CHAPTER 6 NATIONAL AND STATE CITIZENSHIP OF MEMBERS OF INDIAN TRIBES 26. National citizenship. Effect of conferring national citizenship. 28. State citizenship. § 26. National citizenship.-The general rule has been to regard members of Indian tribes, before made citizens of the United States, as wards of the national government, and incapable of making binding contracts or lawful disposition of their property. The ordinary reservation Indian was kept by the Indian agent within the limits of his reservation, and made no contracts with any other person than a member of the tribe, without the approval of the Indian agent in charge. Allotment of Indian reservations being a step toward civilization and independence of the members of the tribe, allotment agreements or statutes provide for the member of the tribe, upon his taking his pro rata share of the tribal lands, becoming a citizen of the United States. Some of the allotments acts and agreements contained a further provision that such allottee should thereupon become subject to the laws of the state, both civil and criminal, in which he resided. The Five Civilized Tribes were excluded from the General Allotment Act.1 Section 6 of that act declares every Indian born within the United States, to whom an allotment is made, to be a citizen of the United States, with all the rights, privileges and immunities thereof. The act of March 3, 1893 (27 Stat. 645, c. 209), creating the Dawes Commission and authorizing it to negotiate with the Five Civilized Tribes for the allotment of their tribal domain in severalty, declared that upon allotment the individual 1 Act Feb. 8, 1887, c. 119, 24 Stat. 388. See § 904. 2 See §§ 344 to 346. BLED.IND.(2D ED.)—3 members of the tribes should be deemed in all respects citizens of the United States. Further reference was made to the matter of citizenship in some of the allotment agreements made with the tribes. Prior to the completion of these agreements the conditions had become such in the Indian Territory that it was deemed necessary that national citizenship should be conferred upon the members of the Five Civilized Tribes, without awaiting the allotment of their lands in severalty. The necessity for this course was fully set out in Committee Report 2483 made to the FiftySixth Congress, Second Session, on the 28th day of February, 1901. Congress amended section 6 of the general allotment act by inserting, at the appropriate place after the words "civilized life," "every Indian in the Indian Territory." 3 The result of this amendment was to confer upon every Indian in the Indian Territory all the rights, privileges and immunities of national citizenship from the date of the approval thereof by the President of the United States. § 27. Effect of conferring national citizenship.—Numerous controversies arose over the effect of the act of March 3, 1901 (31 Stat. 1447, c. 868), conferring citizenship upon every Indian in the Indian Territory. The Supreme Court of the United States had interpreted the citizenship. conferred upon allottees of other than the Five Civilized Tribes by section 6 of the General Allotment Act as strongly presumptive, if not conclusive, of the intention of Congress to abandon its guardianship over the members of Indian Tribes upon whom it had conferred the privileges and immunities of citizenship.* Many views of the effect of this act were urged and are reflected in the litigation over Indian lands in the Five Civilized Tribes in the period immediately following statehood. It was even insisted by some that the effect of con 8 See § 904. 4 In re Heff, 197 U. S. 488, 25 Sup. Ct. 506, 49 L. Ed. 848. ferring citizenship was to remove restrictions upon alienation. The more general view was that it did not remove restrictions, but that it placed such allottees, so far as the power and authority of Congress was concerned, upon the same basis as that of other citizens of the United States who were not members of an Indian tribe or nation. Some of these views found partial expression in the case of United States v. Allen (C. C.) 171 Fed. 907, and 179 Fed. 15, 103 C. C. A. 1. The Supreme Court of the United States, when the matter came before it, held that Congress did not, by conferring citizenship upon allottees of the Five Civilized Tribes, deprive itself of authority to continue or extend restrictions upon alienation of the allotted or inherited lands of the members of the tribes. Whether Congress can, where all restrictions have expired, impose new restrictions upon the alienation or disposition of the lands of allottees of the Five Civilized Tribes, has never been presented to or considered by the Supreme Court of the United States. It would seem that the authority of Congress to do so would be much more objectionable from a constitutional standpoint than merely to extend restrictions which already exist. In the one instance Congress has only partially severed its relation of guardian, and in the other has completely severed the same. One means a continuance of that which exists, and the other a return to that which had been abandoned. The Supreme Court held that conferring the rights of citizenship upon allottees of the Five Civilized Tribes did not deprive the United States of the right to institute and maintain in its name a suit to cancel. a conveyance of such allotted lands, upon the ground that such conveyance was made in violation of the restrictions imposed by Congress upon the right to alienate by the Tiger v. Western Inv. Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738. 6 Bartlett v. United States (C. C. A.) 203 Fed. 410. 7 Heckman v. United States, 224 U. S. 413, 32 Sup. Ct 364 56 L. Ed. 820. allottee. In view of these decisions, it would seem difficult to state with accuracy the full effect upon the rights of allottees of the Five Civilized Tribes of making them citizens of the United States. Allottees of other than the Five Civilized Tribes in the state of Oklahoma had become citizens of the United States under section 6 of the General Allotment Act of 1887, except the Osages. The Peorias and Sacs and Foxes were originally excluded from the General Allotment Act, but subsequently the provisions of section 6 thereof were extended to the allottees of these tribes. § 28. State citizenship.-By section 2 of the Oklahoma enabling act, all persons who were citizens of the United States or members of any Indian nation or tribe were authorized to participate in the organization of the state government, and under section 3 of the same act, it was required that the Constitution of the new state should make no distinction in civil or political rights on account of race or color. Therefore Indians residing within the territorial limits of the state of Oklahoma were, by the terms of the enabling act and its acceptance, made citizens of the state." The allottees of the Five Civilized Tribes of Indians are therefore citizens of the United States and of the state of Oklahoma.10 Allottees of other than the Five Civilized Tribes and Osages in the state of Oklahoma became citizens of the United States pursuant to section 6 of the General Allotment Act of 1887; the Peorias, Sacs and Foxes under an Act June 16, 1906, c. 3335, 34 Stat. 267. Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627; Boyd v. Nebraska ex rel. Thayer, 143 U. S. 175, 12 Sup. Ct. 375, 36 L. Ed. 103; Bolln v. Nebraska, 176 U. S. 83, 20 Sup. Ct. 287, 44 L. Ed. 382. 10 Heckman v. United States, 224 U. S. 413, 32 Sup. Ct. 424, 56 L. Ed. 820; United States v. Ashton (C. C.) 170 Fed. 509; United States v. Leslie (C. C.) 167 Fed. 670; United States v. Hall (D. C.) 171 Fed. 214: United States v. Allen (C. C.) 171 Fed. 907; Id., 179 Fed. 15, 103 C. C. A. 1. extension of section 6 of the General Allotment Act of 1887 to the allottees of these tribes. The requirement by Congress and the acceptance by the state that "every member of any Indian nation or tribe located within the state should be permitted to participate in the organization and conduct of the government of the state" conferred upon all such Indians citizenship in the state and in the United States. Allotments to members of the various Indian tribes in Oklahoma had been substantially completed at the time of the approval of the Act of May 8, 1906 (34 Stat. 182, c. 2348), and consequently at the time of the admission of Oklahoma to statehood. |