Amending the Indian Citizenship Act

Amending The Indian Citizenship Act

Lee Miller

    In June, 1924, after unanimous recommendations by both the House and Senate Committees on Indian Affairs, the United States Congress passed the American Indian Citizenship Act. The Act provided that all “…Indians born within the territorial limits of the United States be, and they are hereby declared to be, citizens of the United States.”1 Despite its tremendous import, in Washington, the Act did not generate the intense interest one might have expected, for it was hardly groundbreaking: at the time of its enactment, the Federal government already employed “more than a dozen” other methods whereby U.S. citizenship was conferred upon Indian people.2 In fact, Congress estimated that more than two-thirds of all Indian people were already United States citizens.3 Ironically, the targets of the new Act were the estimated two hundred and forty-thousand Indian “wards,” also known as “restricted” Indians, who were then living within their own sovereign nations in territory contiguous to the United States.4
    Equally ironic, the Act’s sponsor was House Representative Homer P. Snyder, Chairman of Indian Affairs, who had grown up in the Mohawk Valley and whose home state of New York shared borders with each of the member nations of the Hodenosaunee Confederacy. These nations (all of whom were “restricted”) possessed highly sophisticated and fully-functioning governmental systems, adamantly maintained their sovereignty, and were among the most outspoken opponents of United States citizenship.
    In fairness, Snyder was under considerable pressure to do something about the “Indian problem,” particularly from activist constituents in Upstate New York. As 1924 approached, both the treatment of Indian people and womens’ suffrage were the subjects of heated debate in his state. In the Catskills, Lake Mohonk Conference participants vociferously demanded that the Indian condition be ameliorated, while in Syracuse, suffragist Matilda Gage (who opposed American Indian citizenship on the grounds that her Iroquois neighbors did not desire it) equally espoused the Indian cause.5 Many reformers were gravely concerned that the Reconstruction Amendments to the Constitution, passed after the Civil War as much-needed protection for the newly-freed African slaves, did not extend to Indian people. In particular, the 14th Amendment which guaranteed the right to life, liberty, and property to all United States citizens could not, and was not, protecting Indian people.6 Charles Curtis, a Kaw from Kansas and a member of the Senate Committee on Indian Affairs (and later Vice President of the United States under Hoover) had himself become a U.S. citizen and strenuously supported the Act.
    Undoubtedly something did need to be done – but was United States citizenship the best answer? In 1924, Indian people were never given a choice in this matter that concerned them so profoundly. What if the issue could be re-decided today? Could Indian people belonging to sovereign nations, such as the Onondaga or the Mohawk, “opt out” of United States citizenship in the interests of their own national sovereignty? If so, what would be the ramifications?

Foreign Nationals

Any individual legally entering the United States who is not a U.S. citizen is a foreign national – ie., either a resident or a non-resident alien. Any Indian person who is not a US citizen, therefore, would be so categorized. For many, the change would be negligible. Although foreign nationals are barred from voting in local, state, and federal elections, cannot hold certain state and federal jobs (generally those that involve policy-making), and cannot run for Congress or the Presidency, they do enjoy constitutional protections under the Bill of Rights, and the 14th Amendment.7 They can attend U.S. colleges and Universities and receive financial aid. They can and do receive police protection and are guaranteed the right to a fair trial. With a work permit, they can hold U.S. jobs, and can reside within the fifty states. They are eligible for social services and can receive certain health care and other benefits.8
The assumption of foreign national status by Indian people would actually be something of a “re-assumption”, its application to them being neither radical nor new. Indeed, before 1924, this was precisely how they were classified, though Jackson-era courts, intent on a policy of removal to secure title to Indian land, officially designated Indian tribes as “domestic dependent nations”, subject to United States control. In the landmark case of Cherokee Nation v. State of Georgia, Chief Justice John Marshall laid down the United States’ position:

“They may more correctly perhaps be denominated domestic dependent nations….Their relations to the United States resemble that of a ward to his guardian. 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.”9

This was strange talk coming, as it did, after more than two centuries of formal diplomatic relations (not to mention frequent nation-to-nation warfare); nor was it the only Marshall decision directed at denying Indian nations their full sovereign status.10 Despite this ringing pronouncement, in the years following removal, courts and legislatures continued to employ a foreign national model toward Indian people who voluntarily resided in the United States. In Dred Scott v. Sandford, Chief Justice Roger Taney deliberately distinguished the status of American Indian nationals from that of African Americans.

