He launched a legal challenge, arguing among other things that he was a citizen at birth because he was born within United States territory.<\/p>\n
But the Supreme Court, in an 1884 case called Elk v. Wilkins<\/a>, ruled against him, saying that Native Americans born within the territory of the United States did not have birthright citizenship. They had the same status as \u201cthe children of subjects of any foreign government born within the domain of that government,\u201d the court said.<\/p>\n President Donald Trump\u2019s 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\u2019s 14th Amendment. The Supreme Court hears oral arguments in the case on Wednesday.<\/p>\n Trump\u2019s executive order<\/a>, issued on the first day<\/a> of his second term, seeks to limit birthright citizenship only to people with at least one parent who is a U.S. citizen or a legal permanent resident.<\/p>\n The order is not in effect; lower courts put it on hold.<\/p>\n FORSUBSCRIBERS<\/p>\n Solicitor General D. John Sauer, representing the government, referenced Elk in court papers, saying the Supreme Court has \u201csquarely 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.\u201d<\/p>\n White House spokeswoman Abigail Jackson said in a statement that the case gives the Supreme Court the chance to “restore the meaning of citizenship in the United States to its original public meaning.”<\/p>\n The Trump administration\u2019s arguments about the relevance of the Elk ruling are strongly contested by the American Civil Liberties Union, which is leading the challenge to Trump\u2019s executive order.<\/p>\n \u201cAt 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,\u201d ACLU lawyer Cody Wofsy said in an interview.<\/p>\n Tribal status is ‘unique’<\/p>\n Notably absent from any of the dozens of briefs filed in the case is anything from Native American tribes or organizations. Two scholars of Native American law, Bethany Berger at the University of Iowa College of Law and Gregory Ablavsky at Stanford Law School, did file a brief<\/a> backing the ACLU\u2019s challenge.<\/p>\n Experts on Native American law told NBC News the administration\u2019s reliance on Elk was problematic, both rhetorically and legally.<\/p>\n \u201cWe believe the reliance on Elk to deny birthright citizenship to children of undocumented immigrants is misplaced. It\u2019s a misreading and a misunderstanding,\u201d said Leonard Fineday, general counsel of the National Congress of American Indians, which represents tribes.<\/p>\n The Elk decision rests solely on the specific nature of \u201cquasi-sovereign tribal government\u201d and is limited to that context, he added.<\/p>\n Monte Mills, director of the Native American Law Center at the University of Washington School of Law, agreed, saying it was ironic that the government would rely on such a ruling.<\/p>\n \u201cIt does betray a lack of understanding and awareness or willingness to acknowledge the nuance of Native American law,\u201d he added.<\/p>\n Another lawyer who works on Native American issues, who declined to be named because he did not want to be seen to be speaking on behalf of tribes with diverse views, said Indian law, a technical term still in use, is complex and not applicable to other areas of law. That\u2019s in part because there was never a blanket rule that applied to all tribes when it came to their legal relationship with the United States.<\/p>\n \u201cI would say Native American history is anomalous. The status of tribes is unique. I\u2019d at least be very cautious before trying to import any supposed lessons or principles from that context into other areas,\u201d the lawyer said.<\/p>\n The legal status of Native Americans within the U.S. has been addressed at length throughout history as the nation expanded westward, making \u2014 and breaking \u2014 treaties with tribes along the way and often mistreating them. The U.S. government simultaneously considered tribes to be somewhat independent nations while also exerting authority over them.<\/p>\n Tribes and Native American organizations likely did not file briefs in the birthright citizenship case for at least two reasons, Indian law experts said. First, they do not have a stake in the case because, since 1924<\/a>, Native Americans have been guaranteed birthright citizenship via statute. Second, the more than 500 tribes likely differ politically on whether Trump\u2019s executive order is good policy.<\/p>\n \u201cI do suspect some tribes would be supportive of the policy because some tribes are pretty politically conservative,\u201d the lawyer who works on Native American issues said.<\/p>\n ‘Subject to the jurisdiction thereof’<\/p>\n The unusual case focuses on the meaning of the \u201ccitizenship clause\u201d of the 14th Amendment, ratified in 1868 after the Civil War and the end of slavery. It states: \u201cAll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.\u201d<\/p>\n It\u2019s long been understood<\/a> to confer citizenship on almost anyone born in the United States, regardless of their legal status. Exceptions include children born to diplomats and foreign invaders.<\/p>\n The Trump administration has zeroed in on \u201csubject to the jurisdiction thereof,\u201d arguing it excludes both the children of people who entered the country illegally and those born to people with temporary legal status, such as work visas.<\/p>\n The Elk case is mentioned multiple times in the Trump administration\u2019s brief<\/a>, with Sauer arguing that it shows birthright citizenship only applies to people who are subject to the \u201cpolitical jurisdiction\u201d of the United States.<\/p>\n He quoted a line from the Elk ruling that says the \u201cmain object\u201d of the citizenship clause was to address the issue of freed slaves after the Civil War.<\/p>\n The challengers, Sauer wrote, \u201ccannot explain the long-established exceptions to birthright citizenship, including for children of tribal Indians.\u201d<\/p>\n Those backing the traditional understanding of birthright citizenship point to another 19th-century ruling, this one from 1898. In United States v. Wong Kim Ark<\/a>, the court ruled that a man born in San Francisco to parents originally from China but living in the United States was an American citizen at birth.<\/p>\n The majority opinions in Elk and Ark were both authored by Justice Horace Gray. In the latter ruling, Gray distinguished his earlier opinion in the Elk case, saying it concerned \u201conly members of Indian tribes within the United States and had no tendency to deny citizenship to children born in the United States\u201d who were not Native American.<\/p>\n In his brief, Sauer downplayed the Ark ruling, saying it recognized birthright citizenship only for children of citizens and those born to immigrants who were permanent residents.<\/p>\n![\"\"\/](\"https:\/\/media-cldnry.s-nbcnews.com\/image\/upload\/rockcms\/2026-01\/asterisk-43f04b.svg\")
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