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By an act approved May 8, 1906, Section 6 of the Act of 1887 is amended so as to read as follows: "Sec. 6. That at the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, as provided in section five of this Act, then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made and who has received a patent in fee simple under the provisions of this Act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up within said limits his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property: Provided, That the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent: Provided further, That until the issuance of fee-simple patents all allottees to whom trust patents shall hereafter be issued shall be subjected to the exclusive jurisdiction of the United States: And provided further, That the provisions of this Act shall not extend to any Indians in the Indian Territory."

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The Enabling Act of June 6, 1906, providing for the admission of the Territories of Oklahoma and Indian Territory as the State

39 34 Stat. at L. 182.

of Oklahoma, provided: "That nothing contained in the said Constitution [of Oklahoma] shall be construed to limit or impair the rights of person or property pertaining to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this act had never been passed."

CHAPTER XXI.

THE ADMISSION OF NEW STATES.

§ 145. The Admission of New States.

The process of admitting new States to the American Union is a comparatively simple process and but few constitutional questions have arisen in connection with it. The constitutional clause governing the subject reads as follows: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States or parts of States, without the consent of the legis latures of the States concerned as well as of the Congress." It will thus be seen that nothing is said as to the conditions that must be met by a given territory before it may claim, or Congress be obligated to grant, admission to the Union as a State. The whole matter is left absolutely to the discretion of Congress. There can be no question but that at the time of the adoption of the Constitution the idea was generally held that all non-state territory held or to be held by the United States was to be regarded as material from which new States were to be created as soon as population and material development should warrant. But no attempt was made to force the hand of Congress under circumstances that could not be foreseen by defining in the Constitution itself the conditions under which statehood should be accorded. But one limitation is laid down, and that impliedly, and this relates rather to the status of new States after admission, than to the process of admission itself. This is that the new Commonwealths, when received into constitutional fellowship with the older members of the Union, shall stand upon an exactly equal footing with them.

As has been seen, the Constitution does not attempt to fix the modus operandi in which new members are to be admitted into the Union. It does not even say whether they are to be formed from territory already under its sovereignty, and in one instance, 1 Art. IV, Sec. 3.

that of Texas, a new State was received by the direct process of incorporating, by a joint resolution of Congress, a foreign independent State. In all other cases, however, new States have been formed from areas already belonging to the United States and organized as territories.

The usual process by which these territories have obtained statehood is as follows: The people of a territory petition Congress to grant them statehood. If that body is favorably disposed, a so-called “enabling act" is passed, authorizing the framing of a state Constitution, prescribing the manner in which it shall be framed, and laying down certain requirements that must be met. All these conditions having been met, a resolution reciting this fact is passed by Congress, and the Territory declared a State and admitted as such into the Union. In some cases the final step in the process has been a proclamation issued by the President in obedience to the direction of Congress.

The above has been the usual and regular process. In not a few instances, however, the inhabitants of Territories have met in conventions and framed Constitutions without first obtaining the authorization of Congress. The acceptance, however, by that body, of the instrument framed has been considered sufficient to validate the proceeding.

There has been some little constitutional speculation as to whether the decisive, creative act in the bringing into existence of a new State is the Resolution of Congress approving the constitution that has been drawn up and declaring the former Territory one of the States of the Union; or whether the vivifying force is derived from the constituent act of the people of the Territory in framing and adopting their state Constitution. The latter is the view most acceptable to the States' Rights school. It would

2 In Brownson's American Republic, premising that the entrance of Territories into the Union as States is the free act of the peoples of the respective Territories, the argument is made that the States of the Southern Confederacy, by their ordinances of secession, in effect annulled these acts, and thus, ipso facto, relegated themselves to the status of Territories, and as such came under the complete control of Congress for that body to "reconstruct" their governments as it should see fit, and readmit them as States, and upon such terms, as it should approve.

seem to be sufficently plain, however, that the former is the correct doctrine; for there can be no question but that it lies within the power of Congress arbitrarily to refuse its approval to a constitution that has been framed by the people of a Territory strictly in accordance with the requirements of the Enabling Act. The final, and therefore decisive step, has thus to be taken by the Federal Government.

This doctrine has, indeed, received implied judicial sanction at the hands of the United States Supreme Court in its decision in the case of Scott v. Jones.3

In this case was involved the validity of an act of a legislature of a Territory passed prior to the admission of the Territory into the Union as a State. The Supreme Court dismissed the case for lack of jurisdiction on the grounds that the law in question was not passed by a legislature of a State and did not, therefore, come within the express terms of the Judiciary Act, which provided the court with its appellate jurisdiction. Referring to the fact that the jurisdiction conferred by the twenty-fifth section of the Judiciary Act had been granted lest a State might legislate against some part of the Constitution, or trench upon matters not within its province, the court said: "Such being the evil or danger, it precludes the idea that this clause in the Judiciary Act had any reference to the fact that public bodies which had not been duly organized, and not been admitted into the Union, would, as States, undertake to pass laws, without being empowered to do it, which might encroach on the Union or its granted powers, and hence should be thus guarded against. Such conduct by such bodies, if not situated within the territory of the Union, would be a foreign affair, and not within the cognizance of any of the departments of this government, unless so interfering with its rights as to call for the political exercise of the executive and legislative authority over our foreign relations. Again, such conduct by bodies situated within our limits, unless by States duly admitted into the Union, would have to be reached either by the power of

35 How. 343; 12 L. ed. 181. Cf. Jameson, Constitutional Convention, Sec. 207.

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