Birthright Citizenship: A Fundamental Misunderstanding of the 14th Amendment

[RoosGirl]

Really?   Interpret this for me "Trumbull, who explained to the Congress before it voted, that “subject to the jurisdiction thereof” required being “subject to the complete jurisdiction thereof,” meaning, as he put it, “not owing allegiance to anyone else.”

And courts have ruled that American Indians are not automatically US citizens just because they were born with the US bounds.  That's pretty definitive to me.  If American Indians are not automatically US citizens then there's no way the 14th was intended to include anyone who happened to set toe across the border to give birth.

A subsequent law was passed, Dawes Act, was passed to allow American Indians to become citizens upon certain conditions being met.

[Chosen Daughter]

And courts have ruled that American Indians are not automatically US citizens just because they were born with the US bounds.  That's pretty definitive to me.  If American Indians are not automatically US citizens then there's no way the 14th was intended to include anyone who happened to set toe across the border to give birth.

A subsequent law was passed, Dawes Act, was passed to allow American Indians to become citizens upon certain conditions being met.

Seems so self explanatory.  How can all of the "legal scholars" argue otherwise?

[txradioguy]

I challenge the open borders proponents here show me the evidence in the 1860s that supports your position that birthright citizenship was enshrined in the 14th Amendment.  Just give me one piece of evidence.

[Oceander]

Really?   Interpret this for me "Trumbull, who explained to the Congress before it voted, that “subject to the jurisdiction thereof” required being “subject to the complete jurisdiction thereof,” meaning, as he put it, “not owing allegiance to anyone else.”

Which in turn requires one to dig into the meaning of “allegiance” because otherwise if one does not, one is simply replacing one black box with another.  A temporary visitor without a special relationship to another sovereign owes temporary allegiance to the sovereign that governs the territory in which he temporarily resides.  That is discussed, albeit to a lesser degree, by Trumbull as well.

Furthermore, that cannot have the meaning you wish to ascribe to it, because it is tantamount to saying that only those whose parents were already US citizens could themselves become citizens, and only if born in the US. 

This was clearly not the intent or understanding of the Congress when it debated the provision, as evidenced by the fact that all agreed that the provision would apply to the children of Chinese immigrants who themselves were still the subjects of the Chinese emperor and therefore would, under your view, not have been eligible for citizenship when they clearly were intended to be eligible. 

[Oceander]

And courts have ruled that American Indians are not automatically US citizens just because they were born with the US bounds.  That's pretty definitive to me.  If American Indians are not automatically US citizens then there's no way the 14th was intended to include anyone who happened to set toe across the border to give birth.

A subsequent law was passed, Dawes Act, was passed to allow American Indians to become citizens upon certain conditions being met.

That’s because you haven’t read the debates, or the history.  The wild Indians weren’t “subject to the jurisdiction thereof” because they were members of sovereign tribes and therefore had immunity to a significant part of US law, as Senator Trumbull was at pains to point out.

It was the immunity on account of a special relationship to another sovereign that prevented birthright citizenship from reaching the wild Indians, just as it did not reach the children of ambassadors. 

[Oceander]

I challenge the open borders proponents here show me the evidence in the 1860s that supports your position that birthright citizenship was enshrined in the 14th Amendment.  Just give me one piece of evidence.

The congressional debates on the language that became the 14th Amendment.

[RoosGirl]

That’s because you haven’t read the debates, or the history.  The wild Indians weren’t “subject to the jurisdiction thereof” because they were members of sovereign tribes and therefore had immunity to a significant part of US law, as Senator Trumbull was at pains to point out.

It was the immunity on account of a special relationship to another sovereign that prevented birthright citizenship from reaching the wild Indians, just as it did not reach the children of ambassadors.

So the Indians, being subjects of a different sovereign nation, were not subject to A14, but Guatemalans, being subjects of a different sovereign nation, are subject to A14.  That is something only a lawyer could make sense of.

[Oceander]

So the Indians, being subjects of a different sovereign nation, were not subject to A14, but Guatemalans, being subjects of a different sovereign nation, are subject to A14.  That is something only a lawyer could make sense of.

No, it’s because, putting aside the prejudices of 1800s whites, the wild Indians were present within the territory of their own sovereign power exactly at the same time that they were within the territory of the US.  They therefore owed allegiance to their tribe even when they were present in territory over which the US had power.  That was not the case with someone who was no longer within the territorial confines of another sovereign of which they were a subject once the game to the US, as the debaters clearly recognized was the case with the Chinese who came here from China and who were therefore still the subjects of the Chinese emperor.  That fact was acknowledged as not being sufficient to deny their children birthright citizenship.  In point of fact, one of the Senators stated that he would vote against the amendment because it would grant citizenship to the children of Chinese immigrants but not to the Indians. 

It’s exactly the same as with a foreign ambassador.  Because of the ambassador’s special continuing relationship with his sovereign, he brings his foreign law with him in a way that a mere private individual would not, and does not owe temporary allegiance to the sovereign that governs the country where he is stationed, even though he would if he had simply visited as a mere tourist. 

