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289
The Indigenous As Alien
Leti Volpp*
I. Space, Time, Membership ......................................................................................... 293
II. Indians As Aliens and Citizens ................................................................................ 300
III. The Political Theory of Forgetting—The Settler’s Alibi .................................. 316
Immigration law, as it is taught, studied, and researched in the United States,
imagines away the fact of preexisting indigenous peoples. Why is this the case? I
argue, first, that this elision reflects and reproduces how the field of immigration
law narrates space, time, and national membership. But despite their disappearance
from the field, Indians have figured in immigration law, and thus I describe the
neglected legal history of the treatment of Indians under U.S. immigration and
citizenship law.
1
The Article then returns to explain why indigenous people have
disappeared from immigration law through an investigation of the relationship
between “We the People,” the “settler contract,” and the “nation of immigrants.”
The story of the field of U.S. immigration law is typically a narrative of the
assertion of national sovereign power that begins in the late 1880s with a trilogy of
* Robert D. and Leslie Kay Raven Professor of Law, University of California, Berkeley School of Law,
[email protected]ey.edu. Many thanks to the UCLA Critical Race Studies Symposium on Race and
Sovereignty, where I first began thinking about this question. My sincere appreciation as well to
audiences at the CUNY Grad Center Revolutionizing American Studies Series; the Berkeley CSLS
anniversary conference; the Washington University Law Identity & Culture Workshop; the University
of Toronto Constitutional Roundtable sponsored by the Harney Program in Ethnic, Immigration, and
Pluralism Studies & the Canada Research Chair in Citizenship and Multiculturalism; the UC Berkeley
Law and Humanities Strategic Working Group; the UC Berkeley Discovery Fellows Seminar; the
University of Texas Rapoport Center for Human Rights; the Berkeley Law Faculty Workshop; the
George Washington University Law School Faculty Workshop; the J. Reuben Clark Law School Faculty
Workshop; the Baldy Center for Law and Social Policy Distinguished Speaker Series; the UC Davis
School of Law Faculty Workshop; the Undisciplining Feminism Symposium; annual meetings of Law
and Society and Law Culture and Humanities; and the “Law As . . . ” III symposium at the University
of California, Irvine School of Law for valuable feedback. Special thanks to the Duke Feminist Theory
Workshop, the University of Illinois Symposium on Cultures of Law in Global Context, and the
Osnabrück Summer Institute on the Cultural Study of Law, each of which invited me to deliver this
article as a keynote address. Many thanks as well to Mina Barahimi, Kathryn Heard, Bina Patel, and
Quyen Vo for their helpful research assistance.
1. At times this Article uses the term Indian, at others indigenous persons or people(s), and at
times Native American. I recognize these are all imperfect terms. I primarily use the term Indian when
describing indigenous people as an object of legal imagining by the United States. When possible, I
refer to specific tribes by name.
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290 UC IRVINE LAW REVIEW [Vol. 5:289
U.S. Supreme Court cases. These cases—Chae Chan Ping,
2
Ekiu,
3
and Fong Yue
Ting
4
—established what is called “plenary power” over the regulation of
immigration.
5
This has meant that the political branches of the U.S. nation-state
have the power to exclude aliens, admit them on such terms as they see fit, and
deport them with little or no constraint from the judicial branch, as a legitimate
exercise of the powers inherent in nation-state sovereignty. This trilogy of cases
responded to the exclusion and deportation of Chinese and Japanese noncitizens.
In two of these cases the Court upheld explicitly race-based immigration
restrictions, excluding Chinese laborers who were previously residents in the United
States but whose reentry certificates were nullified,
6
and deporting Chinese laborers
who could not find white witnesses to testify to the laborers’ residence in the United
States as of a particular date.
7
The fact that the federal power to regulate immigration was initially asserted
in cases involving the exclusion or deportation of Asian immigrants has not escaped
scholars.
8
The research showing how these racial bars limited the lives and
possibilities of particular communities casts an important critique to the distinctively
prevalent narrative of the United States of America as a nation of immigrants. This
narrative promises lawful immigrants a purportedly equal opportunity of arrival and
the subsequent full incorporation into a presumptively universal citizenship.
9
This
promise of course has not been equally available, belied by race-based exclusion
laws, racial restrictions on naturalization, gendered divestments of citizenship, de
jure and de facto violations of the rights one might correlate with full citizenship,
2. Chae Chan Ping v. United States, 130 U.S. 581 (1889).
3. Ekiu v. United States, 142 U.S. 651 (1892).
4. Fong Yue Ting v. United States, 149 U.S. 698 (1893).
5.See id. at 698; Ekiu, 142 U.S. at 659–60; Chae Chan Ping, 130 U.S. at 581, 600–02, 609–10.
6.Chae Chan Ping, 130 U.S. at 582.
7.Fong Yue Ting, 149 U.S. at 702–05. The third case concerned Nishimura Ekiu, excluded as
“liable to become a public charge,” meaning that she was suspected of having to rely in the future upon
the financial support of the government. Ekiu, 142 U.S. at 656. She appeared with twenty-two dollars
in her possession and told the inspector that her husband had been living in the United States for one
year, and that he would call for her at a prearranged hotel. Id. at 652. She was not believed by the
inspector. The historian Yuji Ichioka has written that Ekiu, in fact, was a prostitute, bought by a
notorious procurer in San Francisco who had paid for her to contest her detention through the Supreme
Court decision. Yuji Ichioka, Ameyuki-san: Japanese Prostitutes in Nineteenth-Century America, 4 A
MERASIA
1, 5–6, 19 n.24 (1977); see also Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of
Citizenship Through Marriage, 53 UCLA L.
REV. 405, 466, n.284 (discussing this case as a submerged story
of prostitution in immigration law).
8. See, e.g., R
OBERT S. CHANG, DISORIENTED: ASIAN AMERICANS, LAW AND THE NATION-
S
TATE (1999); ERIKA LEE, AT AMERICA’S GATES: CHINESE IMMIGRATION DURING THE
EXCLUSION ERA, 1882–1943 (2003); LUCY SALYER, LAWS HARSH AS TIGERS: CHINESE
IMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW (1995); Gabriel J. Chin, Regulating
Race: Asian Exclusion and the Administrative State, 37 H
ARV. C.R.-C.L. L. REV. 1 (2002); Gabriel J. Chin,
Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA
L. REV.
1 (1998).
9. See Leti Volpp, Impossible Subjects: Illegal Aliens and Alien Citizens, 103 M
ICH. L. REV. 1595
(2005) (reviewing M
AE NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF
MODERN AMERICA (2004)).
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and, importantly as well, the inadequacy of the liberal vision of full citizenship in
addressing various inequalities.
Such a critique of the exclusions concealed within liberalism and of the
discrimination masked by the promise of America is an important one. Yet at the
same time, this critique, as long as it remains trapped within the frame of
membership in the nation-state and the desire for full inclusion, erases other
stories.
10
In particular, as Kēhaulani Kaunui tells us, for indigenous peoples in the
United States, the political project of civil rights has been “burdened, due to the
history of U.S. settler colonialism, with distinctly different relationships to the
nation-state.”
11
As she writes, the political project of civil rights, which is
fundamentally about equality under the law, and which is confined within the
nation-state, is insufficient for indigenous and other colonized peoples in addressing
ongoing questions of sovereignty.
12
This is starkly visible in the Supreme Court’s
decision in Rice v. Cayetano. The case concerned an electoral limitation by which only
Native Hawaiians were allowed to vote for trustees of the state’s Office of Hawaiian
Affairs. The Court read this limitation to be the special privilege of a racial minority
(Native Hawaiians) and thus held the exclusion of white Hawaiian resident Harold
Rice to be an abridgement of his right to vote under the Fifteenth Amendment.
13
10. Thus, we could perhaps understand this Article as pointing to the way in which the Asian
American critique has occluded the indigenous critique. Thank you to Karen Shimikawa for helping
articulate this point. This observation raises the question of how we might characterize the relation of
migrants, and in particular migrants of color, to settler colonialism. For contrasting views, see Bonita
Lawrence & Enakshi Dua, Decolonizing Antiracism, 32 S
OC. JUST., no. 4, 2005, at 120, and the response
to Lawrence and Dua by Nandita Sharma & Cynthia Wright, Decolonizing Resistance, Challenging Colonial
States, 35 S
OC. JUST., no. 3, 2008, at 120, as well as ASIAN SETTLER COLONIALISM: FROM LOCAL
GOVERNANCE TO THE HABITS OF EVERYDAY LIFE IN HAWAI’I (Candace Fujikane & Jonathan Y.
Okamura eds., 2008). For important responses to this debate see Andrea Smith, Indigeneity, Settler
Colonialism, White Supremacy, in R
ACIAL FORMATION IN THE TWENTY-FIRST CENTURY 66 (Daniel
Martinez HoSang et al. eds., 2012), and Dean Itsuji Saranillio, Why Asian Settler Colonialism Matters: A
Thought Piece on Critiques, Debates, and Indigenous Difference, 3 S
ETTLER COLONIAL STUD. 280 (2013). Smith
suggests that those engaged in this debate should understand Native identity as spatially rather than as
temporally based, so that claims to land are based not solely on prior occupancy (a temporal framework)
but based also on “radical relationality to land.” Smith, supra, at 82–83. Saranillio responds to critiques
of the conceptual use of settler colonialism in the context of Asian settler colonialism in Hawai’i through
the frame provided by Scott Lauria Morgensen’s query: “Who, under what conditions, inherits the
power to represent or enact settler colonialism?” See Saranillio, supra, at 283 (quoting S
COTT LAURIA
MORGENSEN, SPACES BETWEEN US: QUEER SETTLER COLONIALISM AND INDIGENOUS
DECOLONIZATION 20 (2011)).
11. J. Kēhaulani Kauanui, Reflections prepared for the Fifth Annual Critical Race Studies
Symposium: Race and Sovereignty, UCLA Law School, April, 2011 (unpublished manuscript) (on file
with author).
12. J.
KĒHAULANI KAUANUI, HAWAIIAN BLOOD: COLONIALISM AND THE POLITICS OF
SOVEREIGNTY AND INDIGENEITY 12–16, 31–32 (2008). Put slightly differently, “America is a
constitutional democracy built through the legalized coercion of colonialism.” Philip P. Frickey, (Native)
American Exceptionalism in Federal Public Law, 119 H
ARV. L. REV. 433, 434 (2005).
13. Rice v. Cayetano, 528 U.S. 495, 515 (2000).
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Indigeneity was thereby framed as a civil rights question rather than as a matter of
Native sovereignty.
14
There are at least two additional ways in which one could articulate why a
demand for civil rights and inclusion within a national project is inadequate for
indigenous people. First, the framework of civil rights and the desire for inclusion
into full membership cannot address how “democracy’s intolerance of difference
has operated through inclusion as much as through exclusion.”
15
While inclusion
can be a valued good, it can also mean assimilation, absorption, and loss. In the
context of indigenous peoples in North America, governmental policies were
adopted to putatively absorb indigenous subjects as indistinct from others into the
national body. In order to elevate individual indigenous persons from federal wards
to citizens, both the United States and Canada engaged in the regulation of marriage,
kinship, and sexuality; in the forced removal of children from families to
government-funded boarding schools; and in land severalty.
16
Land severalty
mandated the breaking up of tribes as both political entities and as the holders of
land in common, turning indigenous peoples into individual holders of private
property, thus eviscerating the tribal land base, and opening the way for
nonindigenous persons to buy land rights within the historical boundaries of tribal
territory.
17
As Audra Simpson writes, “This process of equality cum absorption
required a vanquishing of an alternative or existing political order, . . . which raises
questions about how and why citizenship then might be a utilitarian good, when it
requires or initiates a disappearance of prior governance.”
18
Second, the critique of exclusion fails to note how the nation-state in which
an immigrant seeks membership relies tacitly on the dispossession of already
existing populations. This then is the willing amnesia of settler colonialism. My
focus in this Article is the nonrecognition of settler colonialism underpinning
immigration law scholarship. This scholarship’s focus is the migrant, whose position
already assumes the resolution of a fundamental conflict between indigeneity and
settler colonialism.
19
14. See Leti Volpp, Righting Wrongs, 47 UCLA L. REV. 1815, 1831–33 (2000) (responding to
Sharon K. Hom and Eric K. Yamamoto, Collective Memory, History, and Social Justice, 47 UCLA
L. REV.
1747 (2000)).
15. Patrick Wolfe, Reflections prepared for the Fifth Annual Critical Race Studies Symposium:
Race and Sovereignty, UCLA School of Law, April 2011 (unpublished manuscript) (on file with author).
See generally P
ATRICK WOLFE, SETTLER COLONIALISM AND THE TRANSFORMATION OF
ANTHROPOLOGY: THE POLITICS AND POETICS OF AN ETHNOGRAPHIC EVENT (1999).
16. Beth H. Piatote, Domestic Trials: Indian Rights and National Belonging in Works by E. Pauline
Johnson and John M. Oskison, 63
AM. Q. 95, 97–98 (2011).
17. Bethany R. Berger, Red: Racism and the American Indian, 56 UCLA
L. REV. 591, 628 (2009).
18. Audra Simpson, Under the Sign of Sovereignty: Certainty, Ambivalence, and Law in Native North
America and Indigenous Australia, 25 W
ICAZO SA REV. no. 2, Fall 2010, at 107, 116. The problem with
this inclusion is not only a historical one; as Jodi Byrd points out, contemporary multicultural liberal
democracy “rationalize[s] the originary historical traumas that birthed settler colonialism through
inclusion.”
JODI A. BYRD, THE TRANSIT OF EMPIRE: INDIGENOUS CRITIQUES OF COLONIALISM, at
xii (2011).
19. I am indebted to Sora Han for this wording.
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As scholars have noted, the doctrine of plenary power developed and was
expressed simultaneously in cases involving Indians, aliens, and territories, all
concerning individuals who were noncitizens and were “racially, culturally, and
religiously distinct” from the majority.
20
My interest here is not to chart how these
groups were treated similarly under U.S. constitutional doctrine, but to tease out
how one of these groups—“Indians”—was understood within the laws created to
govern another—“aliens.”
21
Thus, my project is not to examine parallel discourses
but rather to discern how a legal field developed to govern one group of individuals
understood—and understands—another.
22
I.
