The Dangerous Misreading at the Heart of Trump v. Barbara

Guest Essay

By Suzette Brewer & J. Eric Reed

On Wednesday, the United States Supreme Court heard arguments in Trump v. Barbara, a birthright citizenship case that put the legal foundation of Native American citizenship back on the table, raising questions about how the administration seeks to redefine that status. Though framed as a dispute over immigration, the case drew the Court into the position of weighing whether the country’s first inhabitants could once again be forced to defend their place as citizens within it.

Though the arguments focused largely on United States v. Wong Kim Ark and its affirmation of jus soli (a Latin term meaning “right of the soil”) citizenship, the justices’ questions repeatedly circled back to the meaning of “subject to the jurisdiction” under the Fourteenth Amendment—an inquiry that drew the Court into the fraught terrain of federal Indian law and the political status of tribal nations.

What emerged was a rhetorical test of whether long-settled law regarding Native American citizenship—and whether tribal sovereignty that co-exists with U.S. citizenship—could potentially be reopened.

During oral argument, that tension surfaced in an exchange between Justice Neil Gorsuch and Solicitor General D. John Sauer over the citizenship status of Native Americans. Gorsuch inquired whether Native Americans born in the United States would qualify as citizens under the government’s theory.

Sauer responded, “I think so, yes,” before referring to the Indian Citizenship Act of 1924—rather than the Fourteenth Amendment itself. Gorsuch picked up on Sauer’s telling reveal and pressed further: “Do you think they’re birthright citizens?”

“No, I think the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright citizens,” Sauer answered.

Exposing a central contradiction

The exchange brought the wider stakes of the case into sharp relief. By grounding Native citizenship in statute rather than constitutional guarantee, Sauer’s interpretation of the Fourteenth Amendment does not recognize tribal members born in the United States as citizens. Taken at face value, his argument suggests that what is given can be taken away because the status of tribal members lies outside constitutional protection.

Thus, Sauer’s position cuts to the core of the administration’s case not only for immigrants but also for the country’s oldest inhabitants. An effort to narrow birthright citizenship by reviving pre-1924 precedent runs headlong into the reality that Native Americans are unequivocally citizens of the United States.

At the center of Trump v. Barbara, however, is a legal theory that cynically seeks to resurrect one of the most settled questions in American law: the status of tribal nations and their members.

The administration’s position relies on a deeply flawed premise drawn from 19th-century federal Indian law, particularly Elk v. Wilkins (1884). In that case, the Supreme Court held that John Elk, a Winnebago member who had left his tribe, was not automatically a citizen under the Fourteenth Amendment because he was not “subject to the jurisdiction” of the United States in the same way as others born within its borders. That ruling emerged from a legal landscape in which Native nations were treated as separate political communities and broadly excluded from citizenship.

In 1924, however, Congress passed the Indian Citizenship Act, extending U.S. citizenship to all Native Americans while explicitly preserving their status as tribal nations. That dual status—tribal and U.S.—has since been reinforced by a century of federal law and Supreme Court precedent. Cases such as Morton v. Mancari and, more recently, Haaland v. Brackeen affirm that tribal membership is a political classification, not a racial one, and that tribal sovereignty exists within the constitutional structure, not outside of it.

The argument advanced in Trump v. Barbara attempts to unwind that settled understanding. By reaching back to Elk and reframing tribal citizenship as something akin to foreign allegiance, it suggests that Native Americans may fall outside the full scope of birthright citizenship under the Fourteenth Amendment. In doing so, it collapses a complex body of law into a blunt constitutional shortcut—one that treats Indigenous political identity as a basis for exclusion rather than recognition.

A dispute over historical interpretation

For tribal members, the stakes are immediate and concrete.

At its core, the case tests whether the United States will continue to recognize the compatibility of tribal sovereignty and national citizenship, or whether it will begin to treat those identities as mutually exclusive. For more than a century, federal law has answered that question clearly, affirming time and again that Native Americans are citizens of their tribal nations and of the United States. Their political status does not place them outside the Constitution; it reflects a distinct relationship specifically contained within it.

If that understanding begins to erode, the consequences could extend far beyond birthright citizenship.

