Trump's Executive Order: An Attack on Native American Citizenship?

hellolanianpo
Jan 31, 2025
6 min read

On January 20th, 2025, President Trump signed an Executive Order (EO) to restrict birthright citizenship. The order argues that the 14th Amendment and 8 U.S. Code 1401 never extended universal citizenship to everyone born on U.S. soil and have always excluded persons not “subject to the jurisdiction” of the United States.

The EO has sparked backlash, with many interpreting it as an attack on Native American citizenship, despite no direct reference to Native Americans in the order. This raises the question: Why? Are these concerns exaggerated, or do they reflect legitimate fears rooted in historical and legal realities?

Legal Context and Historical Exclusion

I am not a legal expert, but based on my research, the EO’s reliance on the 14th Amendment and the phrase “subject to the jurisdiction thereof” strongly suggests relevance to Native Americans. Historically, Native Americans have been excluded from citizenship. This exclusion was codified in the Civil Rights Act of 1866, which stated: “excluding Indians not taxed,” directly denying Native Americans citizenship and equal rights.

When a federal judge issued a temporary restraining order (TRO) blocking the EO, the Trump administration responded with an “Opposition to Motion for a TRO,” citing multiple Supreme Court decisions, including Cherokee v. Georgia (1831) and Elk v. Wilkins (1884), to justify their legal position. These cases denied Native Americans protection, citizenship, and/or voting rights based on their “jurisdictional” status.

By invoking these cases, the administration has set the stage for confusion and valid concern, triggering historical trauma tied to these legal precedents.

Cherokee Nation v. Georgia (1831) and the Decline of Native Sovereignty

Prior to the Cherokee Nation v. Georgia case, the United States had ratified at least 14 treaties with the Cherokee Nation between its Declaration of Independence in 1776 and 1831. The first of these, the Treaty of Hopewell (1785), established a political relationship between the Cherokee Nation and the U.S. The treaty recognized the Cherokee Nation as a sovereign entity and offered the tribe “peace and protection of the United States of America,” meaning diplomatic and military support in matters involving foreign nations, state governments, and settlers. The U.S. continued to recognize Cherokee sovereignty in every subsequent treaty.

However, by the 1820s, the Southern economy had boomed due to cotton production. States such as Georgia, Alabama, and Mississippi sought more land to expand the cotton industry. Cherokee, Creek, Chickasaw, Choctaw, and Seminole lands, being some of the most fertile, became the target of settler encroachment and treaty violations.

In 1828, the discovery of gold in Cherokee territory further exacerbated tensions. The state of Georgia, refusing to acknowledge Cherokee sovereignty, passed state laws that abolished Cherokee governance and pushed for federal intervention to take control of Cherokee land and remove the Cherokee Nation.

In 1830, President Andrew Jackson signed the Indian Removal Act, which authorized the federal government to negotiate treaties for the relocation of Native nations west of the Mississippi River. The Act was framed as a policy to “protect” Native nations from state aggression, but in reality, it was a tool to dispossess them of their land.

Amid these escalating tensions, the Cherokee Nation sued Georgia in 1831 for violating its treaty rights. The U.S. Supreme Court ruled that the Cherokee Nation was not a “foreign nation” as defined by the Constitution. Because the Cherokee were “under the protection” of the U.S., they were classified as “domestic dependent nations,” a designation that meant the Court lacked jurisdiction to hear the case. This ruling effectively denied the Cherokee Nation any legal remedy.

In its decision, the Court established a precedent that placed Native Tribes under federal “guardianship,” diminishing tribal sovereignty and reinterpreting previous treaty language to justify greater U.S. control over Native nations. Despite the Court’s decision, it offered no protection to the Cherokee Nation, leaving them vulnerable to Georgia’s actions.

This ruling directly contributed to the Cherokee Nation’s forced removal from their land and the subsequent Trail of Tears (1838-1839), during which thousands of Cherokee people died on the forced march to Indian Territory.

