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

Greg Ablavsky: Right now, we have a clean, bright-line rule, where we say, “Are you born in the United States?” Okay, that’s very easy. You can produce the birth certificate from Omaha. That settles the question. Once you start having to decide the status of the parents and have this documentation, which, 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.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available.

Recently the Supreme Court heard oral argument in a case, Trump against Barbara, that involves the question of “who is an American citizen?” I think it’s fair to say that from the time of the 14th Amendment until now, most people assumed that if you were born in the United States, you became what was called a birthright citizen. And that’s because of the first section of the 14th Amendment to the Constitution, which 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.

What this means is that several other categories of people who have previously been recognized as citizens by the federal government and by the states—that is children born to people who are in this country without documentation or children born to people in this country who are here legally—that is, they are entitled to be in the United States, but they’re not legal permanent residents. For example, graduate students or seasonal workers or people who are what are sometimes called “sojourners,” passing through the country, that those people were citizens as well. The issue is now up at the Supreme Court after the Court of Appeals ruled in favor of the challengers who claimed that President Trump’s executive order violates both the 14th Amendment and a 1940 statute that tracks the language of the 14th Amendment.

Now, you might have noticed when I read the 14th Amendment to you, it’s “all persons born are naturalized in the United States, comma, and subject to the jurisdiction there of, comma, are citizens of the United States and of the state wherein they reside.” And the question is what those words mean: “and subject to the jurisdiction thereof.”

And here to discuss this issue with us is my colleague, Greg Ablavsky. Greg is the Marion Rice Kirkwood Professor of Law here at Stanford Law School, and he is also a professor of history here at Stanford. He’s a legal historian of the early United States, and his particular specialty is the history of federal Indian law.

And you might wonder, at first, why am I discussing this with Greg? And I think you’ll find in just a moment exactly why Greg is precisely the right person to be talking about the 14th Amendment with, especially given those words “and subject to the jurisdiction thereof.” So welcome, Greg.

Greg Ablavsky: Thanks so much for having me and looking forward to our conversation.

Pam Karlan: So maybe we should start with why do we have this section of the 14th Amendment at all? For those of our readers who were not alive in 1857.

Greg Ablavsky: Oh, so you want to go back to Dred Scott?

Pam Karlan: I want to go back to like, why do we have a 14th, why is this sentence in the 14th Amendment at all?

Greg Ablavsky: Got it. Prior to the Civil War, the status of U.S. citizenship was surprisingly confused. There was a lot of discussion and debate about … the category had not gotten a ton of clarity in that time period. And then you have, of course, the Supreme Court’s decision in Dred Scott, where they say, actually Black people are not eligible to be citizens of the United States. And that rule…

Pam Karlan: And that was true for Black people who were fourth or fifth by that point, generation….

Greg Ablavsky: That’s right.

Pam Karlan: …living in the United States.

Greg Ablavsky: It was incapacity based on race, not based purely on their identity and their ancestry.

And Dred Scott is, hugely controversial at the time and it’s particularly abhorrent to abolitionists and to the people who make up the nascent Republican Party, which, of course, in the wake of the Civil War, they become dominant, they prevail in the war. They are the people now in power. They’re the people running Congress. And so first they enact the Civil Rights Act of 1866, which, through statute, overturns Dred Scott and establishes the principle of birthright citizenship as a statutory matter. But then Congress says, wait a second, we don’t think it’s enough to have a statute. What if, maybe down the line…

Pam Karlan: what if the Democrats come back in?

Greg Ablavsky: Yeah. There’ll be a president who wants to substantially change this rule … and the Congress … and so they want to constitutionalize it, and so they write the 14th Amendment and include, in the very first section of the 14th Amendment, the birthright citizenship provision that people are fighting over now.

Pam Karlan: And so now let’s get to those words “and subject to the jurisdiction thereof.” What are those words designed to do?

Greg Ablavsky: Let’s step back for a minute. It was well established that the principle of birthright citizenship, which was the principle of the English common law, had exceptions. And there’s been lots of discussion in this case about those exceptions.

