One hundred years after American Indians became U.S. citizens, the nature of that citizenship and its relationship to tribal sovereignty is still evolving.

Few people today understand the long, complex, and convoluted history of American Indian citizenship and tribal sovereignty. Even today, an Indian’s citizenship is unlike that of any other American’s.  While an Indian has all the rights and privileges of citizenship, he also has special rights and privileges as a member of a particular tribe.  This has become evident to most Americans because of the proliferation of Indian casinos in states where gambling is otherwise prohibited or because of the availability of cheap gasoline at reservation filling stations due to tribal exemptions from taxation.  

These special rights and privileges manifest themselves in many other ways, however. Environmentalists especially, but also Americans in general, were shocked when the Makah Indians went hunting gray whales in 1999.

The 1,500 or so Makah live on a 47-square-mile reservation on the northwestern tip of Washington state at the entrance to the Strait of Juan de Fuca—an ideal location from which to intercept gray whales on the way from their winter breeding lagoons in Baja, California, to their summer feeding waters in the Gulf of Alaska. With long canoes and harpoons, the Makah had been hunting gray whales for hundreds of years when dwindling numbers of the great beasts ended their hunts in the early 1920s. Then, in 1936, the United States agreed to an international treaty prohibiting the hunting of gray whales until their numbers increased to a level that would ensure their survival.

By 1994, gray whale numbers had risen significantly, and the U.S. government allowed members of the Makah tribe—but not other American citizens—to hunt the whale once again. This was all in keeping with Article 4 of the 1855 Treaty of Neah Bay, which guaranteed the Makah “right of taking fish and of whaling or sealing at usual and accustomed grounds and stations.” There were some legal delays, particularly because of the international treaty, but finally in May of 1999 all was set for a hunt.

There had been publicity photos of a group of Makah men stripped to the waist paddling a traditional canoe with harpoons at their sides. A spokesman for the tribe described their physical and spiritual training for the hunt, the first for the tribe since 1922.  Into the water went seven hunters in a 32-foot-long cedar canoe. Heavily bundled in protective clothing and gear, they paddled but a short distance before their canoe was towed by a power launch out to where it was likely they’d intercept gray whales headed north. Soon whales were spotted and the hunters set their sights on a smaller juvenile. They threw two or three harpoons at the beast but it was three shots from a .50 caliber rifle that killed the whale. The whale was towed to shore by a fishing boat.

The Sea Shepherd Conservation Society and other environmental groups were there protesting and filming. The optics were not good for the Makah—the “traditional hunt” featured Indians in modern clothing and gear, a power launch, a fishing boat, and the .50 caliber rifle. There was also footage of Makah dancing on the carcass of the dead whale when it was brought ashore. None of this comported with the average American’s idealized and romanticized image of American Indians and their vaunted reverence for nature.

The Makah responded by declaring that whaling had been their tradition for hundreds of years and a fundamental part of their identity. If they chose to return to whaling, it was their business and nobody else’s. So what if they chose to take advantage of modern gear, a .50 caliber rifle, and motorized watercraft? Moreover, unlike other American citizens, they had a legal right to hunt whales guaranteed by the Treaty of Neah Bay. The Makah hunters said they were asserting their sovereign rights as members of the Makah tribe.

Legally, the Makah were on solid ground, but this didn’t stop several lawsuits, court cases, appeals, and hearings, which suspended legal hunting for the next 24 years.

In September 2007, five Makah hunters, fed up with all the legal wrangling, which they considered an infringement on their tribal sovereignty, manned two motorboats and went in search of gray whales. The Makah soon came upon one in the Strait of Juan de Fuca. They hurled harpoons but also opened up with a .50 caliber rifle. More than a dozen rounds from the high-powered rifle found their mark and the whale was killed. There was no fishing boat with them as in the 1999 hunt, however, and there was no way to stop the dead whale from sinking or to retrieve its carcass from the sea.

Alerted by onlookers, the U.S. Coast Guard arrived on the scene quickly and took the five Makah into custody, along with their gun and boats. The Coast Guard later turned over the Makah and the property to Makah tribal police.

If the Makah’s perfectly legal 1999 hunt had been a public relations failure, the illegal 2007 hunt was an absolute disaster. “I’m not ashamed. I’m feeling kind of proud,” Wayne Johnson, the Makah tribesman who led both hunts, told The Seattle Times. “I should have done it years ago. I come from a whaling family, on my grandmother’s side and my grandfather’s side. It’s in the blood.”  