“These Indian Governments were regarded and treated as foreign Governments…and the people who compose these Indian political communities have always been treated as foreigners not living under our Government… they may without doubt, like the subjects of any other 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.”11

The Supreme Court reiterated this position in Elk v. Wilkins, a Nebraska case which denied an Indian man the right to vote in an American election in the city of Omaha. Although Elk had left his nation and had settled within the United States, the Supreme Court held that mere immigration had not made him a United States citizen:

“Indians…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…born within the United States of ambassadors or other public ministers of foreign nations.”12

    Early passport regulations confirmed Indian sovereign status. The Revised Statues of the United States enacted during the 43rd Congress (1873-5) reaffirmed an 1834 ruling banning foreigners (including U.S. citizens) from entering Indian nations without a passport.13
    The notion that Indian people could be understood as foreign nationals was further echoed in legislation involving marital rights. In the 1888 “Rights of Indian Women Marrying White Men” Act, Congress determined that any Indian woman who married a white man became a citizen of the United States, a privilege accorded aliens today.14   This sentiment was reflected earlier in Morgan v. McGhee, a Tennessee case which challenged the legitimacy of a marriage that had taken place within the Cherokee nation. The Tennessee Supreme Court held that the union was legally enforceable in the United States. “Our courts of justice recognize as valid all marriages of a foreign country…and there is no reason why a marriage made and consummated in an Indian nation should be subject to a different rule of action.”15
    Yet in the earlier Cherokee Nation v. State of Georgia, which had wreaked so much havoc, Justice William Johnson, concurring with John Marshall, expressed his dissatisfaction with the foreign national concept:

“Where is the rule to stop? Must every petty kraal of Indians…be recognized as a state? We should indeed force into the family of nations, a very numerous and very heterogeneous progeny. The Catawbas, having indeed a few more acres than the republic of San Marino, but consisting only of eighty or an hundred polls, would then be admitted to the same dignity.”16

The analogy to San Marino was curious. The tiny republic was the only European nation (with the exception of the Pope’s seat at the Vatican City) to be completely surrounded by the territory of another country. San Marino was engulfed by Italy. The similarity obviously occurred to Johnson, or at least to his opponents whom he was answering, who must have realized that San Marino was an extremely apt comparison. Indeed, were any theoretical “opt out” choice a reality, the San Marino model is one that Indian people might wish to investigate.

The Most Serene Republic of San Marino

    The country’s official name is the Most Serene Republic of San Marino (“San Marino”). Despite its lengthy title, it is the third-smallest nation in Europe, and the only one – other than the Vatican – entirely surrounded by a single foreign country.17 Not only does San Marino share all of its borders with Italy, but the republic – the oldest continuous republic in the world today – was formed as a result of its founder fleeing Roman persecution. For more than a millenium, San Marino, perched on its mountain outcrop, has successfully managed to remain independent of Italy, and in the 19th century, refused Garibaldi’s offer of incorporation into his newly-unified Italian state.
    San Marino is not only territorially small (at 23.5 sq. mi.), but is the fifth-least populated nation (among those recognized by the U.N.) in the world. Its diminutive size has led to its official designation as a European microstate. Yet size has never hindered San Marino from exercising its full sovereignty. The country is a member of the United Nations, is governed by a “Grand and General Council,” elects its own judiciary, produces its own postage stamps (valid only within San Marino), employs the euro currency with San Marino’s symbol emblazoned on one side, and hosts 3.3 million tourist visitors per year, all of whom are obliged to pass through Italy in order to reach it.
    San Marino’s closest relations are with Italy. Before accepting the euro, the republic minted its own coinage according to Italian standards, which was interchangeable with the Italian lira. It is from Italy that San Marino derives much of its food supply, the country producing mostly only wine and cheese. Most Sammarinese work in Italy, and approximately a sixth of its population live as foreign nationals, mostly in the Italian countryside. Both Italy and San Marino allow dual citizenship with each other’s nations.
    San Marino enjoys a bilateral treaty relationship with Italy and, since the 1872 Convention on Friendship and Good Neighborhood, the two nations have entered into numerous compacts. Italy funds the bulk of these shared programs. Among them are treaties relating to postal, telegraphic, telephone, railway, and airport services; a shared road system; reciprocal social security benefits; pension funds and benefits for Italian veterinarians and health care workers employed in San Marino; agreements on imports and exports; reciprocal family allowances; old age and pension benefits for San Marino clergy serving in Italy; and administrative assistance. Since 1909, Italy has also agreed to defend San Marino from foreign invasion. San Marino maintains embassies and consulates in Italy and many other countries, including the United States.
    The San Marino model presupposes that a country is sovereign not only in rhetoric, but in actuality. Yet, strangely, while the services Italy provides differ little from those maintained by the United States vis-à-vis Indian nations, San Marino is made independent and sovereign thereby, while Indian nations are made – and many are content to be made – to act as beauratic entities within the United States. An “opt-out” provision following the San Marino model would necessarily be incumbent upon full sovereign recognition.

