Elk v. Wilkins
|Elk v. Wilkins|
|Decided November 3, 1884|
|Full case name||John Elk v. Charles Wilkins|
|Citations||112 U.S. 94 (more)|
|An Indian cannot make himself a citizen of the United States without the consent and co-operation of the government.|
|Majority||Gray, joined by Waite, Miller, Field, Bradley, Matthews and Blatchford|
|Dissent||Harlan, joined by Woods|
|Indian Citizenship Act of 1924|
John Elk, a Winnebago Indian born on an Indian reservation and later resided among whites in the non-reservation U.S. territory in Omaha, Nebraska, where he renounced his former tribal allegiance and claimed citizenship by virtue of the Citizenship Clause. The case came about after Elk tried to register to vote on April 5, 1880, and was denied by Charles Wilkins, the named defendant, who was registrar of voters of the Fifth Ward of the City of Omaha.
The question then was, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his or her birth within the United States, and of his afterward voluntarily separating him or herself from the tribe and taking up residence among white citizens, a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment of the Constitution.
Under the constitution of the United States, Congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether 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 might and habitually did deal, as they thought fit, either through treaties made by the president and senate, or through acts of Congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States.
Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” with whom the United States dealt with through treaties and acts of Congress. Thus, born a member of an Indian tribe, even on American soil, Elk could not meet the allegiance test of the jurisdictional phrase because he “owed immediate allegiance to” his tribe, a vassal or quasi-nation, and 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.”
- Stephen D Bodayla, “‘Can An Indian Vote?’: Elk v Wilkins, A Setback for Indian Citizenship,” Nebraska History 67 (1986): 372-380. URL of article: http://www.nebraskahistory.org/publish/publicat/history/full-text/NH1986IndianVote.pdf Date: 12/15/2010.
- Elk v. Wilkins, 112 U.S. 94, 99 (1884).
- 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.
- Elk, 112 U.S. at 102.
- "Indian Affairs: Laws and Treaties", Compiled and edited by Charles Kappler, Vol. IV Laws (1927), Washington: Government Printing Office, available at http://digital.library.okstate.edu/kappler/vol4/html_files/v4p1165.html
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