SPACE, TIME, MEMBERSHIP
The absence of indigenous people in immigration law is apparent in the fact
that the key concepts in the field—citizen, alien, borders, migration, and birthright
citizenship—cannot address the actual relationship between the nation-state and
indigenous peoples. Indians have been considered citizen and alien, as well as
neither citizen nor alien; they have been described as simultaneously foreign and
20. Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories and the Nineteenth
Century Origins of Plenary Power Over Foreign Affairs, 82 T
EX. L. REV. 1, 11 (2002); see also T. ALEXANDER
ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE, AND AMERICAN
CITIZENSHIP 182–96 (2002).
21. Another important, but different, project is the examination of indigenous migrants. See,
e.g., Karla Mari McKanders, The Unspoken Voices of Indigenous Women in Immigration Raids, 14 J.
GENDER
RACE & JUST. 1 (2010). An estimated thirty percent of farmworkers in California are indigenous
migrants from Mexico and Guatemala. See Marisol León, Note, Silenced by Bureaucratic Adjudication:
Mesoamerican Indigenous Language Speakers and Their Right to Due Process of Law, 30 H
ARV. J. ON RACIAL &
ETHNIC JUST. 339, 340 (2014).
22. I see this Article as also responding to the way in which different communities are defined
through parallel and divergent experiences in the United States (namely, African Americans experienced
slavery, Mexicans experienced conquest, Native Americans experienced genocide, and Asians
experienced immigration exclusion). This story of parallel and divergent experiences assumes that each
group was shaped only by one particular relationship to the U.S. nation-state.
This assumption segments these communities in isolation from one another, without attending
to comparative racialization that asks us to think about how, for example, Justice Harlan in his dissent
in Plessy v. Ferguson simultaneously racialized blacks as socially inferior to whites and as belonging more
to the nation than Chinese through his statement:
There is a race so different from our own that we do not permit those belonging to it to
become citizens of the United States. Persons belonging to it are, with few exceptions,
absolutely excluded from our country. I allude to the Chinese race. But by the statute in
question, a Chinaman can ride in the same passenger coach with white citizens of the United
States, while citizens of the black race [cannot] . . . .
Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting). In other words, Chinese are not
just racialized as foreign and (relatively) socially elevated in a binary relationship with whites, but in a
triangulated relationship with both whites and blacks. Claire Jean Kim calls this comparative
racialization “racial triangulation.” See generally Claire Jean Kim, The Racial Triangulation of Asian Americans,
27 P
OL. & SOC’Y 105 (1999).
Furthermore, this segmentation centers only on one group in each of these historical experiences,
and excludes other groups. Excluding these other groups shapes presumptions about what these
experiences were. To give just one example, making the experience of African Americans central within
the study of migration would shift and question some fundamental presumptions about immigration as
voluntary and unidirectional, when one considers the fact of slavery or the Back to Africa movement.
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domestic; and they have been categorized in terms unfamiliar to immigration law:
as quasi-sovereign nations, as domestic dependent nations, and as “wards ‘in a state
of pupilage’” of the federal government.
23
This nonrecognition reflects how immigration scholarship thinks about space.
The field unreflectively reflects the tradition of Westphalian territorial sovereignty,
whereby a single sovereign controls absolutely a defined territory and its associated
population. Under this system, the legal jurisdiction of the sovereign is entirely
congruent with its territorial borders in a way that would correlate with how maps
are drawn, maps that are usually imagined to resemble a Mondrian painting, with
dark borders absolutely separating brightly colored nation states.
24
Such a map
envisions no “fuzzy spaces,” transitional zones or bleeding boundaries, and suggests
a world of nations “territorialized in the segmentary fashion of the multicolored
school atlas.”
25
This model of territorial sovereignty accords with what Kal Raustiala
calls “legal spatiality”: the “supposition that law and legal remedies are connected
to, or limited by, territorial location.”
26
In legal scholarship generally, we find concern about fragmenting nation-states
in an age of global migration and security risks, or about “extraterritorial” reaches
of sovereign power; see, for example, the location of prisoners on Guantánamo,
sited deliberately “offshore” in an unsuccessful attempt by the Bush administration
to escape the purview of constitutional restraint.
27
This fragmentation raises what
some consider the novel problem of the attenuation between territorial space and
governance.
28
Raustiala notes that, despite this supposition, there have always been
specific exceptions to this system in the form of territorial spaces where the
territorial sovereign’s power did not reach, with sanctuaries and ambassadors’
residences, as well as exceptions in the form of sovereigns that controlled territory
outside its own, with colonial governance and extraterritorial jurisdiction.
29
And
Teemu Ruskola argues that we need to move beyond understanding these practices
as “exception[s]”—in particular, through a focus upon extraterritorial jurisdiction,
whereby nation states exercised jurisdiction “outside” of their autochthonous
23.See BYRD, supra note 18, at xxii (describing Indian tribes as neither foreign nations external
to the United States nor “the several states” internal to and subject to U.S. federalism).
24. Rainer Bauböck, Citizenship and National Identities in the European Union, in I
NTEGRATION
DURCH
DEMOKRATIE: NEUE IMPULSE FÜR DIE EUROPÄISCHE UNION [INTEGRATION THROUGH
DEMOCRACY: A NEW IMPETUS FOR THE EUROPEAN UNION] 297, 297–98 (Eugen Antalosvky et al.
eds., 1997) (Ger.).
25. Liisa Malkki, National Geographic: The Rooting of Peoples and the Territorialization of National Identity
Among Scholars and Refugees, 7 C
ULTURAL ANTHROPOLOGY 24, 26 (1992).
26. Kal Raustiala, The Geography of Justice, 73 F
ORDHAM L. REV. 2501, 2503 (2005); see also KAL
RAUSTIALA, DOES THE CONSTITUTION FOLLOW THE FLAG? THE EVOLUTION OF TERRITORIALITY
IN
AMERICAN LAW 23–25 (2009).
27.See Leti Volpp, Commentary, Imaginings of Space in Immigration Law, 9 L
AW, CULTURE &
HUMAN. 456, 458–61 (2013).
28.Id. at 460–61.
29. Raustiala, supra note 26, at 2510–11.
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sovereignty.
30
Extraterritorial jurisdiction allowed Westerners to be treated as if they
remained in the sovereign territory of their home states, safe from having their civil
or criminal cases adjudicated by the courts of a less-civilized state. By the magic of
a legal fiction, each Western individual became a floating island of sovereignty. This
practice was not exceptional; extraterritorial jurisdiction was the rule for much of
the world outside Europe prior to the post-World War II decolonization
movements.
31
Nonetheless, the nation-state’s governance outside its territory is imagined
away via the presumption that the legal jurisdiction of the sovereign is entirely
congruent with its territorial borders. That presumption also shapes how the nation-
state’s governance inside its territory is conceived. As Mark Rifkin observes, U.S.-
Indian relations are repeatedly portrayed as peculiar, or anomalous.
32
Non-national
entities with claims to land ostensibly “inside the nation” produce a tension, one
that is “sutured over” by proclaiming a sovereignty which codes Native peoples and
lands as an exception.
33
But ambiguous spaces, neither entirely foreign nor domestic, have
characterized the building of the American nation-state, both in its relation to
empire
34
and in negotiating the relationship between settler colonialism and
indigenous people. The spatial model of territorial sovereignty—which suggests a
single sovereign that governs its associated population, negotiates with “foreign
nations” that form its outside, relies upon the doctrine of federalism to parse out
how power is divided with its internal “several states,”
35
and either “includes” or
“excludes” outsiders—does not capture a model of layered sovereignty that would
more accurately describe the relationship between indigenous sovereignty and the
sovereignty of settler society. We could think of this as “spatial governmentality,”
in the words of Richard Perry, emerging from the inherited “layered mappings of
spatial difference”;
36
or as a “third space of sovereignty,” in the words of Kevin
30. Teemu Ruskola, Colonialism Without Colonies: On the Extraterritorial Jurisprudence of the U.S. Court
for China, 71 L
AW & CONTEMP. PROBS. 217, 234 (2008).
31.Id.
32. Mark Rifkin, Indigenizing Agamben: Rethinking Sovereignty in Light of the “Peculiar” Status of Native
Peoples, 73 C
ULTURAL CRITIQUE 89 (2009).
33. Id. at 96.
34. Amy Kaplan, Where is Guantánamo?, in L
EGAL BORDERLANDS: LAW AND THE
CONSTRUCTION OF AMERICAN BORDERS 239, 240–41 (Mary Dudziak & Leti Volpp eds., 2006).
35.See B
YRD, supra note 18, at xxii (discussing the Commerce Clause and Justice Marshall’s
opinion in Cherokee Nation v. Georgia). See Byrd’s discussion of the prepositional slip between “with”
and “among”—“with foreign nations,” “with Indian tribes,” and “among the several states”—which
she asserts both reduces Indian tribes to a status below a sovereign recognized in international law, and
aligns conquest over Indian tribes with the possibility of asserting extraterritorial sovereignty over
foreign nations as the needs arises. Id.
36. Richard Warren Perry, Native American Tribal Gaming as Crime Against Nature: Environment,
Sovereignty, Globalization, 29 P
OL. & LEGAL ANTHROPOLOGY REV. 110, 110 (2006).
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Bruyneel, residing neither inside nor outside the American political system, but on
those very boundaries.
37
The erasure of indigeneity also reflects how immigration scholarship
conceptualizes time. Immigration scholarship generally presumes not only that
borders are spatially fixed, but also that they are fixed over time; states seem to have
always existed within their current territorial borders. The focus of inquiry is the
lawfulness of the already-existing state’s deployment of sovereignty to keep out or
kick out noncitizens. Largely forgotten are how states came to be, with the notable
exception of Rainer Bauböck’s work, which focuses on the impact of shifting
borders in Europe, and the phenomena of annexation, unification, partition,
separation, or secession.
38
Immigration law assumes that people cross borders. But
it is also the case that borders cross people—and peoples.
39
As Carole Pateman
suggests, this tendency to presume borders are fixed over time is common to
political theory: “discussions of the legitimacy of the modern state ([which is] always
taken for granted) have said nothing about the land on which the state is created.”
40
In immigration law, states are fixed, and people are in motion.
The implicit temporality of immigration law is the present and the future.
Immigration law presumes narratives of modernity; both in the positive valence of
the mobility of the cosmopolitan and the diasporic and in the apocalyptic valence
of the debased third-world migrant, the third-country national, the illegal alien, the
irregular migrant, the anchor baby, and the terrorist sleeper cell, whose presence in
the nation-state promises future trouble. In contrast, the time of indigenous persons
is the time of the past. Immigration law’s erasure of how the state came into being
places indigenous persons within anachronistic space
41
and as temporally too far
37. KEVIN BRUYNEEL, THE THIRD SPACE OF SOVEREIGNTY: THE POSTCOLONIAL
POLITICS OF U.S.-INDIGENOUS RELATIONS, at xvii (2007).
38. Rainer Bauböck, Boundaries and Birthright: Bosniak’s and Shachar’s Critique of Liberal Citizenship,
I
SSUES INLEGAL SCHOLARSHIP, Sept. 2011, at 1, 2.
39. These are distinct propositions. The term “peoples” is “fundamentally collective” and is
“neutralized” when replaced by a term “based on individual subjects” such as “populations” or
“people.” A
NDREW GRAY, INDIGENOUS RIGHTS AND DEVELOPMENT: SELF-DETERMINATION IN
AN
AMAZONIAN COMMUNITY 129 (1997). Since “peoples” are thought to have the right to self-
determination, there has been significant energy devoted in various arenas to the question whether to
use the term “indigenous people” or “indigenous peoples,” in what has been termed the “-s debate.”
See Karen Engle, On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context
of Human Rights, 22 E
UR. J. INT’L L. 141 (2011). See generally GRAY, supra.
Thus, the idea that “borders cross people” functions as a corrective to the presumption that
borders are static, while people are in motion. The idea that “borders cross peoples” reminds us that
when borders are created, they can partition already existing political collectives with their own
sovereignty. See generally J
OSUE DAVID CISNEROS, THE BORDER CROSSED US: RHETORICS OF
BORDERS, CITIZENSHIP, AND LATINA/O IDENTITY (2013) (on borders crossing people).
40. Carole Pateman, The Settler Contract, in C
ONTRACT & DOMINATION 35, 36 (Carol Pateman
& Charles W. Mills eds., 2007).
41. A
NNE MCCLINTOCK, IMPERIAL LEATHER: RACE, GENDER AND SEXUALITY IN THE
COLONIAL CONTEST 40–42 (1995). See generally JOHANNES FABIAN, TIME AND THE OTHER: HOW
ANTHROPOLOGY MAKES ITS OBJECT (2d ed. 2002) (1983).
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behind to be active agents within the space of modern life, as stuck in time.
42
Symptomatic of the still pervasive myth of Indians as the “vanishing race” is the
fact that many school children think that Indians are “extinct.”
43
Indigenous people
are also considered stuck in place and stuck to place—except when their insufficient
attachment to place renders them “nomads,” who move too much and who fail to
cultivate agricultural property, a relationship to land that was used to justify settler
colonialism.
44
Thus, the movement of indigenous people across space is either too
much or not enough; either reading places them temporally at a prehistorical stage
of human development.
Their contemporary expressions of sovereignty in the form of tribal casino
gaming are seen thus as atavistic
45
and “out of time.”
46
That indigenous people are
imagined away from the contemporary moment reflects that, in the words of
Elizabeth Povinelli, the settler state “projected the previous inhabitants as spatially,
socially and temporally before it as the ultimate horizon of its own legitimacy.”
47
The nonrecognition of indigeneity also reflects how the field thinks about
membership in the national community. Immigration law presumes the relevant
legal entity who bears legal subjectivity and rights to be an individual, not a collective
subject (as an Indian tribe or nation).
48
Immigration law presumes an all-powerful
national sovereign regime regulating the movement of individual aliens, some of
whom are excluded, some of whom are allowed in on a temporary basis, and some
of whom may someday be recognized as part of a collective “We, the People.” We
thus have immigration law regulating “the people who are not the People,” who are
simultaneously “excluded from meaningful participation while remaining the
objects of state control.”
49
Yet, as Mark Rifkin points out, reflecting on the relation
42. See generally John Borrows, Frozen Rights in Canada: Constitutional Interpretation and the Trickster,
22 A
M. INDIAN L. REV. 37 (1997) (analyzing Canadian decisions that freeze indigenous peoples and
Aboriginal rights in the past).
43. On the myth of the vanishing race, see B
RIAN W. DIPPIE, THE VANISHING AMERICAN:
W
HITE ATTITUDES AND U.S. INDIAN POLICY (1991); on what schoolchildren believe, see Naomi
Caldwell-Wood & Lisa A. Mitten, “I” Is Not for Indian: The Portrayal of Native Americans in Books for Young
People ( June 29, 1991), available at http://www.nativeculturelinks.com/ailabib.htm; Carol Otis Hurst,
Native Americans, C
AROL HURST’S CHILDREN’S LITERATURE SITE, http://www.carolhurst.com/
subjects/nativeamericans.html (last visited Nov. 11, 2014).
