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Stephen Kantrowitz, Jurisdiction, Civilization, and the Ends of Native American Citizenship: The View from 1866, Western Historical Quarterly, Volume 52, Issue 2, Summer 2021, Pages 189–208, https://doi.org/10.1093/whq/whab003
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Abstract
Most nineteenth-century political debates over U.S. citizenship revolved around the claims of people, often African Americans or immigrants, who aspired to that status. But Native American citizenship’s genealogy began instead with the United States assertion of the right to purchase or conquer the territory of its Indigenous neighbors, to replace them as its sole or primary inhabitants, and to make policy for the people thereby dispossessed. These very different histories of citizenship collided in 1866, when the U.S. Senate considered how to codify that status in the Civil Rights Act and Fourteenth Amendment. This article interprets these debates as the collision of an array of distinct and divergent settler colonial processes and experiences. It argues that the ultimate resolution—a half-articulated commitment to let local settler communities decide—both contradicted the ostensible purposes of the Civil Rights Act and accurately reflected how the era’s settler colonial society understood the purposes and functions of Native citizenship.
A month after slavery’s final abolition, Congressional Republicans revolutionized the relationship between Americans and their government. Their 1866 civil rights bill, a response to ex-slaveholders’ ongoing efforts to subordinate the freedpeople, defined an array of personal, property, and procedural rights as the common entitlement of citizens “of every race and color.”1 Most of the bill, and most of the debate about it, concerned how aggrieved citizens and their national government could “vindicate” these rights. But very early in the process, on the last day of January, the bill’s architects realized that they would have to define just who those “citizens” were. Illinois Republican Lyman Trumbull, the bill’s Senate manager, proposed a formula that combined well-accepted parameters of allegiance and birth: the citizenry embraced “all persons born in the United States, and not subject to any foreign power.” With that, he thought, the important work of including African Americans in the nation’s civic body would be accomplished.
Trumbull no doubt predicted the explosive objections of his more strenuously racist colleagues, and these were not long in coming.2 But he was not prepared for the very first objection to his citizenship language: wouldn’t it “naturalize all the Indians of the United States”? This was much more than a quibble. Over the ensuing days of debate, senators from all corners of the chamber jumped in with related questions and objections: What about those “wild and savage” Native people whose governments had been smashed and were no longer “subject to any foreign power”? What about those who lived close to U.S. settlement, in circumstances that resembled U.S. ways of life, but who remained in a treaty relationship with the United States? Senators proposed language that would include or exclude particular categories of Native people, and as they did so their colleagues pointed out unintended and often undesirable consequences of those formulations. A frustrated Trumbull soon “wish[ed] this whole Indian question was out of the way.” “It is not the great object of the bill,” he complained.3 But no formulation satisfied everyone, and the objections and amendments kept coming.
The problem, it turned out, was not imprecision of language, but the fact that Native Americans bore a very different relationship to the United States than the immigrants and former slaves contemplated by the bill’s drafters.4 Both African American and immigrant citizenship were understood to follow from those groups’ aspirations to full and equal inclusion in the United States. But the 1866 congressional debate over Native citizenship was not mainly about what potential Native citizens desired. It began instead from the assumption that the United States had the right to purchase or conquer the territory of its Indigenous neighbors, to replace them as its sole or primary inhabitants, and to make policy for the people thereby dispossessed. The question of Native people’s incorporation or non-incorporation into the U.S. civic body, that is to say, began in conquest and followed from the fundamental imperative of land-taking.
While senators discussed African American citizenship in terms of rights and equality, they considered Native American citizenship in relation to different keywords: “jurisdiction” and “civilization.” Jurisdiction spoke to the question of whether Native people were “domestic” or “foreign,” fundamentally subject to U.S. power or to that of their own Nations. “Civilization” measured whether they had sufficiently adopted American arrangements of property, family, subsistence, and comportment to escape “savagery” and merit inclusion in settler communities.5 Senator Trumbull initially imagined that these criteria would sort Native people into two categories of very different size: a great mass who were both “savage” and “foreign”—“wild Indians who do not recognize the Government of the United States at all,” and a much smaller group of citizen-Indians, embracing only those few who were “separated from their tribes and incorporated in your community.”6 Yet as the debate proceeded, it became clear that jurisdiction and civilization could not, separately or in tandem, produce consensus about which Native people were or should be included.
Although “jurisdiction” and “civilization” frequently passed as legal or cultural common sense, there was nothing simple about their definitions. This was because they were actually shorthand for settler-colonial processes and imperatives—dynamics that were local more than national, constantly contested, and, most important, ongoing. Neither term’s meaning could be discussed without drawing in the myriad and divergent histories of how settlers and settler states extended their dominion over Indian Country, and of the ensuing processes of cultural intermixture and campaigns of cultural transformation. The lawmakers’ 1866 debate over the terms of Native peoples’ incorporation revealed the diversity and complexity of these histories, and of the particular and often divergent settler-colonial interests that resulted from them. What suited one regime of conquest, settlement, and incorporation might not suit another. So when it came to who was properly a citizen, and what that should mean, it turned out that Trumbull’s “Indian question” was not one but many.
