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Citizenship and Nations

Steve Russell
3/20/12

Citizenship is a tricky word in Indian country. It’s “citizenship” rather than “membership” if an Indian nation is not a club and you can’t join it.

“Nation” or “tribe” is another semantic issue that conceals as much politics as citizenship. I dislike “nation” because we don’t have all the attributes of a nation and most of us are ill equipped to take on nationhood. Others dislike “tribe” because of the anthropological baggage that connotes primitive peoples lacking sophistication or agency in the community of nations.

The problem is we are not states. We did not ratify the U..S Constitution and we dare not unless it is amended to account for us in a fuller manner than it does.

But we are not nations in that we have no foreign policies beyond relations with the nations of North America and no vote at the United Nations. Part of what defines a nation is international recognition as such. Trying to be a nation outside the community of nations is like trying to be an Indian outside an Indian tribe. You can be only a legend in your own mind.

On the other hand, we are “peoples” within the meaning of the UN Declaration on the Rights of Indigenous Peoples. We are not alone in the world, far from it.

The closest analogs to American Indians are Native Hawaiians and other involuntary citizens of settler societies like Canada, Australia, and New Zealand. But indigenous cultures survive with problems similar to ours in Latin America, India, China, and Northern Europe.

The government problem is to define what entity has the power to deal with what issues, and this problem in the US is labeled “federalism.” The apportionment of powers between the federal government and the several states was attempted in the Constitution but the matter is far from settled even after the bloodiest war in US history was fought over federal power.

This is known in most histories as the Civil War but some people still call it “The War of Northern Aggression.” Whichever, it did not settle all federalism issues, and the status of Indians has even less settled meaning.

Ticklish matters arise among those peoples who have never lived within the borders of one recognized nation-state. The Six Nations and the Blackfeet, the Abenaki and many others in the north; O’odham and Yaqui and many others in the south.

The practicalities of citizenship come to a head in Arizona’s “brown in a no brown zone” law that purports to require people who look like they might be foreigners to carry their papers.

Under the Constitution, state authorities are without power here. The purpose of the Arizona law is to give them power where the Constitution does not.

A city cop can stop the robbery of a federally insured bank because it's a breach of the peace and a concurrent crime under state law that literally can be prosecuted in both courts.

A status crime is not a breach of the peace.

The hitch in making unlawful presence a state crime is that state courts have no authority to determine the status Arizona and its copycats seek to criminalize. As a state court judge who has had brushes with immigration law, I can tell you it is anything but clear-cut.

Arizona seeks to get around that by criminalizing proxies for the status that are imperfect, those proxies being particular papers some lawful residents have and some do not. It remains to be seen how much imperfection will be allowed in the land of "beyond a reasonable doubt."

But the land of beyond a reasonable doubt is not where this law works its evil. Habeas corpus could clean that up, and everybody knows his or her Hispanic-looking yardman can afford that, right Gov. Romney?

It's the land of reasonable suspicion/probable cause where the evil lies. As we say in the trade, “you can beat the rap but you can’t beat the ride.”

We are finding in the current wave of Republican voter suppression laws that there is some percentage of U.S. citizens whose most common defining characteristics are class status and age who cannot prove their citizenship.

I wondered when the Arizona law passed and I still wonder about substantial numbers of Indians born on the reservations before the reservations coordinated birth records with the states, something that is imperfect to this day and only happened in theory within the lifetimes of our grandparents. In Oklahoma, that would be the year after statehood, 1908, but Oklahoma tribes were involuntary “early adopters.”

Arizona’s political achievement is using false analogies to non-status crimes to put lipstick on the pig of bigotry, but for tribal peoples it might encourage some semantic clarification about citizenship and how we feel about having more than one. And, for some of our elders, how to prove it.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas, and can be reached at swrussel@indiana.edu.

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