18 S.Ct. 456

Supreme Court of the United States.

UNITED STATES

v.

WONG KIM ARK.

No. 132.

|

March 28, 1898.

**457 *649 This was a writ of habeas corpus, issued October 2, 1895, by the district court of the United States for the Northern district of California, to the collector of customs at the port of San Francisco, in behalf of Wong Kim Ark…

Opinion

Mr. Justice GRAY,…delivered the opinion of the court.

The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873, in the city of San Francisco, in the state of California and United States of America and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the emperor of China. They were at the time of his birth domiciled residents of the United States, having previously established and are still enjoying a permanent domicile and residence therein at San Francisco. They continued to reside and remain in the United States until 1890, when they departed for China; and, during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the emperor of China. Wong Kim Ark, ever since his birth, has had…one residence…in California, within the United States and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence; and neither he, nor his parents acting for him, ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him  *653 therefrom. In 1890 (when he must have been about 17 years of age) he departed for China, on a temporary visit,…with the intention of returning to the United States, and did return…in the same year, and was permitted by the collector of customs to enter the United States, upon the sole ground that he was a native-born citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about 21 years of age…) again departed for China on a temporary visit,… with the intention of returning to the United States; and he did return…in August, 1895, and applied to the collector of customs for permission to land, and was denied such permission, upon the sole ground that he was not a citizen of the United States.

It is conceded that, if he is a citizen of the United States, the acts of congress known as the ‘Chinese Exclusion Acts,’ prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution: ‘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.’

1. ***

The constitution of the United States, as originally adopted, uses the words ‘citizen of the United States’ and ‘natural-born citizen of the United States.’ By the original constitution, every representative in congress is required to have been ‘seven years a citizen of the United States,’ and every senator to have been ‘nine years a citizen of the United States’; and ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president.’ Article 2, § 1. The fourteenth…amendment, besides declaring that ‘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,’ also declares that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ And the fifteenth…amendment declares that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.’

The constitution nowhere defines the meaning of [citizen beyond] the affirmative declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ Amend. art. 14. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. [citations omitted] The language of the constitution…could not be understood without reference to the common law. [citations omitted]

***

1. The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’—of the king. The principle embraced all persons born within the king’s allegiance, and subject to his protection…[Not all children] born in England…were therefore natural-born subjects. [For example,] the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.

***

[B]y the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

1. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.

***

1. [omitted]
2. In the forefront, both of the fourteenth amendment…constitution, and of the civil rights act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.

The civil rights act, passed at the first session of the Thirty-Ninth congress, began by enacting that ‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every state and territory in the United States, to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom, to the contrary notwithstanding.’ Act April 9, 1866, c. 31, § 1 (14 Stat. 27).

The same congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent congress, framed the fourteenth amendment of the constitution, and on June 16, 1866, by joint resolution, proposed it to the legislatures of the several states; and on July 28, 1868, the secretary of state issued a proclamation showing it to have been ratified by the legislatures of the requisite number of states. 14 Stat. 358; 15 Stat. 708.

The first section of the fourteenth amendment of the constitution *676 begins with the words, ‘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.’ As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose…was…to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Scott v. Sandford (1857) 19 How. 393; and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States…But the opening words, ‘All persons born,’ are general, not to say universal, restricted only by place and jurisdiction, and not by color or race,…

Mr. Justice Miller, delivering the opinion of the majority of the court [in the Slaughter House Cases observed two things.  First, “the thirteenth, fourteenth, and fifteenth…amendment[s] of the constitution were all addressed to the grievances of the negro race, and were designed to remedy them.”  Second, the amendments are not limited to enslaved Afro-descendant people…[I]n treating of the first clause of the fourteenth amendment, he said: ‘The distinction between citizenship **468 of the United States and citizenship of a state is clearly recognized and established. Not only may a [person] be a citizen of the United States without being a citizen of a state, but an important element is necessary to convert the former into the latter. [A person] must reside within the state to make [them] a citizen of it, but it is only necessary that [they] should be born or naturalized in the United States to be a citizen of the Union.’ [citations omitted]

***

The real object of the fourteenth amendment of the constitution, in qualifying the words ‘all persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,—both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. [citations omitted]

***

[T]he jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction, rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war; and that the implied license, under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants, for purposes of business or pleasure, can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found. [citations omitted].

***

These considerations confirm the view… that the opening sentence of the fourteenth *688 amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship.

By the civil rights act of 1866, ‘all persons **472 born in the United States, and not subject to any foreign power, excluding Indians not taxed,’ were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, ‘not subject to any foreign power,’ were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright; or, for instance, for the first time in our history, to deny the right of citizenship to native-born children or foreign white parents not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the civil rights act, ‘not subject to any foreign power,’ gave way, in the fourteenth amendment of the constitution, to the affirmative words, ‘subject to the jurisdiction of the United States.’

