Native American Civil Rights - Voting

Voting

In the 18th century, starting when the Constitution was created, there was a struggle to define what the Indian tribes’ relationship was with the United States. Article 1, Section 2 of the Constitution states that Indians are not under the control of the United States, and therefore cannot be taxed. The Constitution also stated that Congress has the power to “regulate commerce with foreign nations, and among several states, and with Indian tribes” as stated in Article I, Section 8. This means that the leaders of the United States at that time viewed Indians as somewhere in between foreign nations and American citizens.

The Marshall trilogy in 1831 helped define sovereignty by stating that the Cherokee nation was a distinct political society but a domestic dependent nation and one that "resembles that of a ward to a guardian". Therefore Native Americans' relationship to the U.S. government was similar to that of people in an occupied land under the control of a foreign power. This definition meant that Indian people did not have a right to vote. Further clarification was made when in 1856 Attorney General Caleb Cushing stated, “Indians are the subjects of the United States, and therefore are not, in mere right of home-birth, citizens of the United States.

In 1817 the Cherokee became the first Native Americans recognized as U.S. citizens. Under Article 8 of the 1817 Cherokee treaty, "Upwards of 300 Cherokees (Heads of Families) in the honest simplicity of their souls, made and election to become American citizens." When the Fourteenth Amendment and the first civil rights act were passed in 1866 regarding the role of African-Americans in the United States, citizenship of Indians was defined as well. The Civil Rights Act of 1866 states, “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 country at this time was not necessarily ready for Indians to become citizens. Senator Jacob Howard of Michigan commented, “I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me… (Congressional Globe 1866, 2895)". This sentiment is also shown through a Senate floor debate regarding the Fourteenth Amendment where James Rood Doolittle of Wisconsin stated, “…all those wild Indians to be citizens of the United States, the Great Republic of the world, whose citizenship should be a title as proud as that of king, and whose danger is that you may degrade that citizenship (Congressional Globe 1866, 2892).” (McCool 3) One of his other concerns was that because of the substantial number of Indians at the time, their numbers would be able to overwhelm the power of the white vote. As Doolittle argued, “there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States…the word “citizen,” if applied to them, would bring in all the Digger Indians of California”.

While not all Indians were granted citizenship at that time under a blanket law, there were some special considerations made to grant individual Indians citizenship. This in turn gave them the right of suffrage. For example, a treaty involving the United States and the Lakota people demonstrates this. In 1868 Article 6 of the Treaty of Fort Laramie stated that Indians could gain citizenship by "receiving a patent for land under the foregoing provisions… and be entitled to all the privileges and immunities of such citizens, and shall, at the same time retain all rights to benefits accruing to Indians under this treaty”. The advantage of this was that the Indians could become citizens yet still maintain their status and rights as Indians.

Even for signatory Indian Nations to the Fort Laramie Treaty, however, it was made clear though that just because a few Indians were citizens, it did not mean that they all in turn had the right to vote. In 1884, when John Elk, an Indian who lived in Omaha, Nebraska, attempted to register in local elections, he was refused a ballot. When he took the case to Supreme Court and through the Elk v. Wilkins trial, he was ruled against under the circumstances that Indians did not fall under the Fourteenth Amendment. The Dawes Act in 1887 continued to pave the pathway for Indian citizenship in that members of certain Native American tribes who accepted an allotment of land was considered a citizen. The goal was for Indians to, through assimilation, "adopt the habits of civilized life". This movement certainly convinced a lot of Indians to gain citizenship. This is seen through President Theodore Roosevelt’s statement on the allotment policy in which he reported that by 1901, 60,000 Indians had already become citizens of the United States.

Piece by piece, more acts were created that added Indians to the citizenship rolls. When the Indian Territory (what is now Oklahoma) was abolished in 1907, all Indians who lived in that territory were made citizens through the Oklahoma Enabling Act.

Furthermore, after World War I, any Indian who had fought with honorable discharge was also considered a citizen through the Act of November 6, 1919. As Native Vote states, “The underlying assumption of this act was that these particular Indians had demonstrated that they had become part of the larger Anglo culture and were no longer wholly Indian”.

By the early 1920s, Congress was considering a bill to make the remainder of Native Americans citizens in their aim to have them “adopt Anglo culture”. This finally was stated with the Indian Citizenship Act which was created on June 24, 1924. This act showed progress in that Indians would not have to give up being an Indian to be a citizen of the United States. This included being an enrolled member of a tribe, living on a federally recognized reservation, or practicing his or her culture. However, this did not create the right to vote automatically.

There remained instances in many states that still prevented Indians from voting, even though they were citizens of the United States. For example, the attorney general of Colorado in 1936 declared that Indians could not vote because they were not citizens of the state. Similarly, states found ways around voting in other ways. Because the Fifteenth Amendment 1870 barred states from limiting voting on account of race, states found other ways – residency: claiming that Native Americans were not residents of the state if they resided on reservations, self-termination: one must first abandon their tribal ties in order to vote, taxation: Indians who do not need to pay taxes cannot vote, guardianship: the claim that Native Americans were incompetent and “wards of the state”, and on the lack of ability to read English (McCool 19)

With World War II and the need for more soldiers through the draft, Congress reaffirmed Native people’s citizenship with the Nationality Act of 1940. However, when some 25,000 veterans returned home after the war, they realized that even though they had put their lives on the line for their country, they were still not allowed to vote.

In 1965 the Voting Rights Act (VRA) put an end to individual states claims on whether or not Indians were allowed to vote through a federal law. Section 2 of the VRA states that, “No voting qualification or prerequisite to voting, or standard, practice, or procedure, shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color". Further sections describe the measures taken if violations to this act are discovered.

However, efforts by states and municipalities to disenfranchise American Indians are ongoing, such that there have been about 74 cases brought by or on behalf of Indians under the VRA or the Fourteenth or Fifteenth Amendment since 1965. These in the most part have proved to be successful to upholding the rights of Native Americans as citizens of the United States. Most of these cases are centered on states that have large reservations, or Indian populations, such as New Mexico, Arizona and Oklahoma.