So, one of those exceptions is if an enemy power militarily occupies a territory, those occupiers are not thereby birthright citizens. There’s another exception under the common law for ambassadors. Then there is this other exception that people talk about as this sort of wholly American exception because there wasn’t a ton of precedent in English common law, and that is for people who were, what they called at the time, Indians, right? People who were members of sovereign Native Nations. Now they, of course, were within the boundaries of the United States, but nonetheless they remained quasi-foreign. And they were not considered to be U.S. citizens unless Congress had naturalized them, unless Congress had made them U.S. citizens. So that was the law prior…

Pam Karlan: They’re quasi-foreign in a different sense than an awful lot of people who were foreign-born, who were in the United States in 1866, 1868, 1870. We were starting to see huge immigration from Europe. So, the Irish come over after the potato famine in the 1840s. There are German immigrants. We’re starting to see immigrants from Central and Eastern Europe by the 1870s. And those people…

Greg Ablavsky: Chinese, really importantly, I think at this particular moment too.

Pam Karlan: Yes. And those people, if they had kids in the United States, everybody understood that those kids were U.S. citizens, regardless. One of the things I think sometimes surprises my students when I teach is that a lot of the states were allowing immigrants to vote in their elections even before they became citizens. Minor against Happersett, which is a major Supreme Court case on these issues, talks about that. So, it wasn’t just if you were foreign, your child didn’t become a citizen. There was something distinctive about the American relationship to Native Nations.

Greg Ablavsky: They were quasi-foreign within the boundaries of the United States. I think that’s one really important point to stress, which is so … first of all, you’re absolutely right to stress that Native Nations are distinct in all sorts of ways. And I want to talk more about that in a moment, but I just want to flag that Ireland, China, Germany, they are not within the boundaries of the United States. And when Irish or German or Chinese people left those countries and came to the United States, then they were within the boundaries of the United States, they were subject to U.S. law in lots of ways. There was not a little pocket of China or Germany or Ireland within the boundaries of the United States, and that was the case with Native Nations, right? There was this concept, a legal concept known as “Indian country,” that had distinctive jurisdictional rules from the creation of the Constitution onward.

It was this fact that made Native Nations constitutionally distinct, right? It’s that they were, at once, quasi-foreign sovereign entities, but they were nonetheless within the boundaries of the United States, and figuring out that relationship caused lots of confusion basically right up until the present.

The trying to figure out that relationship and what it should be analogized to is the central question in this body of federal Indian law that I teach and write about.

Pam Karlan: In the 14th Amendment, when you read further into it, when you get to Section 2  of the 14th Amendment, we get another kind of signal of the special status of Indians, because that’s the part of the, that’s the part of the Constitution that determines how the members of the House of Representatives get apportioned among the states. And that was put in to get rid of the Three-Fifths Clause, in part, that had been in the Constitution before. And it says, “representatives shall be apportioned among the several states according to their respective numbers, counting the whole person, the whole number of persons in each state, excluding Indians not taxed,” which is a kind of odd locution. What’s that getting at?

Greg Ablavsky: Yeah, so that, that locution actually derives … it appears in the original 1787 Constitution as well, in fact, in the immediately following the  Three-Fifths Clause is …

Pam Karlan: The Indians not taxed.

Greg Ablavsky: And I think what that signals is just this idea that—as they might have described at the time—native peoples were not thought of as part of the body politic, right? That they weren’t represented because they weren’t voting, they weren’t really part … even though they were within the United States, they weren’t really part of the United States. And that was the conception in 1787 and that remained the conception in 1866 and 1868, although a lot changed between those two dates.

Pam Karlan: So, we have this notion that there are three groups of people in the United States who, even if they’re born in the United States, are really not members of the polity.

The first one is children born to ambassadors, because we really almost think of them as in a little sovereign bubble of their own country. Then we have children born to invaders, and it’s obvious why you wouldn’t want to give citizenship to children of people who’ve invaded your country.

