American Indians and State Law: Sovereignty, Race, and Citizenship, 1790-1880

Chapter 6. State Citizenship by Legislative Action

155 Chapter Six State Citizenship by Legislative Action  During the early national and antebellum periods, while the states regulated many Indians within their boundaries and quietly absorbed some individual Native Americans into their communities, they generally refrained from declaring all Indians to be citizens. This situation changed in many Northern states in the 1860s, with New England states leading the way. On the eve of the Civil War, New Englanders were concerned about protecting their prerogative to determine residents’ citizenship status. Their assertion of their right to include free blacks as citizens in the late 1850s paved the way for legislation declaring resident Indians to be state citizens in the 1860s and 1870s. As a case study of legislative debates in Massachusetts shows, however, states’ motivations for granting Indian citizenship, and Indians’reasons for supporting or opposing citizenship, were multifaceted. Defense of state authority and assertion of equal rights were not the only factors prompting states to make Indians citizens, and Indians were not primarily focused on demanding rights. Economics and gender also played an important role for both state legislators and Indians in debates over Indian citizenship. Finally, while many Indians were concerned about preserving their corporate identity, cultural values, and communal land base, the states’rationales for Indian citizenship included the desire to assimilate them and their land into the mainstream American culture, society, and economy. federalism and the ideology of citizenship During the early years of American independence, individual states established naturalization procedures. Although in 1789 the U.S. Constitution granted Congress the power to establish a “uniform Rule of naturalization ,” it was initially unclear whether this was a grant of exclusive con- State Citizenship by Legislative Action 156 trol over naturalization, and most states asserted a concurrent power to naturalize foreigners even after passage of the first federal statute on the subject in 1790. Five years later, Congress, in providing that naturalization could take place under conditions described in a new law “and not otherwise ,” more forcefully asserted federal control over naturalization, but not until 1817 did the U.S. Supreme Court firmly articulate the principle of exclusive federal government authority over the subject. A later Court decision upheld the federal government’s collective conferring of U.S. citizenship on inhabitants of territories acquired by conquest or treaties. Left unsettled during the early national period was whether states could still confer “state citizenship” on foreigners and whether native-born individuals could be denied the rights of citizenship.1 Southern Jeffersonian Republicans of the early Republic and Southern Democrats of the Jacksonian era tended to oppose nationalist policies, including an exclusive national conception of citizenship, while they aggressively defended states’ rights, including a notion of state-centered citizenship. Conceiving of the United States as a “white man’s republic,” they tended to favor gentle citizenship requirements for white immigrants and almost insuperable barriers to citizenship for nonwhites. Allowing the states to retain some control over citizenship would permit southern politicians to deny birthright citizenship to residents from certain racial groups. Although southern whites were most concerned about excluding essential laborers of African descent from the political community, they were also very aware of the many Indians living within their state boundaries. By the Jacksonian era, southerners were committed to pressuring Native peoples to leave the region altogether. Federalists and then Whigs, who dominated in the Northeast, advocated a stronger federal government and took a more nationalistic view of citizenship. Convinced that Americanism was epitomized by the special intrinsic qualities of the American-born Protestant Anglo-Saxon, these northern-based parties advocated restrictive naturalization policies but came to be more open to egalitarian reform movements that promoted abolitionism and women’s rights. In the Jacksonian period, although there were removal projects focused on Indians north of the Ohio River, many New Englanders protested Cherokee removal in the Southeast,manyWhigs argued that eastern Indians could be “civilized” and then included in the political community, and old Federalist John Marshall issued a Supreme Court decision recognizing a degree of tribal sovereignty.2 For Indians, the outcome of southern civic ideology was removal from State Citizenship by Legislative Action 157 the Southeast to lands west of the Mississippi River,as discussed in chapters 1 and 4. In the wake of legislation extending state authority over Indians within state boundaries and establishing conditions making it difficult for Indians to remain in the Southeast, southern states allowed citizenship to a...