U.S. Supreme Court CAPRON
v. VAN NOORDEN, 6 U.S. 126 (1804) 6 U.S. 126 (Cranch) CAPRON v. VAN NOORDEN. February Term, 1804 Harper,
for the plaintiff in error, stated the only question to be whether
the plaintiff had a right to assign for error, the want of
jurisdiction in that Court to which he had chosen to resort. ERROR to the Circuit Court of North-Carolina. The proceedings
stated Van Noorden to be late of Pitt county, but did not allege
Capron, the plaintiff, to be an alien, nor a citizen of any state,
nor the place of his residence. Upon the general issue, in an action of trespass on the case, a
verdict was found for the defendant, Van Noorden, upon which
judgment was rendered. The writ of Error was sued out by Capron, the plaintiff below, who
assigned for error, among other things, first "That the circuit
court aforesaid is a court "of limited jurisdiction, and that by
the record aforesaid "it doth not appear, as it ought to have done,
that "either the said George Capron, or the said Hadrianus " Van
Noorden was an alien at the time of the commencement "of said suit,
or at any other time, or that one of "the said parties was at that
or any other time, a citizen "of the state of North-Carolina where
the suit was "brought, and the other a citizen of another state; or
"that they the said George and Hadrianus were for "any cause
whatever, persons within the jurisdiction of "the said court, and
capable of suing and being sued "there." And secondly, "That by the record aforesaid it manifestly
"appeareth that the said Circuit Court had not "any jurisdiction of
the cause aforesaid, nor ought to "have held plea thereof, or given
judgment therein, but "ought to have dismissed the same, whereas
the said "Court hath proceeded to final judgment therein." It is true, as a general rule, that a man cannot reverse a judgment
for error in process or delay, unless he can shew that the error
was to his disadvantage; but it is also a rule, that he may reverse
a judgment for an error of the Court, even though it be for his
advantage. As if a verdict be found for the debt, damages, and
costs; and the judgment be only for the debt and damages, the
defendant may assign for error that the judgment was not also for
costs, although the error is for his advantage. Here it was the duty of the Court to see that they had
jurisdiction, for the consent of parties could not give it. It is therefore an error of the Court, and the plaintiff has a
right to take advantage of it. 2 Bac. Ab. Tit. Error. (K. 4.) — 8
Co. 59. (a) Beecher's case. — 1 Roll. Ab. 759. — Moor 692. — 1 Lev.
289. Bernard v. Bernard. The defendant in error did not appear, but the citation having been
duly served, the judgment was reversed.

Summary:
The U.S. Supreme Court case Capron v. Van Noorden (1804) centered on the question of whether a plaintiff could assign error based on a lack of jurisdiction in the chosen court. The case involved a writ of error from the plaintiff, Capron, who sought to challenge the judgment of the Circuit Court of North Carolina in an action of trespass.

The Court held that a party could reverse a judgment for an error in the court's jurisdiction, even if the error was advantageous to them. In this case, the Circuit Court's failure to establish jurisdiction over the parties, regardless of their consent, was an error that the plaintiff had the right to raise.

The defendant in error did not appear, and the judgment was reversed.


U.S. Supreme Court Elk v. Wilkins, 112 U.S.
94 (1884) Elk v. Wilkins Argued April 28, 1884 Decided November 3,
1884 112 U.S.
94 I N ERROR TO THE CIRCUIT COURT OF THE
UNITED STATES FOR THE DISTRICT OF
NEBRASKA Syllabus An Indian, born a member of one of the Indian tribes within the
United States, which still exists and is recognized as a tribe by
the government of the United States, who has voluntarily separated
himself from his tribe, and taken up his residence among the white
citizens of a state, but who has not been naturalized, or taxed, or
recognized as a citizen either by the United States or by the
state, is not a citizen of the United States within the meaning of
the first section of the Fourteenth Article of Amendment of the
Constitution.

															A petition alleging that the plaintiff is an Indian, and was
born within the United States, and has severed his tribal relation
to the Indian tribes, and fully and completely surrendered himself
to the jurisdiction of the United States, and still so continues
subject to the jurisdiction of the United States, and is a bona
fide resident of the Nebraska and City of Omaha, does not show
that he is a citizen of the United States under the Fourteenth
Article of Amendment of the Constitution.

															This is an action brought by an Indian in the Circuit Court of
the United States for the District of Nebraska against the
registrar of one of the wards of the City of Omaha for refusing to
register him as a qualified voter therein. The petition was as
follows:

															This is an action brought by an Indian, in the Circuit Court of
the United States for the District of Nebraska, against the
registrar of one of the wards of the City of Omaha, for refusing to
register him as a qualified voter therein. The petition was as
follows: Page 112 U. S. 95 "John Elk, plaintiff, complains of Charles Wilkins, defendant,
and avers that the matter in dispute herein exceeds the sum of five
hundred dollars, to-wit, the sum of six thousand dollars, and that
the matter in dispute herein arises under the Constitution and laws
of the United States, and, for cause of action against the
defendant, avers that he, the plaintiff, is an Indian, and was born
within the United States; that more than one year prior to the
grievances hereinafter complained of he had severed his tribal
relation to the Indian tribes, and had fully and completely
surrendered himself to the jurisdiction of the United States, and
still so continues subject to the jurisdiction of the United
States, and avers that, under and by virtue of the Fourteenth
Amendment to the Constitution of the United States, he is a citizen
of the United States, and entitled to the right and privilege of
citizens of the United States."

															"That on the sixth day of April, 1880, there was held in the
City of Omaha (a City of the first class, incorporated under the
general laws of the State of Nebraska, providing for the
incorporation of cities of the first class) a general election for
the election of members of the city council and other officers for
said city."

															"That the defendant, Charles Wilkins, held the office of and
acted as registrar in the Fifth Ward of said city, and that as such
registrar it was the duty of such defendant to register the names
of all persons entitled to exercise the elective franchise in said
ward of said city at said general election."

															"That this plaintiff was a citizen of and had been a bona
fide resident of the State of Nebraska for more than six
months prior to said sixth day of April, 1880, and had been a bona fide resident of Douglas County, wherein the City of
Omaha is situate, for more than forty days, and in the Fifth Ward
of said city more than ten days prior to the said sixth day of
April, and was such citizen and resident at the time of said
election, and at the time of his attempted registration, as
hereinafter set forth, and was in every way qualified, under the
laws of the State of Nebraska and of the City of Omaha, to be
registered as a voter, and to cast a vote at said election, and
complied with the laws of the city and state in that behalf. " Page 112 U. S. 96 "That on or about the fifth day of April, 1880, and prior to
said election, this plaintiff presented himself to said Charles
Wilkins, as such registrar at his office, for the purpose of having
his name registered as a qualified voter, as provided by law, and
complied with all the provisions of the statutes in that regard,
and claimed that, under the Fourteenth and Fifteenth Amendments to
the Constitution of the United States, he was a citizen of the
United States, and was entitled to exercise the elective franchise,
regardless of his race and color, and that said Wilkins,
designedly, corruptly, willfully, and maliciously, did then and
there refuse to register this plaintiff, for the sole reason that
the plaintiff was an Indian, and therefore not a citizen of the
United States, and not therefore entitled to vote, and on account
of his race and color, and with the willful, malicious, corrupt,
and unlawful design to deprive this plaintiff of his right to vote
at said election, and of his rights, and all other Indians of their
rights, under said Fourteenth and Fifteenth amendments to the
Constitution of the United States, on account of his and their race
and color."