The Civil War–era question of Native citizenship encompasses many features of the “Greater Reconstruction” Elliott West hypothesized nearly two decades ago: the “racial crisis triggered by expansion,” the drive to “national consolidation,” and “how the two wove together.”7 Yet scholarship on Native citizenship prior to the impositions of the Dawes Act (1887) and Indian Citizenship Act (1924) has developed slowly. Unsurprisingly, given the history under scrutiny here, it has taken form mainly in relation to the ways that particular regions and Native nations encountered U.S. state and national citizenship (and the related matter of suffrage).8 Few historians have pursued these questions across multiple contexts. Legal scholars have considered the debates under study here but mainly with their eyes focused on particular legal and constitutional questions.9 My aim is twofold: first, to interpret these debates as the collision of an array of distinct and divergent settler colonial processes and experiences; and second, to show how the ultimate resolution—a half-articulated commitment to let local settler communities decide—both contradicted the ostensible purposes of the Civil Rights Act and accurately reflected how the era’s settler colonial society understood the purposes and functions of Native citizenship.10
The first and most important assumption undergirding U.S. Indian policy—including the questions of whether, how, and when Native people should be incorporated as citizens—was the inevitability of territorial conquest. From the standpoint of the 1866 lawmakers, territory occupied by Native people, whether under treaty or beyond treaties’ purview, remained “foreign” only so long as the United States did not want it. It was waiting only for the growth of U.S. populations and their political and military will to accomplish its transformation into U.S. territory. This assumption began with the first European claims on the Americas via the Doctrine of Discovery: Native nations could treat with the United States but not with other Euro-American powers, which was to say that the United States had first and only right of refusal and could force negotiations when it saw fit. The Indian Removal Act (1830), an important chapter in this history, established early on the coercive dimensions of both conquest and incorporation: it demanded that Native people either abandon their homelands or remain and submit themselves to frequently discriminatory state laws. The Supreme Court insisted that Native sovereignties were “domestic dependent nations,” but by the late antebellum era most U.S. policymakers either disdained Native sovereignty outright or imagined it as dramatically limited in scope and relegated to tiny or distant territories.11
This understanding was the consensus among U.S. politicians in the Civil War era. Whatever their disagreements about slavery, the Civil War, or Reconstruction, these men were bound together by their commitment to American expansion. Abraham Lincoln famously rejected the Crittenden Compromise’s territorial settlement because it would drive slaveholders southward to conquer and “would amount to a perpetual covenant of war against every people, tribe, and state owning a foot of land between here and Tierra del Fuego.”12 But this argument against slavery’s expansion did not contradict or diminish Lincoln’s own commitment to the expansion of a non-slaveholding nation into any part of Indian Country it desired—his nation’s own “covenant of war.” Military and statutory conquest were ongoing throughout the era.13 In 1862 the Republican Congress voted for the landmark legislation that extended American power and settlement in the West: the Morrill Land Grant college act; the Pacific Railroad Act; and most of all the Homestead Act. Once the United States defeated the Confederacy, the long deadlock over U.S. expansion into the West was truly broken, and the nation committed its resources to a ceaseless tide of U.S. settlement and engrossment. This sense of Indian Country at large as both potentially and eventually part of the United States demanded the ultimate defeat of Native sovereignty. As we shall see, though, at every moment up until that imagined end, this not-quite-codified assumption cast confusion over the question of jurisdiction.
A second assumption, baked into the first, was that as Native homelands came within reach of U.S. settlement, Native people would either have to adapt to U.S. habits and practices—“civilization”—or die out. Although some settlers were content to imagine a war to the death, incessant conflict with Native Americans posed a threat both to White settlers and also to Americans’ ability to view themselves as a Christian—that is to say, a civilized—people. The U.S.-Dakota War of 1862 and the Sand Creek massacre of 1864 lingered in the 1866 Congress’s collective imagination; so too did a looming prospect of bloody and expensive warfare on the Plains. A better Indian policy was very much on their minds.14 Officials periodically emphasized the policy of “civilization,” part of a centuries-long effort to bring Native people within the fold of the invaders’ culture. At the center of “civilization” was the assignment of particular plots of real estate to particular Native owners, a process eventually known as “allotment.” Allotment was a crucial step on the road to civilization and incorporation because it seemed to imply so many features of the American order: enmeshment in market economies, and particular relations of production, household organization, and gender.15 As early as the 1810s, treaties with Native nations provided fixed tracts for families “who choose to become citizens of the United States.”16 And as postbellum lawmakers imagined the Indian future, the failures, betrayals, and unintended consequences of the program of “civilization” did not undermine its attractiveness.
By 1866, the transformation of Native people into U.S. citizens in tandem with the allotment of their acres was already a generation old. In 1839 the Brothertown Indians, Christian migrants from the Northeast who had established a new homeland in the Wisconsin Territory, became U.S. citizens by act of Congress. They sought this status in response to fears that rapidly increasing White settlement would mean their expulsion, and they hoped that U.S. citizenship could become, as one historian puts it, “a buttress for their interests.”17 Better known in the 1866 debate was the story of the Brothertowns’ similarly situated Wisconsin neighbors, the Stockbridge Munsee band of Mohicans. In 1843 Congress made them citizens, dividing their land into family parcels, extending the jurisdiction of the United States and territory over them, and abrogating “their rights as a tribe or nation.”18 These Congressional experiments in collective citizen-making succeeded in transferring substantial portions of both groups’ domains to White settlers through sale. In part because of this, they were controversial within the affected Nations, both of which soon sought to reverse the process. The Stockbridge succeeded, regaining U.S. recognition of their sovereignty later in the 1840s; the Brothertown did not, and remain without federal tribal recognition to this day.19 Despite these unhappy precedents, settler pressure caused further Native nations to see allotment and citizenship as the best among bad options. Ground zero for this dynamic was the land west of the Missouri River to which late antebellum U.S. policy consigned Indians removed from the East.
Historians of the Civil War era tend to think of the Kansas-Nebraska Act of 1854 primarily as a spark that ignited the Civil War, but it was also a prelude to conquest. The United States set off Indian Territory as an ostensibly permanent home for Native people it displaced in the east, and by the early 1850s its Native residents included long-term inhabitants, groups forcibly removed from the East, and groups who moved there voluntarily. But the 1854 law effectively opened large swaths of this territory to settlement by White Americans before the United States had negotiated to purchase a single acre from the region’s Native nations. Even as settlers murdered one another over the future of slavery in the territories, they (along with army officers, territorial officials, traders and speculators) squatted on Native people’s land and plundered their timber and game. The government failed to restrain and punish violators of the treaties. Soon Indigeous people in eastern Kansas had only bad options: fight back; emigrate; or make the best of it.20
The federal government used the crisis caused by its policies to press new treaties on the Native nations of eastern Kansas, often involving some version of the allotment and citizenship previously taken up by the Stockbridges and Brothertowns. The Kansas Wyandots were the first to pursue this course in earnest. These were largely Christian and American-style farmers who dressed in American ways and held council meetings in English. In an 1855 treaty they accepted a transition to allotment and citizenship with the hope of being able to remain on their new homeland. While allotment frequently undermined Native culture and government and entailed significant land loss through sales of the “surplus,” this tactic could also serve Native people’s ends. By the time debate opened on the Civil Rights bill, a few thousand Native people had employed such treaty provisions to establish titles that settlers could not challenge; they were, without a doubt, citizens of the United States.21
These were not the only “citizen-Indians” in 1866, for several states and territories in the Upper Midwest had also admitted some Native people to state citizenship or suffrage. Wisconsin’s 1848 constitution enfranchised Native men who had at any point been declared citizens of the United States (capturing both the Brothertowns and Stockbridges), as well as “Civilized persons of Indian descent not members of any tribe.” In the same decade some Anishaabeg groups in Michigan petitioned the state for “the rights and privileges of American citizenship” and the protection of state law. Ojibwe leaders described citizenship as “a weapon with which we may combat the prejudice & oppression of which our race has been the victims.” In 1850 a Michigan constitutional convention enfranchised Native men who were “civilized” and not “members of a tribe,” failing to specify who would make that determination. Within a year, the state’s Odawa activists persuaded officials that they should interpret these provisions liberally, allowing Native people to gain or retain homelands in the northern part of the state while retaining the rights and protections of state citizenship. Michigan officials even persuaded federal officials to accept their policy and ultimately negotiated new non-removal treaties with the Odawa and Ojibwe in 1855 that granted 80 acres to each head of household under a ten-year trust arrangement. Odawa and Ojibwe voters quickly began to take part in local and statewide elections, served in Michigan’s Civil War regiments, and continued to vote by the hundreds in the postwar era.22 Minnesota’s antebellum constitutions granted suffrage to men of mixed White-Indian descent who were “civilized”; men of unmixed Native descent, however required a certificate from a court attesting to their fitness for “the rights of citizenship within the state.”23 Many men of Native descent voted in the Minnesota Territory’s early elections.24
Yet these histories of Midwestern citizenship left only a shallow imprint on the 1866 debate. Senator Alexander Ramsey of Minnesota acknowledged his state’s constitutional policy that courts could make citizens of Native people, only to dismiss it as “a remote possibility” and declaring himself unaware “that there is any one instance of the exercise of this power by our judiciary.”25 He did acknowledge that there were, somewhere in the northern reaches of his state, “probably civilized Indians, holding property, and taxed in that way.”26 Whether they were U.S. citizens, or would be made so by the bill before them, remained unclear, but Ramsey did not seem to care much about these people either way.
