February 11, 2025
The Department of Justice recently argued that birthright citizenship does not apply to Native Americans. The administration will likely take aim at Native sovereignty next.
Activists and members of different tribes from the region protest in Keystone, South Dakota, on July 3, 2020, as they demonstrate around the Mount Rushmore National Monument and the visit of President Donald Trump.
(Andrew Caballero-Reynolds / AFP via Getty Images)
I received a flurry of calls, e-mails, texts, and direct messages from political junkies when news broke that the Trump administration had called into question the birthright citizenship of us “Indians” or Natives with a capital “N” or Indigenous with a capital “I”—we who were here first.
“Where the hell are they going to send you!?” a former classmate asked. “China!?”
Late last month—as part of the legal defense of Trump’s order to suspend birthright citizenship—the Justice Department cited a 19th-century case arguing that “Indians” should be excluded from birthright citizenship.
While the 14th Amendment declares 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,” the Justice Department posited that since a law passed two years prior explicitly excluded “Indians,” then so too does the 14th Amendment.
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In the Justice Department filing, government lawyers cite the US Citizenship Act of 1866, which states “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.”
It’s imperative to remember how the US government regarded us at that time. The white man called us “injuns” and “savages,” and was building and forcing Indigenous families into a prison-camp system, which Adolf Hitler would later praise and discuss with his aides and generals prior to the Holocaust. You’ve probably heard of the Pine Ridge Indian Reservation in South Dakota, but you probably only know it by its softer, more palatable name. Its official title is Prison Camp 334.
In the filing, Trump’s lawyers reference Elk v. Wilkins, an 1884 case in which the Supreme Court ruled that “Indians” born on reservations were not automatically US citizens. The Justice Department argued then and by extension argues again now that because enrolled “Indians” of federally recognized tribes owe their primary allegiance to their chiefs, tribal presidents, and elders, “Indians” are not “subject to the jurisdiction” of states like South Dakota or Arizona, or even of the United States itself.
The Justice Department wrote in January: “[This] confirms that the children of non-resident aliens lack a constitutional birthright to citizenship. In Elk, the Court held 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.”
This legal gymnastics are dizzying, but we’ve been here before. The government’s use of sophistry and legalese to try to fog the frontal cortex is an all-too-familiar tactic to Indigenous peoples. This is how white men stole billions of acres from our ancestors; they drafted legal documents in that foreign language called English, drowned them in whiskey and gin (something, at the time, our elders had no experience with or understanding of) by the fire, and then got them to sign away all their land, water, and almost anything resembling an inalienable human right.
But, according to today’s experts in Indian law, Trump cannot strip Natives of our US citizenship because of the Indian Citizenship Act of 1924, which officially certified “Indians” as US citizens.
“What I think Trump is trying to do is analogize,” explained Steven McSloy, a Columbia law professor who specializes in American Indian law. The Trump team needs to point to historical examples of noncitizens born in the US, so “they’re reaching deep into history to find examples of noncitizens when for a long, long time I don’t think those examples existed, certainly not for Native people.”
He added, “They need to figure out who was excluded in the 14th Amendment and try to apply it today.”
McSloy said that no matter what race you are, if you’re a US citizen, you have a right to due process. “If I did really bad things, I can go to jail, but you can’t de-citizen me without me being a traitor; there’s got to be a whole procedure if you’re going to revoke my US citizenship,” he said. “That’s a fundamental constitutional right that I have no matter what bad thing I did. You could execute me, but I’d still be a citizen on the day you execute me.”
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Trump is unlikely to successfully strip Natives of citizenship, but he may take aim at our sovereignty, i.e., our designation as separate, sovereign nations. This would allow him to take Native lands and sell them to oil and gas conglomerates. This would also nullify treaties between us and the US government.
“Can he do that?” I asked.
“Always,” McSloy responded. “At that level, they can do whatever they want.” He quoted Justice Stephen Breyer in United States v. Lara when Breyer said that while Indian nations are sovereign, “it’s like a grip. [The US] can tighten or relax its grip on tribal sovereignty whenever it wants.”
In 1953, Congress passed the Indian Termination Act, which ended the government-to-government relationship between the US and tribes. It was later overturned at the behest of then-President Richard Nixon.
That act was intended to assimilate Natives into major cities, but should the US Supreme Court allow something similar today, it could strip Natives of our sovereignty and then designate tribes and nations (reservations and Alaska Native villages) as counties within its respective state, as the US has before.
“The [Termination Act] said, ‘OK, you used to be the Winnebago [Tribe]. Now, you’re the County of Winnebago, and all your people are the citizens of the County of Winnebago, and you better pay your taxes to the state, because the trust responsibility is gone, your treaties are gone,’” McSloy said. “Luckily, that didn’t last.”
If this happens again in 2025, it would make available to Trump millions of acres of Indigenous lands held in trust by the federal government. Then Trump, as he puts it, would be free to “drill, baby, drill” on those lands.
Meanwhile, ICE officials are harassing and rounding up Natives throughout the country, particularly in the Southwest. Tribal governments have issued statements preparing their citizens and advising them to carry their tribal identification, specifically their Certificate of Degree of Indian Blood (CDIB) cards.
Frighteningly, should the president, Congress, or the Supreme Court repeal the sovereign status of Indigenous nations and tribes, CDIB cards could become null and void. Additionally, moneys allocated to tribes for services such as clean water, housing improvement and development, education, and the life-saving Indian Health Service (IHS) could also end.
“Those patients would completely suffer,” said Dr. Sarah Bridge, an emergency room physician at the IHS in Gallup, New Mexico. Her patients include citizens of the Navajo Nation and all the nearby pueblos. “There would be nowhere for them to go.
Bridge said Indian Health Services is also a major employer for Natives on the nearby reservations, and without her staff, should the funding end, the IHS system would collapse.
“If they lose their jobs, they’re going to be completely and financially devastated for themselves and their families, and then the hospital won’t be able to run. I don’t even know how I’d be able to do my job,” she said.
And still, the calls and texts and e-mails and direct messages from pals and strangers continue. “Wait, how is it that people who’ve been here for thousands of years are now not considered US citizens?” a white woman asked me one morning after reading my black “You Are on Stolen Land” beanie.
“Our creation stories come from this land. Our languages were invented on this land. White people here can’t say the same.… So, while we predate America, we’re still American citizens.”
Our status as US citizens is unlikely to change. But the Trump administration’s thirst for oil and other resources means the US government could try to steal our lands from under us—all over again.
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