Fed., 855; United States v. Kopp, 1901, 110 Fed., 160; In re Celestine, 1902, 114 Fed., 541. Special treaties have sometimes contained a similar provision, e. g., the treaty of New Echota, which provided that Indians of the Cherokee tribe who remained in the East might become citizens on abandoning their tribe and adopting civilized methods of life. Cherokee Trust Funds, 1855, 117 U. S., 289, commenting on United States v. Boyd, supra."

The status of the Indian woman who marries an American citizen seems not often to have been before the court. In Hatch v. Ferguson, 1893, 57 Fed., 959, the court decided that an Indian woman born within the United States, widow of a citizen of the United States, was entitled to prosecute a suit in the Federal court for the State of Oregon against citizens of the State of Washington. The decision is not squarely in point, however, since, under the Dawes bill of 1888, it would seem she might have taken on citizenship by forsaking her tribal relations, as she had done, and in that event, of course, the fact of marriage to a citizen was immaterial. The correct solution of this problem depends, seemingly, first, on the construction of particular treaties, and, second, on the residence of the parties after marriage. If after marriage the parties reside in the Indian country, the husband subjecting himself to the Indian laws, it seems to be the general rule that in such case the husband may become an adopted Indian, and, of course, under these circumstances, the children will be Indians, not citizens. (See United States. Rogers, and cases cited, infra.) If, however, the wife severs her tribal relations and lives with her husband in a civilized community, adopting civilized habits of life, the children of such a marriage should, under the usual rules, be citizens, not Indians. In Ex parte Reynolds, supra, the question was discussed at some length, and the court, while stating that as between a freeman and a slave the principle of the Roman civil law, expressed in the maxim partus sequitur ventrem, was applied, and so the offspring be a slave, yet a different rule was applied between freemen. He said:

But by the common law this rule is reversed with regard to the offspring of free persons. Their offspring follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. This is the universal maxim of the common law with regard to freemen-as old as the common law or even as the Roman civil law, and as well settled as the rule partus sequitur ventrem-the one being a rule fixing the status of freemen; the other being a rule defining the ownership of property--the one applicable to different political communities or states, whose citizens are in the enjoyment of the civil rights possessed by people in a state of freedom; the other defining the condition of the offspring which had been tainted by the bondage of the mother. No other rules than the ones above enumerated ever did prevail in this or any other civilized country. ** These Indians are freemen.

In accordance with the principles here announced, the court held that a woman whose paternal grandfather was a white man "living in the State of Mississippi and not with an Indian tribe, a citizen of the State of Mississippi and of the United States," was herself a citizen, since her father before her had been one. A result similar in

It is of interest to note that the tenure by which such land is held from the Government is not changed to a fee simple by the Indian becoming a citizenUnited States v. Flournoy, etc., Co., 1896, 71 Fed., 576-and it may be added that it has been held that holding land in fee simple does not make an Indian a citizen.-United States v. Shanks, supra.

effect, though not fully to the point, was reached in the earlier case of Davis v. Hall, 1818, 1 Nott & McCord, 292, the court there holding that the son of a white father and Indian mother might inherit lands from the father, although the son was born while his father and mother resided with the Indian tribe. The result reached in this case seems entirely in accord with the rules usually controlling in cases of marriage between citizens of the United States and those not citizens. (See section Citizenship by marriage, infra.)

While the courts have generally been a unit in following Elk v. Wilkins, supra, to the effect that national citizenship may not be acquired by an Indian merely forsaking his tribal connections and adopting civilized methods and habits, a different result with reference to citizenship in a State was reached in Hilgers v. Quinney, 1881, 51 Wis., 62, where the court held, pursuant to certain provisions in the State constitution, that a person of Indian descent who had abandoned his tribe was a citizen of the State of Wisconsin "by every test known to our constitution and laws." The question in the United States courts, as indicated above, has usually been answered the other way.

The courts have, however, always recognized the right of an Indian to forsake his tribe. In United States . Crook, 1879, 5 Dill., 453, 464, the question arose as to whether or not a part of the tribe of Ponca Indians which, having been removed to Indian Territory, had forsaken that place and returned to their former home and taken up a residence with a kindred tribe could be arrested at the instance of the Government and returned to Indian Territory. In passing upon a writ of habeas corpus sued out by these Indians, the court made the following remarks:

What is here stated in this connection is mainly for the purpose of showing that the relators did all they could to separate themselves from their tribe and to sever their tribal relations, for the purpose of becoming self-sustaining and living without support from the Government. This being so, it presents the question as to whether or not an Indian can withdraw from his tribe, sever his tribal relations therewith, and terminate his allegiance thereto, for the purpose of making an independent living and adopting our own civilization.

