14th amendment and "subject to the jurisdiction thereof"

One of the things I have long wondered about the 14th amendment is the phrase “all persons born and naturalized…and subject to the jurisdiction thereof”. What kind of people born in this country are not “subject to the jurisdiction thereof”? Temporary visitors? Illegal aliens? And has the people covered by this phrase changed over the years?

The children of diplomats. People on official diplomatic missions usually are not subject to the jurisdiction of the US (they have diplomatic immunity), and their children do not become US citizens even if they are born here.

Also, at the time the Amendment was written, Indians living on reservations or who were otherwise not assimilated. Such Indians only gained citizenship in 1924.

The term means “One who may be prosecuted under the laws of the U.S.”, more or less.

Soldiers of a foreign invading/occupying force would also not be “subject to the jurisdiction of” the U.S.

The Supreme Court dealt with this in US v Wong Kim Ark. It found that the phrase was intended to include only the two categories of people referenced in previous posts (children of foreign diplomats and children of a hostile invading army). That case was from 1898 and its definition still stands.

The three categories, you mean. Indians too.

Yeah, sorry. It held that the clause was primarily meant to reflect the English common law, which excluded the two categories I mentioned, Indians not being a factor in England. Here’s the paragraph that says it in a nutshell:

Incidentally, Indians had already been deemed excluded (Elk v Wilkins), although this was subsequently overturned by statute. That’s the only way in which this clause’s interpretation has changed.


I think the answer is invading hostile military personnel, diplomats, and some Native Americans who were (or are) exempt. To make an analogy, can Germany or Japan prosecute US Citizens serving in the US Military who killed German or Japanese Citizens on their own soil on orders from the US? Of course not - it was war. Are there any Native Americans that are still not subject to the jurisdiction thereof? Surely having some Native ancestry doesn’t cut it, or we would have prison geneaologists where prisoners walk out free after finding one Native ancestor.

Prison conversation:

#33453 : “What are you up to?”
#24601 : “I’m researching my family tree. Old Joe did his and he found one Cree ancestor, and they let him go because, as an Indian, he is not subject to US law.”
#33453 : “Cool”

Tourists, temporary workers, exchange students, and legal immigrants are certainly “subject to the jurisdiction thereof”. I’ve been to Canada as a US Citizen tourist (and am not a Canadian Citizen to the best of my knowledge), and I acted as if I could be arrested by Provincial Police or Mounties if I violated Canadian law rather than as someone above the law. Fortunately, I didn’t get into any trouble, but I certainly could have.

No. The Indian Citizenship Act reads:

Historically, the US frequently treated Indian tribes as if they were sovereign entities, signing treaties with them and otherwise acting towards them as if they were separate nations. For this reason, tribal indians were under the jurisdiction of their tribe, not the US, except with respect to treaty provisions. Assimilated Indians, who were not living on reservations or who were not recognized as members of tribes, were under US jurisdiction and hence eligible to be citizens.

The Indian Citizenship Act granted tribal Indians citizenship, without at the same time requiring them to give up their membership in a tribe.