One final antebellum example suggests the diversity and complexity of these citizenship policies. When the United States annexed nearly the northern half of Mexico in 1848, it committed itself to treat people recognized as citizens of Mexico as citizens of the United States.27 It failed to do so, however, with regard to the Pueblo peoples, instead defining and treating them as wards of the United States and discounting their votes in territorial elections. Ironically, this wardship was intended in part as a defense against land-taking; its goal was to prevent the New Mexico Territory from taxing and seizing Pueblo lands. And indeed, when U.S. territorial courts later determined (in 1867 and 1869) that the Pueblos were indeed U.S. citizens, the effect of those decisions was to authorize the transfer of Pueblo lands to U.S. purchasers.28
All of this is to say that the 1866 debate over whether, where, and how Native people should be incorporated into the U.S. political community revolved around what had become familiar questions of land, jurisdiction, and civilization. But as the diversity of even this small selection of cases suggests, those questions played out in different ways in different contexts. The senators were writing law for the whole nation, but their understanding of the meanings and implications of various formulas were shaped by their particular regional experiences. They were also shaped by their personal interests, a fact they did not always try very hard to hide.
No one’s self-interest was more crassly obvious than that of Kansas Republican James Lane. An antislavery guerrilla fighter in the territory, and the first officer to lead Black troops in the Civil War, Lane was also a shameless speculator in Native land. He was one of the first to object to Trumbull’s citizenship language, initially because he rejected the citizenship of Native people generally, but over the coming days for a quite different reason. He ultimately moved an amendment to Trumbull’s language that introduced a new and quite specific criterion for citizenship: Indians would be citizens if they held “land in severalty by allotment.”29 He and the rest of the Kansas delegation thought it “wise policy that they [Native people] may have the privilege of holding these allotments and selling them. That is the object.”30
The groups Lane had in mind included the part of the Potawatomi Nation that had been removed to Kansas. Unlike their neighbors the Wyandots, the Kansas Potawatomis had not historically been deeply invested in American “civilization”; like those neighbors, though, they found themselves nearly powerless before Kansas’s squatters, thieves, and speculators. In 1861, the Potawatomis signed a new treaty of allotment and citizenship in hopes of securing title to their lands before they were overrun.31 Those who wished to continue holding land in common could do so on a diminished reservation. The rest of the tribe would receive individual allotments of land of fixed sizes, which they could not sell to anyone but another member of the tribe or the U.S. government, and which Kansas would not be permitted to tax. What was left after the reservation and allotments would be put up for sale, but Potawatomis who accepted allotment could, if they wished, go farther: they could swear allegiance to the United States and prove to a court that “they are sufficiently intelligent and prudent to control their affairs and interests, that they have adopted the habits of civilized life, and have been able to support, for at least five years, themselves and families.” Having done so, they would obtain fee-simple patents to their allotted land, take a pro-rated share of the tribal fund established by earlier treaties, abandon their tribal affiliation, and become U.S. citizens.32 Here was a formal mechanism linking civilization and citizenship, establishing a clearly delineated boundary between foreign and domestic over which individuals could, in principle, choose to step.
The motor driving this treaty was not so much an organic Potawatomi demand for allotment and citizenship as it was the crisis created by the 1850s invasion of Indian Territory from the east, and, more specifically, the demands of the Leavenworth, Pawnee, and Western Railroad company, whose potentially profitable path through Kansas was blocked by Potawatomi and Delaware lands. The railroad’s officers picked the Indian agent who negotiated the treaty. The treaty itself was drafted by the railroad’s president in concert with a territorial politician who was the railroad’s fully owned subsidiary. Bribes moved the treaty through Potawatomi councils, and then through the U.S. Senate, where tens of thousands of dollars in stock landed in the pockets of the state’s representatives, Republicans Samuel Pomeroy and James Lane.33
Despite these efforts to acquire Indian territory by allotment, sale, and citizenship by treaty, however, in 1866 millions of the most profitable acres in eastern Kansas remained in Native American hands under the provisions of treaties. U.S. settlers could not buy such lands, nor could the state tax them away. Lane saw the 1866 debate over national citizenship as a way to break this logjam. Adding the phrase “and Indians holding land in severalty by allotment” to the citizenship criteria in the Civil Rights bill would cut the Gordian knot of treaties, federal supremacy, and Indian title. If allotted Indians automatically became citizens under this amendment to the bill, then the complex and cumbersome mechanism created by the treaties would become irrelevant. Everyone who had taken allotment would instantly be a citizen of the United States and of Kansas, and—crucially—subject to state laws of property and taxation. The Potawatomi lands would be Kansans’ for the taking. When Lane explained his “object” as granting Native people “the privilege of holding these allotments and selling them,” he knew that they already had the right, by treaty, to hold allotments. What he was after was the selling.34 This unilateral imposition of citizenship would be, pure and simple, a means of land-taking.35
One did not have to be particularly knowledgeable about Indian policy to understand that Lane’s proposal would create an array of unintended and undesirable consequences. Trumbull pointed out that Lane’s amendment might make citizens of those who held lands under the authority of the Cherokee nation, or anywhere else “outside of the organized jurisdiction of the United States in the Indian country.”36 The United States had removed most Cherokees from the Southeast earlier in the nineteenth century, and they retained national sovereignty in what remained of Indian Territory, which they shared with groups including the four other Nations removed from the Southeast (the Choctaw, Creek, Chickasaw, and Seminole). These were not yet collectively known as the “five civilized tribes,” but the Commissioner of Indian Affairs, having treated extensively with them in 1865 and 1866, described them as “civilized and educated,” and policymakers understood them to have taken long steps toward American ideals of civilization—including holding lands by allotment from the U.S. or Native governments.37 Lane’s amendment might well make citizens of them.