If Indian tribes are to be regarded and treated as separate but dependent nations, there can be no serious difficulty about the question. If they are not to be regarded and treated as separate, dependent nations, then no allegiance is owing from an individual Indian to his tribe, and he could, therefore, withdraw therefrom at any time. The question of expatriation has engaged the attention of our Government from the time of its very foundation. Many heated discussions have been carried on between our own and foreign governments on this great question, until diplomacy has triumphantly secured the right to every person found within our jurisdiction. This right has always been claimed and admitted by our Government, and it is now no longer an open question. It can make but little difference, then, whether we accord to the Indian tribes a national character or not, as in either case I think the individual Indian possesses the clear and God-given right to withdraw from his tribe and forever live away from it as though it had no further existence. If the right of expatriation was open to doubt in this country down to the year 1868, certainly since that time no sort of question as to the right can now exist.

And see Ex parte Kenyon, 1878, 5 Dill.. 385, holding that an adopted Indian may sever tribal relations; Pennock v. Commissioners, 1880, 102 U. S., 44, and cases cited under the discussions as to the

a The matter has been settled, however, by the Congressional act of 1888, 25 Stat. L., ch. 818.

authority of United States and State governments over Indians and Indian tribes, supra.

As already stated, certain treaties between the United States and Indian tribes have provided that citizens marrying Indian wives might be adopted into the Indian tribes and become citizens thereof. Here, again, the question seems to depend primarily upon particular treaties, which must in each case be consulted The right of American citizens under such treaties to join the Indian nations and of the Indian nations to adopt such as members of their tribe has been recognized in a number of cases. One of the best-known cases in the law upon this question is that of United States. Rogers, 1846, 4 How., 566, in which the question was whether or not a white man who had married, an Indian squaw and had been adopted into the Cherokee tribe could be tried for the murder of another white man similarly adopted, in the courts of the United States, or whether or not he came within a clause in the treaty providing that "crimes committed by one Indian against the person or property of another Indian should be punished according to the Cherokee laws. The opinion was delivered by Mr. Chief Justice Taney, who stated his opinion as follows:

We think it very clear that a white man who at mature age is adopted in an Indian tribe does not thereby become an Indian, and was not intended to be embraced in the exception above mentioned. He may by such adoption become entitled to certain privileges in the tribe and make himself amenable to their laws and usages. Yet he is not an Indian, and the exception is confined to those who by the usages and customs of the Indians are regarded as belonging to their race. It does not speak of members of a tribe, but of the race generally, of the family of Indians; and it intended to leave them both, as regarded their own tribe and other tribes also, to be governed by Indian usages and customs. And it would perhaps be found difficult to preserve peace among them if white men of every description might at pleasure settle among them, and by procuring an adoption by one of the tribes throw off all responsibility to the laws of the United States and claim to be treated by the Government and its officers as if they were Indians born.

Ex parte Kenyon, 1878 (5 Dill., 385), presented another question of some considerable interest. In that case Kenyon, a citizen of the United States, had been adopted into the Cherokee Nation. He had married an Indian woman and by her reared a family. On her death he severed his connection with the tribe and moved from the Indian country into the State of Kansas. Later he was indicted for the larceny of a mare belonging to his wife, which he had taken with him when he emigrated to Kansas. The question presented was whether or not his status as an Indian had changed by his abandoning his tribal relations and whether his national citizenship revived. The court held that he was a citizen of the United States and subject to the laws of the State of Kansas, and therefore that a writ of habeas corpus would run to a court of the Cherokee Nation which had taken jurisdiction of the offense and had sentenced him to imprisonment in the Cherokee penitentiary.

This decision is in accord with the statement of Taney in United States v. Rogers, supra, who remarked:

Whatever obligations the prisoner may have taken upon himself by becoming a Cherokee by adoption, his responsibility to the laws of the United States remained unchanged and undiminished.

In Roff. Burney, 1896 (168 U. S., 218, 222), Mr. Justice Brewer, in delivering the opinion of the court, quoted with approval the above remark of Mr. Chief Justice Taney, stating that

the mere fact that a citizen of the United States has become a member of an Indian tribe by adoption may not necessarily cancel his citizenship.

This seems to be the effect of the holding in Ex parte Reynolds, supra. In other words, we seem to have in such cases as these what is usually considered a dual citizenship, if membership in an Indian tribe may be considered citizenship. Where Indians are permitted. to adopt persons into their tribe, it is determined that they also have power after such adoption to withdraw their citizenship from the adopted party. To this point was the decision in Roffe. Burney,

supra.

