the 1872 Oregon Territory citizenship statute

I am happy to pass along this guest post from my frequent collaborator, Elliott Wainwright.

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At oral argument in Trump v. Barbara, Justice Amy Coney Barrett  asked several times how the Citizenship Clause works when members of Indian tribes are born beyond the limits of tribal domains. The peculiar Oregon Territory citizenship statute Congress passed in 1872 and the effect it had—or ought to have had—on the citizenship status of tribal Indians born in that territory appears to bear on Justice Amy Coney Barrett’s inquiry. However, despite the fact that John Vlahoplus and Michael L. Rosin have written about the 1872 law in recent years, it seems to have gone unmentioned in litigation over President Trump’s January 2025 executive order regarding citizenship at birth. Nor was it put under the microscope in United States v. Wong Kim Ark or Elk v. Wilkins, the Supreme Court’s flagship Citizenship Clause cases.

Since July 1868, the 14th Amendment’s Citizenship Clause has proclaimed that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In May 1872, Congress passed the first citizenship statute that adopted the Clause’s “subject to the jurisdiction” locution, providing:

“That all persons born in the district of country formerly known as the Territory of Oregon, and subject to the jurisdiction of the United States at this time, are citizens of the United States in the same manner as if born elsewhere in the United States.”

Section 1995 of the Revised Statutes, which continued the 1872 law, replaced “at this time” with “on the 18th May, 1872.”

The catalyst for the 1872 Oregon Territory citizenship statute was U.S. District Judge Matthew Deady’s November 1871 determination in McKay v. Campbell that William McKay was not a U.S. citizen. Within four months, one of Oregon’s senators had proposed a bill to bestow U.S. citizenship on anyone born in the Oregon Territory between 1818 and June 1846 to British fathers and Indian mothers. But these temporal and parental limitations fell by the wayside. Under the 1872 law, the only requirements that needed satisfying were birth in the territory and being “subject to the jurisdiction of the United States at this time.” The latter stipulation, though clearly modeled on the Citizenship Clause, conditions the grant of citizenship on jurisdictional subjection at the time of enactment rather than at the moment of birth.

Litigants challenging the executive order have disagreed about whether Elk v. Wilkins furnishes a rule for off-reservation births. Quizzed by Justice Barrett on whether the rule for tribal Indians was “tied to territory or [] tied to the status of someone as a member of a tribe,” respondents’ counsel Cecillia Wang stated that “Elk versus Wilkins doesn’t really answer that question.” Last year, the Solicitor General of the State of Washington told the U.S. Court of Appeals for the Ninth Circuit that Elk v. Wilkins compelled the view that a tribal Indian born in Seattle acquired U.S. citizenship pursuant to statute rather than the Citizenship Clause.

Law professors Akhil Amar and Vikram Amar championed a tidily territorial reading of the Citizenship Clause in their SCOTUSBlog Brothers in Law columns:

Surely there were countless situations in which tribally allegiant parents gave birth outside the soil of tribal enclaves. On our under-the-flag, soil-and-flag theory, these babies were all proper 14th Amendment citizens. They were, we believe, so treated by all branches of the American government at all relevant times.

In their view, the 14th Amendment grants citizenship at birth nearly universally beyond the limits of Indian domains, but withholds it entirely within them. If the Clause operates in this fashion, it would be logical for the 1872 Oregon Territory citizenship law to do so as well.

Government records attest that not all of Oregon’s Indians were on reservations in May 1872. Six Oregon-born Indians were in the state penitentiary. Two of the six, per an account of their 1871 trial, were affiliated with the Simcoe reservation in Washington and had been convicted of attempting to execute a medicine woman on the orders of their chief. (A more legible copy is available from newspapers.com: Letter from Yamhill, Morning Oregonian (Portland, Ore.), Vol. 11, No. 65, Apr. 21, 1871, at 1.) In August 1872, the Klamath Indian Agency reported:

A portion of the Modoc band of Indians, under Captain Jack, who were parties to the treaty, and belong on this reservation, and were formerly here, went back to their old homes on Lost River, some fifty miles south from this place, about two years ago and refuse to come back, although repeated councils have been held with them for the purpose of inducing them peaceable to return.

In a section of his 1872 report entitled “Indians not on Reservations,” the Superintendent of Indian Affairs in Oregon estimated that some five hundred of the Indians attached to Smohalla “belong at” either the Umatilla or Warm Springs reservation.

Judge Deady himself encountered cases of Oregon Indians living beyond the limits of reservations in 1872 in United States v. Osborn, over which he presided in April 1880. The defendant, Frank Osborn, was prosecuted for “having disposed of spirituous liquor to an Indian, under the charge of an Indian agent, contrary to section 2139 of the Revised Statutes.” Judge Deady’s opinion relates that the case concerned a sale to Joe Miller, an Indian who had been residing away from the Warm Springs reservation for more than eight years. The opinion also alludes to Indian Jim and his fifteen years’ residence away from “one of the coast reservations.” Judge Deady goes on to remark that “[t]he Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since.” This sentence would be quoted approvingly three years later in Justice Horace Gray’s majority opinion in Elk v. Wilkins.

Judge Deady’s dicta in Osborn seems to rest on the assumption that, in the case of tribal Indians, “subject to the jurisdiction” is “tied to the status of someone as a member of a tribe” rather than “tied to territory.” (Judge Deady’s intuition that the prosecution could not be sustained if the sale were to an Indian who had acquired U.S. citizenship initially found support. (In re Heff, 197 U. S. 488, 508-509 (1905)). However, the Supreme Court overruled Heff a decade later. (United States v. Nice, 241 U. S. 591, 601) (1916). The Supreme Court indicated three years ago that Nice remains good law. (Haaland v. Brackeen, 599 U. S. 255, 278 (2023)).) Had Judge Deady entertained the suspicion that the Citizenship Clause and the 1872 statute laid down a strictly territorial rule, one might have expected his opinion to home in on Joe Miller’s whereabouts when the 1872 citizenship law took effect and to eschew its sweeping pronouncement that all Oregon Indians remained non-citizens as of 1880. While Osborn never cites the 1872 Oregon Territory citizenship statute, Judge Deady and his fellow Code Commissioner did include the provision in their 1874 compilation of Oregon’s laws.

Did Judge Deady need to pin down where Joe Miller was on May 18, 1872 in order to determine his citizenship status? Perhaps the Supreme Court’s long-awaited last word on the Citizenship Clause will be accompanied by the court’s first word on the earliest citizenship statute to incorporate the Clause’s “subject to the jurisdiction” stipulation.