When Robert E. Lee went to negotiate his terms of surrender at the Appomattox Courthouse on April 9, 1865, he stopped at the sight of a brown man amongst the Union generals. Everyone held their breath waiting for Lee’s response. The Confederate general extended a hand and said, “I am glad to see one real American here,” to Ely S. Parker, Grant’s Native American military secretary. Parker replied, “We are all Americans.” Although General Lee recognized Parker as a real American, the law did not. Despite being the most famous Indian assimilated in white society at the time, before the Civil War, Parker was unable to become a U.S. citizen because he belonged to the Tonawanda Seneca tribe. Twenty years after the ratification of the Reconstruction amendments, Elk reveals how post-Reconstruction America defined citizenship and forced people to reckon with what it meant to be an American.^[1]

Elk v. Wilkins was a landmark Supreme Court decision that ruled the Constitution did not confer birthright citizenship to Indians with no tribal affiliation. On April 6, 1880, John Elk attempted to vote in an election for city council members in the City of Omaha, Nebraska. Charles Wilkins was the registrar in the Fifth Ward of the city, responsible for registering the names of all people in his ward who were entitled to vote. Wilkins refused Elk because, as an Indian, he could not be a U.S. citizen. Elk filed a petition nine days later in the U.S. Circuit Court in the District of Nebraska, suing Wilkins for $6,000 in damages for violating his Fourteenth and Fifteenth Amendment rights.^[2]

A fundamental case for understanding the history of birthright citizenship in America, Elk v. Wilkins offers a snapshot in time on how lawyers and judges understood the intended scope and workability of the Fourteenth Amendment. In the majority opinion, Justice Gray argues that the Citizenship Clause was never intended to apply to Native Americans. Yet, analyzing the Congressional debates on the 1866 Civil Rights Act reveals how the drafters of the Fourteenth Amendment understood its language. Justice Gray defined citizenship as political community, borrowing Chief Justice Taney’s historical argument in the infamous Dred Scott v. Sanford. While Justice Gray’s understanding of citizenship is rooted in racism and historical inaccuracies, he does aptly problematize the functionality of Indian birthright citizenship. A distinct act of naturalization is required if an Indian born into a tribe wishes to become an American citizen— a definitive act missing with birthright citizenship.

1. In the Wake of Standing Bear v. Crook

Elk was represented by A.J. Poppleton and John L. Webster, two lawyers from Nebraska with a history of involvement in  Indian rights cases. One year earlier, they argued and won Standing Bear v. Crook, the first civil rights victory for Indians in federal court. Standing Bear serves as an important context to understand the motives of John Elk’s legal team. Standing Bear was a Ponca chief who, with twenty-nine other Ponca, left Oklahoma Indian Territory to join his Omaha relatives in Nebraska. Upon arrival, General George Crook ordered federal troops to arrest the Ponca and detain them in the city of Omaha until they were sent back to Indian Territory.

In 1879, Standing Bear sued for a writ of habeas corpus in the U.S. District Court for the District of Nebraska, represented by Poppleton and Webster. The lawyers argued that Indians have a right to leave their tribe. They centered their case on assimilation, saying it was wrong to deny an Indian from entering civilized society who so wished. The assimilation rhetoric was powerful in the Indian reform movement, largely because of Ely Parker.

Ely Parker, one of the most famous Native Americans to advocate for citizenship rights, was a strong presence in the minds of post-Civil War Americans. Acting as General Ulysses S. Grant’s military secretary, Ely Parker wrote the terms for Confederate surrender at Appomattox, Virginia, on April 9, 1865. After the Civil War, Parker earned citizenship for his military service and married a high society white woman from Washington. In the article “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark,” historian Bethany Berger writes that Parker’s story “illustrates that for Indians with ‘a high veneration’ for United States laws and institutions, doors were open that were often closed to people of color.”^[3]

Poppleton and Webster wished to conjure the image of an assimilated Indian in Standing Bear v. Crook to appeal to white people’s previous acceptance of Ely Parker. The lawyers argued that Standing Bear and the other Ponca members took steps toward civilization, such as learning how to farm. Judge Elmer Scipio Dundy of the U.S. Nebraska District Court ruled that an “individual Indian possesses the clear and God-given right to withdraw from his tribe and forever live away from it.” However, the military still could remove people from Indian Territory.^[4] While General Crook could not force Standing Bear to return to the reservation in Oklahoma Indian Territory, he could not remain on Omaha territory either. He ultimately established an Indian territory in Nebraska. Standing Bear was the first win for Indian civil rights in the federal courts. Poppleton and Webster garnered a great deal of support for the Indian reform movement, particularly among former abolitionists who saw it as a new cause.^[5] While Standing Bear did not involve Indian citizenship, Webster alluded to the argument he would make in Elk in his closing statement— that an Indian becomes a citizen when they renounce tribal allegiance. Desiring to continue the crusade for Indian civil rights, Poppleton and Webster saw the question of citizenship as their next step. With the legal argument developed, all Poppleton and Webster needed was a case to bring before a court.^[6]

