Looking to limit birthright citizenship, Trump turns to an 1884 Supreme Court ruling against a Native American

WASHINGTON — The Supreme Court is considering the relevance of an 1884 case involving a Native American man denied the right to vote to a current challenge to the long-standing interpretation of birthright citizenship, as the Trump administration defends its plan to limit who qualifies.

Trump Administration Cites 1884 Supreme Court Ruling

In 1880, Omaha election official Charles Wilkins refused to register John Elk, a member of what is now known as the Winnebago Tribe of Nebraska, to vote on the grounds that he was Native American and therefore not an American citizen. Elk argued he had severed ties with his tribe and submitted to U.S. authority, launching a legal challenge asserting he was a citizen at birth because he was born within U.S. territory.

The Supreme Court, in the 1884 case Elk v. Wilkins, ruled against him, stating that Native Americans born within the United States did not have birthright citizenship, holding them to the same status as children of foreign government subjects born within that government’s domain.

President Donald Trump’s administration is now citing that case as it defends his plan to end automatic birthright citizenship, putting a new spin on the long-standing interpretation of the Constitution’s 14th Amendment. The Supreme Court heard oral arguments in the case on Wednesday.

Trump’s executive order, issued on the first day of his second term, seeks to limit birthright citizenship to people with at least one parent who is a U.S. citizen or a legal permanent resident. The order is currently on hold due to lower court rulings.

Solicitor General D. John Sauer, representing the government, referenced Elk in court papers, arguing the Supreme Court has “squarely rejected the premise that anyone born in U.S. territory, no matter the circumstances, is automatically a citizen so long as the federal government can regulate them.” White House spokeswoman Abigail Jackson stated the case presents an opportunity to “restore the meaning of citizenship in the United States to its original public meaning.”

ACLU Contests Administration’s Arguments

The American Civil Liberties Union, leading the challenge to Trump’s executive order, strongly contests the administration’s arguments regarding the relevance of the Elk ruling. “At a fundamental level, this case is about an attempt to strip citizenship from the children of immigrants who have always been citizens of the U.S. The Native American questions the government raises are really beside the point,” ACLU lawyer Cody Wofsy said in an interview.

Tribal Status is ‘Unique’

Notably, no briefs were filed in the case by Native American tribes or organizations. However, two scholars of Native American law, Bethany Berger at the University of Iowa College of Law and Gregory Ablavsky at Stanford Law School, filed a brief backing the ACLU’s challenge.

Experts on Native American law told NBC News the administration’s reliance on Elk is problematic. “We believe the reliance on Elk to deny birthright citizenship to children of undocumented immigrants is misplaced. It’s a misreading and a misunderstanding,” said Leonard Fineday, general counsel of the National Congress of American Indians. The Elk decision, he added, rests solely on the specific nature of “quasi-sovereign tribal government” and is limited to that context.

Monte Mills, director of the Native American Law Center at the University of Washington School of Law, agreed, calling it ironic that the government would rely on such a ruling. Another lawyer specializing in Native American issues, who wished to remain anonymous, noted the complexity of Indian law and its limited applicability to other legal areas, citing the historically inconsistent legal relationship between the U.S. and various tribes.

The legal status of Native Americans within the U.S. has been extensively addressed throughout history, involving treaty-making and often mistreatment. Since 1924, Native Americans have been guaranteed birthright citizenship via statute, explaining the lack of widespread tribal involvement in the current case. Some tribes may also hold differing political views on Trump’s executive order.

‘Subject to the Jurisdiction Thereof’

The case centers on the meaning of the “citizenship clause” of the 14th Amendment, ratified in 1868, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This clause has long been understood to confer citizenship on almost anyone born in the United States, with exceptions for children born to diplomats and foreign invaders.

The Trump administration focuses on “subject to the jurisdiction thereof,” arguing it excludes children of those who entered the country illegally and those born to people with temporary legal status. Sauer argued in the government’s brief that Elk demonstrates birthright citizenship applies only to those subject to the “political jurisdiction” of the United States, quoting a line from the ruling.

Challengers point to the 1898 case United States v. Wong Kim Ark, where the court ruled a man born in San Francisco to Chinese parents was an American citizen at birth. Justice Horace Gray, who authored both Elk and Wong Kim Ark, distinguished his earlier opinion in Elk, stating it concerned only members of Indian tribes and did not apply to others born in the United States.

Sauer downplayed the Ark ruling, claiming it recognized birthright citizenship only for children of citizens and legal permanent residents. Ilan Wurman, a professor at the University of Minnesota Law School who filed a brief supporting Trump, said it is unclear how much weight the Supreme Court will give the Elk case. Bethany Berger stated the government’s argument is a “retread of what it tried to and failed to do before.”