Citizenship under the Fourteenth Amendment: Elk v. Wilkins and Wong Kim Ark

Context: The Fourteenth Amendment and citizenship revolutions

• The unit centers on citizenship as it relates to the Fourteenth Amendment. Pre-14th precedent (e.g., Dred Scott) held that African ancestry affected citizenship and the ability to sue. Dred Scott precedent: not a citizen, not capable of filing suit, due to race. Question guiding discussion: did the Fourteenth Amendment bring a revolution in citizenship?
• The Fourteenth Amendment states birthright and naturalization pathways to citizenship; debates about whether it revolutionized citizenship or was more limited in scope.
• The instructor emphasizes that arguments about revolution should consider both supporting evidence and counter-evidence (addressing counterclaims). Importance of nuanced discourse and avoiding false dichotomies.
• The relationship between law and social memory: how we read the Fourteenth Amendment affects views on race, immigration, and national identity.

Native American history context (late 19th century) and citizenship

• After the Civil War, U.S. policy toward Native Americans shifted from assimilation to removal and confinement to reservations as part of westward expansion and industrial growth.
• The Midwest and Plains contained many remaining powerful tribes (e.g., Sioux, Apache); conflicts evolved into the Indian Wars as railroads and industrial expansion pressed westward.
• The connection between capitalism, rail expansion, and Indian policy: land grants to railroad companies accelerated western expansion and dispossession of Native lands.
• The process of forced assimilation intensified: Native American children were removed from families, placed in boarding schools, Anglicized, and taught “American” customs as a means of national unity.
• The rhetoric of nationalism and progress coexisted with massacres, displacement, and cultural erasure; the lecture urges recognizing the full spectrum of historical experiences, including abuses.
• By 1884, the Indian Wars were winding down, and Native Americans were pushed onto smaller reservations; the era framed by violence, dispossession, and an ongoing policy of assimilation.
• Legal framework: Native tribes were traditionally treated as quasi-sovereign entities via treaties with the U.S. government; citizenship policy for Native Americans was largely mediated through treaties and later congressional naturalization acts rather than birthright under the 14th Amendment.
• The period foregrounds the tension: does birthright citizenship under the 14th Amendment extend to Native Americans born in the United States or only to those whose status is recognized under federal law or naturalization statutes?

Elk v. Wilkins (1884): Facts, majority reasoning, and dissent

• Facts:
  • John Elk, a Winnebago born on a reservation in Nebraska, renounces tribal allegiance and claims U.S. citizenship under the 14th Amendment.
  • Elk attempts to register to vote in Omaha, but is denied by the registrar, Wilkins. Elk sues, arguing 14th Amendment birthright citizenship applies.
• Key textual focus:
  • The Fourteenth Amendment reads:$ext{All persons born or naturalized in The United States and subject to the jurisdiction thereof are citizens of The United States and of the state wherein they reside.}$
  • The issue hinges on the phrase “subject to the jurisdiction thereof,” and whether it includes Native Americans born in the U.S.
• Majority reasoning (excerpts emphasized):
  • The U.S. government’s interaction with Native tribes historically occurred through treaties between the President and Senate or acts of Congress, not through state processes; this implies a separate legal status for Native tribes that persists outside ordinary birthright citizenship.
  • Native American tribes were, in practice, treated as independent nations for treaty purposes; thus, birthright citizenship under the 14th Amendment did not automatically apply to Native Americans.
  • The Court notes the language of the 14th Amendment was aimed to settle citizenship for “free Negroes” and to ensure equality between white and Black persons, not to address Native Americans; the decision interpreted the amendment narrowly in this respect.
  • The majority highlights that Congress had already enacted naturalization acts granting citizenship to certain tribes; failure to grant Elk citizenship by birthright was consistent with a view that Native Americans required a separate naturalization process to become citizens.
  • The court emphasizes a dichotomy between constitutional birthright citizenship (for those born in the U.S) and statutory naturalization (requires congressional action).
  • Conclusion: There is no birthright citizenship for Native Americans under the Fourteenth Amendment as of Elk v. Wilkins; citizenship for Native Americans would come through naturalization Acts passed by Congress, not automatic birthright under the 14th Amendment.
• Dissent (Justice John Marshall Harlan):
  • Harlan argues the majority misreads the scope of “Indians not taxed” and the broader reach of the Fourteenth Amendment.
  • He cites the Civil Rights Act of 1866, which he argues conferred national citizenship broadly (except Indians not taxed) and that Indian citizenship likely falls under this umbrella.
  • Harlan notes Andrew Johnson’s veto message for the Civil Rights Act, listing how the veto framed citizenship impacts for various races, including Native Americans; he uses Johnson’s veto language to illustrate the era’s racial biases and to argue the 14th Amendment should be understood more inclusively.
  • He contends that the 14th Amendment should apply to Native Americans born in the United States, challenging the majority’s narrow interpretation of citizenship boundaries.
• Implications of Elk for citizenship doctrine:
  • The decision established a precedent that birthright citizenship under the 14th Amendment did not automatically apply to Native Americans.
  • It underscored the role of Congress in naturalization for Native Americans and set up a pattern where citizenship for some tribes came through acts of Congress, not through birth.
  • This precedent endured for decades and was reinforced by later interpretations; the most recent broad distribution of citizenship for Native Americans occurred in 1924 via a congressional act, not the 14th Amendment.
• Questions for reflection:
  • How did Elk reflect the era’s treatment of Native Americans and federal-tribal relations?
  • In what ways did Elk restrict citizenship and how did that shape subsequent policy and litigation?

