What's Your Evidence?: Did Obama Become an Indonesian Citizen when His Mother, Ann Dunham, married Lolo Soetoro, and moved to Indonesia?

As outlined in more detail below, Mr. Philip A. Berg alleges, in his lawsuit against Obama, that Obama lost his US citizenship, by virtue of his mother's marriage to Lolo Soetoro, an Indonesian, and her subsequent relocation with Obama to Indonesia. (Note: Berg's complaint has been dismissed, but he is appealing in both the Third Circuit and the Supreme Court. See here for current status of his appeals.)

Because the facts - i.e., that Ms. Dunham married Mr. Soetoro, and that she moved Obama with her to Indonesia for a time - are not disputed, this post post evaluates the legal sources upon which Mr. Berg makes this claim.

DISCLAIMER: The information provided below is information found to date, but we wish to make clear that we are not providing independent legal analysis on these issues. If and when we find a published report of legal analysis from a qualified attorney, we will post that information.

Berg's Legal Argument		Pleading Citation(s)	Law Cited in Pleadings
A	Under the Nationality Act of 1940, Section 317(b), "Obama's mother expatriated her U.S. Citizenship when she married Lolo Soetoro, a citizen of Indonesia and relocated her and her son (Obama) to Indonesia."	See Complaint ¶¶ 26-32; see also Opposition to Motion to Dismiss at 6.	Nationality Act of 1940, Section 317(b)
B	Because the Nationality Act of 1940 also provided that a minor became naturalized (in the other country) upon the naturalization of his or her parent having custody of such person, Obama became expatriated by virtue of his mother's marriage and their subsequent relocation to Indonesia.	Id.	Nationality Act of 1940 (no specifics)
C	Although Ms. Dunham-Soetoro returned to Hawaii, she did not regain her US citizenship, because she never took the took the oath of allegiance required under the Nationality Act.	Id.	8 U.S.C. §1435
D	Because Obama's mother failed to take that oath, Obama could not regain his US citizenship until he turned 18, and took the oath of allegiance himself.	Id.	See above.

Let's look at the law Mr. Berg cites.

A	"Under the Nationality Act of 1940, Section 317(b), "Obama's mother expatriated her U.S. Citizenship when she married Lolo Soetoro, a citizen of Indonesia and relocated her and her son (Obama) to Indonesia."
Berg asserts that under the Nationality Act of 1940, Section 317(b), "Obama's mother expatriated her U.S. Citizenship when she married Lolo Soetoro, a citizen of Indonesia and relocated her and her son (Obama) to Indonesia." Complaint ¶ 31 (see generally ¶¶ 26-32) Assume that this provision of the Nationality Act of 1940 -- i.e., Section 317(b) -- was in effect at the time of Ms. Dunham's marriage to Mr. Soetoro. What does Section 317(b) say? "From and after the effective date of this Act, a woman, who was a citizen of the United States at birth, and who has or is believed to have lost her United States citizenship solely by reason of her marriage *prior to September 22, 1922, to an alien, and whose marital status with such alien has or shall have terminated, if no other nationality was acquired by affirmative act other than such marriage,shall, from and after the taking of the oath of allegiance prescribed by subsection (b) of section 335 of this Act, be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922." Read the law yourself here**: Nationality Act of 1940, Chapter 3, §§ 301-322.
Conclusion: The law Berg cites does not support his argument. In fact, it directly contradicts his argument.
As quoted above, Section 317(b) applies to people who married to a foreign national prior to 1922. Mr. Berg's pleadings assert that Ms. Dunham married Mr. Soetoro around 1967 -- 45 years after the effective period addressed in this law (See Complaint ¶ 26). Therefore, this law provides no basis for Mr. Berg's assertions.

