Hidden Citizens: The Courts and Native American Voting Rights in the Southwest

The Indian Citizenship Act of 1924 was a landmark piece of legislation, finally recognizing the importance and contributions of Native Americans to the fabric of the United States. But the act did not do all that it could have. Even after its passage, a number of states continued to block Native Americans from voting. This was most apparent in the Southwest, where Arizona, New Mexico, and Utah all used different means to deny many Indians the ballot. Only through consistent activism and legal action did Native Americans succeed in breaking down these egregious barriers to voting in the Southwest. These victories were important, if often overlooked, events in the civil rights movement.

Attorney and civil rights activist Jeanette Wolfley notes in her article “Jim Crow, Indian Style: The Disenfranchisement of Native Americans”: “Indeed, the history of Indian disenfranchisement reflects a panoply of shifting majority attitudes, policies, and laws toward Indians.” This panoply began with John Marshall. The two landmark cases from the Marshall court, Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), established the legal relationship between Native Americans and both federal and state governments. The precedents from these decisions had wide-ranging implications for the legal standing of Native Americans for more than a century, not least including the right to vote. In Cherokee Nation v. Georgia, the chief justice wrote:

Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.

They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.¹

Having established that Native Americans were unable to manage their own affairs, the following year Marshall declared that only the federal government could exercise authority on lands reserved to Indians. The issue at hand was a Georgia law requiring all whites to obtain licenses from the state to live on Indian lands. Several missionaries, including Samuel Worcester, refused and received prison sentences. The convicted men appealed to the Supreme Court, claiming that the state had no authority over Native American affairs. In vacating the convictions, Marshall wrote,

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States….

They [Georgia officials] interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, is committed exclusively to the government of the union.²

Wolfley states that Marshall’s decision that tribes were sovereign entities “has since raised questions of dual citizenship, wardship and competency.”³ In the years to come some states used Marshall’s argument that Native Americans were “wards” to deny them the franchise. In other cases, states claimed that since state law had no authority on reservations, Indians were not residents of that state and could not vote.

When Utah became a state in 1896, the legislature passed a law laying out the requirements for residency. Among other provisions, the statute stipulated that, “Any person living upon any Indian...