Fourteenth Amendment

Paul Finkelman, Jim Anaya, and Jack Chin on Birthright Citizenship

Matthew L.M. Fletcher1 Comment

From the Huffington Post (h/t LHB):

Under the Fourteenth Amendment, children born in the United States are citizens, even if their parents are not. Inspired by Arizona’s new (and partially suspended) law regulating unauthorized immigration, Senators Mitch McConnell, John Kyl, John McCain, Lindsey Graham, Representative John Boehner, and other Republican leaders have proposed considering amending the Constitution to deny citizenship to children born in the United States but whose parents are undocumented.

As law professors we oppose the proposed change, not only for historical and legal reasons, but also on deeply personal grounds. We are the face of the children of illegal aliens, people who are not just abstractions but parts of the human mosaic of the American nation. As it happens, all three of us are the grandchildren of individuals who entered the United States without authorization. From our perspective, the proposal is unwise.

For centuries, James Anaya’s family lived off land that became part of southern New Mexico. Some of them relocated to Mexico after the United States acquired the territory in 1853. His grandfather, born in Mexico, returned to his ancestral homeland after statehood and his wife to be — James’s grandmother — followed. Both of them entered the United States illegally. Theoretically they could have immigrated legally, because there was no maximum quota on immigration from Mexico until 1965. However, while penniless Europeans were admitted, impoverished Mexicans were routinely turned back. James’s grandparents just moved without any papers and their children, born in the United States, became citizens at birth.

Gabriel Chin’s grandfather immigrated from Guangxiao, China in the period (1882-1943) when the Chinese Exclusion Act prohibited the immigration of racial Chinese. Like many other Chinese men admitted as paper sons, he entered California on the false claim that he was the Chinese-born child of a United States citizen and thus a citizen himself.

Paul Finkelman’s Polish-born grandfather feared being turned back at Ellis Island because of his poor eyesight. At the time people with glaucoma were not allowed into the United States. His grandfather did not have glaucoma, but he did not understand the rules. Immigration inspectors carefully excluded people who they feared could not work, so he took no chances and entered by a clandestine trek through Canada, later regularizing his status. His other grandfather lied about his age at Ellis Island — grounds for deportation — so that he could work when he landed. He later gained his citizenship when he was drafted in World War I, even though he was actually too young to be drafted. The lie brought him into the work force and then citizenship, but it was all in violation of immigration laws.

We are struck by what the absence of birth citizenship might have meant for our parents and us, and what it might mean for others in the future. Looming is the caste problem — if the children of undocumented immigrants are not citizens, then perhaps their grandchildren and great-grandchildren are not citizens either. This raises the spectre of multi-generational groups who are citizens of no nation yet know no other land than the United States. In addition, intentionally or not, most people to be denied citizenship would be of Hispanic ancestry. After centuries of effort to remove race from American law, the overwhelming racial impact would inevitably be divisive.

As legal scholars, we believe it would be a mistake to repudiate the long tradition of birthright citizenship in the United States, as number of Republican leaders want to do. Before the Civil War all white people born in the United States were citizens at birth, even if their parents were aliens. This tradition predated the American Revolution. In fact, some of the complaints against King George III centered on his refusal to allow for rapid naturalization of immigrants to the colonies.

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Does the 14th Amendment Privileges or Immunities Clause Extend the Second Amendment and Other Federal Rights to Indian Country?

Matthew L.M. Fletcher

Way out my league here, but Justice Thomas, perhaps, might think so. His reference today in McDonald v. City of Chicago to two Indian treaties from 1862 and 1868 [slip op. at 20 n. 7 (Thomas, J., concurring)] suggests that he could be thinking along those lines … or he was really struggling to find references to that language somewhere in treaty language circa 1860s.

Sixth Circuit Oral Argument on Michigan Affirmative Action Ban

Matthew L.M. Fletcher

From the LSJ:

LANSING — A federal appeals court is about to consider a lawsuit challenging Michigan’s ban against racial preferences in public university admissions and government hiring.

