Looking to limit birthright citizenship, Trump turns to an 1884 Supreme Court ruling against a Native American

WASHINGTON — In a moment that could take on new significance almost 150 years later, Omaha election official Charles Wilkins on April 5, 1880, refused to register John Elk to vote on the grounds that he was Native American, and therefore not an American citizen.

Elk — believed to have been a member of what is now known as the Winnebago Tribe of Nebraska — objected, saying he had severed all ties with his tribe and had willingly subjected himself to the authority of the United States.

He launched a legal challenge, arguing among other things that he was a citizen at birth because he was born within United States territory.

But the Supreme Court, in an 1884 case called Elk v. Wilkins, ruled against him, saying that Native Americans born within the territory of the United States did not have birthright citizenship. They had the same status as “the children of subjects of any foreign government born within the domain of that government,” the court said.

President Donald Trump’s administration is now citing that case as it defends his plan to end automatic birthright citizenship, putting a new spin on the long-standing interpretation of the Constitution’s 14th Amendment. The Supreme Court hears oral arguments in the case on Wednesday.

Trump’s executive order, issued on the first day of his second term, seeks to limit birthright citizenship only to people with at least one parent who is a U.S. citizen or a legal permanent resident.

The order is not in effect; lower courts put it on hold.

Solicitor General D. John Sauer, representing the government, referenced Elk in court papers, saying the Supreme Court has “squarely rejected the premise that anyone born in U.S. territory, no matter the circumstances, is automatically a citizen so long as the federal government can regulate them.”

White House spokeswoman Abigail Jackson said in a statement that the case gives the Supreme Court the chance to "restore the meaning of citizenship in the United States to its original public meaning."

The Trump administration’s arguments about the relevance of the Elk ruling are strongly contested by the American Civil Liberties Union, which is leading the challenge to Trump’s executive order.

“At a fundamental level, this case is about an attempt to strip citizenship from the children of immigrants who have always been citizens of the U.S. The Native American questions the government raises are really beside the point,” ACLU lawyer Cody Wofsy said in an interview.

Tribal status is 'unique'

Notably absent from any of the dozens of briefs filed in the case is anything from Native American tribes or organizations. Two scholars of Native American law, Bethany Berger at the University of Iowa College of Law and Gregory Ablavsky at Stanford Law School, did file a brief backing the ACLU’s challenge.

Experts on Native American law told NBC News the administration’s reliance on Elk was problematic, both rhetorically and legally.

“We believe the reliance on Elk to deny birthright citizenship to children of undocumented immigrants is misplaced. It’s a misreading and a misunderstanding,” said Leonard Fineday, general counsel of the National Congress of American Indians, which represents tribes.

The Elk decision rests solely on the specific nature of “quasi-sovereign tribal government” and is limited to that context, he added.

Monte Mills, director of the Native American Law Center at the University of Washington School of Law, agreed, saying it was ironic that the government would rely on such a ruling.

“It does betray a lack of understanding and awareness or willingness to acknowledge the nuance of Native American law,” he added.

Another lawyer who works on Native American issues, who declined to be named because he did not want to be seen to be speaking on behalf of tribes with diverse views, said Indian law, a technical term still in use, is complex and not applicable to other areas of law. That’s in part because there was never a blanket rule that applied to all tribes when it came to their legal relationship with the United States.

“I would say Native American history is anomalous. The status of tribes is unique. I’d at least be very cautious before trying to import any supposed lessons or principles from that context into other areas,” the lawyer said.

The legal status of Native Americans within the U.S. has been addressed at length throughout history as the nation expanded westward, making — and breaking — treaties with tribes along the way and often mistreating them. The U.S. government simultaneously considered tribes to be somewhat independent nations while also exerting authority over them.

Tribes and Native American organizations likely did not file briefs in the birthright citizenship case for at least two reasons, Indian law experts said. First, they do not have a stake in the case because, since 1924, Native Americans have been guaranteed birthright citizenship via statute. Second, the more than 500 tribes likely differ politically on whether Trump’s executive order is good policy.

“I do suspect some tribes would be supportive of the policy because some tribes are pretty politically conservative,” the lawyer who works on Native American issues said.

'Subject to the jurisdiction thereof'

The unusual case focuses on the meaning of the “citizenship clause” of the 14th Amendment, ratified in 1868 after the Civil War and the end of slavery. It states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

It’s long been understood to confer citizenship on almost anyone born in the United States, regardless of their legal status. Exceptions include children born to diplomats and foreign invaders.

The Trump administration has zeroed in on “subject to the jurisdiction thereof,” arguing it excludes both the children of people who entered the country illegally and those born to people with temporary legal status, such as work visas.

The Elk case is mentioned multiple times in the Trump administration’s brief, with Sauer arguing that it shows birthright citizenship only applies to people who are subject to the “political jurisdiction” of the United States.

He quoted a line from the Elk ruling that says the “main object” of the citizenship clause was to address the issue of freed slaves after the Civil War.

The challengers, Sauer wrote, “cannot explain the long-established exceptions to birthright citizenship, including for children of tribal Indians.”

Those backing the traditional understanding of birthright citizenship point to another 19th-century ruling, this one from 1898. In United States v. Wong Kim Ark, the court ruled that a man born in San Francisco to parents originally from China but living in the United States was an American citizen at birth.

The majority opinions in Elk and Ark were both authored by Justice Horace Gray. In the latter ruling, Gray distinguished his earlier opinion in the Elk case, saying it concerned “only members of Indian tribes within the United States and had no tendency to deny citizenship to children born in the United States” who were not Native American.

In his brief, Sauer downplayed the Ark ruling, saying it recognized birthright citizenship only for children of citizens and those born to immigrants who were permanent residents.

Ilan Wurman, a professor at the University of Minnesota Law School who filed a brief backing Trump, said it is unclear how much weight the Supreme Court will give the Elk case.

“The bottom line is that the case is helpful to the government, but it’s ambiguous,” he added.

Berger, the Native American legal expert who filed a brief in support of the challengers, said in an interview that Sauer’s argument echoes what his predecessor argued in Wong Kim Ark’s case more than a century ago.

“What the government is doing now is a retread of what it tried to and failed to do before,” she added.

This article was originally published on NBCNews.com