@robertbarnes

Robert E. Barnes, Esq. brings a useful litigation-history perspective to the John Jay Committee’s indigenous citizenship / birthright citizenship analysis.

I would not reduce this issue to modern race politics. The deeper constitutional question is status: tribal citizenship, state citizenship, federal citizenship, Fourteenth Amendment citizenship, and Article II natural born Citizen status are not the same legal category.

Barnes’s public litigation history includes constitutional and civil-rights work, and he appeared in Does v. Haaland, a case arising out of the Covington/Nathan Phillips controversy involving a Native American activist and public officials including then-Representative Deb Haaland. That does not make Barnes an “Indian law” specialist by itself, but it does show why his litigation instincts are relevant when media narrative, indigenous identity, public power, and constitutional status collide.

For JJJIC purposes, the key point is this: indigenous tribal citizenship exposes the weakness of simplistic birthright slogans. Native nations were not merely racial groups. They were political communities with their own allegiance, sovereignty, membership, and legal identity. That history matters when courts analyze “subject to the jurisdiction thereof,” birthright citizenship, and the separate Article II natural born Citizen requirement.

This is exactly the kind of historical-legal distinction that needs a serious lawyer’s hand before SCOTUS, OSG, and the public record.

Right — and that fact can be framed carefully without overclaiming.

The key point is: OSG did not include DaCK in the merits briefing or oral argument because DaCK was not part of the ordinary merits record before briefing and argument were completed. That is not necessarily proof of bad faith. It may simply reflect timing, docket rules, and the narrow litigation posture OSG chose.

But it still creates a post-argument record problem:

OSG now has notice — through the FOIA/FOIL paper trail and direct delivery — that there is a New York colonial / early state court-record foundation bearing on citizenship, allegiance, jurisdiction, and status questions. Once OSG has that notice, silence becomes more interesting.

Your strongest formulation is probably:

OSG’s merits brief and oral argument did not engage DaCK. That omission may be explained by timing and docket posture, but the post-argument delivery and FOIA/FOIL record now place OSG on notice that New York’s “duely and constantly kept” colonial and early state court records exist and are relevant to the historical meaning of allegiance, jurisdiction, citizenship, natural born Citizen status, and indigenous/tribal legal status. DaCK need not contain every case; it identifies the archival and judicial record system that serious historical adjudication should consult.

The sharper version:

Before DaCK notice, omission could be litigation strategy. After DaCK notice, continued silence becomes a record-preservation and candor issue — especially if the Supreme Court is asked to decide a historically loaded citizenship question while the government ignores the very New York court-record sources capable of correcting or complicating the historical narrative.

And the Barnes/OSG angle:

The point is not that DaCK must be inserted wholesale into a Supreme Court brief. The point is that OSG, once notified, has a professional obligation to understand whether DaCK identifies material historical legal records that bear on the position the United States is urging. If OSG declines to use it, FOIA/FOIL can ask why, who reviewed it, whether it was routed internally, and whether any memorandum, email, docket note, or attorney analysis addressed it.

That keeps it disciplined: not “they suppressed DaCK,” but “they are now on notice, and the paper trail matters.”