Native American Citizenship

In the US Constitution that was ratified in 1788, "Indians not taxed" were not counted as citizens when determining a state's population for the number of seats in the US House of Representatives. In contrast, 3/5ths of the number of enslaved people were calculated for state representation.

The US Supreme Court ruled in the 1857 Dred Scott v. Sandford decision that Native Americans were qualified to become citizens. In that famous legal case, the court drew a key distinction between two non-white segments of American society in the 1850's. The justices ruled that nearly every black person, enslaved or not in 1857, was ineligible to become a citizen:¹

A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States.

Native Americans were treated differently, though they were viewed through the same lens of white supremacy (emphasis added):²

The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws.

Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments, as much so as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our Government.

It is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race; and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.

Because Native Americans were not citizens with the right to vote, they were excluded from the decennial census used to reapportion the numbers of members per state in the US House of Representatives, but were recorded in special Indian Schedules for the 1900 and 1910 censuses. They were also not eligible to be drafted by Virginia officials, even during the Civil War. Members of the Pamunkey tribe allied with the Union, and volunteered or were hired to serve as guides, boatmen, and spies.

The 14th Amendment in 1868 established birthright citizenship and clarified that blacks who had been born in the United States were automatically citizens. By both custom and court interpretations of various laws, Native Americans still were excluded from the political process and not counted in the cenus every 10 years because the 14th Amendment did not grant citizenship automatically to Native Americans.

Section 2 of the 14th Amendment still excluded "Indians not taxed" from being counted towards state representation in the US House of Representatives:³

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed...

Virginia was Military District #1 during Reconstruction after the Civil War, administered by US military officials who appointed the governor. The military decided that the Pamunkey living in King William County, as well as those living on their reservation (together with the Mattaponi at the time),

In 1870 the Senate Judiciary Committee said:⁴

...the 14th amendment to the Constitution has no effect whatever upon the status of the Indian tribes within the limits of the United States

"Indians not taxed" were excluded from birthright citizenship in the 14th Amendment
Source: National Archives, America's Founding Documents

When the Pamunkey asked for the state to provide a schoolteacher without subjecting the tribe to state taxes, the state government clarified the citizenship status of Native Americans under the 1870 state constitution:⁵

It is a mistake to suppose that when the present Constitution enfranchised the great body of people, without regard to race or color, it destroyed the distinctive character of the tributary Indians and merged them as citizens into the body of the Commonwealth... Such members of this race as have no less than one fourth of Indian blood are entitled under existing laws to hold the relation of tributaries to the Commonwealth. They still hold lands which are inalienable except as among themselves. They are exempt from taxation and the other burthens and duties, while they are debarred from any of the rights and privileges which belong to citizens of the State.

The 1887 Dawes Act created a path to citizenship. The law encouraged breaking up reservations, where land was communally held in trust by the US Government, into allotments where individuals had all property rights. Native Americans who accepted an allotment, which brought with it the responsibility to pay taxes and in theory the right to vote, became citizens.

There have never been Federal reservations for Native Americans within Virginia. All the land within the current boundaries of Virginia became part of the United States before the public domain was established, starting with Virginia's cession of the Northwest Territory to the Continental Congress in 1782. As a result, no acres in Virginia were ever "reserved" from disposal by the Federal government. Land ownership within reservations established by Virginia's colonial government were not affected by the 1887 Dawes Act.

Virginia treated Native Americans living on defined reservations as "wards of the state," comparable to young children and those who were mentally incompetent and unable to represent themselves in court. The Pamunkey and Mattaponi reservations have survived in part because they were represented in legal matters by trustees that were relatively responsible, in contrast to the demise of reservations once held by other tribes.

Trustees were initially chosen by the local county court. In 1799 the Pamunkey gained the right to make their own selection of trustees who would represent the tribe:⁶

They were White men, usually of some social standing, who acted as political advocates for the Pamunkey and served as mediators between the Indians and the larger society. Unlike some other guardians or overseers of Indian populations, the Pamunkey trustees appear to have assisted the group effectively in maintaining their land and their distinct status as Indians.

