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Fitisemanu v. United States

United States District Court, D. Utah

December 12, 2019

JOHN FITISEMANU, et al, Plaintiffs,
UNITED STATES OF AMERICA, et. al., Defendants.


          Clark Waddoups United States District Judge

         Before the court are three motions-Plaintiffs' Motion for Summary Judgment, (ECF No. 30), Defendant United States of America's (the Government) Motion to Dismiss, (ECF No. 66), and Intervenors American Samoa Government and the Honorable Aumua Amata's (the Intervenors) Motion to Dismiss, (ECF No. 89). As explained below, the court GRANTS Plaintiff's Motion for Summary Judgment and DENIES the Government's and the Intervenors' Motions.


         Plaintiffs are three individuals born in American Samoa and a nonprofit corporation based in St. George, Utah. The three individual plaintiffs are John Fitisemanu, Pale Tuli, and Rosavita Tuli. The nonprofit corporation is the Southern Utah Pacific Island Coalition.

         Unlike those born in the United States' other current territorial possessions, who are statutorily deemed American citizens at birth, 8 U.S.C. § 1408(1) designates the individual plaintiffs as non-citizen nationals. Plaintiffs argue that their designation as nationals, and not citizens, violates the Fourteenth Amendment. Their position is that because American Samoa is “in the United States, ” and “subject to the jurisdiction thereof, ” they are entitled to birthright citizenship under Section 1 of the Fourteenth Amendment.

         As explained below, resolution of this case requires the court to choose between two Supreme Court cases and their respective lines of precedent-Wong Kim Ark and Downes v. Bidwell.

         The first Supreme Court case is United States v. Wong Kim Ark, 169 U.S. 649 (1898). In Wong Kim Ark, the Supreme Court held that a man of Chinese descent, who was born in the state of California to parents who were never employed in any diplomatic capacity by the Chinese government, and who had never renounced his allegiance to the United States, became a citizen at the time of his birth in the United States-by virtue of the Citizenship Clause of the Fourteenth Amendment. In reaching this conclusion, the Supreme Court discussed at length the importance of the English common law rule of citizenship by birth in determining the meaning of the Citizenship Clause. The Court traced the United States' reliance on the common law rule from its origins in Calvin's Case.

         Calvin's Case, decided in 1608, established a two part rule for acquisition of subject status at birth-(1) birth within the King's dominion and (2) allegiance to the King. The Supreme Court in Wong Kim Ark ultimately concluded that “[t]he fourteenth amendment affirms [this] ancient and fundamental rule of citizenship . . . .” Wong Kim Ark, 169 U.S. at 693. Plaintiffs argue that Wong Kim Ark requires this court to hold that because American Samoa is within the territory of the United States, it is “in the United States” under Section 1 of the Fourteenth Amendment.

         The second Supreme Court case, and its line of precedent, which may also provide this court with an answer to the question presented, is Downes v. Bidwell, 182 U.S. 244 (1901). The line of cases following Downes are known as the Insular Cases.

         Downes did not concern the Fourteenth Amendment. The question in Downes was whether-for purposes of the Tax Uniformity Clause of Article I, Section 8 of the Constitution- Puerto Rico is part of the United States. A splintered majority of the Court ultimately held that Puerto Rico is not part of the United States within the meaning of that provision of the Constitution.

         Apart from its holding, Downes is relevant here because it represents the origin of the doctrine of “territorial incorporation, ” “under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.” See Boumediene v. Bush, 553 U.S. 723, 757 (2008) (citation omitted). The Government argues that “the Citizenship Clause confers citizenship on those born ‘in the United States, '” and argues that the Supreme Court's “decision in Downes confirms that the language ‘in the United States' excludes unincorporated territories”-like American Samoa. (See ECF No. 66 at 22.)

         As explained below, this court holds that Downes, and the Insular Cases more generally, do not control the outcome of this case. Wong Kim Ark is binding on this court, however.

         The Supreme Court in Wong Kim Ark held that the Fourteenth Amendment follows the “established” and “ancient rule of citizenship”-birth within the dominion and allegiance of the sovereign. Because the Supreme Court adopted this rule, and because it has never abrogated it, vertical stare decisis requires this court to apply the rule in this case. As explained below, application of this rule requires the court to hold that American Samoa is “in the United States” for purposes of the Fourteenth Amendment.