The opportunity presented itself in the form of an indigenous man named John Elk. The Indian reform lawyers likely asked John Elk to try to vote, knowing he would be denied, so they would have standing to sue in court. Poppleton and Webster filed the petition only nine days after Elk attempted to register to vote. On the petition, Elk signed his name with an “X”, indicating he was illiterate. Bethany Berger argues that the  quick turnaround and mark of illiteracy suggest that Elk v. Wilkins was a test case.^[7]

2. Who Was John Elk?

With the likelihood that Poppleton and Webster used Elk as a means to pioneer the Indian reform movement, John Elk’s story has been pushed to the background of scholarly discourse. Likely because the lawyers saw the success of marketing their plaintiff as a Parker-type civilized Indian, Poppleton and Webster presented Elk as an Indian longing for civilized life. Nowhere in any legal documents is it stated which tribe Elk belonged to, and his decision to leave his tribe is also never discussed throughout the trial. This narrative overlooks the Indian-federal tensions that colored Elk’s life and neglects to explore his possible motivations for becoming an American citizen, which raises future questions about the relationship between allegiance and citizenship.

Very little is known about John Elk. According to the 1880 Nebraska census, Elk was thirty-five years old and lived in a hut along the Mississippi River.^[8] The records indicate Elk’s race as Indian, but do not list his tribe. However, newspaper reports at the time identify him as Winnebago.^[9] The significance of Elk’s tribal affiliation is greatly overlooked. The long history of federal removal policy reveals Elk’s political relationship with the federal government and how he understood his national identity, shedding light on possible motivations for his fight for birthright citizenship.

            Winnebago ancestral land spans across Wisconsin, Illinois, and Iowa.^[10] In 1832, General Winifield Scott pressured the Winnebago to sign a treaty which took half of their Wisconsin land in exchange for neutral ground in Iowa.^[11] The Iowa territory was far from neutral, as the warring Sauk and Fox Tribes relentlessly attacked the Winnebago. Five years later, federal negotiators were instructed to swindle Winnebago chiefs into ceding all of their Wisconsin territory. The federal government held nineteen chiefs hostage in Washington D.C., refusing to let them leave without agreeing to abandon Wisconsin entirely. The treaty negotiators deceived the chiefs into believing the treaty gave the Winnebago eight years to relocate, when in fact it gave them only eight months.^[12]

            When Iowa entered the Union in 1846, the Winnebago had to move again. It is suspected John Elk was born in Iowa in 1845. Over the next twenty years, the Winnebago moved around Minnesota and the Dakotas, consistently living in hostile territory with infertile farming lands. Despite their distrustful relationship with the federal government, several Winnebago men enlisted in the Union army during the Civil War.^[13] However, their pledge of loyalty to the United States did nothing to deter the government’s greed for more land. In the winter of 1862, 552 Winnebago died on their forced march from Minnesota to South Dakota. The decimated tribe was at its breaking point. The Winnebago abandoned their federal Indian territory in South Dakota and dispersed across the Midwest. 1,200 ultimately settled in Nebraska, where the federal government accepted their self-relocation and established a reservation in 1865.^[14]

            In the 1870s, the goal of federal Indian policy changed from eradication to assimilation. Indian territory was divided and allocated into individual plots. Previously seen in Standing Bear v. Crook, white people associated assimilation with modern farming techniques. The hope with allotment was that Indians would abandon their cultural practices by owning private property and learning how to farm. Many Winnebago sold their plots to white settlers and became share-croppers, like John Elk.^[15] While we do not know how John Elk ended up in Omaha in 1880, nearly one hundred miles south of the Winnebago reservation in Nebraska, we can reasonably assume his life was characterized by constant removal and distrust in the federal government.