US v. Wong Kim Ark (1898): Facts, majority reasoning, and significance

• Historical context:
  • Chinese immigration was growing on the West Coast; the Chinese Exclusion Act of 1882 limited immigration from China and was later extended by the Geary Act of 1892.
  • Nativist sentiment and anti-Chinese bias intensified during economic downturns (e.g., Panic of 1893).
  • Public caricatures and rhetoric depicted Chinese immigrants as threats to American labor and culture; the context included broader anxieties about immigrants and competition for jobs.
• Facts:
  • Wong Kim Ark, born in San Francisco in 1873 to Chinese parents who later returned to China in 1890.
  • He returned to the United States in 1890 and was readmitted, but when attempting to re-enter in 1894, was denied by customs officials in 1895 due to the Geary Act.
  • Ark sued, claiming birthright citizenship under the Fourteenth Amendmentprotected by birth in U.S. soil.
• Excerpts and key holdings:
  • Majority decision, 6–2: Birthright citizenship applies to anyone born in the United States and subject to its jurisdiction, regardless of the citizenship status of their parents.
  • The Court held that naturalization is a congressional power to confer citizenship, not a power to revoke birthright citizenship; birthright citizenship is established by the Constitution itself, not by statute.
  • Textual emphasis:
  • Birthright citizenship coverage applies to “All persons born in The United States and subject to the jurisdiction thereof are citizens of The United States, period.”
  • Acts of Congress or treaties restricting naturalization do not strip birthright citizenship from those born in the U.S.
  • The decision clarified that Wong Kim Ark’s status could not be revoked by exclusionary acts or by administrative decisions influenced by anti-Chinese sentiment.
• Implications of Wong Kim Ark:
  • Establishes a robust birthright citizenship doctrine under the 14th Amendment, extending to anyone born on American soil, regardless of parental citizenship status.
  • The 14th Amendment’s birthright citizenship remains applicable even when Congress passes exclusionary or restrictive naturalization statutes (e.g., Chinese Exclusion Act) that might target specific groups.
  • The decision becomes a foundational precedent for immigrants seeking citizenship via birthright and limits Congress’s ability to withdraw citizenship through statute for those born in the U.S.
• Significance for the broader question of revolution in citizenship:
  • Wong Kim Ark reflects a broad, inclusive understanding of birthright citizenship tied to the place of birth, signaling a more expansive constitutional protection than Elk suggested for Native Americans.
  • It demonstrates how the 14th Amendment can be interpreted to advance a more universal conception of citizenship beyond race-specific framings, contributing to the constitutionalization of birthright citizenship.

