Berkeley Legal History Workshop Welcomes Gregory Ablavsky

Prior to joining the Stanford Law faculty in 2015, Professor Ablavsky was the Sharswood Fellow in Law and History at the University of Pennsylvania. He clerked for Judge Anthony Scirica of the U.S. Court of Appeals for the Third Circuit. He was also a law clerk for the Native American Rights Fund in Washington, D.C. Gregory Ablavsky’s scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West. His publications explore a range of topics including the history of the Indian Commerce Clause, the importance of Indian affairs in shaping the U.S. Constitution, and the balance of power between states and the federal government.

Abstract

Section 1 of the Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”[1] The recent executive order purporting to end the law of birthright citizenship concentrated on the requirement that birthright citizens be “subject to the jurisdiction thereof.” The nineteenth-century debates around this language’s enactment focused heavily on the status of Native peoples within the United States, and the leading case interpreting this provision, Elk v. Wilkins, concerned the citizenship of John Elk, a Ho-Chunk (Winnebago) man. Understanding the significance of the “jurisdiction” language—and why the drafters of the Fourteenth Amendment thought that it excluded “Indians” born within tribal territory from birthright citizenship—requires grasping the long-running debates over the status of Native nations within the United States.

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