This historical context challenges the belief that Elk severed relations with his tribe to assimilate. Some legal scholars argue that Elk disaffiliated from his tribe to join white society, a narrative most likely originating from Elk’s lawyers.^[16] It is possible Elk truly desired assimilation and pledged allegiance to the U.S. But, in light of the history of the Winnebago tribe, Berger advocates for a different interpretation. She argues that “he probably sought citizenship less from a desire for full assimilation than from a plea to escape the federal campaign whose costs he already knew far too well.”^[17] Elk’s life consisted of the federal government taking his land, killing his people with war and disease, and breaking false promises — not things which would make anyone particularly patriotic.

3. Facts of Elk v. Wilkins

On April 14, 1880, Elk sued the U.S. Circuit Court in the District of Nebraska, arguing that Wilkins had violated his Fourteenth and Fifteenth Amendment Rights by denying him the right to vote. The key figures in this case were nearly identical to those of Standing Bear v. Crook. A.J. Poppleton and John L. Webster represented the plaintiff; U.S. District Attorney Lambertson (who represented General Crook) represented Charles Wilkins; and Judge Elmer Scipio Dundy heard the case. A new character, Judge George Washington McCrary of the Eight Circuit, joined him.

            While Elk argued in his petition that his Fifteenth Amendment right was violated by obstructing his right to vote, the central issue of the case was one of citizenship, not suffrage. On who had the right to vote, the Constitution of the State of Nebraska stated in Article VII, Section 1:

Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward for the term provided by law, shall be an elector. First, citizens of the United States. Second, persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization at least thirty days prior to an election.^[18]

Elk had resided in Nebraska for at least six months before he tried to register to vote. Elk believed he belonged to the first class of voters— American citizens. Elk argued he was a birthright citizen, as defined by the Citizenship Clause of the Fourteenth Amendment. Wilkins, however, viewed Indians as persons of foreign birth, so Elk did not meet the qualifications to vote because he had not declared his intention to be naturalized at least thirty days before the election.

The question before the Judges thus was: Is an Indian born a member of a tribe within the United States, who has since severed all tribal relations and subjects himself to the jurisdiction of the United States, a birthright citizen as defined by the Citizenship Clause of the Fourteenth Amendment? The Citizenship Clause, in Section 1 of the Fourteenth Amendment, grants birthright citizenship to “​​All persons born or naturalized in the United States, and subject to the jurisdiction thereof.”^[19] The ability of Indians to become U.S. citizens was not questioned— all agreed that Indians could be naturalized citizens or become citizens through treaties with the federal government. The core issue was birthright citizenship, and whether Indians like Elk are U.S. citizens without an act of naturalization.

            Even though it took Wilkins’ legal team seven months to reply to Elk’s petition, their brief was less than 100 words long. Lambertson argued that Elk did not have the standing to sue and the court lacked jurisdiction. In January of 1881, District Judge Dundy and Circuit Judge McCrary heard the case. In May, they ruled that John Elk was not a birthright citizen under the Fourteenth Amendment, despite severing tribal ties. Strangely, they sustained Wilkins’ challenge without producing a written opinion and certified a writ of error to the Supreme Court.^[20]

The peculiar decision not to write an opinion and immediately appeal to the Supreme Court is likely because Judge Dundy and Judge McCrary disagreed on the ruling—a not-unheard-of occurrence, but still noteworthy. Judge Dundy was sympathetic to the Indian cause prior in Standing Bear, but Judge McCrary was unlikely to side with Elk. McCrary was Secretary of War for President Grant from 1877 to 1879, during which he witnessed Grant’s peace policy fail to prevent violent outbreaks amongst whites and Indians.^[21] When a district and circuit judge disagree on a ruling, the opinion of the circuit judge overrides. Therefore, it is most likely that Judge Dundy sided with Elk and Judge McCrary with Wilkins, with their ranks explaining the decision in favor of Wilkins.

4. Legal Argument of Elk

When circuit and district judges disagreed, the case was appealed to the Supreme Court.^[22] Elk and Wilkins’ lawyers presented oral arguments to the Supreme Court on April 28, 1884.^[23] Poppleton and Webster centered their arguments around Reconstruction ideals of liberty and equality. Elk’s brief stated the Fourteenth Amendment was “planted on motives broad enough and grand enough to reach all classes and all races and all colors.”^[24] First, they referred to the language of the 1866 Civil Rights Act, debated in Congress at the same time as the Fourteenth Amendment. An excerpt from Section One of the Act reads:

All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, …shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.^[25]

