The Fourteenth Amendment and Native American citizenship.

Extract

---

The Fourteenth Amendment and Native American citizenship.

Studies of the federal government's treatment of racial discrimination during the immediate post-Civil War era have dealt almost exclusively with problems related to the status of free blacks. This focus is in many respects entirely understandable. After all, the debate over black rights was a major factor dividing the Republican and Democratic parties, as well as one of the central themes of the entire Reconstruction process. Further, the adoption of both the Civil Rights Act of 1866 and section one of the Fourteenth Amendment itself was a direct response to the adoption of state laws that sharply curtailed the rights of newly-freed slaves. Thus, it should not be surprising that the subject has attracted the attention of most students of race relations, as well as those interested in the period more generally.

Blacks were not, however, the only racial minority in America during the late nineteenth century. The members of the Congress that drafted the Civil Rights Act of 1866 and the Fourteenth Amendment were also well aware of the presence of another group of nonwhites within the territorial boundaries of the United States--Native Americans.(1) Moreover, issues related to the status of Native Americans had a profound impact on the wording of the citizenship clauses of both enactments.

This essay will examine that impact in some detail. The essay will begin by focusing on the status of Native Americans in the antebellum era. It will then follow the drafting process that culminated in the definitions of citizenship contained in both the Civil Rights Act and the Fourteenth Amendment. Finally, it will briefly discuss subsequent developments that resolved the ambiguities remaining after the adoption of the Fourteenth Amendment.

I. THE CONSTITUTIONAL STATUS OF NATIVE AMERICANS PRIOR TO THE CIVIL WAR(2)

The problem of defining the status of Native Americans created substantial theoretical difficulties for early American legal theorists. The difficulties derived from the fact that Native Americans resided on land over which the government of the United States claimed authority by right of conquest. Unde...

See the full content of this document

---