were brought here for exhibition, would be protected by them. If our native Indian tribes are not covered by them, they are the only human beings of whom that is true.
It must be carefully observed that the question relates to an Indian while within a State and off his reservation; it has nothing to do with the case of an Indian on his reservation.
What, then, is there in the character of a tribal Indian to take him out from these clauses of the Constitution? He is a “person,” in the sense of being a human being; and why are we to give to the term in this part of the Constitution any narrower meaning than that which includes all human beings? It is said that a tribal Indian living on a reservation is neither a citizen of this country, nor a member of any foreign State. That is true. Indian tribes are not foreign States, The Cherokee Nation v. Georgia, 5 Pet. 1; and the members of them are not citizens or subjects of a foreign State, Karrahoo v. Adams, 1 Dillon, 344; and if it were true that all persons must be either citizens here, or citizens or subjects of a foreign country, then, indeed, tribal Indians would not be “persons.” But it would be a begging of the question to say that. We have, in these tribal Indians, a class of human beings who are neither one nor the other. No doubt their position is very peculiar, and various phrases have been invented to describe it, such as, “domestic dependent nations,” 5 Pet. 17; and “wards of the nation,” 118 U. S. 383. But both in the Constitution and Statutes of the United States they are referred to as persons. Const. U. S., Art. 1, s. 2 ; 112 U. S. 112. In large numbers they have been made citizens of the United States. 19 Howard, 587; 112 U. S. 112. They may, when off their reservations, sue in the courts, and are fully recognized as having legal rights and duties. This last statement is sometimes denied; but the denial is ill-considered, and proceeds upon a misunderstanding of a certain peculiar class of cases, such as that of The Cherokee Nation v. Georgia, 5 Pet. 1, and Karrahoo v. Adams, 1 Dillon, 344, turning wholly upon the limitations of the jurisdiction of the courts of the United States. In the last case, for instance, it was admitted that the court had no jurisdiction of the case, if the plaintiff, a tribal Indian woman, were not a foreigner; and it was held that she was not. And so, in any like case in the United States courts, wherever jurisdiction depends wholly on the fact that a party has the status either of a citizen of the United States or of a foreign State,—it is true that an Indian cannot sue.
But there are many cases in which jurisdiction does not depend upon the party having such a status, and in all such cases an Indian off his reservation can sue in the United States court as well as in the courts of the States. Fellows v. Blacksmith, 19 How. 366; Elk v. Wilkins, 112 U. S. 94; Pka-o-wah-ash-kum v. Sorin, 8 Fed. Rep. 740; Wau-pe-mau-qua v. Aldrich, 28 ib. 489; Swartzel v. Rogers, 3 Kansas, 374; Willey v. Keokuk, 6 ib. 94. It appears, then, to be true that the clauses of the fourteenth amendment, now under consideration, are, in the language of the Supreme Court of the United States (Matthews, J.), “universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, color, or of nationality.” Yick Wo v. Hopkins, 118 U. S., at p. 369. And the remark of Taney, C. J., in Scott v. Sandford, 19 How., at p. 403, appears to be substantially accurate when he says that if an
