The Indigenous as Alien
5 UC Irvine Law Review 289 (2015)
40 Pages Posted: 2 Sep 2015 Last revised: 30 Sep 2015
Date Written: June 1, 2015
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 its sense of space, time, and national membership. In terms of space, the field reflects the tradition of Westphalian territorial sovereignty, imagining a single sovereign absolutely controlling a defined territory and its associated population, rather than conceptualizing ambiguous spaces, neither entirely foreign nor domestic, or layered mappings. In terms of time, the implicit temporality of immigration law is the present and the future, whether in a positive valence (the cosmopolitan, the diasporic) or in an apocalyptic valence (the anchor baby, the sleeper cell), in contrast to the time of indigenous persons, which is the perceived as the time of the past. And lastly, to understand how immigration understands national membership, I look to the work of Michael Walzer, penning the most influential theoretical defense of immigration sovereignty, and in particular, to a little-noticed passage with his prescription for what to do when there are already people living in a territory which is now under the control of a new state.
Despite the fact that indigenous persons disappear from how the field of immigration is conventionally understood, there is in fact a complicated and fascinating history of U.S. immigration and citizenship doctrines struggling to place indigenous persons within their ambit. I thus examine the cases denying indigenous persons naturalization under racial restrictions as well as the history of how indigenous persons have been understood under the 14th Amendment guarantee of birthright citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof...." In addition, I examine transborder tribes and free passage rights, especially along the border between the United States and Canada, which was drawn through the territories of several Indian nations, and led to the 1794 Jay Treaty and subsequent efforts to exercise Jay Treaty rights. 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 centum of blood of the American Indian race." This blood quantum requirement for free passage appearing in the Immigration and Nationality Act might appear as an anomalous holdover from an archaic past, 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 imagining away of preexisting indigenous peoples reflects the fact that the United States is perceived as a state with immigration problems, rather than a state engaged in conquest and settlement. To understand why there is amnesia about this fact, I turn to political theory. Here I point to the convergence of the liberal social contract with the logic of settlement (planting seeds, settlers, and a new sovereignty in the New World) as well as the confluence of settlerism with immigration, both literally and metaphorically. Bodies were needed for the settler project. In addition, immigration functions as an alibi for settlerism. As the notion of settlerism becomes unsavory, settlers portray themselves as immigrants, particularly as forming a nation of immigrants. These immigrants choose to join the social contract, suggesting an America which is the product of free choice, eliding the nonconsensual bases of American democracy. The desiring of America eclipses the dispossession by America. Through this process, the indigneous is made alien, and the settler is turned native. The settler state is naturalized, as the nation of immigrants.
Keywords: indigenous, immigration, citizenship, settler colonial, social contract, naturalization, nation
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