															"That on the sixth day of April, this plaintiff presented
himself at the place of voting in said ward, and presented a
ballot, and requested the right to vote, where said Wilkins, who
was then acting as one of the judges of said election in said ward,
in further carrying out his willful and malicious designs as
aforesaid, declared to the plaintiff and to the other election
officers that the plaintiff was an Indian, and not a citizen, and
not entitled to vote, and said judges and clerks of election
refused to receive the vote of the plaintiff, for that he was not
registered as required by law."

															"Plaintiff avers the fact to be that by reason of said willful,
unlawful, corrupt, and malicious refusal of said defendant to
register this plaintiff, as provided by law, he was deprived of his
right to vote at said election, to his damage in the sum of
$6,000."

															"Wherefore, plaintiff prays judgment against defendant for
$6,000, his damages, with costs of suit."

															The defendant filed a general demurrer for the following causes:
1st, that the petition did not state facts sufficient to Page 112 U. S. 97 constitute a cause of action; 2d, that the court had no
jurisdiction of the person of the defendant; 3d, that the court had
no jurisdiction of the subject of the action.

															The demurrer was argued before Judge McCrary and Judge Dundy,
and sustained, and, the plaintiff electing to stand by his
petition, judgment was rendered for the defendant, dismissing the
petition, with costs. The plaintiff sued out this writ of
error.

															By the Constitution of the State of Nebraska, article 7 section
1,

															"Every male person of the age of twenty-one years or upwards,
belonging to either of the following classes, who shall have
resided in the state six months, and in the county, precinct, or
ward for the term provided by law, shall be an elector. First,
citizens of the United States. Second, persons of foreign birth who
shall have declared their intention to become citizens, conformably
to the laws of the United States on the subject of naturalization
at least thirty days prior to an election."

															By the statutes of Nebraska, every male person of the age of
twenty-one years or upward, belonging to either of the two classes
so defined in the constitution of the state, who shall have resided
in the state six months, in the county forty days, and in the
precinct, township, or ward ten days, shall be an elector; the
qualifications of electors in the several wards of cities of the
first class (of which Omaha is one) shall be the same as in
precincts; it is the duty of the registrar to enter in the register
of qualified voters the name of every person who applies to him to
be registered, and satisfies him that he is qualified to vote under
the provisions of the election laws of the state, and at all
municipal, as well as county or state elections, the judges of
election are required to check the name, and receive and deposit
the ballot, of any person whose name appears on the register.
Compiled Statutes of Nebraska of 1881, c. 26, § 3; c. 13, § 14; c.
76, §§ 6, 13, 19. Page 112 U. S. 98 MR. JUSTICE GRAY delivered the opinion of the Court. He stated
the facts in the foregoing language, and continued:

															The plaintiff, in support of his action, relies on the first
clause of the first section of the Fourteenth Article of Amendment
of the Constitution of the United States, by which

															"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside,"

															and on the Fifteenth Article of Amendment, which provides
that

															"The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any state on account
of race, color, or previous condition of servitude."

															This being a suit at common law in which the matter in dispute
exceeds $500, arising under the Constitution of the United States,
the circuit court had jurisdiction of it under the Act of March 3,
1875, c. 137, § 1, even if the parties were citizens of the same
state. 18 Stat. 470; Ames v. Kansas, 111 U.
S. 449 . The judgment of that court, dismissing the
action with costs, must have proceeded upon the merits, for if the
dismissal had been for want of jurisdiction, no costs could have
been awarded. Mayor v.
Cooper , 6 Wall. 247; Mansfield & Coldwater
Railway v. Swan, 111 U. S. 379 . And
the only point argued by the defendant in this Court is whether the
petition sets forth facts enough to constitute a cause of
action.

															The decision of this point, as both parties assume in their
briefs, depends upon the question whether the legal conclusion that
under and by virtue of the Fourteenth Amendment of the Constitution
the plaintiff is a citizen of the United States is supported by the
facts alleged in the petition and admitted by the demurrer, to-wit,
the plaintiff is an Indian and was born in the United States and
has severed his tribal relation to the Indian tribes and fully and
completely surrendered himself to the jurisdiction of the United
States, and still continues to be subject to the jurisdiction of
the United States, and is a bona fide resident of the
State of Nebraska and City of Omaha. The petition, while it does
not show of what Indian tribe the plaintiff was a member, yet, by
the allegations that he "is Page 112 U. S. 99 an Indian, and was born within the United States," and that "he
had severed his tribal relations to the Indian tribes," clearly
implies that he was born a member of one of the Indian tribes
within the limits of the United States which still exists and is
recognized as a tribe by the government of the United States.
Though the plaintiff alleges that he "had fully and completely
surrendered himself to the jurisdiction of the United States," he
does not allege that the United States accepted his surrender, or
that he has ever been naturalized, or taxed, or in any way
recognized or treated as a citizen by the state or by the United
States. Nor is it contended by his counsel that there is any
statute or treaty that makes him a citizen.

															The question, then, is whether an Indian, born a member of one
of the Indian tribes within the United States, is, merely by reason
of his birth within the United States and of his afterwards
voluntarily separating himself from his tribe and taking up his
residence among white citizens, a citizen of the United States
within the meaning of the first section of the Fourteenth Amendment
of the Constitution. Under the Constitution of the United States as
originally established, "Indians not taxed" were excluded from the
persons according to whose numbers representatives and direct taxes
were apportioned among the several states, and Congress had and
exercised the power to regulate commerce with the Indian tribes,
and the members thereof, whether within or without the boundaries
of one of the states of the Union. The Indian tribes, being within
the territorial limits of the United States, were not, strictly
speaking, foreign states, but they were alien nations, distinct
political communities, with whom the United States might and
habitually did deal as they thought fit, either through treaties
made by the President and Senate or through acts of Congress in the
ordinary forms of legislation. The members of those tribes owed
immediate allegiance to their several tribes, and were not part of
the people of the United States. They were 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, could not be taxed Page 112 U. S. 100 by any state. General acts of Congress did not apply to Indians
unless so expressed as to clearly manifest an intention to include
them. Constitution, Article I, Sections 2, 8; Article II, Section
2; Cherokee Nation v.
Georgia , 5 Pet. 1; Worcester
v. Georgia , 6 Pet. 515; United
States v. Rogers , 4 How. 567; United
States v. Holliday , 3 Wall. 407; Case of
the Kansas Indians , 5 Wall. 737; Case of
the New York Indians , 5 Wall. 761; Case of
the Cherokee Tobacco , 11 Wall. 616; United
States v. Whisky, 93 U. S. 188 ; Pennock v. Commissioners, 103 U. S.
44 ; Crow Dog's Case, 109 U.
S. 556 ; Goodell v. Jackson, 20 Johns. 693; Hastings v. Farmer, 4 N.Y. 293.

