of the provision of the fourteenth amendment of the constitution of the United States declaring that "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside." Such person is entitled to register as a voter under section 1 of article II of the state constitution.

ID. CITIZENSHIP BY BIRTH-SUBJECT TO JURISDICTION OF UNITED STATES Ordinarily every person residing in the United States is subject to its jurisdiction, and if born here is, by that fact, a citizen. The only exception to this rule are persons who, although residing here, or born here, are, for some adventitious reason, subject to the jurisdiction of some other country or political community, as for example, resident ministers of some other country and their children born here, or members of Indian tribes recognized as such by the federal government.

ID. INDIAN TRIBES RECOGNIZED BY UNITED STATES AS SEPARATE COM

MUNITIES.-The Indian tribes recognized by the federal government are not subject to the laws of the state in which they are situated. They are under the control and protection of the United States, but they retain the right of local self-government, and they regulate and control their own local affairs and rights of person and property, except as Congress has otherwise specially provided by law. For this reason Indians of that description are not deemed to be "subject to the jurisdiction" of the United States, within the meaning of that phrase in the fourteenth amendment, and, though born here, they do not thereby become citizens.

ID. CIVILIZED INDIAN LIVING SEPARATE FROM TRIBE - CITIZENSHIP UNDER DAWES ACT.-Such an Indian, who lives separate and apart from any recognized tribe, and works, dresses, eats, and lives with and maintains a lawful wife and his family, after the manner of civilized peoples, is a citizen of the United States, under section 6 of the act of Congress of February 8, 1887, known as the Dawes Act (24 U. S. Stats., p. 390).

ID.-ACTS NOT AMOUNTING TO TRIBAL RECOGNITION.-The establishment by the federal government of a school for the use of the Indians with whom such individual is affiliated, and the purchase of land for allotment to them, do not constitute a recognition of them as a distant tribe with independent self-government, and thus not "subject to the jurisdiction" of the United States, within the meaning of the fourteenth amendment.

APPLICATION for a Writ of Mandate directed to the County Clerk of Lake County.

The facts are stated in the opinion of the court.

Charles Kasch, and J. E. Pemberton, for Petitioner.

Robert Duncan, and H. B. Churchill, for Respondent.

SHAW, J.-The plaintiff prays for a writ of mandate against the defendant, as county clerk of Lake County, to compel the said defendant, as such clerk, to register plaintiff as an elector of Scotts Valley precinct in Lake County.

A demurrer and answer were filed to the petition, but the case has been submitted upon a stipulation between the parties in which all of the facts are stated bearing upon the case, and it is unnecessary to refer to the pleadings further.

Section 1 of article II of the constitution declares that "Every native citizen of the United States, every person who shall have acquired the rights of citizenship under or by virtue of the treaty of Queretaro," and who possesses certain other qualifications, all of which it is admitted are possessed by the plaintiff, shall be entitled to vote at all elections authorized by law. Under this provision the plaintiff is entitled to registration, provided he is a native citizen of the United States, or is a person who has acquired citizenship by virtue of the treaty of Queretaro.

The defendant refused registration to the plaintiff on the ground that he is of the Indian race, and that because of that fact, although born in this state, he is neither a native citizen of the United States, nor a person who acquired the rights of citizenship under the treaty of Queretaro.

The treaty of Queretaro, or Guadalupe Hidalgo, as it is often called, by which the territory embracing the present state of California was obtained from Mexico by the United States, was made at Guadalupe Hidalgo on February 28, 1848, was ratified on March 16, 1848, and was formally exchanged between the two governments at Queretaro on May 30, 1848. Article VIII thereof (9 U. S. Stats. 929) declares that "Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty," shall become citizens of the United States if they remain in such territory for one year without declaring their intention to retain Mexican citizenship. This provision establishes the status of persons then living within the territory referred to, but it does not relate to persons born in the ceded territory

after it became a part of the United States. It applies only to persons then living; "Mexicans now (then) established" in that territory. To ascertain the citizenship of after-born children or descendants of the persons then living in the territory acquired from Mexico we must look to the laws of the United States, not to the treaty of Queretaro. The plaintiff was born long after the making of that treaty, but he is a lineal descendant of Indians who were then living in that territory. The treaty can have no bearing upon the question of his citizenship, unless the fact that his ancestors were made citizens by that treaty, if it is a fact, is material thereto. The first question for consideration, therefore, is whether or not he is a citizen of the United States by reason of his birth therein after California became a.part of the United States.