         Procedural Background and Relief Sought

         Plaintiffs filed their Motion for Summary Judgment on March 30, 2018. (ECF No. 30.) They seek summary judgment on all five claims for relief asserted in their Complaint. (ECF No. 30 at 17.)

         First, they seek “[a] declaratory judgment that persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment, and that 8 U.S.C. § 1408(1) is unconstitutional both on its face and as applied to Plaintiffs.” (ECF No. 30 at 17.)

         Second, they seek “[a]n order enjoining Defendants from enforcing 8 U.S.C. § 1408(1), including enjoining Defendants from imprinting Endorsement Code 09[1] in Plaintiffs' passports and requiring that Defendants issue new passports to Plaintiffs that do not disclaim their U.S. citizenship.” (ECF No. 30 at 17-18.)

         Third, they seek a “declaratory judgment that the State Department's policy that ‘the citizenship provisions of the Constitution do not apply to persons born [in American Samoa],' as reflected in 7 F.A.M. § 1125.1(b) and (d) violates the Fourteenth Amendment . . . .” (ECF No. 30 at 18.)

         Fourth, they seek “[a]n order enjoining Defendants from enforcing 7 F.A.M. § 1125.1(b) and (d).” (ECF No. 30 at 18.)

         Fifth, they seek “[a]n order declaring that Defendants' practice and policy of enforcing 8 U.S.C. § 1408(1) and 7 F.A.M. § 1125.1(b) and (d) through imprinting Endorsement Code 09 in the passports of persons born in American Samoa is contrary to constitutional right and is not in accordance with law . . . .” (ECF No. 30 at 18.)

         On June 8, 2018, the Government filed its Motion to Dismiss, arguing that “this action should be dismissed in its entirety for failure to state a claim upon which relief can be granted.” (ECF No. 66.)

         On that same day, Intervenors filed their Motion to Intervene. (ECF No. 61.) On September 6, 2018, the court held oral argument on the Motion to Intervene. (ECF No. 86). On September 13, 2018, the court entered an order denying intervention of right, but granting permissive intervention. (ECF No. 92.)

         In their Motion to Dismiss, Intervenors concurred with the Government's Motion to Dismiss. (ECF No. 89 at 2 n. 1.) They also argued that the court should dismiss the Plaintiff's complaint for two additional reasons. (ECF No. 89 at 7.) First, they argued that it would be impractical and anomalous for the court to impose citizenship “upon American Samoa against its will.” (ECF No. 89 at 7.) They also argued that “whether birthright citizenship should extend to the people of American Samoa is a question for the people of America Samoa and its elected representatives, and not for this Court to decide.” (ECF No. 89 at 7.)

         The court heard argument on the parties' motions on November 14, 2018. (ECF No. 100.)

         Undisputed Facts

         1. The United States exercises exclusive sovereignty over the U.S. territory of American Samoa.[2]

         2. The U.S. Department of State is an executive department of the United States.

         3. The State Department, through its Bureau of Consular Affairs, is responsible for the issuance of United States passports.

         4. Mike Pompeo is the current Secretary of State.

         5. The Secretary of State or his designee is directly responsible for the execution and administration of the statutes and regulations governing the issuance of U.S. passports.

         6. Carl C. Risch is the Assistant Secretary of State for Consular Affairs.

         7. Assistant Secretary Risch is responsible for the State Department's Bureau of Consular Affairs and the creation of policies and procedures relating to the issuance of passports. In that capacity, he is Secretary Pompeo's designee as to the execution and administration of the statutes and regulations governing the issuance of U.S. passports.

         8. It is the State Department's policy that the Fourteenth Amendment's Citizenship Clause does not apply to persons born in American Samoa. Most individuals born in American Samoa are designated as non-citizen nationals.

         9. Generally, U.S. non-citizen nationals are entitled to U.S. passports.

         10. Nationals of the United States who are not citizens are entitled only to U.S. passports with appropriate endorsements.

         11. Passports issued by the State Department to those born in American Samoa of non-citizen parents contain Endorsement Code 09.