In October 2007, a federal grand jury indicted the five Makah, charging them with conspiracy, the unlawful taking of a marine mammal, and unauthorized whaling, all punishable by a year in jail and a $100,000 fine.

The Makah tribe asked that the hunters be tried by a tribal court. Instead, the hunters found themselves in the U.S. District Court in Tacoma. They all plea-bargained and received light sentences. Johnson was sentenced to five months in prison; another hunter got three months. The other three received two years of probation. All their sentences were reduced further by credit for community service, which consisted of helping the Makah tribal marine biologist conduct a marine mammal survey. “The penalty essentially is to go whale watching,” as one wag put it. 

By December 2023, the Makah had cleared the last of the legal hurdles in the way of resuming gray whale hunting, including a positive finding in a nearly 2,400-page Final Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales by the National Oceanic & Atmospheric Administration. As of this writing, the Makah are preparing for spring and summer hunts. There is also discussion of the Makah supplying Japan with whales, where whale meat and whale products are in great demand.

The Makah whaling controversy makes it clear that to some degree the Makah tribe is its own little nation—and this is true of all other American Indian tribes. Tribal members are American citizens, but American citizens with special rights and privileges. 

This all goes back to the formation of the American republic under the Constitution, when Indians were not recognized as citizens of the United States and were instead considered members of their many different tribal “nations.” This meant that no state could count Indians as part of its population for purposes of representation in the House. It also meant that if the federal government ever got around to levying taxes based on the population of each state, it could not count Indians.

Historically, most conquered people were either slaughtered, sold into slavery, or forced into exile and assimilated by other peoples. … By contrast, there are many times more American Indians in the United States today than there were when the country was founded.

What America originally had—at least in theory—were dozens of tribal nations with some degree of sovereignty within the territorial boundaries of the United States. The concept was not well-defined and proved impractical from the very beginning, not so much with the federal government but with individual state governments. It did represent a rather enlightened approach to accommodating a conquered people, however. No less a radical Indian activist, lawyer, and scholar than Vine Deloria Jr. said, “American Indians have actually been treated considerably better than any other aboriginal group on any other continent.” 

Historically, most conquered people were either slaughtered, sold into slavery, or forced into exile and assimilated by other peoples. There are no more Sumerians, Akkadians, Amorites, Canaanites, Edomites, Philistines, Hittites, Hyksos, Kassites, Babylonians, Phoenicians, or others whom we learned about from the Bible in childhood or later from a course on the “cradle of civilization.” Carthaginians, direct descendants of the Phoenicians, outlived those other peoples from the Near and Middle East and built a powerful state in the Western Mediterranean, only to have the ancient Romans reduce to rubble their great city of Carthage in what is now Tunisia, slaughter their men, sell their woman and children into slavery, and plow salt into their farm fields. Now that’s conquest! By contrast, there are many times more American Indians in the United States today than there were when the country was founded.

Problems with tribal nations within the American states began almost immediately. A good example is the Cherokee in Georgia, where friction between the Cherokee Nation and the state of Georgia increased significantly during the first two decades of the 19th century and came to violent conflict in the late 1820s. As a consequence, the Georgia legislature passed a law that declared all persons living within Georgia’s borders subject to the laws of the state.  The law went into effect on Jan. 1, 1830.

Several thousand Cherokee living in the hill country of northern Georgia regarded themselves as members of their tribal nation and not subject to Georgia’s authority. They feared that if they had to conform to Georgia law, their tribal way of life would be destroyed. The Cherokee appealed to the U.S. Supreme Court, asking for an injunction to prevent Georgia from enforcing its laws within the Cherokee Nation. The case became known as Cherokee Nation v. Georgia.

The Supreme Court ruled the Cherokee did not constitute a foreign nation as defined by Article III of the U.S. Constitution but was instead, in Chief Justice John Marshall’s words, a “domestic dependent nation.” Marshall did not define such an entity, and there was no such thing recognized by the Constitution. Most importantly, though, since the Cherokee were not a foreign nation and since they were not U.S. citizens, they had no standing in the court. End of case.

