American citizenship is a very precious possession. It affords rights that residents of other countries can only dream of. So who is eligible to claim American citizenship? The U.S. Supreme Court may soon consider that question.
Section 1401(a) of Title 8 of the United States Code defines a U.S. citizen as "a person born in the United States, and subject to the jurisdiction thereof." This law uses the same language as the Citizenship Clause of the Fourteenth Amendment. Birth on U.S. territory has never been an absolute claim to citizenship. The Fourteenth Amendment does not automatically extend to children born to alien parents at conflict to immigration laws with the United States, or to the children of diplomatic agents, or to American Indians, or to illegal aliens. If it did, American Indians would automatically have been American citizens since they were born on what is U.S. territory. But American Indians who belong to tribes were not citizens until given that status by Congress.
The Supreme Court held in 1884 in Elk v. Wilkins that "Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian 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."
The logic of this decision applies with equal force to visitors or aliens who remain loyal to foreign powers. The Fourteenth Amendment did not change this. It has to do with their registration, citizenship process and especially to their willing allegiance to the United States.
In the 1942 Supreme Court case called: "Thenault"
a federal court ruled: "Of course, the mere physical fact of birth in the country does not make these children citizens of the United States, in as much as they were at that time children of a duly accredited diplomatic representative of a foreign state. This is fundamental law and within the recognized exception not only to the Constitutional provision relative to citizenship, Amendment Article 14, Section I, but to the law."
In supporting passage of the Fourteenth Amendment, Senate Judiciary Committee Chairman Lyman Trumbull explained that the jurisdictional language in the Citizenship Clause "means `subject to the complete jurisdiction thereof.' ... [Are] the Navajo Indians subject to the complete jurisdiction of the United States? By no means. We made treaties with them. ... It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government ... that he is `subject to the jurisdiction of the United States.' ... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens."
The extensive litigation concerning American Indians illustrates that consent rather than place of birth is what controls citizenship. Indians did not receive citizenship until conferred by congressional acts in 1887, 1901 and 1924, long after ratification of the Fourteenth Amendment. The Constitution states that "no person except a natural born citizen" is eligible to be President. Everyone recognizes that this provision disqualifies the Governors of California and Michigan who were born in Austria and Canada, respectively.
On the other hand, Michigan Governor George Romney, whose birthplace was Mexico, ran for president in 1968, and Senator John McCain, whose birthplace was the Panama Canal Zone, ran for president in 2000. Both were "natural born citizens" because their parents were U.S. citizens and subject to the jurisdiction of American sovereignty.
It's not the physical location of birth that defines citizenship, but whether your parents are citizens, and the express or implied consent to jurisdiction of the sovereign country. The facts and the law argue against American citizenship for those who are personally unwilling to recognize and consent to that sovereignty.
There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment. During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as excluding not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”. He was supported by other senators including Edgar Cowen and Reverdy Johnson Howard also stated the word jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now" and that the United States possessed a “full and complete jurisdiction” over the person described in the amendment. Other senators, including Senator John Conness, supported the amendment, believing citizenship ought to be extended to children of foreigners.
In the late 1990s opposition arose over the longstanding practice of granting automatic citizenship on a jus soli basis to American-born children of illegal immigrants and tourists as fears grew in some circles that the existing law encouraged parents-to-be to come to the United States to have children in order to improve the parents' chances of attaining legal residency themselves. Some critics, including former congressman Virgil Goode, have controversially dubbed this the "anchor baby" situation, and politicians have proposed legislation on this basis that might alter how birthright citizenship is awarded.
Bills have been introduced from time to time in Congress which have sought to declare U.S.-born children of foreign nationals not to be subject to the "jurisdiction" of the United States, and thus not entitled to citizenship via the 14th Amendment, unless at least one parent were a U.S. citizen or a lawful permanent resident. For example, Representative Nathan Deal (a Republican from Georgia) introduced the "Citizenship Reform Act of 2005" (H.R. 698) in the 109th Congress, and the "Birthright Citizenship Act of 2007" (H.R. 1940) in the 110th Congress. Neither these nor any similar bills, however, have ever been approved by Congress.
Some legislators, unsure whether such acts of Congress would survive court challenges, have proposed that the Citizenship Clause be changed through a constitutional amendment. Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.
If you are a resident of the United States but not a legal resident or citizen, and happen to disagree with the policies and laws of immigration, and contest and protest the rights to citizenship...
go on an American Indian reservation and ask them if they are a citizen...
they will tell you if you're taking a free ride.