This sentence of the fourteenth amendment is declaratory of existing rights, and affirmative of existing law, as to each of the qualifications therein expressed,—‘born in the United States,’ ‘naturalized in the United States,’ and ‘subject to the jurisdiction thereof’; in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by congress, in the exercise of the power conferred by the constitution to establish a uniform rule of naturalization.

The effect of the enactments conferring citizenship on foreign-born children of American parents has been defined, and the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well-considered opinions of the executive departments of the government, since the adoption of the fourteenth amendment of the constitution.

***

…The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance **474 and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet,…‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher’s case in 1851, and since repeated by this court: ‘Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance,—it is well known that by the public law an alien, or a stranger *694 born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulations.’ [citations omitted]

To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.

1. Whatever considerations, in the absence of a controlling provision of the constitution, might influence the legislative or the executive branch of the government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the fourteenth amendment, which declares and ordains that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’

Chinese persons, born out of the United States, remaining subjects of the emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens residing in the United States.[citations omitted]

***

During the debates in the senate in January and February, 1866, upon the civil rights bill, Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read: ‘All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color.’ Mr. Cowan, of Pennsylvania, asked ‘whether it will not have the effect of naturalizing the children of Chinese and Gypsies, born in this country?’ Mr. Trumbull answered, ‘Undoubtedly;’ and asked, ‘Is not the child born in this country of German parents a citizen?’ Mr. Cowan replied, ‘The children of German parents are citizens; but Germans are not Chinese.’ Mr. Trumbull rejoined, ‘The law makes no such distinction, and the child of an Asiatic is just as much a citizen as the child of a European.’ Mr. Reverdy Johnson suggested that the words, ‘without distinction of color,’ should be omitted as unnecessary; and said: ‘The amendment, as it stands, is that all persons born in the United States, and not subject to a foreign power, shall, by virtue of birth, be citizens. To that I am willing to consent; *698 and that comprehends all persons, without any reference to race or color, who may be so born.’ And Mr. Trumbull agreed that striking out those words would make no difference in the meaning, but thought it better that they should be retained, to remove all possible doubt. Cong. Globe, 39th Cong. 1st Sess. pt. 1, pp. 498, 573, 574.

The fourteenth amendment of the constitution, as originally framed by the house of representatives, lacked the opening sentence. When it came before the senate in May, 1866, Mr. Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words ‘or naturalized’), and reading: ‘All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.’ Mr. Cowan objected, upon the ground that the Mongolian race **476 ought to be excluded, and said, ‘Is the child of the Chinese immigrant in California a citizen?’ ‘I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that state and the other Pacific states to manage them as they may see fit, they may be useful; but I would not tie their hands by the constitution mgone from the country, and is beyond its jurisdiction them hereafter from dealing with them as in their wisdom they see fit.’ Mr. Conness, of California, replied: ‘The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.’ ‘We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the constitution of *699 the United States to be entitled to civil rights and to equal protection before the law with others.’ Cong. Globe, 39th Cong. 1st Sess. pt. 4, pp. 2890–2892. It does not appear to have been suggested, in either house of congress, that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the fourteenth amendment.

Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the amendment to the Chinese race was considered and not overlooked.

The acts of congress, known as the ‘Chinese Exclusion Acts,’ the earliest of which was passed some 14 years after the adoption of the constitutional amendment, cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions. And the right of the United States, as exercised by and under those acts, to exclude or to expel from the country persons of the Chinese race, born in China, and continuing to be subjects of the emperor of China, though having acquired a commercial domicile in the United States, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens, of whatever race or color. [citations omitted].

***

The power, granted to congress by the constitution, ‘to establish an uniform rule of naturalization,’ was long ago adjudged by this court to be vested exclusively in congress. [citations omitted] For many years after the establishment of the original constitution, and until two years after the adoption of the fourteenth amendment, congress never authorized the naturalization of any one but ‘free white persons.’ [citations omitted] …

By the act of July 14, 1870…for the first time, the naturalization laws were ‘extended to aliens of African nativity and to persons of African descent.’ Id . 256. This extension…took the form of providing that those laws should ‘apply to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent’; and it was amended by the act of Feb. *702 18, 1875,…by inserting the words above printed in brackets. Those statutes were held, by the circuit court of the United States in California, not to embrace Chinses aliens. [citations omitted] And by the act of May 6, 1882, c. 126, § 14, it was expressly enacted that, ‘hereafter no state court or court of the United States shall admit Chinese to citizenship.’ 22 Stat. 61.

***.

The fourteenth amendment…in the declaration that ‘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,’ contemplates two sources of citizenship, and two only,—birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case *703 of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

The power of naturalization, vested in congress by the constitution, is a power to confer citizenship, not a power to take it away. ‘A naturalized citizen,’ said Chief Justice Marshall, ‘becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize congress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances under which a native might sue.’ [citations omitted] Congress having no power to abridge the rights conferred by the constitution upon those who have become naturalized citizens by virtue of acts of congress, a fortiori no act or omission of congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the constitution itself, without any aid of legislation. **478 The fourteenth amendment, while it leaves the power, where it was before, in congress, to regulate naturalization, has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.

