Matthew L.M. Fletcher

Here are the materials in State of Washington v. Trump (W.D. Wash.):

And here are the materials in State of New Jersey v. Trump (D. Mass.):

Why is this important to Indian law observers? The Department of Justice has made an argument rooted in the “Indians not taxed” clause contained in Section 2 of the Fourteenth Amendment and Elk v. Wilkins that “the children of non-resident aliens lack a constitutional birthright to citizenship.” Opposition in the Washington case at 12-13. DOJ’s position here is that the “Indians not taxed” (which we generally understand to be Indians who are not citizens of the United States) referenced in the Constitution can only become citizens by “naturalization” (quoting Elk at 102). If “Indians” do not possess birthright citizenship, DOJ reasons, then textually neither do foreign-born children. DOJ also reasons from Elk that Indians not taxed “owe ‘immediate allegiance’ to their tribes” and not the United States (Elk at 102). Both of these points are rooted in cases that are plainly in the anti-canon of American constitutional law, Dred Scott and the Slaughterhouse Cases. Dred Scott in particular adopted the same reasoning, but instead of applying to foreign-born persons, it compares Indians not taxed (favorably?) to enslaved persons, reasoning that Indians could one day be “taxed” (i.e., become citizens by naturalization); enslaved persons characterized by the infamous euphemism in the original constitutional text as “three-fifths other persons,” on the other hand, are just property. Dred Scott‘s holding is gone thanks to the Fourteenth Amendment (but apparently not the bigotry). Elk‘s similar reasoning is that Indians not taxed cannot become citizens unless Congress enacts a law allowing that to happen.

Of course, Elk is a dead letter since Congress enacted the Indian Citizenship Act in 1924 (and for many Indians who received citizenship prior to 1924). Another reason Elk should be put to bed as irrelevant is that it makes a presumption that is simply no longer true — that Indian people are born to tribal membership. Whether they like it or not, all Indians born in the United States are American citizens. Though I am not aware of any court that has held this, it appears that automatic American citizenship ended the notion of birthright citizenship into tribal nations; we all have to make a political choice to apply for enrollment with our tribes. As a practical matter, tribal birthright citizenship would be difficult (and unusual) anyway, given that most Indian people are not born to a particular tribe or even on a particular reservation. The colonizer has insisted that tribes adopt enrollment criteria, which would not be necessary if there was tribal birthright citizenship (maybe we should reconsider aspects of this regime). Another good reason to be done with Elk is that it is a product of a time when the Supreme Court still held as a matter of law that Indian people were subhumans incapable of citizenship:

But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself. Elk at 111-12 (emphasis added).

The obvious conclusion here is that DOJ is equating foreign-born children in the United States to a class of persons that never existed, subhuman Indigenous people so uncivilized as to be incapable of citizenship. I have long complained about the Department’s refusal to accept the duty of protection to Indians and tribes as an enforceable legal obligation and the Department’s refusal to hire Indian people to high-level attorney positions like the OSG, but here this Department has sunk to a low that I could not have envisioned. In my naiveté, I did not imagine that career Justice Department attorneys could so quickly and easily go down a road toward re-classifying persons by race and degree of “civilization.” Not a good day for the Department. I imagine there will be many more like this going forward — and probably much worse.

Judge Coughenour ridiculed Justice attorneys for defending the Executive Order at all and enjoined the Executive Order as blatantly unconstitutional. But the last step on this messed up constitutional journey is the SCOTUS that upheld the Muslim ban, at least some of whom will entertain virtually any argument as plausible so long as it fulfills their political commitments. Who knows whether the Indians not taxed argument is going to continue to be a thing in the case (I doubt it), but nothing is sacred in this government. And Justice has absolutely no shame.