44. See Eric Kades, History and Interpretation of the Great Case of Johnson v. M’Intosh, 19 L
AW &
HIST. REV. 67, 72 (2001) (describing how early settlers, in justifying taking land from indigenous people,
analogized Indians to “wild beasts in the forest” who “range and wander up and down the country
without any law or government” and who did not appropriately cultivate the land).
45. Perry, supra note 36, at 112.
46. B
RUYNEEL, supra note 37, at 2, 201–05.
47. Elizabeth A. Povinelli, The Governance of the Prior, 13 I
NTERVENTIONS: INT’L J.
POSTCOLONIAL STUD. 13, 19 (2011); see Renisa Mawani, Law As Temporality: Colonial Politics and Indian
Settlers, 4 UC
IRVINE L. REV. 65, 77 (2014) (describing how the future was often envisioned in settler
colonies through relegating indigenous peoples to the past and to history); see also Specters of Indigeneity in
British-Indian Migration, 1914, 46 L
AW & SOC’Y REV. 369, 373 (2012) (seeking to unsettle the presumed
linearity of colonial time in historiographies that depict encounters in successive spatiotemporal terms).
48. I am indebted to Beth Piatote for this point.
49. Rifkin, supra note 32, at 93. In this quoted text, Rifkin is reading Agamben in describing the
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of indigenous persons to the settler-state raises a third category beyond the People
and the people: peoples, whose claims to “older/other political formations” are
displaced by the circular logic of the overriding sovereignty of the United States.
50
To understand how immigration law conceives membership, we could look to
writing in political philosophy and, in particular, the work of Michael Walzer, author
of the most influential theoretical defense of immigration sovereignty in his book,
Spheres of Justice.
51
His core thesis is that nation-states, like families and clubs, are
normatively justified in seeking closure against outsiders to their community in
order to promote their mutual affinity.
52
Given that Walzer claims to be developing a theory of the right of nation-
states to control immigration, what does he say about indigenous inhabitants?
Walzer’s writing includes, in fact, a little noticed passage that speaks to persons who
are already in a territory when a state seeks to assert its sovereignty. Interestingly,
Walzer casts this only as a problem created in the present day. He writes:
Though the recognition of national affinity is a reason for permitting
immigration, nonrecognition is not a reason for expulsion. This is a major
issue in the modern world, for many newly independent states find
themselves in control of territory into which alien groups have been
admitted under the auspices of the old imperial regime. Sometimes these
people are forced to leave, the victims of a popular hostility that the new
government cannot restrain. More often the government itself fosters such
hostility, and takes positive action to drive out the “alien elements,”
invoking when it does so some version of the club or the family analogy.
Here, however, neither analogy applies: for though no “alien” has a right
to be a member of a club or a family, it is possible, I think, to describe a
kind of territorial or locational right.
People who will be recognized as citizens while the rest of the resident population is consigned to bare
life. Id. I am thus putting Rifkin’s take on Agamben in a different context by suggesting its applicability
to the control of immigration law.
50.Id. at 94.
51. M
ICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY
(1983).
52.Id. at 35–41. In his chapter on membership, Walzer also makes the less noticed argument
to which Linda Bosniak has drawn attention—that once inside, any strangers should be recognized as
members as quickly as possible to avoid the democratic crisis posed by guest workers, the present day
version of the Athenian metic. L
INDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF
CONTEMPORARY MEMBERSHIP 41–42 (2006). As she points out, there is a deep contradiction between
these two arguments, a contradiction generally unacknowledged and managed through what she calls a
splitting strategy, with the simultaneous allowing for the hard outside of border regulation, and on the
other hand insisting on the soft inside, given that the hard border follows the alien inside in the form
of the threat of deportation. In other words, the rights the alien might enjoy on the soft inside as a
matter on paper, as a “person” protected by the due process and equal protection clause, or under
various statutes guaranteeing, for example, the right to minimum wage and overtime regardless of
immigration status, may not exist as a matter of reality if the alien fears deportation. Id. at 46–47.
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[Thus, while an “alien” cannot claim membership in a club or family, the “alien”
does have some “kind of territorial or locational right.” But how far does Walzer
believe this right to extend?]
. . . The right is not, indeed, to a particular place, but it is enforceable against
the state, which exists to protect it; the state’s claim to territorial
jurisdiction derives ultimately from this individual right to place. Hence the
right has a collective as well as an individual form, and these two can come
into conflict. But it can’t be said that the first always or necessarily
supercedes the second, for the first came into existence for the sake of the
second. The state owes something to its inhabitants simply, without
reference to their collective or national identity. And the first place to
which the inhabitants are entitled is surely the place where they and their
families have lived and made a life. The attachments and expectations they
have formed argue against a forced transfer to another country. If they
can’t have this particular piece of land (or house or apartment), then some
other must be found for them within the same general “place.”
53
Let me make two observations, both of which I think are important: the first
is that while Walzer does think that there is something wrong about deporting
original inhabitants to another country altogether, he promotes an idea that “some
other [piece of land] must be found for them within the same general ‘place.’”
54
This sounds strikingly like nothing so much as the nineteenth and twentieth-
century regimes of removal and reservation. And it is not evident why a removal
from one particular piece of land does not wreak the same kind of violation of
justice that a transfer to another country might when these first inhabitants might
not have any particular attachment to the nation-state boundary that has been
created by this new state. Second, Walzer casts the original inhabitants in this
narrative as “aliens,” sometimes but not always in scare quotes.
Let us note that Walzer’s description of an old imperial regime admitting alien
groups and newly independent states might well describe former British colonies in
sub-Saharan Africa
55
or elsewhere; he does not specify which cases he is
considering. In other passages of Spheres of Justice, where he describes a state’s right
to engage in “closure” for purposes of mutual affinity,
56
some scholars have
suggested he is referencing Israel.
57
Regardless, as this is the only portion of the text
in Spheres of Justice attending to the question of persons already there when a new
state is formed, we can read this as Walzer’s prescription for how a new state ought
to address indigeneity.
58
This is why there is something curious about the term
53. WALZER, supra note 51, at 42–43.
54.Id.
55. I am indebted to Aziz Rana and Christopher Tomlins for this suggestion. Thus, Walzer may
have been thinking about Idi Amin’s 1972 expulsion of Asians from Uganda.
56. W
ALZER, supra note 51, at 61–63.
57. See N
ORMAN FINKELSTEIN, IMAGE AND REALITY OF THE ISRAELI-PALESTINIAN
CONFLICT 2–3 (2003).
58. The one other mention Walzer makes of indigenous populations in the context of migration
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300 UC IRVINE LAW REVIEW [Vol. 5:289
“alien” to describe those already there, as the common sense of “alien” suggests a
person arriving anew at the borders of an already formed nation-state, not a person
already dwelling on that land.
But here then we must note that, in fact, settler states have transformed
indigenous persons into aliens. The root sense of the word alien means someone
other, foreign, or strange, and also unfamiliar, disturbing, and perhaps distasteful.
Indigenous people have been from the onset of colonization considered alien, as
foreign, and also as disturbing and strange.
59
In addition, and more surprisingly,
indigenous people were also understood as aliens within the meaning of
immigration law. Even though the “nation of immigrants” and the core of the field
of immigration law elide the question of indigeneity, immigration law and
citizenship law have, in fact, struggled with the particular relationship of these
doctrines to indigenous persons.
II.
INDIANS AS ALIENS AND CITIZENS
The first U.S. immigration legislation that referred to Indians, albeit by
stipulating their exclusion from a definition, was the Immigration Act of 1917.
60
This Act defined the term alien as follows: “any person not a native-born or
naturalized citizen of the United States; but this definition shall not be held to
include Indians of the United States not taxed or citizens of the islands under the
jurisdiction of the United States.”
61
With this definition, “Indians of the United States” who were “not taxed” were
clarified to be simultaneously neither aliens nor citizens of the United States. This
phrase, Indians not taxed, comes from Article I, Section 2 of the Constitution,
which requires a census to be taken every ten years so that seats in the House of
Representatives can be apportioned among the states.
62
Section 2, in addition to
including the infamous three-fifths of persons other than “free persons,” excluded
Indians not taxed, namely those Indians living on reservations or those who were
in SPHERES comes in the section of the Membership chapter on “White Australia.” Here, in examining
the morality of the country’s “White Australia policy,” which barred non-Europeans from migrating to
Australia for the first half of the twentieth century, Walzer writes,
The right of white Australians to the great empty spaces of the subcontinent rested on
nothing more than the claim they had staked, and enforced against the aboriginal population,
before anyone else. That does not seem a right that one would readily defend in the face of
necessitous men and women, clamoring for entry.
W
ALZER, supra note 51, at 46. Walzer is here, thus, not measuring the claim of the indigenous versus
the white settler, but the claim of the white settler against the Asian migrant. Whatever claim the
indigenous might have is not addressed.
59. For a discussion of Justice Taney’s depiction of Indians as foreign within the Dred Scott
decision, see C
HRISTOPHER TOMLINS, FREEDOM BOUND: LAW, LABOR, AND CIVIC IDENTITY IN
COLONIZING ENGLISH AMERICA, 1580–1865, at 528 (2010).
60. Marian L. Smith, The INS and the Singular Status of North American Indians, 21 A
M. INDIAN
CULTURE & RES. J., no. 1, 1997, at 131, 132.
61. Immigration Act of February 5, 1917, ch. 29, 39 Stat. 874 (codified as amended at 8 U.S.C.
§ 156 (2012)) (repealed June 27, 1952) (emphasis added).
62. U.S.
CONST. art. I, § 2.
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roaming individually in unsettled areas of the country.
63
Those to be taxed and
enumerated were those who had renounced tribal rule and who under state or
territorial laws, at least in theory, exercised the rights of citizens.
64
As Kevin Bruyneel notes, people who have been excluded from American
politics usually view the codification of their citizenship status as an unambiguously
positive political development.
65
This has not been the case for many indigenous
peoples, who refused the submersion of their political identities into the U.S. nation-
state. The history of what happened reflects the ambiguous position of indigenous
peoples to the U.S. state, as simultaneously both inside and outside.
For many years, treaties or special acts of Congress were the only avenue
available for indigenous people to gain U.S. citizen status. As the United States
concluded treaties with Indian tribes, it often used such treaties to promote
assimilation in the form of the relinquishment of tribal allegiance and the imposition
of an individual property rights regime. Collective membership, identity, and rights
were thus ceded in exchange for legal recognition by the state as a citizen.
66
Acts of
Congress included the Dawes Severalty Act of 1887, which promised citizenship to
individual Indian property owners who severed all tribal relations, as well as a 1919
Act providing U.S. citizenship as a benefit of military service to those Indians who
had served in the U.S. Armed Forces during World War I.
67
While the Supreme Court in the 1857 Dred Scott decision restricted the
definition of citizen in the United States to white persons (blacks being of an
“inferior order”),
68
after the Civil War the definition was expanded. The Civil Rights
Act of 1866 created a general rule of birthright citizenship, stating that “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.”
69
The framers of
the Fourteenth Amendment then added similar language to the Constitution to
63. Kristy Gover, Genealogy as Continuity: Explaining the Growing Tribal Preference for Descent Rules in
Membership Governance in the United States, 33 A
M. IND. L. REV. 243, 260 (2008).
64. The existence of the provision “Indians not taxed” has led to a persistent belief that Indians
are immune from any form of federal taxation. M. Christian Clark, Analytical Research Guide to Federal
Indian Tax Law, 105 L
AW LIBR. J. 505, 507 (2013) (“Contrary to popular belief, individual Indians are
‘subject to federal income tax just like every other American.’” (citation omitted)).
65. B
RUYNEEL, supra note 37, at 97.
66. As Bethany Berger writes, “Although some native people sincerely did seek citizenship, in
U.S. history calls to provide citizenship to American Indians were repeatedly linked to efforts to deny
them self-determination.” Bethany R. Berger, The Anomaly of Citizenship for Indigenous Rights, in H
UMAN
RIGHTS IN THE UNITED STATES: BEYOND EXCEPTIONALISM 217, 217 (Shareen Hertel & Kathryn
Libal eds., 2011).
67. Dawes Severalty (General Allotment) Act of 1887, ch. 119, 24 Stat 388, 390 (repealed 2000);
Act of November 6, 1919, ch. 95, 41 Stat. 350 (granting citizenship to certain honorably discharged
Indians who served during the World War); Smith, supra note 60, at 133, 151 n.7 (describing treaties).
68. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857), superseded by constitutional
amendment, U.S. C
ONST. amend. XIV.
69. Act of April 9, 1866, ch. 31, 14 Stat. 27 (codified as amended at 42 U.S.C. § 1981 (2012));
see Bethany Berger, Citizenship in Red and Yellow: Elk v. Wilkins and United States v. Wong Kim Ark 9
(unpublished manuscript) (on file with author) (explaining that Indians not taxed were excluded based
on the belief that tribal Indians were not “subject to the jurisdiction” of the United States).
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302 UC IRVINE LAW REVIEW [Vol. 5:289
ensure that the Civil Rights Act would have its intended power. In the Fourteenth
Amendment, the guarantee of citizenship is stated as follows: “All 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.”
70
Note the phrase “subject to the jurisdiction thereof.” This is the same phrase
that is being used today to attack birthright citizenship for children of un-
documented immigrants
71
—as well as to undermine the principle of birthright
citizenship for children of temporary visitors.
72
The rhetoric against the rollback of
birthright citizenship for the children of undocumented immigrants typically
analogizes these children to the children born of Chinese migrants, whose birthright
citizenship was recognized in the 1898 Supreme Court decision Wong Kim Ark.
73
In
this fashion, the children of undocumented immigrants are folded into a civil rights
narrative of increasing expansion of inclusion and membership.
But, in contrast, what if a person had been born a member of one of the Indian
tribes still recognized as having its own sovereignty?
74
In Wong Kim Ark, the Court
described such Indians as “standing in a peculiar relation to the national
government.”
75
The majority scholarly consensus is that “subject to the jurisdiction
thereof” was intended to refer to those who are subject to the enforcement of U.S.
laws.
76
This would mean that the clause applied to everyone territorially present in
the United States with a few exceptions, namely foreign diplomats who receive
diplomatic immunity, children of invading armies, and Indians born to tribes with
70. U.S. CONST. amend. XIV.
71.See Mae Ngai, Birthright Citizenship and the Alien Citizen, 75 F
ORDHAM L. REV. 2521, 2523
(2007).
