This is the one area that exposes a real weakness in Justice Gray's decision in Ark. Gray also wrote the decision in Elk v. Wilkins, and he had to fudge around his OWN precedent, which he did by saying:
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.
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law) ...
So, all he does is say that the Indians have a "peculiar relation" to the National Government to avoid admitting that he did NOT apply to them his own so-called "fundamental rule of citizenship by birth within the country." The Indians were here BEFORE we had a "national government" ... did the fundamental rule of citizenship by birth OR the common law make them Natural-Born Subjects?? The answer to that question is obvious and it proves yet again that jus soli was not and could not have been the basis for the founders understanding of the term "natural-born citizens."
Elg dealt with an Indian who had been born in Indian country and only later moved to a state. At that time, many of those Indians didn't regard themselves as being "within the country," and in a very real sense, they weren't. Until the 20th Century, the Government dealt with Indian tribes through treaties, not by legislation. All through the 19th Century, many Indian tribes were at war with the United States Government. Indians born in Indian country were not then regarded as citizens because they were, in a very real sense, hostile aliens.
The Court's awkward language was a reflection of the fact that the U.S. Government officially claimed the legal right to rule over the Indians, but was still in the process of achieving control de facto. Once that was accomplished, Indians became citizens.
Exactly. And yet those who disagree cannot grasp the point. (If born on the soil is the rule, then why so many exceptions?)
Years ago when I was in High School, We had a hypnotist present a program in our Auditorium. I distinctly recall how he hypnotized a student volunteer to forget the number "7". After snapping his fingers and awakening the student, he asked the student to count to "10". The Student counted "1,2,3,4,5,6,...8,9,10." The Audience tittered. He asked him to do it again, again the student complied. "1,2,3,4,5,6,...8,9,10."
The Hypnotist asked him if he had done it correctly, the student replied "of course." The Audience Roared with Laughter! The Hypnotist asked the student to add 3+4, to which the student replied after a momentary hesitation, "6." Again the Audience Roared with laughter. The Hypnotists pointed out, "no, that's 3+3. What is 3+4?" The Student looked troubled, then said "8." Again the Audience Roared. The Hypnotist said "no, that's 4+4. What is 3+4?" The Student just gave him a blank look.
That is EXACTLY how these Obama Legitimacy supporters seem to behave when confronted with anything that doesn't fit what they wish to believe. Bad guesses and blank stares. As that student couldn't comprehend the number "7", neither can these people comprehend that their theory doesn't jive with the historical facts. There is some sort of mental block at work with these people.
Thanks for the notification of Justice Gray's dichotomy in Elk v Wilkins. I learned another piece. :)