Friday, November 02, 2018

The 14th Amendment and citizenship for native Americans

In the birthright/14th Amendment debate, one topic that has not been discussed by the Trump critics is that citizenship status of
native Americans AFTER the passage of the 14th Amendment.

Wikipedia notes:

The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder (R) of New York and granted full U.S. citizenship to the indigenous peoples of the United States, called "Indians" in this Act. While the Fourteenth Amendment to the United States Constitution defines as citizens any persons born in the U.S. and subject to its jurisdiction, the amendment had been interpreted to not apply to Native people.

It might be difficult to reconcile the past history of excluding native Americans, including children, from U.S. citizenship with granting citizenship to children of parents serving a different sovereign. Separately, in terms of the recent discussion of the DNA of Elizabeth Warren, note the statement of the Cherokee nation:

Sovereign tribal nations set their own legal requirements for citizenship, and while DNA tests can be used to determine lineage, such as paternity to an individual, it is not evidence for tribal affiliation,” the Cherokee Nation’s Secretary of State Chuck Hoskin Jr. said. “Using a DNA test to lay claim to any connection to the Cherokee Nation or any tribal nation, even vaguely, is inappropriate and wrong.”


Some relevant past posts on the 14th Amendment/birthright discussion:

From USAToday, President Trump may have met his match when it comes to U.S. citizenship: The 14th Amendment , which includes the text

The Supreme Court ruled in United States v. Wong Kim Ark, an 1898 case, that a man born on U.S. soil to parents who were Chinese nationals was a citizen. As part of a 1982 decision, Plyler v. Doe, the high court said that even if someone enters the country illegally, they are within U.S. jurisdiction, and their children born in the U.S. are entitled to the protections of the 14th Amendment.

BUT which also includes the erroneous text about Dred Scott

Dred Scott brought the first lawsuit in which the Supreme Court denied blacks citizenship. Scott sued for his freedom when he was enslaved after living free in Missouri. His owners eventually freed him.

From yahoo news, Kellyanne Conway’s Husband Shreds Trump Proposal To End Birthright Citizenship

“Sometimes the Constitution’s text is plain as day and bars what politicians seek to do,” Conway wrote with fellow attorney Neal Katyal in The Washington Post. “Such a move would be unconstitutional and would certainly be challenged. And the challengers would undoubtedly win.”

The editorial was published just hours after President Donald Trump said he was preparing an executive order to rescind the longstanding 14th Amendment, which grants citizenship to any person born on American soil, regardless of their parent’s nationality. Legal scholars mostly agree that the provision could only be changed through a separate constitutional amendment.

A commenter to the yahoo news article named Roger made pertinent points:

Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.”
In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.
American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.
Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.


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