In defending the Trump administration’s order to suspend birthright citizenship, the Justice Department cited a 19th-century law that excluded Native Americans from birthright citizenship in the United States. Questioned the citizenship of native-born Americans.
In a case out of Washington over Trump’s birthright citizenship executive order, Justice Department lawyers cited the 14th Amendment, which reads that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State in which they reside,” and hinges one of his arguments on the phrase “And subject to the jurisdiction thereof.”
“Under the plain terms of the clause, birth in the United States does not by itself entitle a person to citizenship. That person must also be ‘subject to the jurisdiction’ of the United States,” the filing reads.
The Justice Department then cites the Civil Rights Act of 1866, which predates the 14th Amendment by two years. Attorneys for the Justice Department specifically cited a section of the act that states “all persons born in the United States and Not subject to any foreign power, not taxed except by Indians, is hereby declared to be a citizen of the United States.”
The Trump administration then argues that the language of the 14th Amendment — the phrase “subject to its jurisdiction” — is best understood “to exclude those persons who were excluded by the Act.”That isThose who are ‘subject to any foreign power’ and ‘Indians are not taxed’.
Justice Department lawyers return to the topic of whether Native Americans should be entitled to birthright citizenship later in their arguments, citing a Supreme Court case. Elk v. WilkinsIn which the Court ruled that “because members of Indian tribes owe ‘immediate allegiance’ to their tribes, they are not ‘subject to the jurisdiction of the United States’ and are not constitutionally entitled to citizenship.”
“The United States’ relationship with the children of illegal aliens and temporary visitors is weaker than its relationship with members of Indian tribes. If the latter link is insufficient for birthright citizenship, the former certainly is.” ’ argued the Trump administration.
This argument marks a sharp departure from the government’s opinion, which holds that Native Americans who are citizens of their respective tribes are also citizens of the United States.
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