Trump’s long-standing desire to end birthright citizenship took a dramatic turn in late January with the issuance of an executive order aimed at eliminating the constitutional right that grants citizenship to anyone born on U.S. soil. This bold move, if successful, would overturn more than a century of established legal precedent rooted in the 14th Amendment of the U.S. Constitution. However, a federal judge quickly intervened, temporarily blocking the order after 22 states mounted a swift legal challenge.

The 14th Amendment, ratified in 1868, clearly states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This clause has been the foundation for countless legal battles that have gradually expanded citizenship rights to various marginalized and oppressed groups.

Trump’s executive order, however, hinges on the interpretation of the phrase “subject to the jurisdiction thereof.” Trump’s Justice Department, in defending the order, has cited historical legal cases to argue that birth within the U.S. alone does not automatically confer citizenship if an individual is not fully subject to U.S. jurisdiction.

The Elk v. Wilkins Case
A key element of Trump’s Justice Department’s argument is the 1884 Supreme Court case Elk v. Wilkins. This case involved John Elk, a Ho-Chunk man who left his tribal nation and settled in Omaha, Nebraska, claiming birthright citizenship under the 14th Amendment. The Supreme Court ruled against Elk, stating that Native Americans, due to their allegiance to their tribes, were not “subject to the jurisdiction” of the United States and thus not entitled to citizenship.

Legal scholars and Native American advocates have criticized the use of this case as a precedent for Trump’s executive order. Gerald L. Neuman, a professor at Harvard Law School, dismissed the argument as outdated and politically motivated, rooted in xenophobia and prejudice. “But it’s got a bigger political movement behind it, and it’s embedded in a degree of openly expressed xenophobia and prejudice” (Graham Lee Brewer and Janie Har, AP News).

Matthew Fletcher, a law professor at the University of Michigan and a member of the Grand Traverse Band of Ottawa and Chippewa Indians, echoed this sentiment, stating, “They’re digging into old, archaic Indian law cases, finding the most racist points they can in order to win” (Graham Lee Brewer and Janie Har, AP News).

Citizenship for Native Americans: A Hard-Won Right
Native Americans were not granted U.S. citizenship until 1924, with the passage of the Indian Citizenship Act. This milestone came after decades of legal and political struggles, underscoring the complexity of Native American sovereignty and their relationship with the federal government.

The Justice Department’s attempt to draw parallels between Native American citizenship and the broader issue of birthright citizenship for all individuals born in the U.S. has been widely criticized as both legally and morally flawed.

Leo Chavez, a professor at the University of California, Irvine, who specializes in international migration, pointed out the dangers of this comparison. “It’s using the heat of race to make a political argument rather than a legal argument,” Chavez said (Graham Lee Brewer and Janie Har, AP News).

Impact on Indigenous Communities
Trump’s executive order has sown confusion and fear among Indigenous communities, particularly in the Southwest. Reports have surfaced of Immigration and Customs Enforcement (ICE) agents targeting Native Americans during raids. In the Navajo Nation, which spans parts of Arizona, New Mexico, and Utah, citizens have reported being wrongly identified as undocumented immigrants.

Navajo Nation President Buu Nygren has voiced concerns over these incidents, stating, “My office has received multiple reports from Navajo citizens that they have had negative, and sometimes traumatizing, experiences with federal agents targeting undocumented immigrants in the Southwest” (Stephanie Cram, CBC News). In response, the Navajo Nation is advising its citizens to carry state-issued identification and, if available, a Certificate of Indian Blood to avoid harassment.

The Navajo Nation has also established a hotline under “Operation Rainbow Bridge” to assist those who encounter issues with federal immigration officials. “It’s best to be prepared, and we are advising Navajo citizens to carry state-issued identification such as a driver’s licence or other picture identification if available,” said Nygren (Stephanie Cram, CBC News).

The executive order also holds significant implications for descendants of Spanish and Mexican heritage, particularly in states like New Mexico. The Treaty of Guadalupe Hidalgo, signed in 1848, ended the U.S.-Mexico War and granted U.S. citizenship to Mexican residents in the newly acquired territories. New Mexico’s 1912 Constitution explicitly guarantees equal access to public education for children of Spanish descent, regardless of immigration status.

State Attorney General Raúl Torrez has emphasized these protections in his guidance to K-12 schools, advising them on how to respond to potential immigration enforcement actions. The guidance cites U.S. Supreme Court precedent affirming that children cannot be denied access to public education based on their immigration status (Graham Lee Brewer and Janie Har, AP News).

The Broader Implications
Legal experts argue that the Trump administration’s reliance on outdated legal cases like Elk v. Wilkins reflects a fundamental misunderstanding of American legal history and constitutional law. Gregory Ablavsky, a law professor at Stanford University, noted that the analogy is “unpersuasive and historically ignorant” (Stephanie Cram, CBC News). He pointed out that the U.S. government’s relationship with Native American tribes has always been complex, with unclear constitutional authority over tribal nations.

Moreover, Trump’s Justice Department’s arguments extend beyond Native American citizenship. They cite the Civil Rights Act of 1866, which predates the 14th Amendment and excludes “Indians not taxed” from citizenship. By interpreting the 14th Amendment’s phrase “subject to the jurisdiction thereof” in this narrow context, the Trump administration seeks to roll back established constitutional rights for millions of individuals born in the U.S.

Trump’s attempt to end birthright citizenship represents a direct challenge to over a century of legal precedent and constitutional rights. By invoking outdated and racially charged legal arguments, the administration risks undermining the very principles of equality and justice enshrined in the 14th Amendment.

As legal battles continue to unfold in courts across the nation, the stakes are high not only for immigrants but also for Indigenous communities and all Americans who cherish the foundational promise of citizenship by birth.

The temporary block by the federal judge is just the beginning of what promises to be a protracted legal fight, one that will test the resilience of constitutional protections and the nation’s commitment to upholding the rights of all people born on its soil.

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