The Trump administration heads to the Supreme Court this week armed with a legal argument rooted in an 1884 case that denied citizenship to a Native American man, a move that has drawn sharp criticism from tribal leaders and legal scholars but could reshape one of the most contested questions in American immigration law.
Oral arguments are set for Wednesday in the administration's defense of President Donald Trump's executive order to limit automatic birthright citizenship. The order, issued on the first day of his second term, would restrict citizenship at birth to children with at least one parent who is either a U.S. citizen or a legal permanent resident. Lower courts have blocked the order from taking effect, and now the justices will weigh in.
At the center of the administration's legal strategy sits Elk v. Wilkins, a case that began on April 5, 1880, when an Omaha election official named Charles Wilkins refused to register a man named John Elk to vote, solely because Elk was Native American. Elk, believed to have been a member of what is now known as the Winnebago Tribe of Nebraska, argued he had severed all ties with his tribe and willingly subjected himself to the authority of the United States. He claimed citizenship at birth because he was born within U.S. territory. The Supreme Court disagreed, ruling in 1884 that Native Americans born within the United States did not hold birthright citizenship.
Almost 150 years later, as NBC News reported, the Trump administration is citing that very ruling to support its position that the 14th Amendment does not guarantee automatic citizenship to everyone born on American soil.
Solicitor General D. John Sauer, representing the government, referenced Elk multiple times in the administration's brief to the court. His core argument: the 1884 decision proves that birthright citizenship applies only to those subject to the "political jurisdiction" of the United States, not merely anyone born within its borders.
In court papers, Sauer wrote that Elk "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." He further argued that a blanket reading of the 14th Amendment "cannot explain the long-established exceptions to birthright citizenship, including for children of tribal Indians."
White House spokeswoman Abigail Jackson framed the stakes plainly, saying the case gives the Supreme Court the chance to "restore the meaning of citizenship in the United States to its original public meaning."
That framing matters. The administration is not asking the court to invent a new principle. It is asking the justices to revisit what the 14th Amendment's "subject to the jurisdiction thereof" clause meant when it was ratified in 1868, and whether decades of expansive interpretation have drifted from the text. The Supreme Court has been weighing several major constitutional questions this term, and this one may prove the most consequential.
The American Civil Liberties Union is leading the challenge to Trump's executive order. ACLU lawyer Cody Wofsy dismissed the administration's reliance on Elk as a distraction from the real issue.
"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."
Leonard Fineday, general counsel of the National Congress of American Indians, was more direct in his criticism. He called the administration's reliance on Elk "misplaced" and "a misreading and a misunderstanding," arguing that the 1884 decision 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. He said the government's use of the ruling "does betray a lack of understanding and awareness or willingness to acknowledge the nuance of Native American law." Mills called it ironic that the government would lean on such a ruling.
Two scholars of Native American law, Bethany Berger of the University of Iowa College of Law and Gregory Ablavsky of Stanford Law School, filed a brief backing the ACLU's challenge. Berger argued that Sauer's position echoes what the government tried more than a century ago.
"What the government is doing now is a retread of what it tried to and failed to do before."
The strongest precedent cutting against the Trump administration's position is United States v. Wong Kim Ark, an 1898 Supreme Court ruling. In that case, the justices held that a man born in San Francisco to parents originally from China, who were living in the United States but were not citizens, was an American citizen at birth.
What makes the case especially difficult for the administration: the same justice, Horace Gray, authored the majority opinions in both Elk and Wong Kim Ark. In the later ruling, Gray distinguished his earlier opinion, writing that Elk applied "only members of Indian tribes within the United States and had no tendency to deny citizenship to children born in the United States."
In other words, the author of the very precedent the administration now cites went on to say it did not reach the broader question of birthright citizenship for children of non-citizen immigrants. The administration's brief downplayed the Ark ruling, but it remains the most direct Supreme Court statement on the issue.
The current Supreme Court term has already produced several closely watched decisions, and the birthright citizenship case promises to be among the most significant in decades.
Not everyone backing the administration's position claims the argument is airtight. Ilan Wurman, a professor at the University of Minnesota Law School who filed a brief supporting Trump, acknowledged the limits of the Elk precedent.
"The bottom line is that the case is helpful to the government, but it's ambiguous."
That candor is worth noting. The legal terrain here is genuinely contested. The 14th Amendment's citizenship clause has been read broadly for generations, and the administration is asking the court to narrow that reading based on original meaning. Whether five justices will go along remains an open question.
An unnamed lawyer who works on Native American issues, who declined to be identified because he did not want to be seen speaking on behalf of tribes with diverse views, offered a cautionary note. He said Native American history is "anomalous" and tribal status is "unique," and urged caution before importing lessons from that context into immigration law.
"I would say Native American history is anomalous. The status of tribes is unique. I'd at least be very cautious before trying to import any supposed lessons or principles from that context into other areas."
That same lawyer noted that more than 500 tribes likely differ on whether Trump's executive order is good policy. "I do suspect some tribes would be supportive of the policy because some tribes are pretty politically conservative," he said.
Since 1924, Native Americans have been guaranteed birthright citizenship by statute, a point that makes the Elk ruling largely a historical artifact for tribal members themselves. But the legal reasoning behind it is very much alive in the current fight.
The core question before the court is whether the phrase "subject to the jurisdiction thereof" in the 14th Amendment means something more than simply being present on U.S. soil and subject to U.S. law. The Trump administration says it does, that it requires a deeper allegiance, a "political jurisdiction" that illegal immigrants and certain visa holders do not possess. Opponents say the text and precedent are clear: if you are born here, you are a citizen.
The Supreme Court's recent activity across a range of constitutional questions suggests the justices are not shy about revisiting settled assumptions. Whether they are willing to do so here, on a question that touches millions of people and the meaning of the 14th Amendment itself, will become clearer after Wednesday's arguments.
For decades, the political class has treated automatic birthright citizenship as untouchable, too entrenched, too symbolic, too radioactive to challenge. The Trump administration is challenging it anyway, armed with an argument that may be imperfect but asks a question the country has avoided long enough: Does the Constitution really say what everyone assumes it says?
Sometimes the most important legal fights start by forcing a court to read the actual text.
