Native and Natural Born Citizenship Explored (Re-opened for limited business)

Leo Donofrio

Leo Donofrio argues that Elk v Wilkins Judge Gray took a position in conflict with Wong Kim Ark, when in fact, in proper context, the inevitable conclusion is that the two cases are fully consistent and that Elk v Wilkins was limited to Indians. In addition, the suggestion that Wong Kim Ark limits its ruling to ‘permanently domiciled aliens’ is also poorly supported

In a letter to Jeffrey Taylor, Leo Donofrio writes:

The 14th Amendment was interpreted by Justice Horace Gray for the holding of the US Supreme Court in Elk v. Wilkins, 112 U.S. 94, 101-102(1884), as follows:

“The persons declared 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…Indians born within the territorial limits of the United States…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…” (Emphasis added.)

Fourteen years later, Justice Horace Gray did a complete about face on this issue in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) although the holding in the Elk case was not reversed.  Regardless, the direct holding in Wong Kim Ark was restricted to the children of foreign parents permanently domiciled in the United States.  Barack Obama Sr. was never permanently domiciled in the United States.  I urge you to read both decisions in light of the following recent historical discovery.

Donofrio is wrong, not just in his interpretation of Elk v Wilkins but also his portrayal of Gray doing an ‘about face’.  Let me explain. In Elk v Wilkins, the Court ruled that Indians, by virtue of being born on Indian territory under Indian allegiance, fail to qualify as citizens under the 14th Amendment. And if that is not sufficient, in Wong Kim Ark, Judge Gray explained the differences between Elk and Wong Kim Ark:

The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.

If Donofrio had not omitted and important part of a sentence, he would have realized that he was wrong

Donofrio quotes

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…

Judge Gray wrote:

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.

In other words, people born within the domain of a foreign government on US soil are not citizens, and neither are children born to ambassadors or other public ministers since they are not under allegiance of the law of the United States, and have diplomatic immunity. In other words, not only did Donofrio misunderstand Elk v Wilkins but he also erroneously asserted that Judge Gray did ‘an about face’ in Wong Kim Ark when in fact the two rulings are fully consistent.

Donofrio’s interpretation of Wong Kim Ark as only applying to children born to aliens who have permanent domicile is also ill supported. In fact, the Court goes into great detail as to the meaning of natural born as found in common law and does not present any arguments that support a distinction between temporary and permanent domicile.

Instead the Court observes that:

That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.

And these findings are fully consistent with Elk v Wilkins as well.