Native American Citizenship and Tribal Legal Sovereignty: Historical Precedent and Modern Challenges

By Cade Winter ’28 | Long Form

Abstract

On January 20, 2025, President Donald Trump issued Executive Order 14160, denying birthright citizenship to individuals whose parents are not American citizens. Although the order targets undocumented immigrants, its legal grounding relies on Elk v. Wilkins, an 1884 Supreme Court case that denied birthright citizenship to Native Americans on the basis that they were citizens of their tribes first and to the United States second. Although Elk was never overturned, it was rendered obsolete by the Indian Citizenship Act of 1924, which extended American citizenship to include all Native Americans. By contemporarily invoking Elk in an effort to uphold Order 14160 in courtrooms across the country, the Department of Justice (DOJ) administration is implying that Native Americans are still primary citizens of their sovereign tribal nations. The administration’s reliance on Elk highlights a broader political and legal effort to undermine tribal sovereignty and legal authority in the wake of McGirt v. Oklahoma (2020), which reaffirmed tribes’ significant jurisdictional authority over their territory. In the years since McGirt, state leaders, including Oklahoma Governor Kevin Stitt, have sought to limit the decision’s impact and reassert state control. Trump’s current challenge to Native American citizenship is a dangerous convergence of two legal fronts: the erosion of constitutional guarantees of birthright citizenship and the systematic reversal of tribal sovereignty. Together, these efforts represent the most significant assault on Native American legal and political status in nearly a century.

Why I Wrote This Article

On July 9, 2020, the Supreme Court issued its landmark ruling in McGirt v. Oklahoma. Ruling in favor of Jimcy McGirt, the Court stunned federal and state lawmakers by declaring that crimes committed on tribal land and involving Native Americans could not be prosecuted in state courts. As a result, state jurisdiction over criminal cases involving Native Americans vanished, and tribal and federal courts gained jurisdiction over these cases. Nearly half of my home state of Oklahoma lies within reservation boundaries, so the Court’s decision dramatically reshaped the relationship between the State and Native tribes and transformed Native Americans’ journeys through the legal system. As a citizen of the Muscogee Nation, born and raised on the Cherokee Nation reservation, I considered how this ruling would affect tribal sovereignty and other future implications. Nearly six years later, much has changed since that fateful July day. While tensions between the State and tribes remain unresolved, the already negative federal disposition on tribal authority has escalated in alarming ways, as federal efforts have transitioned into a direct assault on tribal sovereignty and Native citizenship itself. By relying on the Elk v. Wilkins (1884) as precedent for Executive Order 14160, the Department of Justice has endorsed the notion that Native Americans are not entitled to birthright citizenship. Five years after McGirt, I write this article as both a legal observer and a Native American, compelled to document the ongoing campaign to suppress the natural rights of indigenous people and the sovereignty of all tribes

I. Introduction
In December 2023, on a cold, quiet night in rural Oklahoma, a chaotic scuffle erupted as tensions finally reached a breaking point between state jailers and Lighthorse police, the law enforcement agency of the Muscogee Nation. When Lighthorse officers attempted to admit a man accused of fentanyl possession into the Okmulgee County Jail, jailers refused to take custody, despite the fact that state and tribal authorities share correctional facilities. Confused and frustrated, the Lighthorse police asserted the jailers had no legal authority to reject control and eventually proceeded with the booking themselves, further exacerbating tensions. A state jailer struck a Lighthorse officer in the face, triggering a physical altercation between the two law enforcement agencies. The next day, that jailer was charged with battery, and a warrant was issued for his arrest. Yet, when Lighthorse officers arrived at the jail to arrest him, county officers refused to cooperate, sparking a tense public standoff. (1)

Located entirely within the Muscogee Nation reservation, Okmulgee County remains at the heart of a contentious legal battle.  Instrumentally, the Supreme Court’s ruling in McGirt v. Oklahoma (2020) affirmed the reservation status of tribal lands and made an unprecedented restoration of tribal legal power possible. Prior to the McGirt ruling, reservations were widely understood to have been disestablished, so tribal courts were not considered to retain jurisdiction over most cases. For the first time in centuries, the Cherokee, Chickasaw, Choctaw, Muscogee, and Seminole Nations can prosecute their own citizens on their own lands, an essential function of self-governance. But, it has come at the cost of infringements upon tribal sovereignty and even Native American citizenship. Despite these legal precedents, the Department of Justice (DOJ), with support from political leaders like President Donald Trump and Oklahoma Governor Kevin Stitt, is currently engaged in legal efforts to dismantle tribal authority and the reservation status. 

