American Indian Culture and Research Journal

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. The only place these phrases are defined in a constitutional setting is in the 1866 debates related to the Fourteenth Amendment as recorded in the Congressional Globe. Extensive quotations, in context, are necessary to assure authentic representation of the drafters’ intent.