation of Indians to Citizenship, 7 Op. Att. Gon” 746-750 (1856); Campan v. Dewey, 9 Mich., 435 (1861).[]
  2. United States v. Rogers, 4 How., 567 (1846); Johnson v. M’Intosh, 8 Wheat, 574-584 (1823); United States v, Kagama, 118 U. S., 881-382 (1886); 3 Kent, 378; Washb., R. P,, 521.[]
  3. Ex parte Reynolds, 18 Alb. Law J., 8 (D. S. D. C., W. D. Ark., 1878), Parker, J. See also Cherokee Nation v. Georgia, 5 Pet., 16 (1831); Worcester v Georgia, 6 id., 515-584 (1832); Dred Scott v, Sandford, 19 How” 403 (1856); Cherokee Trust Funds, 117 U. S., 288 (1886); 2 Story Collat., pages 1097-1100, 3 Kent, 808-318; 50 Mich., 585.[]
  4. The Kansas Indians, 5 Wall., 737-756 (1866), Davis, J.[]
  5. Ex parte Reynolds, 18 Alb, Law J., 8 (U. S. D. C., W. D. Ark., 1878), Parker, J.[]
  6. United States v. Rogers, 4 How., 507 (1M); 2 Op. AU, Gen., 693; 4 id., 258; 7 id., 174[]
  7. Elk v. Wilkins, 112 U. S., 99,100-102 (1884), cases, Gray, J.[]
  8. United Statue v. Kagama, 118 U. S., 375.381,882 (1886), cases, Miller, J.; act March 3, 1871; R. S., section 2079; 119 U. S., 27.[]
  9. Worcester v. Georgia, 6 Pet., 582 (1832), McLean, J.[]
  10. Choctaw Nation Y. United States, 119 17. S., 28 (1886), Matthews, On Indian Citizenship, sec 20 Am. Law Rev., 183-193 (1886), cases. []
  11. United States v. Holliday, 3 Wall., 17, 418 (1686) United States v. Forty-three Gallons of Whisky, 108 17, S., 484 (1883).[]
  12. . United States ex rel. Standing Bear v. Crook, 6 Dill., 453 (1879).[]
  13. See, generally, 2 Bl. Com., 390; as to Indians, United. States v, Sanders, 1 Hempst., 486 (1847); Ex parte Reynolds, 5 Dill., 483 (1879); as to slaves, Andover v. Canton, 13 Mass., 551 (1816); Commonwealth v. Aves, 18 Pick., 222 (1830); William C. Anderson, in “A Dictionary of Law “, 1881.[]

Department of the Interior. Report on Indians Taxed and Indians not Taxed in the United States, Except Alaska at the Eleventh Census: 1890. Washington DC: Government Printing Office. 1894.

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