Civil rights groups and University of Michigan students, faculty and applicants say the 2006 ballot measure approved by voters is unconstitutional.

Critics say the constitutional amendment has created an unfair process where universities give weight to geographical diversity and legacy status but not racial identity.

Supporters say the law reflects the will of the people.

Arguments will be held Tuesday morning at the 6th U.S. Circuit Court of Appeals in Cincinnati. A district judge dismissed a challenge to the law last year.

Dodging a Bullet — Roberts v. Hagener

Matthew L.M. Fletcher

The Supreme Court denied cert on January 12, 2009 in a little-known case called Roberts v. Hagener, out of the Ninth Circuit. The CA9 opinion is here and the Ninth Circuit briefs are here. Here is the cert petition (roberts-v-hegener-cert-petn), and an amicus brief from the Mountain States Legal Foundation supporting the petition (pacific-legal-foundation-amicus-brief).

This was a scary case, and only because the Supreme Court seems to be taking a greater interest in Indian Country the last few years. It was an attempt to convince the Court that the Fourteenth Amendment’s strict scrutiny test should apply to state game laws that recognize American Indian treaty rights. Of course, it is settled law that this is not the case, dating at least back to the 1970s treaty rights cases, and to Morton v. Mancari. But with the Supreme Court, nothing is really settled.

Anyway, dodged a bullet.

Baylake Bank v. TCGC & Village of Hobart — Covenant Against Tribal Ownership of Land

Matthew L.M. Fletcher5 Comments

In a very interesting, even disturbing, development, the Village of Hobart, which has taken lands of the Oneida Indian Nation of Wisconsin through the power of eminent domain (Oneida v. Hobart), has now begun to use restrictive convenants running with the land to thwart the Nation. Here is the district court opinion upholding the restriction (from the same judge who found that the Village had the power of eminent domain against the tribe).

In this case, the Village sold a golf course to TCGC, which later went bankrupt. During bankruptcy, the village asserted its rights under a restrictive covenant that ran with the land. The covenant, added to the property when the Village sold it, prevents any owner (especially a sovereign nation like Oneida) from taking the land off the property rolls. It is clear from the opinion that the Village of Hobart did this expressly to deny the Oneida Indian Nation the right to seek a fee-to-trust acquisition by the Secretary under 25 U.S.C. 465.

We suggest that Shelley v. Kraemer and/or the 14th Amendment precludes such covenants, but it is a close question.

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Political Status of Indian Tribes Article in St. John’s Law Review

Matthew L.M. Fletcher

My new article, “The Original Understanding of the Political Status of Indian Tribes,” published in the St. John’s Law Review is here.

Here’s the introduction:

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Fletcher: On Black Freedmen

Matthew L.M. Fletcher

My newly revised paper, now titled “On Black Freedmen,” should be up on SSRN in the next few days. The paper will be part of Justice Unveiled: African American Culture and Legal Discourse (Lovalerie King & Richard Schur, eds.).

From the Abstract:

            In recent years, some legal, political, and cultural questions involving American Indians have begun to overlap – and conflict – with those of African Americans. The recent Cherokee Nation of Oklahoma’s vote to strip the Black Freedmen of tribal membership generated allegations of racism and calls to force Indian tribes to comply with the Reconstruction Amendments sheds light on this question. This controversy highlights a serious problem in Indian-Black political and social relationships – the discourse of Black-White racism has begun to intrude into the discourse of American Indian law. The Reconstruction Amendments, federal civil rights statutes, and federal case law—all established as a reaction to Black-White racism –– expresses important antidiscrimination principles that can conflict with the foundational elements of American Indian law: tribal sovereignty, the trust relationship, and measured separatism. To import the law of Black-White racism into American Indian law is to destroy American Indian law and, potentially, American Indian culture.