Russian allegiance and returning to Russia within 3 years,' otherwise they "shall be admitted to the enjoyment of all rights, advantages, and immunities of citizens of the United States." In the case of Rassmussen v. United States (197 U. S. 516), the Supreme Court of the United States held that, under the treaty, impliedly observed by Congress in certain statutes,. beginning with the Internal Revenue Act of July 20, 1868, Alaska was incorporated into the United States, so that the Constitution of the United States became fully applicable. It seems to follow that the provision of article 14 of the amendments that "all persons born * * * in the United States, and subject to the jurisdiction thereof are citizens of the United States" is applicable to the cases of persons born of alien parents in Alaska since its annexation. It would seem that members of the uncivilized tribes in Alaska became American nationals, but not citizens of the United States, upon annexation. (As to the status of such persons, see also comment on subsection (b) of section 201, infra, p. 8).

The status of persons born in Hawaii may now be considered. By virtue of a joint resolution of Congress approved July 7, 1898 (30 Stat. L. 750), relating to the acceptance of the offered cession of the Hawaiian Islands and their incorporation into the Union, the sovereignty of the Hawaiian Islands was formally transferred to the United States on August 12, 1898. On April 30, 1900, Congress enacted a law (31 Stat. 141) relating to the political status of persons who were citizens of the Republic of Hawaii on August 12, 1898. Section 4 of the act just mentioned reads in part, as follows:

"That all persons who were citizens of the Republic of Hawaii on August twelfth, Eighteen hundred Ninety-Eight, are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii.”

In section 5 of the act of April 30, 1900, it is provided that the Constitution of the United States shall have the same force and effect within the Territory of Hawaii as elsewhere in the United States.

In view of the provisions of law last mentioned it is clear that persons born or naturalized in the Territory of Hawaii after its effective date are citizens of the United States under the fourteenth amendment to the Constitution. Under section 104 of this act it went into effect 45 days after its approval.

The Department of State has held that a person born in the Hawaiian Islands of alien parents after the sovereignty of such Islands was transferred to the United States on August 12, 1898, and before the enactment of the act of April 30, 1900, declaring the Constitution of the United States to be in full effect in Hawaii, is a citizen of the United States. In an opinion of January 16, 1901, 23 Op. Att'y Gen. 345), Attorney General Griggs held that a person who had been born in Hawaii of Chinese parents before August 12, 1898, and who had acquired Hawaiian nationality at birth, under the Constitution of Hawaii, was a citizen of the United States.

(b) A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

The status, under the Constitution and laws of the United States, of members of Indian tribes in this country, prior to the passage of the several acts of Congress giving them citizenship of the United States, was discussed at length by Mr. Justice Gray, rendering the opinion of the Supreme Court of the United States on March 3, 1884, in Elk v. Wilkins (112 U. S. 94), in which it was held that a person born in the United States to members of an Indian tribe had not acquired citizenship of the United States at birth, not having been born "subject to the jurisdiction thereof," within the meaning of the fourteenth amendment, and had not acquired citizenship through the mere fact of separating himself from his tribe and taking up his abode with white persons in this country. Since that decision was rendered, members of Indian tribes in the United States have been made citizens thereof through special statutory provisions, including the act of Congress of February 8, 1887 (24 Stat. 388); the act of March 3, 1901 (31 Stat. 1447); the act of May 8, 1906 (34 Stat. pt. I, 182), amending the act of February 8, 1887; the act of November 6, 1919 (41 Stat. 350), and the act of June 2, 1924 (43 Stat. 253, 8 U. S. Code, § 3).

The act of June 2, 1924 (supra), provides as follows:

"All noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property."

The provision just quoted does not purport to change the tribal relationship of Indians in the United States, and from its phraseology it is not clear that it is applicable to Indians born after its passage. According to an opinion of the Solicitor for the Interior Department, dated February 24, 1982, a copy of which accompanied a letter of August 27, 1932, to the Department of State, Alaskan Indians, including Eskimanux and Aleuts, were made citizens of the United States by this statutory provision. (For a discussion of the status of members of aboriginal tribes in Alaska, see also the opinion of Judge Wickersham. In re Minook, 1904, 2 Alaska Rep. 200.)