Trumbull’s objection highlighted the imperfect overlap between allotment and jurisdiction, and the bewildering uncertainty of these nations’ status. Some of the Five Tribes’ governments and people had sided with the Confederacy, raising questions about whether they had broken their treaties and surrendered their treaty rights. The Senate had taken up (though not passed) legislation to establish civil government over them.38 What would it mean for citizenship to follow allotment instead of some more regulated process? To make matters even more complicated, the United States was at that very moment forcing treaties on the Cherokees and other Nations that required them to allot lands to or make citizens of their newly emancipated slaves. As allotted individuals, would these people become U.S. as well as Cherokee citizens?39 It seemed too much to take on.
The failure of Lane’s gambit left the relationship of allotment to citizenship unresolved, but Trumbull’s original language, which simply excluded those “not subject to any foreign power,” bothered other senators for another reason: it implied that Native people who were no longer meaningfully subject to a tribal government were U.S. citizens, regardless of their relationship to “civilization” or any other condition. Senators feared populations who remained in their view “wild and savage” but who no longer seemed to live under meaningful tribal authority. If the citizenship language of Trumbull’s Civil Rights bill were put into effect, it seemed these people might in fact be made citizens willy-nilly. Because in this moment of rethinking the bounds of the nation’s citizenry, what else would they be? To what other set of laws would they be subject?
These anxieties were rooted in the murderous conquest that was still taking place in California and Oregon and that echoed loudly in Minnesota, Wisconsin, Colorado, and elsewhere. Before the Gold Rush began, approximately 150,000 Native people lived in California. “We desire only a white population,” declared a California settler newspaper in 1848; “even the Indians amongst us, as far as we have seen, are more of a nuisance than a benefit to the country; we would like to get rid of them.”40 Over the next decades, a flood of immigrants from all over the world devastated California’s Native communities. By 1865, fewer than 34,000 Native people remained. Historians have shown that the campaign against California’s Indians—well-organized campaigns of murder of 10,000 or more by the California Volunteers, subsidized with federal dollars—met modern definitions of “genocide.” And these campaigns were ongoing as the 1866 debate unfolded. Barely two weeks after Trumbull offered his citizenship language, for example, scores of U.S. cavalrymen and local vigilantes chased a band of Northern Paiutes across the California-Oregon border, surrounded the party, and over the next six hours killed between 80 and 125 people.41
One of the consequences of murderous conquest was uncertainty about jurisdiction—about who was still “subject” to a foreign power. California’s U.S. Senator John Conness worried about the status of Indians whose “tribal authority” had, in his view, been destroyed by this conquest. He described California’s reservations as refugee camps, where survivors of extermination campaigns were herded and held. Their governments had been shattered, and their reservations were wholly under the authority of U.S. agents and soldiers. There was, from his perspective, neither any pretense of a policy of “civilization,” nor anything resembling “tribal authority.”42 His colleague George Williams described circumstances in Oregon that similarly suggested complete Native subjection to U.S. power: “[t]he Government of the United States feeds, clothes, and takes care of these Indians, and treats them as wards, treats them as incapable of self-government; and they are governed by such rules and regulations as are prescribed by the Government from time to time, and as the necessities of the case seem to require.”43 Trumbull’s language excluding Indians as subjects of a foreign power would not exclude these people from citizenship; neither would additional proposed language excluding those under “tribal authority.”44 Yet “[t]hey are no more qualified to become citizens,” Williams asserted, “than when they existed as original tribes.”45
Conness’s description of the political status of many Native people in his state confused some of his colleagues. Many lawmakers seemed to assume that Native jurisdictions were all, like the Pueblos, longstanding and well-defined political communities. They could not imagine collectivities of Indians without “tribal organization,” meaning a clearly demarcated leadership and citizenry. But in countless ways, Native polities did not conform to American ideas of hierarchy, leadership, or decision making. Since whether Native people were or were not subject to “tribal authority” was the entire conceit that underlay the treaties and state and federal enactments that provided a path to citizenship, some found it shocking to consider that the most basic terms that Americans used to talk about Indians’ political and social organization might fail upon close inspection. Others knew better. Minnesota’s Alexander Ramsey argued that “tribe” was a “loose and ill-defined thing” and that a standard based on “tribal authority” might incorporate people who were neither “civilized” nor subject to U.S. jurisdiction in any but the most abased sense.
But Ramsey’s concerns in Minnesota differed from those of his colleagues from Oregon or California. And the solution, as he saw it, was to take account of each state’s needs by allowing their definitions of citizenship to suffice; his amendment to the citizenship clause would exclude “Indians not admitted to citizenship by the laws of any of the states.”46 This proposal appeared to acknowledge his own and other states’ path to citizenship for “civilized” Indians who submitted themselves to their jurisdiction.47 As we have seen, though, Ramsey hardly believed that such people existed.48 He was instead focused on a different question: the status of Dakota and Hoocąk people, formerly resident in Minnesota, who were formally under a tribal authority recognized by a treaty with the United States, but who refused to live where or as the treaty required. These “renegades,” “wanderers,” and “outlaws,” as he called them, roamed across his state’s borders, “refugees from all tribal authority,… recogniz[ing] no such authority.” His state had banished the Dakotas and expelled the Hoocąk after the U.S.-Dakota War in 1862. In 1866 these groups formally belonged to exile reservation communities in the Dakota Territory and Nebraska, but they continually returned to Minnesota in small groups and bands. From Ramsey’s point of view, their unpoliced “wandering” meant that they were no longer under tribal authority, nor subject to any foreign power. If Trumbull’s language effectively made citizens out of them, how could his state remove them or ask the federal government to do so? His Minnesotans must be allowed to police these people as they saw fit, and not be forced to treat them as citizens entitled to a panoply of rights, especially the right to remain unmolested in the state.
Trumbull finally acknowledged “how difficult it is to accommodate the different interests that are represented here,” but he was unwilling to indulge much more debate.49 Lane’s gambit was too crass to bear accommodating. Conness and Ramsey made trenchant points. Yet lawmaking must proceed. To bring matters to a conclusion, Trumbull proposed that the Senate return to the Constitution’s exclusion of “Indians not taxed” as a reasonable proxy for excluding those people the westerners considered undesirable.
“Indians not taxed” did not at first appear to be a promising solution. It was familiar to all as the Constitution’s formula, but even there it remained curiously undefined. Where definitions existed, they were unhelpful: the instructions given to census enumerators in 1860 provided that “Indians not taxed are not to be enumerated” but that “[t]he families of Indians who have renounced tribal rule, and who under State or Territorial laws exercise the rights of citizens, are to be enumerated.”50 This lack of clarity appeared to be a path straight back into the same morass as previous proposals—for example, what about those who renounced tribal rule but lacked state or territorial citizenship rights?
