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Notes -
Yeah, I had that thought somewhere in my notes, but I still think it's a bit difficult to reason about and state properly.
That is, one of the questions looming over the case in general is how one conceptualizes Elk, which as I understand it effectively said that Indians were not "subject to the jurisdiction thereof". By giving them statutory citizenship, did Congress in a sense overrule Elk? Did they say, "Nah, they're 'subject to the jurisdiction thereof' now, because they're all citizens and so their kids will be 14A citizens"? Or did Congress say, "Sure, they're still not 'subject to the jurisdiction thereof', but we're going to make them citizens anyway"?
This ties into the question of whether Congress is able to sort of change the meaning or application of 14A via passing statutes. That may be my first attempted explanation for why Sauer/Wang came out on this question in an unexpected way. If Congress is able to simply say, "They are now 'subject to the jurisdiction thereof'," in isolation, without changing anything else about tribal relations, prosecutability/immunities/etc., then how do we understand that? Maybe we have to say that they couldn't do it entirely "in isolation", and that making this choice had to have come with other consequences? I don't know what the right answer is!
One other funny thought is that it is possible that Sauer had planned ahead for this question, and he devilishly prepared his wishy-washy answer as a way to avoid committing, but giving room for Gorsuch to read either result into his position. Barring that, though, it's possible that he was leaning in the direction he was at least in part because it contributes to the idea that Congress can make choices that affect the meaning/application of 14A. Whereas Wang wanted to go in the other direction, because she doesn't want Congress to be able to make choices that affect the meaning/application of 14A. She sort of needs to be able to say that Elk/WKA were just right, exactly the categories that they stated were the only categories once and forever, and nothing can ever change that (except, obviously, another amendment).
I don't quite get why statutory indian citizenship need implicate the 14A at all; Congress clearly has the power to naturalize under Article I, and "all members of registered indian tribes are automatically born citizens" seems surely within their power. I could see how it could be janky if someone tried to raise a question like eligibilty for the presidency, but again that seems pretty easy to side-step.
I think the hard question here is about what it means to be a citizen, and to what extent that relates to being "subject to the jurisdiction thereof"? Does a citizen owe allegiance to the nation? Side question: is that allegiance permanent? Does the nation owe them protection, due to their citizenship? Is there something else that is involved? How do these things differ from the criteria used to determine whether someone is "subject to the jurisdiction thereof"? Can a true, full, no BS citizen have some sort of "primary" or "direct" or whatever allegiance to some other entity/sovereign that in some way makes them not "subject to the jurisdiction thereof"? Can Congress create some sort of "alternate citizenship" in which an alternateCitizen is not "subject to the jurisdiction thereof"?
I can see weirdness that we'd have to engage with no matter which way we go on the question.
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