Native Nations, Federal Indian Law, and the Birthright Citizenship Case

Why It Matters

The Court’s interpretation will determine whether millions of U.S.-born children retain citizenship and will influence the balance between federal immigration authority and tribal sovereignty.

Key Takeaways

• Supreme Court hearing challenges Trump’s birthright citizenship executive order.
• 14th Amendment’s “subject to jurisdiction” phrase historically excluded Native peoples.
• Elk v. Wilkins affirmed citizenship cannot be self‑granted after birth.
• Wong Kim Ark upheld citizenship for children of non‑citizen parents.
• Decision will impact immigration rules and tribal sovereignty jurisprudence.

Summary

The podcast examines the Supreme Court’s review of President Trump’s executive order that narrows birthright citizenship to children of U.S. citizens or permanent residents. The discussion frames the case within the 14th Amendment’s language – “born…subject to the jurisdiction thereof” – and asks whether that clause still guarantees citizenship to anyone born on U.S. soil. Key insights trace the amendment’s historical exceptions: children of foreign diplomats, occupants of conquered territory, and members of sovereign Native nations. The hosts cite Elk v. Wilkins, which held that a Native American born outside tribal jurisdiction could not unilaterally claim citizenship, and Wong Kim Ark, which affirmed citizenship for a child of Chinese parents despite restrictive immigration statutes. These precedents illustrate how the courts have interpreted “jurisdiction” over time. Professor Greg Ablavsky highlights that Native nations were treated as “quasi‑foreign” entities within U.S. borders, a status reflected in the Constitution’s original three‑fifths compromise and later the 14th Amendment. He points to the Elk case’s focus on self‑naturalization and the Wong Kim Ark decision’s reliance on common‑law birthright principles, underscoring the legal tension between statutory immigration controls and constitutional citizenship guarantees. The outcome will reverberate across immigration policy, potentially redefining who qualifies as a citizen at birth and reshaping the legal landscape for tribal sovereignty. A ruling that narrows the jurisdictional clause could strip citizenship from millions of undocumented children and set a precedent for further erosion of Native nation rights, while a decision upholding the traditional reading would preserve the broad birthright citizenship doctrine.

Original Description

The 14th Amendment to the Constitution says: “all persons born are naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” But on his first day back in office, President Donald Trump issued an executive order that changed that understanding. According to the President's executive order, going forward, the only people who will be U.S. citizens at birth are people who are born in the United States to parents who are citizens, at least one of whom is a citizen, or at least one of the parents is a legal permanent resident of the United States. And what does all of this mean for Native Americans? 

In this episode, Greg Ablavsky, a Stanford Law professor and scholar of federal Indian law, joins Pam Karlan to discuss President Trump's challenge to birthright citizenship--a case now at the Supreme Court.

The discussion centers on the 14th Amendment’s Citizenship Clause and, in particular, the meaning of the phrase “subject to the jurisdiction thereof.” Ablavsky explains why federal Indian law has become part of that debate. He traces the distinctive legal status of Native nations within the United States, the historical exception for members of tribal nations, and the way that history appears in seminal cases such as Elk v. Wilkins.  The conversation also looks at the relationship between Elk and U.S. v. Wong Kim Ark, the 1898 case that recognized birthright citizenship for a child born in the United States to Chinese parents. Along the way, Karlan and Ablavsky break down why history matters to the government’s current effort to argue for new limits on birthright citizenship--and more.

Links:

• Gregory Ablavsky ＞＞＞ Stanford Law page (https://law.stanford.edu/gregory-ablavsky/)

• Federal Ground: Governing Property and Violence in the First U.S. Territories ＞＞＞ Stanford Law page (https://law.stanford.edu/publications/federal-ground-governing-property-and-violence-in-the-first-u-s-territories/)

Connect:

• Episode Transcripts ＞＞＞ Stanford Legal Podcast Website (https://law.stanford.edu/stanford-legal-podcast/)

• Stanford Legal Podcast ＞＞＞ LinkedIn Page (https://www.linkedin.com/showcase/stanfordlegal/)

• Rich Ford ＞＞＞  Twitter/X (https://twitter.com/our_ford)

• Pam Karlan ＞＞＞ Stanford Law School Page (https://law.stanford.edu/pamela-s-karlan/)

• Stanford Law School ＞＞＞ Twitter/X (https://twitter.com/stanfordlaw)

• Stanford Lawyer Magazine ＞＞＞ Twitter/X (https://twitter.com/@stanfordlawmag)

(00:00:00) Who qualifies as a U.S. citizen at birth?

(00:03:54) The Origins of the 14th Amendment 

(00:05:58) "Subject to the Jurisdiction Thereof"

(00:11:42) Citizenship at the Supreme Court

(00:17:03) Native Americans, the 1924 Indian Citizenship Act, and the Presidency

(00:18:49) The Supreme Court Oral Argument in Trump v. CASA (Barbara) — Analogies, Originalism, and the Native American

(00:28:31) Practical Chaos, Hard Cases and What the Court Should Do

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