by Ashleigh Fields
04/01/26
Solicitor General D. John Sauer seemed to struggle when pressed by Supreme Court Justice Neil Gorsuch on Wednesday on whether Native Americans should be considered birthright citizens.
The question came during two hours of arguments at the Supreme Court in a case challenging President Trump‘s 2025 executive order that aimed to end birthright citizenship.
“I think so. I mean, obviously they’ve been granted citizenship by statute,” Sauer answered, referring to the Indian Citizenship Act of 1924.
Gorsuch directed him to put aside the statute.
“Do you think they’re birthright citizens?” the justice pressed again.
“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.
Gorsuch pressed for clarification, asking him to answer again based on the domicile of the parents.
“I think so, on our test. They’re lawfully domiciled here. I have to think that through, but that’s my reaction,” Sauer said.
Gorsuch responded, saying, “I’ll take the yes.”
Sauer’s answers drew a rebuke from Rep. Teresa Leger Fernández (D-N.M.).
“Imagine going before the Supreme Court to attack birthright citizenship and being unable to say Native Americans are American citizens,” she wrote in a post on X.
“This was never about the Constitution. It’s about exclusion,” she wrote.
The question of being “lawfully domiciled” is pertinent as justices reflect on the Trump administration’s interpretation of the 14th Amendment.
The amendment, approved in 1866, states that “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.”
But for more than 50 years, Native Americans were denied birthright citizenship due to the “subject to the jurisdiction” phrasing. The 1924 law, signed by then-President Calvin Coolidge, declared that all “non-citizen Indians born within the territorial limits of the U.S.” are citizens.
The law also noted that the granting of American citizenship “shall not in any manner impair or otherwise affect the right” of any Native American to tribal or other property. Native Americans, therefore, can retain tribal and U.S. citizenship concurrently.
However, the Trump administration is pushing to invoke the “subject to the jurisdiction” phrasing to disallow birthright citizenship for the children of undocumented immigrants and temporary visitors.
Gorsuch directed him to put aside the statute.
“Do you think they’re birthright citizens?” the justice pressed again.
“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.
Gorsuch pressed for clarification, asking him to answer again based on the domicile of the parents.
“I think so, on our test. They’re lawfully domiciled here. I have to think that through, but that’s my reaction,” Sauer said.
Gorsuch responded, saying, “I’ll take the yes.”
Sauer’s answers drew a rebuke from Rep. Teresa Leger Fernández (D-N.M.).
“Imagine going before the Supreme Court to attack birthright citizenship and being unable to say Native Americans are American citizens,” she wrote in a post on X.
“This was never about the Constitution. It’s about exclusion,” she wrote.
The question of being “lawfully domiciled” is pertinent as justices reflect on the Trump administration’s interpretation of the 14th Amendment.
The amendment, approved in 1866, states that “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.”
But for more than 50 years, Native Americans were denied birthright citizenship due to the “subject to the jurisdiction” phrasing. The 1924 law, signed by then-President Calvin Coolidge, declared that all “non-citizen Indians born within the territorial limits of the U.S.” are citizens.
The law also noted that the granting of American citizenship “shall not in any manner impair or otherwise affect the right” of any Native American to tribal or other property. Native Americans, therefore, can retain tribal and U.S. citizenship concurrently.
However, the Trump administration is pushing to invoke the “subject to the jurisdiction” phrasing to disallow birthright citizenship for the children of undocumented immigrants and temporary visitors.
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