The logic underlying the administration’s argument could open the door to broader challenges around jurisdiction, federal obligations, and individual rights. If tribal members are framed as existing at the margins of constitutional “jurisdiction,” it raises questions about the durability of the legal protections they rely on—from access to federal programs grounded in the trust responsibility to the enforcement of civil rights guarantees.

Perhaps most immediately, it creates a pathway toward voter and political disenfranchisement. Casting doubt on the citizenship status of tribal members, even indirectly, risks undermining their eligibility to participate fully in U.S. elections and civic life. In a moment when Native voter turnout has grown and tribal nations have asserted an increasingly visible role in state and national politics, that implication is difficult to ignore.

The danger here is not whether the Court will overturn the Indian Citizenship Act. Rather, it is that the reasoning used to narrow birthright citizenship could destabilize the legal foundation that has long supported Native political identity. By redefining what it means to be “subject to the jurisdiction” of the United States, the case invites a reinterpretation of citizenship that could ripple outward in unpredictable ways.

What the argument fundamentally gets wrong

Tribal nations are not foreign states—under federal law, they are known as “domestic dependent nations.” They do not occupy the same constitutional position as sovereigns recognized under international law. They cannot wage war, enter into treaties with other nations without congressional approval, exercise external sovereignty, or mint their own currency. Their authority is internal, grounded in a government-to-government relationship with the United States and subject to Congress’s plenary power. It is a relationship that has always coexisted with U.S. citizenship, not displaced it.

To treat tribal membership as analogous to foreign nationality is to misunderstand both tribal sovereignty and the constitutional framework in which it operates.

For generations, federal Indian law has reflected a balancing act that recognizes the inherent sovereignty of tribal nations while affirming the citizenship and constitutional protections of their members. That balance has never been perfect, having been shaped by conflict, contradiction, and, at times, profound injustice. But it has produced a coherent legal principle that cannot be denied or abolished: that Indigenous political identity is not a barrier to belonging in the United States, but a distinct form of it.

How Trump v. Barbara puts that principle at risk

By reaching backward to a pre-1924 understanding of Native status, the case attempts to revive a framework that Congress and the courts have long since rejected. In doing so, it does more than revisit an old legal doctrine—it raises the possibility that citizenship itself can be narrowed by resurrecting outdated legal precedent that created categories of exclusion.

The question, ultimately, is not only how the Court will interpret the Fourteenth Amendment. It is whether the constitutional guarantee of citizenship will be redefined in a way that once again pushes Native Americans into a legal no man’s land—neither fully outside the Constitution nor securely within it.

For tribal nations and their citizens, the underpinnings of Trump v. Barbara are not an abstract concern but a question about whether the legal recognition they fought to secure will continue to hold.

And for the country as a whole, it is a reminder that the boundaries of citizenship, once unsettled, rarely stop shifting at the margins.

Suzette Brewer is a journalist specializing in federal Indian law and social justice. She has reported extensively on the Indian Child Welfare Act, the U.S. Supreme Court, Native voting rights, environmental justice in Indian Country, and the forced sterilizations of Native Americans. Her work has appeared in The Imprint, Scientific American, National Geographic, Indian Country Today, and many others. Her published books include Real Indians: Portraits of Contemporary Native Americans and America’s Tribal Colleges and Sovereign: An Oral History of Indian Gaming in America. Her broadcast work includes A Broken Trust: Sexual Assault and Justice on Tribal Lands, for Scripps News in Washington, D.C. She is a member of the Cherokee Nation and is from Stilwell, Oklahoma.

J. Eric Reed has practiced law since 1996, with experience in international Indigenous rights, corporate law, criminal litigation, and environmental law. He has served as a Special Assistant U.S. Attorney and Tribal Prosecutor for the Cheyenne River Sioux Tribe and has tried cases in state, federal, tribal, and military courts. He has also served as a consultant on sensitive investigations, including work with the Texas Rangers, and frequently provides legal analysis on high-profile Indigenous rights and sovereignty matters. Reed advises corporations, NGOs, and nonprofits on Indigenous legal issues and serves as independent general counsel both domestically and internationally. He is a citizen of the Choctaw Nation of Oklahoma.

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