Trump v. Barbara · ¶463

The exclusion of these “tribal Indians” from citizenship followed from Article I’s Apportionment Clause, which says that congressional “Representatives and direct Taxes shall be apportioned among the several States . . . according to their respective Numbers . . . excluding Indians not taxed.” §2, cl. 3. In the Constitution, just as during the Revolution, taxation and representation went hand in hand. Indians who lived apart under tribal rule were not considered part of the political community. As Chief Justice Marshall explained, Indian tribes were “domestic dependent nations.” Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831). Chancellor Kent provided a similar description of Indians’ status in the early Republic: “Though born within our territorial limits, the Indians are considered as born under the dominion of their tribes. They are not our subjects, born within the purview of the…

slip opinion, revised 7/01/26
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