No one doubts that the amendment, as soon as it was promulgated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been; and yet, for two years afterwards, there was no statute authorizing persons of that race to be naturalized. If the omission or the refusal of congress to permit certain *704 classes of persons to be made citizens by naturalization could be allowed the effect of correspondingly restricting the classes of persons who should become citizens by birth, it would be in the power of congress, at any time, by striking negroes out of the naturalization laws, and limiting those laws, as they were formerly limited, to white persons only, to defeat the main purpose of the constitutional amendment.

The fact, therefore, that acts of congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the constitution: ‘All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’

1. Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth. No doubt he might himself, after coming of age, renounce this citizenship, and become a citizen of the country of his parents, or of any other country; for by our law, as solemnly declared by congress, ‘the right of expatriation is a natural and inherent right of all people,’ and ‘any declaration, instruction, opinion, order or direction of any officer of the United States, which denies, restricts, impairs or questions the right of expatriation, is declared inconsistent with the fundamental principles of the republic.’ Rev. St. § 1999, re-enacting Act July 27, 1868, c. 249, § 1 (15 Stat. 223, 224). Whether any act of himself, or of his parents, during his minority, could have the same effect, is at least doubtful. But it would be out of place to pursue that inquiry, inasmuch as it is expressly agreed that his residence has always been in the United States, and not elsewhere; that each of his temporary visits to China, the one for some months when he was about 17 years old, and the other for something like a year about the time of his coming of age, was made with the intention of returning, and was followed by his actual return, to the United States; and ‘that said Wong Kim Ark has not, either by himself or his parents acting *705 for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom.’

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Order affirmed.

788 F.3d 300

United States Court of Appeals,

District of Columbia Circuit.

Leneuoti Fiafia TUAUA, et al., Appellants

v.

UNITED STATES of America, et al., Appellees

American Samoa Government and Aumua Amata, Intervenors.

No. 13–5272.

|

Argued Feb. 9, 2015.

|

Decided June 5, 2015.

|

Rehearing En Banc Denied Oct. 2, 2015.

Procedural Posture(s): On Appeal; Motion to Dismiss for Failure to State a Claim.

*301 Appeal from the United States District Court for the District of Columbia (No. 1:12–cv–01143).

Opinion

BROWN, Circuit Judge:

**370 In our constitutional republic, Justice Brandeis observed, the title of citizen is superior to the title of President. Thus, the questions “ [w]ho is the citizen[?]” and “what is the meaning of the term?”…are no less than the questions of “who constitutes the sovereign state?” and “what is the meaning of statehood as an association?” We are called upon to resolve one narrow circumstance implicating these weighty inquiries. Appellants are individuals born in the United States territory of American Samoa. Statutorily deemed “non-citizen nationals” at birth, they argue the Fourteenth Amendment’s Citizenship Clause affords them citizenship by dint of birthright. They are opposed not merely by the United States but by the democratically elected government of the American Samoan people. We sympathize with Appellants’ individual plights, apparently more freighted with duty and sacrifice **371 *302 than benefits and privilege, but the Citizenship Clause is textually ambiguous as to whether “in the United States” encompasses America’s unincorporated territories and we hold it “impractical and anomalous,” …to impose citizenship by judicial fiat—where doing so requires us to override the democratic prerogatives of the American Samoan people themselves. The judgment of the district court is affirmed; the Citizenship Clause does not extend birthright citizenship to those born in American Samoa [which the U.N. General Assembly designated is a non-self-governing territory.] 

I

The South Pacific islands of American Samoa have been a United States territory since 1900, when the traditional leaders of the Samoan Islands of Tutuila and Aunu’u voluntarily ceded their sovereign authority to the United States Government…Today the American Samoan territory is partially self-governed, possessing a popularly elected bicameral legislature and similarly elected governor…The territory, however, remains under the ultimate supervision of the Secretary of the Interior...

 Unlike those born in the United States’ other current territorial possessions—who are statutorily deemed American citizens at birth—section 308(1) of the Immigration and Nationality Act of 1952 designates persons born in American Samoa as non-citizen nationals…Below, Appellants challenged section 308(1), as well as State Department policies and practices implementing the statute… on Citizenship Clause grounds and under the Administrative Procedure Act. The district court rejected Appellants’ arguments and dismissed the case for failure to state a claim upon which relief can be granted…On appeal Appellants reassert only their constitutional claim. Our review is de novo. [citations omitted]

II

The Citizenship Clause of the Fourteenth Amendment provides that “[a]ll 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.” [citations omitted] Both Appellants and the United States government³ agree the text and structure of the Fourteenth Amendment unambiguously leads to a single inexorable conclusion as to whether American Samoa is within the United States for purposes of the clause. They materially disagree only as to whether **372 *303 the inescapable conclusion to be drawn is whether American Samoa “is” or “is not” a part of the United States. [citations omitted]

