In a closely watched Supreme Court argument over birthright citizenship, justices pressed the Trump administration’s lawyer with pointed questions. General Solicitor John Sauer invoked past legal battles over Native American citizenship Native American history to defend President Trump’s executive order targeting immigrants, which he signed just as he began his second term.
During oral arguments on April 1, Sauer maintained that the 14th Amendment’s citizenship clause has been misinterpreted — that it didn’t automatically extend birthright citizenship to children born in the United States. Sauer drew a comparison between the treatment of Indian Tribes to that of foreign governments. He said the U.S. Constitution recognized tribes as sovereign nations, and that when the country was founded, tribal members—and their children—were not considered citizens, much like the children of foreign diplomats. He contended that this same standard should be applied to immigrants.
“You’re using some pretty obscure sources to get to this concept,” said Justice Sonia Sotomayor, who sounded skeptical about where Sauer was headed with his argument. “The Indian Tribes were analogized to foreign diplomats. So, what do we do with that?”
“With the Indian Tribes, we think that’s a case that strongly supports us,” Sauer responded.
He also cited an 1884 Supreme Court case, Elk v. Wilkins, which tested birthright citizenship as guaranteed in the 14th Amendment, enacted 16 years earlier.
The case involved John Elk, a Winnebago man, and Charles Wilkins, a voter registrar who refused to register Elk on the grounds that he wasn’t a U.S. citizen. In a majority decision, the court ruled that Elk was not a citizen, because he was born on a reservation and the U.S. government did not exercise jurisdiction over him in the same way it did over citizens.
Legal scholars like Bob Anderson (Chippewa), an Alaska attorney who teaches Indian Law at Harvard, says Sauer’s arguments were being stretched beyond their historical context.
“The Indian law case just doesn’t fit with anything that they’re trying to do,” he said. “And they were really trying to make it apply and I think they failed.”
Anderson says Sauer’s arguments were met with skepticism, across the ideological spectrum.
“It seemed to me that the conservative members of the court recognized that,” he said. “I was surprised that they seemed to be so much in alignment with the opponents of the Trump administration.”
Justice Neil Gorsuch, considered an expert on Indian Law, asked Sauer some pointed questions about the status of Native Americans.
“Do you think they're birthright citizens?” Gorsuch asked.
“No. I think the -- the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright citizens,” Sauer said.
“I understand that's what they said, but your test is the domicile of the parents,” Gorsuch said, “and that would be the test you'd have us apply today. Right? “
"Yes,” Sauer said.
Justice Gorsuch wasn’t satisfied with Sauer’s answers and continued to press his point. He asked if tribal members born today are birthright citizens under that standard.
“I think so on our test, yeah, if they're lawfully domiciled here,” Sauer said, but then walked his answer back. “I’m not sure – I have to think through that.”
Anderson had praise for Cecellia Wang, the ACLU attorney who challenged the Trump administration’s order. Aside from what he described as routine devil’s advocate questions, the justices appeared largely satisfied with her presentation.
“She did a magnificent job of explaining, in a relatively short amount of time, the complicated history of how 14th Amendment came to be, and the narrow exceptions to it, and why — what the Trump administration has done — does not fit within any of those exceptions,” Anderson said.
For Native Americans unsettled by the exchanges between the justices and Trump’s solicitor, Anderson says they need not worry.
“No, there's no way that this case could affect the citizenship of Indian tribes, because Congress passed a separate law in 1924 automatically making all tribal members in the United States citizens, as well as their children,” Anderson said.
The Indian Citizenship Act of 1924 law closed the gap exposed in Elk v. Wilkins, which had left Native Americans without automatic citizenship because of their status as tribal citizens. It also preserved tribes’ sovereign standing under the Constitution, a distinction Anderson says the court is unlikely to undo.
“Federal Indian law and how it works in practice is always confusing, and this is a particularly difficult area to explain, because of the complications of the 14th amendment,” Anderson said.
Even so, Anderson said the Indian Citizenship Act stands out for its clarity, spelled out in just a handful of sentences.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.”
