''Elk v. Wilkins'', 112 U.S. 94 (1884), was a

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

landmark 1884 decision respecting the

citizenship Citizenship is a "relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its protection". Each state determines the conditions under which it will recognize persons as its citizens, and ...

status of Indians. John Elk, a Winnebago

Indian Indian or Indians may refer to: Peoples South Asia * Indian people, people of Indian nationality, or people who have an Indian ancestor ** Non-resident Indian, a citizen of India who has temporarily emigrated to another country * South Asia ...

, was born on an

Indian reservation An Indian reservation is an area of land held and governed by a federally recognized Native American tribal nation whose government is accountable to the United States Bureau of Indian Affairs and not to the state government in which it ...

within the territorial bounds of United States. He later resided off-reservation in

Omaha, Nebraska Omaha ( ) is the largest city in the U.S. state of Nebraska and the county seat of Douglas County. Omaha is in the Midwestern United States on the Missouri River, about north of the mouth of the Platte River. The nation's 39th-largest ...

, where he renounced his former tribal allegiance and claimed

birthright citizenship ''Jus soli'' ( , , ; meaning "right of soil"), commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was part of the English common law, in contras ...

by virtue of the

Citizenship Clause The Citizenship Clause is the first sentence of the Fourteenth Amendment to the United States Constitution, which was adopted on July 9, 1868, which states: This clause reversed a portion of the ''Dred Scott v. Sandford'' decision, which had d ...

of the Fourteenth Amendment. 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 Ward may refer to: Division or unit * Hospital ward, a hospital division, floor, or room set aside for a particular class or group of patients, for example the psychiatric ward * Prison ward, a division of a penal institution such as a pris ...

of the City of Omaha. In a 7–2 decision, the Supreme Court ruled that even though Elk was born in the United States, he was not a citizen because he owed allegiance to his tribe when he was born rather than to the United States, and therefore was not subject to the jurisdiction of the United States when he was born. The

United States Congress The United States Congress is the legislature of the federal government of the United States. It is Bicameralism, bicameral, composed of a lower body, the United States House of Representatives, House of Representatives, and an upper body, ...

later enacted the

Indian Citizenship Act The Indian Citizenship Act of 1924, (, enacted June 2, 1924) was an Act of the United States Congress that granted US citizenship to the indigenous peoples of the United States. While the Fourteenth Amendment to the United States Constitutio ...

of 1924, which established citizenship for Indians previously excluded by the Constitution. Though rendered undebatable for its application to native Indians by this law, the majority opinion offered by the Court in this case remains valid for interpretation of future citizenship issues regarding the 14th Amendment.

Background

The question then was whether an

born a member of one of the Indian tribes within the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

is, merely by reason of their birth within the United States and of their afterward voluntarily separating themself from the tribe and taking up residence among

white White is the lightest color and is achromatic (having no hue). It is the color of objects such as snow, chalk, and milk, and is the opposite of black. White objects fully reflect and scatter all the visible wavelengths of light. White ...

citizens, a citizen of the United States within the meaning of the first section of the Fourteenth Amendment of the

Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these pr ...

. Under the Constitution,

Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...

had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, 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 dealt with through treaties and acts of Congress.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 . The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States.

Decision

Even though Elk was born within the territorial jurisdiction of the United States, he was born as a subject of an Indian nation, and thus could not meet the allegiance test of the jurisdictional phrase because he "owed immediate allegiance to" his tribe, a vassal or quasi-nation, 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."

Subsequent legislation

The exclusion of Native Americans from citizenship was eventually eliminated by the

Indian Citizenship Act of 1924 The Indian Citizenship Act of 1924, (, enacted June 2, 1924) was an Act of the United States Congress that granted US citizenship to the indigenous peoples of the United States. While the Fourteenth Amendment to the United States Constitution ...

. At the time, two thirds of Native Americans had already achieved citizenship."Indian Affairs: Laws and Treaties", Compiled and edited by Charles Kappler, Vol. IV Laws (1927), Washington: Government Printing Office, available at

References

External links

* * {{Native American rights, state=expanded United States Supreme Court cases 1884 in United States case law United States Citizenship Clause case law United States Native American case law History of Omaha, Nebraska History of voting rights in the United States Ho-Chunk United States Supreme Court cases of the Waite Court 1880 Nebraska elections Race and law in the United States Native American history of Nebraska

Background

Decision

Subsequent legislation

See also

References

Further reading

External links