A

 Appellants rely on a comparison of the first and second clauses of the Fourteenth Amendment—the Citizenship and Apportionment Clauses, respectively. They argue the former is framed expansively through use of the overarching term “in the United States,” …while the latter speaks narrowly in terms of apportionment of representatives “among the several States,” … In contrast, the Appellees look to differences between the Thirteenth and Fourteenth Amendment.  Partly relying on dictum…, the United States Government argues the Thirteenth Amendment prohibits slavery “within the United States, or any place subject to their jurisdiction,”…, while the Fourteenth Amendment’s Citizenship Clause applies to persons “born ... in the United States, and subject to the jurisdiction thereof,” id. According to the Government the Thirteenth Amendment’s phraseology contemplates areas “not a part of the Union, [which] [a]re still subject to the jurisdiction of the United States,” while the Fourteenth Amendment incorporates a “limitation to persons born or naturalized in the United States, which is not extended to persons born in any place ‘subject to their jurisdiction.’ ” Id.

Neither argument is fully persuasive, nor does it squarely resolve the meaning of the ambiguous phrase “in the United States.” The text and structure alone are insufficient to divine the Citizenship Clause’s geographic scope. The difference between the Citizenship and Apportionment Clauses could suggest the former has a broader reach than the latter…But, even if this is the case, Appellants’ argument does not resolve the question at issue because both text and structure are silent as to the precise contours of the “United States” under the Citizenship Clause. Even if “United States” is broader than “among the several States,” it remains ambiguous whether territories situated like American Samoa are “within” the United States for purposes of the clause. The Government’s argument is similarly incomplete. While the language of the Thirteenth Amendment may be broader than that found in the Citizenship Clause, this comparison yields no dispositive insight as to whether **373 *304 the Citizenship Clause’s use of the term “United States” includes American Samoa or similarly situated territories.

Appellants rely on scattered statements from the legislative history to bolster their textual argument… Here, and as a general matter, “[i]solated statements ... are not impressive legislative history.” [citations omitted]

B

Appellants and Amici Curiae further contend the Citizenship Clause must—under Supreme Court precedent—be read in light of the common law tradition of jus soli or “the right of the soil.” …

The doctrine of jus soli is an inheritance from the English common law. Those born “within the King’s domain” and “within the obedience or ligeance of the King” were subjects of the King, or “citizens” in modern parlance. [citations omitted] The domain of the King was defined broadly. It extended beyond the British Isles to include, for example, persons born in the American colonies. [citations omitted]

After independence the former colonies continued to look to the English common law rule. [citations omitted] Following the Constitution’s ratification the principal exception to jus soli was for African Americans born in the United States [citations omitted]; an exception necessarily repudiated with the ratification of the Fourteenth Amendment.⁵ Relying on the Supreme Court’s opinion in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, Appellants and Amici Curiae accordingly argue the geographic scope of the Fourteenth Amendment’s Citizenship Clause should be read expansively as the “domain” of the sovereign under background jus soli principles.

 We are unconvinced, however, that Wong Kim Ark reflects the constitutional codification of the common law rule as applied to outlying territories…[T]he expansive language of Wong Kim Ark must be read with the understanding that the case “involved a person born in San Francisco, California. The fact that he had been born ‘within the territory’ of the United States was undisputed, and made it unnecessary to define ‘territory’ rigorously or decide whether ‘territory’ in its broader sense meant ‘in the United States’ under the Citizenship Clause.”[ citations omitted] “It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” [citations omitted]

And even assuming the framers intended the Citizenship Clause to constitutionally codify jus soli principles, birthright citizenship does not simply follow the flag. Since its conception jus soli has incorporated a requirement of allegiance to the sovereign. To the extent jus soli is adopted into the Fourteenth Amendment, the concept of allegiance is manifested by the Citizenship Clause’s mandate that birthright citizens not merely be born within the territorial boundaries of the United States but also “subject to the jurisdiction thereof…” [citations omitted]

 Appellants would find any allegiance requirement of no moment because, as non-citizen nationals, American Samoans already “owe[ ] permanent allegiance to the United States.”[citations omitted] Yet, within the context of the Citizenship Clause, “[t]he evident meaning of the[ ] ... words [“subject to the jurisdiction thereof”] 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.” **375 [citations omitted] *306  It was on this basis that the Supreme Court declined to extend constitutional birthright citizenship to Native American tribes. [citations omitted]…Even assuming a background context grounded in principles of jus soli, we are skeptical the framers plainly intended to extend birthright citizenship to distinct, significantly self-governing political territories within the United States’s sphere of sovereignty—even where, as is the case with American Samoa, ultimate governance remains statutorily vested with the United States Government. [citations omitted]

III

Analysis of the Citizenship Clause’s application to American Samoa would be incomplete absent invocation of the sometimes contentious Insular Cases, where the Supreme Court “addressed whether the Constitution, by its own force, applies in any territory that is not a State.” [citations omitted]

“The doctrine of ‘territorial incorporation’ announced in the Insular Cases distinguishes between incorporated territories, which are intended for statehood from the time of acquisition and in which the entire Constitution applies ex proprio vigore, and unincorporated territories [such as American Samoa], which are not intended for statehood and in which only [certain] fundamental constitutional rights apply by their own force.”[citations omitted].