															The alien and dependent condition of the members of the Indian
tribes could not be put off at their own will without the action or
assent of the United States. They were never deemed citizens of the
United States except under explicit provisions of treaty or statute
to that effect either declaring a certain tribe, or such members of
it as chose to remain behind on the removal of the tribe westward,
to be citizens or authorizing individuals of particular tribes to
become citizens on application to a court of the United States for
naturalization and satisfactory proof of fitness for civilized
life, for examples of which see treaties in 1817 and 1835 with the
Cherokees, and in 1820, 1825, and 1830 with the Choctaws, 7 Stat.
159, 211, 236, 335, 483, 488; Wilson v. Wall , 6 Wall. 83; Opinion of Attorney General Taney, 2 Opinions of
Attorneys General 462; in 1855 with the Wyandotts, 10 Stat. 1159; Karrahoo v. Adams, 1 Dillon 344, 346; Gray v.
Coffman, 3 Dillon 393; Hicks v. Butrick, 3 Dillon
413; in 1861 and in March, 1866 with the Pottawatomies, 12 Stat.
1192; 14 Stat. 763; in 1862 with the Ottawas, 12 Stat. 1237; and
the Kickapoos, 13 Stat. 624; and Acts of Congress of March 3, 1839,
c. 83, § 7, concerning the Brothertown Indians, and of March 3,
1843, c. 101 § 7, August 6, 1846, c. 88, and March 3, 1865, c. 127
§ 4, concerning the Stockbridge Indians, 5 Stat. 351, 647; 9 Stat.
55; 13 Stat. 562. See also treaties with the Stockbridge
Indians in 1848 and 1856, 9 Stat. 955; 11 Stat. 667; 7 Opinions of
Attorneys General 746.

															Chief Justice Taney, in the passage cited for the plaintiff Page 112 U. S. 101 from his opinion in Scott v.
Sandford , 19 How. 393, 60 U. S. 404 ,
did not affirm or imply that either the Indian tribes, or
individual members of those tribes, had the right, beyond other
foreigners, to become citizens of their own will, without being
naturalized by the United States. His words were:

															"They [the Indian tribes] may without doubt, like the subjects
of any foreign government, be naturalized by the authority of
Congress and become citizens of a state and of the United States,
and if an individual should leave his nation or tribe, and take up
his abode among the white population, he would be entitled to all
the rights and privileges which would belong to an emigrant from
any other foreign people."

															But an emigrant from any foreign state cannot become a citizen
of the United States without a formal renunciation of his old
allegiance, and an acceptance by the United States of that
renunciation through such form of naturalization as may be required
law.

															The distinction between citizenship by birth and citizenship by
naturalization is clearly marked in the provisions of the
Constitution, by which

															"No person, except a natural born citizen or a citizen of the
United States at the time of the adoption of this Constitution
shall be eligible to the office of President,"

															and "The Congress shall have power to establish an uniform rule
of naturalization." Constitution, Article II, Section 1; Article I,
Section 8. By the Thirteenth Amendment of the Constitution, slavery
was prohibited. The main object of the opening sentence of the
Fourteenth Amendment was to settle the question, upon which there
had been a difference of opinion throughout the country and in this
Court, as to the citizenship of free negroes ( Scott v.
Sandford , 19 How. 393), and to put it beyond doubt
that all persons, white or black, and whether formerly slaves or
not, born or naturalized in the United States, and owing no
allegiance to any alien power, should be citizens of the United
States and of the state in which they reside. Slaughterhouse
Cases , 16 Wall. 36, 83 U. S. 73 ; Strauder v. West Virginia, 100 U.
S. 303 , 100 U. S.
306 .

															This section contemplates two sources of citizenship, and two
sources only: birth and naturalization. The persons declared Page 112 U. S. 102 to be citizens are "all persons born or naturalized in the
United States, and subject to the jurisdiction thereof." The
evident meaning of these last words is not merely subject in some
respect or degree to the jurisdiction of the United States, but
completely subject to their political jurisdiction and owing them
direct and immediate allegiance. And the words relate to the time
of birth in the one case, as they do to the time of naturalization
in the other. Persons not thus subject to the jurisdiction of the
United States at the time of birth cannot become so afterwards
except by being naturalized, either individually, as by proceedings
under the naturalization acts, or collectively, as by the force of
a treaty by which foreign territory is acquired.

															Indians born within the territorial limits of the United States,
members of and owing immediate allegiance to one of the Indiana
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.

															This view is confirmed by the second section of the Fourteenth
Amendment, which provides that

															"Representatives shall be apportioned among the several states
according to their respective numbers, counting the whole number of
persons in each state, excluding Indians not taxed."

															Slavery having been abolished, and the persons formerly held as
slaves made citizens, this clauses fixing the apportionment of
representatives has abrogated so much of the corresponding clause
of the original Constitution as counted only three-fifths of such
persons. But Indians not taxed are still excluded from the count
for the reason that they are not citizens. Their absolute exclusion
from the basis of representation in which all other persons are now
included is wholly inconsistent with their being considered
citizens. So the further provision of the second section for a
proportionate Page 112 U. S. 103 reduction of the basis of the representation of any state in
which the right to vote for Presidential electors, representatives
in Congress, or executive or judicial officers or members of the
legislature of a state is denied, except for participation in
rebellion or other crime, to "any of the male inhabitants of such
state, being twenty-one years of age and citizens of the United
States," cannot apply to a denial of the elective franchise to
Indians not taxed, who form no part of the people entitled to
representation.

															It is also worthy of remark that the language used about the
same time by the very Congress which framed the Fourteenth
Amendment, in the first section of the Civil Rights Act of April 9,
1866, declaring who shall be citizens of the United States, is "all
persons born in the United States, and not subject to any foreign
power, excluding Indians not taxed." 14 Stat. 27; Rev.Stat. §
1992.

															Such Indians, then, not being citizens by birth, can only become
citizens in the second way mentioned in the Fourteenth Amendment,
by being "naturalized in the United States," by or under some
treaty or statute.

															The action of the political departments of the government, not
only after the proposal of the amendment by Congress to the states
in June, 1866, but since the proclamation in July, 1868, of its
ratification by the requisite number of states, accords with this
construction.

															While the amendment was pending before the legislatures of the
several states, treaties containing provisions for the
naturalization of members of Indian tribes as citizens of the
United States were made on July 4, 1866, with the Delawares, in
1867 with various tribes in Kansas, and with the Pottawatomies, and
in April, 1868, with the Sioux. 14 Stat. 794, 796; 15 Stat. 513,
532, 533, 637.

															The treaty of 1867 with the Kansas Indians strikingly
illustrates the principle that no one can become a citizen of a
nation without its consent, and directly contradicts the
supposition that a member of an Indian tribe can at will be
alternately a citizen of the United States and a member of the
tribe.