Counterclaims, evidence, and the practice of argument in the course

• The instructor emphasizes addressing counterclaims as a critical part of any argument:
  • Consider evidence that supports your position and evidence that could undermine it.
  • Don’t ignore evidence that complicates your view; instead, respond to potential counterarguments with reasoned rebuttals.
  • Healthy disagreement can lead to stronger, more nuanced conclusions and better understanding of constitutional issues.
• Application to the cases:
  • Elk argued for a broad interpretation of the 14th Amendment to include Native Americans; the majority rejected that view, highlighting congressional and treaty frameworks that treated tribes separately from birthright citizenship.
  • Wong Kim Ark argued for universal birthright citizenship for those born on U.S. soil, countering exclusionary statutes; the majority accepted Ark’s broader interpretation, reinforcing a universal birthright concept.

Formulations and legal foundations: birthright vs naturalization

• Key constitutional distinction:
  • Birthright citizenship (constitutional): Citizenship by birth in the United States and subject to its jurisdiction, as codified in the 14th Amendment.
  • Naturalization (statutory): Citizenship acquired through acts of Congress, treaties, or other statutory processes; Congress holds the power to determine naturalization procedures and eligibility.
• Core constitutional text (for reference):
  • $\text{All persons born or naturalized in The United States and subject to the jurisdiction thereof are citizens of The United States and of the state wherein they reside.}$
• Practical implications:
  • Birth in the U.S. generally confers citizenship, with exceptions like Indians not taxed (a historical precondition contested in these cases).
  • Congressional acts can grant or restrict naturalization, but they cannot easily negate birthright citizenship established by the Constitution itself.

Connections to broader themes, precedents, and real-world relevance

• Relationship to Dred Scott and the evolution of citizenship law:
  • Dred Scott established the notion that people of African descent could not be citizens; the 14th Amendment aimed to rectify this for those populations, but Elk shows that its reach did not automatically extend to all groups (e.g., Native Americans) in the same way.
• The role of Congress and policy instruments:
  • Elk highlights how treaties, federal Indian policy, and naturalization acts shape citizenship beyond the constitutional text.
  • Wong Kim Ark reinforces the idea that even when Congress enacts exclusionary policy, birthright citizenship can persist independently of such statutes.
• Ethical and philosophical implications:
  • The cases reveal conflicts between national unity and inclusion, and between protecting citizens and the rights of immigrant groups.
  • The rhetoric of nationalism and the use of law to embed exclusionary practices raise questions about fairness, equal protection, and the meaning of equal citizenship.
• Real-world relevance:
  • The birthright citizenship framework remains a cornerstone of U.S. immigration and citizenship policy today.
  • Debates about the scope of the Fourteenth Amendment continue to shape contemporary immigration law, birthright citizenship debates, and the legal status of Native American tribes.

Preview: Next topics and broader applicability of the Constitution

• The discussion moves toward how the Constitution applies to foreign territories and new acquisitions (e.g., the Philippines, Puerto Rico, Cuba).
• Questions to consider:
  • When the United States acquires foreign territory, to what extent does the Constitution apply there?
  • How does birthright citizenship extend (or not extend) to people in newly acquired territories?
• This leads to broader considerations of rights, privileges, and immunities, due process, and the continuing relevance of the Fourteenth Amendment in post-1900 American history.

Quick reference: key dates and statutes mentioned

• 1866: Civil Rights Act (early national citizenship provision referenced in the Harlan dissent)
• 1868: Fourteenth Amendment ratified (birthright citizenship and due process protections are central themes)
• 1884: Elk v. Wilkins decided
• 1882: Chinese Exclusion Act enacted
• 1892: Geary Act extended Chinese Exclusion Act
• 1893: Panic and economic downturn affecting attitudes toward immigrants
• 1898: Wong Kim Ark v. United States decided
• 1924: Citizenship distributed to Native Americans via congressional act (not via the Fourteenth Amendment)

Summary takeaways

• Elk v. Wilkins (1884) narrowed birthright citizenship for Native Americans, framing citizenship for Native peoples as contingent on Congress via naturalization acts or treaties, not automatic under the 14th Amendment.
• Wong Kim Ark (1898) robustly protected birthright citizenship for anyone born on U.S. soil, notwithstanding parental nationality or exclusionary statutes; established a lasting precedent that birth in the U.S. confers citizenship that Congress cannot easily revoke.
• The era illustrates the complexity and inconsistency of citizenship doctrine, demonstrating how constitutional text, judicial interpretation, and legislative actions interact in shaping who counts as a citizen.
• The ongoing tension between nationalist policy and universal rights remains a central theme in constitutional law and modern debates about immigration and national identity.