And yes, it does require that you be well-versed in the law, in how to read and apply the law, and how to research the meaning of terms within the law, and that you have a knowledge of things like the canons of construction.  Merely having a high-school diploma and passing grades in English class is not enough. 

[Wingnut]

No, it’s because, putting aside the prejudices of 1800s whites, the wild Indians were present within the territory of their own sovereign power exactly at the same time that they were within the territory of the US.  They therefore owed allegiance to their tribe even when they were present in territory over which the US had power.  That was not the case with someone who was no longer within the territorial confines of another sovereign of which they were a subject once the game to the US, as the debaters clearly recognized was the case with the Chinese who came here from China and who were therefore still the subjects of the Chinese emperor.  That fact was acknowledged as not being sufficient to deny their children birthright citizenship.  In point of fact, one of the Senators stated that he would vote against the amendment because it would grant citizenship to the children of Chinese immigrants but not to the Indians. 

It’s exactly the same as with a foreign ambassador.  Because of the ambassador’s special continuing relationship with his sovereign, he brings his foreign law with him in a way that a mere private individual would not, and does not owe temporary allegiance to the sovereign that governs the country where he is stationed, even though he would if he had simply visited as a mere tourist. 

And yes, it does require that you be well-versed in the law, in how to read and apply the law, and how to research the meaning of terms within the law, and that you have a knowledge of things like the canons of construction.  Merely having a high-school diploma and passing grades in English class is not enough.

To all of my fellow racists, bigots, and white supremacists... Give thanks to God for giving us so many opportunities to use our white privilege to suppress, oppress, and enslave billions. Let us look forward to what new crimes we can commit in the name of white privilege this coming year including everything my ancestors did in the past to our indigenous population   

[Bigun]

Which in turn requires one to dig into the meaning of “allegiance” because otherwise if one does not, one is simply replacing one black box with another.  A temporary visitor without a special relationship to another sovereign owes temporary allegiance to the sovereign that governs the territory in which he temporarily resides.  That is discussed, albeit to a lesser degree, by Trumbull as well.

Furthermore, that cannot have the meaning you wish to ascribe to it, because it is tantamount to saying that only those whose parents were already US citizens could themselves become citizens, and only if born in the US. 

This was clearly not the intent or understanding of the Congress when it debated the provision, as evidenced by the fact that all agreed that the provision would apply to the children of Chinese immigrants who themselves were still the subjects of the Chinese emperor and therefore would, under your view, not have been eligible for citizenship when they clearly were intended to be eligible.

More BS and mumbo jumbo from you!  It's very clear to me that you have a decidedly anti American agenda so take a hike!

[Bigun]

To all of my fellow racists, bigots, and white supremacists... Give thanks to God for giving us so many opportunities to use our white privilege to suppress, oppress, and enslave billions. Let us look forward to what new crimes we can commit in the name of white privilege this coming year including everything my ancestors did in the past to our indigenous population

  At least three of my great grandfathers (many times great)  and several others arrived here aboard the Mayflower so my family has been in on it from day one!  Why stop now!

[Wingnut]

More BS and mumbo jumbo from you!  It's very clear to me that you have a decidedly anti American agenda so take a hike!

He was not born in America,  He doen't get it..

[RoosGirl]

No, it’s because, putting aside the prejudices of 1800s whites, the wild Indians were present within the territory of their own sovereign power exactly at the same time that they were within the territory of the US.  They therefore owed allegiance to their tribe even when they were present in territory over which the US had power. That was not the case with someone who was no longer within the territorial confines of another sovereign of which they were a subject once the game to the US, as the debaters clearly recognized was the case with the Chinese who came here from China and who were therefore still the subjects of the Chinese emperor.  That fact was acknowledged as not being sufficient to deny their children birthright citizenship.  In point of fact, one of the Senators stated that he would vote against the amendment because it would grant citizenship to the children of Chinese immigrants but not to the Indians. 

It’s exactly the same as with a foreign ambassador.  Because of the ambassador’s special continuing relationship with his sovereign, he brings his foreign law with him in a way that a mere private individual would not, and does not owe temporary allegiance to the sovereign that governs the country where he is stationed, even though he would if he had simply visited as a mere tourist. 

And yes, it does require that you be well-versed in the law, in how to read and apply the law, and how to research the meaning of terms within the law, and that you have a knowledge of things like the canons of construction.  Merely having a high-school diploma and passing grades in English class is not enough.

And even when they voluntarily left their tribe they still were not automatically considered citizens.

https://nativeamericannetroots.net/diary/617
https://caselaw.findlaw.com/us-supreme-court/112/94.html

Elk v Wilkins, 1884

John Elk was a Ponca who has left the jurisdiction of his tribe and moved to Omaha, Nebraska. He owned a home, paid taxes, and was a member of the state militia. When he attempted to register to vote, he was informed that he was not a U.S. citizen even though he had been born in the U.S. and therefore could not vote.