While the act of June 2, 1924 (supra), might appear from its phraseology to be limited in its application to “noncitizen Indians born within the territorial limits of the United States" who were living on the effective date of the act and who by it were made "citizens of the United States," it has been construed to mean that children subsequently born to Indians within the territorial limits of the United States, whether or not their parents are living in tribes, acquire at birth the status of "citizens of the United States." Subsection (b) of section 201 is intended to make it clear that such persons are born citizens of the United States.

(c) A person born outside the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has resided in the United States or one of its outlying possessions, prior to the birth of such person;

This provision is designed to replace the provision of section 1 of the act of Congress of May 24, 1964, which amended section 193 of the Revised Statutes. Section 188 of the Revised Statutes, in its original form, based upon an act of February là 1855, 10 Stat. 604 reads as follows:

"Sh. 188. All children heretofore born or hereafter born out of the limits and Periolletion of the United States, whose fathers were or may be at the time of their birth citizens thereof are declared to be citizens of the United States: but the rights of citizenship stall not descend to children whose fathers never resided in the United States"

In an instruction of June N 183 to Mr. Washburne, Minister to France (For. Bet. 1873, 1. 26: 3 Mocre. Digest of International Law 2) Secretary ef State Fish expressed the rer that the Congress did not contemplate the orferring of the fill rights of citizenship upon the subject of a foreign natant who had not come within our territory, so as to interfere with the for meg of sued rative to the government and control of its own subject." However, it s evident that the power of the Government of the United States to exceed éplomatie proceetla a persues dern of American parents in countries the nationality of while they do seguired at birth, Liane son), and coned fre auria mis enfused with the question of La Pe conchalet by suring that it does not that the officer, of Amer ein parents bem abroad ' ''པཱ། ། ཀཔས , ཨཱར– སཱདཱ of succession treats although de senior of the United Intership of the United amarine by this Government

The principal object in revising section 1993 of the Revised Statutes was to remove the discrimination against women contained in it and to place American fathers and mothers upon an equal plane with regard to the transmission of citizenship to children born abroad. However, Congress seems to have realized that in extending the principle of jus sanguinis to cover cases of children born abroad to American women who had married aliens subsequent to the passage of the Cable Act of September 22, 1922 (42 Stat. 1021), or who should marry aliens after the effective date of the act in question, it would be necessary to insert limitations which do not appear in section 1993 of the Revised Statutes in its original form, that is, the requirements that the children must come to the United States and reside in this country continuously for 5 years before reaching the age of 18 and must within 6 months after attaining majority take the oath of allegiance to the United States.

The language of section 1 of the act of May 24, 1934, required construction. Taken literally, it might be construed to mean that the conditions just mentioned, relating to children born abroad to parents of whom one is a citizen and the other an alien, are conditions precedent to the acquisition of nationality. However, the Attorney General, in an opinion of July 21, 1934, held that these conditions are conditions subsequent and that the acquisition of citizenship of the United States does not depend upon the fulfillment of the conditions but is acquired at birth, subject to loss upon failure of the person concerned to fulfill the conditions. It will be observed that his conclusion was based principally upon the fact that under the preexisting law, section 1993 of the Revised Statutes, citizenship was conferred at birth upon children born abroad of American fathers. He appears to have felt that it was the intent of Congress in this respect to confer upon women the same privilege which had formerly been enjoyed by men rather than to deprive men of such privilege for the purpose of placing them on a par with women. However, as shown above, Congress found it necessary to add certain limitations in cases of children born abroad of one citizen and one alien parent, which did not appear in the old law.

Under these provisions, a child born abroad to an American father and an alien mother or an American mother and an alien father, although such child acquires citizenship of the United States at birth, must, in order to retain such citizenship, come to the United States before reaching the age of 13 years in order to fulfill the first of the two conditions mentioned. This means that a child still of tender years must be separated from his parents or else that his parents, or one of them, must accompany the child to the United States and reside here with him. Thus the provision in question is not only complicated but the advantages which might seem to be conferred by it are materially curtailed by the conditions mentioned.