But Trumbull knew what he was doing. By this point in the debate, he must have deduced the essence of the problem: definitions could not be too precise, lest they restrict each local settler community’s ability to define the parameters of Native inclusion. Trumbull was frank about the real meaning of “Indians not taxed”: it was not a property qualification, but a proxy for both jurisdiction and civilization. In his view, “Not taxed” simply meant “considered virtually as foreigners.”51 “Taxed” meant those Native who had “separated from [their] tribes, and come within the jurisdiction of the United States so as to be counted.”52 He went so far as to say that the standard embraced only “a class of persons; that is, civilized Indians.”53 Oregon’s George Williams laid this out even more expansively: taxation or its absence, he declared, “is the most certain way of defining the distinction between wild, savage, and untamed Indians, and those who associate with white people, own property, and exercise the privileges that generally attend a citizen in the community.”54
In turning to “Indians not taxed,” therefore, Trumbull heeded the demands of his colleagues for a language that captured the sense of Native people’s civilized enmeshment in American society, as defined by the settlers regarding them. An “Indian taxed” was not defined literally as a taxpayer, but instead as a person whom local Whites were willing to embrace as a compatriot. The high-sounding language of national definition actually meant local and profoundly subjective assessments of personal association and community recognition. And with this addition the citizenship clause was complete. Its final version read “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The Civil Rights bill containing this language was passed by Congress, vetoed by Andrew Johnson, and passed immediately over his veto, becoming law on April 9, 1866.
Despite this fierce and earnest debate, within weeks Congressional Republicans had a change of heart about “Indians not taxed.” As they began writing citizenship into the draft Fourteenth Amendment that spring, what had seemed a useful imprecision started to seem risky for another reason. The purpose of creating national citizenship, after all, was to establish national rights that could be federally enforced against state action. Yet the federal government was not the only entity that taxed. If this language were taken literally, as sometimes happened in courts and other venues, cities or states would be able to define Indians as citizens or not simply by exercising their own taxing power.55 The Colorado Territory, for example, could tax property held by Native people and by that means make them citizens of the United States.56 Seen in this light, “Indians not taxed” appeared to contradict the principle of federal supremacy that was central to the Civil Rights Act’s purposes. It was one thing to empower communities to incorporate or exclude particular Native people from the political community based on local histories and relationships, but quite another to give taxing authorities broad power to extend or withhold the newly significant status of citizen.
To remedy this, the Fourteenth Amendment’s drafters settled on alternative language that underscored the supremacy of the federal government: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside.”57 They understood this to exclude Indians under tribal authority and children born to the families of diplomats, but to include everyone else born or naturalized on its territory.
“Jurisdiction” served some of the same deliberately imprecise functions as “taxed.” On the one hand, it allowed the United States to define most of Indian Country as outside the scope of the amendment. As Trumbull put it, the United States had within its territorial limits “a large region of country, unorganized, over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indian roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them. They would not be embraced by this provision.”58 But of course the exclusion of such people had never been difficult to achieve, and Trumbull was in some sense missing the point. “Jurisdiction” here was not literally defined in terms of the territories into which U.S. extended its laws. Rather, jurisdiction was a moving wall, capturing or not capturing people within its ambit as circumstances demanded—and mostly excluding Native people, no matter where they lived. Jacob Howard, the amendment’s manager in the Senate, was almost explicit about this. “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of the amendment, born subject to the jurisdiction of the United States,” he said. “They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.”59 Not actually foreign; note that they were, in his view, “born within the limits of the United States.” But foreign enough to be excluded when that was desirable.
But Howard’s description of Native sovereignty raised further questions about the extent of U.S. jurisdiction and the limits of Indian foreignness. Indians, he explained, had a “national character,” and the U.S. treated with them as “sovereign powers.” But as the Supreme Court made plain in the 1830s, “[t]he Indians are our wards.” He went on to describe their sovereignty in terms that described the limits the United States set upon it. “They have a national independence. They have an absolute right to the occupancy of the soil upon which they reside; and the only ground of claim which the United States has ever put forth the proprietorship of the soil of Indian territory is… the right… to be the first purchasers from the Indian tribes.” Read through the actual history of the United States since 1830, this meant that the United States asserted the right to tell Native sovereignties when their sovereignty was at an end.60
To some, this right was jurisdiction. As chairman of a joint committee on Indian policy, Wisconsin U.S. Senator James Doolittle had spent the past year traveling the West and taking testimony on the “Indian Question.” He knew something of the diversity and complexity of Native life at the border of U.S. settlement, and he emphatically did not want to incorporate Native people: “they are, in my judgment, utterly unfit to be citizens of the United States,” he said. But Doolittle was equally certain that the language of jurisdiction effectively made them so. The United States claimed the sole right to treat with Native nations. It subdued them with armies and laws. It seemed certain to continue on that course. In what sense, then, were all Native people between Southern California and northern Minnesota not, at least in the future imagined by lawmakers, “under the jurisdiction” of the United States? Doolittle’s assessment was that “they are completely our subjects, completely in our power.” It was in that sense that “[w]e hold them as wards.”61 He warned his colleagues not to adopt the standard of “jurisdiction,” and to hold instead to the looser “Indians not taxed” language of the Civil Rights Act. Over time, he said, “Indians not taxed” had “come to have a meaning that is understood as descriptive of a certain class of Indians that may be enumerated… as part of the citizens of the United States.”62 The passive voice did not disguise who was “understanding” and “enumerating.” Like the rest, he wanted a standard that limited citizenship to those individuals whom a community of settlers were willing to accept.
Doolittle, a supporter of Andrew Johnson, was widely hated by the Republicans, and they rejected his amendment. But the Wisconsinite was prescient. Over the next years the United States exerted ever greater political and military power over Native territories and Native nations. A flurry of treaties later in 1866 forced many of the Five Tribes—though still formally recognized as independent nations—to embrace the new U.S. constitutional principle of equal citizenship and incorporate their former slaves as citizens of their nations.63 The army redeployed westward. And treaty and military power were matched by growing ambitions to shape Native nations from within: in 1869 President Grant empowered Christian denominations to oversee and deepen the program of civilization on the reservations, and the Indian office in Washington grew ever more systematic in measuring how these efforts were progressing.64
U.S. intervention in the inner lives of Native nations proceeded so quickly during the late 1860s that Congressmen quickly lost track of what they had meant by “subject to the jurisdiction.” By 1870, in fact, senators asked the Judiciary Committee to investigate whether the language of the Fourteenth Amendment had inadvertently made citizens out of all Indians. To their relief, its report concluded that it had not; Native Americans retained “their respective nationalities, their right to govern themselves,” and “other attribute[s] of a separate political community.”65 That was the necessary decision of the moment. The next year would bring another change of course, as Congress abruptly ended the policy of making new treaties. Henceforth, Indian policy—including the path to citizenship—would be carried out by Congressional and judicial fiat, and through the machinery of a growing colonial apparatus.
