For much of U.S. history, Native Americans have occupied an ambiguous and often exclusionary position within the nation's legal and political framework. Government shifting policies on Indigenous sovereignty, assimilation, and exclusion have shaped the question of Native American citizenship—who counted as a citizen, how citizenship could be acquired, and what rights accompanied it. Although the passage of the Indian Citizenship Act in 1924 was a significant milestone, it did not erase the centuries of legal and political battles that preceded it.

The exclusionary legal reasoning that once denied Native Americans their rightful status in American society has not entirely vanished. Today, similar arguments are being used to contest birthright citizenship, especially for the children of immigrants. The legal battles that Indigenous people fought to secure their rights a century ago remain profoundly relevant to contemporary struggles over immigration and national identity.

Prior to the Supreme Court’s ruling in Elk v. Wilkins[1], the legal status of Native Americans under U.S. law was inconsistent and largely dependent on the federal government’s evolving policies. In the country’s early years, Tribes were treated as sovereign nations, engaging in treaties with the United States that recognized their autonomy.[2] However, this recognition also reinforced the idea that Native people were not U.S. citizens. 

The passage of the Civil Rights Act of 1866[3] and the ratification of the Fourteenth Amendment[4] in 1868 reshaped the debate on citizenship. The Amendment granted citizenship to all persons born in the United States and "subject to the jurisdiction thereof."[5] However, Native Americans living in tribal communities were explicitly excluded, as they were considered to owe allegiance to their tribes rather than to the U.S. government.[6] This exclusion left many Native people in a legal gray area: they were born on U.S. soil but were not considered full members of the nation.

The Supreme Court’s Decision in Elk v. Wilkins

The exclusion of Native Americans from birthright citizenship was solidified in the landmark Supreme Court case Elk v. Wilkins[7]. The case centered on John Elk, a Winnebago man who voluntarily left his tribal community and “fully surrendered himself to the jurisdiction of the United States.”[8] He settled in Omaha, Nebraska, and sought to vote in an election. Officials denied him the right to vote, claiming he was not a U.S. citizen.[9] 

Elk argued that by leaving his tribe and subjecting himself to U.S. law, he had effectively become a citizen under the Fourteenth Amendment.[10] The Supreme Court, however, disagreed. In a 7-2 decision, the Court ruled that Elk was not a citizen because he had been born as a member of an Indian tribe, which meant he was not "subject to the jurisdiction" of the United States in the same way as other citizens.[11] The ruling emphasized that Native Americans owed their primary allegiance to their Tribes rather than to the federal government, effectively barring them from automatic citizenship under the Fourteenth Amendment.[12] This decision reinforced the idea that citizenship was not just about geography or birth but about legal and political allegiance, which continues to shape debates about citizenship today.

The Elk decision had far-reaching consequences, reinforcing the exclusion of Native Americans from birthright citizenship for decades. It upheld the government’s position that Native people were politically distinct from other racial and ethnic groups in the United States and that their path to citizenship required explicit Congressional approval rather than a constitutional guarantee. This legal precedent not only affected Indigenous peoples but also set the stage for restrictive interpretations of citizenship that continue to impact other marginalized communities.

The Indian Citizenship Act of 1924

For nearly 40 years after the case of Elk v. Wilkins, Native Americans remained in legal limbo. Some gained citizenship through specific legislative measures, such as the Dawes Act of 1887, which granted citizenship to Native Americans who accepted individual land allotments as part of a policy of forced assimilation.[13] Others became citizens through military service or special Congressional decrees.[14] However, these inconsistent approaches did not adequately address the broader issue of Native citizenship rights at the national level. 

The campaign to grant full U.S. citizenship to Native Americans gained momentum in the early 20th century, driven by shifting attitudes toward Indigenous peoples and their contributions to American society. During World War I, thousands of Native Americans served in the U.S. military despite not being recognized as citizens. Their service highlighted the injustice of their exclusion and strengthened calls for reform. These efforts culminated in the passage of the Indian Citizenship Act of 1924, which finally granted citizenship to all Native Americans born within the United States. While this act was a historic victory, it was also a reminder that Native Americans had to fight for rights that others received automatically.

The Legacy of Elk and Modern Challenges to Citizenship

Although the Indian Citizenship Act addressed the specific exclusion upheld in Elk v. Wilkins, the underlying logic of that ruling has not wholly disappeared. Today, efforts to challenge birthright citizenship under the Fourteenth Amendment echo the same legal reasoning that once denied Native Americans their rightful place in American society.

Just as the government once argued that Native Americans were not entirely “subject to the jurisdiction” of the United States, similar claims are now being made regarding the children of undocumented immigrants. Some legal scholars and politicians argue that the children of non-citizens—particularly undocumented immigrants—should not automatically receive birthright citizenship. The Trump administration even attempted to reinterpret the Fourteenth Amendment to exclude these children, citing Elk v. Wilkins as precedent.[15]

This argument is dangerous because it misinterprets the meaning of the Fourteenth Amendment while also reviving a discriminatory legal framework that once excluded Native Americans. The idea that individuals born on U.S. soil can be denied citizenship based on their parents' status is the same logic that left generations of Native Americans stateless in their own homelands. 

The struggle for Native American citizenship was not only about legal status but also about dignity, recognition, and the right to belong. Today, immigrant communities face many similar challenges, fighting for recognition as full members of American society. The legal battles that Native Americans fought in the 19th and 20th centuries should serve as a cautionary tale against attempts to strip citizenship from future generations.

The history of Native American citizenship rights reminds us that legal status is not simply granted; it is fought for. As Indigenous people, we must remain vigilant in defending the rights that our ancestors fought so hard to secure while also standing in solidarity with those who continue to face exclusion today. 

For non-Indigenous allies, this history is not just something to be acknowledged—it must be acted upon. The same legal frameworks that once excluded Native Americans are now being used to justify new forms of exclusion for immigrants and other marginalized groups. Learn about these policies, challenge misinformation, and support organizations advocating for immigrant and Indigenous rights. Speak up when you hear arguments that seek to limit the definition of who is "American." History shows us that exclusionary policies never stop at just one group. By standing together, we can ensure that the mistakes of the past are not repeated in the future.