72. The attempt to restrict birthright citizenship for children of temporary visitors (known
technically in immigration law as nonimmigrants) is motivated by concern about U.S. citizens whose
presence is “accidental” and whose U.S. citizenship may later pose issues for the U.S. government. See
J
OHN C. EASTMAN, FROM FEUDALISM TO CONSENT: RETHINKING BIRTHRIGHT CITIZENSHIP
(2006); Katrina Trinko, The New Immigration Debate, N
AT’L REV. ONLINE ( January 27, 2011),
http://www.nationalreview.com/articles/257647/new-immigration-debate-katrina-trinko. Examples
of U.S. citizens born to nonimmigrant parents who cause concern include Yaser Hamdi, whose father
was working in Louisiana for an oil company when Hamdi was born, and Anwar Al Awlaki, whose
father, Nasser al-Awlaki, the founder of Ibb University and former president of Sana University, studied
in the United States as a Fulbright Scholar and worked as a researcher and assistant professor in
Minnesota, Nebraska, and New Mexico, where Al Awlaki was born. See Jere Van Dyk, Who Were the 4
U.S. Citizens Killed in Drone Strikes?, CBSN
EWS (May 23, 2013), http://www.cbsnews.com/news/who-
were-the-4-us-citizens-killed-in-drone-strikes/; Howard Sutherland, Citizen Hamdi, A
M. CONSERVATIVE
(Sept. 27, 2004), http://www.theamericanconservative.com/articles/citizen-hamdi.
73. United States v. Wong Kim Ark, 169 U.S. 649, 704 (1898); see, e.g., James C. Ho, Defining
“American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 G
REEN BAG 367
(2006).
74. For a discussion of the debates preceding the adoption of the Fourteenth Amendment, see
D. Carolina Núñez, Beyond Blood and Borders: Finding Meaning in Birthright Citizenship, 78 B
ROOK. L. REV.
835 (2013).
75.Wong Kim Ark, 169 U.S. at 682.
76.See Gerald L. Neuman, Back to Dred Scott?, 24 S
AN DIEGO L. REV. 485, 494–95 (1987)
(book review); Cristina M. Rodríguez, The Citizenship Clause, Original Meaning, and the Egalitarian Unity of
the Fourteenth Amendment, 11 U.
PENN. J. CONST. L. 1363 (2009).
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their own sovereignty.
77
And in the 1885 Supreme Court decision Elk v. Wilkins,
the Court had held that an Indian who had voluntarily separated from his tribe and
taken residence among the white citizens in a state, but had not been naturalized or
subject to taxation, was not a citizen of the United States under the Fourteenth
Amendment.
78
John Elk had sought to vote in the Omaha general election and was
refused.
79
According to Bethany Berger, Elk was Winnebago. She suggests that
Elk’s plea for U.S. citizenship was likely an attempt to escape the whims of federal
control, given the likelihood that he had experienced a lifetime of forced removals.
80
The Court held that Elk was not deprived of his right to vote, since he was not a
U.S. citizen.
81
To be a citizen of the United States, noted the Court, is a political
privilege that no one, not born to this privilege, can assume without the
government’s consent in some form.
82
Thus, Indians such as Elk were neither aliens
nor citizens.
This only shifted in 1924 when Congress unilaterally conferred U.S. citizenship
on indigenous people born in the United States via statute.
83
Thus, today, the
Immigration and Nationality Act clarifies that nationals and citizens of the United
States at birth includes
[1] a person born in the United States, and subject to the jurisdiction
thereof; [or 2] a person born in the United States to a member of an Indian,
Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of
citizenship under this subsection shall not in any manner impair or
otherwise affect the right of such person to tribal or other property.
Recall that John Elk was also not a citizen of the United States because he had
not naturalized. For Indians born within the United States, naturalization became
possible two years after Elk v. Wilkins under the Dawes Act, also known as the
General Allotment Act, which created a system for the destruction of communal
reservation lands and the individualized assimilation of Native Americans.
84
In the
words of Teddy Roosevelt, this law was “a mighty pulverizing engine to break up
77. Neuman, supra note 76.
78. Elk v. Wilkins, 112 U.S. 94, 109 (1885).
79.Id. at 94–96.
80. Berger, supra note 69, at 282–83.
81.Elk, 112 U.S. at 109.
82.Id. at 109 (quoting United States v. Osborne, 2 F. 58, 61 (D. Or. 1880)).
83. Act of June 2, 1924, ch. 233, 43 Stat. 253 (granting citizenship to noncitizen Indians). An
addendum was added in 1940 to clarify that the recognition of U.S. citizenship was not to impair the
person’s right to tribal property. Immigration and Nationality (McCarran-Walter) Act, ch. 477, § 301
(a)(1)–(2), 66 Stat. 163, 235 (1952) (codified as amended at 8 U.S.C. § 1401(a)–(b) (2012)). Bethany
Berger notes, “a careful history speculates that the Indian Citizenship Act did not reflect specifically
Indian concerns, but was a last gasp of the Progressive movement trying to reduce the power of the
notoriously inefficient Indian Bureau by removing its authority to grant or deny citizenship.” Berger,
supra note 69, at 48 (referring to Gary C. Stein, The Indian Citizenship Act of 1924, 47 N.M.
HIST. REV.
257, 258 (1972)).
84. Dawes Severalty (General Allotment) Act of 1887, ch. 119, 24 Stat. 388, 390 (repealed 2000).
Bethany Berger indicates that the Dawes Act was passed in the wake of the decision in Elk, spurred by
reformers who sought to assimilate Indians into citizenship. Berger, supra note 69, at 21, 43.
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304 UC IRVINE LAW REVIEW [Vol. 5:289
the tribal mass.”
85
Under the act, parcels between 40 and 160 acres were allotted to
individual Indians, and title was held in trust by the federal government for twenty-
five years.
86
At the conclusion of the trust period, after the allottee had established
“competency” as a private property holder and as a member of American society,
the individual Indian would receive title to the land in fee simple and become a U.S.
citizen.
87
Competency was correlated with industry, which was correlated with
having some modicum of white blood.
88
Full-blood Indians were considered legally
incompetent. The allotment process opened the way for nonindigenous persons to
buy property within the historical boundaries of tribal territory, amounting to a
divestment of two-thirds of the reservation land base.
89
For Indians born outside the United States, naturalization was not a possibility
for many decades still. The U.S. Constitution empowers Congress to come up with
a uniform rule of naturalization; Congress chose to enact a racial bar so that from
1790 to 1870 only white persons could naturalize.
90
In 1870, Congress added the
provision also allowing aliens of African nativity and persons of African descent to
naturalize.
91
Subsequently there were three cases of North American Indians
seeking to naturalize; all were barred.
The first case involved Frank Camille, born in British Columbia to a white
father and an Indian mother and residing since the age of seventeen in Oregon. The
court in 1880 decided that he was not a white person and therefore was ineligible
to naturalize.
92
As the court said, meditating upon the meaning of whiteness, the
1870 proffering of citizenship to those from the “dark continent,” and the status of
Frank Camille:
Words . . . have . . . a well settled meaning in common . . . speech . . . . [I]t
appears that the words “white person” do not, and were not intended to,
include the red race of America.
. . . .
From the first our naturalization laws only applied to the people who
had settled the country—the Europeans or white race—and so they
remained until in 1870 . . . when, under the pro-negro feeling, generated
and inflamed by the war with the southern states, and its political
consequences, congress was driven at once to the other extreme, and
opened the door, not only to persons of African descent, but to all those
85. BRUYNEEL, supra note 37, at 94.
86. Dawes Severalty (General Allotment) Act § 5.
87. B
RUYNEEL, supra note 37, at 94–95; see also Dawes Severalty (General Allotment) Act § 6.
88. B
RUYNEEL, supra note 37, at 81.
89. For a discussion, see id.; Berger, supra note 69, at 44–46; and Piatote, supra note 16, at 107.
90. Naturalization Act of 1790, ch. 3, § 1, 1 Stat. 103, 103–04 (repealed Jan. 29, 1975).
91. Naturalization Act of 1870, ch. 255, § 7, 16 Stat. 254, 256; Chinese Exclusion Act, ch. 126,
§1, 22 Stat. 58, 58–59 (1882) (repealed Dec. 17, 1943). For a discussion of the litigation that ensued, see
I
AN HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 35–55, 163–67 (10th
ed. 2006).
92.In re Camille, 6 F. 256, 259 (C.C.D. Or. 1880).
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“of African nativity”—thereby proffering the boon of American
citizenship to the comparatively savage and strange inhabitants of the
“dark continent,” while withholding it from the intermediate and much-
better-qualified red and yellow races.
However, there is this to be said in excuse for this seeming
inconsistency: the negroes of Africa were not likely to emigrate to this
country, and therefore the provision concerning them was merely a
harmless piece of legislative buncombe, while the Indian and Chinaman
were in our midst, and at our doors and only too willing to assume the
mantle of American sovereignty, which we ostentatiously offered to the
African, but denied to them.
. . . [W]hat is the status in this respect of the petitioner, who is a person of
one-half Indian blood?
. . . .
. . . [T]he petitioner is not entitled to be considered a white man. As a
matter of fact, he is as much an Indian as a white person, and might be
classed with the one race as properly as the other. Strictly speaking, he
belongs to neither.
93
Ten years later, Samuel Burton, described as an “Indian” and a “native of
British Columbia, now and for many years a resident of Alaska,” sought to
naturalize.
94
This naturalization was denied by the court, noting that the treaty of
cession between the United States and Russia allowed that “the uncivilized tribes
will be subject to such laws and regulations as the United States may from time to
time adopt in regard to aboriginal tribes of that country,” and that there appeared
no law of the United States whereby Burton might be admitted to citizenship.
95
Lastly, in the 1938 case In re Cruz, a man whose father was Indian and whose
mother was half African and half Indian presented the sole published case of a
litigant arguing that he should be considered of African descent or nativity, rather
than white, for purposes of surmounting the racial bar to naturalization.
96
In an
inverse relationship to the law of hypodescent or one drop rule, which the court
acknowledged in many contexts recognized persons with only one-eighth negro
blood to be a person of color, the court held that “[i]t would therefore seem entirely
incongruous to reason that the words ‘African descent’ should be construed to be
less exacting in denoting eligibility for naturalization, than the term ‘white persons,’”
93.Id. at 257–59 (citations omitted).
94.In re Burton, 1 Alaska 111, 111 (1900).
95.Id. at 112, 114.
96.In re Cruz, 23 F. Supp. 774, 774–75 (E.D.N.Y. 1938). This is the only information about the
applicant provided in the opinion: “This application for naturalization embodies an affidavit containing
the following: ‘My mother is half African and half Indian and my father is a full blooded Indian. I
learned this information from them when I was a small child. I believe that my father’s ancestors were
all full blooded Indians.’” Id. at 774.
For a list of all published cases involving the racial prerequisite to naturalization, see H
ANEY LÓPEZ,
supra note 91, at 163–67.
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when white persons had to be more than one-half white to be considered white.
Cruz was thus not sufficiently African to claim American citizenship.
97
At the same time these racial bars were in effect the laws of citizenship were
also gendered, reflecting both the idea of forced inclusion and assimilation, as well
as the concept of a gendered dependent citizenship, so that a married woman’s
national citizenship tracked that of her husband’s via a logic of coverture.
98
In 1888,
Congress passed a statute titled “marriage between white men and Indian women,”
specifying that even though Indian women were themselves racially ineligible to
naturalize,
every Indian woman, member of any such tribe of Indians, who may
hereafter be married to any citizen of the United States, is hereby declared
to become by such marriage a citizen of the United States, with all the
rights, privileges, and immunities of any such citizen, being a married
woman.
99
This statute can be seen as reflecting the rationale of husbands standing in for
the nation-state, so that married women experienced dependent citizenship—“as a
woman, I have no country.”
100
The law of dependent citizenship also extended to
U.S. citizen women married to foreign-born men between 1907 and 1931.
101
As
Beth Piatote describes:
In literature, white men served as symbolic representations of the settler
colonial society, and Indian women emblematized a sacrificial love that
would resolve the settler-native conflict. But in the laws that regulated
Indian political subjectivity, these metaphors gained materiality: white men
as patriarchal heads of households became the stable center through which
Indian political rights could be defined . . . .
. . . .
. . . [I]n both the United States and Canada, [laws] worked through the
intimate bond of marriage to break down indigenous national polity and
serve the domestication goals of the settler nations.
102
Thus, during a period when Indians were considered racially ineligible to naturalize,
Indian women married to white men were incorporated into citizenship, turning
them into “domestic subjects” in two senses of the term.
103
97. In re Cruz, at 775.
98.See Act of August 9, 1888, ch. 818, §§ 1–2, 25 Stat. 392, 392 (codified as amended at 25
U.S.C. § 182 (2012)).
99.Id. For further discussion of this statute, see Bethany R. Berger, Indian Policy and the Imagined
Indian Woman, 14 K
AN. J.L. & PUB. POL’Y 103 (2004); and Piatote, supra note 16, at 97–104.
100. We find Virginia Woolf writing in Three Guineas, responding in part to dependent
citizenship: “[A]s a woman, I have no country. As a woman I want no country. As a woman my country
is the whole world.” V
IRGINIA WOOLF, THREE GUINEAS 125 (2d ed. 1986) (1938).
101.See Volpp, supra note 9, at 425, 445–46.
102. Piatote, supra note 16, at 96.
103. For a discussion, see generally B
ETH PIATOTE, DOMESTIC SUBJECTS: GENDER,
CITIZENSHIP AND LAW IN NATIVE AMERICAN LITERATURE (2013).
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The 1924 law creating a statutory grant of citizenship settled the immigration
status of U.S.-born Indians, but not that of indigenous peoples born outside the
United States.
104
That very same year, Congress passed the National Origins Quotas
Act, the law that, in Mae Ngai’s words, “raised the border,” denying entry to any
immigrant considered to be an alien ineligible to citizenship.
105
Immigration
inspectors began to deny entry to Canadian-born indigenous people who had
previously been freely crossing the border between the United States and Canada.
106
Canadian-born indigenous people crossed freely because they had free passage
rights. At the end of Revolutionary War, the United States and Great Britain signed
the Treaty of Paris, establishing the boundary line of Canada and the United States,
drawing it in the process through the territories of several Indian nations.
107
In 1794,
the Jay Treaty guaranteed the right of British subjects, American citizens, and “also
to the Indians dwelling on either side of the said boundary line” to freely cross and
recross the U.S.-Canadian border by land or inland navigation.
