Page:Harvard Law Review Volume 12.djvu/329

CONSTITUTIONAL ASPECTS OF ANNEXATION. 309 description. Certainly all islanders born after annexation and within the allegiance of the United States would be citizens. (See case of Wong Kim Ark, ante, page 299.) The opinion in the case of Wong Kim Ark^ excepts from the rule of citizenship by birth Indians " owing direct allegiance to their sev- eral tribes." In Elk v. Wilkins ^ the Court said: " Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more ' born in the United States and subject to the jurisdiction thereof,' within the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations." And it was decided in this case that an Indian does not become a citizen by living apart from his tribe, but can gain citizenship only through naturalization. The segregation of tribal Indians from the body of the American people is an established feature of our polity. In the words of Justice Miller, " they always have been regarded as having a semi- independent position when they preserved their tribal relations ; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulat- ing their internal and social relations."^ If we should annex the Philippines, it may be assumed that we would classify as many of the islanders as possible under the head of " wards," " dependent nations," or " tribal Indians." But this classification could not be made arbitrarily, for the constitutionality of our discrimination against the Indian is based on the fact that he owes allegiance to a political organization other than though in- ferior to the United States. Hence we could apply our Indian policy in the Philippines only to persons who have not been in fact within the jurisdiction of Spain, but have been governed by their tribal organizations. After many of the islanders had been relegated to the condition of undesirable, troublesome, and expensive " wards," there would remain probably several millions whose claims to citizenship by 1 169 U. s. 649, 653. ' 112 u. S. 94, 102. 8 United States f. Kagama, 118 U. S. 371, 381.