Appellants and Amici contend the Insular Cases have no application because the Citizenship Clause textually defines its own scope.[citations omitted].

Amici Curiae suggest territorial incorporation doctrine should not be expanded to the Citizenship Clause because the doctrine rests on anachronistic views of race and imperialism. But the Court has continued to invoke the Insular framework when dealing with questions of territorial and extraterritorial application. [citations omitted] Although some aspects of the Insular Cases’ analysis may now be deemed politically incorrect, the framework remains both applicable and of pragmatic use in assessing the applicability of rights to unincorporated territories. [citations omitted]

As the Supreme Court…emphasized, the “common thread uniting the Insular Cases ... [is that] questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” [citations omitted] While “fundamental limitations in favor of personal rights” remain guaranteed to persons born in the unincorporated territories, [citations omitted], the Insular framework recognizes the difficulties that frequently inure when “determin[ing] [whether a] particular provision of the Constitution is applicable,” absent inquiry into the impractical or anomalous. [citations omitted]

A

 American citizenship “is one of the most valuable rights in the world today.” [citations omitted] “The freedoms and opportunities secured by United States citizenship long have been treasured by persons fortunate enough to be born with them, and are yearned for by countless less fortunate.” [citations omitted]. Accordingly, even if the Insular framework is applicable, Appellants cite to a bevy of cases to argue citizenship is a fundamental right. [citations omitted] But those cases do not arise in the territorial context. Such decisions do not reflect the Court’s considered judgment as to the existence of a fundamental right to citizenship for persons born in the United States’ unincorporated **377 *308 territories. [citations omitted].⁷

 “Fundamental” has a distinct and narrow meaning in the context of territorial rights. It is not sufficient that a right be considered fundamentally important in a colloquial sense or even that a right be “necessary to [the] [ ]American regime of ordered liberty.” [citations omitted]. Under the Insular framework the designation of fundamental extends only to the narrow category of rights and “principles which are the basis of all free government.” [citations omitted]

In this manner the Insular Cases distinguish as universally fundamental those rights so basic as to be integral to free and fair society. In contrast, we consider non-fundamental those artificial, procedural, or remedial rights that—justly revered though they may be—are nonetheless idiosyncratic to the American social compact or to the Anglo–American tradition of jurisprudence. [citations omitted]

 We are unconvinced a right to be designated a citizen at birth under the jus soli tradition, rather than a non-citizen national, is a “sine qua non for ‘free government’ ” or otherwise fundamental under the Insular Cases’ constricted understanding of the term. [citations omitted]. Regardless of its independently controlling force, we therefore adopt the conclusion [that] “[c]itizenship by birth within the sovereign’s domain [may be] a cornerstone of [the Anglo–American] common law tradition,” [citations omitted] but numerous free and democratic societies principally follow jus sanguinis—“right of the blood”—where birthright citizenship is based upon nationality of a child’s parents.  [citations omitted]

In states following a jus sanguinis tradition birth in the sovereign’s domain—whether in an outlying territory, colony, or the country proper—is simply irrelevant to the question of citizenship. Nor is the asserted right so natural and intrinsic to the human condition as could not warrant transgression in civil society. [citations omitted] “[C]itizenship has no meaning in the absence of difference.” Peter J. Spiro, The Impossibility of Citizenship, 101 MICH. L.REV. 1492, 1509 (2003). The means by which free and fair societies may elect to ascribe the classification of citizen must accommodate variation where consistent with respect for other, inherent and inalienable, rights of persons. To find a natural right to jus soli birthright citizenship would give umbrage to the liberty of free people to govern the terms of association within the social compact underlying formation of a sovereign state. [citations omitted]

B

The absence of a fundamental territorial right to jus soli birthright citizenship does not end our inquiry. “The decision in the present case does not depend on key words such as ‘fundamental’ or ‘unincorporated territory [,]’ ... but can be reached only by applying the principles of the [Insular] [C]ases, as controlled by their respective contexts, to the situation as it exists in American Samoa today.” [citations omitted] “[T]he question is which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives which Congress had before it.” [citations omitted] In sum, we must ask whether the circumstances are such that recognition of the right to birthright citizenship would prove “impracticable and anomalous,” as applied to contemporary American Samoa. [citations omitted].

Despite American Samoa’s lengthy relationship with the United States, the American Samoan people have not formed a collective consensus in favor of United States citizenship. In part this reluctance stems from unique kinship practices and social structures inherent to the traditional Samoan way of life, including those related to the Samoan system of communal land ownership. Traditionally aiga (extended families) “communally own virtually all Samoan land, [and] the matais [chiefs] have authority over which family members work what family land and where the nuclear families within the extended family will live.” [citations omitted] Extended **379 *310 families under the authority of matais remain a fundamentally important social unit in modern Samoan society.