The Fourteenth Amendment (1868) and Native American Marginalization

Ratified on July 9, 1868, the 14th Amendment was a cornerstone of the Reconstruction Era. Its primary purpose was to constitutionalize the Civil Rights Act of 1866, which was the first U.S. law to define citizenship and guarantee equal rights under the law.

The Civil Rights Act of 1866: “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.”

The 14th Amendment (1868): “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.”

While the 14th Amendment excluded the phrase “excluding Indians not taxed,” the legal exclusion of Native Americans remained intact. Under the Civil Rights Act of 1866, Native Americans were explicitly excluded from U.S. citizenship unless they were “taxed.” This meant that members of federally recognized tribes were not considered U.S. citizens. The reasoning was rooted in the U.S. government’s view of tribes as separate political entities, akin to sovereign foreign nations. This view directly contradicted earlier Supreme Court rulings, such as Cherokee Nation v. Georgia (1831), which classified Native nations as “domestic dependent nations” under U.S. guardianship.

The result was a legal consistency: the denial of protections and rights to Native Americans. As a consequence, Native American citizenship was rare, conditional, and often used as a tool for forced assimilation. Citizenship was typically granted only in exchange for land allotment, military service, or tribal dissolution—each of which undermined tribal sovereignty.

Although the 14th Amendment omitted the phrase “excluding Indians not taxed,” the interpretations carried over, as confirmed by the Elk v. Wilkins (1884) Supreme Court case.

Elk v. Wilkins (1884) and the Continued Disenfranchisement of Native Americans

John Elk, born into the Winnebago Nation, left his tribe and renounced his tribal affiliation, attempting to claim U.S. citizenship. When he tried to register to vote in Nebraska, Charles Wilkins, a voter registrar, denied his application on the grounds that Elk was not a citizen. In response, Elk sued Wilkins, arguing that the 14th Amendment guaranteed him both citizenship and voting rights.

The U.S. Supreme Court ruled 7-2 against Elk. The majority opinion stated that the 14th Amendment excluded Native Americans because they were considered part of their tribal nations at birth, and were not subject to the jurisdiction of the U.S. in the same manner as other citizens or residents.

As a result of this ruling, Native Americans were not granted citizenship until the Indian Citizenship Act of 1924, and voting rights did not come until much later with the Voting Rights Act of 1965. However, neither of these acts have ever been constitutionalized.

Is Trump’s Executive Order an Attack on Native American Citizenship?

Trump’s executive order seeks to restrict birthright citizenship for children born to undocumented or illegal immigrants and temporary residents. While this should not directly affect Native American citizenship, concerns arise from the administration’s reliance on the phrase “subject to the jurisdiction thereof.”

The Indian Citizenship Act of 1924 extended citizenship to Native Americans and should offer protection. However, several key facts must be considered:

The Indian Citizenship Act has never been constitutionalized, leaving it vulnerable to future legislative action.
The phrase “subject to the jurisdiction thereof” has historically played a central role in legal discussions between the U.S. government and Native nations.
This phrase has been repeatedly reinterpreted and manipulated at the Court’s convenience, often leading to the denial of Native American rights.

Furthermore, Native American communities continue to face significant challenges related to voter suppression, federal recognition and sovereignty, as well as territorial and jurisdictional disputes. These challenges could be exacerbated by the legal reasoning underlying this executive order.

In conclusion, while the EO is primarily aimed at undocumented immigrants and temporary residents, its reliance on "subject to the jurisdiction thereof" brings back legal doctrines that have historically been used to undermine Native American citizenship and sovereignty. Given that the Indian Citizenship Act of 1924 has never been constitutionalized, and the Supreme Court has historically manipulated legal definitions of jurisdiction to exclude Native Americans from legal protections, this EO could set the stage for future legal challenges to Native American rights.

As history has shown, when legal language remains ambiguous, Native sovereignty is often the first casualty.

Trump’s administration has issued several concerning executive orders. We should refrain from reacting from a place of pure emotion or spreading any disinformation, but we also need to remain vigilant in protecting Native American rights and sovereignty.