This month marks 100 years since Congress passed the Indian Citizenship Act of 1924. This law made sure that all Native Americans were granted citizenship.
According to the National Constitution Center, “The 14th amendment’s ratification in July 1868 overturned Dred Scott and made all persons born or naturalized in the United States citizens, with equal protection and due process under the law. But for American Indians, interpretations of the amendment immediately excluded most of them from citizenship.”
Earl Maltz, a law professor at Rutgers University, wrote that “the status of Native Americans had a profound impact on the wording of the citizenship clauses” for both the 1866 Civil Rights Act and the 14th Amendment.
In 2018, Peter H. Schuck, a law professor at Yale University, and Rogers M. Smith, a political science professor at the University of Pennsylvania, wrote a remarkable academic article on the history of 14th amendment and the issue of birthright citizenship:
“The original Constitution was silent about immigration and the qualifications for citizenship, other than a provision empowering Congress to regulate naturalization. The first mention of national citizenship in the document came in 1868 with the ratification of the 14th Amendment. Its first section — the Citizenship Clause — reads as follows: ‘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 wherein they reside.’ The precise meaning of the phrase that we have italicized — ‘and subject to the jurisdiction thereof’ — is at the heart of the debate over whether the U.S.-born children of illegal aliens are automatic birthright citizens.”
After the 14th amendment was passed, the Supreme Court decided that Native Americans were not citizens in the 1884 Elk v Wilkins decision.
In 1898, the Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that a person born in this country to legal residents was an American citizen.
Regarding the status of the children of illegal immigrants, legal scholar Lino Graglia wrote:
“Although there is no Supreme Court decision on that question, it has been referred to in some dicta, most importantly in Phyler v. Doe, a 1982 five to four decision, in which the Court in a footnote interpreted Wong Kim Ark as holding that ‘no plausible distinction ... can be made between legal and illegal resident aliens.’ That statement cannot settle the matter, however, because it is not only pure dictum but is based on a mistaken understanding of Wong Kim Ark.”
The story of how Native Americans struggled to become citizens should be taught in every high school in America. We should never forget that Native Americans have served in every major American war since the American Revolution.
They deserved their citizenship long before they received it.
According to the Department of Veteran Affairs, “Native Americans serve in the Armed Forces at five times the national average, having the highest per-capita involvement of any other ethnic group in the U.S.”
This story is also relevant to understanding our current debate regarding illegal immigration.
Based on the text of the 14th amendment, as well the Supreme Court’s previous decisions on this issue, only the Congress has the authority to grant citizenship to the children of illegal immigrants.
If the courts improperly intervene on this issue, it will only damage their legitimacy further. If President Biden wins re-election, I fear he will appoint justices who will support birthright citizenship for the children of illegal immigrants.
Illegal immigration is already out of control. According to U.S. Customs and Border Protection (CBP), about 9.6 million illegal immigrants entered the country from January 2021 to April 2024.
This estimate includes people who have been apprehended and do not intend to leave. This number does not include every person who has eluded the authorities.
To put that number in perspective, the total number of illegal immigrants according to Pew Research was only 10.5 million in 2021. That means the Biden administration has nearly doubled the number of illegal immigrants in the country in four years.
The amount of drugs confiscated by the CBP has gone down the Biden years. The amount of marijuana confiscated dropped from 319,447 pounds (FY 2021) to 149,582 pounds (FY 2023).
The amount of methamphetamine confiscated dropped 191,834 pounds (FY 2021) to 140,408 pounds (FY 2023).
The amount of cocaine confiscated dropped from 97,638 pounds (FY 2021) to 81,085 pounds (FY 2023).
The amount of heroin confiscated dropped from 5,400 pounds (FY 2021) to 1,511 pounds (FY 2023).
The only relative bright spot was that CBP was able confiscate more fentanyl from 11,201 pounds (FY 2021) to 27,023 pounds (FY 2023).
In the presidential debates, someone needs to ask the candidates about their views on birthright citizenship.
Robert Zapesochny is a researcher and writer whose work focuses on foreign affairs, national security and presidential history. He has been published in numerous outlets, including The American Spectator, the Washington Times, and The American Conservative. When he's not writing, Robert works for a medical research company in New York. Read Robert Zapesochny's Reports — More Here.