Federated States of Micronesia

A second sovereign model that Indian people may wish to investigate is that pursued by the Federated States of Micronesia (“FSM”). Located in the Pacific Ocean southwest of Hawaii, the country consists of four island states: Chuuk (Truk), Yap, Kosrae, and Pohnpei (Ponape).18 Between WWI and II, the islands were under the dominion of Japan (the Japanese Mandated Islands), administered by them under the authority of the League of Nations. During WWII, the United States drove Japan out of their base on Truk and assumed control of the islands. In 1947, the United Nations designated Micronesia a dependent non-self governing area and reorganized it under a trusteeship. The U.N. Security Council designated the United States as its administering authority, which gave it full executive, legislative, and judicial powers over not only the four states, but the whole of Micronesia. An essential part of this charge was that the United States was to guide the islands to the achievement of self-governing independence, which it did via the Department of the Interior. Interestingly, comparisons were drawn between the status of Micronesia and that of American Indian nations.

“The fiduciary responsibilities of the United States have been compared to those still held by it with regards to Native Americans; however, at least one commentator warns that the Trusteeship Agreement was intended to promote, rather than prevent, Micronesian rights.”19

    In 1969, as a step toward that goal, the entire Trust Territory was divided into four areas which have since become four separate nations: the Federated States of Micronesia (“FSM”), the Republic of the Marshall Islands, the Republic of Palau, and the Commonwealth of the Northern Mariana Islands. Fourteen years later, in 1979, the United States’ Department of the Interior officially recognized the sovereignty of the Federated States of Micronesia and provided for “the transfer of executive, legislative, and judicial functions” to it.20 The country emerged with its own constitution, guaranteeing free speech, a free press, free elections, free assembly and association, freedom of movement within the states, the right to foreign travel, and the right to peacefully change their government.
    During the tenure of President Reagan, Federated States of Micronesia entered into a Compact of Free Association with the United States.21 The compact was ratified by Congress in 1986 and, as a result, the United Nations formally terminated the islands’ Trusteeship Agreement. As part of the compact, the United States established formal diplomatic relations with the FSM, including the stationing of an embassy in the capital of Kolonia on Pohnpei. The Compact is a bilateral agreement. Under its terms, the United States is responsible for the islands’ full defense, provides the FSM with satellite access and telecommunications services, medical assistance, legal services, public health programs, education monies, and law enforcement assistance. The United States further allows the FSM to make use of the U.S. Federal Aviation Administration, the US Federal Emergency Management Agency (FEMA), the U.S. Weather Service, the US Civil Aeronautics Board, the US Military Civil Action Teams, along with the technical assistance of all U.S. Federal agencies. The FSM employs United States currency, and its citizens are free (though not compelled) to join the U.S. military and thereby receive servicemen benefits.
    Most importantly, citizens of the Federated States of Micronesia are allowed to enter and work in the United States, and to establish residency there as a “non-immigrant.”22 No visa or passports are required and they are accorded the full privileges of United States citizenship without, in fact, being citizens.
    Thus, whereas the FSM were once non-self governing and dependent upon the United States, they achieved full independence and then freely chose to enter into a compact which re-established their former relationship with the United States in all its advantages, though on a much more mutually satisfying government-to-government level.