Despite the existence of legislation protecting both Native American citizenship and tribal legal sovereignty, the Trump administration and Republicans leaders across the country, such as Oklahoma Governor Kevin Stitt, are waging a war to dismantle both of these crucial legal frameworks. At the heart of their argument lies a dangerous contradiction: if tribal nations are sovereign, then their members cannot be fully subject to state jurisdiction; yet, if tribes are not sovereign, then Native Americans must be recognized as American citizens to ensure they remain subject to state legal systems. Yet, Trump’s Executive Order 14160 threatens Native American citizenship, while Governor Stitt’s comments threaten disestablishment of reservations, which would eliminate tribal authority. Together, these acts would essentially make Native Americans a stateless nation, which is deeply dangerous, as it threatens to deprive Native Americans of natural rights, promised protections, and any access to justice. 

From a historical standpoint, claiming that North America’s first people are not citizens reflects a continued expression of colonialism. Efforts to strip Native Americans of citizenship and sovereignty is a modern act of settler colonialism, aimed at suppressing Native autonomy and erasing Native rights. Although legally hollow, these arguments are routinely propagated by politicians across the country. Since the nation’s founding, the federal government has failed to establish a consistent or respectful approach to Native American diplomacy. Over time, the federal government has shifted through five distinct eras of policy, which has built a legacy of confusion, betrayal, and broken promises. From one presidential administration to the next, Native American policy has been marked by disagreement and the outright reversal of commitments. Federal policy has long resembled a pendulum, swinging between moments of limited support and outright hostility. The Trump administration’s open hostility to Native peoples is an unprecedented and dangerous escalation, which threatens to completely snap that pendulum. 

Through an exploration of the historical background of Supreme Court decisions, their legal and political consequences, and previous and ongoing efforts to undermine and reverse their impact, I will argue that the Trump administration is attempting to seize Native American citizenship and sovereignty with the effect that Native Americans would be rendered stateless. 

II. The Legal Background and Impact of Sharp v. Murphy and McGirt v. Oklahoma: How Sovereignty Reinforces Citizenship

In 1997, Jimcy McGirt was convicted of raping and molesting a young child in Wagnor County, Oklahoma. He received two consecutive 500-year sentences, along with life imprisonment without the possibility of parole. (2) Although his condemnation appeared final, McGirt later found hope from the most unlikely of sources: convicted murderer Patrick Murphy. Murphy, a citizen of the Muscogee Nation, had been convicted of killing George and Patsy Jacobs in Henryetta, Oklahoma, in 1999. The court sentenced Murphy to death, which he later appealed. (3) Rather than contest his guilt, Murphy challenged the State of Oklahoma’s jurisdiction over his case. He argued that, because the crime occurred within the historical boundaries of the Muscogee Nation reservation, the state did not possess jurisdiction over the case. (4) Under 18 U.S.C. § 1151, major crimes involving Native American defendants in “Indian Country” fall under federal – not state – jurisdiction. (5) Since Murphy believed the Muscogee Nation, where he had committed this crime, qualified as “Indian Country,” he appealed his sentence. After Oklahoma appellate courts affirmed the trial court’s ruling, the federal Tenth Circuit Court of Appeals agreed to hear the case. There, Murphy asserted that the Muscogee Nation reservation had never been formally disestablished by Congress and thus retained jurisdiction. (6)

