Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.

Also, IMHO, The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States ... and at the time of the 14th amendment it's not really clear if United States is meant as a singular noun or a collective noun... given that people born in the territories are not automatic citizens, I think the interpretation is that you have to be subject to the jursidiction of any one of the States, which an Indian born on a reservation certainly wasn't.

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rayiner 2 days ago | parent [-]

> Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.

Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed."

The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language.

> The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States

Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.

But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand.

I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text.

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toast0 2 days ago | parent [-]

> Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.

From today's decision:

> 2) In Wong Kim Ark, the Court held that the Fourteenth Amendment was “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law, 169 U. S., at 688, excluding only those recognized as exempt “from the jurisdiction of this country”—the“children of ambassadors” and those born in the nations of Indian tribes, id., at 675, 681–683, 693.

That's a 1898 decision where the status of native tribes was not at issue, but was used as an example. But it's roughly contemporaneous with the 14th amendment and shows why an Indian Citizenship Act would be needed.

Edited to add: There's also Elk v Wilkins (1884) which specifically held that Indians born on reservations did not get automatic citizenship.

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rayiner 2 days ago | parent [-]

Yes, but my point is that Wong Kim Ark is internally inconsistent. It doesn’t explain how the exclusion of Indians follows from its idea of what “subject to the jurisdiction” means.

Let me put it this way. What is a definition of “subject to the jurisdiction” that excludes Indians, other than saying “well, Indians aren’t included?” It can’t be “people who aren’t subject to US laws,” because Indians have been subject to U.S. laws since 1817, even on tribal lands.

	▲	toast0 2 days ago \| parent \| next [-]
		I added it late, but the real case to look at for Indians is Elk v Willkins... The opinion in that case seems to be that Indian nations are sovereign and so an Indian born within an Indian nation is a citizen of that nation and not the US. This doesn't seem to be incompatible with the 14th Ammendment which mentions representation apportioned by whole persons, excluding Indians not taxed. US Citizenship of tribal members was also part of treaties between the US and the tribes. That situation doesn't arise other than with Indians, because the US does not enter into treaties with any other groups formed within the boundaries of the US. Although the 1871 Indian Appropriation Act prohibited new treaties with Indian nations.
	▲	ceejayoz 2 days ago \| parent \| prev [-]
		> What is a definition of “subject to the jurisdiction” that excludes Indians, other than saying “well, Indians aren’t included?” This seems fairly simple; we made treaties with Native American tribes, up until 1871, and Article I says things like "excluding Indians" and "regulate Commerce with foreign nations and among the several states, and with the Indian tribes". They clearly enjoy special (so to speak) status from day one.