B. Africans. The status of free, native-born negroes before the adoption of the fourteenth amendment is no longer of practical importance so far as the negro is concerned, but the subject is too important a one to be omitted without any consideration at all, and it is conceived that a brief survey of the more important cases bearing on that topic will not be wholly without some suggestive value in so far as they throw light upon questions concerning the status of the inhabitants of the Philippines and Porto Rico. Accordingly, a number of cases are outlined below, but it should be said that the cases dealing with the enforcement of the fugitive slave laws have been purposely omitted from consideration.

It seems unnecessary to cite cases for the proposition that slaves were not citizens, since this is sufficiently established by the whole history of the country and the expressions in the Constitution itself. As to free negroes, there are two lines of authority directly in conflict with a third line midway between.

First. Decisions holding that free negroes were citizens. Cases adjudicated both before and since the civil war have declared that free negroes were citizens. One of the earliest cases to this point is State v. Manuel, 1838, 3 Dev. & Bat., 20, 24, in which the court announced the doctrine in the following language:

According to the laws of this State all human beings within it who are not slaves fall within one of two classes. Whatever distinctions may have existed in the Roman law between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. Slavery did not exist in England, but it did exist in the British colonies. Slaves were not, in legal parlance, persons, but property. The moment the incapacityor disqualification of color-was removed they became persons, and were then either British subjects or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European king to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, continued aliens. Slaves manumitted here became freemen; and, therefore, if born within North Carolina are citizens of North Carolina, and all free persons born within the State are born citizens of the State. A few only of the prin cipal objections which have been urged against this view of what we considered the legal doctrine will be noticed. It has been said that by the Constitution of the United States the power of naturalization has been conferred exclusively upon Congress, and therefore it can not be competent for any State by its municipal regulations to make a citizen. But what is naturalization? It is

the removal of the disabilities of alienage. Emancipation is the removal of the incapacity of slavery. The latter depends wholly upon the internal regulations of the State; the former belongs to the Government of the United States. would be a dangerous mistake to confound them.

It

The court then pointed out that under their State constitution every freeman who had arrived at the age of 21 and paid a public tax, without regard to color, "claimed and exercised the franchise until it was taken from freemen of color a few years since by our amended constitution." It would thus seem that the ratification of the constitution in North Carolina may have been due in part to the votes of free negroes. This is one of the very strongest opinions holding that free negroes are citizens."

The next case in point of time is that of Tannis v. Doe, 1852, 21 Ala., 449, which held that free negro residents of Florida at the time for our purchase became, by virtue of the wording to the treaty, citizens of the United States. On the general question of citizenship of free negroes, of course, this case is of little value.

The next expression on the subject was given in 1857, when the justices of the supreme judicial court of Maine, in answer to an interrogatory addressed to them by the order of the senate (State), under date of March 26, 1857, declared that free negroes of the age of 21 years and upward were, under the laws of Maine, "electors for governor, senators, and representatives." While it will be seen that the decision is not, as expressed, squarely to the point that free negroes are citizens, the decision really went to that extent, since their constitution required that all electors should be male citizens of the United States.

Later, in 1865, the general assembly of Connecticut

adopted a resolution requesting the judges of the supreme court to convene and give their opinion upon the question whether a negro is or is not a citizen of the United States within the meaning of that phrase as used in the amendment to the constitution of the State adopted in October, 1845."

The court declared (Chief Justice Hinman not expressing an opinion) —

that, in their opinion, a free colored person born in this State is a citizen of the State and of the United States."

In 1866 the matter came up before a United States circuit court in United States v. Rhodes, 1866, 1 Abb. U. S., 28, and the court, after a very elaborate discussion of the cases, concluded that, notwithstanding the Dred Scott case, free colored persons had always been entitled to be regarded as citizens of the United States.

In the same year the question was considered in an Indiana court, in Smith v. Moody, 1866, 26 Ind., 299. It is not clear whether the court had in mind the condition of negroes after the fourteenth amendment only. The conclusion was reached, however, that free negroes were citizens.

It is not clear from the court's language whether or not he considered them merely citizens of the State or citizens of the United States, but the latter seems to have been within his view.

The case of Fable v. Fable, 1835, 2 Hill Eq. (S. C.), 378, contains an elaborate consideration, both by counsel and court, on the question of the status of slaves.

See note to this opinion explaining the earlier case of Crandall v. State, 10 Conn., 339, in which Daggett, chief justice, in charging the jury, expressed a contrary view.