            The first line of the 1866 Civil Rights Act references Indians not taxed, stating that Indians not taxed who are born in the United States are not citizens of the United States. Poppleton and Webster argued that this exemption indicates that Indians taxed who are born in the United States are citizens. If an Indian severs ties with their tribe, they are no longer immune to state taxation and become citizens. Since Elk left the Winnebago and moved to Omaha, which was not Indian territory, he was subject to taxation. While there is no record of Elk paying state or federal taxes, Poppleton and Webster argued that the ability to be taxed is what matters.^[26]

Further, the choice to remove this exemption in the Fourteenth Amendment indicated that the thirty-ninth Congress wished to broaden birthright citizenship and “ensure that citizenship would not be dependent on taxation.”^[27] Elk’s lawyers concluded with cries for Indian reform, demanding that the “time has gone by to shut the doors of justice against the Indian race on the plea that they are savages.”^[28]

5. Legal Argument for Wilkins

            In the brief for Wilkins, U.S. Attorney Lambertson did not focus on the historical intentions behind the 1866 Civil Rights Act and Fourteenth Amendment, but on matters of jurisdiction.^[29] He argued that the key phrase in the Citizenship Clause is “subject to the jurisdiction thereof.”^[30] Lambertson understood being subject to the jurisdiction and laws of the United States as a form of pledging allegiance to America. Since tribes are distinct political communities, Indians therefore owe immediate allegiance to their tribe, not the United States.^[31]

 Lambertson did not suggest that infants are capable of being loyal to any nation. However, he drew the parallel between the citizenship status of Indians and children of foreigners to illustrate his point. If the child of a foreign minister were born in the United States, she would not be considered a birthright citizen, despite being born within the geographical boundaries of the United States, because she owes allegiance to another country. The same goes for Indians— despite being born on U.S. soil, they are not birthright citizens because they are not born subject to American jurisdiction.^[32]

6. Justice Gray: Citizenship Clause Was Not Intended for Indians

On November 3, 1884, the Supreme Court ruled in a 7-2 decision that John Elk was not a citizen by birthright, as guaranteed by the Constitution. This meant that an Indian born a member of a tribe within the United States, who severed his tribal affiliation and resided amongst white citizens of a state, could not claim birthright citizenship under the Citizenship Clause of the Fourteenth Amendment.^[33] Justice Horace Gray delivered the majority opinion, joined by Justices Morrison Waite, Samuel F. Miller, Stephen J. Field, Joseph P. Bradley, Stanley Mathews, and Samuel Blatchford. Justice John Harlan dissented, joined by Justice William Woods.

            Justice Gray ruled that an Indian can not become a citizen just by leaving his tribe; it required an explicit act of naturalization as evidence that the Indian pledged allegiance to America. To begin, Justice Gray turned to the history and language of the Fourteenth Amendment to determine whether Indians were meant to be included in the Citizenship Clause. Justice Gray wrote:

The main object of the opening sentence of the Fourteenth Amendment was to settle the question…as to the citizenship of freed negroes, and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside.^[34]

            Justice Gray believed that the primary purpose of the Citizenship Clause was to overturn Dred Scott and grant citizenship to newly freed slaves after the Civil War.^[35] He did not attach broader republican ideals to the Fourteenth Amendment, as Poppleton and Webster advocated for in their brief for Elk. Justice Gray also referenced the 1866 Civil Rights Act, and argued the exclusion of “Indians not taxed” proves the thirty-ninth Congress had no intention of including Indians born into a tribe in the Citizenship Clause.^[36]

7. Congressional Debates on the 1866 Civil Rights Act and True Intention of the 14th Amendment

This assertion, however, is not true. The Congressional debates on the 1866 Civil Rights Act and Fourteenth Amendment reveal that Congress only intended to exempt Indians with active tribal relations. The chair of the Senate Judiciary Committee, Lyman Trumbull of Illinois, originally wrote the 1866 Civil Rights Act to confer citizenship to “all persons born in the United States and not subject to any foreign power.”^[37]

However, some senators feared this would include uncivilized Indians. George Rutherglen, in the chapter “The Origins of Arguments Over Affirmative Action,” in The Greatest and the Grandest Act: Civil Rights Act of 1866 From Reconstruction to Today, argues that the Senate ultimately added the exemption of Indians not taxed “as a gloss on those persons ‘subject to any foreign power’, since Indian tribes were regarded as separate sovereign entities.”^[38]

Indians subject to the jurisdiction of the United States, and not a foreign power, would not be included in this group. President Andrew Johnson’s veto message for the 1866 statute solidified this. In his message to the Senate on why he vetoed the bill, President Johnson wrote:

By the first section of the bill all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of these races born in the United States is by the bill made a citizen of the United States.^[39]

As President Johnson understood it, the bill would make “Indians subject to taxation” citizens of the United States by virtue of being born on American soil.^[40] The Senate overrode President Johnson’s veto and the Civil Rights Act became U.S. law. Indians born in the United States who were subject to taxation were then made birthright citizens by the 1866 Civil Rights Act.