Christian missionaries working among the Cherokee now interceded on their behalf. Samuel Worcester and 10 other missionaries claimed they were not subject to the laws of Georgia when on tribal lands and refused to abide by a law that forbade them from residing among the Cherokee without first securing a Georgia permit. The missionaries were tried, convicted, and sentenced to prison. At this point, nine of the missionaries accepted a pardon from the Georgia governor. Samuel Worcester and Elizur Butler rejected the pardon and appealed to the U.S. Supreme Court in Worcester v. Georgia.

Writing for the majority, Chief Justice Marshall contradicted his earlier opinion by declaring that the federal government had treated the Cherokee Nation as a foreign country since the United States was founded and therefore the state of Georgia couldn’t impose her laws on the Cherokee. The decision was confusing because the Cherokee Nation was not a foreign nation according to Article III of the Constitution, although in some respects the federal government had treated it as such. Just what the Cherokee Nation constituted remained undefined and undetermined.  

It was at this point that President Andrew Jackson supposedly said, defiantly, “John Marshall has made his decision. Now let him enforce it.” However, the only source for the quotation is Horace Greeley, who included it in The American Conflict, a book he published more than 30 years later at the close of the Civil War. Greeley said he got the Jackson quote from George Briggs, a congressman from Massachusetts. There is no documentation for any of this.  Nonetheless, most historians have used the putative quote ever since—probably because they have thought it sounded like something Jackson would have said.

A few historians have conceded that although Jackson may not have uttered those exact words they nevertheless sum up his attitude. Yet, to portray Jackson as angry or defiant also misrepresents Jackson’s position. Jackson simply thought that Marshall’s declaring the Cherokee a “domestic dependent nation” or an entity “treated as a foreign nation” was a preposterous proposition and entirely impractical and unworkable in the real world. A more detailed description of Jackson’s reasoning would probably be something like, “John Marshall has made his decision, which makes no constitutional or practical sense, and is ill-defined and ambiguous. I have no idea how to implement it. Let Marshall do so.”

During all this controversy, the Choctaw of Mississippi in 1830 signed the Treaty of Dancing Rabbit Creek. Under the treaty, most Choctaw moved to Indian Territory, today’s Oklahoma. Those Choctaw who chose to separate from the tribe and remain behind could become American citizens if they lived on and farmed certain designated parcels of land for five years. This policy not only allowed individual Choctaw to gain title to land, it also granted them citizenship through a kind of naturalization process.

Later, buried in the Supreme Court’s Dred Scott decision of 1857, was a recognition that this naturalization process could apply to members of all tribes. “They may without doubt,” wrote Chief Justice Roger Taney, 

like the subjects of any 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.

The Fourteenth Amendment, which was adopted in 1868, declared that all persons “born or naturalized in the United States and subject to the jurisdiction thereof” were citizens, excluded “Indians not taxed,” meaning Indians living as tribal members and thus not subject to U.S. jurisdiction. Nonetheless, by the 1870s and 1880s more and more Indians were
becoming citizens by serving in the Army, living outside a tribal group or off a reservation, or by receiving an individual private property land allotment from the federal government under the Dawes Act, also known as the General Allotment Act.

Yet while more and more Indians were becoming American citizens, there remained the question of tribal sovereignty. Left to their own devices, Indians naturally attempted to preserve their traditional practices, some of which were in stark contrast to the way American society was organized and worked. The Crow Dog case is but one of many examples.

Crow Dog and Spotted Tail were chiefs in the Brule band of the Teton or Lakota Sioux, both living on the Great Sioux Reservation in South Dakota. Spotted Tail had been a great warrior in his day, constantly fighting other Indian tribes and occasionally the U.S. Army, which he fought in the Battle of Ash Hollow and in the Grattan Massacre.  By the 1870s, though, he had become a strong advocate of peace with the whites. Crow Dog was a decade younger than Spotted Tail and had not been in nearly as many fights, though he had participated in the recent Sioux uprising of the mid-1870s.

Spotted Tail was chief of the 300-man tribal police force on the reservation and Crow Dog was one of his captains. However, during a heated argument, Crow Dog threatened Spotted Tail with a rifle and the younger chief was afterwards fired from the force. The dispute may have been over a woman whom Spotted Tail had taken for a second wife, or, it may have been over money collected for grazing rights on reservation land. Whatever prompted the dispute, a month later Crow Dog ambushed Spotted Tail and shot him dead.

