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166 immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. This view is confirmed by the second section of the Fourteenth Amendment, which provides that “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.” Slavery having been abolished , and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original Constitution as counted only three-fifths of such persons. But Indians not taxed are still excluded from the count, for the reason that they are not citizens. Their absolute exclusion from the basis of representation, in which all other persons are now included, is wholly inconsistent with their being considered citizens. . . . The plaintiff, not being a citizen of the United States under the Fourteenth Amendment of the Constitution, has been deprived of no right secured by the Fifteenth Amendment , and cannot maintain this action. [112 U.S. Reports, 98–99, 102, 109.] 101. Major Crimes Act March 3, 1885 To prevent a recurrence of cases like the murder of Spotted Tail by Crow Dog, in which the murderer was freed because the federal courts had no jurisdiction over crimes committed by one Indian against another within the Indian country, Congress declared that seven major crimes committed by Indians on the reservations would fall under the jurisdiction of United States courts. This was a major encroachment upon traditional tribal autonomy. An Act making appropriations for the current and contingent expenses of the Indian Department . . . . . . . . Sec. 9. That immediately upon and after the date of the passage of this act all Indians, committing against the person or property of another Indian or other person any of the following crimes, namely, murder , manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person within the boundaries of any StateoftheUnitedStates,andwithinthelimits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States. [U.S. Statutes at Large, 23:385.] 102. United States v. Kagama May 10, 1886 The constitutionality of the Major Crimes Act (section 9 of the act of March 3, 1885) was tested in 1886 in a case involving two Indians who committed murder on the Hoopa Valley Indian Reservation in California. The Supreme Court upheld the law. 167 . . . . The case of Crow Dog, 109 U.S. 556, in which an agreement with the Sioux Indians, ratified by an act of Congress, was supposed to extend over them the laws of the United States and the jurisdiction of its courts, covering murder and other grave crimes, shows the purpose of Congress in this new departure. The decision in that case admits that if the intention of Congress had been to punish, by the United States courts, the murder of one Indian by another, the law would have been valid. But the court could not see, in the agreement with the Indians sanctioned by Congress, a purpose to repeal § 2146 of the Revised Statutes, which expressly excludes from that jurisdiction the case of a crime committed by one Indian against another in the Indian country. The passage of the act now under consideration was designed to remove that objection, and to go further by including...


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