"Excluding Indians": Trump admin questions Native Americans' birthright citizenship in court | Salon.com
- Waukesha NAACP
- Jan 29
- 4 min read
In the Trump administration’s arguments defending his order to suspend birthright citizenship, the Justice Department called into question the citizenship of Native Americans born in the United States under the 14th Amendment, citing 19th-century law that excluded Native Americans from birthright citizenship.
In a case on Trump's birthright citizenship executive order coming out of Washington, Justice Department attorneys quote the 14th Amendment, which reads that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” and hang their one of their arguments on the phrase “subject to the jurisdiction thereof.”
“Under the plain terms of the Clause, birth in the United States does not by itself entitle a person to citizenship. The person must also be ‘subject to the jurisdiction’ of the United States,” the filing reads.
The Justice Department then goes on to cite the Civil Rights Act of 1866, which predates the 14th Amendment by two years. The Justice Department attorneys specifically cite a section of the act that notes that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
The Trump administration then goes on to argue that the 14th Amendment’s language — the phrase “subject to the jurisdiction thereof” — is best understood “to exclude the same individuals who were excluded by the Act —i.e., those who are ‘subject to any foreign power’ and ‘Indians not taxed.’”
The Justice Department attorneys return to the topic of whether or not Native Americans should be entitled to birthright citizenship later in their arguments, citing a Supreme Court case, Elk v. Wilkins, in which the court decided that “because members of Indian tribes owe ‘immediate allegiance’ to their tribes, they are not ‘subject to the jurisdiction’ of the United States and are not constitutionally entitled to Citizenship.”
“The United States’ connection with the children of illegal aliens and temporary visitors is weaker than its connection with members of Indian tribes. If the latter link is insufficient for birthright citizenship, the former certainly is,” the Trump administration argued.
Tribal nations in Utah and throughout the U.S. are telling their citizens to hold tight to their IDs amid reports that U.S. Immigration and Customs Enforcement (ICE) agents have been targeting Indigenous Americans.
Heirs to a devastating legacy of forced removal from ancestral homelands, Native Americans now are being given reason to worry they may get caught up in deportation roundups. Navajo Nation officials told CNN on Monday that at least 15 Indigenous people in the southwest U.S. have reported being questioned or detained by immigration officers since Wednesday.
Our people are reaching out to us directly, and their needs are urgent," Navajo Nation Council speaker Crystalyne Curley said in a statement last week. "Despite possessing Certificates of Indian Blood (CIBs) and state-issued IDs, several individuals have been detained or questioned by ICE agents who do not recognize these documents as valid proof of citizenship," the statement read.
ICE offices in Utah and Washington, D.C., did not immediately respond to Axios' requests for comment.
Warnings and advice fanned out in recent days from tribal governments wary of potential intrusion on their sovereignty or harm against their citizens.
The Mescalero Apache Tribe in New Mexico announced that a member was confronted by ICE agents last week and was asked for ID — first in Spanish, although the member spoke English. Ute Indian Tribe Business Committee — the tribe's governing body — promised in a statement Saturday to "aggressively defend our rights and interests."
The tribe offered legal counsel to members who are "improperly detained or questioned," as did the Paiute Indian Tribe of Utah.
The San Juan Southern Paiute Tribe, whose land crosses the Utah-Arizona border, advised its citizens to record encounters with ICE, ask for agents' badges and keep the door closed and ask for a warrant if approached at home. The Ute Indian Tribe urged citizens to make an immediate report if they spot ICE agents on the Uintah and Ouray Reservation.
Congress did not grant citizenship to Native Americans until 1924 — a development President Trump's lawyers cited in their attempt to justify his temporarily-blocked executive order to overturn birthright citizenship. His attorneys last week invoked an 1884 U.S. Supreme Court ruling that denied citizenship to members of tribes to argue that "birth in the United States does not by itself entitle a person to citizenship." Some tribal leaders saw the argument as a threat against members' citizenship.
Constitutional protections may offer little reassurance to a population whose history is littered with legal agreements that were broken by the U.S. government. Many Indigenous elders struggle to prove they were born here in the first place, Navajo Nation Councilwoman Eugenia Charles-Newton noted in a recent Facebook video.
"Some of our elders — they were born at home. It was hard for them to get an ID. It's hard for them to get documents that prove they were born at home, in a hogan," she explained.
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