Murphy’s case primarily rested on the Treaty with the Creeks (1866), Enabling Act of 1906, Major Crimes Act of 1885, and 18 U.S.C. § 1151. (7) After the Civil War, Congress sought to reestablish peaceful relations with the Five Tribes. In 1866, Congress signed the Treaty with the Creeks with the Muscogee Nation, which affirmed the Nation’s territorial boundaries and guaranteed legal protections for American citizens within the reservation. Importantly, the treaty recognized Muscogee land as a reservation, placing it under federal protection. (8) Murphy argued that subsequent federal laws did not disestablish this reservation. Specifically, he pointed to the Enabling Act of 1906, which paved the way for Oklahoma’s statehood. Instead of disestablishing the Muscogee Nation reservation, the Act actually protected it. In fact, the Act explicitly stated that Oklahoma could not “limit or impair the right” of tribal property. (9) Furthermore, the Act identified the territories of the Cherokee, Chickasaw, Choctaw, Muscogee, and Seminoles Nations as land outside state and federal ownership due their reservation status. Effectively, the Enabling Act defined the Five Tribes’ respective territories as distinct legal and political entities, reaffirming the 1866 treaty’s recognition. (10)

The Major Crimes Act of 1885 further supported federal jurisdiction over Murphy’s case by granting the federal government exclusive jurisdiction over major crimes, including murder, committed by Native Americans in “Indian Country.” (11) To prove that the Muscogee Nation reservation qualified as “Indian Country,” Murphy cited 18 U.S.C. § 1151, which defines “Indian Country” as land designated by Congress as a reservation, allotment, or tribal communal property. (12) Relying on prior treaties and federal statutes, Murphy contended that, as a reservation, the land fell within the statutory definition of “Indian Country.” Therefore, Murphy asserted, the State of Oklahoma lacked jurisdiction over his case.

After careful deliberation, the Tenth Circuit Court of Appeals ruled in favor of Patrick Murphy, holding that the State of Oklahoma lacked the jurisdiction to prosecute his case. The Court relied on the Enabling Act of 1906, which expressly prohibited Oklahoma from diminishing tribal property or legal sovereignty. (13) Since Congress had never formally disestablished the Muscogee Nation reservation or repealed laws protecting reservations, the judges concluded that the land remained legally recognized as a reservation. Thus, the State of Oklahoma lacked legal authority to prosecute major crimes committed in “Indian Country” by Native citizens, such as Patrick Murphy. The ruling not only secured Murphy’s victory, but also raised broader jurisdictional questions regarding minor crimes and other serious crimes not mentioned in the Major Crimes Act of 1885 committed by Native Americans on tribal land. Although Oklahoma appealed the decision to the Supreme Court, the outcome of Murphy's victory opened a temporary legal pathway for Jimcy McGirt to challenge the validity of his own conviction. 

Following Murphy’s success at the Tenth Circuit in 2018, Jimcy McGirt sought post-conviction relief in 2020. He argued that his conviction was illegitimate because the State of Oklahoma lacked jurisdiction to try him. As a citizen of the Seminole Nation whose crimes occurred on reservation land, McGirt’s case fell under federal authority. The Major Crimes Act of 1885 had already granted the federal government authority over serious offenses, such as murder and sexual assault, committed in “Indian Country,” but McGirt asserted that Oklahoma lacked jurisdiction over all crimes committed by Native Americans on tribal land. Oklahoma courts refused to hear his case, but McGirt petitioned the Supreme Court, which agreed to hear his appeal. Consolidated on the same docket as the State of Oklahoma's appeal of Murphy’s case, Sharp v. Murphy, the Court was now forced to answer a landmark question: one docket would determine the future for the Five Tribes’ sovereign legal authority over their reservations in eastern Oklahoma. The answer to this question would either restore jurisdiction to the tribes or reinforce the state’s authority. 

McGirt’s argument closely mirrored Murphy’s, but incorporated additional legal context. He first pointed to an 1856 treaty between the Muscogee Nation and the federal government that secured the tribe the “unrestricted right of self-government” and “full jurisdiction” over tribal members and their property. (14) The treaty, McGirt contended, guaranteed the Muscogee Nation indubitably protected legal sovereignty, free from interference by state governments. (15) Since Congress had never nullified the treaty or its guarantees, its terms remained legally binding and entrenched in law. Although the agreement primarily granted tribal courts jurisdiction over misdemeanor offenses, McGirt maintained that the Major Crimes Act and subsequent Supreme Court precedent, such as Solem v. Bartlett (1984), assigned jurisdiction over serious felonies to the federal government. Together, the treaty and the Major Crimes Act established exclusive tribal and federal jurisdiction over Native Americans on reservation land, leaving no role for the state. (16)

