{"id":3857,"date":"2026-02-24T13:11:35","date_gmt":"2026-02-24T17:11:35","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=3857"},"modified":"2026-02-24T13:11:35","modified_gmt":"2026-02-24T17:11:35","slug":"indians-and-citizenship-territorial-birth-parental-status-in-contemporaneous-caselaw-elias-neibart","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/indians-and-citizenship-territorial-birth-parental-status-in-contemporaneous-caselaw-elias-neibart\/","title":{"rendered":"Indians and Citizenship: Territorial Birth & Parental Status in\u00a0Contemporaneous Caselaw \u2013 Elias Neibart"},"content":{"rendered":"\n
\n
PDF<\/a><\/div>\n<\/div>\n\n\n\n
\"\"<\/figure>\n\n\n\n

Introduction<\/h3>\n\n\n\n

Soon, in\u00a0Trump v. Barbara<\/em>, the Supreme Court will weigh in on the question of birthright citizenship. At issue is one sentence in the Fourteenth Amendment: \u201cAll 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.\u201d\u00a0The Court will have to confront what exactly it means to be \u201cborn\u00a0. . .\u00a0subject to the jurisdiction\u201d of the United States.<\/p>\n\n\n\n

Originalist scholars have weighed in. On one side of the debate is Professor Ilan Wurman. He has argued that \u201cbirthright citizenship depended largely, even if not exclusively, on the status of the parents as being within the allegiance and under the protection of the sovereign.\u201d If a parent was \u201cwithin the allegiance and under the protection of the sovereign,\u201d he was subject to the sovereign\u2019s complete \u201cmunicipal jurisdiction.\u201d And, if that were the case, any children that parent had would be bona fide citizens of the polity. Others disagree with Wurman\u2019s focus on parental status. Professor Keith Whittington, for example, has argued that, \u201cexcept under very narrow exceptions,\u201d \u201c[c]hildren born within the territory of the United States are natural-born citizens.\u201dThe status of one\u2019s parents, in this account, is largely immaterial. As long as you are \u201cborn within the governing authority of the nation,\u201d you \u201care thereby subject to its jurisdiction.\u201d For Whittington, citizenship hinges upon\u00a0where\u00a0<\/em>you are born.\u00a0<\/p>\n\n\n\n

The status of Indians presents a conceptual problem for Whittington\u2019s view.\u00a0After all, those born to \u201cparents in a Native American tribe\u201d are \u201cborn within the geographic territory of the United States.\u201d But it\u2019s widely understood that those children are\u00a0not\u00a0<\/em>citizens under the Fourteenth Amendment. Whittington deals with this issue by arguing that \u201c[t]he critical point\u00a0. . . was\u00a0that Indians born on tribal lands were foreigners to the United States.\u201d But, for him, \u201cthe\u00a0land<\/em>\u00a0is doing the important work. Indian land is within the\u00a0territory<\/em>\u00a0of the United States but is not\u00a0governed<\/em>\u00a0by the United States.\u201d To Whittington, \u201cthe Reconstruction Congress was\u00a0. . . concerned with whether \u2018Indian\u00a0country\u2019 was governed by American law.\u201d Put another way, the central question was whether a child was born on \u201csovereign territory\u201d (i.e., Indian\u00a0land<\/em>).<\/p>\n\n\n\n

But what if a Native American parent had a child outside <\/em>Indian country? Or, alternatively, what if an American had a child inside <\/em>Indian country? Would the child of a Native American parent be born an American? Would the child of the American parent be born a tribal member? If not\u2014if citizenship didn\u2019t track location but instead tracked parental status\u2014cracks would start to form in Whittington\u2019s territory-centric view. <\/p>\n\n\n\n

This short essay sheds light on these questions. It presents a handful of cases\u2014all of which have been largely overlooked in the recent literature\u2014that call into question this territory-focused conception of citizenship. Shortly after the Fourteenth Amendment was ratified, courts were asked to determine the citizenship status of litigants and parties before them: Were they Indians or United States citizens? What the following demonstrates is that courts did not adopt a territory-centric view of citizenship. A child might still be considered an Indian even if he was born\u00a0outside\u00a0<\/em>tribal land. And a child might still be considered an American even if he was born\u00a0within\u00a0<\/em>tribal land. Rather than focusing on the location of birth, courts often probed the legal status of the child\u2019s parents. Of course, none of this evidence answers the ultimate question in\u00a0Barbara.\u00a0<\/em>This essay just speaks to one of the issues in that case: Do we look at location of birth or parental status? Consistent with the history recounted in this paper, it may still be the case, as prominent originalist Professor Michael Ramsey has argued, that temporary visitors and those here unlawfully are \u201csubject to the jurisdiction\u201d of the United States; as such, their children\u00a0would<\/em>\u00a0be citizens under the Fourteenth Amendment. But this essay\u2019s findings do suggest that birth in a particular territory alone was not the decisive factor in citizenship determinations.\u00a0<\/p>\n\n\n\n

\n\n\n\n

Click here<\/a> to continue reading the full piece.<\/p>\n","protected":false},"excerpt":{"rendered":"

Shortly after the Fourteenth Amendment was ratified, courts were asked to determine the citizenship status of litigants and parties before them: Were they Indians or United States citizens? What the following demonstrates is that courts did not adopt a territory-centric view of citizenship.<\/p>\n","protected":false},"author":202,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[72],"tags":[146,13,27],"class_list":["post-3857","post","type-post","status-publish","format-standard","hentry","category-per-curiam","tag-birthright-citizenship","tag-constitutional-law","tag-fourteenth-amendment"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSiL-10d","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3857","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/users\/202"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3857"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3857\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3857"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3857"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3857"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}