108
While the right of
British (Canadian) and American citizens to freely pass ended with the War of 1812,
Indians’ rights to freely pass the U.S.-Canadian border were not extinguished.
109
Thus, when immigration inspectors began to deny entry to Canadian-born
indigenous people in 1924, letters of protest began to appear, pointing out that this
was in violation of the Jay Treaty.
110
The U.S. government first argued that these
persons were excludable from the country as racially ineligible immigrants, but
suggested that they could enter as nonimmigrants (temporary visitors).
111
(This
practice was followed with Chinese immigrants, who were racially excludable since
1882 as Chinese laborers but admissible as of 1888 as exempt categories of
nonimmigrants.)
112
In 1926 the Indian Defense League of America was formed to defend Jay
Treaty rights, sponsoring as an exercise of these rights a border crossing at Niagara
104. Immigration Act of 1924, ch. 190, § 28, 41 Stat. 153, 168.
105. M
AE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN
AMERICA 68 (2004) (using this phrase to describe the effect of the formation of the Border Patrol).
106. Smith, supra note 60, at 149.
107. The Definitive Treaty of Peace and Friendship Between His Britannick Majesty, and the
United States of America, U.S.-Gr. Brit., Sept. 3, 1783, reprinted in 3 A COLLECTION OF ALL THE
TREATIES OF PEACE, ALLIANCE, AND COMMERCE, BETWEEN GREAT-BRITAIN AND OTHER
POWERS 410, 410–19 (Gregg Int’l Publishers Ltd. 1968) (1785) [hereinafter Treaty of Paris].
108. Treaty of Amity, Commerce, and Navigation ( Jay Treaty), U.S.-Gr. Brit., art. III, Nov. 19,
1794, 8 Stat. 116.
109. The question of how these passage rights are guaranteed is contested. For the view that
free passage rights were reaffirmed in the Treaty of Ghent, see Dan Lewerenz, Historical Context and
the Survival of the Jay Treaty Free Passage Right: A Response to Marcia Yablon-Zug, 27 A
RIZ. J. INT’L
& COMP. L. 193 (2010). For the view that free passage rights now exist only as a matter of statutory
law, see Marcia Yablon-Zug, Gone But Not Forgotten: The Strange Afterlife of the Jay Treaty’s Indian Free
Passage Right, 33 Q
UEEN’S L.J. 565 (2008).
110. Smith, supra note 60, at 149.
111.Id. at 136.
112. Chinese Exclusion Act, ch. 126, § 1, 22 Stat. 58, 58–59 (1882) (repealed Dec. 17, 1943).
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Falls, which continues annually today.
113
The League defended Paul Diabo, a
Canadian-born Mohawk who was engaged in a court challenge of the 1924
Immigration Act as a violation of his Jay Treaty rights as a member of the
Rotinonhsionni (Iroquois) Confederacy.
114
Diabo had made trips back and forth
over the border until 1925, working as a structural ironworker, when he was arrested
for an alleged violation of law for entering the United States without inspection.
115
After a hearing, he was ordered deported and responded by filing a writ of habeas
corpus. As the district court noted, there was no question of contagion, moral
unfitness, or pauperism; he was not excludable on any ground other than the idea
that he was considered an alien ineligible to naturalize.
116
Let me quote the 1927 district court decision at some length, as it indicates the
complexity of the status of Indians vis-à-vis the U.S. government:
The Indians have always been recognized by us as a nation and as a race
independent of our governmental control in the ordinary sense of that
phrase. In this sense they are an alien people, but at the same time we have
likewise, from our point of view, felt toward them the relation of wardship.
Territorially as a nation they have always been an imperium in imperio,
although we have from time to time negotiated treaties with them for the
surrender to us of the exclusive occupancy of described parts of what they
claimed to be their territory, but which was otherwise always regarded by
us as our territory. In like manner, we have from time to time allotted
territory to them, and protected them in its occupancy. . . .
The turning point of the [case] is thus to be sought in the answer to the
question of whether the Indians are included among the members of the
alien nations whose admission to our country is controlled and regulated
by the existing immigration laws. The answer, it seems to us, is a negative
one. From the Indian viewpoint, he crosses no boundary line. For him this
does not exist. . . . This does not mean that the United States could not
exclude him, but it does mean that the United States, having recognized
his right to go from one part of his country to another unobstructed by a
boundary line, which as to him does not exist, will not be taken to have
denied this right, unless the clear intention so to do appears. We do not
find such denial in any of the cited exclusion acts of Congress.
117
As the court stated: “From the Indian viewpoint, he crosses no boundary line. For
113.See Native American Resource Program: Border Crossing Celebration, NATIVE AM. RESOURCE
PROGRAM, http://www.buffaloschools.org/native_american.cfm?subpage=27840 (last visited Nov.
23, 2014); Advertisement from the Indian Defense League of America (2012), available at https://
sni.org/media/34592/85th_annual_free_boarder_crossing.pdf.
114.See Gerald F. Reid, Illegal Alien? The Immigration Case of Mohawk Ironworker Paul K. Diabo, 151
P
ROC. AM. PHIL. SOC’Y 61, 73 (2007); Audra Simpson, Subjects of Sovereignty: Indigeneity, The Revenue Rule,
and Juridics of Failed Consent, 71 L
AW & CONTEMP. PROBS., Summer 2008, at 191, 204.
115. Reid, supra note 114, at 63.
116. United States ex rel. Diabo v. McCandless, 18 F.2d. 282, 283 (E.D. Pa. 1927), aff’d, 25 F.2d
71 (3d Cir. 1928).
117.Id. at 283.
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him this does not exist.”
118
The government appealed the decision, but it was upheld
by the Third Circuit in 1928.
119
Aware of this ruling, Congress passed legislation, 8
U.S.C. § 226a, less than one month later, which stated: “The Immigration Act of
1924 shall not be construed to apply to the right of American Indians born in
Canada to pass the borders of the United States: Provided, That this right shall not
extend to persons whose membership in Indian tribes or families is created by
adoption.”
120
But a problem soon arose. Congress had not defined the term “Indian” in the
statute. Should “Indian” be defined by Canadian law or U.S. law? In Canada, to be
Indian was a political status.
121
Following the gendered logic of dependent
citizenship, non-Indian women who married Indian men were considered Indian
and children born from such marriages were Indian.
122
Indian women who married
non-Indian men lost their Indian status, and children born from such marriages
were not Indian.
123
Canada had also created a status called “enfranchisement” via
the Act to Encourage the Gradual Civilization of Indian Tribes, which meant that
Indians could (voluntarily or involuntarily) be enfranchised as British subjects and
Canadians citizens upon the condition that they lost their Indian identity and thus
would no longer enjoy Jay Treaty rights.
124
(In fact, Canada did not allow Indians
to vote in federal elections without first relinquishing their Indian status until
1960.)
125
In 1942, the Board of Immigration Appeals, faced with two white women
married to Canadian Indians, thus deemed by Canadian law members of an Indian
tribe, who were seeking to pass the borders of the United States without documents
118. Id.
119. McCandless v. United States ex rel. Diabo 25 F.2d. 71, 73 (3d Cir. 1928).
120. Act of April 2, 1928, ch. 308, 45 Stat. 401. Marian Smith notes that Southern Europeans
seeking to enter the United States “frequently posed as North American Indians” in order to avoid
national origins quotas and take advantage of border crossing rights. Smith, supra note 60, at 137. By
1934 at the port of Buffalo, “such cases arose two or three times a month. Despite ‘coaching’ about
Canadian Indian tribes and customs, Immigrant Inspectors easily exposed imposters with ‘trick
questions’ or by uttering Indian salutations.’” Id.
121. Smith, supra note 60, at 144–47.
122. S., 1 I. & N. Dec. 309, 310 (B.I.A. 1942). The Canadian Indian Act at that point defined
“Indian” as:
(i) Any male person of Indian blood reputed to belong to a particular band.
(ii) Any child of such person.
(iii) Any woman who is or was lawfully married to such person (ch. 98, Rev. Stat. of Canada,
1927).
Id.
123. Smith, supra note 60, at 145.
124.S., 1 I. & N. Dec. at 311. Those who were involuntarily enfranchised included Indians who
graduated from a university, became a lawyer, entered holy orders, or became ministers. See Paul
Spruhan, The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States
Immigration Law, 85 N.D.
L. REV. 301, 209 n.57 (citing BRIAN A. CRANE ET AL., FIRST NATIONS
GOVERNANCE LAW 133 (2006)).
125.See Mary Eberts, Still Colonizing After All These Years, 64 U.N.
BRUNSWICK L.J. 123, 149
(2013); Val Napoleon, Extinction by Number: Colonialism Made Easy, 16 C
AN. J.L. & SOC’Y, 113, 117
(2001).
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310 UC IRVINE LAW REVIEW [Vol. 5:289
under section 226a, chose to follow the political status definition and allowed them
to freely enter.
126
In 1947, Dorothy Karnuth, an Upper Cayuga woman from the Six
Nations Reserve in Ontario, Canada, who had lost her Indian status in Canada by
marriage to a white man, was taken into custody by the INS and told she faced
deportation from the United States to Canada.
127
The United States claimed that
section 226a did not apply to her, as it did not apply to Indians who are not members
of a tribe and she was “tribeless.”
128
The district court chose to respond by using a
“racial” versus “political” definition of being Indian.
129
Obviously, these are inexact
terms, as a “racial” definition is still a political one. The fact that section 226a
exempted persons who had been adopted from being allowed to freely pass
suggested to the court that the meaning of section 226a should be understood as
being about “blood”—as “racial”—rather than “political,” with the court noting
“‘American Indians born in Canada’ . . . must be given a racial connotation. . . . One
whom nature has not made an American Indian cannot be made one by adoption
in some Indian tribe or family.”
130
This notion that “to be Indian” was “racial” rather than “political” was
sedimented in an amendment to section 226a in the 1952 McCarren-Walter Act,
creating legislation that still exists as section 289 of the Immigration and Nationality
Act.
131
Today, the right to freely pass the border into the United States from Canada
is allowed to “American Indians born in Canada” if they possess “at least 50 per
126.S., 1 I. & N. Dec. at 313. In choosing to follow Canada’s political definition, the Board
sought to defer to a comprehensive definition of tribal governance, which it assumed was “acceptable
to the Indians as a recognition of their tribal customs and way of life.” Id. at 312; see also Spruhan, supra
note 124, at 310–11 nn.67–69 (discussing the internal agency discussion about this case).
127. United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 660 (W.D.N.Y. 1947); see also
M
ARTHA GARDNER, THE QUALITIES OF A CITIZEN: WOMEN, IMMIGRATION AND CITIZENSHIP,
1870–1965, at 150 (2005); Simpson, supra note 114, at 207.
128.Karnuth, 74 F. Supp. at 661.
129.Id. at 663.
130.Id. This approach was subsequently followed by the Board of Immigration Appeals in B-,
3 I. & N. Dec. 191 (B.I.A. 1948), in which a woman born on an Indian reserve of the Abenakis of
Pierreville, who had married a white man and lost her status as a North American Indian born in
Canada, was nonetheless accorded free passage rights even though she would otherwise face exclusion
because of a conviction of the crime of adultery. Id. at 192. The blood quantum required was specified
as “more than one-half Indian blood” in a case involving M-, who was born in Canada of a mother
who was thought to be a full-blooded Indian and a father who was “a member of the white race” who
left when the respondent was an infant. M-, 4 I. & N. Dec. 458 (B.I.A. 1951). M- and his mother never
lived on an Indian reservation, received no treaty money from the Canadian government, and were
never members of any tribes of Indians. Id. Looking to how the status of an “American Indian of mixed
blood” had been determined in other contexts, including naturalization cases, the Board held that the
respondent was not to be regarded as a Canadian Indian within the meaning of free passage rights, and
was therefore found to be deportable. Id.
131. Immigration and Nationality (McCarran-Walter) Act, ch. 477, § 289, 66 Stat. 234, 234
(1952) (codified as amended at 8 U.S.C. § 1359 (2012)). Paul Spruhan notes that legislative history
provides no clues as to why Congress defined the free passage right by blood quantum; the INS’s
general counsel stated in 1954 that he “had no idea why the blood quantum requirement was added.”
Spruhan, supra note 124, at 314–15.
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centum of blood of the American Indian race.”
132
Canada, as it turns out, does not
keep blood quantum records, and while United States Citizenship and Immigration
Services (USCIS) accepts blood quantum letters from Indian band officials, this has
led to various problems, such as the recent case of a blond man named Peter
Roberts being denied entry after being told he had insufficient Indian blood to cross
despite his tribal documents indicating his membership in the Campbell River Band
of Canadian Indians.
133
Those with sufficient blood quantum have the right to pass, which is
understood to include the right to visit, live, and work in the United States without
obtaining a work permit or legal permanent residence. The right is unidirectional;
U.S.-born Indians do not have Jay Treaty rights to enter Canada.
134
There is
significant confusion about what Jay Treaty rights provide. Greg Boos and Greg
McLawsen note, as just one example, that in 2003 U.S. Armed Forces recruiters
seeking military personnel for U.S. wars in Iraq and Afghanistan visited Canadian
reservations under the impression residents were dual citizens.
135
Free passage rights initially only meant exemption from exclusion proceedings,
which determine whether aliens may be lawfully admitted, and not immunity from
deportation proceedings, which determine whether aliens may be expelled. The
Board of Immigration Appeals in Matter of A. held in 1943 that just because “an
Indian is not subject to exclusion, it does not necessarily follow that he is immune
from deportation,” in response to the case of a man attached to the Chemainus
Band.
136
While the United States sought to deport him on grounds both arising
132. Immigration and Nationality Act § 289.
133. Spruhan, supra note 124, at 301, 317.
134. At the same time, Canada recognizes other grounds upon which Indians can freely pass
the border. The Canadian Immigration Act states that “every person registered as an Indian under the
Indian Act has the right to enter and remain in Canada in accordance with this act, and an officer shall
allow the person to enter Canada if satisfied following an examination on their entry that the person is
a . . . registered Indian.” Immigration and Refugee Protection Act, S.C. 2001, c. 27, Div. 3, sec. 19(1)
(Can.). Canadian courts also recognize an aboriginal right to freely pass the border, rooted not in the
Jay Treaty but in Canada’s Constitution. See G
REG BOOS & GREG MCLAWSEN, AMERICAN INDIANS
BORN IN CANADA AND THE RIGHT OF FREE ACCESS TO THE UNITED STATES (2013), updated and
expanded as Greg Boos et al., Canadian Indians, Inuit, Métis, and Métis: An Exploration of the Unparalleled
Rights Enjoyed by American Indians Born in Canada to Freely Access the United States, 4 S
EATTLE J. ENVTL. L.