Ultimately, the Supreme Court ruled in favor of McGirt by a slim 5-4 margin. (17) In accordance with precedent, the Court upheld that only Congress, not states or courts, had the power to disestablish a reservation. Since Congress had never done this, the Muscogee Nation still legally existed as a reservation. . Because tribal sovereignty stems from the recognition of Native reservations, the Court’s recognition and reaffirmation of the Muscogee Nation reservation in the McGirt ruling restored the tribe’s lost legal authority and jurisdiction. Since the  Cherokee, Chickasaw, Choctaw, and Seminole Nations had similar treaties to establish reservations with the federal government, these tribes also reclaimed legal authority following the McGirt ruling. In total, the State of Oklahoma lost jurisdiction over all Native Americans in 43% of its territory. Enraged, Oklahoma lawmakers and conservative commentators swiftly denounced the ruling. (18) Similarly, Murphy also prevailed in the Supreme Court. As a result, his prior conviction was overturned, and a new trial process began in federal court. He is currently incarcerated, as his original conviction is awaiting a retrial. (19) Together, Murphy and McGirt fundamentally reshaped the legal landscape of tribal sovereignty by establishing new precedents that reaffirmed the authority of tribal nations over their own lands and people. However, despite these victories, political opposition and ongoing legal challenges continue to threaten these restored liberties, as new conservative laws and policies are designed to curb this newfound expanded tribal sovereignty. 

Following the success of McGirt and Murphy in the Tenth Circuit, Trump urged the Supreme Court to overturn the decision. (20) When the Court later upheld the ruling, Trump insisted that the reservations no longer exist and, accordingly, has repeatedly requested for the Supreme Court to reverse previous decisions that protect tribal sovereignty. (21) Since then, the Trump administration has coordinated a systemic effort to target Native citizenship, sovereignty, and even basic living conditions. (22) Beyond rhetoric, these efforts have taken shape in policy, particularly in attempts to redefine or restrict birthright citizenship. 

III. The Case Against Native American Birthright Citizenship: An Analysis of Executive Order 14160 and Elk v. Wilkins

During his 2024 presidential campaign, Trump pledged to reform national security by securing borders and implementing mass deportations of undocumented immigrants. (23) After beginning his second term, Trump signed Executive Order 14160, which aimed to end birthright citizenship for children of undocumented immigrants. Critics quickly cited the Fourteenth Amendment and United States v. Wong Kim Ark (1898) as clear protections of birthright citizenship. (24) However, Trump is seeking to circumvent these legal protections by reinterpreting a specific clause within the Fourteenth Amendment. (25) The amendment states that “[a]ll 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.” (26) While in Wong Kim Ark, the Court held that Fourteenth Amendment conferred broad birthright citizenship to all individuals born in the United States, the Trump administration has sought to reframe the Fourteenth Amendment through a narrower interpretation. 

According to the Trump administration, the phrase “subject to the jurisdiction thereof” excludes children of parents who owe allegiance to a foreign power because such individuals are not fully subject to the legal and political jurisdiction of the United States under the Fourteenth Amendment. (27) To bolster this position, Trump has pointed to the Civil Rights Act of 1866, which conferred citizenship on “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed,” a clause historically understood to exclude Native Americans who were members of sovereign tribal nations and did not pay American taxes from having American citizenship. (28) He contended that the phrase “not subject to any foreign power” means that children of undocumented immigrants are excluded from birthright citizenship because they inherit the political allegiance of their parents’ home country. (29) Similar to the status of Native Americans following the Elk decision, under the Trump administration’s current arguments, the children of illegal immigrants are secondary citizens to the United States and do not qualify for birthright citizenship. Trump has further argued that Wong Kim Ark did not directly address the issue of primary versus secondary citizenship and is therefore inapplicable. However, Wong Kim Ark applies in the instant matter, since it reaffirms the Fourteenth Amendment's birthright citizenship protection and establishes a legal precedent of its employment. Primary versus secondary citizenship does not matter under Wong.