The Isle Of Man

    A third, and final, model is that presented by the Isle of Man, which occupies an intermediate position between the full sovereignty of San Marino and the FSM, and the current status of American Indian nations.
    The Isle of Man (Mann) is located in the Irish Sea, midway between Ireland to the west and Wales to the east.23 Beginning in 700 A.D., the island was occupied in succession by the Norse, the Scotts, and finally the English. In 1765, it officially became a British Crown Dependant (ie, a possession of Great Britain), though it was never made, and still is not, part of the United Kingdom. The Manx are British citizens under a provision of the British Nationalty Acts . However, the country is free to pursue its own laws, and only rarely do the acts of the British parliament apply to it. Britain provides the country’s defense.
    Domestically, the Isle of Man is governed by its own electorate, the Tynwald, which is the oldest continuous parliament in the world. The Manx government makes it is own treaties independent of Britain, has its own flag and tourist authority, and issues its own stamps, coins, banknotes, and license plates. Electricity is provided by the U.K., but the Manx also have their own natural gas and hydroelectric power stations. The island maintains its own railroad lines and airport. Television is broadcast from the UK, but the island operates its own national radio (Manx Radio). The economy is based on offshore banking, tourism (including the issuance of postage stamps and coins), the film industry, and some manufacturing.
    The Isle of Man sets its own customs and immigration rules, and British citizens are required to have a work permit to seek employment on the island. A special Manx visa is issued for visitors. Manx citizens traveling to Britain or Ireland need no passport, since all three nations lie within a designated common travel area. Since 1971, the Manx have been eligible to vote in U.K. elections and are free to live and work anywhere in the U.K.
    Although never fully independent like the Sammarinese, and never acquiring complete sovereignty and compact interests like the FSM, the Isle of Man nevertheless has managed to achieve an independence far more marked than that of any American Indian nation, while still retaining British citizenship.

Conclusion

There exists, therefore, three models which represent the ability of a small group of people to remain sovereign and still have the advantage of a mutually satisfying relationship with a larger, continguous nation. Indeed, any “opt out” citizenship provision for Indian people would need to be predicated upon the assumption of a sovereign status far more complete than that which the nations currently exercise. One of these models may well furnish a workable structure, and Indian nations might be equally encouraged to emulate the strategies they employ – in the creation of formal embassies, the issuance of passports, the coinage of money and postage stamps to fuel a tourist industry and underscore the existence of a true national sovereignty, and the insistence upon their own citizenship and naturalization criteria. Only then can an “opt out” option be seriously considered, which would enable those who select their own Indian national citizenship – or a dual citizenship – to excise the injustice of the 1924 Citizenship Act, and give Indian people true independence.