Doolittle’s objection about the potential expansiveness of “jurisdiction” persisted, but Republicans brushed off claims that detribalized Native people were citizens by asserting the flexibility that had been their purpose all along. Perhaps a narrow reading might suggest such people were now citizens under the Fourteenth Amendment, but it was better to conceive of them (as Senator Timothy Howe put it in 1873) as “not quite constitutionalized.”66 And the form that flexibility increasingly took was familiar: wardship, the liminal status embraced by a chain of thinkers from the 1830s Supreme Court to the 1860s Congress.
During the 1880s, wardship grew ever more concrete, becoming in effect the answer to the question of citizenship. The antebellum state constitutional and federal treaty provisions that required Native people to gain the approval of a court were, in retrospect, a harbinger. In Elk v. Wilkins (1884), the Supreme Court ruled that only the federal government, not Native people individually, could determine when they would be “let out of the state of pupilage.” Three years later, in response to another court decision, Congress extended U.S. jurisdiction over reservations through the Major Crimes Act, underscoring the “dependent” in “domestic dependent nations.” And in 1887, the Dawes Severalty Act sought to break the reservations up into private landholdings, dismantle tribal sovereignty and self-government, and transform Indians into Americans. Reservations were allotted, the surplus sold, their territorial integrity gutted. During this decade, too, officials began forcing Native children into off-reservation boarding schools—re-education centers intended to produce people fit for U.S. citizenship by killing their Indianness. The landmarks of Native “citizenship” in the late nineteenth-century United States were the forces of land loss, carceral control, and cultural destruction.67
To integrate this very different history of citizenship into our understanding of the Civil War era is to recognize that the democratizing liberal republic of Reconstruction was simultaneously, in historian Bethel Saler’s resonant phrase, a settler’s empire.68 And in that settler’s empire, republican constitutional principles could not be allowed to hamstring the fundamental sovereignty of settlers and their governments. Understanding this dynamic explains why it was so hard to craft consensual parameters for Native citizenship in 1866. But it also explains more. Despite the recent profusion of studies weaving together “Civil War” and “western” histories, many aspects of Native American history continue not to fit well into the main narratives and analyses of the Civil War era. The 1866 debates and their sequels suggest that the difficulty is not just a historiographical problem of our moment but also a legal, ideological, and cultural feature of the history itself. In this case, the Reconstruction framers’ effort to “reconstruct race” could not help but founder on the shoals of an “Indian Question” that was not fundamentally racial but national, and around which the keywords of its debate—jurisdiction and civilization—had themselves developed. From its constitutional beginnings, the “who” and “what” of U.S. citizenship have never only been questions of race and rights. That citizenship was codified, and still lives, in the shadow of conquest.
Notes
Stephen Kantrowitz is Plaenert-Bascom Professor of History at the University of Wisconsin–Madison, USA. He would like to thank Greg Downs, Alaina Roberts, Cori Simon, Susan Johnson, Larry Nesper, Liz Ellis, Hilary Green, Adam Arenson, James Brooks, Ari Kelman, Anne Hyde, and audiences at the George and Ann Richards Civil War Era Center at Penn State, Duke Law School, New York University, the Society of Civil War Historians, the American Society for Ethnohistory, and the Western Historical Association.
Footnotes
An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication, 14 Stat. 27–30 (1866).
Cong. Globe, 39th Cong., 1st Sess., 498-99 (1866). Whatever doubts today’s opponents of birthright citizenship attempt to sow about the meaning of this debate, a full reading of the Congressional Globe for 1866 makes it clear that the victorious majority accepted the birthright citizenship of nearly all children of aliens (excepting only the children of foreign diplomats) as a continuation of a longstanding and uncontroversial practice, and that they defended its 1866 codification against objections that some of these birthright citizens’ parents were racially ineligible for citizenship under existing naturalization law. For a full exposition of this point see Garrett Epps, “The Citizenship Clause: A ‘Legislative History,’” American University Law Review 60, no. 2 (2010): 331–88. For further context, see Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (New York: Cambridge University Press, 2018).
Cong. Globe 39th Cong., 1st Sess., 497-8, 574 (1866)
Bethel Saler, The Settler’s Empire: Colonialism and State Formation in America’s Old Northwest (Philadelphia: University of Pennsylvania Press, 2015).
I say “mainly” because these discourses also had areas of overlap. Native Americans’ “foreignness,” and the initial question about their “naturalization,” for example, constituted an explicit parallel with questions of the status of immigrants, their children, and birthright.
Cong. Globe, 39th Cong., 1st Sess.,498-9, 527-8 (1866).
West, “Reconstructing Race,” Western Historical Quarterly 34 (Spring 2003): 12, 21. Recent works that develop related arguments and explore connections between “Civil War” and “Western” histories include Stacey Smith, Freedom’s Frontier: California and the Struggle over Unfree Labor, Emancipation, and Reconstruction (Chapel Hill: University of North Carolina Press, 2013); Ari Kelman, A Misplaced Massacre: Struggling over the Memory of Sand Creek (Cambridge: Harvard University Press, 2013); Gregory P. Downs and Kate Masur, eds., The World the Civil War Made (Chapel Hill: University of North Carolina Press, 2015); Adam Arenson and Andrew Graybill, eds., Civil War Wests: Testing the Limits of the United States (Berkeley: University of California Press, 2015); Virginia Scharff, ed., Empire and Liberty: The Civil War and the West (Berkeley: University of California Press, 2015); Khal Schneider, “Distinctions that Must Be Preserved: On the Civil War, American Indians, and the West,” Civil War History 62 (March 2016): 36–54; Steven Hahn, A Nation without Borders: The United States and its World in an Age of Civil Wars, 1830-1910 (New York: Penguin Books, 2016); “The Civil War West: Special Issue,” Journal of the Civil War Era 6 (December 2016): 481–591; and Richard White, The Republic for Which it Stands: The United States during Reconstruction and the Gilded Age, 1865-1896 (New York: Oxford University Press,2017); and Megan Kate Nelson, The Three-Cornered War: The Union, the Confederacy, and Native Peoples in the Fight for the West (New York: Simon and Schuster, 2020).
