Elk v. Wilkins
| Elk v. Wilkins | |
|---|---|
 U.S. LEXIS 1857 | |
| Holding | |
| An Indian cannot make himself a citizen of the United States without the consent and the co-operation of the government. | |
| Court membership | |
| |
| Case opinions | |
| Majority | Gray, joined by Waite, Miller, Field, Bradley, Matthews, Blatchford |
| Dissent | Harlan, joined by Woods |
Superseded by | |
| Indian Citizenship Act | |
Elk v. Wilkins, 112 U.S. 94 (1884), was a
John Elk, a
In a 7–2 decision, the Supreme Court ruled that even though Elk was born in the United States, he was not a citizen because he owed allegiance to his tribe when he was born rather than to the United States, and therefore was not subject to the jurisdiction of the United States when he was born. The United States Congress later enacted the Indian Citizenship Act of 1924, which established citizenship for Indians previously excluded by the Constitution. Though rendered undebatable for its application to native Indians by this law, the majority opinion offered by the Court in this case remains valid for interpretation of future citizenship issues regarding the 14th Amendment.
Background
The question then was whether an
Under the Constitution, Congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, 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 dealt with through treaties and acts of Congress.[5] The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States.[6]
Decision
Even though Elk was born within the territorial jurisdiction of the United States, he was born as a subject of an Indian nation, and thus could not meet the allegiance test of the jurisdictional phrase because he "owed immediate allegiance to" his tribe, a vassal or quasi-nation, not to the United States. The Court held Elk was not "subject to the jurisdiction" of the United States at birth. "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."[7][8]
Subsequent legislation
The exclusion of Native Americans from citizenship was eventually eliminated by the
See also
- List of United States Supreme Court cases, volume 112
- Standing Bear v. Crook
- United States nationality law
References
- ISBN 978-0-415-80853-8. Retrieved June 10, 2020.
- ISBN 1-57607-624-5. Retrieved June 10, 2020.
- ^ Elk v. Wilkins, 112 U.S. 94 (1884).
- ^ Bodayla, Stephen D. (1986). "'Can An Indian Vote?': Elk v Wilkins, A Setback for Indian Citizenship" (PDF). Nebraska History. 67: 372–380. Archived from the original on May 22, 2013. Retrieved December 15, 2010.
{{cite journal}}: CS1 maint: unfit URL (link) - ^ John C. Eastman, "From Feudalism to Consent: Rethinking Birthright Citizenship," Legal Memorandum No. 18 (Heritage Foundation, Washington D.C.), March 30, 2006, at 3, available at http://www.heritage.org/research/legalissues/lm18.cfm Archived 2009-02-05 at the Wayback Machine.
- ^ Elk, 112 U.S. at 99.
- ^ Elk, 112 U.S. at 102.
- ^ Bomboy, Scott (November 23, 2021). "Supreme Court says tax-paying Indians can't vote". Constitution Daily. Philadelphia, Pennsylvania: National Constitution Center. Retrieved December 2, 2021.
- ^ "Indian Affairs: Laws and Treaties", Compiled and edited by Charles Kappler, Vol. IV Laws (1927), Washington: Government Printing Office, available at "INDIAN AFFAIRS: LAWS AND TREATIES. Vol. IV, Laws". Archived from the original on October 11, 2008. Retrieved October 14, 2008.
Further reading
- Tennant, Brad (2011). "'Excluding Indians Not Taxed': Dred Scott, Standing Bear, Elk and the Legal Status of Native Americans in the Latter Half of the Nineteenth Century". International Social Science Review. 86 (1–2): 24–43. JSTOR 41887472.
External links
Works related to Elk v. Wilkins at Wikisource- Text of Elk v. Wilkins, 112 U.S. 94 (1884) is available from: CourtListener Google Scholar Justia Library of Congress OpenJurist