															That treaty not only provided for the naturalization of
members Page 112 U. S. 104 of the Ottawa, Miami, Peoria, and other tribes, and their
families, upon their making declaration before the district court
of the United States of their intention to become citizens, 15
Stat. 517, 520, 521; but, after reciting that some of the
Wyandotts, who had become citizens under the treaty of 1855, were
"unfitted for the responsibilities of citizenship" and enacting
that a register of the whole people of this tribe, resident in
Kansas or elsewhere, should be taken, under the direction of the
Secretary of the Interior, showing the names of "all who declare
their desire to be and remain Indians and in a tribal condition,"
and of incompetents and orphans as described in the treaty of 1855,
and that such persons, and those only, should thereafter constitute
the tribe, it provided that

															"No one who has heretofore consented to become a citizen, nor
the wife or children of any such person, shall be allowed to become
members of the tribe except by the free consent of the tribe after
its new organization and unless the agent shall certify that such
party is, through poverty or incapacity, unfit to continue in the
exercise of the responsibilities of citizenship of the United
States and likely to become a public charge."

															15 Stat. 514, 516.

															Since the ratification of the Fourteenth Amendment, Congress has
passed several acts for naturalizing Indians of certain tribes,
which would have been superfluous if they were, or might become
without any action of the government, citizens of the United
States. By the Act of July 15, 1870, c. 296, § 10, for instance, it
was provided that if at any time thereafter any of the Winnebago
Indians in the State of Minnesota should desire to become citizens
of the United States, they should make application to the District
Court of the United States for the District of Minnesota, and in
open court make the same proof, and take the same oath of
allegiance as is provided by law for the naturalization of aliens,
and should also make proof, to the satisfaction of the court, that
they were sufficiently intelligent and prudent to control their
affairs and interests, that they had adopted the habits of
civilized life, and had for at least five years before been able to
support themselves and their families, and thereupon Page 112 U. S. 105 they should be declared by the court to be citizens of the
United States, the declaration entered of record, and a certificate
thereof given to the applicant, and the Secretary of the Interior,
upon presentation of that certificate, might issue to them patents
in fee simple, with power of alienation, of the lands already held
by them in severalty, and might cause to be paid to them their
proportion of the money and effects of the tribe held in trust
under any treaty or law of the United States, and thereupon such
persons should cease to be members of the tribe, and the lands so
patented to them should be subject to levy, taxation, and sale in
like manner with the property of other citizens. 16 Stat. 361. By
the Act of March 3, 1873, c. 332, § 3, similar provision was made
for the naturalization of any adult members of the Miami tribe in
Kansas, and of their minor children. 17 Stat. 632. And the Act of
March 3, 1865, c. 127, before referred to, making corresponding
provision for the naturalization of any of the chiefs, warriors, or
heads of families of the Stockbridge Indians, is reenacted in §
2312 of the Revised Statutes.

															The Act of January 25, 1871, c. 38, for the relief of the
Stockbridge and Munsee Indians in the State of Wisconsin, provided
that "for the purpose of determining the persons who are members of
said tribes, and the future relation of each to the government of
the United States," two rolls should be prepared under the
direction of the Commissioner of Indian Affairs, signed by the
sachem and councilors of the tribe, certified by the person
selected by the commissioner to superintend the same, and returned
to the commissioner, the one, to be denominated the citizen roll,
of the names of all such persons of full age, and their families,
"as signify their desire to separate their relations with said
tribe and to become citizens of the United States," and the other
to be denominated the Indian roll, of the names of all such "as
desire to retain their tribal character and continue under the care
and guardianship of the United States," and that those rolls, so
made and returned, should be held as a full surrender and
relinquishment, on the part of all those of the first class, of all
claims to be known or considered as members of the tribe, or to be
interested Page 112 U. S. 106 in any provision made or to be made by the United States for its
benefit, "and they and their descendants shall thenceforth be
admitted to all the rights and privileges of citizens of the United
States." 16 Stat. 406.

															The Pension Act exempts Indian claimants of pensions for service
in the army or navy from the obligation to take the oath to support
the Constitution of the United States. Act of March 3, 1873, c.
234, § 28, 17 Stat. 574; Rev.Stat. § 4721.

															The recent statutes concerning homesteads are quite inconsistent
with the theory that Indians do or can make themselves independent
citizens by living apart from their tribe. The Act of March 3,
1875, c. 131, § 15, allowed to "any Indian born in the United
States, who is the head of a family, or who has arrived at the age
of twenty-one years, and who has abandoned, or may hereafter
abandon, his tribal relations" the benefit of the homestead acts,
but only upon condition of his "making satisfactory proof of such
abandonment, under rules to be prescribed by the Secretary of the
Interior," and further provided that his title in the homestead
should be absolutely inalienable for five years from the date of
the patent, and that he should be entitled to share in all
annuities, tribal funds, lands, and other property, as if he had
maintained his tribal relations. 18 Stat. 420. And the Act of March
3, 1884, c. 180, § 1, while it allows Indians "located on public
lands" to "avail themselves of the homestead laws as fully, and to
the same extent, as may now be done by citizens of the United
States," provides that the form and the legal effect of the patent
shall be that the United States does and will hold the land for
twenty-five years in trust for the Indian making the entry, and his
widow and heirs, and will then convey it in fee to him or them. 23
Stat. 96.

															The national legislation has tended more and more toward the
education and civilization of the Indians, and fitting them to be
citizens. But the question whether any Indian tribes, or any
members thereof, have become so far advanced in civilization that
they should be let out of the state of pupilage, and admitted to
the privileges and responsibilities of citizenship, is a question
to be decided by the nation whose wards they are Page 112 U. S. 107 and whose citizens they seek to become, and not by each Indian
for himself. There is nothing in the statutes or decisions referred
to by counsel to control the conclusion to which we have been
brought by a consideration of the language of the Fourteenth
Amendment and of the condition of the Indians at the time of its
proposal and ratification.

															The Act of July 27, 1868, c. 249, declaring the right of
expatriation to be a natural and inherent right of all people, and
reciting that "in the recognition of this principle this government
has freely received emigrants from all nations, and invested them
with the rights of citizenship," while it affirms the right of
every man to expatriate himself from one country, contains nothing
to enable him to become a citizen of another without being
naturalized under its authority. 15 Stat. 223; Rev.Stat. §
1999.

															The provision of the Act of Congress of March 3, 1871, c. 120,
that

															"Hereafter no Indian nation or tribe within the territory of the
United States shall be acknowledged or recognized as an independent
nation, tribe, or power with whom the United States may contract by
treaty"

															is coupled with a provision that the obligation of any treaty
already lawfully made is not to be thereby invalidated or impaired,
and its utmost possible effect is to require the Indian tribes to
be dealt with for the future through the legislative and not
through the treatymaking power. 16 Stat. 566; Rev.Stat. § 2079.

