What Did “Subject to the Jurisdiction of the United States” Mean in the Oregon Citizenship Legislation of 1872?

Guest Blogger

Michael L. Rosin

In a recent Balkinization post Gerard Magliocca noted that he could find no example in federal law of “subject to the jurisdiction” not meaning “’subject to the law’ … or ‘subject to legal authority’ of the United States.” This post discusses the use of “subject to the jurisdiction” in an 1872 statute granting citizenship from birth. This was the first such citizenship legislation enacted into law after the drafting of the Fourteenth Amendment. It demonstrates that the phrase “subject to the jurisdiction” meant “subject to the legal authority of the United States.” If the phrase had meant “and not subject to any foreign power,” (the interpretation the Trump Administration gives to the phrase in the Fourteenth Amendment), the 1872 legislation would have had no effect.

The Fourteenth Amendment’s Citizenship Clause states

All 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 a filing in one of the 2025 Birthright Citizenship Cases the Trump Justice Department asserts

The phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment is best read to exclude the same individuals who were excluded by the [Civil Rights] Act [of 1866]—i.e., those who are “subject to any foreign power” and “Indians not taxed.” (at 11)

A subsequent Trump Justice Department filing notes that the current birthright citizenship statute employs the exact phraseology of the Citizenship Clause “suggesting that Congress regarded the Act’s ‘not subject to any foreign power’ requirement as consistent with the Amendment’s ‘subject to the jurisdiction’ requirement.” (at 21)

The filing continues

in using the exact text of the Citizenship Clause in the [current statute], Congress imported its exact scope. See Taggart v. Lorenzen, 587 U.S. 554, 560 (2019) (“When a statutory term is obviously transplanted from another legal source, it brings the old soil with it.”) (at 40)

Congress crafted the current birthright citizenship statutory text in 1940, seventy-four years after it crafted the text of the Citizenship Clause in 1866.

On May 18, 1872 President Grant signed into law legislation declaring

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 of America in the same manner as if born elsewhere in the United States. (Sec. 3)

This was the first such citizenship-granting legislation enacted into law after the drafting of the Citizenship Clause. To paraphrase the Trump Justice Department’s language, “in using the exact text of the Citizenship Clause in this 1872 statute, Congress imported its exact scope.” This text, crafted a mere six years after the drafting of the Citizenship Clause, provides a contemporary perspective on the meaning and scope of the phrase “subject to the jurisdiction thereof” in the Citizenship Clause.

Congress crafted the Oregon Citizenship Legislation in response to the case of McKay v. Campbell. (16 F. Cas. 161 (D. Or. 1871)) William C. McKay had been born in 1824 to a British Canadian father and a native mother in what is now Astoria, Oregon, on the southern bank of the Columbia River, in what was then the Oregon Country. Although the Oregon Country was jointly occupied by the United States and Great Britain when McKay was born, it would remain beyond the jurisdiction of the United States until 1846. In late 1845 President Polk told Congress “[American citizens in Oregon are anxious that our laws should be extended over them[.]” Before that extension children of American citizen fathers in the Oregon Country were born citizens of the United States thanks to the 1790 Naturalization Act that granted birthright citizenship to children of such parentage born “out of the limits of the United States.” William McKay had not been born to an American citizen father (and the Oregon Treaty of 1846 did not make him or anyone else a citizen).

In 1871 the United States District Court for the District of Oregon held (McKay at 163) that McKay was not an American citizen and that he was born subject to the jurisdiction of Great Britain, a foreign power. Judge Deady’s McKay opinion is laden with the language of allegiance and obedience. That was unnecessary given that the Oregon Country was not within the jurisdiction of the United States when McKay was born. Deady’s opinion is a matter for another day. Our concern is with Congress’s response to McKay’s case.

On February 23, 1872 Oregon Republican Henry Corbett told the Senate that his constituents had petitioned him

asking that the right of suffrage and citizenship be extended to certain persons who were born in the Territory of Oregon previous to the treaty which was ratified with Great Britain in 1846, whose fathers were English and mothers were members of the various tribes of Indians inhabiting that State.

Corbett introduced a bill limited to persons with the parentage just described born in the Oregon Country prior to ratification of the Oregon Treaty of 1846 and “declared” them “citizens of the United States of America.” As introduced, the bill made no reference to whether or not such persons were presently subject to the jurisdiction of the United States.

The Judiciary Committee filled that hole by the time it reported the bill back to the Senate. As amended the bill declared

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 of America in the same manner as if born elsewhere in the United States.

Oregon Democrat James Kelly understood how this provision applied to William McKay and others born under similar circumstances and presently subject to the jurisdiction of the United States. He told his colleagues:

A man was born at Astoria, then known as Fort George, beneath the British flag, and, as a matter of course, being the child of a British subject, and born without the allegiance of the United States, because he was not born within the allegiance of the United States, in order to make him a citizen, he was born within the allegiance of the king of Great Britain at the time, and it was so held by the court, and properly held. We had no right to make the children of British subjects American citizens; no more had they a right to make the children of American parents subjects of Great Britain. Both held the territory in common; it was a joint occupation, and in order to be a citizen of the United States he must have been not only born within the United States, but born within the allegiance of the United States. The child of a British minister born in this city is a British subject. It is true he is born in the United States, but he is born without the allegiance of the United States; and so it was there in Oregon. They were British subjects, and their children still remain so. There is no question that those who were born of American parents were American citizens; but the class to which this bill refers are the children of British subjects, born after the treaty of 1818 and before the treaty of 1846. That is all there is of it.

Kelly clearly recognized that the phrase subject to the jurisdiction of the United States in the bill could not possibly mean “not subject to any foreign power.” The phrase simply referred to persons subject to the laws of the United States by virtue of their presence in the United States. The whole point of the bill was to grant citizenship to persons who were subject to a foreign power—because they had been born as British subjects.

No one challenged Kelly’s interpretation. The only question debated was whether this was a naturalization bill. It was not. It offered citizenship retrospectively to all persons appropriately situated and, as Lyman Trumbull noted, did “not depend on their claim.”

After this short debate the Senate chose to incorporate this statutory text in H.R. 1654, an appropriations bill. That is how the Oregon Citizenship legislation of 1872 became law (Sec. 3).

If the Citizenship Clause had been intended to exclude persons “subject to any foreign power,” as the Trump Justice Department asserts, then it would have made no sense for Congress to transplant the text of the Citizenship Clause into the 1872 legislation, because the point of that law was to grant citizenship “as if born […] in the United States” to British subjects like William C. McKay. But Congress did transplant the text of the Citizenship Clause into the 1872 legislation, just six years after the Congress that wrote the Citizenship Clause in 1866. This is further evidence that when crafting the Citizenship Clause Congress did not import the phrase “not subject to any foreign power” from the Civil Rights Act of 1866 into the constitutional text controlling the Birthright Citizenship Cases.

Michael Rosin is an independent scholar whose work focuses on the electoral college and everything it is built on. You can reach him by e-mail at mlrosin@att.net.