The Congressional debates on the Citizenship Clause also reveal the intent to restrict citizenship for Indians who had not left their tribe. Senator Hendricks feared that the absence of the “Indians not taxed” exemption from the Citizenship Clause would confer citizenship on Indians who still belonged to a tribe. He said if “we can make him obey our laws,” then “he is subject to the jurisdiction of the United States,” and a birthright citizen by the Constitution.^[41]

Senator Howard, an ardent advocate for ratification, sympathized with Senator Hendricks: “I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me.”^[42] Senator Howard argued that Indians with tribal relations are not subject to the jurisdiction of the U.S. just by following American law. He stated:

The word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States… the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe although born within the limits of a State, is subject to this full and complete jurisdiction.^[43]

Senator Howard argued that an Indian who belongs to a tribe, despite being born in the U.S., is not subject to the jurisdiction of the United States. However, he never clarified whether an Indian who does not belong to a tribe would be considered, and if that meant he would be a citizen.

In his dissenting opinion, Justice Harlan also cited the Congressional debates. He quoted Senator Lyman Trumbull, the author of the 1866 Civil Rights Act, defending the Citizenship Clause to Senator Hendricks:

Does the Senator from Indiana want the wild roaming Indians, not taxed, not subject to our authority, to be citizens of the United States — persons that are not to be counted, in our government? If he does not, let him not object to this amendment that brings in even [only] the Indian when he shall have cast off his wild habits, and submitted to the laws of organized society and become a citizen.^[44]

Senator Trumbull reassured Senator Hendricks that the wild, uncivilized Indian would not be allowed to become a citizen. However, the small percentage of Indians who subject themselves to the jurisdiction of the United States by leaving their tribe would be citizens. The Fourteenth Amendment intended to exempt Indians with tribal relations from having birthright citizenship, meaning Justice Gray’s claim that the intent was to exempt all Indians born into a tribe lacks historical backing. 

8. Citizenship as Political Community and Dred Scott v. Sandford

So, what does this mean for Indians without tribal relations, such as John Elk? Justice Gray argued that even Indians who severed all tribal affiliation were not birthright citizens because they never officially pledged allegiance to the United States. Justice Gray argued that if someone was not a part of the people of the United States, then an explicit act of pledging allegiance to the U.S. was necessary for citizenship. As independent political communities, Justice Gray argued that Indians “owed immediate allegiance to their several tribes, and were not part of the people of the United States,” so an Indian severing ties with his tribe was not considered enough for citizenship.^[45]

Justice Gray drew on the understanding of citizenship as belonging to a political community from the Supreme Court case that the Fourteenth Amendment was meant to overrule—Dred Scott v. Sandford. The language “people of the United States” originates from Chief Justice Roger Taney in his 1856 ruling that former slaves do not have standing to sue in federal courts because they are not U.S. citizens. Chief Justice Roger Taney held that black people, whether previously enslaved or born free, could never become American citizens. Chief Justice Taney understood “citizen” as synonymous with “people of the United States.” On the question of ‘people of the United States’ including people of African descent, Chief Justice Taney wrote:

We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.^[46]

            Chief Justice Taney referred to two provisions in the Constitution which treated blacks as a different group, revealing the founders never intended them to be a part of the American body politic. Article I, Section 9, Clause 1 denies Congress the power to regulate the importation of slaves until 1808; and the Fugitive Slave Clause, found in Article IV, Section II, Clause 3, gave slaveholders the right to reclaim their runaway slaves from another state. Chief Justice Taney concluded that the treatment of black slaves as another class of people proves “these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen.”^[47]

Justice Gray similarly cited the two clauses from Article I which classified Indians as separate from the American people. The phrase “Indians not taxed” appears in Article I, Section 2, Clause 3, which excludes Indians not taxed from being considered in state populations used for representation and direct taxes (followed immediately by the infamous Three-Fifths Clause). Article I Section 8, Clause 3 delegates to Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”^[48] The exclusion of Indians not taxed from state populations reveal the founders did not consider them in the body politic, and the Commerce Clause treats Indian nations as foreign nations.

