Donald Trump v. Barbara: Birthright Citizenship at U.S. Supreme Court (Playlist)
Questions about the legal status of American Indians came up repeatedly as the highest court in the land took up a citizenship case that has been at the center of Donald Trump’s anti-immigrant agenda.
In one of his first actions as president in January 2025, Trump declared that children born to immigrants are not American citizens. His drastic reinterpretation of long-standing law led to a high-stakes dispute that reached the U.S. Supreme Court on Wednesday.
But over the course of a two-hour hearing in the nation’s capital, the justices repeatedly asked questions about the original Americans — those who belong to sovereign tribal nations whose continued existence pre-dates the United States. The inquiries seemed to stump the federal government attorney who argued the case on behalf of the Republican president.
One of the key exchanges came courtesy of Justice Neil Gorsuch, who joined the court nearly a decade ago with the most extensive experience in Indian law. He wanted to know whether tribal citizens are considered Americans under Trump’s new interpretation.
“Are tribal members born today birthright citizens?” asked Gorsuch, who was Trump’s first nominee to the high court back in January 2017.
“I think so on our test, yeah, if they’re lawfully domiciled here,” responded D. John Sauer, who as Solicitor General of the United States represented Trump’s position.
Yet when Gorsuch pressed a little more, Sauer didn’t seem as convinced of the notion that American Indians are entitled to citizenship on their own homelands.
“I’m not sure,” said Sauer, who was chosen for his position at the Department of Justice by Trump. “I have to think through that, but that’s my reaction.”
By this time, Gorsuch had already posed the question in a different manner. Sauer told the court that American Indians are considered U.S. citizens “by statute” — through the Indian Citizenship Act that Congress passed in 1924.
“Putting aside the statute, do you think they’re birthright citizens?” Gorsuch asked.
“No,” said Sauer. “I think the clear understanding that everybody agrees in the Congressional debates is that the children of tribal Indians are not birthright citizens.”
“I understand that’s what they said, but your test is the domicile of the parents, and that would be the test you’d have us apply today, right?” Gorsuch replied, underscoring what Trump has expressed in his defense of the birthright citizenship order.
“Yes,” said Sauer, seemingly contradicting his position and, by extension, that of Trump’s
The questions, which came about 40 minutes into the hearing, highlighted the extreme nature of Trump’s directive. Is the Republican president going against the U.S. Constitution, as well as Congress, by rescinding the citizenship rights of any person — Indian or not — who was born in the United States?
Gorsuch appeared to understand that Sauer was not about concede that Trump got it wrong. So he ended the inquiries there after less than a minute on the issue of American Indians and U.S. citizenship.
“I’ll take the yes,” Gorsuch said at the end of the exchange, accepting Sauer’s answer as the apparently correct one — at least when it comes to the legal status of American Indians.
“That’s all right,” Gorsuch added, drawing laughter from a courtroom audience that happened to include the president himself.
Although Trump did not stay for the entire hearing, his presence was indeed unprecedented. Never before in 250 years of American history has a president, as the leader of the executive branch of the U.S. government, attended an argument at the Supreme Court, the highest level of the judiciary branch.
Trump’s immigration agenda, which sparked outrage across the country following the killings of two Americans by federal agents and the arrests and detentions of Native people, is also in an unusual stage. Just last week, a new figurehead was installed in his cabinet — Markwayne Mullin, who as a citizen of the Cherokee Nation is the first Native person to lead the Department of Homeland Security.
“I don’t care if you’re red or you’re blue,” Mullin said at the White House on March 24. “At the end of the day, my job is to be Secretary of Homeland and to protect everybody the same.”
‘Native American? I didn’t know that’
But as the birthright citizenship case underscores, “everybody” in Trump’s mind does not include children who were born in America to immigrant parents. More specifically, his executive order links a minor’s status to whether or not the mother is “unlawfully present” in the U.S., a position that goes against more than 150 years of law and policy following the addition of the 14th Amendment to the Constitution in 1868.
“Ask any American what our citizenship rule is and they’ll tell you, everyone born
here is a citizen alike,” said Cecillia D. Wang, an attorney representing young people harmed by the president’s executive order.
“That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy,” added Wang, who serves as the national legal director at the American Civil Liberties Union.
