- by Graham Holton
- The Guardian
- Issue #2133
Photo: Howard County Library System – flickr.com (CC BY-NC-ND 2.0)
If US President Donald Trump’s executive order to end automatic ‘birthrights’ takes effect, it means that after 19 February children born in the United States to undocumented immigrants will no longer be treated as citizens. This includes babies born to mothers who are in the country legally but temporarily. Federal District Court Judge, John C Coughenour sided with Washington, Arizona, Illinois and Oregon, signing a restraining order to block the Trump administration’s order for 14 days.
Meanwhile ICE (Immigration and Customs Enforcement) has been arresting undocumented people as illegal immigrants. This surprisingly includes, according to Native News Online, the arrest in Arizona and New Mexico of 15 Native Americans. The raids on Indigenous tribal citizens were investigated. For Indigenous peoples this has reopened old wounds, upsetting many people. Navajo President Buu Nygren addressed the tribal radio station KTNN, advising Navajo Nation residents to carry identification, driver’s licenses and their Certificate of Indian Blood. ICE responded that these documents are not valid proof of US citizenship. This looks like a deliberate plan by the Trump administration to remove Indigenous rights and tribal land claims.
Under the filing, the Department of Justice (DOJ) defended the president’s executive order by using Native Americans as a test case. The DOJ attorneys argued: “The United States’ connection with the children of illegal aliens and temporary visitors is weaker than its connection with members of Indian tribes. If the latter link is insufficient for birthright citizenship, the former certainly is.” The DOJ filing reads: “Under the plain terms of the Clause, birth in the United States does not by itself entitle a person to citizenship. The person must also be ‘subject to the jurisdiction’ of the United States.” This questions whether Native Americans born in the US actually do have birthright citizenship, as they are not “subject to the jurisdiction” of the US because they live on sovereign tribal land.
The DOJ questions the 14th Amendment of the US Constitution, arguing it does not include Indigenous people, citing a section of the act: “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.” The DOJ argues that “subject to the jurisdiction thereof” must be understood “to exclude the same individuals who were excluded by the Act — i.e., those who are ‘subject to any foreign power’ and ‘Indians not taxed.’ ” The DOJ concludes that Native Americans are therefore excluded from US birthright citizenship.
The removal of Native American rights by legislature has a long history in the US. From 1820 to 1850, the federal government forcibly removed Native Americans from their homelands and segregated them on reservations in the Indian Territory. The Civil Rights Act of 1866 states: “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.”
This was followed in 1879 by institutions removing Native American children from their families and communities. The 1884 US Supreme Court case Elk v. Wilkins, ruled 7-2: “because members of Indian tribes owe ‘immediate allegiance’ to their tribes, they are not ‘subject to the jurisdiction’ of the United States and are not constitutionally entitled to Citizenship.” Three years later Congress passed the Dawes Severalty Act, abrogating treaties that had guaranteed tribes and their citizens reserved lands in perpetuity.
The Indian Citizenship Act signed by President Calvin Coolidge in June 1924 reads: “all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.” This seemed to have settled the matter until the Trump administration.
With Trump’s mantra “Drill Baby Drill” the government wants to remove the rights of Native American reservations which cover 2 per cent of the United States. These reservations hold nearly 20 per cent of the nation’s oil and gas, as well as vast coal reserves. Advisors to President Trump on Native American issues want to remove the federal bureaucracy’s hold on 56 million acres of tribal lands and place it under private ownership. Tribes may have rights to use the land, but they do not own it. Native Americans view this as a violation of tribal self-determination and culture. A member of the Navajo and the Dakota tribes, Tom Goldtooth, who runs the Indigenous Environmental Network, writes: “Privatisation has been the goal since colonisation – to strip Native Nations of their sovereignty.” This is the aim of the Trump administration.