															In the case of United States v. Elm, 23 Int.Rev.Rec.
419, decided by Judge Wallace in the District Court of the United
States for the Northern District of New York, the Indian who was
held to have a right to vote in 1876 was born in the State of New
York, one of the remnants of a tribe which had ceased to exist as a
tribe in that state, and by a statute of the state it had been
enacted that any native Indian might purchase, take, hold, and
convey lands, and whenever he should have become a freeholder to
the value of $100 should be liable to taxation and to the civil
jurisdiction of the courts in the same manner and to the same
extent as a citizen. N.Y. Stat. 1843, c. 87. The condition of the
tribe from which he Page 112 U. S. 108 derived his origin, so far as any fragments of it remained
within the State of New York, resembled the condition of those
Indian nations of which Mr. Justice Johnson said in Fletcher v.
Peck , 6 Cranch 87, 10 U. S. 146 ,
that they "have totally extinguished their national fire, and
submitted themselves to the laws of the states," and which Mr.
Justice McLean had in view when he observed in Worcester
v. Georgia , 6 Pet. 515, 31 U. S. 580 ,
that in some of the old states

															"where small remnants of tribes remain, surrounded by white
population, and who, by their reduced numbers, had lost the power
of self-government, the laws of the state have been extended over
them, for the protection of their persons and property." See also, as to the condition of Indians in
Massachusetts, remnants of tribes never recognized by the treaties
or legislative or executive acts of the United States as distinct
political communities, Danzell v. Webquish, 108 Mass. 133; Pells v. Webquish, 129 Mass. 469; Mass. Stat. 1862, c.
184; 1869, c. 463.

															The passages cited as favorable to the plaintiff, from the
opinions delivered in Ex Parte Kenyon, 5 Dillon 385, 390,
in Ex Parte Reynolds, 5 Dillon 394, 397, and in United
States v. Crook, 5 Dillon 453, 464, were obiter
dicta. The Case of Reynolds was an indictment, in the
Circuit Court of the United States for the Western District of
Arkansas, for a murder in the Indian country, of which that court
had jurisdiction if either the accused or the dead man was not an
Indian, and was decided by Judge Parker in favor of the
jurisdiction, upon the ground that both were white men and that,
conceding the one to be an Indian by marriage, the other never was
an Indian in any sense. 5 Dillon 397, 404. Each of the other two
cases was a writ of habeas corpus, and any person, whether a
citizen or not, unlawfully restrained of his liberty, is entitled
to that writ. Case of the Hottentot Venus, 13 East 195; Case of Dos Santos, 2 Brock. 493; In re
Kaine , 14 How. 103. In Kenyon's Case, Judge Parker held that the court in which the prisoner had been
convicted had no jurisdiction of the subject matter because the
place of the commission of the act was beyond the territorial
limits of its jurisdiction, and, as was truly said, "this alone
would be conclusive of this case." 5 Dillon Page 112 U. S. 109 390. In United States v. Crook, the Ponca Indians were
discharged by Judge Dundy because the military officers who held
them were taking them to the Indian Territory by force and without
any lawful authority, 5 Dillon 468, and in the case at bar, as the
record before us shows, that learned judge concurred in the
judgment below for the defendant.

															The law upon the question before us has been well stated by
Judge Deady in the District Court of the United States for the
District of Oregon. In giving judgment against the plaintiff in a
case resembling the case at bar, he said:

															"Being born a member of 'an independent political community' --
the Chinook -- he was not born subject to the jurisdiction of the
United States -- not born in its allegiance." McKay v. Campbell, 2 Sawyer 118, 134. And in a later
case, he said:

															"But an Indian cannot make himself a citizen of the United
States without the consent and cooperation of the government. The
fact that he has abandoned his nomadic life or tribal relations and
adopted the habits and manners of civilized people may be a good
reason why he should be made a citizen of the United States, but
does not of itself make him one. To be a citizen of the United
States is a political privilege which no one not born to can assume
without its consent in some form. The Indians in Oregon, not being
born subject to the jurisdiction of the United States, were not
born citizens thereof, and I am not aware of any law or treaty by
which any of them have been made so since." United States v. Osborne, 6 Sawyer 406, 409.

															Upon the question whether any action of a state can confer
rights of citizenship on Indians of a tribe still recognized by the
United States as retaining its tribal existence, we need not and do
not express an opinion, because the State of Nebraska is not shown
to have taken any action affecting the condition of this plaintiff. See Chirac v.
Chirac , 2 Wheat. 259; Fellows v.
Blacksmith , 19 How. 366; United
States v. Holliday , 3 Wall. 407, 70 U. S. 420 ; United States v. Joseph, 94 U. S. 614 , 94 U. S. 618 .
The plaintiff, not being a citizen of the United States under the
Fourteenth Amendment of the Constitution, has been deprived of no
right secured by the Fifteenth Amendment, and cannot maintain this
action. Judgment affirmed. Page 112 U. S. 110 MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE WOODS,
dissenting.

															MR. JUSTICE WOODS and myself feel constrained to express our
dissent from the interpretation which our brethren give to that
clause of the Fourteenth Amendment which provides that

															"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside."

															The case, as presented by the record, is this:

															John Elk, the plaintiff in error, is a person of the Indian
race. He was born within the territorial limits of the United
States. His parents were, at the time of his birth, members of one
of the Indian tribes in this country. More than a year, however,
prior to his application to be registered as a voter in the City of
Omaha, he had severed all relations with his tribe and, as he
alleges, fully and completely surrendered himself to the
jurisdiction of the United States. Such surrender was, of course,
involved in his act of becoming, as the demurrer to the petition
admits that he did become, a bona fide resident of the
State of Nebraska. When he applied in 1880 to be registered as a
voter, he possessed, as is also admitted, the qualifications of age
and residence in state, county, and ward, required for electors by
the constitution and laws of that state. It is likewise conceded
that he was entitled to be so registered if at the time of his
application, he was a citizen of the United States, for, by the
Constitution and laws of Nebraska, every citizen of the United
States having the necessary qualifications of age and residence in
state, county, and ward is entitled to vote. Whether he was such
citizen is the question presented by this writ of error.

															It is said that the petition contains no averment that Elk was
taxed in the state in which he resides, or had ever been treated by
her as a citizen. It is evident that the court would not have held
him to be a citizen of the United States even if the petition had
contained a direct averment that he was taxed, because its
judgment, in legal effect, is that, although born within the
territorial limits of the United States, he could not, if at his
birth a member of an Indian tribe, acquire national citizenship Page 112 U. S. 111 by force of the Fourteenth Amendment, but only in pursuance of
some statute or treaty providing for his naturalization. It would
therefore seem unnecessary to inquire whether he was taxed at the
time of his application to be registered as a voter, for if the
words "all persons born . . . in the United States and subject to
the jurisdiction thereof" were not intended to embrace Indians born
in tribal relations, but who subsequently became bona fide residents of the several states, then manifestly the legal status
of such Indians is not altered by the fact that they are taxed in
those states.