B	Because the Nationality Act of 1940 also provided that a minor became naturalized (in the other country) upon the naturalization of his or her parent having custody of such person, Obama became expatriated by virtue of his mother's marriage and their subsequent relocation to Indonesia
Berg asserts that the Nationality Act of 1940 also provided that a minor became naturalized (in the other country) upon the naturalization of his or her parent having custody of such person. Therefore, Berg argues, Obama lost his US citizenship by virtue of his mother's marriage and their subsequent relocation to Indonesia. Assume that the applicable provisions of the Nationality Act of 1940 were in effect at the time that Ms. Dunham-Soetoro moved Obama to Indonesia. What does that Act say about the impact of a parent's actions on a minor's US citizenship? Section 401 said as follows: "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: (a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: Provided, however, That nationality not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring permanent residence in the United States:....." (Italics in original; Bold added) That Act, at Section 407 said: "A person having American nationality, who is a minor and is residing in a foreign state with or under the legal custody of a parent who loses American nationality under section 404 of this Act, shall at the same time lose his American nationality if such minor has or acquires the nationality of such foreign state: Provided, That, in such case, American nationality shall not be lost as the result of loss of American nationality by the parent unless and until the child attains the age of twenty-three years without having acquired permanent residence in the United States." (Italics in original; Bold added) *Read the law yourself here*: Nationality Act of 1940, Chapter 4, §§ 401-410.
Conclusion: The law Berg cites does not support his argument. In fact, it directly contradicts his argument.
As quoted above, the Nationality Act of 1940, upon which Berg relies, expressly states that a minor did not lose his US citizenship by virtue of his mother's actions, "unless and until" he turned 23 years old without having taken permanent residence in the United States. ~~~ Note also that these provisions of the Act were amended by 1952 Immigration and Nationality Act, Title III, Chapter 3. Therefore, the 1952 provisions would have applied to Obama when he moved to Indonesia and then returned to the US in 1971 (per Berg's Opposition to Motion to Dismiss at 9.) The Immigration and Nationality Act of 1952, section 349 (a), provided: "From and after the effective date of this Act a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by -- (1) obtaining naturalization in a foreign state upon his own application, upon an application filed in his behalf by a parent, or duly authorized agent, or through the naturalization of a parent having legal custody of such person: Provided, That nationality shall not be lost by any person under this section as the result of the naturalization of a parent or parents while such person is under the age of twenty-one years, or as the result of naturalization obtained on behalf of a person under twenty-one years of age by a parent, guardian, or duly authorized agent, unless such person shall fail to enter the United States to establish a permanent residence prior to his twenty-fifth birthday: ...." (Italics in original; Bold added) Section 355 of that Act provided that: "A person having United States nationality, who is under the age of twenty-one and whose residence is in a foreign state with or under the legal custody of a parent who hereafter loses United States nationality under section 350 or 352 of this title, shall also lose his United States nationality if such person has or acquires the nationality of such foreign state: Provided, That, in such case, United States nationality shall not be lost as the result of loss of United States nationality by the parent unless and until the person attains the age of twenty-five years without having established his residence in the United States." (Italics in original; Bold added). *Read the law yourself here*: 1952 Immigration and Nationality Act, Title III, Chapter 3. Given that Obama returned to the U.S., and established permanent residency there, long before he was either 23 or 25, this distinction is rather irrelevant. However, we provided it based on Berg's assertion that the law in effect at the time of the events is the correct law to apply.

C	Although Ms. Dunham-Soetoro returned to Hawaii, she did not regain her US citizenship, because she never took the took the oath of allegiance required under the Nationality Act
As discussed in A, above, Berg's assertion that Ms. Dunham-Soetoro lost her US citizenship upon her marriage to Lolo Soetoro under the Nationality Act of 1940, Section 317(b) is not supported by the law he cites. That law applied only to persons married *prior to 1922*. Since Ms. Dunham-Soetoro never lost her citizenship under Section 317(b) -- because she married Soetoro in the 1960s, long after 1922 -- there was no need to regain her citizenship and/or to take any oath of allegiance.
Conclusion: The law Berg cites does not support his argument. In fact, it directly contradicts his argument.
See above.

D	Because Obama's mother failed to take that oath, Obama could not regain his US citizenship until he turned 18, and took the oath of allegiance himself.
First: As discussed in A, above, Berg's assertion that Ms. Dunham-Soetoro lost her US citizenship upon her marriage to Lolo Soetoro under the Nationality Act of 1940, Section 317(b) is not supported by the law he cites. That law applied only to persons married *prior to 1922. Since Ms. Dunham-Soetoro never lost her citizenship under Section 317(b) -- because she married Soetoro in the 1960s, long after 1922 -- there was no need to regain her citizenship and/or to take any oath of allegiance. Second*: As discussed in B, above, whatever the status of his mother, both the 1940 Nationality Act and the 1952 Immigration and Nationality Act, which amended the 1940 Act, expressly provided that Obama could not lose his US citizenship by virtue of his mother's actions so long as he returned to the US and established residency before he was 23/25.
Conclusion: The law Berg cites does not support his argument. In fact, it directly contradicts his argument.
See above.