This week, the U.S. Supreme Court spent two hours hearing a landmark case that could upend birthright citizenship. A 19th century ruling on the citizenry of tribal members was at the heart of the Trump administration’s defense of an executive order signed on the first day of President Donald Trump’s second term.
The commander in chief personally went to the Wednesday proceedings. His presence marks the first time a sitting U.S. president has ever attended oral arguments inside the chambers of the nation’s high courtroom.
In an exchange that lasted for less than a minute, Supreme Court Justice Neil Gorsuch pressed Solicitor General John Sauer whether Native Americans should be considered birthright citizens.
After going back-and-forth, Sauer replied: “I think so, on our test. Yes, if they’re lawfully domiciled here. I have to think that through, but that’s my reaction.” Then, Gorsuch swiftly answered back: “I’ll take the yes, that’s alright.”
In a 7-2 majority decision from 1884, the nine justices ruled John Elk, a Winnebago living in Omaha who tried registering to vote, was not a U.S. citizen in spite of the 14th Amendment codifying birthright citizenship. That’s because Elk was born into a tribe — which is seen as a legally distinct political entity.
Four decades later, Congress ratified the Indian Citizenship Act in 1924.
“My mother was probably not a United States citizen when she was born in 1923 in Oklahoma,” said Bob Miller, who is Eastern Shawnee and a professor at Arizona State University’s Indian Legal Clinic. “Now, I say probably because, I’ve not done all the research.”
He has been teaching this very precedent, Elk v. Wilkins, for three decades now.
“Our founding fathers knew from the beginning that tribes were, yes, outside the U.S. legal system and governance,” added Miller, “even when they were inside one of the 13 states — so to me, that’s a positive aspect, that we are governments.”
“We remain governments today,” he continued, “and so yes, it’s no surprise that Indian citizenship was treated differently. I disagree completely with the argument that that’s analogous to undocumented immigrants and them having children here.”
A ruling isn’t expected until this summer.
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