Understanding Native American Citizenship and the Supreme Court
First, the current 6-3 split on the Supreme Court, with Contextual Originalists forming the majority, should give a glimpse into how the Court will rule on Birthright Citizenship for Native Americans. Contextual Originalists interpret the Constitution from the Canons of Construction based on the Original Intent of the Constitution, Treaty, or Law not by current social and political morays.
Given the Marshall Trilogy of Cases: Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832), it is unlikely this Supreme Court will overturn 200 years of Stare Decisis concerning the enshrinement of the Doctrine of Discovery against Native Americans. Further, it is even more unlikely that the Supreme Court will override Elks v Wilkins 1884, in which the Supreme Court ruled that Native Americans must first demonstrate allegiance to their Tribe because they are not constitutionally US Citizens. So where does that leave Native Americans concerning Citizenship?
Many will go to the 14th Amendment, which was rejected in Elks v Wilkins 1884, and the Contextual Originalists will also reject it because of the specific wording of the 14th Amendment Section 1: “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 phrase “and subject to the jurisdiction thereof” in its original context goes back to its British Common Law roots requiring both parents to be Citizens under the country's jurisdiction. Therefore, that is why Elks v Wilkins was rejected in 1884 and will be rejected by the Contextual Originalists on the current Court.
Finally, many will place their hope in the 1924 Indian Citizenship Act to provide US Citizenship to Native Americans. “AN ACT To authorize the Secretary of the Interior to issue certificates of
Citizenship to Indians.” “BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.”
The Act seems relatively straightforward, but it is not. The first part requires the Issuance of Certificates of Citizenship, which never happened. Does this nullify the Act according to the requirement never being met by the United States? What is the Original Intent of the Congress? Was it to make Indians citizens of the United States or to issue citizenship certificates? The Marshall Trilogy, the Doctrine of Discovery, and Elks v Wilkins cloud the issue.
Following the 1924 Indian Citizenship Act, the Supreme Court must ultimately reject the Marshall Trilogy, the Doctrine of Discovery, and Elks v Wilkins and turn US Indian policy on its head. The Supreme Court may reject the 1924 Indian Citizenship Act and force Congress to readdress the underlying Constitutional issues raised by dismantling 200 years of American Indian Policy.
We must wait for the court to rule on these issues in the next few years in late June or early July. Until then, all Native Americans are in limbo.