Looking to limit birthright citizenship, Trump turns to an 1884 Supreme Court ruling against a Native American man
Key Takeaways
- The Trump administration is citing the 1884 Supreme Court decision Elk v. Wilkins to defend an executive order that would limit automatic birthright citizenship to children with at least one U.S. citizen or lawful permanent resident parent.
- It has been reported that Solicitor General D. John Sauer referenced Elk in court filings as part of the government’s argument; lower courts have blocked the order and the Supreme Court is now hearing the case.
- Native American law experts and civil‑liberties groups say Elk dealt with tribal sovereignty and is not a precedent for denying citizenship to U.S.-born children of noncitizen parents.
- For now, the order remains on hold — but a decision could reshape citizenship law and affect millions born on U.S. soil.
Case background and the administration's argument
Elk v. Wilkins (1884) involved John Elk, who left his tribal affiliation and sought to be registered to vote; the Supreme Court held that Native Americans born in U.S. territory were not automatically citizens under the 14th Amendment. The Trump administration has invoked that ruling in defending an executive order aimed at restricting birthright citizenship — the constitutional guarantee that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." It has been reported that Solicitor General D. John Sauer referenced Elk in court papers to argue the 14th Amendment does not extend citizenship to every person born on U.S. soil regardless of parental status. Lower courts enjoined the order, and the Supreme Court has taken up the matter.
Legal debate and tribal context
Legal scholars and tribal experts counter that Elk rests on the unique relationship between Native nations and the federal government — tribal members were treated as members of separate sovereign communities, not as the children of foreign nationals. Experts such as Bethany Berger and Gregory Ablavsky filed briefs supporting plaintiffs who challenge the order. The American Civil Liberties Union (ACLU), which brought the suit, argues this is fundamentally an attempt to strip citizenship from children of immigrants who, until now, have been treated as citizens at birth. The phrase "subject to the jurisdiction thereof" in the 14th Amendment is central to the dispute; courts and historians have long debated its scope, but many scholars say Elk does not bear on children born to non‑citizen parents.
What this means for immigrants and people born in the U.S.
If the Supreme Court upholds the administration’s narrowing of birthright citizenship, the human impact would be immediate and profound: U.S.-born children of undocumented or temporary-status parents could be deprived of passports, Social Security numbers, and eligibility for federal benefits tied to citizenship, and could face obstacles to future family-based immigration. For people currently navigating the immigration system, the status quo remains in effect while the order is stayed; birth certificates and existing documentation remain valid. Those concerned should consult an immigration attorney about specific circumstances, but for now U.S. law as administered by agencies such as USCIS (U.S. Citizenship and Immigration Services) continues to treat most children born on U.S. soil as citizens under prevailing interpretations of the 14th Amendment.
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