WASHINGTON — A case dating back to 1884, Elk v. Wilkins, is resurfacing as the Supreme Court considers the Trump administration’s plan to limit birthright citizenship. The case involved John Elk, a member of what is now known as the Winnebago Tribe of Nebraska, who was denied voter registration in 1880 because he was Native American.
Elk argued he had severed ties with his tribe and submitted to U.S. Authority, claiming he was a citizen by virtue of being born within U.S. Territory. However, the Supreme Court ruled against him, stating that Native Americans born within the United States did not automatically possess birthright citizenship. The court equated their status to that of children born within a foreign government’s territory to parents who were subjects of that government.
The Trump administration’s executive order, issued on the first day of his second term, seeks to restrict birthright citizenship to individuals with at least one parent who is a U.S. Citizen or a legal permanent resident. The administration is citing Elk v. Wilkins to support its argument that birthright citizenship is not automatic for anyone born within U.S. Territory.
Tribal Status and the 14th Amendment
The case centers on the interpretation of the 14th Amendment’s citizenship clause, which states that all persons born or naturalized in the United States, and “subject to the jurisdiction thereof,” are citizens. The administration argues that “subject to the jurisdiction thereof” excludes those who enter the country illegally and those with temporary legal status.
Experts on Native American law have expressed concern that the administration’s reliance on Elk v. Wilkins is problematic. They argue the decision was specific to the unique legal status of “quasi-sovereign tribal government” and should not be applied to other contexts. One lawyer noted that Native American law is complex and not easily transferable to other areas of law.
Notably, no briefs were filed in the case by Native American tribes or organizations. Experts suggest this is because, since 1924, Native Americans have been guaranteed citizenship by statute, and the more than 500 tribes likely hold diverse political views on the executive order.
The government, represented by Solicitor General D. John Sauer, argues the Supreme Court has already “squarely rejected the premise that anyone born in U.S. Territory…is automatically a citizen.” Opponents 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 a U.S. Citizen at birth, distinguishing it from the Elk decision.
Frequently Asked Questions
What was the outcome of Elk v. Wilkins?
The Supreme Court ruled against John Elk, stating that Native Americans born within the United States did not have birthright citizenship.
What is the Trump administration’s argument regarding birthright citizenship?
The administration argues that the 14th Amendment’s citizenship clause does not automatically grant citizenship to everyone born in the U.S., and is citing Elk v. Wilkins to support this claim.
Why haven’t Native American tribes filed briefs in this case?
Experts suggest this is because Native Americans have been guaranteed citizenship since 1924, and the tribes likely hold diverse political views on the executive order.
As the Supreme Court prepares to hear arguments, it remains to be seen how much weight will be given to the 1884 Elk v. Wilkins decision and how it will shape the future of birthright citizenship in the United States.
