Opinion
Throughout history, the United States government has struggled to define its relationship with the first inhabitants of this land. As the republic expanded geographically, Native people were in the way—referred to as the “Indian problem.” The term is a colonial construct, and it persists to this day.
That reality became evident when the Supreme Court of the United States heard arguments in Trump v. Barbara, a birthright citizenship case. At issue is whether children born to undocumented immigrants on U.S. soil should be considered citizens.
To support its position, the administration pointed to Elk v. Wilkins, an 1884 decision involving John Elk, a member of the Winnebago Tribe who, in 1880, was denied the right to vote. Elk sued, arguing that the 14th Amendment made him a citizen because he was born in the United States and had subjected himself to U.S. authority—“subject to the jurisdiction.” The Supreme Court ruled against him—because he was an Indian.
The following exchange taken from the oral arguments’ transcript during oral arguments on April 1, 2026, between Justice Neil Gorsuch and U.S. Solicitor General D. John Sauer demonstrates how the Trump administration struggled to answer a basic question: Are American Indians born today in the United States birthright citizens?
During oral arguments, U.S. Supreme Court Justice Neil Gorsuch pressed Solicitor General John Sauer on whether tribal members born today would be considered birthright citizens. Sauer responded that, under the government’s proposed test, he believed they would be—so long as they were lawfully domiciled in the United States—though he briefly hedged, noting he would need to think it through further. Gorsuch quickly interjected, cutting off the uncertainty with a quip: “I’ll take the yes. That’s all right,” prompting laughter in the courtroom.
Let’s be clear: Native Americans were not excluded from citizenship because they were immigrants, temporary visitors, or somehow outside the reach of U.S. law. They were excluded because they belonged to separate, sovereign nations. That distinction is not a footnote in American law—it is foundational.
Gorsuch, to his credit, appeared to understand this tension. His questioning suggested discomfort with relying on outdated and discredited legal frameworks to define modern constitutional rights. In doing so, he exposed a deeper flaw in the government’s argument: it treats Native Americans as a historical analogy rather than as sovereign political entities.
That’s not just bad history—it’s bad law. And the administration’s reliance on Elk v. Wilkins is fundamentally misplaced.
“That comparison is wrong. It ignores the unique legal and political status of Tribal Nations as sovereign governments. It also ignores the discrimination and exclusion that accompanied the assertion that Native Americans should be denied citizenship and voting rights,” the Native American Rights Fund posted on its website last week.
Tribal Nations have always occupied a unique legal status. They are not foreign countries in the traditional sense, nor are they simply racial or ethnic groups within the United States. They are sovereign governments with a nation-to-nation relationship with the federal government. That’s why early courts treated Native Americans differently—not because they were outside U.S. authority in a practical sense, but because they were members of distinct political communities.
Using that history to argue against birthright citizenship today ignores the evolution of both constitutional law and federal Indian policy. Native Americans were collectively granted U.S. citizenship in 1924, but that did not erase Tribal sovereignty. It simply layered U.S. citizenship on top of existing political identities.
That nuance is missing from the government’s argument.
What makes this moment particularly concerning is how easily Native history can be misused when stripped of context. When lawyers reach back into the 19th century to justify modern policy, they often cherry-pick examples without acknowledging the broader legal and moral shifts that have taken place since then.
Gorsuch’s line of questioning cut through that selective storytelling. By pressing the solicitor general on the implications of relying on outdated categories, he raised an essential question: If the government’s theory depends on historical exclusions we now reject, why should the Court embrace it?
That question doesn’t just apply to Native Americans. It goes to the heart of the 14th Amendment itself.
The Citizenship Clause was adopted in the aftermath of the Civil War to establish a clear and inclusive rule: If you are born in the United States and subject to its laws, you are a citizen. It was meant to end debates over belonging, not reopen them.
Attempts to narrow that principle by redefining “jurisdiction” risk undermining more than a century of settled understanding. And when those attempts rely on distorted interpretations of Native history, they do a disservice to both constitutional law and Tribal sovereignty.
For Native communities, this is not an abstract debate. It is another reminder of how often our histories are invoked—but not fully understood—in national conversations. Too often, Native people are treated as examples rather than as participants, our legal status reduced to a talking point instead of recognized as a living, evolving reality.
Gorsuch’s question suggests at least some awareness of what is at stake. The hope now is that the Court as a whole recognizes that tribal sovereignty is not a legal workaround to be exploited. It is a governing principle. The Court should treat it that way.
Thayék gde nwéndëmen — We are all related.