         13. A U.S. passport is the only federal document for which a member of the general public may apply in order to obtain official federal recognition of U.S. citizenship by virtue of birth in the United States.

         14. Plaintiff John Fitisemanu was born in American Samoa in 1965. The Government does not recognize Mr. Fitisemanu as a citizen of the United States. The Government has issued a U.S. passport to Mr. Fitisemanu that is imprinted with Endorsement Code 09.

         15. Plaintiff Pale Tuli was born in American Samoa in 1993. The Government does not recognize Mr. Tuli as a citizen of the United States.

         16. Plaintiff Rosavita Tuli was born in American Samoa in 1985. The Government does not recognize Ms. Tuli as a citizen of the United States. The Government has issued a U.S. passport to Ms. Tuli that is imprinted with Endorsement Code 09.

         17. The individual plaintiffs are members of Plaintiff Southern Utah Pacific Island Coalition.

         18. Plaintiffs owe permanent allegiance to the United States.

         19. Plaintiffs are residents of Utah.

         20. Plaintiffs, as non-citizen nationals, are currently denied the right to vote, the right to run for elective federal of state office, and the right to serve on federal and state juries.

         Standard of Review

         Summary judgment is proper when the moving party demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The court must “view the evidence and draw reasonable inferences therefrom in a light most favorable to the nonmoving party.” Commercial Union Ins. Co. v. Sea Harvest Seafood Co., 251 F.3d 1294, 1298 (10th Cir. 2001).

         Historical Background

         Before addressing the arguments presented in this case, it is necessary to examine the historical evidence about the common-law underpinnings of the Citizenship Clause of the Fourteenth Amendment.[3] The fundamental principle of the common law with regard to English nationality was birth within the allegiance. United States v. Wong Kim Ark, 169 U.S. 649, 655 (1898). This fundamental principle was clearly stated in the leading case known as Calvin's Case, decided in 1608. Id. at 655-56.

         Calvin's Case-1608

         “With the end of the Tudor dynasty following the death of Elizabeth in 1603, James VI of Scotland inherited the throne of England as James I, thereby uniting the two kingdoms . . . .” Polly J. Price, Natural Law and Birthright Citizenship in Calvin's Case (1608), 9 Yale J.L. & Human. 73, 80 (1997). “The most pressing question of political debate soon became the legal status of James's Scottish subjects in England. According to English law, were Scots aliens or were they subjects, capable of possessing and asserting at least some of the rights of English subjects, including holding land and suing in English courts?” Id. at 81.

         That question was answered “[i]n June 1608” when “fourteen justices, ” id. at 82, “four lawyers, ” “and the lord chancellor participated in Calvin's Case.” James H. Kettner, The Development of American Citizenship, 1608-1870, at 17 (1978). “Formally, the litigation involved a dispute over land titles.” Id. at 16. “Two suits were introduced in the name of Robert Calvin, an infant born in Scotland in 1606 after the accession [of King James], (a postnatus).” Id. Persons born in Scotland after the accession of King James were referred to as the “postnati.” See Price, 9 Yale J.L. & Human. at 82. The question presented was whether Calvin-as a postnatus born in Scotland-was a subject of England or an alien. “All but two of the justices determined that” the postnati “were to be regarded not as aliens in England but as natural-born subjects, qualified to inherit English land.” Id.

         Although fourteen justices participated in the case, the “opinion of Lord Coke, chief justice of Common Pleas, emerged as the definitive statement of the law.” Kettner at 17. “Coke's attention focused on the status of the natural-born subject-the individual who was born into the community of Englishmen.” Id. “Broadly defined, this allegiance was the ‘true and faithful obedience of the subject due to his sovereign. This ligeance and obedience is an incident inseparable to every subject: for as soon as he is born, he oweth by birth-right ligeance and obedience to his sovereign.'” Id. at 17-18 (quoting Calvin's Case, 4b.) Ultimately, “Calvin's Case established a territorial rule for acquisition of subject status at birth:”

Every one born within the dominions of the King of England, whether here or in his colonies or dependencies, being under the protection of-therefore, according to our common law, owes allegiance to-the King and is subject to all the duties and entitled to enjoy all the rights and liberties of an Englishman.