By making these arguments to defend Executive Order 14160, Trump implicitly challenges the validity of Native American birthright citizenship. Since federally recognized tribes are considered sovereign nations, the Trump administration has implied that Native Americans born into tribal nations owe allegiance to another sovereign nation at birth and therefore do not qualify for automatic citizenship. (30) To justify its position, the administration has also relied on Elk v. Wilkins (1884), a Supreme Court decision which held that Native Americans born into sovereign tribal nations were not entitled to the full scope of the Fourteenth Amendment and were not granted birthright citizenship. (31) Under Elk, Native Americans could only become citizens through naturalization. However, later laws, such as the Dawes Act of 1887 and the 1924 Indian Citizenship Act, extended full citizenship, rights, and protections to Native Americans. Until the passage of the Dawes Act, which divided communal tribal land into private property and granted citizenship to those who accepted these changes, most Native Americans were not recognized as citizens. (32) In 1924, nearly 40% of Native Americans still lacked citizenship, underscoring the importance of the Indian Citizenship Act – which granted citizenship to all Native Americans – for Native Americans seeking the protections of citizenship. Despite Elk never being overturned, these laws made the decision obsolete. Trump’s order is grounded in outdated legal precedent, which reframe tribal allegiance as a barrier to citizenship and threaten to erode a century of progress in acknowledging Native Americans as full citizens of the United States. 

In 1880, John Elk, a member of the Ho-Chunk Nation living in Omaha, Nebraska, attempted to register to vote in the presidential election. Although Elk had left tribal life, renounced his tribal affiliation, and lived among primarily non-Native citizens, his registration was denied on the grounds that he was born on the Ho-Chunk reservation. Elk argued that because he was born within the territorial bounds of the United States, he was entitled to birthright citizenship under the Fourteenth Amendment. Local courts rejected his claim, and the dispute eventually reached the Supreme Court in 1884. At its core, the case considered whether a Native American born on a reservation was entitled to birthright citizenship and whether ties to a sovereign Native nation meant Native people were excluded from the Fourteenth Amendment’s protections. 

Elk cited several Supreme Court cases to demonstrate that Native Americans could qualify for citizenship regardless of birthplace. He referenced the infamous Dred Scott v. Sandford (1857) case, in which Chief Justice Roger Taney distinguished the difference between enslaved African Americans and Native Americans. While that case denied citizenship to enslaved individuals, he acknowledged that Native Americans could, under strict federal supervision, obtain citizenship. (33) Furthermore, Elk invoked the Civil Rights Act of 1866, which granted citizenship to anyone born in the United States. Elk emphasized his abandonment of tribal life, residence in Omaha, and employment as evidence of assimilation, which was required to be granted American citizenship. Since the Ho-Chunk reservation was within the confines of the United States, Elk argued that he had gained citizenship through assimilation. Believing he qualified under the strict standard for assimilation set by the Court, Elk contended he should be recognized as a citizen and entitled to voting rights. The Supreme Court, however, rejected his claim, holding that Native Americans could not renounce their tribal affiliation, and, therefore, Native Americans born into tribal nations were not entitled to birthright citizenship. (34)

Wilkins countered Elk’s argument by asserting that neither Dred Scott nor the Civil Rights Act of 1866 had been intended to provide a pathway for Native Americans to gain citizenship. He argued that Elk had not genuinely abandoned his tribal identity or demonstrated true commitment to becoming an American citizen, which was a requirement for becoming naturalized as an assimilated citizen. According to Wilkins, Elk’s primary allegiance remained with the Ho-Chunk Nation and that granting him citizenship posed a potential security risk by enabling Elk to use legal and political rights to resist federal encroachment on tribal lands. Wilkins also rejected Elk’s interpretation of the Civil Rights Act of 1866, claiming that only those fully under the jurisdiction of the United States could be granted citizenship. Since Elk was a member of the Ho-Chunk Nation, Wilkins argued that he could not also be an American citizen. (35)

Siding with Wilkins in a 7-2 decision, the Supreme Court declared that John Elk was not an American citizen and could not obtain citizenship through birthright. Writing for the majority opinion, Justice Horace Gray concurred with Wilkins’ assertion that Elk’s allegiance to the Ho-Chunk Nation placed him outside the jurisdiction of the United States. Gray reasoned that Elk could not independently renounce his tribal allegiance or membership, which distinguished Native Americans from immigrants, who could voluntarily abandon prior citizenship and undergo naturalization. (36) According to the Court’s ruling, Native Americans were bound by birth to their tribal nations and could only acquire American citizenship through explicit acts of Congress.