Representatives of the American Samoan people have long expressed concern that the extension of United States citizenship to the territory could potentially undermine these aspects of the Samoan way of life. For example Congressman Faleomavaega and the American Samoan Government posit the extension of citizenship could result in greater scrutiny under the Equal Protection Clause of the Fourteenth Amendment, imperiling American Samoa’s traditional, racially-based land alienation rules. Appellants contest the probable danger citizenship poses to American Samoa’s customs and cultural mores.

The resolution of this dispute would likely require delving into the particulars of American Samoa’s present legal and cultural structures to an extent ill-suited to the limited factual record before us. [citations omitted] We need not rest on such issues or otherwise speculate on the relative merits of the American Samoan Government’s Equal Protection concerns. The imposition of citizenship on the American Samoan territory is impractical and anomalous at a more fundamental level.

We hold it anomalous to impose citizenship over the objections of the American Samoan people themselves, as expressed through their democratically elected representatives. [citations omitted] A republic of people “is not every group of men, associated in any manner, [it] is the coming together of ... men who are united by common agreement....” [citations omitted] In this manner, we distinguish a republican association from the autocratic subjugation of free people. And from this, it is consequently understood that democratic “governments ... deriv[e] their [ ] powers from the consent of the governed,” [citations omitted; under any just system of governance the fount of state power rests on the participation of citizens in civil society—that is, through the free and full association of individuals with, and as a part of, society and the state.¹¹

*311 **380  “Citizenship is the effect of [a] compact[;] ... [it] is a political tie.” [citations omitted] “[E]very [ ] question of citizenship[ ] ... [thus] depends on the terms and spirit of [the] social compact.” [citations omitted] The benefits of American citizenship are not understood in isolation; reciprocal to the rights of citizenship are, and should be, the obligations carried by all citizens of the United States. [citations omitted]

 Citizenship is not the sum of its benefits. It is no less than the adoption or ascription of an identity, that of “citizen” to a particular sovereign state, and a ratification of those mores necessary and intrinsic to association as a full functioning component of that sovereignty.[citations omitted] At base Appellants ask that we forcibly impose a compact of citizenship—with its concomitant rights, obligations, and implications for cultural identity¹²—on a distinct and unincorporated territory of people, in the absence of evidence that a majority of the territory’s inhabitants endorse such a tie and where the territory’s democratically elected representatives actively oppose such a compact.

We can envision little that is more anomalous, under modern standards, than the forcible imposition of citizenship against the majoritarian will.¹³ See, e.g., U.N. Charter arts. 1, 73 (recognizing self-determination of people as a guiding principle and obliging members to “take due account of the political aspirations of the peoples” inhabiting non-self-governing territories under a member’s responsibility);¹⁴ Atlantic Charter, U.S.-U.K., Aug. 14, 1941 (endorsing “respect [for] the right of all peoples to choose the form of government under which they will live”); Woodrow Wilson, President, United States, Fourteen Points, Address to Joint Session of Congress (Jan. 8, 1918) (“[I]n determining all [ ] questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to **381 *312 be determined.”) (Point V). [citations omitted] To hold the contrary would be to mandate an irregular intrusion into the autonomy of Samoan democratic decision-making; an exercise of paternalism—if not overt cultural imperialism—offensive to the shared democratic traditions of the United States and modern American Samoa. [citations omitted]

IV

For the foregoing reasons the district court is

Affirmed.

5 S.Ct. 41

Supreme Court of the United States.

ELK

v.

WILKINS.

November 3, 1884.

Opinion

*98 GRAY, J.