Scholarship that engages with Native American citizenship in the Civil War era includes James W. Oberly, A Nation of Statesmen: The Political Culture of the Stockbridge-Munsee Mohicans, 1815–1972 (Norman: University of Oklahoma Press, 2005); Frederick Hoxie, “What Was Taney Thinking? American Indian Citizenship in the Era of Dred Scott,” Chicago-Kent Law Review 82 (December 2006): 329–59; Deborah Rosen, American Indians and State Law: Sovereignty, Race, and Citizenship, 1790–1880 (Lincoln: University of Nebraska Press, 2007); John P. Bowes, Exiles and Pioneers: Eastern Indians in the Trans-Mississippi West (New York: Cambridge University Press, 2007); Kevin Bruyneel, The Third Space of Sovereignty: The Postcolonial Politics of U.S.-Indigenous Relations (Minneapolis: University of Minnesota Press, 2007); Elliott West, The Last Indian War: The Nez Perce Story (New York: Oxford University Press, 2009); Kelli Jean Mosteller, “Place, Politics, and Property: Negotiating Allotment for the Citizen Potawatomi, 1861–1891” PhD diss.. (University of Texas, 2013); Stephen Kantrowitz, “‘Not Quite Constitutionalized’: The Meanings of ‘Civilization’ and the Limits of Native American Citizenship, in The World the Civil War Made, eds. Gregory P. Downs and Kate L. Masur (Chapel Hill: University of North Carolina Press, 2015), 75–105; Michael Witgen, “Seeing Red: Race, Citizenship, and Indigeneity in the Old Northwest,” Journal of the Early Republic 38 (Winter 2018): 581–611; Jameson Sweet, “Native Suffrage: Race, Citizenship, and Dakota Indians in the Upper Midwest,” Journal of the Early Republic 39 (Spring 2019): 99–109; Maurice Crandall, These People Have Always Been a Republic: Indigenous Electorates in the U.S.-Mexico Borderlands, 1598-1912 (Chapel Hill: University of North Carolina Press, 2019); and Stephen Kantrowitz, “White Supremacy, Settler Colonialism, and the Two Citizenships of the Fourteenth Amendment,” Journal of the Civil War Era 10 (March 2020): 29–53.
Relevant legal scholarship includes Earl M. Maltz, “The Fourteenth Amendment and Native American Citizenship,” Constitutional Commentary 17, no. 3 (2000): 555; Gerald N. Magliocca, “The Cherokee Removal and the Fourteenth Amendment,” Duke Law Journal 53 (December 2003): 875–965; Epps, The Citizenship Clause”; Bethany R. Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark,” Cardozo Law Review 37, no. 4 (2016): 1185–258; and Maggie Blackhawk, “Federal Indian Law as Paradigm within Public Law,” Harvard Law Review 132 (May 2019): 1791–877.
This brief essay considers U.S. citizenship from the standpoint of U.S. policymakers; as a result, several crucial dimensions of Native perspectives on these matters—though central to the larger work of which this forms a small part--remain unexplored here. First, this essay does not consider the ways Native people and communities made use of, redeployed, or subverted the meanings of U.S. citizenship as it was made available to, extended to, or imposed upon them during the second half of the nineteenth century. For perspectives on this question, see especially works by Bruyneel, Schneider, Oberly, Crandall, and Kantrowitz (2015) cited in note 9. Second, this essay does not consider the ways Native nations responded, then and later, to the impact of U.S. pressures on their internal regimes of citizenship. On this point see Mikaëla M. Adams, Who Belongs? Race, Resources, and Tribal Citizenship in the Native South (New York: Oxford University Press, 2016); Circe Sturm, Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma (Berkeley: University of California Press, 2002); and Julie L. Reed, Serving the Nation: Cherokee Sovereignty and Social Welfare, 1800-1907 (Norman: University of Oklahoma Press, 2016).
For an introduction, see Robert J. Miller, “The Doctrine of Discovery, Manifest Destiny, and American Indians,” in Why You Can’t Teach United States History without American Indians, eds. Susan Sleeper-Smith et al (Chapel Hll: University of North Carolina Press, 2015), 87–100; Cherokee Nation v. Georgia, 30 U.S. 1 (1831). For an analysis of settler criminal jurisdiction over Indigenous people as the essential contest over sovereignty, see Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (Cambridge: Harvard University Press, 2010).
Quoted in James M. McPherson, Battle Cry of Freedom: The Civil War Era (New York: Oxford University Press, 1988), 115.
See, e.g., Elliott West, The Last Indian War: The Nez Perce Story (New York: Oxford University Press, 2009); Scott W. Berg, 38 Nooses: Lincoln, Little Crow, and the Beginning of the Frontier’s End (New York: Vintage Books, 2012); Kelman, Misplaced Massacre; and Smith, Freedom’s Frontier..
“Condition of the Indian Tribes: Report of the Joint Special Committee, Appointed under Joint Resolution of March 3, 1865,” (Washington: G.P.O, 1867), 3-8. On the Doolittle Commission, see Harry Kelsey, “The Doolittle Report of 1867: Its Preparation and Shortcomings,” Arizona and the West 17 (Summer 1975): 107–20; also Kerry R. Oman, “The Beginning of the End: The Indian Peace Commission of 1867-1868,” Great Plains Quarterly 22 (Winter 2002): 35–51. See Richard White’s summary of this state of affairs in chapter three of The Republic for which it Stands.
On these interlinked questions, see Kate Masur, An Example for All the Land: Emancipation and the Struggle over Equality in Washington, D.C. (Chapel Hill: University of North Carolina Press, 2010); Cathleen D. Cahill, Federal Mothers and Fathers: A Social History of the United States Indian Service, 1869-1933 (Chapel Hill: University of North Carolina Press, 2011); and Joseph C. Genetin-Pilawa, Crooked Paths to Allotment: The Fight over Federal Indian Policy after the Civil War (Chapel Hill: University of North Carolina Press, 2012).
E.g., “Treaty with the Cherokee, 1819,” 7 Stat. 195 (Feb. 27, 1819), Art. 2.
David J. Silverman, Red Brethren: The Brothertown and Stockbridge Indians and the Problem of Race in Early America (Cornell, 2010), 192–5.
James W. Oberly, A Nation of Statesmen: The Political Culture of the Stockbridge-Munsee Mohicans, 1815-1972 (Norman: University of Oklahoma Press, 2005).
Patty Loew, Indian Nations of Wisconsin: Histories of Endurance and Renewal (Madison: Wisconsin Historical Society Press, 2013), 149–58.
Craig Miner and William E. Unrau, The End of Indian Kansas: A Study of Cultural Revolution, 1854-1871 (Lawrence: University Press of Kansas, 1990), 1–24.
Bowes, Exiles and Pioneers.
Theodore J. Karamanski, “State Citizenship as a Tool of Indian Persistence: A Case Study of the Anishinaabeg of Michigan,” Michigan Historical Review 37 (Spring 2011): 119–38; Cong. Globe, 39th Cong., 1st Sess., 257 (1866).
