Native Nations, Federal Indian Law, and the Birthright Citizenship Case
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The Supreme Court is currently weighing a constitutional crisis over birthright citizenship, sparked by President Trump's executive order redefining who qualifies as a U.S. citizen at birth. The core of the case, Trump v. Barbara, hinges on the 14th Amendment’s phrase 'subject to the jurisdiction thereof'—a clause historically interpreted to exclude only three groups: children of foreign diplomats, children of invading armies, and children born to Native American tribal members. Legal historian Greg Oblovsky reveals that the exclusion of Native peoples was not based on race but on their status as members of sovereign nations—quasi-foreign entities within U.S. borders. This historical distinction, rooted in federal Indian law, is now being misused by the Trump administration to justify excluding undocumented immigrants and temporary visitors. Oblovsky argues this analogy is legally and historically flawed, as Native sovereignty remains intact today, while the other exceptions do not apply to modern categories like visa holders or seasonal workers. The episode exposes a dangerous misuse of federal Indian law to redefine citizenship, revealing how a complex legal history is being weaponized to create new, unjustified exceptions to a long-standing constitutional principle. The real danger lies not in the legal theory but in the administrative chaos such a shift would create—replacing a simple 'born in the U.S.
The 14th Amendment’s 'subject to the jurisdiction thereof' clause historically excluded only three groups: children of diplomats, invaders, and Native American tribal members—due to their sovereign status, not race.
Native American children born in the U.S. are statutory citizens by Congress’s 1924 law, but their status is not based on 'subject to jurisdiction'—the Trump administration’s argument misrepresents this history.
The Trump administration’s attempt to extend the Native American exception to undocumented immigrants and temporary visitors is legally and historically unsound, as those groups are not sovereign entities.
Replacing the simple 'born in the U.S.' rule with a complex parental status test would create administrative chaos, as most people lack documentation of their parents’ immigration status.
The Supreme Court must reject the false analogy to federal Indian law, which is a distinct, evolving body of law not suited to defining general birthright citizenship.
…and 3 more takeaways available in PodZeus
The Birthright Citizenship Debate
The episode opens with a discussion of the current Supreme Court case, Trump v. Barbara, which challenges the long-standing principle of birthright citizenship under the 14th Amendment. The core question: who is a U.S. citizen at birth?
The 14th Amendment’s Origins
Greg Oblovsky traces the 14th Amendment’s birthright citizenship clause back to the Dred Scott decision and the Civil Rights Act of 1866, explaining how the amendment was designed to enshrine citizenship for formerly enslaved people.
The 'Subject to the Jurisdiction' Exception
Oblovsky explains that the phrase 'subject to the jurisdiction thereof' was meant to exclude only three groups: children of diplomats, invaders, and Native American tribal members—due to their sovereign status within U.S. borders.
Wong Kim Ark and the Chinese Exception
The Supreme Court’s 1898 decision in Wong Kim Ark affirmed that children of Chinese immigrants—though their parents could not become citizens—were U.S. citizens by birth, establishing a precedent for birthright citizenship based on place.
Elk v. Wilkins and the Sovereign Exception
The 1884 case Elk v. Wilkins ruled that a Native American born in the U.S. was not a birthright citizen because he was not subject to U.S. jurisdiction at birth, due to tribal sovereignty—establishing a legal precedent that the Trump administration now misapplies.
“The Trump administration’s effort to try to exploit federal Indian law is just really wrongheaded, right? I mean, I think they just fundamentally misunderstood it.”
“Once you start having to decide the status of the parents and have this sort of documentation, which, you know, of course is rarely preserved. Many people don't actually have it. Actually administering this seems like it would be a complete and utter disaster.”
“I think the sympathetic view to the Trump administration is that they did. I mean, Sauer himself acknowledged this at the oral argument. They spent a lot of time talking about Indian tribes when they drafted the 14th Amendment.”
Host
Guest
Greg Oblovsky
person
14th Amendment
other
Pam Carlin
person
Supreme Court
organization
Trump v. Barbara
other
Elk v. Wilkins
other
Congress
organization
Wong Kim Ark
other
Dred Scott
other
Amy Coney Barrett
person
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