According to Sioux custom, Crow Dog was punished by paying restitution to Spotted Tail’s family, which was set at eight horses, one blanket, and $600. The Brule considered the matter closed.  

But the Indian agent—a kind of U.S. federal ambassador and supervisor appointed to reservations—thought the punishment was far too mild and would do nothing to deter a possible series of retaliatory killings. He got the U.S. attorney general and the secretary of the interior to convene a federal grand jury, which indicted Crow Dog for the murder of Spotted Tail under the laws of the Dakota Territory. 

The trial took place in Deadwood in March 1882. Crow Dog’s appointed attorney argued that his client had already been punished by making restitution according to tribal custom. Moreover, the killing occurred on the reservation and involved only Indians, neither of whom was an American citizen. This was a matter of tribal sovereignty. But viewing it only in terms of American justice, the Deadwood jury convicted Crow Dog of murder and sentenced him to hang.  

In 1883, Crow Dog’s case was appealed to the U.S. Supreme Court, which found there was a long tradition of the federal government’s respecting of tribal sovereignty and of federal law not being extended to an Indian committing a crime in a tribal setting against another Indian. The court further stated that courts of Dakota Territory had no jurisdiction to even hear the case. Crow Dog was released from custody and returned to the reservation.  

The Supreme Court decision did not sit well with Indian agents, the Bureau of Indian Affairs, the Department of the Interior, and many others. Tribal tradition superseding American law was evidently too much tribal sovereignty so Congress passed the Major Crimes Act of 1885, which placed seven crimes—first and foremost murder—under federal jurisdiction even if committed by an Indian in a tribal community.

The constitutionality of the Major Crimes Act was immediately tested in an 1886 case involving a reservation murder. The Supreme Court now upheld federal jurisdiction. Nonetheless, tribes generally ignored the jurisdiction of the federal government and punished guilty culprits in traditional ways. This resulted in court cases, including Supreme Court cases, that continue to this day. Except for murder cases, there has been a growing consensus among courts during the last several decades to allow tribes to again follow their traditional practices. This, despite all American Indians being citizens of the United States since the passage of the Indian Citizenship Act of 1924. 

The Indian Citizenship Act was one of the reforms suggested by the “Committee of One Hundred,” created by the secretary of the interior during Warren Harding’s presidency to address Indian policy. The committee was composed of several famous figures, including General John J. Pershing, the lawyer and politician William Jennings Bryan, and the wealthy Wall Street tycoon Bernard Baruch. It also included anthropologists such as Alfred Kroeber and Clark Wissler, critics of the then-prevailing Indian policy, including Matthew Sniffen and John Collier, and Indian leaders themselves, such as Henry Roe Cloud, Sherman Coolidge, Charles Eastman, and Arthur C. Parker, who became chairman of the committee. Such prestigious members composing the committee meant its recommendations would be taken seriously.

The Citizenship Act was necessary only for a minority of Indians. By the early 1920s, nearly two-thirds were already American citizens, having obtained citizenship by various treaties with individual tribes, by serving in the U.S. military, by agreeing to the dissolution of tribal communal lands and receiving individual land allotments, and by leaving the reservation and going through the naturalization process.  

The Indian Citizenship Act made these methods of obtaining citizenship unnecessary. The act simply declared, “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.” The act also added, “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.”

About the only serious opposition to the Indian Citizenship Act came from Indians themselves. Several tribes worried that making Indians citizens would compromise tribal sovereignty and encourage assimilation, with its concomitant loss of identity. Because of these concerns, the second clause of the act was added, emphasizing that U.S. citizenship changed no Indian’s status within the tribal community. An American Indian was now, in effect, a dual citizen—of his tribe and of the United States.

The question of Indian citizenship has been settled for a century now but, as can be seen by the Makah whaling controversy, tribal sovereignty is still ill-defined, ever-evolving, often peculiar to particular tribes, and dependent upon specific treaties and court decisions. More than 100 of these cases have gone to the Supreme Court just since the 1970s. In a sense, we are back to where we were two centuries ago, when Chief Justice Marshall termed an Indian tribe a “domestic dependent nation” but proffered no definition of such a political entity and did not address tribal sovereignty. Somewhere, Andrew Jackson is enjoying a hearty laugh.