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PaperclipPerfector  1mo ago (text post)   23694 thread views

Culture War Roundup for the week of June 29, 2026

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Immediately after the passing of the 14th, natives born off the reservation, on American soil, did not get citizenship. It clearly meant something more than your simple, straightforward interpretation.

Wouldn't they still be considered members of their native nations? The question is not whether the Indian in question was literally born inside a reservation, but whether the Indian is subject to the jurisdiction of the United States.

My understanding is that as early as the 19th century the understanding of the Fourteenth Amendment was that, outside the exceptional case of natives, anybody born on United States soil was a citizen. There was some room to debate it but Wong Kim Ark settled that and has stood as precedent for well over a hundred and twenty years. My sense of most of the pre-WKA disputes is that they are transparently racially motivated, and generally casting about wildly for justification, via a Dred-Scott-like "well, it can't possibly have meant that group as well!" rather than anything plausibly rooted in the text itself.

But the whole argument is that illegals are more akin to Indians.

Except neither the Trump administration nor the dissenting justices make that argument. Not even Gorsuch spends much time on the Indians. They focus on the comparison to temporary travelers and argue that "subject to the jurisdiction" requires the lawful establishment of a domicile.

Kavanaugh wrote:

The only apparent principle unifying the four disparate exceptions listed by the Court in Wong Kim Ark—especially in light of the exception for tribal American Indians—is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign. An exception for those born in the United States to foreign parents unlawfully or temporarily in the country is consistent with that principle and therefore with the Fourteenth Amendment.

and

And most starkly, plaintiffs cannot convincingly explain their view that the children of tribal American Indians are not constitutionally entitled to birthright citizenship, while the children of foreign citizens unlawfully or temporarily in the country are constitutionally entitled to birthright citizenship.

Among other things, Thomas wrote:

Like temporary visitors, tribal Indians were not completely subject to the jurisdiction of the United States. The United States did not have the right to impose personal taxes on them—hence, “Indians not taxed.” Their personal affairs remained subject to the jurisdiction of their tribal nation. “The right of self-government” was “secured to each tribe, with jurisdiction over all persons and property within its limits, subject to certain exceptions, founded on principles somewhat analogous to the international laws among civilized nations.” The United States did not interfere “with the disposition, or descent, or tenure of their property, as between themselves,” or “prove their wills,” or subject them to the “laws of marriage and divorce,” or subject them to the “laws of the United States, against high treason.” Tribal Indians did not owe the United States primary allegiance and did not receive from it complete protection.

and

But, the Court cannot explain why tribal Indians were not “subject to the jurisdiction” of the United States if they happened to be born outside Indian lands while foreign temporary visitors were. It is true that tribal Indians belonged to “alien and sovereign” nations and that the United States’ relations with them implicated “intersovereign concerns.” Ante, at 12. But, temporarily visiting foreigners also belong to “alien and sovereign” nations, and the United States’ relations with them also implicate “intersovereign concerns.” It is difficult to understand why China, for example, would be less alien or less sovereign than the Cherokee Nations. It is also difficult to understand why tribal Indians would be less entitled to American citizenship if born on non-Indian land within the United States than children of birth tourists who immediately returned to China.

Alito wrote:

the Court cannot explain why the Fourteenth Amendment did not confer citizenship on children born in the United States to tribal Indians. As explained, federal law governed those children and their parents to the extent the Federal Government wished. If the Court were right that the Citizenship Clause applies to anyone who is born here and is subject to our laws, then the Fourteenth Amendment would have conferred citizenship on all tribal Indians. But the exception for tribal Indians was well-established at the time and remained until Congress eliminated it by statute.

The question is not whether the Indian in question was literally born inside a reservation, but whether the Indian is subject to the jurisdiction of the United States.

But you said the meaning was clear, and this is very far outside your initial clear interpretation.

There was some room to debate it but Wong Kim Ark settled that and has stood as precedent for well over a hundred and twenty years.

Yes, and I'm saying Wong Kim Ark (and Schooner, for that matter) were decided wrong.

I’m not sure WKA was decided incorrectly. On the narrow grounds of the holding, it isn’t offensive.

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