Solicitor General Sparks Alarm After Telling Supreme Court He's 'Not Sure' If Native Americans Are Birthright Citizens

The relationship between Indigenous American nations and the colonizers and later settlers who arrived and established the United States is complicated.

Indigenous peoples were integral parts of the survival and success of early colonizers. The Haudenosaunee Confederacy offered a blueprint for the United States Constitution and the structure of the federal government including the three independent branches offering checks and balances, ideally.

Indigenous Americans have served in every war that the United States has engaged in since the Revolutionary War.

People are now familiar with the U.S. Marine Corps' utilization of Navajo Code Talkers during WWII, but the military relied on Indigenous language speakers from over 30 tribes to transmit secret messages during WWI and WWII, including the Lakȟóta, Choctaw, Tsalagi, Ho-Chunk, Comanche, Assiniboine, Oneida, Ojibwe, Hopi, Kiowa, Meskwaki, Kanienʼkehá꞉ka, Muskogee, Pawnee, Sac and Fox, Seminole, and Tlingit.

Indigenous peoples have the highest rate of military service of any race or ethnicity.

Most Americans probably assume that Indigenous Americans, having already been in the United States when the country was founded, were automatically citizens. But they were actually deliberately excluded more than once.

The Declaration of Independence signed in 1776 stated the inalienable rights listed would not apply to the "merciless Indian Savages." The 14th amendment, approved 110 years later in 1886, which established birthright citizenship again excluded any Indigenous peoples who had not fully assimilated.

It wasn't until the Indian Citizenship Act of 1924 that Indigenous Americans were first offered the option to maintain their tribal identity and be citizens with the right to vote. Despite the law, many states enacted discriminatory laws to prevent Native Americans from voting with some not being repealed until the 1960s.

So there was a good reason Supreme Court Justice Neil Gorsuch asked the representative of MAGA Republican President Donald Trump, U.S. Solicitor General John Sauer, in the case challenging Trump’s 2025 executive order aimed at ending birthright citizenship about the citizenship of Indigenous Americans.

Trump's new version of birthright citizenship would apply only to those with “lawful domicile,” further defined as a lawful permanent residence within the U.S. "with intent to remain" according to Sauer. The Trump administration argued his executive order would return birthright citizenship to the original intent of the 14th amendment—which specifically excluded Indigenous Americans if they maintained their tribal affiliations.

Gorsuch asked:

"Do you think Native Americans today are birthright citizens under your test?"

Sauer responded:

“Uhh, I think so? I mean, obviously they’re granted citizenship by statute..."

You can see the exchange here:

Gorsuch interrupted, saying:

"Put aside the statute. Do you think they’re birthright citizens?”

After some back and forth, Gorsuch asked:

"Your test is the domicile of the parents. And that would be the test you’d have us apply today, right? Are tribal [children], born today, birthright citizens?"

Sauer responded:

"Uhhh, I think so? On our test, yeah. I’m not sure. I’d have to think that through. But, but—that’s my reaction."

People were appalled at Sauer's failure to properly research his own argument.

@HadleySheley/X

‪@artcandee/Bluesky

‪@fernandez.house.gov‬/Bluesky

@quizgirl06/X

Trump has had an acrimonious view of Indigenous Americans going back to the 1990s.

Tribal Nations and their citizens are certain if given any opportunity to strip them of their rights, Trump would do so based on his well-documented history of petty revenge.