Part 5 - Birthright Citizenship and the 14th Amendmnet

Introduction
The Debate in the Senate - Sen. Howard's Previous Remarks
The Debate in the Senate – Sen. Wade’s Proposal
The Debate in the Senate - Sen. Howard’s Amendment
The Debate in the Senate - Complete Jurisdiction

Senator Howard’s proposal received two objections in the Senate debate.  First, Senator Doolittle asked if the proposed amendment would grant citizenship to the children of Indians.  Then, Senator Cowan asked if the amendment would grant citizenship to the children of undesirable foreigners.  We will consider the responses to both of these challenges beginning with the question about the amendment’s application to Indians.

When Sen. Doolittle heard the amendment, he immediately rose to say:

“I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment — I presume he will have no objection to it — by inserting after the word ‘thereof’ the words ‘excluding Indians not taxed.’”
 
Sen. Howard responded by explaining that:
 
“Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.”
 
Sen. Doolittle did not ask for further clarification at this point, but after a lengthy discussion on the applicability of the amendment to undesirable immigrants, Sen. Doolittle again rose to address the Senate.  He argued that the Indians were subject to American jurisdiction because their reservations were managed by the War Department. 
 
At this point it was suggested that the chairman of the Senate Judiciary Committee explain how the Indians were not subject to the jurisdiction of the United States.  Senator Trumbull rose in response and said that:
 
“It is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin [Sen. Doolittle]. The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people.”
 
There is a lot to unpack in this brief statement from Sen. Trumbull, and there has been much written about it already.  Most of what has already been written on this statement focuses on the terms “complete jurisdiction” and “allegiance,” but it is important that we not ignore the rest of the statement in which Sen. Trumbull illustrates what he meant by those terms.  According to Sen. Trumbull, the phrase “subject to the jurisdiction thereof” means “subject to the complete jurisdiction thereof,” and this in turn means “not owing allegiance to anybody else.”  He then asked Sen. Doolittle two questions that could be used to determine whether the Indians fit into the category of being subject to the jurisdiction of the United States.
 
The first question that Sen. Trumbull asked was whether an American citizen could sue an Indian in court.  At that time, the answer to that question was, No.  An American citizen could not sue an Indian in an American court.  Nearly every treaty made with the various Indian tribes included an article declaring that if an Indian was guilty of harming an American citizen, the American government was required to receive permission from the tribal government before prosecuting the criminal, and the same was true in reverse.  American citizens were not answerable to the tribal courts because they were not subject to the jurisdiction of the tribal governments, and the Indians were not answerable to American courts because they were not subject to the jurisdiction of the United States.
 
Sen. Trumbull’s second question was whether the United States could pass a law to control the Indians.  Once again, the answer to that question was, No.  The United States had no authority to pass laws to control the conduct of the Indians.  If congress wanted to control the conduct of the Indians, they were required to negotiate treaties with the various Indian tribes, and all of the parties to the treaties were required to abide by the terms of those treaties regardless of any other laws that may have been passed by either party.  A tribal government could not simply pass a law requiring American citizens to refrain from any act, and the government of the United States could not simply pass a law requiring Indians to refrain from any act.  American citizens were not subject to the laws of the various Indian tribes, and the Indians were not subject to the laws of the United States.
 
According to Sen. Trumbull, the answers to these two questions demonstrated that the Indians were not subject to the jurisdiction of the United States at that time.  Therefore, their children would not receive birthright citizenship even though they were technically born within the borders of the United States. 
 
However, if we ask these two questions of immigrants, even illegal immigrants, we will receive answers opposite of those received when asking them of the Indians of that time.  Can an American citizen sue an illegal alien in an American court?  Yes.  There is no law preventing an American citizen from suing an illegal alien in an American court.  Can the United States pass a law to control illegal aliens?  Yes.  Our deportation statutes (8 U.S. Code § 1227 – 1231) do exactly that, and these statutes were passed through Congress without the need for any treaties with foreign governments.  Immigrants to America, regardless of their legal status, can be sued in American courts and their conduct can be controlled by American laws.
 
Since Sen. Trumbull’s questions can be answered in the affirmative in regards to immigrants whether they are in the country legally or not, it would seem to follow that all immigrants are subject to the jurisdiction of the United States.  If that is true, then the children of these immigrants would receive birthright citizenship if they were born within the borders of the United States.
 
Of course, it may be argued that illegal aliens could be subject to the jurisdiction of the United States in these two area and still not be subject to the complete jurisdiction of the United States.  It may be that there are other areas of American jurisdiction to which illegal aliens are not subject.  However, it is incumbent upon those making that claim to prove that it is true.  Sen. Trumbull provided two lines of evidence to prove that the Indians were not subject to the complete jurisdiction of the United States.  Those claiming that illegal aliens also are not subject to the complete jurisdiction or the United States must present equivalent evidence to prove their case.

The Debate in the Senate - More on Complete Jurisdiction
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