And then we have children born to members of tribal nations. And now I think maybe we want to fast forward a little bit to Wong Kim Ark, and then maybe circle back to a case that you and I talk about a lot in our respective fields, Elk against Wilkins, but very few other people talk about. Wong Kim Ark, I think, is on everybody’s lips these days. It’s a case from 1898.

Greg Ablavsky: Yeah. I think maybe a lot more people now talk about Elk v. Wilkins. It was, yes, it was maybe a deep cut for 19th century, deep cut for a long time. One of the interesting things about this case is that it has been a crash course of the history of federal Indian law for a lot of folks, I think.

Pam Karlan: So, Wong Kim Ark is a case that involves a child who was born in the United States to Chinese parents who were living in the country, but because of American law, they could never become citizens. We had this very racist immigration policy, starting with the Chinese Exclusion Act, that essentially said Chinese people could live in the United States—we brought many of them here to work on the railroads and do other work in California, but they couldn’t become citizens. And yet the Supreme Court in Wong Kim Ark said that Wong Kim Ark, who was born to this couple, was a U.S. citizen, and that was true even though his parents couldn’t become citizens. And even though the Emperor of China would take the position that Wong Kim Ark was a subject of his, even though the child had not been born within his territory, because there’s this alternative tradition to the birthright … first birthright subject, now birthright citizenship, tradition of the English common law, which is a tradition of citizenship by blood.

And so the Supreme Court said Wong Kim Ark is a citizen of the United States, and therefore he has all the rights that every other citizen would have. But what about Mr. Elk?

Greg Ablavsky: Yeah. This is actually a case that just gets decided a little over a decade before Wong Kim Ark…

Pam Karlan: Right.

Greg Ablavsky: To understand Elk versus… John Elk is a member of the Ho-Chunk Nation, and his origins are a little obscure. We don’t know a ton about many of the native litigants in these cases.

But at some point, Elk moves to Omaha, Nebraska, which, of course, notably not Indian country at this point. And he says, look, I have severed my relationship with my tribe. I was born within the boundaries of the United States, therefore, I have subjected myself to the jurisdiction of the United States and should be a birthright citizen, and attempts to vote.

Pam Karlan: Right. And that’s when the problem occurs.

Greg Ablavsky: So the problem is … his argument about that he is a birthright citizen. Now, what’s interesting about the case … a couple things. One is that the question that is at the heart of Trump v. Barbara, this birthright citizen question, is not really the heart of the case.

The real heart of the case is whether Elk can engage in what is basically, what we’ve called “self naturalization.” In other words, can you just, on your own, decide, “now I’ve subjected myself to the jurisdiction of the United States such that I’m a birthright citizen.” In other words, the real question in Elk was, when we say someone has to be subject to the jurisdiction in the United States, do we mean at the time of the birth, or basically at the time of the lawsuit? And the court says, no, it has to be at the time of birth. So if at the time of birth you are not born subject to the jurisdiction in the United States, then you can’t then become a citizen merely by having that happen later, right?

There has to be some act of naturalization, and that’s not all that surprising, right? It’s not like you could, if you’re Irish, you can move to the United States and say, “Now I’m subject to the jurisdiction of the United States and I’m a citizen.” So it was consistent with that view. There is this sort of brief, only paragraph-or-two-long discussion that goes to the issues that are at issue in this case, right, which is: was Elk born a citizen if he was born a member of a tribe … and w we don’t know a ton about Elk, but the evidence strongly suggests that he was born within Indian country was he therefore a birthright citizen even at the time of birth? And the court just says, no.

It says that there is this categorical exclusion for people who are Indians, as they term it. They draw this out of the history of the 14th Amendment and the language of “subject to the jurisdiction,” which of course reflects the debates that they were having when they drafted the 14th Amendment, many of which focused precisely on this question of the status of Native Americans.

