In its attempt to end birthright citizenship, the Trump administration has cited a 19th century lawsuit that denied U.S. citizenship to Native Americans. The president’s executive order has been blocked by multiple federal judges, and his use of Elk v. Wilkins to justify the order is generally deemed invalid by legal scholars. But the use of the lawsuit has raised concerns over immigration enforcement in some Indigenous communities, even though Native Americans were granted citizenship in 1924.
Nazune Menka is an assistant professor of law and director of the Center for Indian Law and Policy at Seattle University. She joins us to share more about Elk v. Wilkins and the lasting impact it’s had on relations between tribal and federal governments.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. In the flurry of executive actions at the beginning of his second term, President Trump tried to end birthright citizenship for children of undocumented immigrants and other foreign residents. In doing so, the administration cited a 19th century lawsuit that denied U.S. citizenship to Native Americans. The case is called Elk v. Wilkins. The president’s executive order has been blocked so far by multiple federal judges. His invocation of that case has been deemed invalid by many legal scholars. But it’s also raised concerns over immigration enforcement in some Indigenous communities.
Nazune Menka is an assistant professor of law and the director of the Center for Indian Law and Policy at Seattle University. She joins us now to talk about Elk v. Wilkins and the lasting impact it’s had on relations between tribal and federal governments. Welcome to Think Out Loud.
Nazune Menka: Thanks for having me, Dave.
Miller: I want to start with the historical context of this decision, which came down in 1887. What was going on then, broadly, in terms of U.S. tribal relationships?
Menka: Oh, that’s a deep question, but I’ll do my best to answer that. I usually try to start out with thinking about the relationships with Indigenous nations and the federal government, vis-à-vis this era of diplomacy. So we could think about the treaty-making era. That actually existed pre-United States. The colonial principalities were granted licenses by the Crown to engage in treaty making with tribal nation leaders. That practice continued up until 1871.
That gives us some good characterization of how we shifted from this nation-to-nation, government-to-government relationship to something that I like to call a more “absolutist” overtone, where Congress and the federal government were asserting assimilative practices through congressional plenary power. That just means they were passing all nature of laws to really regulate Indigenous nations and their interactions with the federal government.
This case is representative of that. So you see a lot of history coming through in the opinion. And that history looks a lot like congressional acts. It does talk a bit about treaty making but, as I mentioned, treaty making was ended by Congress in 1871. So those treaties were done on a government-to-tribal nation basis. So those were specific to [each] tribal nation and they varied greatly.
After 1871, Congress took it upon itself to enact any measure of laws, many of which addressed whether or not tribal nation citizens were going to be granted citizenship. I say that as background to this case. And I don’t know if you want me to continue to talk about that ...
Miller: Specifically, what did John Elk try to do? How did he argue for U.S. citizenship?
Menka: So we were in this time where, I’d say, there are some blurred lines between whether or not tribal nation citizens were able to stay engaged as tribal nation citizens and live communally, because Congress had also been working very steadfastly to break up tribal communal land holdings. The federal government, at this point in time, was acting very concertedly to break up tribal communities and tribal nations as communities.
So, part of that looks like what we see in this case. This tribal member says he is no longer engaged in his tribal ties and is now seeking to become a citizen of the state of Nebraska. So John Elk comes to the Omaha, Nebraska voter registration office and asks to register to vote. He says he’s met all of the requirements, provided under the Nebraska state constitution, for him to be able to vote. And John Wilkins, the other named party in the case, is the registrar. He refuses Elk voter registration because, and I quote, “He’s not entitled to vote on account of his race and color.”
Miller: I had initially heard, and I think it’s not inaccurate, that this case is about citizenship. But it also seems like it’s a voting rights case. I mean, they’re intertwined, but that’s something that I had not heard as much about when I first started hearing about this case.
Menka: I think you’re right about that. And for those of us who practice in the area of Indigenous people’s law or federal Indian law, we are well versed on the fact that voting rights within Indian country, as it’s referred to legally, has a very, very long and contested history. So it’s unsurprising to us, but, yes, I think we are hyper focused on the citizenship aspect of that right now.
Miller: The decision, if I’m not mistaken, referenced the Dred Scott Case from 27 years earlier, an infamous case that upheld slavery in the U.S., in the United States territories, and denied the legality of Black citizenship in America. What’s the connection that you see between these two cases?
Menka: The executive order specifically names Dred Scott as having been repudiated by the court. But it doesn’t bring up these other cases that the Department of Justice under the Trump administration is currently relying upon: Elk v. Wilkins and U.S. v. Wong Kim Ark. So I think they are connected because of the fact that, in the terms of the Constitution and in the context of the 14th Amendment, there’s an exception listed not only in the 14th Amendment, but in its predecessor, the Civil Rights Act [of 1866] which says that this doesn’t apply to “Indians not taxed.” The 14th Amendment specifically addressed those who were formerly enslaved and made sure that those individuals were now going to be able to be citizens. But the Indians not taxed remained in both the 14th Amendment and in that earlier statute that, really, the 14th Amendment codified.