*94 This is an action brought by an Indian, in the circuit court of the United States for the district of Nebraska, against the registrar of one of the wards of the city of Omaha, for refusing to register him as a qualified voter therein. The petition was as follows: *95 ‘John Elk, plaintiff, complains of Charles Wilkins, defendant, and avers that the matter in dispute herein exceeds the sum of five hundred dollars, to-wit, the sum of six thousand dollars, and that the matter in dispute herein arises under the constitution and laws of the United States; and, for cause of action against the defendant, avers that he, the plaintiff, is an Indian, and was born within the United States; that more than one year prior to the grievances hereinafter complained of he had severed his tribal relation to the Indian tribes, and had fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States; and avers that, under and by virtue of the fourteenth amendment to the constitution of the United States, he is a citizen of the United States, and entitled to the right and privilege of citizens of the United States. That on the sixth day of April, 1880, there was held in the city of Omaha (a city of the first class, incorporated under the general laws of the state of Nebraska, providing for the incorporation of cities of the first class) a general election for the election of members of the city council and other officers for said city. That the defendant, Charles Wilkins, held the office of and acted as registrar in the Fifth ward of said city, and that as such registrar it was the duty of such defendant to register the names of all persons entitled to exercise the elective franchise in said ward of said city at said general election. That this plaintiff was a citizen of and had been a bona fide resident of the state of Nebraska for more than six months prior to said sixth day of April, 1880, and had been a Bona fide resident of Douglas county, wherein the city of Omaha is situate, for more than forty days, and in the Fifth ward of said city more than ten days prior to the said sixth day of April, and was such citizen and resident at the time of said election, and at the time of his attempted registration, as hereinafter set forth, and was in every way qualified, under the laws of the state of Nebraska and of the city of Omaha, to be registered as a voter, and to cast a vote at said election, and complied with the laws of the city and state in that behalf. *96 That on or about the fifth day of April, 1880, and prior to said election, this plaintiff presented himself to said Charles Wilkins, as such registrar, at his office, for the purpose of having his name registered as a qualified voter, as provided by law, and complied with all the provisions of the statutes in that regard, and claimed that, under the fourteenth and fifteenth amendments to the constitution of the United States, he was a citizen of the United States, and was entitled to exercise the elective franchise, regardless of his race and color; and that said Wilkins, designedly, corruptly, willfully, and maliciously, did then and there refuse to register this plaintiff, for the sole reason that the plaintiff was an Indian, and therefore not a citizen of the United States, and not, therefore, entitled to vote, and on account of his race and color, and with the willful, malicious, corrupt, and unlawful design to deprive this plaintiff of his right to vote at said election, and of his rights, and all other Indians of their rights, under said fourteenth and fifteenth amendments to the constition of the United States, on account of his and their race and color. That on the sixth day of April this plaintiff presented himself at the place of voting in said ward, and presented a ballot, and requested the right to vote, where said Wilkins, who was then acting as one of the judges of said election in said ward, in further carrying out his willful and malicious designs as aforesaid, declared to the plaintiff and to the other election officers that the plaintiff was an Indian, and not a citizen, and not entitled to vote, and said judges and clerks of election refused to receive the vote of the plaintiff, **43 for that he was not registered as required by law. Plaintiff avers the fact to be that by reason of said willful, unlawful, corrupt, and mailcious refusal of said defendant to register this plaintiff, as provided by law, he was deprived of his right to vote at said election, to his damage in the sum of $6,000. Wherefore, plaintiff prays judgment against defendant for $6,000, his damages, with costs of suit.’

The defendant filed a general demurrer for the following causes: (1) That the petition did not state facts sufficient to constitute a cause of action; (2) that the court had no jurisdiction of the person of the defendant; (3) that the court had no jurisdiction of the subject of the action. The demurrer was argued before Judge McCRARY and Judge DUNDY, and sustained; and, the plaintiff electing to stand by his petition, judgment was rendered for the defendant, dismissing the petition, with costs. The plaintiff sued out this writ of error.

By the constitution of the state of Nebraska, art. 7, § 1, ‘every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward for the term provided by law, shall be an elector: First, citizens of the United States; second, persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization, at least thirty days prior to an election.’ By the statutes of Nebraska, every male person of the age of 21 years or upward, belonging to either of the two classes so defined in the constitution of the state, who shall have resided in the state 6 months, in the county 40 days, and in the precinct, township, or ward 10 days, shall be an elector; the qualifications of electors in the several wards of cities of the first class (of which Omaha is one) shall be the same as in precincts; it is the duty of the registrar to enter in the register of qualified voters the name of every person who applies to him to be registered, and satisfies him that he is qualified to vote under the provisions of the election laws of the state; and at all municipal, as well as county or state elections, the judges of election are required to check the name, and receive and deposit the ballot, of any person whose name appears on the register. Comp. St. Neb. 1881, c. 26, § 3; c. 13, § 14; c. 76, §§ 6, 13, 19.

The plaintiff, in support of his action, relies on the first clause of the first section of the fourteenth article of amendment of the constitution of the United States, by which ‘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;’ and on the fifteenth article of amendment, which provides that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.’ This being a suit at common law in which the matter in dispute exceeds $500, arising under the constitution of the United States, the circuit court had jurisdiction of it under the act of March 3, 1875, c. 137, § 1, even if the parties were citizens of the same state. [citations omitted] The judgment of that court, dismissing the action with costs, must have proceeded upon the merits, for if the dismissal had been for want of jurisdiction, no costs could have been awarded. [citations omitted] And the only point argued by the defendant in this court is whether the petition sets forth facts enough to constitute a cause of action. The decision of this point, as both parties assume in their briefs, depends upon the question whether the legal conclusion, that under and by virtue of the fourteenth amendment of the constitution the plaintiff is a citizen of the United States, is supported by the [following] facts alleged in the petition and admitted by the demurrer…: The plaintiff is an Indian, and was born in the United States, and has severed his **44 tribal relation to the Indian tribes, and fully and completely surrendered himself to the jurisdiction of the United States, and still continues to be subject to the jurisdiction of the United States, and is a bona fide resident of the state of Nebraska and city of Omaha…

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. Under the constitution of the United States, as originally established, ‘Indians not taxed’ were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several states; and congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the states of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the president and senate, or through acts of congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed *100 by any state. General acts of congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them. [citations omitted]

The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization and satisfactory proof of fitness for civilized life; for examples of which see treaties in 1817 and 1835 with the Cherokees, and in 1820, 1825, and 1830 with the Choctaws, [citations omitted] in 1855 with the Wyandotts, [citations omitted] and in March, 1866, with the Pottawatomies, [citations omitted] in 1862 with the Ottawas, [citations omitted] and the Kickapoos, [citations omitted] and acts of congress [specifically involving the Brothertown Indians and the Stockbridge Indians]. 