IV. The Contemporary Application and Contradictions of Elk v. Wilkins

Elk established a precedent that Native Americans were not American citizens and could not obtain citizenship through birthright under the Fourteenth Amendment. However, even when Native Americans were granted citizenship, they were not guaranteed equal treatment. Many states continued to deny Native Americans the right to vote, own property, or access public services. (37) For example, in Virginia, Native Americans were classified as “legally Black” to justify the denial of rights under segregationist Jim Crow Laws. (38) Only with the passage of the Civil Rights Act of 1964 did Native Americans gain complete legal protection and civil liberties. Prior to the Act, Native Americans were subject to discrimination in public spaces and employment, restricted from voting in certain states, and often experienced cruel or unusual criminal punishments.  However, the Act changed this, as it protected Native Americans as a distinct racial group and prohibited discrimination against them. (39) Yet, Trump’s recent actions reflect a desire to undo this recent progress. For example, Trump has repeatedly reinstated names or laws that discredit Native Americans, such as reverting Indigenous Peoples’ Day to Columbus Day, vetoing the 2025 Miccosukee Reserved Area Amendments Act, and claiming race-based programs that support tribes are unfair. (40) By revoking Native American birthright citizenship, and therefore the constitutional protections that citizenship provides, Trump’s recent statements suggest an underlying desire to return Native Americans to a similar legal status of the Jim Crow era. Without citizenship or sovereignty, Native Americans would become a people without a nation or legal system, which would leave them susceptible to abuse.

As part of a broader legal battle on Native sovereignty, the Department of Justice has presented an extremely weak and contradictory argument. On one hand, tribal nations clearly possess legal sovereignty and the right to operate their own courts, which have been guaranteed by binding treaties, reinforced by federal legislation, and upheld by landmark Supreme Court decisions such as Worcester v. Georgia (1832), Sharp v. Murphy, McGirt v. Oklahoma, and many more. No credible legal foundation exists for dismantling tribal courts. The claim that Native Americans should not possess American citizenship has an even weaker legal framework, since the Indian Citizenship Act of 1924 explicitly granted citizenship to all Native Americans born in the United States. Articles I and II of the Constitution provide the powers granted to the legislative and executive branches, respectively. They provide in Article I, Section I that no executive order can overrule a federal statute. (41) Furthermore, the Justice Department and Trump administration have yet to cite a single statute or Supreme Court ruling from after 1924 to support its position, and much of what they have cited has been rendered obsolete by more recent legislation. (42) Ultimately, their intention is to reverse centuries of treaty obligations, legislation, and judicial precedent that would require dismantling an extensive legal framework embedded within the Constitution, federal statutes, and Supreme Court decisions.

V. Future Outlook

Today, Trump’s desires are unfolding. Currently, the U.S. Department of Justice is entrenched in a legal battle over Native American citizenship, with the frontline unfolding in a Seattle courtroom. (43) After President Trump signed Executive Order 14160, twenty-two different states, including Washington, filed lawsuits challenging its constitutionality. (44) In response, the Justice Department has revived Elk v. Wilkins, regurgitating its arguments to claim that Native Americans are not entitled to birthright citizenship. (45) Citing the Fourteenth Amendment’s “Indians not taxed,” the DOJ is arguing that this phrase reflects a broader historical exclusion of Native peoples from citizenship and that through this clause, Native Americans do not have a right to birthright citizenship today. (46) However, the DOJ’s contemporary interpretation is legally incorrect, as the Supreme Court has since interpreted this constitutional clause differently in landmark cases such as McGirt v. Oklahoma. More troublingly, the Justice Department is leveraging this argument to challenge the very principle of birthright citizenship for other groups. Yet, their case lacks legal foundation. In the decades following Elk v. Wilkins, both Congress and the Supreme Court have repeatedly reaffirmed Native citizenship and tribal sovereignty through legislation and precedent. 

