What part of 'born...in the United States...' don't you understand?
What part of the holding in Elk v. Wilkins that I cited earlier do
you not understand? In that case the Supreme Court was interpreting the Citizenship Clause of the Fourteenth Amendment for the first time, and it emphasized the importance of the part of the clause you conveniently failed to mention: [I[]"and subject to the jurisdiction thereof."[/I]
Though the plaintiff alleges that he "had fully and completely surrendered himself to the jurisdiction of the United States," he does not allege that the United States accepted his surrender, or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the state or by the United States . . . .
The question, then, is whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States within the meaning of the first section of the Fourteenth Amendment of the Constitution. 112 U.S. 94, 99 (1884).
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The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is
not merely subject in some respect or degree to the jurisdiction of the United States, but
completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations. (emphasis added) Id. at 101-102.
I know all about Wong Kim Ark, where the same Justice Gray who had authored the majority opinion in Elk this time got the Citizenship Clause wrong. I also know that nothing prevents the Supreme Court from overruling whatever part of Wong Kim Ark, Plyler v. Doe, or any other of its decisions that may be standing in the way of the interpretation of the Citizenship Clause it used in Elk v. Wilkins. That interpretation, if applied to the children of parents who are aliens not legally present in the United States, would prevent them from being made U.S. citizens merely by the accident of being born within U.S. territory.