Chief Justice TANEY, in the passage cited for the plaintiff *101 from his opinion in Scott v. Sandford, 19 How. 393, 404, did not affirm or imply that either the Indian tribes, or individual members of those tribes, had the right, beyond other foreigners, to become citizens of their own will, without being naturalized by the United States. His words were: ‘They’ (the Indian tribes) ‘may without doubt, like the subjects of any foreign government, be naturalized by the authority of congress, and become citizens of a state, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.’ But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.

The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the constitution, by which ‘no person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president;’ and ‘the congress shall have power to establish an uniform rule of naturalization.’ [citations omitted] By the thirteenth amendment of the constitution slavery was prohibited. The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, [citations omitted] and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. [citations omitted]

This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared *102 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. This view is confirmed by the second section of the fourteenth amendment, which provides that ‘representatives shall be apportioned among **46 the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.’ Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original constitution as counted only three-fifths of such persons. But Indians not taxed are still excluded from the count, [because]…they are not citizens. Their absolute exclusion from the basis of representation, in which all other persons are now included, is wholly inconsistent with their being considered citizens. So the further provision of the second section for a proportionate *103 reduction of the basis of the representation of any state in which the right to vote for presidential electors, representatives in congress, or executive or judicial officers or members of the legislature of a state, is denied, except for participation in rebellion or other crime, to ‘any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States,’ cannot apply to a denial of the elective franchise to Indians not taxed, who form no part of the people entitled to representation.

It is also worthy of remark that the language used, about the same time, by the very congress which framed the fourteenth amendment, in the first section of the civil rights act of April 9, 1866, declaring who shall be citizens of the United States, is ‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.’ [citations omitted] Such Indians, then, not being citizens by birth, can only become citizens in the second way mentioned in the fourteenth amendment, by being ‘naturalized in the United States,’ by or under some treaty or statute. The action of the political departments of the government, not only after the proposal of the amendment by congress to the states in June, 1866, but since the proclamation in July, 1868, of its ratification by the requisite number of states, accords with this construction. While the amendment was pending before the legislatures of the several states, treaties containing provisions for the naturalization of members of Indian tribes as citizens of the United States were made on July 4, 1866, with the Delawares, in 1867 with various tribes in Kansas, and with the Pottawatomies, and in April, 1868, with the Sioux. [citations omitted]

The treaty of 1867 with the Kansas Indians strikingly illustrates the principle that no one can become a citizen of a nation without its consent, and directly contradicts the supposition that a member of an Indian tribe can at will be alternately a citizen of the United States and a member of the tribe. That treaty not only provided for the naturalization of members *104 of the Ottawa, Miami, Peoria, and other tribes, and their families, upon their making declaration, before the district court of the United States, of their intention to become citizens, [citations omitted] but, after reciting that some of the Wyandotts, who had become citizens under the treaty of 1855, were ‘unfitted for the responsibilities of citizenship,’ and enacting that a register of the whole people of this tribe, resident in Kansas or elsewhere, should be taken, under the direction of the secretary of the interior, showing the names of ‘all who declare their desire to be and remain Indians and in a tribal condition,’ and of incompetents and orphans as described in the treaty of 1855, and that such persons, and those only, should thereafter constitute the tribe, it provided that ‘no one who has heretofore consented to become a citizen, nor the wife or children of any such person, shall be allowed to become members of the tribe, except by the free consent of the tribe after its new organization, and unless the agent shall certify that such party is, through poverty or incapacity, unfit to continue in the exercise of the responsibilities of citizenship of the United States, and likely to become a public charge.’ [citations omitted]

Since the ratification of the fourteenth amendment, congress has passed several acts for naturalizing Indians of certain tribes, which would have been **47 superfluous if they were, or might become without any action of the government, citizens of the United States.

***

The law upon the question before us has been well stated …[as follows] ‘Being born a member of ‘an independent political community’-the Chinook-he was not born subject to the jurisdiction of the United States-not born in its allegiance.’ [citations omitted] [In addition, a later case declared]: ‘[A]n Indian cannot make himself a citizen of the United States without the consent and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form. The Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since.’ [citations omitted] Upon the question whether any action of a state can confer rights of citizenship on Indians of a tribe still recognized by the United States as retaining its tribal existence, we need not, and do not, express an opinion, because the state of Nebraska is not shown to have taken any action affecting the condition of this plaintiff.[citations omitted] The plaintiff, not being a citizen of the United States under the fourteenth amendment of the constitution, has been deprived of no right secured by the fifteenth amendment, and cannot maintain this action. Judgment affirmed.

*110 HARLAN, J., dissenting. [omitted]