Looking to limit birthright citizenship, Trump turns to an 1884 Supreme Court ruling against a Native American man

[BumRushDaShow]

Source: NBC News

March 29, 2026, 5:00 AM EDT / Updated March 29, 2026, 9:15 AM EDT


WASHINGTON — In a moment that could take on new significance almost 150 years later, Omaha election official Charles Wilkins on April 5, 1880, refused to register John Elk to vote on the grounds that he was Native American, and therefore not an American citizen. Elk — believed to have been a member of what is now known as the Winnebago Tribe of Nebraska — objected, saying he had severed all ties with his tribe and had willingly subjected himself to the authority of the United States.

He launched a legal challenge, arguing among other things that he was a citizen at birth because he was born within United States territory. But the Supreme Court, in an 1884 case called Elk v. Wilkins, ruled against him, saying that Native Americans born within the territory of the United States did not have birthright citizenship. They had the same status as “the children of subjects of any foreign government born within the domain of that government,” the court said.

President Donald Trump’s administration is now citing that case as it defends his plan to end automatic birthright citizenship, putting a new spin on the long-standing interpretation of the Constitution’s 14th Amendment. The Supreme Court hears oral arguments in the case on Wednesday.

Trump’s executive order, issued on the first day of his second term, seeks to limit birthright citizenship only to people with at least one parent who is a U.S. citizen or a legal permanent resident. The order is not in effect; lower courts put it on hold.

Read more: https://www.nbcnews.com/politics/supreme-court/trump-birthright-citizenship-supreme-court-native-american-rcna263223

[Fiendish Thingy]

1. Can't wait to hear the arguments before the court.

I wonder how many justices will burst out laughing?

[bluestarone]

3. With THIS court?

I'm thinking only 3 bursting out laughing and maybe 2 more that won't laugh but vote against it. (i hope) This court could be 6-3 decision or even 5-4?

[Fiendish Thingy]

8. My guess, 7-2 against. Nt

[bluestarone]

10. I know for sure

at least TWO for it. and that's a shame. TSF can 100% count on those two

[Escurumbele]

32. Wow, had not seen your response but mine was exactly the same..."With this court?"

I would have added the word "corrupt"...

I have always been an optimist but, with what has been going on with this administration, the court, I hate that I am becoming a pessimist, I really hate that.

[bucolic_frolic]

2. Weak sauce.

"same status as “the children of subjects of any foreign government born within the domain of that government”"

Says to me if they were born overseas, they are not US citizens. Nothing remarkable there.

Mr. Wilkins it sounds like the Court argued he was not born in a state, or a territory. He was born with loyalty to his tribe. Splitting hairs. By that logic all immigrants would maintain loyalty to the country from whence they came.

[Historic NY]

4. Indian Citizenship Act of 1924 nullified Elk v Wilkins

I Congress passed this act, also known as the Snyder Act, granting full U.S. citizenship to all Native Americans born in the United States, effectively nullifying the requirement for individual naturalization that was central to Elk v. Wilkins.


https://www.opb.org/article/2025/04/07/trump-administration-attempts-to-use-19th-century-native-american-case-to-overturn-birthright-citizenship/]

Trump has that fuck face Miller working on this bullshit only he would pull this out of his rectum

[BumRushDaShow]

6. Since the SCOTUS doesn't care about "stare decisis"

(unless it benefits RW loons), then 45 is gonna roll the dice.

[Fiendish Thingy]

9. But this isn't stare decicis

This is black letter constitutional law.

Overturning birthright citizenship would be rewriting the constitution, not just reinterpreting it.

[BumRushDaShow]

11. Have you forgotten

Dred Scott v. Sandford or Plessy v Ferguson and then Brown v. Board of Education of Topeka?

The SCOTUS can "interpret" or "reinterpret" any damn thing they want and who it applies to. Those of us whose families have been here for many generations, have watched it happen.

