Elk v. Wilkins
The Supreme Court ruled that a Native American man born into a tribe did not become a U.S. citizen under the Fourteenth Amendment simply by leaving his tribe and living among white residents of Nebraska, because he had never been naturalized by treaty or statute.
The decision meant Native Americans born into tribal nations could not claim citizenship, or the voting rights that came with it, unless Congress or a treaty specifically granted it to them, leaving their legal status entirely in the hands of the federal government.
“The plaintiff, not being a citizen of the United States under the Fourteenth Amendment of the Constitution, has been deprived of no right secured by the Fifteenth Amendment, and cannot maintain this action.”
The majority's conclusion that the plaintiff was never a citizen and so had no voting-rights claim.
How it got here: A federal circuit court in Nebraska dismissed Elk's suit against the voting registrar on demurrer, and he brought a writ of error to the Supreme Court.
The Case in Depth
What happened
John Elk was a Native American born within U.S. territory to parents who were members of an Indian tribe. He later left his tribe, moved to Omaha, Nebraska, and considered himself fully subject to U.S. authority. When he tried to register to vote in a city election, Omaha's registrar, Charles Wilkins, refused to register him because he was not considered a U.S. citizen.
The question before the Court
If a Native American man was born into a tribe but later left it and moved among white citizens, did that automatically make him a U.S. citizen entitled to vote?
The Court's answer
No — the Court ruled that John Elk did not become a U.S. citizen simply by leaving his tribe and living among the general population of Nebraska. The Fourteenth Amendment's citizenship clause requires that a person be "subject to the jurisdiction" of the United States at the moment of birth, meaning complete political allegiance, not the divided allegiance owed by a tribal member to a tribe. Because Elk was born into a tribe, he did not meet that test at birth, and his later, unilateral decision to leave the tribe could not create citizenship after the fact.
Citizenship could only come from birth under full U.S. jurisdiction or from formal naturalization by treaty or statute. Since no treaty or law had ever naturalized Elk, and the United States had never formally accepted any surrender on his part, he remained a non-citizen and had no Fifteenth Amendment right to vote that the city could have violated.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling barred Native Americans born into tribes from claiming automatic U.S. citizenship and voting rights no matter how fully they integrated into non-tribal society. It left their path to citizenship dependent entirely on treaties or acts of Congress, a status that persisted for Native people nationwide until later federal legislation intervened.
What changes now
The judgment against the plaintiff was affirmed, meaning he remained legally a non-citizen and could not vote. This is a final decision on the merits of his individual claim, not a temporary order. The ruling left the citizenship status of Native Americans generally dependent on future treaties or acts of Congress, since the Court expressly declined to resolve broader questions such as whether state action alone could ever confer citizenship on tribal members.
What this does not decide
The Court expressly did not decide whether a state's own actions could ever confer citizenship rights on Indians belonging to a tribe still recognized by the United States, noting that Nebraska had taken no such action here. It also did not address Indians who had never held tribal membership.
Concurrences and dissents
Dissent — Justice Harlan
“there is still in this country a despised and rejected class of persons, with no nationality whatever”Harlan's warning that the ruling left some Native Americans without any citizenship at all.
Justice Harlan, joined by Justice Woods, argued the majority's reading drained the Fourteenth Amendment of its force for Native Americans. He pointed to the 1866 Civil Rights Act's citizenship grant to all born in the U.S. except untaxed Indians, and to Senate debates showing lawmakers intended the amendment to cover Indians who left their tribes and came under full state and federal jurisdiction. He would have held Elk was a citizen once he abandoned tribal life and became a taxed resident of Nebraska.
How the Court got there
The legal reasoning, step by step
- The Court read the Fourteenth Amendment's phrase 'subject to the jurisdiction thereof' to mean complete, direct political allegiance to the United States at the moment of birth — not partial, occasional, or divided allegiance.
- Members of Indian tribes were treated as owing immediate allegiance to their tribes, which the Court described as alien, though dependent, political communities existing in a state of pupilage similar to a ward and guardian relationship, so children born into a tribe were not fully subject to U.S. jurisdiction at birth.
- Because the constitutional test looks to the moment of birth, a person's later voluntary decision to leave the tribe could not retroactively create birthright citizenship; only formal naturalization, by individual proceeding or by treaty, could confer it afterward.
- The Court found this reading reinforced by the Fourteenth Amendment's own apportionment clause, which excludes 'Indians not taxed' from population counts, and by Congress's continued practice of passing individual and tribal naturalization treaties and statutes after the amendment was ratified — actions that would have been unnecessary if birth into a tribe followed by leaving it were already enough.
- Since no treaty or statute had ever naturalized this individual, and the United States had never accepted any personal act of surrender on his part, he had never acquired citizenship despite residing among the general population of Nebraska.
Doctrinal impact
Cases affected by this decision
Distinguishes Scott v. Sandford (19 How. 393)
The Court said Chief Justice Taney's language did not mean Indians could become citizens merely by leaving their tribe at will.