															While denying that national citizenship, as conferred by that
amendment, necessarily depends upon the inquiry whether the person
claiming it is taxed in the state of his residence or has property
therein from which taxes may be derived, we submit that the
petition does sufficiently show that the plaintiff was taxed --
that is, belongs to the class which, by the laws of Nebraska, are
subject to taxation. By the Constitution and laws of Nebraska, all
real and personal property in that state are subject to assessment
and taxation. Every person of full age and sound mind, being a
resident thereof, is required to list his personal property for
taxation. Const.Neb. art. 9, § 1; Compiled Stat. of Neb., c. 77,
pp. 400, 401. Of these provisions upon the subject of taxation this
Court will take judicial notice. Good pleading did not require that
they should be set forth at large in the petition. Consequently an
averment that the plaintiff is a citizen and bona fide resident of Nebraska implies in law that he is subject to taxation,
and is taxed, in that state. Further: The plaintiff has become so
far incorporated with the mass of the people of Nebraska that
being, as the petition avers, a citizen and resident thereof, he
constitutes a part of her militia. Compiled Stat.Neb. c. 56. He
may, being no longer a member of an Indian tribe, sue and be sued
in her courts. And he is counted in every apportionment of
representation in the legislature, for the requirement of her
Constitution is that

															"The legislature shall apportion the Senators and
representatives according to the number of inhabitants, excluding
Indians not taxed, and soldiers and officers of the United States
army."

															Const.Neb., art. 3 § 1. Page 112 U. S. 112 At the adoption of the Constitution there were, in many of the
states, Indians, not members of any tribe, who constituted a part
of the people for whose benefit the state governments were
established. This is apparent from that clause of Article I,
Section 3, which requires, in the apportionment of representatives
and direct taxes among the several states "according to their
respective numbers," the exclusion of "Indians not taxed." This
implies that there were at that time, in the United States, Indians
who were taxed -- that is, were subject to taxation by the laws of
the State of which they were residents. Indians not taxed were
those who held tribal relations, and therefore were not subject to
the authority of any state, and were subject only to the authority
of the United States, under the power conferred upon Congress in
reference to Indian tribes in this country. The same provision is
retained in the Fourteenth Amendment; for now, as at the adoption
of the Constitution, Indians in the several states, who are taxed
by their laws, are counted in establishing the basis of
representation in Congress.

															By the Act of April 9, 1866, entitled "An act to protect all
persons in the United States in their civil rights, and furnish
means for their vindication," 14 Stat. 27, it is provided that

															"all persons born in the United States, and not subject to any
foreign power, excluding Indians not taxed, are hereby declared to
be citizens of the United States."

															This, so far as we are aware, is the first general enactment
making persons of the Indian race citizens of the United States.
Numerous statutes and treaties previously provided for all the
individual members of particular Indian tribes becoming, in certain
contingencies, citizens of the United States. But the act of 1866
reached Indians not in tribal relations. Beyond question, by that
act, national citizenship was conferred directly upon all persons
in this country, of whatever race (excluding only "Indians not
taxed") who were born within the territorial limits of the United
States, and were not subject to any foreign power. Surely everyone
must admit that an Indian residing in one of the states and subject
to taxation there became, by force alone of the act of 1866, a
citizen of the United States, although Page 112 U. S. 113 he may have been, when born, a member of a tribe. The exclusion
of Indians not taxed evinced a purpose to include those subject to
taxation in the state of their residence. Language could not
express that purpose with more distinctness than does the act of
1866. Any doubt upon the subject, in respect to persons of the
Indian race residing in the United States or territories, and not
members of a tribe, will be removed by an examination of the
debates, in which many distinguished statesmen and lawyers
participated in the Senate of the United States when the act of
1866 was under consideration.

															In the bill as originally reported from the Judiciary Committee
there were no words excluding "Indians not taxed" from the
citizenship proposed to be granted. Attention being called to this
fact, the friends of the measure disclaimed any purpose to make
citizens of those who were in tribal relations, with governments of
their own. In order to meet that objection, while conforming to the
wishes of those desiring to invest with citizenship all Indians
permanently separated from their tribes, and who, by reason of
their residence away from their tribes, constituted a part of the
people under the jurisdiction of the United States, Mr. Trumbull,
who reported the bill, modified it by inserting the words
"excluding Indians not taxed." What was intended by that
modification appears from the following language used by him in
debate:

															"Of course, we cannot declare the wild Indians who do not
recognize the government of the United States, who are not subject
to our laws, with whom we make treaties, who have their own laws,
who have their own regulations, whom we do not intend to interfere
with or punish for the commission of crimes one upon the other, to
be the subjects of the United States in the sense of being
citizens. They must be excepted. The Constitution of the United
States excludes them from the enumeration of the population of the
United States when it says that Indians not taxed are to be
excluded. It has occurred to me that, perhaps, the amendment would
meet the views of all gentlemen, which used these constitutional
words, and said that all persons born in the United States,
excluding Page 112 U. S. 114 Indians not taxed, and not subject to any foreign power, shall
be deemed citizens of the United States."

															Cong.Globe, 1st Sess. 39th Congress, p. 527.

															In replying to the objections urged by Mr. Hendricks to the bill
even as amended, Mr. Trumbull said:

															"Does the Senator from Indiana want the wild roaming Indians,
not taxed, not subject to our authority, to be citizens of the
United States -- persons that are not to be counted, in our
government? If he does not, let him not object to this amendment
that brings in even [only] the Indian when he shall
have cast off his wild habits, and submitted to the laws of
organized society and become a citizen. " Ibid., 528.

															The entire debate shows, with singular clearness, indeed, with
absolute certainty, that no Senator who participated in it,
whether, in favor of or in opposition to the measure, doubted that
the bill as passed admitted, and was intended to admit, to national
citizenship Indians who abandoned their tribal relations and became
residents of one of the states or territories, within the full
jurisdiction of the United States. It was so interpreted by
President Johnson, who, in his veto message, said:

															"By the first section of the bill all persons born in the United
States, and not subject to any foreign power, excluding Indians not
taxed, are declared to be citizens of the United States. This
provision comprehends the Chinese of the Pacific states, Indians subject to taxation, the people called gypsies, as
well as the entire race designated as blacks, persons of color,
negroes, mulattoes, and persons of African blood. Every individual
of those races, born in the United States, is, by the bill, made a
citizen of the United States."

															It would seem manifest, from this brief review of the history of
the act of 1866, that one purpose of that legislation was to confer
national citizenship upon a part of the Indian race in this country
-- such of them at least, as resided in one of the states or
territories, and were subject to taxation and other public burdens.
And it is to be observed that, whoever was included within the
terms of the grant contained in that act, became citizens of the
United States without any record of Page 112 U. S. 115 their names being made. The citizenship conferred was made to
depend wholly upon the existence of the facts which the statute
declared to be a condition precedent to the grant taking
effect.

															At the same session of the Congress which passed the act of
1866, the Fourteenth Amendment was approved and submitted to the
states for adoption. Those who sustained the former urged the
adoption of the latter. An examination of the debates, pending the
consideration of the amendment, will show that there was no purpose
on the part of those who framed it, or of those who sustained it by
their votes, to abandon the policy inaugurated by the act of 1866,
of admitting to national citizenship such Indians as were separated
from their tribes and were residents of one of the states or
territories outside of any reservation set apart for the exclusive
use and occupancy of Indian tribes.