With court battles intensifying and public dissent toward the executive order rising, the Trump administration has pursued new strategies to erode Native American sovereignty and citizenship. Among the most alarming is a proposed $911 million cut to tribal programs nationwide that targets essential services such as education, affordable housing, welfare programs, law enforcement, disaster relief, and even access to clean drinking water. (47) These cuts would devastate tribal infrastructure and deepen the already massive disparities between Native American communities and the rest of the country. In addition to reductions in funding, the administration appears to be preemptively enforcing a court ruling on the disputed birthright citizenship policy. Immigration and Customs Enforcement (ICE) has increased its presence in and around Native communities, particularly within the Navajo Nation. (48) Tribal members are now being advised by tribal leaders to carry passports, birth certificates, and other federally mandated documents to avoid potential detention. The number of reports of harassment and unlawful detainment by federal agents – often without reasonable suspicion of a crime – is increasing. (49) The growing federal pressure and looming legal uncertainty place Native Americans at significant risk of losing their sovereignty and recognition as American citizens. 

Many tribes have expressed apprehension regarding the Supreme Court’s current composition, as several justices have shown interest in revisiting precedent in cases involving tribal sovereignty, jurisdiction, and the scope of federal authority. So far, the Court has ruled against Native American tribes in several recent cases about tribal sovereignty and Native rights, such as Oklahoma v. Castro-Huerta and Arizona v. Navajo Nation (2023). (50) However, there is hope: despite having been appointed by President Trump, conservative Justice Neil Gorsuch often joins the Court’s three liberal justices in support of Native American rights. He has remained a faithful ally to Native American tribes, consistently ruling in favor of Native American tribal sovereignty and rights – which indicates that bipartisan cooperation is possible to ensure that this group’s rights are protected. (51)

VI. Conclusion

Through the Trump administration’s attacks on both Native sovereignty and citizenship, Trump and his allies are attempting to leave Native Americans stateless. If successful, Native Americans would live within the territorial boundaries of the United States, but outside its citizenship and protections. To this day, many people remain confused by the Supreme Court’s ruling in McGirt v. Oklahoma. Born and still residing near Okmulgee, Oklahoma, my grandmother lives in a Muscogee Nation Elderly Housing unit. She has lived through and witnessed firsthand these ongoing attacks on our people. Despite federal rhetoric labeling the present day the “self-determination era,” that promise has proven hollow. (52) Native American sovereignty is only honored when it aligns with federal interests, which is rare. The intricate relationship between Native nations and the United States has been forged through immense bloodshed, inhumane treatment, betrayal, and the steady erosion of sovereignty through legal maneuvering. Today, the war waged by the Trump administration and politicians such as Oklahoma Governor Kevin Stitt is not fought on battlefields, but in long, expensive courtroom battles. Still, Native resolve has never wavered. After centuries of injustice, Native Americans, including myself, continue to demand the recognition, sovereignty, and guarantees long promised to us. Only time will tell whether those promises will be honored. While in the end, the jailer who assaulted the Lighthorse police officer was arrested, after tribal and state governments managed to cooperate, we must question how much longer the law will prevail. (53) For the Lighthorse police and Native American tribes across the country, time is of the essence as both suspects and sovereignty risk vanishing into the thin, chaotic air.

VII. Endnotes

(1) Lex Rodriguez, Tribal Law Expert Explains Jurisdiction Confusion Between Muscogee Lighthorse Police and Okmulgee Co. Jailer, News on 6 (Dec. 22, 2023). 

(2) McGirt v. State, No. F-1997-967 (Okla. Crim. App. 1998); see also Brief in Opposition at 6, McGirt, 140 S. Ct. 2452 (2020) (No. 18-9526).

(3) Murphy v. State, 2002 OK 24, 47 P.3d 876; cert. denied, 538 U.S. 985 (2003).

(4) Brief for Respondent at 27–29, Carpenter v. Murphy, 586 U.S. 1046 (No. 17-1107) (2018).

(5) 18 U.S.C. § 1151.

(6) Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), aff’d sub nom. Sharp v. Murphy, 591 U.S. 977 (2020) (per curiam).

(7) Murphy, 591 U.S.

(8) Treaty with the Creeks, U.S.-Creek Nation, 1866, 14 Stat. 785.

(9) Oklahoma Enabling Act, ch. 3335, 34 Stat. 267 (1906).

(10) Id.

(11) Major Crimes Act, ch. 341, § 9, 23 Stat. 385 (1885).