         Price, 9 Yale J.L. & Human. at 83 (quoting Herbert Broom, Constitutional Law Viewed in Relation to Common Law 31 (London, W. Maxwell & Son, 2d ed. 1885)).

         Calvin's Case “would exert a strong influence over the development of attitudes and doctrines concerning the constitutional character of the new imperial community in the eighteenth century.” Kettner at 28. “Americans in particular would seize upon elements of Calvin's Case to explain and legitimize their special relationship with [England].” Id. Calvin's Case's “maxims and definitions would survive as guiding imperatives, serving as the source and inspiration for the ideas of future generations.” Id.

         Pre-Revolution Colonial Period

         “Englishmen who left their native country to settle on the far shores of the Atlantic remained subjects of the king.” Kettner at 65. “The same common law principles that made subjects of the Scottish postnati applied equally well to persons in America.” Id. “English emigrants lost neither their allegiance nor their status when they left their mother country, and all children born under the king's protection were nautral-born subjects in all the dominions.” Id; see also Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99, 120-21, 7 L.Ed. 617 (1830) (“It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, whilst subject to the crown of Great Britain, were natural born British subjects, and it must necessarily follow, that that character was changed by the separation of the colonies from the parent state, and the acknowledgement of their independence.”). Indeed, that “same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.” Wong Kim Ark, 169 U.S. at 658.

         The Declaration of Independence

         “Americans repudiated the authority of Great Britain not as individuals, but as organized societies.” Kettner at 175. “They withdrew their allegiance from George III and severed the connection with England in formal, public, and communal acts passed by representative bodies purporting to speak for a united people.” Id.

         On July 4, 1776, the Continental Congress voted to adopt the Declaration of Independence. The Declaration stated, in part, that “the Representatives of the United States of America . . . in the Name, and by the Authority of the good People of these Colonies, ” declared those colonies “Absolved from all Allegiance to the British Crown . . . .” The Declaration of Independence para. 32 (U.S. 1776). It also famously provided that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Id. para. 2.

         After the American Revolution, a “perplexing” “question” remained. See Kettner at 209. Did the Revolution create “one community of allegiance or many?” Id. During the Revolution “[i]t was enough to decide that one was a subject or a citizen.” Id. “To consider whether [‘citizen'] meant membership in a state or in a nation of states seemed unnecessary” at the time. See id. “The question would become a critical one in the years after the Revolution.” Id. “It would appear in many different contexts and in many different guises, ” including “the status of inhabitants of the American territories, in conflicts between nationalists and advocates of states' rights, and ultimately in the soul-searing crisis of slavery.” Id.

         Confederation Period

         America's first constitution, the Articles of Confederation, was ratified in 1781. At that time, the nation was a loose confederation of states, each operating like independent countries. On September 3, 1783, Great Britain formally recognized the independence of the United States in the Treaty of Paris. Soon after America won its independence, it became increasingly evident that the young republic needed a stronger central government to remain stable. In 1786, Alexander Hamilton called for a constitutional convention to discuss the matter. The Confederation Congress, which in February 1787 endorsed the idea, invited all 13 states to send delegates to a meeting in Philadelphia. The Constitutional Convention took place from May 25 to September 17, 1787.

         “The framers of the Constitution failed to grapple with the relationship of state and national citizenship, but they did concern themselves with problems involving citizenship status that had become apparent since independence.” Kettner at 224. The framers had “debates over the citizenship qualifications for office . . . .” See id. at 224-30. “The delegates assumed that citizenship was a prerequisite for high political office and closely contested the length of time that one had to be a citizen, but at no time did they discuss the relationship between state and national citizenship.” Id. at 230.

         The United States Constitution (1789)

         The United States Constitution was signed on September 17, 1787, by delegates to the Constitutional Convention. On June 21, 1788, New Hampshire became the ninth and last necessary state to ratify the Constitution. It came into effect on March 4, 1789, by agreement of the Confederation Congress.