															Prior to the adoption of the Fourteenth Amendment, numerous
statutes were passed with reference to particular bodies of
Indians, under which the individual members of such bodies, upon
the dissolution of their tribal relations, or upon the division of
their lands derived from the government, became, or were entitled
to become, citizens of the United States by force alone of the
statute, without observing the forms required by the naturalization
laws in the case of a foreigner becoming a citizen of the United
States. Such was the statute of March 3, 1839, 5 Stat. 349,
relating to the Brothertown Indians in the then Territory of
Wisconsin. Congress consented that the lands reserved for their use
might be partitioned among the individuals composing the tribe. The
act required the petition to be evidenced by a report and map to be
filed with the Secretary of the Interior, by whom it should be
transmitted to the President; whereupon the act proceeded:

															"The said Brothertown Indians, and each and every of them, shall
then be deemed to be, and from that time forth are hereby declared
to be, citizens of the United States to all intents and purposes,
and shall be entitled to all the rights, privileges, and immunities
of such citizens,"

															etc. Similar legislation was enacted with Page 112 U. S. 116 reference to the Stockbridge Indians. 5 Stat. 646-647.
Legislation of this character has an important bearing upon the
present question, for it shows that prior to the adoption of the
Fourteenth Amendment it had often been the policy of Congress to
admit persons of the Indian race to citizenship upon their ceasing
to have tribal relations, and without the slightest reference to
the fact that they were born in tribal relations. It shows also
that the citizenship thus granted was not in every instance
required to be evidenced by the record of a court.

															If it be said that the statutes prior to 1866, providing for the
admission of Indians to citizenship, required in their execution
that a record be made of the names of those who thus acquired
citizenship, our answer is that it was entirely competent for
Congress to dispense, as it did in the act of 1866, with any such
record being made in a court or in any department of the
government. And certainly it must be conceded that, except in cases
of persons "naturalized in the United States," which phrase refers
only to those who are embraced by the naturalization laws, and not
to Indians, the Fourteenth Amendment does not require the
citizenship granted by it to be evidenced by the record of any
court, or of any department of the government. Such citizenship
passes to the person of whatever race who is embraced by its
provisions, leaving the fact of citizenship to be determined, when
it shall become necessary to do so in the course of legal inquiry,
in the same way that questions as to one's nativity, domicile, or
residence are determined.

															If it be also said that since the adoption of the Fourteenth
Amendment, Congress has enacted statutes providing for the
citizenship of Indians, our answer is that those statutes had
reference to tribes the members of which could not, while they
continued in tribal relations, acquire the citizenship granted by
the Fourteenth Amendment. Those statutes did not deal with
individual Indians who had severed their tribal connections and
were residents within the states of the Union, under the complete
jurisdiction of the United States.

															There is nothing in the history of the adoption of the
Fourteenth Amendment which in our opinion justifies the
conclusion Page 112 U. S. 117 that only those Indians are included in its grant of citizenship
who were at the time of their birth, subject to the complete
jurisdiction of the United States. As already stated, according to
the doctrines of the Court in this case -- if we do not wholly
misapprehend the effect of its decision -- the plaintiff, if born
while his parents were members of an Indian tribe, would not be
embraced by the amendment even had he been at the time it was
adopted, a permanent resident of one of the states, subject to
taxation and in fact paying property and personal taxes, to the
full extent required of the white race in the same state.

															When the Fourteenth Amendment was pending in the Senate of the
United States, Mr. Doolittle moved to insert after the words
"subject to the jurisdiction thereof" the words "excluding Indians
not taxed." His avowed object in so amending the measure was to
exclude beyond all question from the proposed grant of national
citizenship, tribal Indians who -- since they were, in a sense,
subject to the jurisdiction of the United States -- might be
regarded as embraced in the grant. The proposition was opposed by
Mr. Trumbull and other friends of the proposed constitutional
amendment upon the ground that the words "Indians not taxed" might
be misconstrued, and also because those words were unnecessary, in
that the phrase "subject to the jurisdiction thereof" embraced only
those who were subject to the complete jurisdiction of the United
States, which could not be properly said of Indians in tribal
relations. But it was distinctly announced by the friends of the
amendment that they intended to include in the grant of national
citizenship Indians who were within the jurisdiction of the states
and subject to their laws, because such Indians would be completely
under the jurisdiction of the United States. Said Mr. Trumbull:

															"It is only those who come completely within our jurisdiction,
who are subject to our laws, that we think of making citizens, and
there can be no objection to the proposition that such persons
should be citizens."

															Cong.Globe, Pt. 4, 1st Sess. 39th Cong., pp. 2890-2893. Alluding
to the phrase "Indians not taxed," he remarked that the language of
the proposed constitutional amendment was Page 112 U. S. 118 better than that of the act of 1866 passed at the same session.
He observed:

															"There is a difficulty about the words 'Indians not taxed.'
Perhaps one of the reasons why I think so is because of the
persistency with which the Senator from Indiana himself insisted
that the phrase 'Indians not taxed,' the very words which the
Senator from Wisconsin wishes to insert here, would exclude
everybody that did not pay a tax; that that was the meaning of it;
we must take it literally. The Senator from Maryland did not agree
to that, nor did I; but, if the Senator from Indiana was right, it
would receive a construction which, I am sure, the Senator from
Wisconsin would not be for, for if these Indians come within our
limits and within our jurisdiction and are civilized, he would just
as soon make a citizen of a poor Indian as of the rich Indian." Ibid., 2894.

															A careful examination of all that was said by Senators and
representatives, pending the consideration by Congress of the
Fourteenth Amendment, justifies us in saying that everyone who
participated in the debates, whether for or against the amendment,
believed that, in the form in which it was approved by Congress, it
granted, and was intended to grant, national citizenship to every
person of the Indian race in this country who was unconnected with
any tribe, and who resided, in good faith, outside of Indian
reservations and within one of the states or territories of the
Union. This fact is, we think, entitled to great weight in
determining the meaning and scope of the amendment. Lithographic Co. v. Sarony, 111 U.
S. 57 .

															In this connection, we refer to an elaborate report made by Mr.
Carpenter, to the Senate of the United States, in behalf of its
Judiciary Committee, on the 14th of December, 1870. The report was
made in obedience to an instruction to inquire as to the effect of
the Fourteenth Amendment upon the treaties which the United States
had with various Indian tribes of the country. The report says:

															"For these reasons your committee do not hesitate to say that
the Indian tribes within the limits of the United States, and the
individuals, members of such tribes, while they adhere to and form
a part of the tribes to which they belong, are not, within the
meaning of the Page 112 U. S. 119 Fourteenth Amendment, 'subject to the jurisdiction' of the
United States, and therefore that such Indians have not
become citizens of the United States by virtue of that amendment;
and, if your committee are correct in this conclusion, it follows
that the treaties heretofore made between the United States and the
Indian tribes are not annulled by that amendment."

