On his first day in office, President Donald Trump announced an executive order ending birthright citizenship under the 14th Amendment, which granted citizenship to formerly enslaved Black people after the Civil War. Almost immediately, the executive order was temporarily blocked by a federal judge in Washington, D.C. Attorneys general from 22 states agreed that the order is unconstitutional and violates the 14th Amendment. Even so, Trump is arguing that the exceptions in the 14th Amendment, such as the Indigenous exception, don’t allow for birthright citizenship.
Trump cites the Civil Rights Act of 1866, written two years before the 14th Amendment. The Act says that citizenship is denied to “Indians not taxed” and those subject to any foreign power. The 14th Amendment includes the phrase “subject to the jurisdiction thereof,” which Trump argues is referring to people excluded under the Civil Rights Act. Accordingly, the children of illegal immigrants cannot be citizens because their parents are subject to their native country’s power.
Trump further cites the 1884 Supreme Court case Elk v. Wilkins, which ruled that Indigenous people born on Native-controlled land are subject to their own tribe’s government over the U.S. government, denying their entitlement to U.S. citizenship. Let’s be clear, this distinction inherently erases the United States’ genocidal takeover of Indigenous land and punishes Indigenous people with disenfranchisement for maintaining sovereignty. The U.S. Justice Department said on the Indigenous exception to citizenship: “The United States’ connection with the children of illegal aliens and temporary visitors is weaker than its connection with members of Indian tribes. If the latter link is insufficient for birthright citizenship, the former certainly is.” The Trump administration is implying, if not outright stating, that Indigenous people — the only people in the United States not descended from immigrants — don’t, and shouldn’t, count as citizens.
Is Indigenous citizenship in the United States actually in jeopardy? Under this executive order, no. Indigenous people were granted citizenship under the Snyder Act in 1924. Even so, the implications of the Trump administration’s statement are dangerous. It upholds the idea that white America is the ‘true’ America and that Indigenous people do not deserve a say in the government that overlords their tribal governments. It weaponizes Indigenous sovereignty to disenfranchise illegal immigrants and dehumanizes Indigenous people in the process.
Trump’s use of the Indigenous exception is only a precursor to the real targeted precedent under the executive order: United States v. Wong Kim Ark. This case deals with the 14th Amendment’s “subject to the jurisdiction thereof” phrase and states that Wong Kim Ark — someone born in the United States whose parents weren’t diplomats — was automatically a U.S. citizen under the 14th Amendment.
As the Trump administration pursues appeals, it’s arguing that the Wong Kim Ark decision only applies to the children of permanent residents or children born to people who have green cards. Let’s be clear: This is such a bad argument that it’s laughable. It’s so bad that the Washington judge dismissed the entire argument in three pages. But that doesn’t mean that the Wong Kim Ark precedent is in the clear. While I personally believe that this argument is ridiculous, the Supreme Court is packed with Trump appointees, and there is no certainty that they will allow the precedent to stand.
While the 14th Amendment is not being overturned, the spirit of the amendment is in jeopardy. If Trump succeeds, he will lay a very dangerous precedent: a nation of immigrants that can manhandle Indigenous people to dehumanize large swaths of other immigrants. It’s racialized warfare on a chessboard Trump controls. It cannot stand.
