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The law that Citizenship Clause litigation forgot: the 1872 Oregon Territory citizenship statute

A guest post from Elliott Wainwright.

Josh Blackman | 6.19.2026 8:00 AM

I am happy to pass along this guest post from my frequent collaborator, Elliott Wainwright.

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At oral argument in Trump v. Barbara, Justice Amy Coney Barrett  asked several times how the Citizenship Clause works when members of Indian tribes are born beyond the limits of tribal domains. The peculiar Oregon Territory citizenship statute Congress passed in 1872 and the effect it had—or ought to have had—on the citizenship status of tribal Indians born in that territory appears to bear on Justice Amy Coney Barrett's inquiry. However, despite the fact that John Vlahoplus and Michael L. Rosin have written about the 1872 law in recent years, it seems to have gone unmentioned in litigation over President Trump's January 2025 executive order regarding citizenship at birth. Nor was it put under the microscope in United States v. Wong Kim Ark or Elk v. Wilkins, the Supreme Court's flagship Citizenship Clause cases.

Since July 1868, the 14th Amendment's Citizenship Clause has proclaimed 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."

In May 1872, Congress passed the first citizenship statute that adopted the Clause's "subject to the jurisdiction" locution, providing:

"That all persons born in the district of country formerly known as the Territory of Oregon, and subject to the jurisdiction of the United States at this time, are citizens of the United States in the same manner as if born elsewhere in the United States."

Section 1995 of the Revised Statutes, which continued the 1872 law, replaced "at this time" with "on the 18th May,........

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