															The report closes with this significant language:

															"It is pertinent to say, in concluding this report, that treaty
relations can properly exist with Indian tribes or nations only,
and that, when the members of any Indian tribe are scattered,
they are merged in the mass of our people, and become equally
subject to the jurisdiction of the United States. "

															The question before us has been examined by a writer upon
constitutional law whose views are entitled to great respect. Judge
Cooley, referring to the definition of national citizenship as
contained in the Fourteenth Amendment, says:

															"By the express terms of the amendment, persons of foreign
birth, who have never renounced the allegiance to which they were
born, though they may have a residence in this country, more or
less permanent, for business, instruction, or pleasure, are not
citizens. Neither are the aboriginal inhabitants of the country
citizens, so long as they preserve their tribal relations and
recognize the headship of their chiefs, notwithstanding that, as
against the action of our own people, they are under the protection
of the laws, and may be said to owe a qualified allegiance to the
government. When living within territory over which the laws,
either state or territorial, are extended, they are protected by,
and at the same time, held amenable to, those laws in all their
intercourse with the body politic, and with the individuals
composing it; but they are also, as a quasi -foreign
people, regarded as being under the direction and tutelage of the
general government, and subjected to peculiar regulations as
dependent communities. They are 'subject to the jurisdiction' of
the United States only in a much qualified sense, and it would be
obviously inconsistent with the semi-independent character of such
a tribe, and with the obedience they are expected to render to
their tribal head, that they should be vested with the complete
rights, or, on the other Page 112 U. S. 120 hand, subjected to the full responsibilities of American
citizens. It would not for a moment be contended that such was the
effect of this amendment."

															"When, however, the tribal relations are dissolved, when the
headship of the chief or the authority of the tribe is no longer
recognized, and the individual Indian, turning his back upon his
former mode of life, makes himself a member of the civilized
community, the case is wholly altered. He then no longer
acknowledges a divided allegiance; he joins himself to the body
politic; he gives evidence of his purpose to adopt the habits and
customs of civilized life; and, as his case is then within the
terms of this amendment, it would seem that his right to
protection, in person, property, and privilege, must be as complete
as the allegiance to the government to which he must then be held;
as complete, in short, as that of any other native-born
inhabitant."

															2 Story's Const., Cooley's ed., § 1933, p. 654.

															To the same effect are Ex Parte Kenyon, 5 Dillon 390; Ex Parte Reynolds, ib., 307; United States v. Crook,
ib., 454; United States v. Elm, Dist.Ct. U.S.,
N.D.N.Y. 23 Int.Rev.Rec. 419.

															It seems to us that the Fourteenth Amendment, insofar as it was
intended to confer national citizenship upon persons of the Indian
race, is robbed of its vital force by a construction which excludes
from such citizenship those who, although born in tribal relations,
are within the complete jurisdiction of the United States. There
were, in some of our states and territories at the time the
amendment was submitted by Congress, many Indians who had finally
left their tribes and come within the complete jurisdiction of the
United States. They were as fully prepared for citizenship as were
or are vast numbers of the white and colored races in the same
localities. Is it conceivable that the statesmen who framed, the
Congress which submitted, and the people who adopted that amendment
intended to confer citizenship, national and state, upon the entire
population in this country of African descent (the larger part of
which was shortly before held in slavery), and, by the same
constitutional provision, to exclude from such citizenship
Indians Page 112 U. S. 121 who had never been in slavery and who, by becoming bona
fide residents of states and territories within the complete
jurisdiction of the United States, had evinced a purpose to abandon
their former mode of life, and become a part of the people of the
United States? If this question be answered in the negative, as we
think it must be, then we are justified in withholding our assent
to the doctrine which excludes the plaintiff from the body of
citizens of the United States upon the ground that his parents
were, when he was born, members of an Indian tribe, for, if he can
be excluded upon any such ground, it must necessarily follow that
the Fourteenth Amendment did not grant citizenship even to Indians
who, although born in tribal relations, were at its adoption,
severed from their tribes, subject to the complete jurisdiction as
well of the United States as of the state or territory in which
they resided.

															Our brethren, it seems to us, construe the Fourteenth Amendment
as if it read:

															"All persons born subject to the jurisdiction of, or
naturalized in, the United States, are citizens of the United
States and of the state in which they reside,"

															whereas the amendment, as it is, implies in respect of persons
born in this country that they may claim the rights of national
citizenship from and after the moment they become subject to the
complete jurisdiction of the United States. This would not include
the children born in this country of a foreign minister, for the
reason that, under the fiction of extraterritoriality as recognized
by international law, such minister, "though actually in a foreign
country, is considered still to remain within the territory of his
own state," and, consequently, he continues

															"subject to the laws of his own country, both with respect to
his personal status and his rights of property, and his children,
though born in a foreign country, are considered as natives."

															Halleck's International Law, c. 10 § 12. Nor was plaintiff born
without the jurisdiction of the United States in the same sense
that the subject of a foreign state, born within the territory of
that state, may be said to have been born without the jurisdiction
of our government. For, according to the decision in Cherokee Page 112 U. S. 122 Nation v. Georgia, 5 Pet. 17, the tribe of which the
parents of plaintiff were members was not "a foreign state, in the
sense of the Constitution," but a domestic dependent people, "in a
state of pupilage," and

															"so completely under the sovereignty and dominion of the United
States that any attempt to acquire their lands, or to form a
political connection with them, would be considered an invasion of
our territory and an act of hostility."

															They occupied territory which the court, in that case, said
composed "a part of the United States," the title to which this
nation asserted independent of their will. "In all our intercourse
with foreign nations," said Chief Justice Marshall in the same
case,

															"In our commercial regulations, in any attempt at intercourse
between Indians and foreign nations, they are considered as within
the jurisdictional limits of the United States, subject to many of
those restraints which are imposed upon our citizens. . . . 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."

															And, again, in United States v.
Rogers , 4 How. 572, this Court, speaking by Chief
Justice Taney, said that it was

															"too firmly and clearly established to admit of dispute that the
Indian tribes, residing within the territorial limits of the United
States, are subject to their authority." The Cherokee
Tobacco , 11 Wall. 616.

															Born, therefore, in the territory, under the dominion and within
the jurisdictional limits of the United States, plaintiff has
acquired, as was his undoubted right, a residence in one of the
states, with her consent, and is subject to taxation and to all
other burdens imposed by her upon residents of every race. If he
did not acquire national citizenship on abandoning his tribe and
becoming, by residence in one of the states, subject to the
complete jurisdiction of the United States, then the Fourteenth
Amendment has wholly failed to accomplish, in respect of the Indian
race, what, we think, was intended by it, and there is still in
this country a despised and rejected class of persons with no
nationality whatever, who, born in our territory, owing no
allegiance to any foreign power, and subject, as residents of the
states, to all the burdens of government, Page 112 U. S. 123 are yet not members of any political community, nor entitled to
any of the rights, privileges, or immunities of citizens of the
United States.

Summary: In the case of Elk v. Wilkins, the Supreme Court decided that an Indian born in the United States and belonging to a recognized tribe is not automatically a citizen of the country, even if they have severed ties with their tribe and reside among white citizens. The Court's decision hinged on the interpretation of the Fourteenth Amendment, with the Court concluding that the amendment did not extend citizenship to Indians who had voluntarily left their tribes. This meant that Indians who had assimilated into white society were not granted the right to vote or other privileges of citizenship. The Court's ruling perpetuated the legal status of Indians as a separate class of people, neither foreign nationals nor full citizens, and subject to the jurisdiction and laws of the United States without the corresponding rights and protections.