Trump wants to end birthright citizenship, citing a 130-year-old case against a Native American.

Experts on Native American rights point out that the nearly 150-year-old Elk v. Wilkins case is irrelevant to the question of whether birthright citizenship can be revoked for children of immigrants without permanent legal status. The Trump administration takes a different view, reports NBC News.

On April 5, 1880, Omaha election official Charles Wilkins, citing John Elk's Native American heritage and therefore not a U.S. citizen, refused to register him as a voter.

Elk, who was considered a member of the tribe now known as the Winnebago of Nebraska, declared that he had severed all ties with his tribe and voluntarily submitted to the authority of the United States.

He filed a lawsuit claiming that he was a natural-born citizen because he was born on U.S. soil.

However, the Supreme Court ruled against him in 1884 in the case of Elk v. Wilkins, holding that Native Americans born on U.S. soil did not possess citizenship by birthright.

On the subject: The US Supreme Court will make a final decision on birthright citizenship in the summer of 2026: What you need to know

Now, the Trump administration, citing this ruling, is defending its plan to end automatic birthright citizenship and proposing a new interpretation of the 14th Amendment to the Constitution. The US Supreme Court is hearing oral arguments in the case.

Trump's executive order, signed on the first day of his second term, limits automatic citizenship by birth to children of at least one U.S. citizen or permanent resident parent. Children of immigrants without lawful status do not automatically receive citizenship under this order.

This decree did not enter into force because lower courts suspended its effect.

Solicitor General John Sauer, representing the government, cited the Elk case in court papers, saying the Supreme Court "expressly rejected the idea that anyone born on U.S. soil is automatically a citizen, regardless of circumstances."

White House press secretary Abigail Jackson said the case gives the Supreme Court an opportunity to "restore the concept of citizenship in the United States to its original meaning."

The Trump administration's arguments about the significance of the Elk decision are vigorously contested by the American Civil Liberties Union (ACLU).

"This is essentially an attempt to strip the citizenship of children of immigrants who have always been considered U.S. citizens. The Native American issues the government cites are irrelevant here," said ACLU attorney Cody Wofsy.

Notably, among the dozens of legal briefs filed in the case, not a single one came from tribes or indigenous organizations. However, two indigenous rights scholars—Bethany Berger of the University of Iowa and Gregory Ablawsky of Stanford Law School—filed a brief supporting the ACLU's position.

Indigenous rights experts said the administration's reliance on the Elk decision raises serious legal and moral concerns.

"We believe that relying on the Elk case to deny birthright citizenship to the children of undocumented immigrants is inappropriate," said Leonard Finday, general counsel for the National Congress of American Indians, which represents tribes.

According to him, the decision in the Elk case is based solely on the specifics of the quasi-sovereign status of the tribes and is limited by this context.

Monte Mills, director of the Indigenous Law Center at the University of Washington, agreed and noted that there is a certain irony in this position.

Another lawyer working in this field, who wished to remain anonymous, noted that so-called Indian law remains a complex and highly specialized area and does not apply directly to other areas of law. This is partly because there has never been a single, universal rule governing the legal relations of all tribes with the United States.

"I would argue that the history of Native American peoples is unique in many ways. Extreme caution should be exercised before generalizing any conclusions or principles from this context to other areas," he concluded.

The legal status of Native peoples in the United States has been the subject of detailed debate throughout history as the country expanded westward: treaties were made and broken, and the tribes themselves were often subjected to cruel treatment. Meanwhile, federal authorities simultaneously viewed them as semi-autonomous entities and exercised control over them.

Experts note that indigenous tribes and organizations likely failed to express their opinions for two reasons. First, since 1924, Native Americans have been legally eligible for citizenship, and birthright citizenship issues do not apply to them. Second, more than 500 tribes may hold different political views.

“I admit that some tribes could support Trump’s idea, since some of them hold fairly conservative views,” the lawyer clarified.

The case centers on the interpretation of the citizenship clause in the 14th Amendment, ratified in 1868 after the Civil War and the abolition of slavery. It states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Traditionally, this provision has been considered to grant citizenship to virtually everyone born in the United States, regardless of their legal status. Exceptions include, for example, the children of diplomats.

The Trump administration has focused on the "jurisdictional" wording, arguing that it excludes children of people who entered the country illegally, as well as children of those with temporary status, such as those entering on work visas.

Sauer argues that the "primary purpose" of the citizenship provision was to regulate the status of freed slaves after the Civil War. He adds that opponents "fail to account for long-standing exceptions to the principle of citizenship by birth, particularly for the children of tribal members."

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Proponents of the traditional approach, however, cite another 19th-century decision—the 1898 case United States v. Wong Kim Ark. In it, the court ruled that a person born in San Francisco to parents of Chinese descent who were living in the United States is a citizen by birth.

Both decisions were written by Judge Horace Gray. In a later case, he clarified that the earlier Elk decision applied exclusively to members of Native American tribes and did not question the citizenship of other individuals born in the United States.

Bethany Berger, one of the experts who supported the challenge to the order, said Sauer's argument largely echoed the position the government made more than a century ago in the Wong Kim Ark case.

“Essentially, the government is trying again to do what it already tried and failed to do,” she concluded.

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