Excluding and including the Indian
There is a curious phrase in the Constitution of the United States.
It appears in Article I, section 2, and it appears again in the 14th Amendment.
In Article I, the Constitution provides that
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.1
In the 14th amendment, that provision — setting up the allocation of congressmen among the states — was changed.
Section 2 of the 14th amendment 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.”2
So what exactly does the Constitution mean when it talks about “excluding Indians not taxed”?
The Legal Genealogist can’t give you a definitive answer.
Neither can anybody else.
The fact is, the term is never defined. Not in the Constitution. Not in the statutes. Not in the case law interpreting that provision of the law.3
In fact, the only place you may find a working definition is in the instructions that were given to census takers.
Now remember, first of all, that this particular provision of the United States Constitution is why we have census records at all. Although we, as genealogists, use these records routinely as part of our research, they really weren’t created for our benefit. The singular reason for counting the number of people around the country is to apportion the members of the House of Representatives among the states.
So it actually makes sense that the one place we might find a working definition of a term that appears primarily with respect to the census is in the census instructions.
The first time the term was included was in the instructions to Marshals for the 1830s census. There it simply says: “Your assistants will also bear in mind to include all persons of a family (except Indians not taxed) where members thereof on the 1st day of June, 1830.”4 The 1840 census instructions were the same.5
In 1850, enumerators were simply instructed that “Indians not taxed are not to be enumerated in this or any other schedule.”6
In 1860, enumerators were told that “Indians not taxed are not to be enumerated. The families of Indians who have renounced tribal rule, and who under State or Territorial laws exercise the rights of citizens, are to be enumerated.”7
So in 1860, for the first time, we get a working definition — by working backwards. If “Indians not taxed are not to be enumerated” but Indians who have renounced tribal rule and exercise the rights of citizens under state or Territorial laws are to be enumerated, then “Indians not taxed” must be those living within tribal rule and not exercising the rights of citizens under state or Territorial laws. In other words, those on reservations.
In 1870, the instructions for that census told the census takers:
“Indians not taxed” are not to be enumerated on schedule 1. Indians out of their tribal relations, and exercising the rights of citizens under state or Territorial laws, will be included. In all cases write “Ind.” in the column for “Color.” Although no provision is made for the enumeration of “Indians not taxed,” it is highly desirable, for statistical purposes, that the number of such persons not living upon reservations should be known. Assistant marshals are therefore requested, where such persons are found within their subdivisions, to make a separate memorandum of names, with sex and age, and embody the same in a special report to the census office.8
The definition was finally made express in the instructions of 1880:
By the phrase “Indians not taxed” is meant Indians living on reservations under the care of Government agents, or roaming individually, or in bands, over unsettled tracts of country.
Indians not in tribal relations, whether full-bloods or halfbreeds, who are found mingled with the white population, residing in white families, engaged as servants or laborers, or living in huts or wigwams on the outskirts of towns or settlements are to be regarded as a part of the ordinary population of the country for the constitutional purpose of the apportionment of Representatives among the states, and are to be embraced in the enumeration.9
In 1890, the census definition was the same: “By the phrase ‘Indians not taxed’ is meant Indians living on reservations under the care of Government agents or roaming individually or in bands over unsettled tracts of country.”10
In 1900, a separate population schedule was used for Indian families “both those on reservations and those living in family groups outside of reservations.”11 And, the census takers were told, “An Indian is to be considered ‘taxed’ if he or she is detached from his or her tribe and living among white people as an individual, and as such subject to taxation, whether he or she actually pays taxes or not; also if he or she is living with his or her tribe but has received an allotment of land, and thereby has acquired citizenship. … An Indian on a reservation, without an allotment, or roaming over unsettled territory, is considered ‘not taxed’.”12
That same system was followed in 1910.13 There was no separate Indian schedule in 1920.14
And in 1924 the reason for the distinction disappeared. On 2 June 1924, a statute became law in the United States. It provided, simply, that “all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.”15
And, with that law, the taxed-versus-non-taxed distinction ceased to exist.
- Article I, §2, Constitution of the United States (emphasis added). ↩
- §2, Amendment 14, Constitution of the United States (emphasis added). ↩
- See generally Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C. : Government Printing Office, 1945), 89; digital images, Google Books (http://books.google.com : accessed 12 Mar 2015). ↩
- Jason Gauthier, Measuring America: The Decennial Censuses From 1790 to 2000 (Washington, D.C. : U.S. Census Bureau, 2002), PDF at 7. ↩
- Ibid., at 8. ↩
- Ibid. at 10. ↩
- See “Special Instructions, Schedule No. 1, 1860 Census: Instructions to the Marshals,” set out at Minnesota Population Center, University of Minnesota, IPUMS USA (https://usa.ipums.org/ : accessed 12 Mar 2015). ↩
- Gauthier at 15. ↩
- Ibid. at 18. ↩
- Ibid. at 24. ↩
- Ibid. at 43. ↩
- Ibid. at 44. ↩
- Ibid. at 56-57 ↩
- Ibid. at 58. ↩
- “An Act To authorize the Secretary of the Interior to issue certificates of citizenship to Indians,” 43 Stat. 253 (2 June 1924). ↩
I was just thinking about re-reading the census instructions looking for a topic for a talk. You beat me to it!
The census instructions are always good to have and review!
While it is not defined directly in the Constitution, the phrase “Excluding Indians Not Taxed” is interpreted based upon an analysis of analysis of constitutional and legislative history. For a well written article on the subject see:
The Fourteenth Amendment as Related to Tribal Indians: Section I, “Subject to the Jurisdiction Thereof” and Section II, “Excluding Indians Not Taxed”
American Indian Culture and Research Journal, v28 n4 p37-68 2004
The phrase “excluding Indians not taxed” appears in both Article I and the Fourteenth Amendment of the US Constitution. This essay examines the phrases “excluding Indians not taxed” and “subject to the jurisdiction” of sections 1 and 2 of the Fourteenth Amendment as they apply to Indians. This essay, through analysis of constitutional and legislative history, will demonstrate that “tribal” Indians were purposefully excluded from citizenship. The drafters of the Fourteenth Amendment clearly defined “tribal” Indians as “Indians not taxed,” as not “subject to the jurisdiction” of the United States. This essay delineates the jurisdictional links between taxation and citizenship and discusses how the courts have repeatedly misconstrued the pertinent phrases. Solid arguments will verify that acts which imposed citizenship on all Indians, contrary to the Fourteenth Amendment prohibition against tribal Indian citizenship, are unconstitutional. Finally, this essay substantiates that “Indians not taxed” was defined to mean that “tribal” Indians are not taxable as long as they remain subject to the jurisdiction of their tribe in any degree and hold tribal allegiance in any degree.
Note that the article is available for purchase only.