         The term “citizen” is used in the Constitution. For example, Article IV of the Constitution provided that “[t]he Citizens of each State stall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const. art. IV, § 2, cl. 1. Article III gave the federal judiciary jurisdiction in disputes “between a State and Citizens of another State;-between Citizens of different States; -between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” U.S. Const. art. III, § 2, cl. 1. Article I of the Constitution imposed a citizenship requirement for House of Representative Members. U.S. Const. art. I, § 2, cl. 2 (“No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States . . . .”). And it imposed a citizenship requirement for all senators. U.S. Const. art. I, § 3, cl. 3 (“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States . . . .”). Article II of the Constitution imposed a citizenship requirement for the presidency. U.S. Const. art. II, § 1, cl. 4 (“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President . . . .”).

         But the Constitution did not define “citizen.” See William Rawle, A View of the Constitution of the United States of America 85 (2d ed. 1829) (“It cannot escape notice, that no definition of the nature and rights of citizens appears in the Constitution.”). Indeed, “the Constitution in its final form left critical questions relating to citizenship unanswered.” Kettner at 231. “There was an implicit assumption that birth within the United States conferred citizenship-the president was to be a ‘natural born citizen' resident in the United States-but did this encompass all persons born within the states and territories of the new nation, or could the states or federal governments distinguish among natives, accepting some as birthright citizens while rejecting others?” Id. Questions regarding “the exact relations among the states and between the states and the nation as a whole would remain problematical until the ultimate question of the nature of individual citizenship was confronted directly.” Id. at 232. “The framers dealt with the question tangentially, and, in consequence, the constitutional provisions involving citizenship contained profound ambiguities that would become apparent only long after the new government went into operation.” Id.

         Early 19th Century

         “Judicial rulings on the meaning of the privileges and immunities and of the diversity jurisdiction clauses helped clarify the peculiarly dualistic character of American citizenship.” Kettner at 264. “However, they by no means fully determined the political questions that might arise from the definition of that status.” Id. “Considerable ambiguity thus remained at the heart of [the] notion of dual citizenship.” Id. “Perhaps the most crucial unresolved question was whether the individual citizen owed his primary loyalty to his state or to the United States as a whole, and this determination involved the issue of whether the state citizenship flowed from national citizenship or vice versa.” Id. at 264-65.

         Dred Scott (1857)

         The Supreme Court issued its notorious Dred Scott decision on March 6, 1857. “The opinion of the Court by Chief Justice Taney took the occasion to rule that free blacks could never become citizens of the United States, that Congress lacked the power to limit slavery in the territories, and that federal legislation limiting slavery anywhere would violate the Due Process Clause.” Daniel A. Farber, A Fatal Loss of Balance: Dred Scott Revisited, 39 Pepp. L. Rev. 13, 14 (2011); see also Kettner at 326 (“Taney's majority opinion denied that Scott or any other black man could be a citizen of the United States within the meaning of the Constitution.”).

         “A key issue in Dred Scott-or at least an issue that Taney chose to confront-is the relationship between state and federal citizenship.” Farber, 39 Pepp. L. Rev. at 22. “The predominant Southern theory-although not the theory that Southerners found convenient in the context of Dred Scott-was that citizenship stemmed from the states.” Id. at 23. This result would have been “unpalatable” for Southerners because “the status of blacks as citizens in Northern states” meant that they “would have been entitled to recognition [as citizens] in Southern states.” Id. at 24. Justice Taney sought to avoid this conclusion.

         According to Taney, “‘every person and every class and description of persons who were at the time of the Constitution recognized as citizens in the several states,' became national citizens with the creation of the Union; but those locally admitted after 1789 enjoyed no national status.” Kettner at 326 (quoting Dred Scott v. Sandford, 60 U.S. 393, 406, 15 L.Ed. 691 (1857)). In other words, according to Taney, those who were citizens of a state prior to the constitution coming into effect in 1789 became national citizens after that date. But for Taney, free blacks were not state citizens before the ratification of the Constitution, so, according to him, they were not entitled to any national status as citizens thereafter.[4] See Kettner at 326-27; see also Dred Scott, 60 U.S. at 423 (“these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States.”). According to Taney, “[a]s purely local citizens, blacks might have rights at the discretion of the individual state; but once they removed beyond that state's jurisdiction their condition depended absolutely on their new place of residence.” Kettner at 327.

         In short, Dred Scott “held that there was a racial exception to the normal rule of birthright U.S. citizenship, ” Farber, 39 Pepp. L. Rev. at 24, an exception that was entirely inconsistent with the rule reported by Coke in Calvin's Case.