The fourteenth amendment of the constitution of the United States declares that, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." It was said by Field, J., while sitting in the circuit court, that, "Independently of the constitutional provision it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, that birth within the dominion and jurisdiction of the United States of itself creates citizenship." (In re Look Tin Sing,

21 Fed. 905, 909; see, also, McKay v. Campbell, 2 Sawy. 118, 122, [Fed. Cas. No. 8840]; Inglis v. Sailors' Snug Harbor, 3 Pet. (28 U. S.) 99, 120, [7 L. Ed. 617, 625]; United States v. Wong Kim Ark, 169 U. S. 649, 658, [42 L. Ed. 890, 894, 18 Sup. Ct. Rep. 456]; Lynch v. Clarke, 1 Sand. Ch. (N. Y.) 583, 639.) In McKay v. Campbell, the court said: "To be a citizen of the United States by reason of his birth, a person must not only be born within its territorial limits, but he must also be born subject to its jurisdiction-that is, in its power and obedience." The plaintiff's place and time of birth, under this doctrine, makes him a citizen of the United States, unless the fact that he is of the Indian race, together with such tribal relations as he may have, place him in the class of persons who are not born within the "jurisdiction of the United States,' or who are not "born . . . subject to the jurisdiction thereof," as it is expressed in the fourteenth amendment.

Indians inhabiting the territories embraced within the United States, prior to the acquisition of territory from Mexico in 1848, were divided into separate tribes, sometimes called nations. The political relation of these tribes or nations to the United States first came up for consideration in the Supreme Court of the United States in 1831, in the case of Cherokee Nation v. Georgia, 5 Pet. (30 U. S.) 1, [8 L. Ed. 25]. It was held that an Indian tribe, though not a foreign nation, and though under the protection of the United States, is yet "a distinct political society, separated from others, capable of managing its own affairs and of governing itself." And in Worcester v. Georgia, 6 Pet. (31 U. S.) 515, [8 L. Ed. 483], it was said: "The Indian nations had always been considered as distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.” (6 Pet. 559, [8 L. Ed. 5011.) This doctrine has been uniformly followed and enforced ever since with regard to all Indian tribes within the territories mentioned, including those within the country situated in the district formerly known as the territory of Oregon. (United States v. Wong Kim Ark, 169 U. S. 649, 681, [42 L. Ed. 890, 902, 18 Sup. Ct. Rep. 456]; McKay v. Campbell, 2 Sawy. 118, 132, [Fed. Cas. No. 8840]; United States v. Osborn, 6 Sawy. 406, [2 Fed. 58]; Ex parte Reynolds, 5 Dill. 398, [Fed. Cas. No. 11,719]; Jackson v. Goodell, 20 Johns. (N. Y.) 188, 193; The Kansas Indians, 5 Wall. (72 U. S.) 737, [18 L. Ed. 667]; Scott v. Sandford, 19 How. 393, 403, [15 L. Ed. 691, 700].) In Elk v. Wilkins, 112 U. S. 94, [28 L. Ed. 643, 5 Sup. Ct. Rep. 41], the right of a member of one of these Indian tribes to register as a voter in the state of Nebraska was considered. He had fully and completely surrendered himself to the jurisdiction of the United States, but it did not appear that this was done under any federal law or treaty, or that the United States had accepted his surrender, or in any way treated or recognized him as a citizen. Speaking of these Indian tribes the court there said (112 U. S. 102, [28 L. Ed. 643, 5 Sup. Ct. Rep. 41]):

"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 meaning of 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." The Indian tribes which were the subject of these decisions were all well known and recognized as distinct communities having laws and regulations binding upon each member, and which were in some manner enforced by the tribal authorities. There were other Indians, in various places in the different states of the Union, of tribes which, to use the words of Justice Johnson in his dissenting opinion in Fletcher v. Peck, 6 Cranch (10 U. S.), at page 146, [3 L. Ed. 181], had "totally extinguished their national fire, and submitted themselves to the laws of the states," or, as stated in Worcester v. Georgia, 6 Pet. (31 U. S.) 580, [8 L. Ed. 483, 508], were "small remnants of tribes, . . . surrounded by white population, and who, by their reduced numbers, had lost the power of selfgovernment," and had become subject to state laws. In Danzell v. Webquish, 108 Mass. 133, it is said that these Indians in Massachusetts, though forming well-known tribes, "having never been recognized by any treaties or executive or legislative acts of the government of the United States as independent political communities, were under the control of the legislature of the state." The decision in Elk v. Wilkins, supra, is avowedly based entirely on the premise that Elk "was born a member of one of those Indian tribes within the limits of the United States which still exists and is recognized as a tribe by the government of the United States," and that the United States had never provided for or recognized his separation from his tribe, accepted him as a citizen, or assumed jurisdiction over him except in connection with its political relations with his tribe.

Under the facts stipulated, the status of the plaintiff, with respect to these two classes of Indians, is not clear. He was born in California, after its admission into the Union, and has always resided there. At the time of the treaty of Queretaro his ancestors were wild and uncivilized Indians settled in and permanently inhabiting Indian villages in the region now forming Lake County. Then, and for several years thereafter, they lived in tribes and maintained tribal