alt Hacker NewsYour deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Also, IMHO, The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States ... and at the time of the 14th amendment it's not really clear if United States is meant as a singular noun or a collective noun... given that people born in the territories are not automatic citizens, I think the interpretation is that you have to be subject to the jursidiction of any one of the States, which an Indian born on a reservation certainly wasn't.
> Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed."
The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language.
> The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States
Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand.
I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text.