            Unlike black people in Dred Scott, Justice Gray did not argue Indians born into a tribe can never become citizens, but that to become a citizen requires a formal act of naturalization. He quotes Chief Justice Taney in Dred Scott, who compared Indians and blacks to illustrate that like foreigners, Indians can become citizens, but blacks cannot:

They [the Indian tribes] may without a doubt, like the subjects of any foreign government, be naturalized by the authority of Congress and become citizens of the United States, and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an immigrant from any other foreign people.^[49]

9. The Thirteenth Amendment and Acts of Naturalization

Although not in Justice Harlan’s dissenting opinion, there is an argument related to emancipation to be made here. Black people were not a part of the political community of the United States before being freed by the Thirteenth Amendment, and they became birthright citizens without an official act of naturalization or explicitly pledging their allegiance to the United States. Building on this precedent in oral arguments, Elk’s lawyers claimed that an Indian’s decision to switch allegiance from their tribe to the United States does not need to be an official act of naturalization. Invoking ideals of Reconstruction, the brief similaraily drew parallels between the citizenship status of Indians and recently emancipated slaves: “As emancipation was the removal of the incapacity of slavery, so expatriation… would be the removal of the tribal incapacity, and as the Indian as well as the negro, was born in the United States, they become citizens without naturalization.”^[50]

Yet, the two cases are not that similar. The ratification of the Thirteenth Amendment was an official act of naturalization by the government.Rebecca Zietlow, Professor of Law and Values at the University of Toledo College of Law, argues that many senators in the thirty-ninth Congress held the “view that the Thirteenth Amendment granted citizenship along with freedom.’” With Indians who sever relations to their tribe, there is not a definitive moment of naturalization like there is with emancipation. Elk thought he could switch allegiance from the Winnebago to the United States without producing documentation of doing so. In oral argument, U.S. Attorney Lambertson raised logistical questions about the implications of this ambiguity. Lambertson argued that in practice, how were registrars supposed to know if Indian voters had changed their allegiance from their tribe to the United States?^[51] Berger further unravels the complexities of defining citizenship in this way, questioning how to quantify allegiance: “Would the test require an Indian to farm? To own land individually? To otherwise demonstrate the habits of civilization?… And if any of these were necessary, how long ago would he need to have done it?”^[52] Elk’s brief failed to answer any of these questions. Their only evidence was that Elk mentally pledged allegiance to the United States.

Taking John Elk’s life and history of the Winnebago people into account, had he ever mentally pledged allegiance to the United States? It is impossible to know for certain, but it is difficult to believe that Elk devoted himself to a country responsible for a life filled with removal, disease, and death. After 1884, John Elk disappeared from all legal records; it is unknown what became of him.^[53] Justice Harlan, however, touched upon what Elk v. Wilkins meant for the future of Indians in America:

There is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are not yet members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.^[54]

10. The Future of Indian Citizenship

Indians would remain a rejected class until 1924, when the Indian Citizenship Act finally granted citizenship to all Indians born in the United States. Beginning in 1887, the General Allotment Act, more commonly known as the Dawes Act, divided Indian territory into individual plots to force Indians to farm with the goal of assimilating them into American society. In exchange for the involuntary allotment of land, the federal government granted citizenship to all Indians who agreed to the conditions of the statute.^[55]

Citizenship would not be secured for all Indians until the passage of the Indian Citizenship Act of 1924. The statute conferred citizenship for “all non-citizen Indians born within the territorial limits of the United States.” Scott Bomboy, editor in chief of the National Constitution Center, estimates that at the time of the Indian Citizenship Act, 125,000 of the estimated 300,000 Native Americans were not citizens.^[56]

11. Jus Soli and United States v. Wong Kim Ark

While Elk v. Wilkins was a step backward for Indian citizenship, it did set the stage for  future Supreme Court decisions that broadened the interpretation of the Citizenship Clause. Only fourteen years later, the Court ruled in United States v. Wong Kim Ark that a man born in San Francisco to Chinese citizens was a citizen of the United States. The Court established the principle of jus soli- “right of soil” in Latin—which means that citizenship is determined by where you are born, and not the citizenship of your parents. Wong Kim Ark moved away from the established precedent of jus sanguinis— “right of blood” in Latin— which means the parents determine citizenship. It seems peculiar that the Court would greatly broaden the meaning of birthright citizenship so soon after restricting it for Native Americans. However, Elk v. Wilkins forced the Court to define “subject to the jurisdiction thereof” as pledging allegiance to the U.S.— and Wong Kim Ark fell within that definition.^[57]