In a case in which the citizen parent is not residing abroad to represent American interests of any kind, and especially when he or she is residing in the country of which the alien spouse is a national, there would seem to be no very strong arguments for conferring citizenship of the United States at birth upon a foreign-born child. In a case in which the citizen parent is sent abroad and continues to reside abroad to represent the Government of the United States or commercial or other interests of the United States, he might reasonably consider it a hardship that his child born abroad under these circumstances should be regarded as an alien and required to comply with the immigration laws of the United States when he comes to this country, even though such hardship would be mitigated somewhat by the fact that a citizen parent who is married to an alien and who has a child born to him in a foreign country may, if he brings such child to the United States to reside, have such child naturalized upon making the petition provided for in section 314 of the Code.

The problem of acquisition of citizenship jure sanguinis has been a subject of considerable discussion in recent years. On the one hand it has been contended, as indicated above, that section 1993 should merely be expanded, so as to confer citizenship jure sanguinis upon children of American mothers equally with children of American fathers. On the other hand it has been contended that the principle of jus sanguinis should be removed completely from the law of the United States, so that citizenship would be acquired at birth only in cases of children born within the territory and jurisdiction of the United States. support of jus soli as an international rule for the determination of nationality, see Scott, J. B., Nationality, Jus Soli or Jus Sanguinis, 24 American Journal of International Law (1930), p. 58.) In this connection it has even been contended that any law purporting to confer citizenship at birth upon a child born outside of the United States would be unconstitutional. However, statutes embodying

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this principle have been in effect in the United States many years. It may be recalled that the first statute on the subject, the act of March 26, 1790 (1 Stat. 103), was passed by the First Congress, and the lack during a period of some years of a statute having the effect of conferring citizenship upon children born abroad to American parents was due to an error in legislative drafting (Binney, H., Alienigenae of the United States; Van Dyne, Citizenship of the United States, p. 33). It has evidently been the will of the people of the United States that, with certain limitations, children born abroad of American parents should acquire American nationality at birth, and there is nothing to indicate a change of opinion on this subject. On the contrary, the ever-increasing importance of facilitating, rather than hindering, commerce with foreign states furnishes a very practical argument in favor of retaining in the law of the United States the rule of citizenship by descent, with such limitations as may seem necessary or desirable. The consitutionality of a statute containing such a rule can hardly be questioned at this late day, considering the fact that such laws have been on the statute books of the United States for so many years, and not only applied in numberless cases by the executive branch of the Government (3 Moore, International Law, 282-289) but also frequently considered and construed by the courts, both Federal and State, without their constitutionality being questioned (Ludlam v. Ludlam, 1863, 26 N. Y. 356, 84 Am. Dec. 193; Ware v. Wisner, 1883, 50 Fed. 310, Weedin v. Chin Bow, 274 U. S. 657).

The constitutional authority for passing laws embodying the rule of jus sanguinis has been attributed in certain opinions of the Supreme Court to the power conferred upon Congress by section 8 of article I of the Constitution to "prescribe an uniform rule of naturalization" (Minor v. Happersett, 1874, 88 U. S. 162, 168; United States v. Wong Kim Ark, 1898, 169 U. S. 649, 672, 702–703), but whether the authority is properly attributable to this express provision or is to be implied from other provisions referring to “citizens of the United States,” it does not seem likely that the constitutionality of such a law would now even be seriously raised in the courts. There would seem to be a presumption in favor of the constitutionality of laws which have had such a history (Downes v. Bidwell, 1900, 182 U. S. 244, 286; 12 Corpus Juris, p. 798, and cases cited. See also Willoughby on the Constitution, 2d ed., vol. I, pp. 49-51, and Black on Interpretation of the Laws, 2d ed., pp. 300-306). It may be added that Attorney General Cummings, in his opinion of July 21, 1934, construing section 1 of the act of May 24, 1934, did not raise or suggest any question as to its constitutionality. It is interesting to note that it was not until the year 1866 that Congress adopted a statutory rule for the acquisition of citizenship jure soli in cases of children born in the United States, reliance having been placed theretofore upon the common-law rule. It may be noted that this statute was passed 2 years before the adoption of the fourteenth article to the Amendments of the Constitution in which it was provided that "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."

