In a historic session, the U.S. Supreme Court examined a pivotal case that may redefine the scope of birthright citizenship. Central to the Trump administration’s defense was a 19th-century decision regarding the citizenship status of tribal members, highlighted by an executive order issued at the start of President Donald Trump’s second term.
President Trump made an unprecedented appearance at the Wednesday proceedings, marking the first instance of a sitting U.S. president attending oral arguments in the Supreme Court chambers.
During a brief yet significant dialogue, Supreme Court Justice Neil Gorsuch questioned Solicitor General John Sauer about the birthright citizenship of Native Americans.
In response to Gorsuch’s inquiry, after a moment of reflection, Sauer stated, “I think so, on our test. Yes, if they’re lawfully domiciled here. I have to think that through, but that’s my reaction.” Gorsuch promptly replied, “I’ll take the yes, that’s alright.”
Gorsuch and Sauer going back-and-forth
U.S. Supreme Court Justice Neil Gorsuch asks Solicitor General John Sauer whether Native Americans are birthright citizens during Trump v. Barbara on April 1, 2026.
The court’s examination revisits an 1884 decision where the justices ruled 7-2 against John Elk, a Winnebago from Omaha seeking to vote, determining he was not a U.S. citizen despite the 14th Amendment. This was based on his birth into a tribe, considered a separate political entity.
In 1924, the Indian Citizenship Act was enacted by Congress.
“My mother was probably not a United States citizen when she was born in 1923 in Oklahoma,” shared Bob Miller, an Eastern Shawnee and professor at Arizona State University’s Indian Legal Clinic. “Now, I say probably because, I’ve not done all the research.”
Miller, who has taught the Elk v. Wilkins precedent for 30 years, explained, “Our founding fathers knew from the beginning that tribes were, yes, outside the U.S. legal system and governance,” adding that tribal sovereignty is recognized even when tribes are within the 13 states. He emphasized, “We remain governments today,” distinguishing the treatment of Indian citizenship from that of undocumented immigrants.
A decision from the Supreme Court is anticipated later this summer.