Although the U.S. government “has charged itself with moral obligations of the highest responsibility and trust” to tribes and tribal citizens, the Trump administration in briefs to the Supreme Court appeared to diminish the nation-to-nation relationship. One passage authored by Sauer even rejected a comparison between tribal sovereignty and that of foreign nations, foreshadowing his clumsy exchange with Gorsuch.
And two Indian law scholars, in their own brief, called the Trump administration’s views “superficial and ill-informed.” In arguing that the birthright citizenship order violates the Constitution, they reminded the high court of the existence of tribal sovereignty.
“The United States did not legislate the internal affairs of Indians or adjudicate crimes between them,” Indian law professors Gregory Ablavsky and Bethany Berger wrote in the brief.
“Instead, Congress dealt with Indian tribes through treaties, as it did with other sovereigns.”
In a further explanation of the nation-to-nation relationship, Ablasvky and Berger wrote that the “United States regulated its relationship with tribes through treaties, as it did with other sovereigns. But such treaties no more made Indians subject to ordinary U.S. law than contemporaneous treaties with France or Spain placed their residents under ordinary U.S. law.”
This is appalling.
Indigenous people are the original inhabitants of this continent and, here in New Mexico, we live that truth every day. The fact that the Solicitor General of the United States would hesitate on our citizenship is outrageous and horrific. He doesn’t understand… https://t.co/g5eSmzmLlj
— Deb Haaland (@DebHaalandNM) April 1, 2026
The Trump administration’s interpretations drew widespread attention following the Supreme Court hearing. Democrats criticized the Trump administration for bringing Indian Country into the debate over birthright citizenship without a full understanding of tribal sovereignty.
“This is appalling,” said Deb Haaland, who made history as the first Native person in a presidential cabinet, serving under Joe Biden as the leader of the Department of the Interior.
“Indigenous people are the original inhabitants of this continent and, here in New Mexico, we live that truth every day,” said Haaland, a citizen of the Pueblo of Laguna who is running for governor in her home state. The fact that the Solicitor General of the United States would hesitate on our citizenship is outrageous and horrific.”
“He doesn’t understand basic American history or the law, and he has no business holding this position,” Haaland concluded in a post on social media.
I don’t have to think this through—Native people aren’t just citizens, we are the original peoples of this land. Our sovereignty and identity aren’t up for debate. https://t.co/d4NWTA3wHI
— Jonathan Nez (@NezForAZ) April 1, 2026
“I don’t have to think this through — Native people aren’t just citizens, we are the original peoples of this land,” said Jonathan Nez, a former president of the Navajo Nation who is running for the U.S. House of Representatives in Arizona’s 2nd Congressional district.
“Our sovereignty and identity aren’t up for debate,” Nez, a Democrat, said in a post on social media.
“Imagine going before the Supreme Court to attack birthright citizenship and being unable to say Native Americans are American citizens,” Rep. Teresa Leger Fernández (D-New Mexico), who is the highest-ranking Democrat on the House Subcommittee on Indian and Insular Affairs, said in a post on social media.
“This was never about the Constitution. It’s about exclusion,” said Fernández, whose district in New Mexico includes 18 tribal nations.
Imagine going before the Supreme Court to attack birthright citizenship and being unable to say Native Americans are American citizens.
This was never about the Constitution. It’s about exclusion. https://t.co/QkWvBAnhCf
— Rep. Teresa Leger Fernández (@RepTeresaLF) April 1, 2026
Of the nine members of the Supreme Court, Trump nominated three of them: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Barrett also asked a number of questions about tribes and citizenship during the oral arguments.
Three other members were nominated by Republican presidents: Chief Justice John G. Roberts Jr., Clarence Thomas and Samuel Alito. The leaves just three Democratic nominees: Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson
Trump issued his birthright citizenship executive order on his first day of office on January 20, 2025. Litigation followed in a number of federal courts across the nation, resulting in decisions that struck down the order as unconstitutional.
The lawsuits include the case known as Trump v. Barbara, which originated in federal court in New Hampshire. The Secretary of Homeland Security, the position now held by Markwayne Mullin, is named as a defendant.
Barbara, docketed as No. 25-365, was the case heard by the Supreme Court on Wednesday.
A decision in Barbara is expected before the end of the Supreme Court’s current term, which began last October. The high court typically issues its final rulings in the last week of June or sometimes in early July, as was the situation with Justice Gorsuch’s landmark ruling about the continued existence of Indian Country in the state of Oklahoma.
