Trump's attempt to overturn birthright citizenship uses century-old Native American case
Navajo Nation advises citizens to carry state identification due to immigration raids
Indigenous people in the U.S. are worried by President Donald Trump's attempt to end birthright citizenship, a constitutional right, using a 19th century case that denied citizenship to a Native American.
The 14th Amendment reads that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
Last week, Trump issued an executive order that would eliminate it, but a federal judge blocked the order temporarily shortly after 22 states quickly mounted a legal challenge.
In court, the Justice Department used the 1884 case of Elk v. Wilkins as a legal analogy to justify Trump's executive order. Arguing that "birth in the United States does not by itself entitle a person to citizenship, the person must also be 'subject to the jurisdiction' of the United States," it said the case found members of tribes "are not 'subject to the jurisdiction' of the United States and are not constitutionally entitled to citizenship."
At the time, Indigenous people weren't considered citizens of the United States. John Elk was a Ho-Chunk man who expatriated himself from his nation to claim birthright citizenship under the 14th Amendment.
"John Elk … moved to the city of Omaha in Nebraska and argued he has separated himself from his tribe, and he seeks to vote in an election," said Gregory Ablavsky, Marion Rice Kirkwood professor of law at Stanford Law School.
Ablavsky said Native Americans were excluded from birthright citizenship because of their affiliation to their tribes.
"Elk's argument [was], 'I have left my nation … and by severing my ties to my tribal community, I have now therefore legally become a birthright citizen," said Ablavsky.
"But the Supreme Court rejected that argument."
Ablavsky said that when the U.S. Constitution was created, it was unclear to the United States government, what power they had over Native American tribes.
"Congress was not clear that it had the constitutional authority to legislate for Native peoples at all directly; it also was the law that state authority did not apply to Native Americans who were living within Indian Country," said Ablavsky.
"So the analogy is, I think, unpersuasive and historically ignorant."
Indigenous people were granted U.S. citizenship in 1924.
The Fort Peck Tribes in Montana released a statement saying they are monitoring the outcome of Trump's executive order, but that they are not worried it'll impact their citizens.
"The Indian Citizenship Act of 1924 is an act of Congress and a fundamental right protected by the United States Constitution and cannot be overturned by an executive order," wrote Justin Gray Hawk Sr., tribal chairman of Fort Peck Tribes.
ICE agents hassling Navajo people
Over the past week, there have been Immigration and Customs Enforcement (ICE) raids across the country.
Citizens of the Navajo Nation, which spans across parts of Arizona, New Mexico and Utah, have reported being incorrectly identified as illegal immigrants during ICE raids
"My office has received multiple reports from Navajo citizens that they have had negative, and sometimes traumatizing, experiences with federal agents targeting undocumented immigrants in the Southwest," said Navajo Nation president Buu Nygren.
The Navajo Nation has been in contact with the Department of Homeland Security, U.S. Immigrations and Customs Enforcement, state and federal Senate and House representatives, and the office of the governors for Arizona and New Mexico.
They plan to set up a hotline for citizens to report tips and complaints, and also help citizens who have been harrassed by ICE.
"It's best to be prepared, and we are advising Navajo citizens to carry state-issued identification such as a driver's licence or other picture identification if available," said Nygren.
"Having your state ID is crucial, and if you possess a CIB (Certificate of Indian Blood), it can provide an additional layer of reassurance. If you do run into issues with federal immigration officials, reach out to our office through Operation Rainbow Bridge."
Ablavsky said he is not worried that the citizenship status of Native Americans will be called into question, but said he understands the anxiety felt in Indian Country.
"If you are a non-white person in the United States today, there is sort of increasing suspicion and presumption about your status," said Ablavsky.
"Even if the irony, of course, is that Indigenous people are the only people who are not migrants to the United States."
ABOUT THE AUTHOR
With files from Associated Press