Tuesday, June 15, 2021

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C. The Citizenship Act of 1924

By 1924, there were a number of ways by which an Indian could become a citizen: through a treaty provision; through the granting of an allotment; through issuance of a patent in fee simple by the Secretary; by “adopting the habits of civilized life”; by minor status; by birth; through service in the American military upon judicial application, by marriage, and pursuant to specific acts of Congress. As a result, at the time the Citizenship Act was passed, most Indians already were citizens and only 125,000 Indians, or about one-third of the total American Indian population at the time, were not.

This perceived deficiency was remedied when the Congress enacted the Indian Citizenship Act in 1924. This legislation was notably different from previous efforts to confer American citizenship upon Indians in that consent or any other precondition was not required. Nonetheless, the Congress clearly sought to preserve the status of Indians as Indians by explicitly providing that tribal rights would not be affected by the grant of American citizenship. The Act stated:

That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

There was little debate and discussion of this legislation in Congress. The House Report accompanying the legislation stated only that it was “very difficult for an Indian to obtain citizenship without either being allotted and getting a patent in fee simple, or leaving the reservation and taking up his residence apart from any tribe of Indians.” The proposed legislation was designed to “bridge the present gap” and not make citizenship contingent upon “the question of land tenure or the place of his residence.” The Senate echoed this theme, arguing that “as a large number of other Indians had become citizens under various acts of Congress, it was only just and fair that all Indians be declared citizens.”

Interestingly, it appears that the 1924 Act was not passed out of a direct desire to further Indian assimilation, but rather to prevent the Interior Department from having greater authority over Indian affairs. Early drafts of the citizenship legislation would have allowed the Secretary to grant certificates of citizenship to Indians, which would have given the government great discretionary power over whether an Indian could become a citizen. The Progressives on the Senate Committee on Indian Affairs (including 1924 Progressive presidential candidate Robert M. LaFollette) opposed this approach. They redrafted the bill to eliminate the government's discretion by providing a blanket grant of citizenship “to strike a blow at big bureaucracy in the way earlier Progressive legislation had struck at big business.” Because of this motivation, the Citizenship Act of 1924 has been characterized as not “a piece of social legislation” but rather as “regulatory in nature.”

While the final move in the effort to grant Indian citizenship may have been driven by broader political concerns, it remains true that the social reformers and the government's Allotment Policy of the late nineteenth century had already cast the die on the question of whether Indians should become citizens. When the Act was being considered, there was some debate within American society over the issue. Some reformers thought that citizenship would not serve either American or Indian interests. Others strongly supported and reaffirmed their longstanding commitment to granting citizenship to the Indians. But on the whole, the reformers agreed to enactment of citizenship legislation so long as there was specific protection for Indian tribal and property rights upon their release from federal wardship. The officials who ultimately pushed through the citizenship legislation, however, made no issue of whether granting citizenship was the right thing to do or not. Granting citizenship was so obviously just that there was no meaningful opposition to the legislation and it received very little public attention. The Indian Rights Association, not surprisingly, hailed it as “the advent of the Indian as our equals before the law.”

As a general matter, Indians had a mixed reaction to the conferral of American citizenship. Since the late nineteenth century, there had always been Indians who thought that it was extremely important to become American citizens. Most of these proponents were either mixed-bloods or those who had been raised in the boarding schools and thus conditioned to accept relinquishment of their tribal status. One such organization promoting the citizenship effort was the Society of American Indians. Most of the SAI members had been educated at the Carlisle School, and included such prominent figures as Henry Roe Cloud, J.N.B. Hewitt, Francis LaFlesche, Carlos Montezuma, and Arthur Parker. They were “well-educated and had achieved success in their chosen professions” and thus “espoused a national philosophy and platform that was modeled after their own personal history.”

Most Indians, however, had long resisted the efforts to confer citizenship upon them and continued to think of themselves only as members of their Indigenous nation. In 1877, when the Congress was considering the Ingalls bill to allow the naturalization of all Indians, considerable opposition to the legislation was stated by the Choctaw and the Chickasaw. These nations were concerned about their land and treaty rights because the legislation explicitly protected an individual's claim to such rights despite having lost, as a matter of tribal law, their tribal citizenship by virtue of choosing to become an American.

This sentiment was echoed by the Seminole and Creek Nations who were concerned that their treaties would be abrogated by the passage of the bill. Moreover, aside from the potential impact on their treaty rights, they were still opposed to the bill due to the internal conflict it would create within their nations: “the presence among Indians of those of their own blood who have thrown off their allegiance and claimed the protection of an outside power, could not be other than a fruitful cause of discord à.” Foremost, these nations were concerned about the bill's influence on their future existence: “if all the Creeks and Seminoles were to become citizens, the Creek Nation and the Seminole Nation would cease to exist and their national domain would revert to the United States.” While this proposed legislation suggested that the United States was becoming more open to the idea of treating Indians as citizens, it was clear that at least some Indian nations were not.

Similar sentiments were expressed as Congress continued with its efforts to grant citizenship to Indians into the twentieth century. Thus, even though Congress in 1919 had authorized Indian veterans to become citizens upon judicial application “few Indians refused to turn their backs on their heritage or go through the demeaning process of being declared æcompetentÆ.”

Perhaps the most aggressive resistance taken against the Citizenship Act was put up by the Haudenosaunee, or Six Nations Iroquois Confederacy. Shortly after the Act was passed, the Grand Council of the Confederacy “sent letters to the president and Congress of the United States respectfully declining United States citizenship, rejecting dual citizenship, and stating that the act was written and passed without their knowledge or consent.”

Even though many Haudenosaunee willingly participated in World War II, others held the view that their citizenship in the Confederacy precluded the authority of the United States to draft them. Many were arrested and prosecuted as draft evaders. The Six Nations Grand Council rejected the authority of the United States to draft its members stating that first, Haudenosaunee were separate nations; second, their treaties with the United States forbade either nation from drafting the members of the other; and third, Haudenosaunee people could not be drafted under tribal law.”

In 1941, the Confederacy challenged the legality of granting citizenship to its members when it brought Ex Parte Green, an action challenging the Selective Service Act of 1940 authorizing the conscription of citizen Indians into the American armed forces. The court reached its conclusion “reluctantly” and “taxed [its] ingenuity in vain to find any interpretation which would result in a decision in [Green's] favor,” but it upheld the applicability of the Selective Service Act on the grounds that acts of Congress supersede treaty provisions.

Despite the Haudenosaunee failure to strike down the Citizenship Act in these cases, their action highlights the fact that many Indigenous people actively resisted the extension of American citizenship and its assimilating effect. On this whole saga, Tuscarora Chief Clinton Rickard remarked that

The Citizenship Act did pass in 1924 despite our strong opposition. By its provisions all Indians were automatically made United States citizens whether they wanted to be or not. This was a violation of our sovereignty. Our citizenship was in our own nations. We had a great attachment to our style of government. We wished to remain treaty Indians and reserve our ancient rights. There was no great rush among my people to go out and vote in the white man's elections. Anyone who did so denied the privilege of becoming a chief or a clan mother in our nation.

 

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