The Congressional Globe: Containing the Debates and Proceedings of the First Session of the Thirty-Ninth Congress Page: 2,893

                                
1866.
THE CONGRESSIONAL GLOBE.
title as proud as that of king, and whose danger
is that you may degrade that citizenship.
Mr. President, citizenship, if conferred, car-
ries with it, as a matter of course, the rights,
the responsibilities, the duties, the immunities,
the privileges of citizens, for that is the very
object of this constitutional amendment to
extend. I do not intend to address the Sen-
ate at length on this question now. I have
simply raised the question. I think that it
would be exceedingly unwise not to adopt this
amendment and to put in the Constitution of
the United States the broad language proposed.
Our fathers certainly did not act in this way,
for in the Constitution as they adopted it they
excluded the Indians who are not taxed; did
not enumerate them, indeed, as a part of the
population upon which they based representa-
tion and taxation; much less did they make
them citizens of the United States.
Mr. President, before the subject of the con-
stitutional amendment passes entirely from the
Senate, I may desire to avail myself of the
opportunity to address the body more at length;
but now I simply dircct what I have to say to
the precise point contained in the amendment
which I have submitted.
Mr. FESSENDEN. I rise not to make any
remarks on this question, but to say that if
there is any reason to doubt that this provision
does not cover all the wild Indians, it is a seri-
ous doubt; and I should like to hear the opin-
ion of the chairman of the Committee on the
Judiciary, who has investigated the civil rights
bill so thoroughly, on the subject, or any other
gentleman who has looked at it. I had the
impression that it would not cover them.
  Mr. TRUMBULL. Of course my opinion
is not any better than that of any other member
of the Senate ; but it is very clear to me that
there is nothing whatever in the suggestions
of the Senator from Wisconsin. The provision
is, that "all persons born in the United States,
and subject to the jurisdiction thereof, are cit-
izens." That means " subject to the complete
jurisdiction thereof.'' Now, does the Senator
from Wisconsin pretend to say that the Nava-
joc Indians are subject to the complete juris-
diction of the United States? What do we
mean by "subject to the jurisdiction of the
United States?'' Not owing allegiance to any-
body else. That is what it means. Can you
sue a Navajoe Indian in court? Are the}' in
any sense subject to the complete jurisdiction
of the United States? By no means. We make
treaties with them, and therefore they are not
subject to our jurisdiction. If they were, wo
would not make treaties with them. If we want
to control the Navajoes, or any other Indians
of which the Senator from Wisconsin has
spoken, how do we do it? Do we pass a law
to control them? Are they subject to our juris-
diction in that sense? Is it not understood
that if we want to make arrangements with the
Indians to whom he refers we do it by means
of a treaty ? The Senator himself has brought
before us a great many treaties this session in
order to get control of those people.
If you introduce the words "not taxed,"
that is a very indefinite expression. What does
"excluding Indians not taxed'' mean? You
will have just as much difficulty in regard to
those Indians that you say are in Colorado,
where there are more Indians than there are
whites. Suppose they have property there, and
it is taxed ; then they are citizens.
Mr. WADE. And ought to be.
Mr. TRUMBULL. The Senator from Ohio
says they ought to be. If they are there and
within the jurisdiction of Colorado, and subject
to the laws of Colorado, they ought to be citizens;
and that is all that is proposed. It cannot be
said of any Indian who owes allegiance, partial
allegiance if you please, to some other Govern-
ment that he is " subject to the jurisdiction of
the United States." Would the Senator from
Wisconsin think for a moment of bringing a
bill into Congress to subject these wild Indians
with whom we have no treaty to the laws and
regulations of civilized life ? ^ ould he think
of punishing them for instituting among them-
selves their own tribal regulations? Does the
Government of the United States pretend to
take jurisdiction of murders and robberies and
other crimes committed by one Indian upon
another? -Are they subject to our jurisdiction
in any just sense ? They are not subject to our
jurisdiction. We do not exercise jurisdiction
over them. It is only those persons who come
completely within our jurisdiction, who are sub-
ject to our laws, that we think of making citi-
zens ; and there can be no objection to the
proposition that such persons should be citi-
zens.
It seems to me, sir, that to introduce the
words suggested by the Senator from Wisconsin
would not make the proposition any clearer
than it is, and that it by no means embraces,
or by any fair construction—by any construc-
tion, I m ay say—could embrace the wild Indians
of the plains or any with whom we have treaty
relations, for the very fact that we have treaty
relations with them shows that they are not
subject to our jurisdiction. We cannot make
a treaty with ourselves; it would be absurd.
I think that the proposition is clear and safe as
it is.
Mr. JOHNSON. Mr. President, the partic-
ular question before the Senate is whether the
amendment proposed by the Senator from
Wisconsin shall be adopted. But while I am
up, and before I proceed to consider the neces-
sity for that amendment, T will say a word or
two upon the proposition itself; I mean that
pg,rt of section one which is recommended as
an amendment to the old proposition as it
originally stood.