343 (2014) (definitive explanation of Jay Treaty rights).
135. B
OOS & MCLAWSEN, supra note 134, at 19. Caitlin C.M. Smith conducted significant
research attempting to determine what government agencies communicated about Jay Treaty rights, in
an investigation of “desk-clerk law”; she found significant misinformation communicated at border
crossing points, on federal information lines and in Social Security offices. Caitlin C.M. Smith, The Jay
Treaty Free Passage Right in Theory and Practice, 1 A
M. IND. L.J. 161, 171–72 (2012).
136. A., I. & N. Dec. 600, 603 (B.I.A. 1943). The only basis on which he could not be deported,
according to the Board, was a ground arising before entry. Id. The distinction here is whether
deportation functions as a corrective to exclusion (catching those who were mistakenly admitted), or
whether it functions as a response to issues that arise postadmission. For a discussion of the distinction,
see S
TEPHEN H. LEGOMSKY & CRISTINA M. RODRIGUEZ, IMMIGRATION AND REFUGEE LAW AND
POLICY 534–35 (6th ed. 2015). See generally DANIEL KANSTROOM, DEPORTATION NATION:
OUTSIDERS IN AMERICAN HISTORY (2007) (differentiating deportation as extended border control
versus deportation as post-entry social control).
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before his admission (that at the time of entry he was afflicted with a contagious
disease and been likely to become a public charge), the Board held that he was
deportable only upon a ground that had arisen since his admission (that he had in
fact become a public charge). In so ruling, the Board expressed concern about “the
burdening of this country with Indians who are deemed unworthy residents of the
United States,” and asserted that “[t]he right of the Indian freely to enter this
country does not presuppose a right to remain here at his sufferance with license to
engage in conduct that would subject the ordinary alien to deportation.”
137
By 1978,
the view that free passage only had relevance for exclusion, and not for deportation,
had shifted. In 1974, in Akins v. Saxbe, a federal district court expressed a rule of
lenity to be applied in statutory construction of the Jay Treaty.
138
Thus, when, in
Matter of Yellowquill, an American Indian woman born in Canada was arrested in
Texas for possession of heroin and ordered deported on criminal grounds, the
Board consulted with the Immigration and Naturalization Service Central Office as
to how to proceed.
139
The Service indicated it considered Akins correct and
recommended that Matter of A. be overruled. The Board thus held that American
Indians born in Canada who are within the protection of section 289 of the
Immigration and Nationality Act are “not subject to deportation on any ground.”
140
While there was a shift to “blood” for the guarantee of free passage, the idea
that blood or race determines access to naturalization began to erode with the
Nationality Act of October 14, 1940, extending the right of naturalization to
“descendants of races indigenous to the Western Hemisphere.”
141
This lifting of the
ban on naturalization for indigenous persons was followed by additional piecemeal
legislation allowing other groups to naturalize, with Chinese being added in 1943,
137.A., I. & N. Dec. at 603. In defining A. as not “a particularly desirable person,” the Board
cited his lack of family ties in the United States, no fixed domicile or any occupation, a history of
gonorrhea for which he received no treatment, and various arrests for drunkenness in Canada and the
United States. Id. at 604–05. The Board followed a similar logic as to free passage rights solely affecting
immunity from exclusion in another case holding that D-, a member of the Eel River Band of Micmac
Indians, was not deportable for offenses (grand larceny) that had existed prior to D-’s last entry into
the United States. D-, 3 I. & N. Dec. 300 (B.I.A. 1948).
138. In this case, the court, in considering the principles of statutory construction that (1) “the
language of statutes and treaties affecting Indians must be construed in a nontechnical sense, as the
Indians themselves would have understood it and in a manner reflecting the conditions prompting its
adoption,” and (2) “ambiguities in statutes and treaties conferring benefits on Indians are to be resolved
in favor of the Indians,” held that the words “to pass” in section 289 exempt American Indians born
in Canada from the alien registration requirements otherwise imposed on aliens by immigration laws.
Akins v. Saxbe, 380 F. Supp. 1210, 1221 (D. Maine 1974).
139. Yellowquill, 16 I. & N. Dec. 576, 578 (B.I.A. 1978).
140.Id. In addition to functioning as a defense to deportation, Jay Treaty rights may also provide
a defense against a criminal charge of illegal entry or reentry, and may provide for civil damages if
someone entitled to Jay Treaty rights is removed. See B
OOS & MCLAWSEN, supra note 134, at 25–27; see
also MacDonald v. United States, No. 11-cv-1088-IEG, 2011 WL 6783327 (S.D. Cal. Dec. 23, 2011)
(claiming civil damages for immigration detention of a member of the Squamish Nation with free
passage rights).
141. Nationality Act of 1940, ch. 3, § 303, 54 Stat. 1137, 1140 (codified as amended at 8 U.S.C.
§ 1421 (2012)).
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Filipinos and Indians in 1946, and persons from Guam in 1950. Two years later
racial criteria for naturalization were removed altogether. This abandonment of
racial restrictions on naturalization was followed by a similar shift away from a racial
preference for whites in immigration admission with the passage of the 1965
amendment to the Immigration and Nationality Act.
142
The blood quantum requirement for free passage thus appears today as an
anomalous holdover from an archaic past, as an exception to an otherwise race-
neutral regime. But it is perhaps better understood as emblematic of the way in
which the political difference of indigenous communities is managed through the
differentiation of race. The move to blood quantum, notes Audra Simpson, shifted
Indian tribes away from the semisovereign status of “domestic and dependent
nations,” to be conceptually and legally treated as racialized minorities.
143
This
move, she notes, correlates with the “diminution of [the] separate status [of
Indians]” and the reduction of their “concomitant political authority and
recognition.”
144
As Joanne Barker writes, “The erasure of the sovereign is the
racialization of the ‘Indian.’”
145
Today, the question of what documentation is required to pass the United
States border is sharply posed by national security and the new Western Hemisphere
Travel Initiative, with negotiations between Homeland Security and transborder
tribes as to what will constitute Initiative-compliant travel documents.
146
These
negotiations have been conducted with transborder tribes along the U.S. borders
with Canada and Mexico.
147
Previous documentation requirements that transborder
142. Gabriel “Jack” Chin names 1965 as the moment when the “Civil Rights Revolution [Came]
to Immigration Law.” See Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New
Look at the Immigration and Nationality Act of 1965, 75 N.C.
L. REV. 273 (1996). For a discussion of the
myriad impacts of the 1965 Act, see L
EGISLATING A NEW AMERICA (Gabriel J. Chin & Rose Cuison
Villazor eds., forthcoming 2015). For the argument that the 1965 Act, in replacing national origins
quotas with formally equal per-country quotas that newly applied to the Western Hemisphere,
drastically reduced legal opportunities for Mexicans to immigrate to the United States, helping to
construct the conflation of “Mexican” and “illegal alien,” see N
GAI, supra note 105.
143. Simpson, supra note 114, at 208.
144.Id.
145. Joanne Barker, For Whom Sovereignty Matters, in S
OVEREIGNTY MATTERS 1, 17 ( Joanne
Barker ed., 2005); see also Bethany R. Berger, “Power Over this Unfortunate Race”: Race, Politics and Indian
Law in United States v. Rogers, 45 W
M. & MARY L. REV. 1957, 1959 (2004) (arguing that the U.S. federal
government, by redefining Indians as individuals joined not by politics but by race, asserted the power
to breach tribal boundaries).
146.See U.S. Customs & Border Protection, Travel Documents for Native Americans, Including U.S.,
Canadian and Mexican Born Members of U.S. Tribes, CPB
INFO. CENTER, https://help.cbp.gov/app/
answers/detail/a_id/998/~/travel-documents-for-native-americans,-including-u.s.,-canadian-and-
mexican (last updated Sept. 9, 2014).
147. Transborder tribes that straddle the U.S.-Mexico border do not benefit from the Jay Treaty
or section 289 of the INA. However, Mexican nationals who are members of the Texas band of the
Kickapoo Indians or the Kickapoo Tribe of Oklahoma do have a migratory right to freely pass and
repass the borders of the United States and to live and work in the United States. This right is derived
from the migratory, social, and cultural ties that initially led the Immigration and Naturalization Service
to issue the Kickapoo immigration cards granting the tribe the right to cross the border, in one-year
increments. In 1983, Congress passed the Texas Band of Kickapoo Act, Pub. L. No. 97-429, 96 Stat.
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314 UC IRVINE LAW REVIEW [Vol. 5:289
tribes fought included the 1940 national security measure under the Alien
Registration Act requiring all non-U.S. citizens resident in or entering the United
States to register with and be fingerprinted by the United States.
148
The Indians’ widespread complaint about Alien Registration was, as Chief
Clinton Rickard, founder of the Indian Defense League of America, put it, that “the
real Americans are paradoxically called aliens.”
149
It was in Clinton Rickard’s home
that Chief Deskaheh, also known as Levi General, passed away in 1925, after
crossing the Atlantic using his own Haudenosaunee Confederate passport in an
effort to persuade the League of Nations to recognize Indian sovereignty.
150
He was
refused reentry to Canada because he was traveling on his tribal passport and died
in the United States.
151
His insistence on the right to travel on a tribal passport
echoes in the efforts of the Iroquois Lacrosse team who were refused entry to the
United Kingdom in 2010 since they planned to travel on their tribal passports;
passports used, points out Audra Simpson, for the past thirty years by a government
that predates the United States and the United Kingdom by 300 years, and by the
people who also invented lacrosse.
152
This history, of the treatment of indigenous people by U.S. immigration and
citizenship law, shows us a legal regime grappling with incommensurability. We see
in this history that immigration law’s conventional narration of space, time, and
membership fails to capture the complex relationship of indigenous people and the
U.S. nation-state. We also see, as part of this story, the indigenous made into aliens.
The turning of the indigenous into aliens is not a unique historical practice.
2269 (1983) (codified as amended at 25 U.S.C. § 1300b-11 to -16 (2012)), making this right permanent
and exercisable so long as members possess an I-1872 American Indian Card. This is a Western
Hemisphere Travel Initiative-compliant card only available to Texas and Oklahoma Kickapoo. Other
transborder tribes whose communities straddle the U.S.-Mexico border, such as the Tohono O’Odham,
do not have a similar right to enter the United States. See B
OOS & MCLAWSEN, supra note 134, at 17–
19, 35–36. For further discussion of transborder tribes straddling the U.S.-Mexico border, see Megan
S. Austin, A Culture Divided by the United States-Mexico Border: The Tohono O’Odham Claim for Border Crossing
Rights, 8 A
RIZ. J. INT’L & COMP. L. 97 (1991); Leah Castella, Note, The United States Border: A Barrier to
Cultural Survival, 5 T
EX. J. C.L. & C.R. 191 (2000); Joshua J. Tonra, The Threat of Border Security on Indigenous
Free Passage Rights in North America, 34 S
YRACUSE J. INT’L L. & COM. 221 (2006). On the Western
Hemisphere Travel Initiative’s impact on passage rights, see Brian Kolva, Lacrosse Players, Not Terrorists:
The Effects of the Western Hemisphere Travel Initiative on Native American International Travel and Sovereignty, 40
W
ASH. U. J.L. & POL’Y 307 (2012).
148.See Smith, supra note 60, at 142.
149.Id. at 150 (quoting Clinton Rickard to Attorney General Robert H. Jackson (Oct. 15, 1940)
(INS file 55853/734)).
150. Simpson, supra note 114, at 205–06.
151.Id. at 206.
152. A
UDRA SIMPSON, MOHAWK INTERRUPTUS: POLITICAL LIFE ACROSS THE BORDERS OF
SETTLER STATES 25 (2014); see also Kolva, supra note 147; Thomas Kaplan, Bid for Trophy Becomes a Test
of Iroquois Identity, N.Y.
TIMES, July 13, 2010, at A16; Michelle Chen, Passport Flap Keeps Iroquois Out of
World Lacrosse Championships, C
OLORLINES ( July 17, 2010, 6:31 AM EST), http://colorlines.com/
archives/2010/07/grounded_iroquois_lacrosse_team_bows_out_but_upholds_dignity.html; Suzanne
Merkelson, Why the Iroquois Lacrosse Team Couldn’t Travel Abroad, F
OREIGN POL’Y ( July 19, 2010, 2:07 PM),
http://blog.foreignpolicy.com/posts/2010/07/18/iroquois_lacrosse_team_gives_up_on_bid_to_
attend_uk_tournament.
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2015] THE INDIGENOUS AS ALIEN 315
Two additional examples are instructive. Leila Kawar has argued that we can
see this transformation in another context, writing of the Israeli attempt to deport
Palestinian residents of East Jerusalem. She writes: after the Israeli assertion of
sovereignty over East Jerusalem in 1967, Palestinian residents were given the
“choice” to register for Israeli citizenship, which Palestinians who chose not to
recognize Israeli sovereignty refused to do.
153
But this meant that the status of
“resident alien” became seen as a freely exercised individual choice leading to what
has been called a “quiet deportation.”
154
As Kawar asserts, in the aftermath of a
territorial conflict that defines or redefines the bounds of the state, racially marked
indigenous populations are vulnerable to being legally recast as aliens or virtual
immigrants.
155
The making of already present populations into aliens is also shown by Kunal
Parker in his study of African Americans and poor relief in late eighteenth-century
Massachusetts.
156
Deportation in the United States was not initially a federal
practice; rather it originated on the local level, following the principle derived from
English poor laws, through the deportation of paupers.
157
Thus, the system of poor
relief regulated what we understand as immigration—it “sought to secure territorial
communities against the claims of outsiders.”
158
Within this system—the law of
settlement—legal responsibility for the individual’s claims lay with the town from
which he came. Accordingly, a person could be denied relief because he was not
from here, but from there.
After slavery was ended in Massachusetts, African Americans threw the system
of poor relief into crisis. When enslaved, African Americans were the fiscal
responsibility of their masters. When they emerged from slavery, they suddenly were
the subjects making claims but they had not come from another town—they were
here, without having a there to belong to. What Parker found was that town
communities assigned African Americans who were elderly or sick and needed
financial help to geographic origins outside of Massachusetts, to a place called
“Africa,” to represent them as foreigners who were the legal responsibility of
somewhere else.
159
As he asserts, towns invented immigrant origins to justify refusing these claims
upon the community.