[Fiendish Thingy]

12. Haven't forgotten at all

Overturning birthright citizenship would be as historic and significant as Dred or Plessy, or maybe more so, because if birthright citizenship is revoked, can the reinstitution of slavery still be off limits?

That’s why they won’t touch it.

They would be signing the death warrants for their careers- the people would demand the court be expanded to reinstate their rights and overturn all the extremist rulings of the past 20 years.

[BumRushDaShow]

13. "if birthright citizenship is revoked, can the reinstitution of slavery still be off limits?"

THAT is the problem we are facing.

No one thought they would "touch" Roe. No one thought they would touch the VRA (even with FOUR CONSTITUTIONAL AMENDMENTS DEALING WITH VOTING). Next target is the Civil Rights Act of 1964.

It's all up to those 6 fiends.

[Fiendish Thingy]

15. All the more reason why we must only elect Dem senators willing to kill the filibuster and expand the court

BTW, Roe was an “implied” right, not black letter law like birthright citizenship- something that could be solved by 1) codifying reproductive rights in law, and 2) expanding the court to a majority who will uphold it.

[BumRushDaShow]

30. Roe was focused on enforcement of the PRIVATE right for women to choose what to do with her own body

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

https://www.law.cornell.edu/constitution/fourth_amendment

14th Amendment

Section 1.

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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(snip)

https://www.law.cornell.edu/constitution/amendmentxiv

A man - John Roberts - deemed that nether the 4th nor 14th Amendments, apply to women.

[Fiendish Thingy]

36. And that horrific ruling will continue to stand

Until we elect legislators and a president willing to kill the filibuster and expand the court, neutralizing the MAGA majority so that Dobbs can be reversed, and congress can pass laws codifying Roe nationwide.

[Ms. Toad]

17. Not exactly.

The Snyder Act was a law, not a part of the constitution. So it's not stare decisis. Stare decisis is a doctrine urging the Supreme Court to be cautious in overruling its own prior decisions.

And there is no such thing as black letter constitutional law. Everything in the constitution says is always up to interpretation by the Supreme Court.

[LeftInTX]

23. Birthright citizenship is also a law

And it has been implemented since 1940 as such.

Hence the intent of Congress was to grant US citizenship to all those born in the US. And this was congress's interpretation of "jurisdiction of"

I know that SCOTUS has overturned laws before, but this is a huge one because decades of bureaucracy have been involved with it. So, it wasn't just a Supreme Court decision, it was a law that was passed afterward.

https://today.westlaw.com/Document/I6f209445294e11f18650b90c05b8b24a/View/FullText.html?transitionType=CategoryPageItem&contextData=(sc.Default)&firstPage=true

It does not appear that Trump is trying to overturn the law. He's just trying to get them to reinterpret Wong. I don't think he knew about this law.

[Ms. Toad]

24. It is the interpretation of the constitution that is at issue.

The constitution always prevails over laws - AND - it is always up to the Supreme Court to interpret the constitution. There is no such thing as black letter law when it comes to the interpretation of the constitution. If the Supreme Court determines that Trump's interpretation of birthright citizenship is correct, any law which contradicts it is unconstitutional.

Do I think it will interpret it as Trump suggests? No. My comments go to your assertions which seem to suggest that you believe the Supreme Court cannot interpret a provision of the constitution in a way which differs from how it has always been applied because it is "black letter law." Or that somehow a law passed by Congress is more controlling than the Constitution, or would prevent the Supreme Court from interpreting the provision in a way that is contrary to Congress' intent.

[Fiendish Thingy]

25. I disagree

If the constitution says two term limit for a president, it doesn’t mean three.

Words like “infringe” can be interpreted differently, but numbers, ages, and place of birth cannot.

[BumRushDaShow]

33. "If the constitution says two term limit for a president, it doesn't mean three"

But for those who argue "liiteralism" vs "wiggle room", they might say (which 45's loons have) that it doesn't say anything about more than 2 "non-consecutive terms" being forbidden, thus making it an implicit option.