12. Elk v. Wilkins and the Trump Administration

Efforts to challenge the understanding of birthright citizenship in the Fourteenth Amendment continue today. Most recently, President Trump and his administration have reinterpreted the Citizenship Clause to exclude children of undocumented parents from automatically becoming birthright citizens. To do so, they use Elk v. Wilkins toargue that, like members of tribes, undocumented children are not subject to the jurisdiction of the United States because they do not pledge allegiance to America.^[58] 

140 years later, it is disheartening to see a decision rooted in racism that prevented the “real Americans” from enjoying the privileges of citizenship come up again in American politics. Yet, using Elk v. Wilkins as a way to limit the scope of the Fourteenth Amendment is not a very convincing argument. First, Elk v. Wilkins is a peculiar case in that it applies to a very specific group of people— not even all Indians, but only Indians born in the U.S. who severed their relationships with their tribe. Arguing that undocumented children and this niche group share enough traits in common for Justice Gray’s legal reasoning to uphold.

Nonetheless, looking back at the history of citizenship in America, especially for subjugated and alienated classes of people, allows us to look into the future. As the story of Elk v. Wilkins illustrates, being an American citizen means more than merely holding  an American passport. There exists a larger ideal above the legal status, but Americans can’t seem to agree on how to define it.

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^[1] Mariam Touba, “‘We Are All Americans’: Ely S. Parker at Appomattox Court House” (2015). The New York Historical;  Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1206.

^[2] Elk v. Wilkins, 112 U.S. 96 (1884).

^[3] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1207;  Mariam Touba, “‘We Are All Americans’: Ely S. Parker at Appomattox Court House” (2015). The New York Historical;  Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1206.

^[4] United States v. Crook, 179 F. 391 (D. Neb. 1875), 695.

^[5] Standing Bear’s story was a big success in Boston in particular. Poppleton and Webster were able to work pro bono for Elk because Boston philanthropists covered court costs. One article says the payment was “by the friends of the Indians to establish the status of Indians as citizens,” while district attorney G.M. Lambertson called it “an instance of the overflowing love for the red man of philanthropists in Boston.” Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1214; “Appeals to the Law,” Daily Inter Ocean (Apr. 16, 1880); “Can ‘Lo’ Vote? The Arguments on the Question Before the U.S. Court,” Omaha Herald (Jan. 15, 1881).

^[6] “The Writ of Liberty,” Omaha Herald (May 3, 1879).

^[7] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1215.

^[8] U.S. Census Bureau, 10th Census 1880, Nebraska, Douglas County 34 (Supervisor’s Dist. No. 2, Enumeration Dist. No. 20).

^[9] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1215.

^[10] The name Winnebago is an Algonquin term given to the Ho-Chunk people by their neighbors, and descendants today prefer to be called the Ho-Chunk. However, following other Elk v. Wilkins scholars,  I use the term Winnebago because it is the name used in historical documents. See Footnote 224 in Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1215.

^[11] Lee Sultzman, “Winnebago History,” First Nations Index (last accessed May 12, 2025).

^[12] Nancy Lurie, “Winnebago” in Handbook of North American Indians (1978). Bruce G. Trigger ed., 696-698.

^[13] Nancy Lurie, “Winnebago” in Handbook of North American Indians (1978). Bruce G. Trigger ed., 700.

^[14] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1217.

^[15] Lurie cites the Commissioner of Indian Affairs in 1883 as saying the Winnebago’s “value as laborers is known to the people living near the reserve.” Nancy Lurie, “Winnebago” in Handbook of North American Indians (1978). Bruce G. Trigger ed., 700.

^[16] The belief John Elk left his tribe to join white society can be cited as recently as May 3, 2025. Von Wooding states that Elk “sought to assimilate into American society, pay taxes, and participate in civic life” in “Elk v. Wilkins, Supreme Court Ruling on Native American Citizenship,” (2025), Counsel Stack.

^[17] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1217.

^[18] Elk v. Wilkins, 112 U.S. 97 (1884).

^[19] U.S. Constitution, amend. 14, sec. 1.

^[20] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1233.

^[21] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1232.

^[22] Act of June 1, 1872, ch. 255, § 1, 17 Stat. 196.

^[23] Elk v. Wilkins, 112 U.S. 94 (1884).

^[24] “Brief for Plaintiff, Elk v. Wilkins,” 112 U.S. 94 (1884), 9.

^[25] The Civil Rights Act, U.S. Code 42 (1866) § 1981.

^[26] “Brief for Plaintiff, Elk v. Wilkins,” 112 U.S. 94 (1884), 12-13.

^[27] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1233.

