"Excluding Indians not taxed": Dred Scott, Standing Bear, Elk and the legal status of Native Americans in the latter half of the nineteenth century.

AuthorTennant, Brad


Throughout American history, the federal government has failed to follow a consistent approach in determining the legal and political status of individual Native Americans and Indian tribes. Such policies (i.e., treaty-making and reservations, allotment, reorganization, termination, and, currently, self-determination) range from the treatment of Indian tribes as sovereign nations to the assimilation of individual Native Americans as U.S. citizens in the dominant white society. (1) Assimilation generally meant that Native Americans should adopt Euro-American clothing, language, religion, and an agricultural lifestyle before qualifying for citizenship. Even at that, most Native Americans could only expect second-class citizenship status when it came to exercising their constitutional rights and protections. Simply put, the legal status of individual Native Americans has often been unclear.

During the latter part of the nineteenth century, social reformers, the courts, and politicians at the local, state, and federal level attempted to clarify this issue. To understand the difficulty in determining the legal standing of Native Americans, one must first examine the historical meaning and significance of the phrase "excluding Indians not taxed" as it appears in the U.S. Constitution. Attention should then be directed toward Dred Scott v. Sandford (1857), Standing Bear v. Crook (1879), and Elk v. Wilkins (1884), arguably the three most significant cases involving the legal status of Native Americans during the latter half of the nineteenth century. (2) Collectively, they tried to determine: (1) how Native Americans could obtain citizenship; (2) the legal rights of individual Native Americans notwithstanding their tribal affiliation; and, (3) the legal status of individual Native Americans who had paid taxes or had separated themselves from their tribes. (3) Despite having the means to readily grant citizenship to Native Americans, the U.S. government largely ignored the wishes of individual Native Americans and often used citizenship as a means of assimilating tribal Indians into the dominant white society.

After more than a century of treaties and legislative acts affecting the legal status of Native Americans, Congress adopted H.R. 6355, the Indian Citizenship Act of 1924, which granted citizenship to all "noncitizen Indians born within the territorial limits of the United States." (4) By then, almost two-thirds of the Native American population had gained citizenship through treaties or congressional legislation. (5) For example, the 1830 treaty with the Choctaws, which is noteworthy within the context of Indian removal, contained a provision which stated that "each Choctaw head of family being desirous to remain and become a citizen of the States, shall be permitted to do so." (6) Likewise, the 1887 General Allotment Act declared:

every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, ... who has voluntarily taken up ... his residence separate and apart from any tribe of Indians therein, and has adopted the habit of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens. (7) The prospect of citizenship, however, did not necessarily guarantee that Native Americans actually gained it or, if they did, that they enjoyed the same rights and privileges as other U.S. citizens. (8) Consequently, whether a citizen or not, the actual legal status of Native Americans remained controversial well into the twentieth century, long after passage of the Indian Citizenship Act of 1924. (9)


The phrase "excluding Indians not taxed" appears in the Constitution in regard to determining the apportionment of taxes and representation among the states, but little is known about the intent of inserting this clause into that governing document. Even James Madison's Notes of Debates in the Federal Convention of 1787 makes only casual references to it. (10) Although little is known today about the debates surrounding the wording of the phrase--assuming that there may have been at least some discussion on the topic--the meaning of those four words became the focal point in trying to determine the legal status of Native Americans. At best, historians and legal experts today can offer only educated guesses to explain the rationale behind the origins of the phrase.

The phrase first appeared in the Articles of Confederation. Article VIII addressed the issue of how to provide for the defense of the United States and the citizenry's general welfare. (11) On April 18, 1783, the Confederation Congress sought to amend the original wording of Article VIII in order to specify what groups would contribute to a treasury to cover these expenses. According to the new wording, such expenses would be paid from a common treasury:

which shall be supplied by the several states in proportion to the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes, in each State. (12) This clause established the principle later included in the Constitution that slaves were only counted as three-fifths of a person for purposes of apportionment of taxes and representation in the federal government. By contrast, Native Americans who paid taxes counted as a whole person for apportionment purposes, but they were not necessarily U.S. citizens. (13)

Because Article VIII of the Articles of Confederation was amended in 1783, the first reference to the status of "Indians not taxed" appeared in Article IX of that same governing document adopted two years earlier. Soon after achieving its independence from Great Britain, it became evident that the newly created U.S. government had to deal with a number of Native American nations within its boundaries as well as neighboring tribes in both the immediate west and Canada. The fact that many of these tribes lived in the Great Lakes region (i.e., the Northwest Territory) created an urgent need for the federal government to develop a Native American policy. The tribes that resided in the region, together with competing land claims among several states, influenced the enactment of legislation to organize future white settlement there. At Maryland's insistence, the states agreed to relinquish control of all western land claims to the Confederation Congress. Many states which held such claims originally opposed Maryland's proposal, but Virginia's Thomas Jefferson argued that any territory west of the original states should eventually be divided into new states. After Virginia and New York yielded their western land claims, other states followed suit. (14)

In its effort to establish a Native American policy, the Confederation Congress, according to Article IX of the Articles of Confederation, assumed responsibility for "regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not interfered or violated." (15) On September 22, 1783, the Confederation Congress increased its authority over Indian affairs by adopting a proclamation which prohibited the purchase and settlement of any lands inhabited or claimed by Native Americans without congressional approval. By doing so, it sought to maintain "harmony and friendship with the Indians, not members of any of the states." (16) In other words, members of Congress feared that any uncontrolled settlement of lands already occupied by Indian tribes would result in open hostilities to the detriment of all parties involved.

Both Article VIII and Article IX of the Articles of Confederation made general references to Native Americans who either did not pay taxes or were not counted as members of any state. An attempt to clarify the meaning of "not members of any state" was made by inserting the phrase "excluding Indians not taxed" into the Constitution. Native Americans who did not pay taxes were specifically excluded as part of a state's population. Such wording differentiated between the status of Native Americans who were not legally or politically responsible to a specific state government and those who were apparently considered U.S. citizens, with the latter subject to taxation by a state. (17)

Despite the ambiguity of these phrases, they demonstrate that, at a very early stage in America's history, a distinction was made between Native Americans who were members of a state and those who were not. One must remember that, at the time, one's citizenship applied only to their legal status in connection to a state since there was no national citizenship. That distinction would remain unclear throughout much of American history. Indeed, Madison took note of this in Federalist No. 42 when he addressed the issue of regulating commerce with Indian tribes. While the Articles of Confederation referred to individual Native Americans who were not members of a state, Madison confessed that he could not identify those who were. He wrote:

What description of Indians are to be deemed members of a State, is not yet settled; and has been a question of frequent perplexity and contention in the Federal Councils. (18) That "perplexity" was not easily resolved.

Despite these limited references to Native Americans in the Articles of Confederation, it appears that a basis existed for the Founding Fathers to use the phrase "excluding Indians not taxed" in Article I, Section Two of the Constitution. It is important to realize that Native Americans, at the time of the 1787 Constitutional Convention, generally were not considered...

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