The Supreme Court heard oral argument in Trump v. Barbara, a case challenging the Trump Administration’s executive order seeking to narrow birthright citizenship under the Fourteenth Amendment. The Citizenship Clause declares that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.” Although the citizenship of Native Americans is not at issue in the case—the Supreme Court held in 1884 that Native Americans were not citizens of the United States within the meaning of the Fourteenth Amendment and Congress later granted citizenship by statute in 1924—the treatment of Native Americans under the Fourteenth Amendment nonetheless featured prominently at oral argument. In particular, Justices Gorsuch and Barrett focused on how the historical exclusion of Native Americans from the Fourteenth Amendment informs the meaning of “subject to the jurisdiction thereof,” especially as applied to the children of immigrants who, like Tribal members, may “owe allegiance” to a sovereign other than the United States.

The focus on this issue highlights the continued use of Tribal citizenship and allegiance as interpretive tools in constitutional analysis. Any Supreme Court reasoning that discusses Tribal membership or allegiance and its relation to modern immigration status may implicate the constitutional status and sovereignty of Tribal Nations. For that reason, Tribal governments may wish to monitor the Court’s eventual decision. We provide more details on the argument below.

Background

On his first day back in office, President Trump issued an executive order directing federal agencies to deny U.S. citizenship to certain children born in the United States based on their parents’ immigration status. Multiple lower courts blocked the order, concluding that it conflicts with the Fourteenth Amendment’s Citizenship Clause and more than a century of precedent recognizing citizenship for nearly all persons born on U.S. soil. The government, represented by the U.S. Solicitor General, has asked the Supreme Court to reverse those decisions and revive the order.

Oral Argument Highlights

At argument, the justices focused on the historical meaning of “subject to the jurisdiction” in the Fourteenth Amendment’s text and on the continued force and scope of United States v. Wong Kim Ark, 169 U.S. 649 (1898). Several justices pressed the Solicitor General on how the government’s theory could be reconciled with longstanding historical understandings of the Fourteenth Amendment and with federal statutes that have long codified birthright citizenship. Other justices, however, appeared more receptive to the government’s contention that individuals who owe allegiance to a foreign sovereign would not have been understood as “subject to the jurisdiction” of the United States at the time of the Fourteenth Amendment’s ratification.

Focus on Native Americans and “Subject to the Jurisdiction Thereof”

A notable feature of the Solicitor General’s argument—reflected both in the briefing and in the historical sources discussed at oral argument—is the government’s reliance on nineteenth‑century cases involving Native Americans to support a narrow reading of the Citizenship Clause. In particular, the Solicitor General pointed to Elk v. Wilkins, 112 U.S. 94 (1884), which held that a Native American born into a Tribal nation was not automatically a U.S. citizen under the Fourteenth Amendment. That decision rested on the Court’s conclusion that Tribal members at the time were not fully “subject to the jurisdiction” of the United States because they owed primary allegiance to their tribes rather than to the federal government.

Congress later resolved the question of Native American citizenship through the Indian Citizenship Act of 1924, which extended U.S. citizenship to all Native Americans born within the territorial United States. The existence of that statute underscores a central tension highlighted at argument: while Congress has clear authority to extend citizenship beyond the bounds of the Fourteenth Amendment through legislation, the executive branch’s attempt to narrow the scope of the Fourteenth Amendment by executive order raises distinct constitutional concerns.

Several justices raised that issue at argument, with Justices Gorsuch and Barrett appearing particularly focused on it. Both questioned counsel on how the historical exclusion of Native Americans from the Fourteenth Amendment bears on the Amendment’s original meaning. Justice Gorsuch asked repeated questions about whether, because the relationship between Tribal governments and the federal government has changed since the late nineteenth century, the decision in Elk is no longer correct as a matter of constitutional interpretation. Justice Gorsuch also asked the Solicitor General whether, under the government’s interpretation, the children of Native Americans would be citizens at birth under the Fourteenth Amendment; the Solicitor General tentatively answered yes. When asked the same question, counsel for the challengers answered no, explaining that the American citizenship of Native American children is instead defined by statute.

It is important to note, however, that Native American citizenship itself is not at issue in this case. The Indian Citizenship Act of 1924 is not being challenged, and no party disputes that Native Americans are U.S. citizens today. The discussion of Native American citizenship arose solely in the context of interpreting the Fourteenth Amendment’s original meaning.

What Happens Next

For now, the lower‑court rulings remain in effect, and the executive order cannot be implemented. A decision is expected later this Term.

We will continue to monitor the case closely, with particular attention to any implications the Court’s reasoning may have for federal Indian law and long‑settled understandings of citizenship.