Legal Challenge to Birthright Citizenship: The Role of Elk v. Wilkins

The Trump administration is currently referencing an 1884 Supreme Court decision, Elk v. Wilkins, in its defense of a policy aiming to modify automatic birthright citizenship. This significant legal challenge is scheduled for oral arguments before the Supreme Court.

The executive order, issued on the first day of the second term, seeks to limit birthright citizenship to individuals with at least one parent who is either a U.S. citizen or a legal permanent resident. Lower courts have currently put this order on hold, awaiting the Supreme Court's review.

The Elk v. Wilkins Precedent

In 1880, Omaha election official Charles Wilkins declined to register John Elk to vote, citing his status as a Native American and thus, not an American citizen. Elk, believed to be a member of the Winnebago Tribe of Nebraska, challenged this decision, stating he had disassociated from his tribe and submitted to U.S. authority.

His legal challenge argued for citizenship at birth due to being born within U.S. territory. However, the Supreme Court ruled against Elk in 1884. The Court determined that Native Americans born within U.S. territory did not possess birthright citizenship.

The Supreme Court equated their status to that of 'the children of subjects of any foreign government born within the domain of that government.'

Administration's Argument and Opposition

Solicitor General D. John Sauer, representing the government, cited Elk in court documents. He asserted that the Supreme Court previously '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.'

White House spokeswoman Abigail Jackson stated that the case offers the Supreme Court an opportunity to 'restore the meaning of citizenship in the United States to its original public meaning.'

The American Civil Liberties Union (ACLU), which is leading the challenge against the executive order, disputes the Trump administration's arguments regarding the relevance of the Elk ruling. ACLU lawyer Cody Wofsy stated the case primarily concerns an attempt to strip citizenship from immigrants' children, considering Native American questions raised by the government as secondary.

Native American Law Perspectives

Experts in Native American law have described the administration's reliance on Elk as problematic from both rhetorical and legal standpoints. Leonard Fineday, general counsel of the National Congress of American Indians, called it a 'misreading and a misunderstanding.' He asserted that the Elk decision pertains solely to the unique nature of 'quasi-sovereign tribal government.'

Monte Mills, director of the Native American Law Center at the University of Washington School of Law, noted that this approach indicates a lack of understanding or acknowledgement of the nuances within Native American law. Another lawyer specializing in Native American issues indicated that 'Indian law' is complex and not broadly applicable to other legal areas, partly due to the varied historical relationship between the U.S. and different tribes.

Notably, Native American tribes and organizations are absent from briefs filed in the case. Experts suggest this is because Native Americans have been guaranteed birthright citizenship by statute since 1924, and tribes may hold diverse political views on the executive order.

The 14th Amendment and Jurisdiction

The case centers on the 'citizenship clause' of the 14th Amendment, ratified in 1868. This clause states: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' This clause has traditionally been interpreted to grant citizenship to most individuals born in the U.S., with exceptions for children of diplomats or foreign invaders.

The Trump administration's argument focuses on the phrase 'subject to the jurisdiction thereof.' They contend it excludes children of individuals who entered the country without authorization and those born to individuals with temporary legal statuses, such as work visas.

Sauer's brief suggests Elk demonstrates that birthright citizenship applies only to individuals subject to the 'political jurisdiction' of the United States, quoting a line from the Elk ruling that the clause's 'main object' was to address freed slaves.

Contrasting with United States v. Wong Kim Ark

Advocates for the traditional interpretation of birthright citizenship often reference the 1898 ruling in United States v. Wong Kim Ark. In this case, the Supreme Court determined that a man born in San Francisco to Chinese immigrant parents living in the U.S. was an American citizen at birth.

Justice Horace Gray, who authored both the Elk and Ark majority opinions, differentiated his earlier Elk opinion. He stated it concerned 'only members of Indian tribes within the United States and had no tendency to deny citizenship to children born in the United States' who were not Native American.

Sauer's brief minimizes the Ark ruling, asserting it only recognized birthright citizenship for children of citizens and permanent residents. Ilan Wurman, a University of Minnesota Law School professor who filed a brief supporting the Trump administration, acknowledged the ambiguity of Elk but noted its usefulness to the government's position. Bethany Berger, a Native American legal expert supporting the challengers, stated that Sauer’s argument mirrors a previous, unsuccessful argument made over a century ago in the Wong Kim Ark case.