The Senate are not to be informed that very
serious questions have arisen, and some ofthem
have given rise to embarrassments, as to who
are citizens of the United States, and what are
the rights which belong to them as such ; and
the object of this amendment is to settle that
question. I think, therefore, with the commit-
tee to whom the matter was referred, and by
whom the report has been made, that it is very
advisable in some form or other to define what
citizenship is; and I know no better way of
accomplishing that than the way adopted by
the committee. The Constitution as it now
stands recognizes a citizenship of the United
States. It provides that no person shall be
eligible to the Presidency of the United States
except a natural-born citizen of the United
States or one who was in the United States at
the time of the adoption of the Constitution ;
it provides that no person shall be eligible to
the office of Senator who has not been a citizen
of the United States for nine years ; but there
is no definition in the Constitution as it now
stands as to citizenship. Who is a citizen of
the United Stales is an open question. The
decision of the courts and the doctrine of the
commentators is, that every man who is a citi-
zen of a State becomes ipso facto a citizen of
the United States ; but there is no definition
as to how citizenship can exist in the United
States except through the medium of a citizen-
ship in a State.
Now, all that this amendment provides is,
that all persons born in the United States and
not subject to some foreign Power—for that,
no doubt, is the meaning of the committee who
have brought the matter before us—shall be
considered as citizens of the United States.
That would seem to be not only a wise but a
necessary provision. If there are to be citi-
zens of the United States entitled every-
where to the character of citizens of the United
States there should be some certain definition
of what citizenship is, what has created the
character of citizen as between himself and
the United States, and the amendment says
that citizenship may depend upon birth, and I
know of no better way to give rise to citizen-
ship than the fact of birth within the territory
of the United States, born of parents who at
the time were subject to the authority of the
United States. I am, however, by no means
prepared to say, as I lhink_ I have intimated
before, that being born within the^ United
States, independent of any new constitutional
provision on the subject, creates the relation
of citizen to the United States.
The amendment proposed by my friend from
Wisconsin I think, and I submit it to the Sen-
ate, should be adopted. The honorable mem-
ber from Illinois seemstothinkitunnecessary,
because, according to his interpretation of the
amendment as it stands, it excludes those who
are proposed to be excluded by the amendment
of the Senator from Wisconsin, and he thinks
that that is done by saying that those only who
are born in the United States are to become
citizens thereof, who at the time of birth are
" subject to the jurisdiction thereof," and he
supposes and states very positively that the
Indians are not subject to the jurisdiction of
the United States. With due deference to my
friend from Illinois, I think he is in error.
They are within the territorial limits of the
United States. If they were not, the provision
would be altogether inapplicable to them. In
one sense, therefore, they arc a part of the peo-
ple of the United States, and independent of
the manner in which we have been dealing with
them it would seem to follow necessarily that
they are subject to the jurisdiction of the Uni-
ted States, as is anybody else who may be born
within the limits of the United States. But
when the United States to&k possession—Eng-
land for us in the beginning, and our limits
have been extended since—of the territory
which was originally peopled exclusively by
the Indians, we found it necessary to recognize
some kind of a national existence on the part
of the aboriginal settlers of the United States ;
but we were under no obligation to do so, and
we are under no constitutional obligation to do
so now, for although we have been in the habit
of making treaties with these several tribes, we
have also, from time to time, legislated in re-
lation to the Indian tribes. We punish mur-
der committed within the territorial limits in
which the tribes are to be found. I think we
punish the crime of murder committed by one
Indian upon another Indian. I think my friend
from Illinois is wrong in supposing that that is
not done.
Mr. TliUMBULL. Not except where it is
done under special provision—not with the wild
Indians of the plains.
Mr. JOHNSON. By special provision of
legislation. That I understand. I am refer-
ring to that.
Mr. TRUMBULL. We propose to make
citizens of those brought under our jurisdic-
tion in that way. Nobody objects to that, I
reckon.
Mr. JOHNSON. Yes, I do. I am not ob-
jecting at all to their being citizens now; what
I mean to say, is that overall the Indian tribes
within the limits of the United States, the Uni-
ted States may—that is the test—exercise juris-
diction. Whether they exercise it in point of fact
is another question; whether they propose to
govern them under the treaty-making power is
quite another question ; but the question as to
the authority to legislate is one. I think, about
which, if we were to exercise it, the courts
would have no doubt; and when, therefore,
the courts come to consider the meaning of this
provision, that all persons born within the lim-
its of the United States and subject to the juris-
diction thereof are citizens, and are called upon
to decide whether Indians born within the C til-
led States, with whom we are now making trea-
ties are citizens. I think they will decide that they
haye become citizens by virtue of this amend-
ment. But at any rate, without expressing any
decided opinion to that effect, as I would not
do when the honorable member from Illinois
is so decided in the opposite opinion, when the
honorable memberfrom Wisconsin, to say noth-
ing of myself, entertains a reasonable doubt
that Indians would be embraced within the
provision, what possible harm can there be in
guarding against it? It does not affect the
constitutional amendment in any way. That
is not my purpose, and I presume is not the
purpose of my friend from Wisconsin.
The honorable member from Illinois says
that the terms which the member from Wis-