The original intent was to avoid what happened with FDR, who was elected for 4 terms (3 full, and the 4th ending up a part term when he died in office). Grover Cleveland was the only other President to serve 2 terms non-consecutively (and he was around before FDR) before 45.

This is the kind of hairs that are being split nowadays.

[Ms. Toad]

34. But the Constitution doesn't say two terms for a p president.

It says:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Plenty to be interpreted there.

And regardless of whether you disagree with me, that's how our judicial system works.

[Fiendish Thingy]

35. Two means two, not three

SCOTUS will not interpret this to mean 2=3.

[Farmer-Rick]

27. Except that the US constitution does NOT

Give them that authority.

It doesn't give the Supremes the authority to interpret what the US constitution says. They grabbed up that power to make themselves little dictators.

[cloudbase]

5. I'll see Elk v. Wilkins,

and raise United States v. Wong Kim Ark.

[NickB79]

18. The funny thing is, Wong Ark was decided in 1898

Only 14 yr after US v Elk. The justices were intimately aware of what was argued in Elk, and still ruled for Wong Ark. That alone should say quite a bit.

[wnylib]

7. Trump would have required both parents to be

US citizens if it weren't for the fact that his mother was an immigrant and so are/were 2 of the mothers of his children.

[Renew Deal]

14. Doesn't seem relevant

This guy was born in a territory. The people Trump is looking to exclude are/would be born in the US.

[Callie1979]

20. So at that time territories weren't considered "The US"?

Or is that what this decision ended up meaning?

[Renew Deal]

22. That's the way I'm reading it

But I haven't spent time on how they got from that, to people in Puerto Rico being citizens, to today. The current case seems completely different because the people involved were born in a US state.

[DallasNE]

28. I Think They Are Talking About Indian Territories

Kind of like a nation inside of a nation. That is a whole different set of laws.I don't see how it is a fit.

Section 1 of the 14th Amendment states, “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.”

Obviously, they are trying to get around the word "all", and that includes applying cases that are dubious, at best.

[Callie1979]

31. If thats the story then it would seem to have zero meaning to today's case.

The people referred to NOW are born in one of the States, I guess this guy was born in a territory and NOT a State.

[Scalded Nun]

16. What total bullshit. Another argument of convenience.

The treatment of Native Americans by the US government (and to be truthful a huge segment of its population) has been forever disgraceful. This appears to be another case of a convenience to get what they want.

The argument "the children of subjects of any foreign government born within the domain of that government" cannot be used as the tribal lands have always been within the domain of the US government. You cannot have it both ways. One one hand saying their land is sovereign and on the other hand move tribes and/or take whatever land the government wants for whatever reason the government has. Many times at the behest of corporations who want that land for various (many times deceitful/nefarious) reasons.

And legally...
If those fucking, disgusting, treasonous idiots in the White house want to refer back to 1884, they need go no further than to The Indian Citizenship Act of 1924. Any rationale relying on the 1884 SCOTUS ruling was nullified by that Act.

They may very well be counting on Alito to pull another 400 year-old reference out of his ass to save them. Pardon the exaggeration on the 400 years.

[Callie1979]

19. Sounds like a "3/5ths" argument; seen as lesser individuals.

[Ms. Toad]

21. This case in an interpretation that is consistent with how the provision has always been interpreted.

Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.

In other words, tribal nations are foreign governments. Prior to the Snyder Act, the nation's territory was a domain of that (foreign) government.

This case doesn't help them.

[Bayard]

26. I'm not buying that argument

"Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes",[8] determining that Indian tribes were separate from the federal government, the states, and foreign nations."

The various tribes are sovereign nations within the U.S., but the government is required to protect them.

[Nasruddin]

29. Call DHS Immediately!

If this tactic is successful, would it mean that we have a non-citizen Secretary of DHS?

I would expect the Secretary to get on this problem right away, and report back his findings.
As soon as he's released from custody - presumably he's also been voting in our elections, so one would expect a trial.