Pam Karlan: Yes. And today, for kids who are born to parents who are tribal citizens, how do they become citizens today?

Greg Ablavsky:  In 1924, Congress passed a law that said, “all Indians born within the United States are citizens.” So it is very clear that they are statutory citizens.

Pam Karlan: Yes, and they’re statutory citizens at birth.

Greg Ablavsky: At birth, that’s right.

Pam Karlan: But let me just ask you this: Does that mean that they are eligible to be president of the United States or they’re not eligible to be president of the United States? Because, Article Two says that to be the president of the United States, you have to be a natural born citizen.

Greg Ablavsky: Yeah. And there’s lots of debate about what it means to be a natural born citizen, although this came up right … wasn’t John McCain born within the canal zone?

Pam Karlan: He was born, yeah, John McCain was born in the canal zone. His father was an admiral who was serving there at the time, and Congress passed a joint resolution saying, “we consider John McCain to be eligible to be president.”

Greg Ablavsky: So if John McCain was eligible to be president then I think native Americans would also be eligible to be president. And, in fact, Charles Curtis, who was vice president, in the early 20th century and himself a Native American, arguably … given that there’s this presumption, he would’ve been eligible to be president….

My view is, look, if John McCain was eligible president, he was a statutory citizen, if he was entitled to birthright citizenship, then that logic would similarly apply to all Native Americans. Now there is this question though about, are Native Americans now also birthright citizens that came up at the …

Pam Karlan: So I want to turn now to the actual argument at the Supreme Court, which had a huge amount of discussion of the status of Native Americans given that the, there’s no question that Native American children born within the kind of outlines of the United States on a map, are clearly U.S. citizens.

Greg Ablavsky: Yes.

Pam Karlan: What was going on with that?

Greg Ablavsky: I think what’s going on is that if everyone concedes that there are these three exceptions, the Trump administration is trying to basically make new exceptions, right?

They’re trying to say, as you said at the beginning, these categories of both undocumented immigrants and people who are lawfully but temporarily present in the United States, they’re trying to say this is a new exception. And the way they’re trying to create this new exception, is they’re trying to reason from this subject to the jurisdiction language.

So, to make that argument, what you have to do is you have to say, look, this new exception flows from those prior exceptions, right? Basically, what they’re trying to do is to take the rationale that excluded those other three groups and extend it to these new categories. And so really the core is can you analogize these new categories to Native Americans in some way? And that’s really the … the Trump administration was forcefully presenting that argument, saying, “look like the rationale that led to the exclusion of Native Americans also justifies the exclusion of undocumented immigrants and to people who are temporarily present.” And of course the ACLU of course really rejected that position.

Pam Karlan: Yeah. And there were two things about this that were striking to me.

One is, of course, because of the way the executive order is worded, they can’t analogize this to the invaders, even the people who rhetorically would say that folks who are undocumented in the country are invaders, can’t say that somebody who’s in the country on a visa is an invader. And so you can’t really do that.

And obviously none of these people is a diplomat, so they’re left with the Native American exception. But the other thing that was really striking is how the kind of liberal and conservative positions on this issue seemed to flip the methodologies that those two groups normally do, which is, Donald Trump and his people claim to be “originalists” and “we’re going to do exactly what they did in 1868 or in 1866” or whatever.

And yet a lot of their argument here was not “in 1866, this is what people would’ve said about folks who came into the country without documentation,” because of course, lots of people were coming into the country without documentation at that point. So, they can’t really say that. So they do things like the world has changed.

There was this moment in the oral argument where John Sauer, who is the Solicitor General arguing for the government, said now basically because we have airplanes, there are several billion people in the world who are only an airplane ride away from the United States, and so things have changed.

And then John Roberts says to him, yeah, but the Constitution hasn’t. And then of course the liberals are all saying, no, you, you’ve got to stick with just the exceptions as they were then.