Miller: How exactly did the Trump administration use or reference Elk v. Wilkins in its executive order trying to challenge birthright citizenship?
Menka: So, I think that it’s really actually more explicitly addressed in the U.S. v. Wong Kim Ark case that I mentioned. But the rationale that DOJ uses for bringing Elk v. Wilkins into play, so to speak, in this litigation, is that there’s a clause in the 14th Amendment that provides (let me just pull up the language): “All persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S.”
So the " ... and subject to the jurisdiction thereof,” is where the Trump administration is really trying to get us to focus in on and say, just because you’re born here doesn’t mean you were automatically subject to the jurisdiction of the United States. And we’re gonna point to this, and we’re gonna say, hey, look, even Native Americans, who are the quintessential citizens of the United States of America, were not originally afforded citizenship. And I think that that’s a powerful point in rhetoric, but in a really nefarious way.
Miller: But nearly 30 years after that ruling, Congress said something very different. What did the Indian Citizenship Act from 1924 say?
Menka: The Indian Citizenship Act afforded all tribal citizens citizenship of the United States. And that Act was a direct response to a couple of things. One was the piecemeal citizenship that had been provided, and that the Elk v. Wilkins case talks about pretty extensively, via statute, whether those were through allotments to individual Indians, that I spoke about earlier that was part of the concerted effort of Congress to break up tribally-held land.
But it also did something very specific in the sense that it was able to point toward the idea that treaties were also granting citizenship and that World War II veterans, who came home from service, were not allowed to vote. That was deemed to be discriminatory. So there were several different inter-tribal organizations that were advocating for citizenship and for folks to be able to vote throughout that period of time.
So I think that all of that kind of culminates into this being viewed as the right thing. But I will say there was also a lot of pushback for tribal citizens who remained living in their tribal nation communities and viewed this blanket act by Congress as an over assertion of a congressional power over tribal citizens.
Miller: How is this landing in Indigenous communities right now, bringing up this case from 100 and almost 140 years ago that holds such nuances for people? Even if many judges are saying that it’s not legally relevant, I’m curious about just what it means that the administration would try to use it in this way?
Menka: I don’t want to speak for Indigenous communities, but I can speak personal[ly] as an Indigenous woman, and also as an Indigenous law scholar and law professor. There’s a couple of things that I find hugely problematic about the use and the resurgence of bringing this into litigation. And one is that I mentioned that the registrar in this case, Wilkins, identified John Elk as an Indian by race and color. In this case, we actually don’t even know what tribe John Elk is from. So you can read through that case and not even know what community or what tribal nation he’s a citizen of. This, essentially, is making John Elk stateless. As an Indigenous person in your own traditional homelands, ancestral homelands, [that] is hugely problematic.
And I think that there’s a connection between Indigenous peoples who are being singled out, who span across the borders of what is now known as the United States. Folks who are being singled out in Latin and South America. I think that this forebodes nothing great about America if we are going to be singling out people for their being identified by race.
Miller: Another huge question before we go, but I’m curious what other legal issues you’ve been paying attention to recently in terms of tribal nations and tribal sovereignty?
Menka: Oh, there’s so many, Dave. I’m keeping a close eye on whether or not the Trump administration is, through their executive agency branches, going to be upholding the federal government’s trust responsibility, that government-to-government relationship that has existed before the formation of the United States. I want to make sure that tribal nations are being engaged with, as governments. And I want to make sure that the federal government doesn’t forget that this is a treaty responsibility that has existed, despite the end of treaty making in 1871.
I am absolutely also tracking, as an environmental law professor and someone who believes strongly in connection to stewardship and our ancestral homelands, the fast tracking of environmental … gosh, I guess maybe not fast tracking, but really pushing forward pro-development agendas and sacrificing environmental protection as a result. Those are the couple of things that I’m mostly concerned about right now, in addition to what we just talked about.
Miller: Nazune Menka, thanks very much.
Menka: Thanks so much for having me, Dave.
Miller: Nazune Menka is an assistant professor of law and the director of the Center for Indian Law and Policy at Seattle University. She joined us to talk about the 19th century Supreme Court case that the Trump administration invoked as part of its argument for why it should be able to overturn birthright citizenship.
Contact “Think Out Loud®”
If you’d like to comment on any of the topics in this show or suggest a topic of your own, please get in touch with us on Facebook, send an email to thinkoutloud@opb.org, or you can leave a voicemail for us at 503-293-1983. The call-in phone number during the noon hour is 888-665-5865.