The committee, while fully intending that its proposal should carry out the principle of equality between men and women in the matter of nationality, does not recommend the adoption of either of the extreme proposals above-mentioned. In normal times, with increased facilities of transportation, the numbers of persons sojourning or residing temporarily in states of which they are not nationals is likely to increase. Even now there are large numbers of Americans who reside abroad, not merely for pleasure or because they have a preference for life in foreign countries, but because they are engaged in promoting American interests, commercial or other. In the great majority of these cases husband and wife are both citizens of the United States. In such cases it is altogether likely that the children will be taught to speak the English language from infancy and will be so brought up that they will be truly American in character. This is likely to be the case where both parents are citizens of the United States even though neither one resides abroad for the purpose of promoting American interests. It seems reasonable and expedient that citizenship should in all such cases be conferred upon the children at birth, without any condition except that one of the two citizen parents must have resided in the United States prior to

2 In Ludlam v. Ludlam, decided by the Court of Appeals of New York in 1863, 26 N. Y. 356, 84 Am. Dec. 193, it was held that the rule of nationality by descent (jus sanguinis) was a part of the common law, of which the first British statute on the subject, 25 Edw. III C, 2, was merely declaratory, and in support of this theory high British authorities were cited, but this view was questioned by Lord Cockburn in his book on Nationality (1869), ch. I. See also Lynch v. Clarke (1884, N. Y. Ch.), 1 Sandford 583.

the child's birth. The latter condition is similar to that which appeared in the old law, and it has never met with serious objection, since it is so patently reasonable. Its retention in subsection (c) hereof seems quite desirable, since it would not be a wise policy to extend citizenship indefinitely to generations of persons born and residing in foreign countries. The case of a child born abroad to parents of whom only one is a citizen of the United States, the other being an alien, presents greater difficulties and requires correspondingly stricter limitations. Cases of this kind are therefore covered by a separate provision (see subsection (g) hereof).

(d) A person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who resided in the United States or one of its outlying possessions prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

The meaning of this subsection is apparent. It seemed to the committee reasonable to confer the higher status, citizenship of the United States, and not mere nationality, without citizenship, of the United States, upon children born under conditions specified in this subsection.

It may be well to note that, under the above provision, a child who is born abroad of parents one of whom is a citizen of the United States but has not resided in the United States or in one of its outlying possessions and the other of whom is a national who has resided in the United States or in one of its outlying possessions, would not acquire citizenship of the United States at birth.

(e) A person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who resided in the United States or one of its outlying possessions prior to the birth of such person; It will be observed that this provision is not based solely upon either jus soli or jus sanguinis, but contains elements of both. While, as indicated above, it does not seem desirable to confer citizenship of the United States at birth upon a child born outside of the United States and its outlying possessions if only one parent is a citizen of the United States and the other is an alien, unless this is made subject to strict limitations, the case is materially different when the child is born in outlying territory of the United States. It seems reasonable in such cases to confer upon the child at birth the status of a "citizen of the United States" if the citizen parent has previously resided in the United States or one of its outlying possessions.

With reference to this provision and the provision of section 203 (a) hereof, it seems desirable to discuss the question of the effect under existing law of the fact of birth in the outlying unincorporated territories of the United States, that is, the question whether the common-law rule, as confirmed by the fourteenth amendment to the Constitution with regard to the effect of birth within the United States proper, is applicable also to cases of birth in the unincorporated territories. This very important question was presented to the Department of State in a letter of December 22, 1911, from the War Department, transmitting passport applications of Louis Lee Hing, José Lee Hing, and Cun Yuen, who were born in the Philippine Islands of Chinese parents August 30, 1906, March 8, 1908, and September 30, 1909, respectively. It was necessary to determine whether these children had acquired the nationality of the United States through the fact of birth in the Philippine Islands, and were thus entitled to passports of this Government. Because of the unusual importance of the subject, the question was studied with particular care with reference to the decisions of the Supreme Court of the United States concerning the status of the outlying possessions. In a memorandum of February 9, 1912, submitting the question to the Solicitor for the Department of State, it was deemed pertinent to call special attention to the opinion of the Supreme Court in the case of Downes v. Bidwell (1900, 182 U. S. 244), in which it is held that Porto Rico was not an incorporated territory of the United States, and was not a part of the United States within that provision of the Constitution which declares that "all duties, imposts, and excises shall be uniform throughout the United States." Particular attention was called to the following passages in the opinion of Mr. Justice Brown:

"Upon the other hand, the fourteenth amendment, upon the subject of citizenship, declares only that '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.' Here there is a limitation to persons born