Greg Ablavsky: Yeah, I think this gets at a tension within originalism and how it thinks about change more generally. I suspect what the Trump administration and originalists sympathetic to their position would say is, and I think Alito tried to stress this in particular, is that the law itself remains consistent, but its application changes as circumstances change. So I think what they would say is, “look, we’re we’re arguing that this was the law in 1866 and 1868,” but they weren’t thinking about the problem of undocumented immigration. Because in their view, they argue this problem is new, that it didn’t, there wasn’t this category of undocumented immigrants. Now that is contested, people have argued over that. But it is true that by and large, at that point, there was not a border inspection regime in quite the same way that we have today, that it was excluding people.

And so they would say, “look the principles that led to the exclusion, particularly of Native Americans, lead to justifying the exclusion of this category as well.” They also spend a lot of time on this question of domicile, right? And they argued that the original rule was only meant to apply to people who were domiciled within the United States, and these categories did not apply to them.

And so in their view, they are being faithful to the to the original meaning. So I do think what’s going on here is in some ways an argument about what did they anticipate in 1868? Was this problem, is this problem actually new? And then also the question is: how do you apply old law to new circumstances?

Pam Karlan: And there was also … a apropos of the Native American issue, there’s this stunning moment in the oral argument when the Solicitor General was asked Well today…

Greg Ablavsky: Right.

Pam Karlan: If you have a kid born to a tribal member, but the kid is not born even on the reservation, the kid is born in Omaha, let’s say, John Elk the 14th or whatever this generation of John Elk’s family would be, is that child a constitutional citizen or is it just because of the statute?  and the Solicitor General basically said “I don’t know…”

Greg Ablavsky: Yeah. And you know what’s weird about that is, I don’t see how that could, they said we think so, right? But I don’t see how that could be consistent with their view, because it seems like the …it’s hard for me to explain if their view is that it’s not, so this will get it, maybe we’ll have a chance to get more into the meat of their argument— but if their view is that subject to the jurisdiction doesn’t actually mean just subject to the laws of the United States but this other thing that they did call “political allegiance” and what the problem for Native people is they are members of their tribes that sort of foreclosed that sort of allegiance. That hasn’t changed right? That aspect of native sovereignty and native relations to the United States hasn’t changed.

It remains the fact today that Native peoples are citizens of their Native nations in the same way that it was in the 1860s. So I think the Trump administration would be very hard pressed if they had actually had an answer to explain why you think Native peoples are citizens today, because under their theory of the case, it doesn’t seem like they could point to changes.

That’s not true, I think, for the ACLU’s position, and this is actually something Barrett was pressing on. Like I think you could argue under the …. what the ACLU is arguing that actually things have changed in ways that make Native Nations birthright citizens. You can also argue the other side, I should say, this is a contested question still. But I don’t the Trump administration’s position doesn’t make a ton of sense to me because I don’t think they have room for change in their views in the way that the ACLU does.

Pam Karlan: Yeah. And of course, also, there are a huge number of children born today in the United States who have one Native American parent, who is a citizen of a tribe and one birthright citizen parent, as to whom this doesn’t apply at all. And the question of what the status of those children is also.

Greg Ablavsky: I think this just goes to show how messy this would be in practice, not just for Native peoples, but across the board, right?

Pam Karlan: Oh, yes, yes.

Greg Ablavsky: Because right now, we have a clean, bright-line rule, where we say, “Are you born in the United States?” Okay, that’s very easy. You can produce the birth certificate from Omaha. That settles the question. Once you start having to decide the status of the parents and have this documentation, which, 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.

And I do think the history of federal Indian law is instructive here because administering these questions in the late 19th century turned out to be an enormous mess too, and they had really struggled with this. One of the reasons they passed the act in 1924 is for 50 years they’re trying to adjudicate these questions and they’re like, “We can’t figure out what the heck is going on.” And so I do think there was a lesson in that history of how messy these things turn out to be if you’re trying to … if you move beyond the bright-line rule of “are you born within the United States?”