^[28] “Brief for Plaintiff, Elk v. Wilkins,” 112 U.S. 94 (1884), 28.

^[29] “Brief and Argument of Defendant,” Elk v. Wilkins,” 112 U.S. 94 (1884), 3.

^[30] U.S. Constitution, amend. 14, sec. 1.

^[31] The treatment of tribes as sovereign nations began with Chief Justice John Marshall and the “Marshall Trilogy,”- three landmark cases in federal Indian law that established the right to self-government and the government’s responsibility to protect Indians. See “Marshall Trilogy,” University of Alaska Fairbanks, accessed January 24, 2025.

^[32] “Brief and Argument of Defendant,” Elk v. Wilkins,” 112 U.S. 94 (1884), 9.

^[33] Elk v. Wilkins, 112 U.S. 94 (1884).

^[34] Elk v. Wilkins, 112 U.S. 99 (1884).

^[35] Justice Gray cited the Slaughterhouse Cases for his narrow reading of the Fourteenth Amendment. Decided a decade prior, the Slaughterhouse Cases interpreted the Privileges and Immunities Clause to protect only rights listed in the Constitution. Jonathan Stahl, “The Slaughterhouse Cases: Interpreting the Reconstruction Amendments” (2015). National Constitution Center.

^[36] Elk v. Wilkins, 112 U.S. 103 (1884).

^[37] George Rutherglen, “The Origins of Arguments Over Affirmative Action.” In The Greatest and the Grandest Act: Civil Rights Act of 1866 From Reconstruction to Today, edited by Christian Samito, 213. Carbondale: Southern Illinois University Press, 2018.

^[38] George Rutherglen, “The Origins of Arguments Over Affirmative Action.” In The Greatest and the Grandest Act: Civil Rights Act of 1866 From Reconstruction to Today, edited by Christian Samito, 213. Carbondale: Southern Illinois University Press, 2018.

^[39] Andrew John, “Veto Message” (March 27, 1866). The American Presidency Project.

^[40] Andrew John, “Veto Message” (March 27, 1866). The American Presidency Project.

^[41] United States Congress, The Congressional Globe: Containing the Debates and Proceedings of the First Session of the Thirty-Ninth Congress, book, 1866; Washington D.C.., 2895.

^[42] United States Congress, The Congressional Globe: Containing the Debates and Proceedings of the First Session of the Thirty-Ninth Congress, book, 1866; Washington D.C.., 2895.

^[43] United States Congress, The Congressional Globe: Containing the Debates and Proceedings of the First Session of the Thirty-Ninth Congress, book, 1866; Washington D.C.., 2895.

^[44] Elk v. Wilkins, 112 U.S. 99 (1884).

^[45] Elk v. Wilkins, 112 U.S. 99 (1884).

^[46] Dred Scott v. Sandford, 60 U.S. 404 (1856).

^[47] U.S. Constitution, art. 1, sec. 9, cl. 1;  U.S. Constitution, art. 4, sec. 2, cl. 3; Dred Scott v. Sandford, 60 U.S. 411 (1856).

^[48] U.S. Constitution, art. 1, sec. 8, cl. 3.

^[49] Elk v. Wilkins, 112 U.S. 99 (1884); quoting Dred Scott v. Sandford, 60 U.S. 404 (1856).

^[50] “Brief for Plaintiff, Elk v. Wilkins,” 112 U.S. 94 (1884), 27.

^[51] Rebecca Zietlow, “The Other Citizenship Clause.” In The Greatest and the Grandest Act: Civil Rights Act of 1866 From Reconstruction to Today, edited by Christian Samito, 52. Carbondale: Southern Illinois University Press, 2018; “Brief and Argument of Defendant,” Elk v. Wilkins,” 112 U.S. 94 (1884), 10.

^[52] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1234.

^[53] Bethany Berger, “Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark” (2016). Cardozo Law Review Vol. 37, 1234.

^[54] Elk v. Wilkins, 112 U.S. 99 (1884).

^[55] Scott Bomboy, “On This Day: Supreme Court says tax-paying American Indians can’t vote” (2023). National Constitution Center.

^[56] Scott Bomboy, “On This Day: Supreme Court says tax-paying American Indians can’t vote” (2023). National Constitution Center.

^[57] United States v. Wong Kim Ark, 169 U.S. 649 (1898).

^[58] Elizabeth Stroud, “The Struggle for Native American Citizenship: From Elk v. Wilkins to the  Indian Citizenship Act” Iowa Journal of Gender, Race and Justice (2025).