This Day in Supreme Court History—November 3, 1884

On this day in 1884 the Supreme Court held in John Elk v. Charles Wilkins that a Native American born in the United States could be denied the right to vote.

In 1880, John Elk, a Winnebago Indian, tried to register to vote in Omaha, Nebraska. Charles Wilkins, the local registrar of voters, denied his application. Elk brought suit against Wilkins, arguing that (a) he was a citizen under the Fourteenth Amendment, because he had been born in the United states and had renounced his allegiance to his tribe; and (b) as a citizen, the Fifteenth Amendment guaranteed him the right to vote.

On Nov. 3, 1884, in a 7-2 decision, the Supreme Court ruled  against Elk. “The question,” wrote Justice Horace Gray for the Court, “is whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States within the meaning of the first section of the Fourteenth Amendment of the Constitution.” Gray conclude the answer to this question was no. Under the original Constitution, tribal members “owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian.” The only way a member of an Indian tribe could become a citizen of the United States was through the naturalization process. And the passage of the Fourteenth Amendment, Gray concluded, did nothing to change this.

The national legislation has tended more and more toward the education and civilization of the Indians, and fitting them to be citizens. But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself.

Justice John Marshall Harlan wrote a dissent that concluded with the kind of ringing racial egalitarian rhetoric that made him famous as the “Great Dissenter” of his era:

If [Elk] did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the states, subject to the complete jurisdiction of the United States, then the Fourteenth Amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it, and there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.

It would not be until 1924 that Congress extended citizenship to all Native Americans born in the United States.

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