(12) Id.  18 U.S.C. § 1151.

(13) Id. see  Oklahoma Enabling Act, ch. 3335, 34 Stat. 267 (1906).

(14) Id. see Treaty with the Creeks.

(15) Id. see McGirt, 591 U.S. at 940.

(16) Id. see at 928.

(17) Id. 

(18) FI015 Entry: Five Tribes, Encyclopedia of Oklahoma History and Culture, Oklahoma Historical Society. 

(19) Press Release, U.S. Attorney’s Office for the Eastern District of Oklahoma, Jimcy McGirt Pleads Guilty to Sex Offender Registry Violation (June 24, 2025). 

(20) Nolan Clay, Trump Administration Asks Supreme Court to Side with Oklahoma in Dispute Involving Muscogee (Creek) Nation, The Oklahoman (Aug 5, 2018). 

(21) McGirt, 591 U.S.

(22) Levi Rickert, Trump Administration Rolls Back Executive Order on Tribal Sovereignty and Self-Governance, Native News Online (Mar. 2025).

(23) ACLU, Trump On Immigration: Tearing Apart Immigrant Families, Communities, and the Fabric of Our Nation 1–2 (2024).

(24) United States v. Wong Kim Ark, 169 U.S. 649 (1898).

(25) BBC News, Trump has vowed to end birthright citizenship, Can he do it?, (May 2025) .

(26) U.S. Constitution Amendment. XIV, § 1.

(27) Trump v. Washington, No. 25-364 (9th Circuit filed 2025).

(28) Civil Rights Act of 1866, ch. 31, 14 Stat. 27.

(29) Id.; U.S. Constitution Amendment. XIV, § 1.

(30) Id. Trump v. Washington, No. 25-364 (9th Circuit filed 2025).

(31) Elk v. Wilkins, 112 U.S. 94 (1884).

(32) Library of Congress, “19th Century Perceptions,” Immigration and Relocation in U.S. History, Native American. 

(33) Dred Scott v. Sandford, 60 U.S. 404 (1856).

(34)  Id.; Elk, 112 U.S. at 94.

(35) Bethany Berger, Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark, 37 Cardozo L. R. 1185 (2016).

(36) Id.; Elk, 112 U.S. at 94.

(37) Id. see Berger at 1231–32.

(38) Laura J. Feller, Being Indigenous in Jim Crow Virginia (University of Oklahoma Press 2022). 

(39) Civil Rights Act of 1964, Pub. L. No. 88‑352, 78 Stat. 241.

(40) Dan Diamond, Trump Challenges Native Americans’ Historical Standing, Politico (April 22, 2018). 

(41) U.S. Const. art. I, § 1.

(42) Hailey Hill, Coeur d’Alene Tribe Rejects Justice Department’s Use of 1884 Case in Birthright Citizenship Debate, KREM.com (Jan. 2025), KREM2 News.

(43) Id. see Washington v. Trump, 145 F.4th 1013 (9th Cir. 2025).

(44) Charlie Savage, Judge Blocks Birthright Citizenship, N.Y. Times (January 23, 2025). 

(45) Washington v. Trump, 145 F.4th. at 1032.

(46) “Excluding Indians”: Trump admin questions Native Americans’ birthright citizenship in court, Yahoo News.

(47) Chez Oxendine, Trump Budget Proposes Deep Cuts to Native American Programs, Tribal Bus. News (May 2025).

(48) Stephanie Cram, Trump’s Attempt to Overturn Birthright Citizenship Uses Century-Old Native American Case, CBC News (Jan. 2025). 

(49) Andrew Hay, Native Americans Say Tribal Members Harassed by Immigration Agents, Reuters (Jan. 2025).

(50) Arizona v. Navajo Nation, 599 U.S. 555 (2023).

(51) Does It Matter That Neil Gorsuch Is Committed to Native American Rights?, The New Yorker. 

(52) U.S. Department of the Interior, Bureau of Indian Affairs-Great Plains Region, Self-Determination. 

(53)  Id. Lex Rodriguez, Tribal Law Expert Explains Jurisdiction Confusion Between Muscogee Lighthorse Police And Okmulgee Co. Jailer, News on 6 (Dec. 2023).