         Civil War (1861-1865)

         The American Civil War was fought from 1861-1865. “The outbreak of war removed obstacles that had long prevented Americans from achieving a consistent concept of citizenship.” Kettner at 334. In many ways, “the Civil War was a struggle over the nature of the community created in 1789-a bloody contest over allegiance.” Id. at 340. “The lines were . . . drawn between those who stressed the primacy of the state communities of allegiance and those who insisted that the Union had created one nation and one people.” Id. “Years of evasion and compromise in Congress and the courts had delayed the confrontation between these two points of view.” Id. “But now the time of decision was at hand, and open conflict would determine which side would prevail.” Id.

         “In the moment of triumph, ” “the North sought to impose its own ideas of citizenship and community upon the nation.” Id. As discussed below, a “succession of laws and constitutional amendments was passed over the objections of the recalcitrant President Johnson and forced upon the southern states as a condition of their readmission to the privileges forfeited by their disloyalty.” Id. at 340-41.

         The Civil Rights Act, the Thirteenth Amendment, and the Fourteenth Amendment

         “On December 18, 1865, the Secretary of State certified that the Thirteenth Amendment had been ratified and become part of the Constitution.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 713-14, (1989) (plurality opinion). The Thirteenth Amendment abolished slavery and involuntary servitude. Section 1 of the Thirteenth Amendment provided: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1.

         “Less than three weeks” after the Thirteenth Amendment was ratified, “Senator Lyman Trumbull, ” of Illinois, “Chairman of the Senate Judiciary Committee, introduced S. 61, which was to become the Civil Rights Act of 1866.” Jett, 491 U.S. at 713-14 (citing Cong. Globe, 39th Cong., 1st Sess., 129 (1866)). “In March 1866 Congress passed and sent to . . . [P]resident [Johnson] the Civil Rights Act, based explicitly upon the principle that citizenship derived from birth within the allegiance and entitled persons enjoying the status to basic rights throughout the nation.” Kettner at 341. “Johnson vetoed the act.” Id. at 342. “He . . . pointed out that the proposed rights to be guaranteed by the national government had traditionally fallen within the jurisdiction of the states-a claim that many supporters of the bill would have denied . . . .” Id. “But Congress was in no mood for arguments tinged with the stain of antebellum states' rights doctrine.” Id. “The Senate and the House overrode the president's veto, and on April 9, 1866, the Civil Rights Act became law.” Id.

         “The 1866 Act represented Congress' first attempt to ensure equal rights for the freedmen following the formal abolition of slavery effected by the Thirteenth Amendment.” Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 389 (1982). “As such, it constituted an initial blueprint of the Fourteenth Amendment . . . .” Id. The Act “declared, ” in part, that “all persons born in the United States and not subject to any foreign power . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color, ” “shall have the same right, in every State and Territory in the United States, . . . to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens . . . .” Ch. 31, § 1, (1866).

         But “[w]hat one Congress enacted another could repeal, and the surest guarantee that the view of citizenship embodied in the Civil Rights Act would survive lay not in statutes but in constitutional amendment.” Kettner at 342. So, “on April 30, [1866, ] the draft of the Fourteenth Amendment was introduced in the House and Senate.” Id. “[O]ne of the primary purposes of many members of Congress in supporting the adoption of the Fourteenth Amendment was to incorporate the guaranties of the Civil Rights Act of 1866 in the organic law of the land.” Hurd v. Hodge, 334 U.S. 24, 32 (1948).

         The Senate held debates regarding the Fourteenth Amendment in May, 1866. See United States v. Wong Kim Ark, 169 U.S. 649, 698 (1898) (“When it came before the senate in May, 1866 . . . .). “The fourteenth amendment of the constitution, as originally framed by the house of representatives, lacked the opening sentence.” Wong Kim Ark, 169 U.S. at 698. Senator “Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words ‘or naturalized'), and reading: ‘All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.'” Wong Kim Ark, 169 U.S. at 698. After introducing the proposed language, Senator Howard continued:

I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.

         Cong. Globe, 1st Sess. 39th Cong. 2890.

