American Indian Heritage Month: Commemoration vs. Exploitation
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Elk v. Wilkins

The U.S. Supreme Court held in Elk v. Wilkins (112 U.S. 94 [1884]) that the Fourteenth Amendment to the U.S. Constitution does not confer citizenship on Indian people. This position held even if the individual lives in an urban area, apart from his or her nation or band. The court also ruled that acts of Congress do not generally apply to Indians unless they are specifically mentioned. Ironically, this ruling was handed down three years before the Allotment Act (1887) bestowed U.S. citizenship on Native Americans who gave up their title to communal lands in exchange for individual plots.

At issue was the constitutional status of American Indians for purposes of citizenship and voting. The Fourteenth Amendment granted citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction of the United States." Did American Indians fall under this definition? A federal district court ruled that it did not apply to Indians who had not been "born subject to its jurisdiction—that is, in its power and obedience" (McKay v. Campbell 16 Fed. Cas. 161 [1871] [No. 8840]).

John Elk had been born on a reservation outside U.S. jurisdiction, but moved to Omaha as an adult and lived what the court described as a "civilized" life. He sought to become a citizen and exercise the right to vote in Omaha elections during 1880.

The Supreme Court ruled that the Fifteenth Amendment (which grants the right to vote to all persons regardless of race) did not apply in Elk's case, because he was not born in an area under U.S. jurisdiction. Therefore, Elk was not a citizen within the meaning of the Fourteenth Amendment. The fact that Elk had abandoned his Indian relatives and life-ways did not matter to the court. Elk's citizenship and voting rights were denied because the court held that an affirmative act was required of the United States before an Indian could become a citizen. The Supreme Court's opinion cited a dozen treaties, four court rulings, four laws, and eight opinions of the U.S. Attorney General requiring "proof of fitness for civilization" as a precondition of granting Indians citizenship and voting rights.

Six years after John Elk's request for citizenship was denied, Congress passed the Indian Territory Naturalization Act (26 Stat. 81, 99-100), which allowed any Indian living in Indian Territory to apply for citizenship through the federal courts. The aim of this Act was to break down communal loyalties among Native Americans in Indian Territory as it moved toward statehood as Oklahoma.

The Standing Rock Sioux scholar Vine Deloria, Jr., commenting on Elk v. Wilkins, noted that, while federal courts were busy maintaining the plenary power of Congress over Indians and classifying Indian tribes as wards of the federal government, as well as denying an international dimension to Indian political existence, individual Indians seeking to exercise their constitutional rights were being told that they were, in effect, no more than the children of (foreign) subjects.

The ruling is notable more for historical irony than for having any substantial effect as a legal precedent. In addition to contradicting the Allotment Act's selective award of citizenship later in the same decade, this ruling was effectively annulled by the general grant of U.S. citizenship to Native Americans by an act of Congress in 1924.

Bruce E. Johansen

Further Reading
Deloria, Vine, Jr., 1985. Behind the Trail of Broken Treaties: An Indian Declaration of Independence. Austin: University of Texas Press.; Johansen, Bruce E., ed. 1998. The Encyclopedia of Native American Legal Tradition. Westport, CT: Greenwood Press.

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