Historians have often noted that Chief Justice Taney's decision in Dred Scott juxtaposed a denial of African American rights to citizenship with an assertion that Native Americans could obtain that status. Explaining this apparently inconsistent description of two racial minority groups requires an examination of the history of Native American classification in the law prior to 1857. This article argues that political leaders and judges of Taney's generation were committed to the removal of Indian tribes from eastern states and commonly proposed this removal as a choice between migrating west or dissolving tribal governments in order to remain in the East as individuals. The possibility of acquiring state citizenship was therefore an important argument for pro-removal advocates. The Taney decision represents an example of the complex racial and national formulations that characterized the decades immediately prior to the Civil War—a period in which courts and political leaders attempted to define rules for defining "regimes of difference." At a time when there were no national standards of citizenship and little sense that federal authorities could enforce citizenship rights against the actions of states, judges like Taney created distinctions that tried to preserve fundamental democratic principles while defending white privilege. Finally, the article uses Taney's formulation to clarify the arguments of Indian jurists who called for federal recognition of treaty obligations and who defended tribal citizenship as a mark of "civilization" and racial progress.
Frederick E. Hoxie,
What Was Taney Thinking? American Indian Citizenship in the Era of Dred Scott,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol82/iss1/12