         Senator Doolittle, of Wisconsin, then moved “to amend [Howard's] amendment, ” “by inserting after the word ‘thereof' the words ‘excluding Indians not taxed.'” Cong. Globe, 1st Sess. 39th Cong. 2890. A debate thereafter ensued regarding whether to add the words “excluding Indians not taxed” to Section 1 of the Fourteenth Amendment.

         Senator Trumbull, of Illinois, was the “chairman of the Committee on the Judiciary . . . who . . . investigated the civil rights bill.” Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Fessenden). Senator Trumbull opposed Senator Doolittle's proposed amendment, believing that Native Americans were not subject to the complete jurisdiction of the United States because they did not owe allegiance to the United States. See Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Trumbull) (“What do we mean by ‘subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means.”); see also Cong. Globe, 1st Sess. 39th Cong. 2894 (Sen. Trumbull) (“I have already replied to the suggestion as to the Indians being subject to our jurisdiction. They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States . . . .”).

         Senator Johnson, of Maryland, then joined in the debate. See Cong. Globe, 1st Sess. 39th Cong. 2893. He was in favor of adding the language “excluding Indians not taxed” to Section 1 of the Fourteenth Amendment. See Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Jonson) (“The amendment proposed by my friend from Wisconsin . . . should be adopted.”). Before addressing that proposed amendment, however, he stated the following:

[T]here is no definition in the Constitution as it now stands as to citizenship. Who is a citizen of the United States is an open question. The decision of the courts and the doctrine of the commentators is, that every man who is a citizen of a State becomes ipso facto a citizen of the United States; but there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State.
Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power-for that, no doubt, is the meaning of the committee who have brought this matter before us-shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States. I am, however, by no means prepared to say, as I think I have intimated before, that being born within the United States, independent of any new constitutional provision on the subject, creates the relation of citizen to the United States.

         Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Jonson) (emphasis added).

         Senator Johnson then expressed disagreement with Senator Trumbull regarding whether Native Americans are subject to the jurisdiction of the United States. Cong. Globe, 1st Sess. 39th Cong. 2893 (Sen. Johnson) (“and he supposes and states very positively that the Indians are not subject to the jurisdiction of the United States. With due deference to my friend from Illinois, I think he is in error.”). Senator Johnson then pointed out that Senator Trumbull did not oppose the “excluding Indians not taxed” language in Section II of the (proposed) Fourteenth Amendment. Cong. Globe, 1st Sess. 39th Cong. 2894 (Sen. Johnson) (“I suppose that my friend from Illinois agreed to the second section of this constitutional amendment, and these terms are used in that section.”). The following exchange between Senator Trumbull and Senator Johnson then occurred:

Mr. TRUMBULL: The Senator from Maryland certainly perceives a distinction between the use of the words “excluding Indians not taxed” in the second section and in the first. The second section is confined to the States; it does not embrace the Indians of the plains at all. That is a provision in regard to the apportionment of representation among the several States.
Mr. JOHNSON: The honorable member did not understand me. I did not say it meant the same thing.
Mr. TRUMBULL: I understood the Senator, I think. I know he did not say that the clause in the second section was extended all over the country, but he did say that the words “excluding Indians not taxed” were in the second section, and in as much as I had said that those words were of uncertain meaning, therefore, having gone for the words in the second section I was guilty of a great inconsistency. Now, I merely wish to show the Senator from Maryland that the words in the second section may have a very clear and definite meaning, when in the first section they would have a very uncertain meaning, because they are applied under very different circumstances. The second section refers to no persons except those in the States of the Union; but the first section refers to persons everywhere, whether in the States or in the territories or in the District of Columbia.

         Cong. Globe, 1st Sess. 39th Cong. 2894 (emphases added).

         “By March 1867 twelve states had refused to ratify the amendment, but Congress made clear its determination to write the principle of national citizenship into the fundamental law.” Kettner at 343. “In the Reconstruction Act of March 2, 1867, Congress formally provided that no state could be restored until it had ratified and until the amendment had become part of the Constitution.” Id. at 343.[5] “Legislatures in the South now had no choice.” Id. at 343. The Fourteenth Amendment was adopted on July 9, 1868. Section 1 provides:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

         U.S. Const. amend. XIV § 1. Section 2 provides:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein ...

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