160
He argues that this shows that actual territorial movement
153. Leila Kawar, Legality and (Dis)membership: Removal of Citizenship and the Creation of ‘Virtual
Immigrants’ in the 1967 Israeli Occupied Territories, 14 C
ITIZENSHIP STUD. 573, 582 (2010).
154.Id.
155.Id. at 573.
156. Kunal M. Parker, Making Blacks Foreigners: The Legal Construction of Former Slaves in Post-
Revolutionary Massachusetts, 2001 U
TAH L. REV. 75, 77. In her article, Kawar also links her analysis both
to Parker’s history and to the conquest and expulsion of American Indians, in showing how racially
marked populations can be marked as foreigners. See generally Kawar, supra note 153.
157.See Gerald L. Neuman, The Lost Century of American Immigration Law (1776–1875), 93
C
OLUM. L. REV. 1833, 1846 (1993).
158. Parker, supra note 156, at 80.
159.Id. at 103–04.
160.Id.
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316 UC IRVINE LAW REVIEW [Vol. 5:289
of a body may not be the critical marker of an immigrant, and that we should not
let it be so, because otherwise it allows the presumption that there is always a
“there,” to where a person can return, as a community to which it truly belongs, on
which it can rely.
161
Instead, we should see, in his historical study as well as in
Kawar’s work and in the case of Paul Diabo, that persons—regardless of their
spatial movement or lack thereof—“became aliens,” that the relationship between
citizenship and territory emerges as a tactic.
Kawar writes that Israel has been juridically formulated into a state with
immigration problems rather than a state engaged in a project of conquest and
settlement.
162
One could say the same of the United States. To understand why
there is utter amnesia about this fact, not only within immigration law but in general
discourse about America, let us turn once again to political theory.
III.
THE POLITICAL THEORY OF FORGETTING—THE SETTLER’S ALIBI
Here we must point to the convergence of the liberal social contract with the
logic of settlement as well as the confluence of settlerism with immigration, both
literally and metaphorically. As a number of scholars have recently pointed out, John
Locke—involved simultaneously in his development of social contract theory and
his engagement in colonial administration in the Americas—was pivotal in
articulating North America as in a state of nature.
163
As Locke put it, “—[I]n the
beginning, all the world was America.”
164
Native Americans had no social contract,
and as purported hunter gatherers, could not own property in land, which came
only from husbandry (agricultural improvement).
As Ayosha Goldstein notes, Lockean ideas were crucial to Justice John
Marshall, who authored the trilogy of Supreme Court cases Johnson & Graham’s
Lessee v. M’Intosh (Indians can have no absolute title over property but only a right
of occupancy);
165
Cherokee Nation v. Georgia (Indians were neither states or foreign
nations, but rather domestic dependent nations; their relationship to the United
States was as ward to guardian, leading to the creation of the “trust relation”
between tribes and the U.S. federal government);
166
and Worcester v. Georgia (state
laws had no force in Indian country as only the federal government has plenary
power over Indian tribes).
167
Goldstein suggests that, for Locke, “natural men”
served two purposes. They were evidence that “freedom was the natural condition
161.Id. at 121–22.
162. Kawar, supra note 153, at 586.
163. See, e.g., L
ISA FORD, SETTLER SOVEREIGNTY: JURISDICTION AND INDIGENOUS PEOPLE
IN
AMERICA AND AUSTRALIA, 1788–1836, at 15 (2010); AZIZ RANA, THE TWO FACES OF AMERICAN
FREEDOM 33–34 (2010); TOMLINS, supra note 59, at 178–79; Alyosha Goldstein, Where the Nation Takes
Place: Proprietary Regimes, Antistatism, and U.S. Settler Colonialism, 107 S.
ATL. Q. 833, 839 (2008).
164. J
OHN LOCKE, SECOND TREATISE ON GOVERNMENT 30 (Richard H. Cox ed., Harlan
Davidson, Inc. 1982) (1689).
165. Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 588 (1823).
166. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
167. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832).
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of humankind.”
168
At the same time, that Indians appeared to Locke to not engage
in settled agricultural labor allowed the justification of settler colonialism.
169
The purported lack of agricultural development provided an opportunity not
only for the propagation of new crops but of a new society.
170
Carole Pateman, in
analyzing the logic of the original contract in the form of what she names the “settler
contract” notes:
When colonists are planted in a terra nullius, an empty state of nature, the
aim is not merely to dominate, govern, and use but to create a civil society.
Therefore, the settlers have to make an original—settler—contract.
Colonial planting was more than cultivation and development of land.
The seeds of new societies, governments, and states, i.e. new sovereignties,
were planted in both New Worlds. States of nature—the wilderness and
the wild woods of Locke’s Second Treatise—were replaced by civil
societies.
171
Here we might note the term “plantation.” Known colloquially today as a farm
or estate (and often associated with servitude or slavery), the term plantation has an
earlier meaning, which was “settlement,” or “colony.”
172
Plantation was a form of
colonization in which settlers were planted to establish a colonial base. That both
seeds and settlers can be planted shows how the “political and natural worlds [are]
analogous and inextricably linked.”
173
Seeds, settlers, and a new sovereignty were
planted in the New World.
Seeds of a new society are planted; a new society is born. There is an “original”
moment that marks the founding of the “United States”—think of the founding
documents, the July 4th national “birthday,” the founding fathers who created a
government by which “We, the People” would govern ourselves. The original
contract governing this new political community was created at this founding
moment. Pateman writes: “In a terra nullius the original contract takes the form of a
settler contract. The settlers alone (can be said to) conclude the original pact. It is a
168. Goldstein, supra note 163, at 839.
169. Id.
170. See generally J
AMES SCOTT, SEEING LIKE A STATE (1999) (on conceptions of nature and
space, the application of utilitarian logic to nature, and the resulting rhetorical choices (nature versus
natural resources, crops versus weeds, etc.) that are made).
171. Pateman, supra note 40, at 38–39.
172. English Definitions of the Word Plantation, O
XFORD DICTIONARIES, http://www
.oxforddictionaries.com/definition/english/plantation (last visited Nov. 26, 2014). We could think here
of Plymouth Plantation, founded by the Pilgrims in 1620. That the term plantation has these multiple
valences underlay the ballot initiative to change Rhode Island’s official name from “Rhode Island and
Providence Plantations” in 2010 (the initiative failed). See Abby Goodnough, Rhode Island, Hoping to Shed
Unsavory Past, Weighs Shorter Name, N.Y.
TIMES, June 30, 2009, at A10; see also Rhode Island Name Change
Amendment, Question 1 (2010), B
ALLOTPEDIA, http://ballotpedia.org/Rhode_Island_Name_Change
_Amendment,_Question_1_%282010%29 (last visited Mar. 24, 2015).
173. Siobhan Somerville, Towards a Queer History of Naturalization, in L
EGAL BORDERLANDS:
LAW AND THE CONSTRUCTION OF AMERICAN BORDERS 67, 77 (Mary L. Dudziak & Leti Volpp eds.,
2006).
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318 UC IRVINE LAW REVIEW [Vol. 5:289
racial as well as a social contract.”
174
“[This] original contract simultaneously
presupposes, extinguishes, and replaces a state of nature.”
175
While Pateman does not say this, we could argue that, logically, putting this
work on the settler contract together with her earlier work on the sexual contract,
the settler contract must also be a sexual contract.
176
As she writes, the original
contract constitutes both freedom and domination: freedom for men, and
domination over women.
177
If the social contract in a terra nullius is a settler
contract, that settler contract is a story of freedom for settlers and subjection for
the indigenous, freedom for men and subjection for women. This is vividly apparent
in Andrea Smith’s Conquest, where she writes that both Native men and women have
been subjected to a reign of sexualized terror, although sexual violence does not
affect Indian men and women in the same way.
178
“The issues of colonial, race, and
gender oppression cannot be separated. This fact [says Smith] explains why in my
experience as a rape crisis counselor, every Native survivor I ever counseled said to
me at one point, ‘I wish I was no longer Indian.’”
179
That the settler contract is a sexual contract is also a product of the fact that
the settler state assumes reproductive futurity, solely on the part of those who are
considered fit to be citizens of the settler state. As Lorenzo Veracini asserts, both
the permanent movement of communities and the reproduction of communities
are necessarily involved in settler colonialism. The cover of his book, Settler
Colonialism, is a picture titled “Wives for the Settlers at Jamestown,” which he
describes as the moment when colonialism turns into settler colonialism.
180
He is
referring here to a drawing by William Craft of the 1608 arrival of women in
Jamestown. As asserted by Lord Bacon, the Attorney General and Lord Chancellor
of England, and a member of His Majesty’s Council for Virginia in 1620: “When
the plantation grows to strength, then it is time to plant with women, as well as with
men; that the plantation may spread into generations, and not be ever pieced from
without.”
181
What might be the relationship of the settler contract with immigration? Aziz
Rana, arguing that settler empire lay at the heart of American freedom, suggests that
the unique settler ideology of the United States required migration, under a system
that constituted economic independence as the basis of free citizenship; made
174. Pateman, supra note 40, at 56.
175.Id. at 67.
176. Thank you to Melissa Murray for suggesting I integrate Pateman’s work on the sexual
contract into this argument.
177. C
AROLE PATEMAN, THE SEXUAL CONTRACT 2 (1988).
178. A
NDREA SMITH, CONQUEST: SEXUAL VIOLENCE AND AMERICAN INDIAN GENOCIDE
8 (2005).
179.Id.
180. L
ORENZO VERACINI, SETTLER COLONIALISM: A THEORETICAL OVERVIEW, at vii
(2010).
181. F
RANCIS BACON, Of Plantations, in THE ESSAYS OF FRANCIS BACON 106 (Clark Sutherland
Northup ed., Houghton Mifflin Co. 1908) (1620), available at http://www.authorama.com/essays-of-
francis-bacon-34.html.
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conquest the basic engine of republican freedom, needing new territory for settlers
so the ethical benefits of free labor could be made generally accessible; and
acknowledged the idea that republican principles at root were not universally
inclusive, as some needed to engage in the dignified work marked by productive
control, with others in unfree work.
182
In order to sustain this project, new migrants
were needed, creating remarkably open immigration policies for Europeans.
183
Thus, Rana asserts, settlerism and immigration existed not as two distinct accounts
of the American experience, but were bound up together.
184
In extending this line of inquiry, we might think about the relationship of the
settler contract with immigration, not just in terms of bodies needed for the settler
project but also in terms of the metaphorical relationship between immigration and
settlerism. Immigration functions as an alibi for settlerism. Of course, for many,
settlerism requires no alibi; that it does not can be explained through how settlerism
is naturalized via both foundational texts (Little House on the Prairie) and myths (the
Western frontier) central to the shaping of American national identity.
185
Settlement
is considered inevitable and is segmented from what is understood as
immigration.
186
But the natural-seeming common sense of settlement can be
unpacked by pointing out the feats of grammatical, temporal, and spatial gymnastics
required in its construction. Think of the articulation of James Belich: “An emigrant
joined someone else’s society, a settler or colonist remade his own.”
187
This
empirical claim highlights the constitutive paradox of moving to one’s own country.
If we parse the terms settler, migrant, and immigrant, some distinctions
emerge. The settler belongs to his land, and the land belongs to him. His relationship
to his country could be conceptualized as fee simple title. In contrast, the migrant
is moving to a country not his own. He has only a fragile interest in that land. If he
has been lawfully admitted, he merely possesses a revocable license, suggesting that
he can be removed from this land to which he does not belong. If he has not been
182. RANA, supra note 163, at 12.
183. On these open immigration policies, see generally H
IROSHI MOTOMURA, AMERICANS IN
WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006)
(discussing both admission policies and remarkably favorable policies for immigrants who had declared
their intent to naturalize—including the ability to obtain land grants under the Homestead Act and to
vote in many states).
184. RANA, supra note 163, at 13.
185. See Frances W. Kaye, Little Squatter on the Osage Diminished Reserve: Reading Laura Ingalls
Wilder’s Kansas Indians, 20 G
REAT PLAINS Q. 123 (2000); Waziyatawin Angela Cavender Wilson, Burning
Down the House: Laura Ingalls Wilder and American Colonialism, in U
NLEARNING THE LANGUAGE OF
CONQUEST: SCHOLARS EXPOSE ANTI-INDIANISM IN AMERICA (Wahinkpe Topa (Four Arrows) ed.,
2006).
186. As Kerry Abrams describes, pre-Chinese exclusion era immigration history is treated as
settlement history. She writes, “We do not see settlement as a part of immigration history because, in
hindsight, it seems inevitable that the western territories became a part of the United States.” Kerry
Abrams, The Hidden Dimension of Nineteenth-Century Immigration Law, 62 V
AND. L. REV. 1354, 1356 (2009).
187. James Belich, The Rise of the Angloworld: Settlement in North America and Australasia, 1794–
1918, in R
EDISCOVERING THE BRITISH WORLD 39, 53 (Philip Buckner & R. Douglas Francis eds.,
2005). For an explanation of the term emigrant, see infra note 192 and accompanying text.
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320 UC IRVINE LAW REVIEW [Vol. 5:289
lawfully admitted, his relationship to the land is even more tenuous—he is
conceived as a trespasser. The term immigrant is used more often in the United
States today than either the term settler or migrant. It is a capacious term, with both
positive and negative valences. Its positive valence can capture the settler, its
negative valence, the migrant. The positive valence is the immigrant who shores up
America’s democracy; the negative valence is the illegal, the unworthy, the
ungrateful, the threatening. The term “nation of immigrants” embraces only the
former.
As the notion of settlerism becomes unsavory, settlers portray themselves as
immigrants, particularly as forming a “nation of immigrants.”
188
Donna Gabaccia
notes that the United States is almost alone among 193 nations in calling itself a
nation of immigrants, though she points out Canada and Australia do, occasionally,
as well.
189
(She does not mention what else these three nation-states have in
common—these are all settler-colonial states.)
But the United States in particular most naturalizes the history of its
immigration exceptionalism.
190
Gabaccia writes that any idea underlying the concept
of the United States as a nation of immigrants may be challenged: foreigners do not
compose a more significant portion of the U.S. population or play a larger role in
national life than in other nations; the United States is not unique in amalgamating
persons of diverse cultures or origins into a single nation; and migrants have not
found greater success and happiness in the United States than elsewhere.
191
Thus,
she suggests we must ask why and how the United States began understanding itself
as a nation of immigrants. In researching digitized texts, she finds that the popularity
of the phrase as a celebration of American inclusiveness came only in the 1960s,
with the nation of immigrants a metaphor for American nation building during the
Cold War.