[HoustonSam]

And even when they voluntarily left their tribe they still were not automatically considered citizens.

https://nativeamericannetroots.net/diary/617
https://caselaw.findlaw.com/us-supreme-court/112/94.html

Elk v Wilkins, 1884

John Elk was a Ponca who has left the jurisdiction of his tribe and moved to Omaha, Nebraska. He owned a home, paid taxes, and was a member of the state militia. When he attempted to register to vote, he was informed that he was not a U.S. citizen even though he had been born in the U.S. and therefore could not vote.

If I understand @Oceander 's position correctly, I think the test case would have been the question of by-birth American citizenship of a child born to Elk, or to any other non-citizen Native American Indian, while not on tribal land (not within their own sovereign power) but still within the boundaries of the US.  Given the record Oceander cites, it seems to me that a child born in those circumstances must have gained American citizenship by birth.

There must have been such births; are there known cases of the citizenship of those children being determined?

[RoosGirl]

If I understand @Oceander 's position correctly, I think the test case would have been the question of by-birth American citizenship of a child born to Elk, or to any other non-citizen Native American Indian, while not on tribal land (not within their own sovereign power) but still within the boundaries of the US.  Given the record Oceander cites, it seems to me that a child born in those circumstances must have gained American citizenship by birth.

There must have been such births; are there known cases of the citizenship of those children being determined?

If the person, themselves, were not considered citizens, why would their children be?  It only makes sense that the child be a subject to whatever the parent is a subject to.  Otherwise the wording "subject to the jurisdiction thereo” within A14 is completely unnecessary.

[Oceander]

If the person, themselves, were not considered citizens, why would their children be?  It only makes sense that the child be a subject to whatever the parent is a subject to.  Otherwise the wording "subject to the jurisdiction thereo” within A14 is completely unnecessary.

Then why didn’t they limit it to persons whose parents were already citizens?

They didn’t.  And they expressly considered the case of children born in the US whose parents were foreign subjects, in this case, the Chinese, and they accepted that those children would be citizens by birth. 

[HoustonSam]

If the person, themselves, were not considered citizens, why would their children be?  It only makes sense that the child be a subject to whatever the parent is a subject to.  Otherwise the wording "subject to the jurisdiction thereo” within A14 is completely unnecessary.

I am suggesting that those children would have been considered citizens because they were born within the territory governed by the sovereign power of the United States, not within the territory governed by the sovereign power of their tribe.  My question is whether the application to Native American Indians of the 14th Amendment actually led to that conclusion; I don't know whether it did or not.

My opinion is that the 14th Amendment was an understandable solution to a problem of its time, but does not work in the best interest of the United States today.  Today government is viewed as provider, and transportation to points within the United States is much more available than in the 1860s; hence "anchor babies."  Had I the authority to do so I would add the 14th to a list of amendments to be repealed or themselves further amended.

[RoosGirl]

Then why didn’t they limit it to persons whose parents were already citizens?

They didn’t.  And they expressly considered the case of children born in the US whose parents were foreign subjects, in this case, the Chinese, and they accepted that those children would be citizens by birth.

Then why not word it:
All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.

[Oceander]

If I understand @Oceander 's position correctly, I think the test case would have been the question of by-birth American citizenship of a child born to Elk, or to any other non-citizen Native American Indian, while not on tribal land (not within their own sovereign power) but still within the boundaries of the US.  Given the record Oceander cites, it seems to me that a child born in those circumstances must have gained American citizenship by birth.

There must have been such births; are there known cases of the citizenship of those children being determined?

The senators who debated the 14th seem to have understood that an Indian who had given up his tribal affiliation would become subject to the jurisdiction of the US and his children could then become citizens. 

[Oceander]

Then why not word it:
All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.

Because that would have included the children of ambassadors, for example, as citizens if born in the US while their parents were posted here as diplomats.  It would also confer citizenship on the children of a foreign conquering army.

[RoosGirl]

Because that would have included the children of ambassadors, for example, as citizens if born in the US while their parents were posted here as diplomats.  It would also confer citizenship on the children of a foreign conquering army.

What makes the children of ambassadors not subject to the jurisdiction of the United States?

[HoustonSam]

The senators who debated the 14th seem to have understood that an Indian who had given up his tribal affiliation would become subject to the jurisdiction of the US and his children could then become citizens.

Thanks @Oceander, I defer to your reading of the record since I have not read it myself.

My question is actually not about an Indian who gave up tribal affiliation, it's about the child of an Indian born off the reservation.  It seems to me that our current interpretation would require such a child to be determined a US citizen by birth, but I concede that application of the 14th to American Indians would have been a distinct case, not necessarily analogous to application to other nationalities.

[Oceander]

Thanks @Oceander, I defer to your reading of the record since I have not read it myself.

My question is actually not about an Indian who gave up tribal affiliation, it's about the child of an Indian born off the reservation.  It seems to me that our current interpretation would require such a child to be determined a US citizen by birth, but I concede that application of the 14th to American Indians would have been a distinct case, not necessarily analogous to application to other nationalities.

I believe that the theory was that tribal affiliation was ambulatory until and unless the Indian gave it up.  Merely going off reservation was not enough.