Law | Opinion

Column: The 14th Amendment's relationship with Indian rights





Scott Bomboy of the National Constitution Center offers a look at how the 14th Amendment to the U.S. Constitution has affected the rights of American Indians:
The 14th Amendment makes all persons born or naturalized in the United States citizens, with equal protection and due process under the law. But for American Indians, the amendment immediately excluded most of them, and it took decades of laws and legal fights to make full citizenship a reality.

As late as 1948, two states (Arizona and New Mexico) had laws that barred many American Indians from voting, and American Indians faced some of the same barriers as blacks, until passage of the Civil Rights Act of 1965, including Jim Crow-like tactics and poll taxes.

American Indians were also part of the Dred Scott decision in 1857, but in a much different way. Chief Justice Roger Taney argued that American Indians, unlike enslaved blacks, could become citizens, under congressional and legal supervision.

But in 1870, after the 14th Amendment’s ratification, U.S. Census figures showed that just 8 percent of American Indians were classified as “taxed” and eligible to become citizens. The estimated American Indian population in the 1870 census was larger the population of five states and 10 territories—with 92 percent of those American Indians ineligible to be citizens.

The troublesome definition of “taxed Indians” and the price of citizenship imposed on American Indians (loss of communal lands and cultural identify) dated back to another well-known Supreme Court Chief Justice, John Marshall. And it took the Great Dissenter, Justice John Marshall Harlan, to put the question of American Indians birthright citizenship into context, in the form of great dissent.

In what were later known as the Marshall Trilogy rulings, the Chief Justice established the precedents for how the United States legal system would deal with political and social rights for American Indians who lived in the territorial boundaries of the United States.

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Scott Bomboy: The 14th Amendment’s tortuous relationship with American Indians (Constitution Daily 3/12)