Part 7 - Birthright Citizenship and the 14th Amendment

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
The Debate in the Senate - More on Complete Jurisdiction
The Debate in the Senate - Sovereignty Over the Soil

As the debate over this section of the proposed amendment drew to a close, Senator Hendricks asked if he could pose one more question to Sen. Trumbull.  Sen. Hendricks wanted to know if it was true that the government of the United States could choose at any time to govern the Indians by direct law thus bringing them under our jurisdiction.  This was a very insightful question, and the responses from Sen. Trumbull and Sen. Howard to this question solidified the meaning of the phrase “subject to the jurisdiction thereof” as a requirement for birthright citizenship.

The exact question that Sen. Hendricks asked Sen. Trumbull was:

“I wish to know if, in his opinion, it is not a matter of pleasure on the part of the Government of the United States, and especially of Congress, whether the laws of the United States be extended over the Indians or not; if it is not a matter to be decided by Congress alone whether we treat with the Indians by treaty or govern them by direct law; in other words, whether Congress has not the power at its pleasure to extend the laws of the United States over the Indians and to govern them.”
 
The perceptiveness of this question can be seen in Sen. Hendricks’ focus on the law.  In our modern discussions of the 14th Amendment, we often become so focused on the meaning of the entire phrase “subject to the jurisdiction thereof” that we neglect to consider the individual definitions of the terms within that phrase.  In particular, it is often assumed that all the parties of the discussion agree on the definition of the word “jurisdiction.”  When Sen. Hendricks asked if Congress could choose govern the Indians by direct law instead of by treaty, he revealed that he understood exactly what the word “jurisdiction” means. 
 
The word “jurisdiction” is a combination of two Latin words.  The first is the word juris which means “law,” and the second is the word dictio which means “a saying or a declaration.”  Thus, the word “jurisdiction” refers to the authority of one entity to declare the law for another entity.  American citizens are subject to the jurisdiction of the American government because the American government has the authority to declare the law for American citizens.  This is just a tautology.  It is saying the same thing in different words.  Jurisdiction is the authority to declare the law, and Sen. Hendricks was asking if Congress could simply choose to exercise jurisdiction (the authority to declare the law) over the Indians instead of dealing with them through treaties.
 
Sen. Trumbull’s response was equally as perceptive as the question.  Instead of denying that Congress had the authority to declare the law for the Indian tribes, Sen. Trumbull focused on Congress’ ability to choose to do something that it had no right to do.  He said:
 
“I suppose it would have the same power that it has to extend the laws of the United States over Mexico and govern her if in our discretion we thought proper to extend the laws of the United States over the republic of Mexico, or the empire of Mexico, if you please so to call it, and had sufficient physical power to enforce it. I suppose you may say in this case we have the power to do it, but it would be a violation of our treaty obligations, a violation of the faith of this nation, to extend our laws over these Indian tribes with whom we have made treaties saying we would not do it.”
 
In essence, Sen. Trumbull argued that there is a difference between having the power to do something and having the right to do something.  He claimed that Congress may have the power to declare the law for Indian tribes and thus exercise jurisdiction over them, but Congress had no more right to do this than they had a right to force Mexico to submit to American laws.  But why did Sen. Trumbull mention Mexico?  How was Mexico in any way similar to the Indian tribes? 
 
The answer to this question can be found in Sen. Howard’s comments on this same subject a short while later.  According to Sen. Howard:
 
“The Government of the United States have always regarded and treated the Indian tribes within our limits as foreign Powers, so far as the treaty-making power is concerned, and so far especially as the commercial power is concerned, for in the very Constitution itself there is a provision that Congress shall have power to regulate commerce, not only with foreign nations and among the States, but also with the Indian tribes. That clause, in my judgment, presents a full and complete recognition of the national character of the Indian tribes, the same character in which they have been recognized ever since the discovery of the continent and its occupation by civilized men; the same light in which the Indians were viewed and treated by Great Britain from the earliest commencement of the settlement of the continent. They have always been regarded, even in our ante-revolutionary history, as being independent nations, with whom the other nations of the earth have held treaties.”
 
Here we see why Sen. Trumbull was able to draw a similarity between the nation of Mexico and the Indian tribes.  He was able to do so because the Indian tribes were considered to be independent nations just like Mexico was an independent nation.  Congress had no more authority to declare the law for the independent nations of the Indian tribes than they had to declare the law for the independent nation of Mexico. 
 
But Sen. Howard did not stop there.  He continued and explained of the Indian tribes that:
 
“They have a national independence. They have an absolute right to the occupancy of the soil upon which they reside; and the only ground of claim which the United States has ever put forth to the proprietorship of the soil of an Indian territory is simply the right of preemption; that is, the right of the United States to be the first purchaser from the Indian tribes. We have always recognized in an Indian tribe the same sovereignty over the soil which it occupied as we recognize in a foreign nation of a power in itself over its national domains. They sell the lands to us by treaty, and they sell the lands as the sovereign Power owning, holding, and occupying the lands.”
 
According to Sen. Howard, the Indian tribes were not guests on American soil.  They were sovereign nations occupying their own soil.  This was why the Indians were not subject to the jurisdiction of the United States.  They were not on American soil.  They were on Indian soil.  Even though the lands which the Indian tribes occupied were within the physical borders of the United States, each tribe retained its sovereignty over its own land, and the United States government had no jurisdiction over land belonging to another sovereign nation. 
 
The sovereignty that the Indian tribes held over their own land was the reason that the United States did not have jurisdiction over the Indians.  Sen. Howard explained that:
 
“The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe ... Why? Because the jurisdiction of the nation intervenes and ousts what would otherwise be perhaps a right of jurisdiction of the United States.”
 
Indians could not be tried in American courts for crimes committed among themselves because those crimes were committed on soil where a nation other than the United States had jurisdiction.  The jurisdiction (the authority to declare the law) of the Indian tribe superseded the jurisdiction of the United States in such cases because the Indian tribe had sovereignty over the soil on which the crime was committed and the United States did not. 
 
Sen. Howard’s reference to sovereignty over the soil brought the debate back to where he began with his claim that birthright citizenship is a natural law.  We mentioned earlier that this claim is a reference to the concept of jus soli or the right of soil which has been the default law of citizenship throughout the entire history of Western civilization.  With remarkably few aberrations (and those short lived), Western nations have always held that a child owes greater allegiance at birth to the nation which is sovereign over the soil on which he is born than he owes to the nation of his parents’ heritage.  Sen. Howard invoked this principle of citizenship both to open and to close his remarks in the Senate, and as we will soon see, it was the prevalence of this principle of jus soli in America’s history which guided the Supreme Court to rule in favor of birthright citizenship in their 1898 decision in United States v. Wong Kim Ark.

U.S. vs. Wong Kim Ark - British Citizenship
U.S. vs. Wong Kim Ark - Justice Story on Allegiance
U.S. vs. Wong Kim Ark - The Claims of the Judicial Branch
More Posts Coming Soon...