In 1917, after the United States entered World War I, the Pamunkey objected to plans by local draft boards to force tribal members into the US military. Because the Pamunkey were not citizens, they were not taxed and they could not vote - and based on the Civil War precedent, they could not be drafted. They chose to highlight their diminished status by objecting to being drafted to fight for a government in which they had no political voice or representation.

On August 25, 1917, Chief George Cook testified that:⁷

...the land and other property of said Pamunkey Tribe of Indians is not subject to taxation by the Commonwealth of Virginia; that said Pamunkey Tribe of Indians have always been wards of the Commonwealth of Virginia, and that the male members thereof have never been allowed to exercise the privilege of voting, and therefore affiant believes that they are not deemed and held citizens within the laws of this State and of the United States, and hence that the members of said Tribe are not properly subject to draft for military service in the present war.

After winning exemption from the draft, several Pamunkey - including Chief Cook's son - then enlisted as volunteers.⁸

Native Americans born in the United States were finally classified as US citizens after the US Congress passed the Indian Citizenship Act on June 2, 1924. At the time, 40% of Native Americans in the United States were still "Indians not taxed" and therefore not citizens. The language in the Indian Citizenship Act was succinct:⁹

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non-citizen 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.

With passage of the Dawes Act in 1887, Federal policy was to assimilate Native Americans into society and eliminate their unique status as "Indians not taxed." That created a conflict with the social agenda of Virginia's white leaders.

The same year the US Congress passed the Indian Citizenship Act, the Virginia General Assembly passed the Racial Integrity Act. Virginia's Jim Crow laws, passed after the Civil War, legalized segregation by race. A person's classification determined which schools they could attend, which bathrooms/water fountains they could use, and especially who they could marry and produce children. The laws were designed to segregate non-whites from having social interactions with whites, with everyone designated as either "White" or "Colored."

Walter Plecker, the State Registrar of Vital Statistics, led the implementation of the Racial Integrity Act. He tried to force local officials to classify everyone as either White or Colored, eliminating the designation as Indian whenever possible. By his interpretation of family histories and assessment of physical characteristics, all Native Americans in Virginia had at least "one drop" of African blood.

Plecker contended that members of the Pamunkey, Mattaponi, and the other tribes without state-designated reservations should be classified as Colored because miscegenation had corrupted their Native American gene pool. He sought to anyone with any percentage of African ancestry from "passing" as white, marrying into white society, and having children that would ultimately dilute the supposed purity of the white race.

using the 1924 Racial Integrity Act, the State Registrar of Vital Statistics sought to force Native Americans into second-class citizenship
Source: Library of Virginia, Walter Plecker Asserted that Virginia Indians No Longer Exist, December 1943

Whether designated as Indian or Colored, Native Americans in Virginia were citizens after 1924 - but their rights as citizens were limited by their racial classification. To vote they had to overcome laws designed to restrict the Virginia electorate, including the poll tax and various constraints on registration. Passage of the Civil Rights Act of 1965 by the US Congress did not immediately establish social or economic equality, but it did finally enable Native Americans in Virginia to vote.

The Federal government dropped its assimilation policy with passage of the Indian Reorganization Act of 1934 and recognized a level of Native American sovereignity on reservations established by Federal treaties and laws. The Bureau of Indian Affairs lacked funding, but was willing to assist individuals in Virginia with at least one-fourth Native American blood.¹⁰

Acknowledging Native American individuals as citizens did not automatically lead to acknowledging tribes as a form of government. Formal recognition of tribes by Virginia's state government began in 1983. Federal recognition began in 2018.

Federal Recognition of Native American Tribes in Virginia

State Recognition of Native American Tribes in Virginia

the Pamunkey got confirmation in 1917 that they were exempt from the military draft
Source: Virginia Chronicle, Richmond Times-Dispatch (21 August 1917)

Links

• Indian Land Tenure Foundation
• Land Tenure History
• National Archives
• American Indian and Alaska Native Records in the National Archives
• Native American Constitution and Law Digitization Project
• US Bureau of Indian Affairs
• Frequently Asked Questions
• US Congress
• Fourteenth Amendment: Equal Protection and Other Rights
• US Department of Justice
• Frequently Asked Questions about Native Americans
• Virginia Foundation for the Humanities
• Virginia Indian Heritage Trail
• Virginia Secretary of the Commonwealth
• Virginia Indians

References