NOTES

1 – Act of April 21, 1924, Pub. L. No. 68-175, ch. 233, 43 Stat. 253 (1924).
2 – The Indian Problem Resolution of the Committee of One Hundred Appointed by the Secretary of the Interior and a Review of the Indian Problem, H.R. Doc. No. 149, at 6 (January 7, 1924).
3 - Ibid.
4 – Ibid. at 16.
5 – FRANCIS PAUL PRUCHA, AMERICAN INDIAN POLICY IN CRISIS 350 (University of Oklahoma Press 1964); http://en.wikpedia.org/wiki/Matilda_Joselyn_Gage.
6 – On the 14th Amendment’s non application to Indian people, see FRANCIS PAUL PRUCHA, AMERICAN INDIAN POLICY IN CRISIS 343-44 (University of Oklahoma Press 1964). An 1870 Senate report concluded that the 14th Amendment did not extend to Indian people, for they were not within the jurisdiction of the United States as the Amendment required. Ibid. at 344.;
7 - An alien is a resident alien if he meets the “substantial presence test”, i.e., being present within the United States for a substantial amount of time. Frequent travelers may be designated “dual status aliens” if they are both resident and non-resident in the United States during the same tax year. http://www.irs.gov/ (Taxation of Resident Aliens). A foreign national is defined as any individual with foreign citizenship. http://www.fec.gov/pages/brochures/foreign.shtml#Who_Foreign_National. See also the INS webpage which holds that permanent resident alien “green card” recipients may live and work in the United States, receive Social Security, Supplemental Security Income, and Medicare benefits, own land, possess firearms, apply for a driver’s license, attend public schools and colleges, join certain branches of the armed forces, and pay taxes. www.uscis.gov/graphics/citizenship/rights.htm#Your%20Rights%20and%20Responsibilities.   For the right to hold certain civil service jobs, see Sugarman v. Dougall, 413 U.S. 634, 641, 643-646 (1973).
8 - the full benefits previously available to legal immigrants was changed by the 1996 Personal Responsibility And Work Opportunity Reconciliation Act which transferred many social services functions to the states. This has mostly affected the food stamp program, Medicaid, and Temporary Assistance for Needy Families (TANF). New York, for example, has its own state funded food program for which immigrants are eligible, and provides TANF funding after five years following entry. Immigrants in all states are still eligible to receive federal emergency medical assistance, disaster relief, national school lunches, Child Nutrition Act benefits, certain public health assistance, the right to foster care and adoption services, higher education aid, Head Start, and training under the Job Training Partnership Act. www.law.enotes.com/everyday-law-encyclopedia/eligibility-government-services.
9 - Cherokee Nation v. State of Georgia, 30 U.S. 1, 17 (1831).
10 - see, eg., Johnson v. M’Intosh, 21 U.S. 543 (1823).
11 - Dred Scott v. Sanford, 60 U.S. 393, 404 (1856).
12 - Elk v. Wilkins, 112 U.S. 94, 102 (1884). John Elk’s tribe is not identified.
13 – An Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers, ch. 161, 4 Stat 729, 730 (1834); republished in the Revised Statues of the United States §2134. Red Bird v. U.S., 203 US 76, 81-82 (1906).
14 - 25 U.S.C.A. §182 (1888). This act was effectively negated by an Act passed in 1922, though never officially repealed. S. REP. NO. 441, at 3 (1924). Today, a foreign national who marries a U.S. citizen may file for permanent residence and, ultimately, naturalization. Such spouses are free from any quota restrictions.
15 - Morgan v. McGhee, 24 Tenn. 13, 1 (Tenn. 1844). It is interesting to note that in Cherokee Nation v. Journeycake, 155 U. S. 196, 199 (1894), the court recognized that the Cherokee nation had traditionally enjoyed the right to confer its own citizenship on former U.S. citizens who married into the nation, according them the full rights and privileges of a Cherokee citizen. By 1874, in light of the “rapidly growing value of the Cherokee lands”, the Cherokee nation itself curtailed that right, enacting new laws governing marriage that denied former US citizens full rights in the nation unless “such admitted citizen” shall pay a large sum to the nation. Red Bird v. U.S., 203 US 76, 82-83 (1906). Although the Cherokee legislation limiting naturalization was, of itself, an exercise of sovereignty, it was also a decided step in a direction that led, ultimately, to the determination of Cherokee citizenship based on race. This racial classification was imposed from the outside by the United States government as a pre-requisite for the receipt of goods and services, to which the Cherokee and other nations ultimately acquiesced, and which the United States itself did not employ in making its own citizenship determinations. Indeed, such an action would be illegal in the United States under the 14th and 15th Amendments, respectively, which prevent discrimination and disenfranchisement based on race. Since one of the most significant attributes of sovereignty is the ability to naturalize citizens, the fact that Indian nations cannot accomplish this under the BIA criteria of Indian nation membership is deserving of a very careful and sober reassessment.
16 - Cherokee Nation v. State of Georgia, 30 U.S. 1, 25 (1831).
17 - All information on San Marino is taken from: http://en.wikipedia.org/wiki/San_marino and the U.S. State Department at http://www.state.gov/r/pa/ei/bgn/5387.htm.
18 - For the history of the FSM, see Anatolok v. United States, 873 F.2d 369 (D.C. Cir. 1989); Temengil v. Trust Territory of Pacific Islands, 881 F.2d 647 (N. Mar. I. 1989).   For additional information, see the State Department at: http://www.state.gov/g/drl/rls/hrrpt/2001/eap/8351.htm.
19 – Temengil v. Trust Territory of Pacific Islands, 881 f.2d 647, 649 (N. Mar. I. 1989) (citing J. McNeill, The Strategic Trust Territory in International Law 118-19 (doctoral thesis reproduced by University Microfilms International, 1976)).
20 – Trust Territory of the Pacific Islands, 44 Fed. Reg. 28116 (May 14, 1979).
21 – For the Compact of Free Association agreement between the Government of the U.S. and the Federated States of Micronesia, see also Pub. L. No. 99-239, 99 Stat. 1770 (1986).
22 - Ibid., Sec. 104(b).
23 – All information on the Isle of Man is taken from Wikipedia, at: http://en.wikipedia.org/wiki/Isle_of_Man; from the CIA fact book at: www.cia.gov/cia/publications/factbook/geos/im.html; and from the Isle of Man’s website at: www.gov.im. The Isle of Man is most famous for being the birthplace of the Bee Gees…and the Manx Cat. http://en.wikipedia.org/wiki/Isle_of_Man.