Rosen, American Indians and State Law, 141.
Sweet, “Native Suffrage.”
Cong. Globe, 39th Cong., 1st Sess., 526 (1866).
Cong. Globe, 39th Cong., 1st Sess., 572 (1866).
Article VIII, Treaty of Guadalupe Hidalgo, 9 stat. 922 (1850).
Crandall, These People.
Cong. Globe, 39th Cong., 1st Sess., 506, 522 (1866).
Cong. Globe, 39th Cong., 1st Sess., 506 (1866).
Miner and Unrau, End of Indian Kansas, 83. See also “Treaty with the Stockbridge and Munsee, 1856,” 11 Stat. 663 (5 February 1856).
“Treaty with the Potawatomi, 1861,” 12 Stat. 1191 (15 November 1861).
Miner and Unrau, End of Indian Kansas.
Cong. Globe, 39th Cong., 1st Sess., 506 (1866).
Cong. Globe, 39th Cong., 1st Sess., 1683, 1700-3 (1866).
Cong. Globe, 39th Cong., 1st Sess., 525 (1866).
Quoted in Robert V. Kvasnicka and Herman J. Viola, eds., The Commissioners of Indian Affairs, 1824-1977 (Lincoln: University of Nebraska Press, 1979), 105.
Kvasnicka and Viola, eds., The Commissioners of Indian Affairs, 103.
Important works on this subject include Claudio Saunt, “The Paradox of Freedom: Tribal Sovereignty and Emancipation during the Reconstruction of Indian Territory,” The Journal of Southern History 70 (February 2004): 63–94; Tiya Miles, Ties That Bind: The Story of an Afro-Cherokee Family in Slavery and Freedom (Berkeley: University of California Press, 2006); Melinda Micco, “‘Blood and Money’: The Case of Seminole Freedmen and Seminole Indians in Oklahoma,” in Crossing Waters, Crossing Worlds: The African Diaspora in Indian Country,eds. Tiya Miles and Sharon Holland (Durham: Duke University Press, 2006), 121–44; Celia E. Naylor, African Cherokees in Indian Territory: From Chattel to Citizens (Chapel Hill: University of North Carolina Press, 2008); Fay Yarbrough, Race and the Cherokee Nation: Sovereignty in the Nineteenth Century (Philadelphia: Pennsylvania State University Press, 2008) and “‘Dis Land Which Jines Dat of Ole Master’s’: The Meaning of Citizenship for the Choctaw Freedpeople,” in Civil War Wests: Testing the Limits of the United States, eds. Adam Arenson and Andrew R. Graybill (Berkeley: University of California Press, 2015); Jesse T. Schreier, “Indian or Freedman? Enrollment, Race, and Identity in the Choctaw Nation, 1896–1907,” Western Historical Quarterly, 42 (Winter 2011): 458–79; Barbara Krauthamer, Black Slaves, Indian Masters: Slavery, Emancipation, and Citizenship in the Native American South (Chapel Hill: University of North Carolina Press, 2013); and Alaina E. Roberts, I’ve Been Here All the While: Black Freedom on Native Land (Philadelphia: University of Pennsylvania Press, 2021).
Brendan C. Lindsay, Murder State: California’s Native American Genocide, 1846-1873 (Lincoln: University of Nebraska Press, 2012), 271.
Benjamin Madley, An American Genocide: The United States and the California Indian Catastrophe (New Haven: Yale University Press, 2016), 103–4.
Lindsay, Murder State, 286–90. This did not of course fully describe the social reality of Native California in this era: see, in addition to Madley, American Genocide and Lindsay, Murder State, Khal Ross Schneider, “Citizen Lives: California Indian Country, 1855-1940,” PhD diss. (University of California, Berkeley, 2006).
Cong. Globe, 39th Cong., 1st Sess., 573 (1866).
Cong. Globe, 39th Cong., 1st Sess., 574 (1866).
Cong. Globe, 39th Cong., 1st Sess., 573 (1866).
Cong. Globe, 39th Cong., 1st Sess., 527 (1866).
Cong. Globe, 39th Cong., 1st Sess., 526 (1866). See Debates and Proceedings of the [Democratic] Minnesota Constitutional Convention including the Organic Act of the Territory (St. Paul: Earle S. Goodrich, 1857), 430–31.
Cong. Globe, 39th Cong., 1st Sess., 526 (1866).
Cong. Globe, 39th Cong., 1st Sess., 527 (1866).
“1860 Census: Instructions to the Marshals.” Integrated Public Use Microdata Series. https://usa.ipums.org/usa/voliii/inst1860.shtml (accessed 30 December 2019).
Cong. Globe, 39th Cong., 1st Sess., 572 (1866).
Cong. Globe, 39th Cong., 1st Sess., 572 (1866).
Cong. Globe, 39th Cong., 1st Sess., 2894 (1866).
Cong. Globe, 39th Cong., 1st Sess., 573 (1866).
Cong. Globe, 39th Cong., 1st Sess., 2893-94 (1866)
Cong. Globe, 39th Cong., 1st Sess., 2893 (1866).
Cong. Globe, 39th Cong., 1st Sess., 2869 (1866).
Cong. Globe, 39th Cong., 1st Sess., 2894-5 (1866).
Cong. Globe, 39th Cong., 1st Sess., 2890-5 (1866)
Cong. Globe, 39th Cong., 1st Sess., 2890-5 (1866).
Cong. Globe, 39th Cong., 1st Sess., 2896-7 (1866).
Cong. Globe, 39th Cong., 1st Sess., 2892-3 (1866).
On the evolution of these struggles during the nineteenth century and beyond, see note 40.
For an overview of these events, see chapter 3 of White, The Republic for which it Stands.
S. Rep. 268, 41st Cong., 3rd Sess., 2 (1870).
Senator Timothy Howe, quoted in Kantrowitz, “’Not Quite Constitutionalized,’” 89.
Elk v. Wilkins, 112 U.S. 94 (1884); “An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations, and to Extend the Protection of the Laws of the United States and the Territories over the Indians, and for Other Purposes,” 24 Stat. 388 (8 February 1887). Exemplary works covering this era includes David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875-1928 (Lawrence: University Press of Kansas, 1995); K. Tsianina Lomawaima, They Called it Prairie Light: The Story of Chilocco Indian School (Lincoln: University of Nebraska Press, 1995); Cahill, Federal Mothers and Fathers; Francis P. Prucha, The Great Father: The United States Government and the American Indians (Lincoln: University of Nebraska Press, 1986); Naih Harring and Sidney L. Harring, Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (New York: Cambridge University Press, 1994).
Saler, Settler’s Empire.
