Page:Harvard Law Review Volume 1.djvu/157

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Coram Thayer, J.

Catseye v. The Town of Camden.

Tribal Indians, while off their reservation and within a State, are protected by the fourteenth amendment of the Constitution of the United States, as being persons entitled to the equal protection of the laws.
Where a statute giving an action against towns for injuries suffered by reason of a defect in the highway excepts such Indians from the benefits of it, the excepting clause is unconstitutional and void.

The plaintiff, an Indian belonging to the Sioux tribe and living on a Government reservation, having visited the defendant town, was injured by reason of a defect in a highway and brought an action of tort against the town for damages. The Statute of the State gave to all persons who might suffer an injury under such circumstances an action against the town; but it expressly excepted “all citizens or inhabitants of other States or countries not giving, under the same circumstances, a like right of action against the municipalities of such States or countries to citizens of this State; and also, all Indians in the United States, members of a tribe and living or belonging on a Government reservation.” At the trial the defendant asked the judge to rule that the plaintiff could not maintain his action, but the judge refused so to rule and held that the excepting clause was void, as being contrary to the Constitution of the United States in denying to the plaintiff the equal protection of the laws. To this ruling the defendant alleges exceptions.

W. B. Brice and R. S. Gorham for Plaintiff.

W. H. Cowles and F. Ladd for Defendant.

This case, which was very well argued, raises the question whether a tribal Indian, residing on a Government reservation, is protected, while outside the reservation and within a State, by that clause of the fourteenth amendment to the United States Constitution which forbids a State to “deny to any person within its jurisdiction the equal protection of the laws.”

This language is very broad. The fourteenth amendment conferred or recognized citizenship in the case of “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,”—a description which does not cover tribal Indians, Elk v. Wilkins, 112 U. S. 94, 102; and it also forbade a State to abridge the privileges of citizens of the United States. It then took a wider range, and protected not merely citizens, but all persons,—“nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Unnaturalized foreigners are protected by these last clauses, including foreigners whom our laws do not at present permit to be naturalized, like the Chinese. Yick Wo v. Hopkins, 118 U. S. 356. No human being, however degraded, belonging in any obscure corner of Asia, Africa, or Europe, would be outside these provisions of our Constitution if he should come to any of our States. The “Hottentot Venus” (13 East, 195), if she were now living and