Pam Karlan: And one of the other kind of really interesting sets of exchanges, I thought during the oral argument, were about another messy example of this kind, which is after 1808, the slave trade was forbidden in the United States, which meant that you could no longer import Black people to be slaves here. And yet we know that a number of people were imported after that. So those people are not “legally present” in the United States and yet, I think it was understood by everybody in 1866 and 1868 that the children of those people who had been imported into the United States illegally were citizens of the United States. And at oral argument—I think it was Justice Barrett again—asked about women who are trafficked into the United States? So you’re kidnapped in another country and brought here in basically, in forced labor conditions, and you have a baby while you’re here, is that baby a United States citizen?

So I think your point about, once you start down this road of trying to carve all of these exceptions in or out, it’s a system that’s just not going to work. And it’s also a system which, although the executive order that’s being challenged in Barbara is only about going forward, will … what will the federal government do? Presumably this applies to people who were born in 1956 or 1968 or 1973—it’s hard to see why they’re in a different position.

Greg Ablavsky: Of course, the government just basically said “Well, you can just say it’s prospective only,” right?

Pam Karlan: Yeah, but I don’t understand how a constitutional Amendment that was ratified in 1870 can be prospectively applied?

Greg Ablavsky: You are much more of a con law scholar than I am, Pam. I’m not sure if you don’t understand it. I’m not sure I have much wisdom to operate here.

Pam Karlan: Yeah. Yeah. It’s just … we are coming to the end of the time we’ve got, so I wonder what do you think the court is likely to say in this case that’s going to have spillover effects into how they treat Native Americans more generally?

Greg Ablavsky: Hopefully nothing because I think these are really distinct issues. One of the things that we tried to stress in our amicus brief is that there is a distinctive history here that reflects the fact that, as the Court has said, the relationship between Native peoples in the United States is sui generis.

It’s unlike … Chief Justice Marshall in the original Marshall cases, as “unlike that of any other two peoples on earth.” And so part of this is just recognizing look, this is, has evolved through a complicated history and so the court should just acknowledge like this is its own thing.

Pam Karlan: And the other two things just don’t bear on this claim at all.

Greg Ablavsky: Yes. I think the sympathetic view to the Trump administration is that they did … Sauer himself acknowledged this—that the oral argument, they spent a lot of time talking about Indian tribes when they drafted the 14th Amendment, and so you can understand why, to understand the 14th Amendment, people want are looking to thinking about the history of Native peoples.

That said, I think that the subsequent … federal Indian law has evolved a lot since 1866. What they thought in 1868 18…  Is not hopefully the litmus test today. There’s a lot of Supreme Court doctrine. There’s been a lot of statutory and legal development since, so I hope that the Court has the wisdom to say, “this is about this question. It has nothing to do with the very complicated questions that we’ve had to grapple in these other cases.” They did, they take a lot of federal Indian law cases and adjudicate them. Not in my view always wisely or well, but the appropriate venue for airing those questions is in the cases that squarely present them.

And this is really just  …. I do think what the primary takeaway for me, is that the Trump administration’s effort to try to exploit federal Indian law is just really wrongheaded, right? I think they just fundamentally misunder … federal Indian law is a complicated area. It has a messy history. I think it is … I constantly, despite having studied this for many years, like I’m learning new things. It’s hard for me to always wrap my head around it as someone who spent my entire academic career. So, it is a little frustrating to see people who are just like, oh, I’m going to spend an afternoon on Westlaw, and now I’m an instant expert on this field. And I think it shows like there’s a kind of …. Amateurism …

Pam Karlan: Amateurism.

Greg Ablavsky: It sounds good. Amateurism to their treatment of the area that just misunderstands, fundamental categories, historical development, historical contestation, that I think is really frustrating to witness.

So my hope is that the court will just say, this analogy that Trump administration is trying to draw, just doesn’t hold.

Pam Karlan: I look forward to discussing that with you once the opinion comes down. So thanks to our guest, Greg Ablavsky. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves our show and helps new listeners to discover us. I’m Pam Karlan. See you next time.