192
Not coincidentally, John F. Kennedy penned in 1958 an essay for the
Anti-Defamation League titled A Nation of Immigrants, which he used, in part, to
advocate in favor of eliminating the national-origins quotas applied to the Eastern
188. Of course, for some, settlerism remains a positive notion. See, e.g., SAMUEL P.
HUNTINGTON, WHO ARE WE?: THE CHALLENGES TO AMERICA’S NATIONAL IDENTITY (2004)
(rejecting the notion of the United States as a nation of immigrants, in favor of the notion of the
United States as a nation with an Anglo Protestant core, founded by settlers, not immigrants).
189. Donna R. Gabaccia, Nations of Immigrants: Do Words Matter?, 5 PLURALIST, Fall 2010, at 5,
6.
190. Id. at 7.
191. Id. at 6.
192. Id. at 23. Gabaccia found that the invention of the United States as a nation of immigrants
began significantly earlier, in the decades of the Civil War, as Americans began to label newcomers not
as emigrants, but as immigrants. Id. at 7. Emigrant had been the most popularly used term for a foreigner
entering or living in the U.S., in the first half of the nineteenth century, and was associated with the
retention of European civilization and Protestantism. Id. at 13. Californians began to use the term
immigrants in the context of hostility towards Chinese laborers. Id. at 15–16. Immigrant became the
preferred terminology of restrictionists. Id. at 17. There is thus a counterintuitive relationship between
the historical context in which the term emerged and the positive valence of the term “nation of
immigrants” which appeared later. See generally id. at 5–31.
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Hemisphere.
193
His book, which was enormously popular, helped push through the
lifting of the national-origins quotas in 1965 (a change that has largely been
represented as a civil rights victory, but one that also has arguably led to the
correlation of illegal immigration with “Mexican”).
194
Kennedy begins with Toqueville’s Democracy in America, considered a
foundational text on American democracy. We might note that Toqueville casts the
political founding in a wilderness—“One could still properly call North America an
empty continent, a deserted land waiting for inhabitants”
195
—a vision key to
subsequent notions of the open frontier.
196
Kennedy writes that what Toqueville
saw in America was “a society of immigrants, each of whom had begun life anew,
on an equal footing.”
197
Who are these immigrants? According to Kennedy, “every
American who ever lived, with the exception of one group, was either an immigrant
himself or a descendant of immigrants. . . . And some anthropologists believe that
the Indians themselves were immigrants from another continent who displaced the
original Americans—the aborigines.”
198
And here we see, again, the indigenous
transformed into an alien.
What is the link between the founding and immigrants? As Bonnie Honig
writes, “immigrants [are treated] as the agents of founding and renewal for a regime
in which membership is supposed to be uniquely consent based, individualist,
rational, and voluntarist rather than inherited and organic.”
199
The liberal consenting
immigrant of the nation of immigrants obscures the nonconsensual bases of
American democracy
200
—if American is a product of free choice, there is no slavery,
colonial possession, conquest, and genocide; the violent sources of the republic are
recentered on the idea of voluntary choice continually reaffirmed by the figure of
the immigrant consenting to membership in the regime.
201
As she writes, “The
people who live here are people who once chose to come here, and, in this, America
193. JOHN F. KENNEDY, A NATION OF IMMIGRANTS (1964).
194. N
GAI, supra note 9, at 227–64; see also LEGISLATING A NEW AMERICA, supra note 142.
195. 1
ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 25 (1990).
196. On the concept of the American frontier, see generally Erik Altenbernd & Alex Trimble
Young, Introduction: The Significance of the Frontier in an Age of Transnational History, 4 S
ETTLER COLONIAL
STUD. 127 (2014).
197. K
ENNEDY, supra note 193, at 2.
198.Id. at 2–3.
199. B
ONNIE HONIG, DEMOCRACY AND THE FOREIGNER 73–74 (2001). Honig’s focus is the
symbolic politics of foreignness, and stories in which the origins or revitalization of a people depend
upon the energy of a foreigner. There is an interesting resonance here to explore with the concept of
the “stranger king”—the “conception that political authority in pre-modern polities is conceived of as
foreign or alien.” Mateo Taussig-Rubbo, From the ‘Stranger King’ to the ‘Stranger Constitution’: Domesticating
Sovereignty in Kenya, 19 C
ONSTELLATIONS 248, 250 (2012).
200. H
ONIG, supra note 199, at 75.
201. See generally B
YRD, supra note 18; CHANDAN REDDY, FREEDOM WITH VIOLENCE: RACE,
SEXUALITY, AND THE US STATE (2011); Lisa Lowe, The Intimacies of Four Continents, in HAUNTED BY
EMPIRE: GEOGRAPHIES OF INTIMACY IN NORTH AMERICAN HISTORY 191 (Ann Laura Stoler ed.,
2006).
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is supposedly unique.”
202
Lauren Berlant also notes that “the immigrant is defined
as someone who desires America,” providing “symbolic evidence for the ongoing power
of American democratic ideals”—the immigrant “provides an energy of desire and
labor that perpetually turns American into itself.”
203
The reiteration of the
immigrant choosing to join suggests the repeated agreeing to of the social contract,
from the founding to now, eliding the violent originary dispossession. The desiring
of America eclipses the dispossession by America. This dispossession disappears,
“buried underneath” the vision of America as a land of equality and liberty.
204
The
nation thus appears as an ethical community, rather than as the product of violence,
or as an accident.
205
The naturalization ceremony itself functions as a ritualized public performance
of this consent. We are familiar with the contemporary form of naturalization
ceremonies, staged ceremonies that function as a kind of “feel-good advertisement
for the possibilities of a multiracial democracy, freely chosen by a global cadre of
prospective U.S. citizens,”
206
that Siobhan Somerville describes as the product of a
deliberate federal effort to tell a story about naturalization as “the culmination of a
romance between immigrants and the federal state.”
207
Yet before these
naturalization ceremonies for immigrants were developed, the United States
conducted naturalization ceremonies for Indians becoming citizens through the
Dawes Act. Starting in 1916, a competency commission simultaneously determined
whether individual Indians would be assigned title to property allotments and U.S.
citizenship. The commission began to stage citizenship ceremonies. Indian men
were handed a bow and arrow and told to shoot a final arrow to mark the end of
their resistance to the United States, and then place their hands upon a plow and
vow to take up agriculture. Indian women received sewing kits.
208
Somerville has
found archival evidence that is suggestive of a link between these Dawes Act
ceremonies and the first naturalization ceremonies staged for immigrants; it is
possible that this ritual performance of naturalization of Indians inspired
naturalization ceremonies for immigrants, whose naturalization at the time was
202. HONIG, supra note 199, at 75.
203. L
AUREN BERLANT, THE QUEEN OF AMERICA GOES TO WASHINGTON CITY: ESSAYS
ON
SEX AND CITIZENSHIP 195, 198–99 (1997).
204. As Philip Frickey put it, in America colonization has been “buried underneath” a
constitutional democracy, with the rule of law doing “double work,” providing the glue to both hold
the republic together while “legitimating the displacement of indigenous institutions to make room for
it.” Frickey, supra note 12, at 434.
205. Thank you to Anya Bernstein for the articulation of this point, which helpfully tracks the
dueling notions of political community as based on either ascription or consent that appears in P
ETER
H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE
AMERICAN POLITY (1985).
206. Siobhan Somerville, A Queer Genealogy of Naturalization in the United States 16 (July 25,
2014) (unpublished manuscript) (on file with author).
207. Id. at 4.
208. P
IATOTE, supra note 103, at 113; see also JANET A. MCDONNELL, THE DISPOSSESSION OF
THE
AMERICAN INDIAN, 1887–1934 (1991). See generally Somerville, supra note 206, ch. 4.
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conducted as an individual bureaucratic procedure, with little theatricality.
209
This
history of Dawes Act naturalization is forgotten in the presumption that only
immigrants are naturalized and in the concomitant vision of the desiring
immigrant.
210
So the settler becomes an immigrant. The settler even becomes a refugee.
Think of the story of Exodus, the journey to the Promised Land, the good ship
Arabella, and John Winthrop declaring a divine mission, a “city upon a hill.”
211
This
vision of American exceptionalism and its presumption of a divinely ordained
mandate has been evoked by numerous political figures, including John F.
Kennedy,
212
Ronald Reagan,
213
and recently Mitt Romney,
214
as well as Arnold
Schwarzenegger who, hosting a forum on immigration reform, linked bodybuilding
to the Puritans, placing himself within this historical trajectory—saying, “The life
I’ve lived, the careers that I’ve had, and the successes I’ve had were possible only
because I immigrated to the one place [where] nothing is impossible. . . . To me,
President Ronald Reagan’s shining city on a hill was never just a beautiful
metaphor.”
215
And, foundationally, in yet another metaphorical and rhetorical inversion,
settlers portray themselves as natives, to indigenize themselves.
216
Colonization
meant “the indigenous alienated, the newcomers domesticated.”
217
As Patrick
Wolfe writes:
Settler colonies were (are) premised on the elimination of native societies.
The split tensing reflects a determinate feature of settler colonization. The
colonizers come to stay—invasion is a structure not an event. . . . [T]he
romance of extinction, for instance (the dying race, the last of his tribe,
etc.), encodes a settler-colonial imperative . . . . In the settler-colonial
economy, it is not the colonist but the native who is superfluous.
218
Thus, the native familial identity of the settlers (founding father, daughters of the
209. Somerville, supra note 206, at ch. 4, 9–10, 33–35.
210. Somerville’s book focuses on collective naturalization without individual consent,
including the Civil Rights Act, and the Treaty of Guadalupe Hidalgo. See id.; see also supra Introduction.
211. S
ACVAN BERCOVITCH, THE AMERICAN JEREMIAD, at xxiv (2d ed. 2012).
212. See John. F. Kennedy, “City Upon a Hill” Speech (Jan. 9. 1961), available at
http://millercenter.org/president/speeches/speech-3364.
213. See Ronald Reagan, We Will Be a City Upon a Hill (Jan. 25, 1974), available at
http://reagan2020.us/speeches/City_Upon_A_Hill.asp.
214. Byron York, Why Gingrich Won – Why Romney Lost, W
ASH. EXAMINER ( Jan. 22, 2012, 1:18
AM), http://www.washingtonexaminer.com/why-gingrich-won-why-romney-lost/article/1078266#
null.
215. Arnold Schwarzenegger, Former Governor of Cal., Opening Remarks at the University of
Southern California Schwarzenegger Institute Forum on Immigration Reform (Apr. 30, 2013).
216. Kauanui, supra note 11. One way this manifests is through “going native,” which Shari
Huhndorf describes as a means of constructing white identities, naturalizing the conquest, and
inscribing various power relations within American culture. S
HARI M. HUHNDORF, GOING NATIVE:
INDIANS IN THE AMERICAN CULTURAL IMAGINATION 6 (2001).
217. T
OMLINS, supra note 59, at 6.
218. W
OLFE, supra note 15, at 2–3.
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American Revolution, native sons) is both proclaimed and premised on the
disappearance of the actual native inhabitants, a disappearance that is both
metaphorical and literal. This imagining away “banishes existing inhabitants to the
margins of its consciousness.”
219
“Imagining North America as ‘settled’ did not
merely reject indigenous property claims; it presupposed a fundamental erasure of
Indian presence.”
220
This is the “Vanishing Indian,” as seen in the Edward Curtis
portraits frequently offered for sale on the back of the New York Times.
221
In turning settler into native, the settler must show some relationship to the
soil, suggesting an autochthonous relationship that would justify the idea that “this
land was made for you and me.” This allows settler society to “spring organically
from the local soil,” and this is accomplished through appropriating “the symbolism
of the very Aboriginality that it has historically effaced.”
222
As Wolfe suggests, “It
should, by now, be no surprise that the precontact stereotypes of repressive
authenticity should figure on the money, postage stamps and related imprints of the
settler-colonial state, even though that state is predicated on the elimination of those
stereotypes’ empirical counterparts.” We could think here of the Indian head-
buffalo nickel.
Yet these facts are effaced and forgotten. Because we understand the United
States to be an ideal political body, its violent foundations must be disavowed.
223
When, as Lorenzo Veracini writes, violence by settler-colonial narratives against the
indigenous is acknowledged, it can only be explained as “self-defense,” self-defense
of this ideal political body.
224
The nation of immigrants metaphor suggests that immigrants to the United
States are the heirs of their forefathers, who made the settler contract in
brotherhood among themselves in relationship to virgin land. This contract was
founded in a purported right of inherited descent and providential destiny from the
founding fathers—fathers whose alien status goes unrecognized, even while
indigenous populations are made aliens.
225
This turning of indigenous populations
into aliens, this folding of settler society into the nation of immigrants happens
when it is expedient. When the indigenous experience is collapsed with the
immigrant experience this is, notes Jodi Byrd, a “reordering of their temporal arrival
into a ‘post-conquest’” America.
226
This temporal reordering is also visible in the
219. TOMLINS, supra note 59, at 132.
220. R
ANA, supra note 163, at 49.
221.See T
IMOTHY EGAN, SHORT NIGHTS OF THE SHADOW CATCHER: THE EPIC LIFE AND
IMMORTAL PHOTOGRAPHS OF EDWARD CURTIS (2012).
222. W
OLFE, supra note 15, at 207.
223. V
ERACINI, supra note 180, at 77–78.
224. Id.
225. This story of the vertical relationships imagined within the nation is accompanied by a
story about the horizontal relationships necessary for the “imagined community” of the nation, as well.
See B
ENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD
OF
NATIONALISM 7 (3d ed. 2006) (1983) (“[T]he nation is always conceived as a deep, horizontal
comradeship.”).
226. B
YRD, supra note 18, at 52.
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idea that the settler is moving to his destined country, to create an immanent society
to come.
227
If one searches for visual representations of the nation of immigrants, one
finds images of the borders of the continental United States filled by people, by
smiling multicultural faces. What this does is remove the focus from the role of the
state and the function of the state in establishing a “gatekeeping nation,”
228
a
“deportation nation,”
229
or a settler colonial state. The nation-state appears as if
magically constructed through the migration of peoples inside. The nation of
immigrants suggests that the American nation is made up solely of persons each
here as a matter of individual voluntary choice, moving through space, reiterating
the legitimacy of this as a nation-state formation.
Immigration is responsible for indigenous dispossession. But it also provides
the alibi. Thus, immigration functions as both the reason for—and basis of—denial.
The settler state is naturalized as the nation of immigrants.
227. VERACINI, supra note 180, at 23.
228. L
EE, supra note 8, at 6.
229. K
ANSTROOM, supra note 136.
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