Securing Our Nation’s Roads and Borders or Re-circling the Wagons?Leslie Marmon Silko’s Destabilization of “Borders”Archul...
Securing Our Nation’s Roads andBorders or Re- circling the Wagons?Leslie Marmon Silko’s Destabilizationof “Borders”Elizabe...
While justice is theoretically colorblind, the disproportionate                      number of minorities who are targeted...
unequal relations that continue to play out in the legal treatment ofnonwhites. Silko demonstrates how the legal perceptio...
whites. Beginning with congressional passage of the Naturalization Act                      of 1790, the United States res...
by mainstream Americans’ nonresponse to McVeigh’s criminal act. In theend, attempts to physically remove identifiable “alie...
In the Southwest, the United States has assigned Mexican Ameri-                      cans and American Indians a perpetual...
movements reflect the social relations of colonialism. Law enforcementpractices designed to curtail illegal immigration and...
border patrol checkpoint station. Angrily, she recalled, “My compan-                      ion and I were detained despite ...
tenance of racial, social, and political hierarchies. She arrived at thisconclusion after reading Charles Dickens’s Bleak ...
around looking at all the best land and where the good                            water was. Then they filed quiet title su...
to claim. Even large land and cattle companies and homesteaders viewedcommunity grants as part of the public domain, which...
By rejecting the authority that the rule of law presumably exerts, Zeta                      has rejected liberalism’s mos...
teach you is that, in the American way of life, each man      has respect for his brother’s vision. Because each of us    ...
border patrol officials believed that the vehicle they stopped contained                      illegal aliens.47 In United S...
multiple detentions became her reminder that she has also been markedand targeted as dangerous by a colonialist government...
world countries that presumably threatened U.S. national security.57                      Dunn notes that the Clinton admi...
Simcox, founder of Civil Homeland Defense, issued a proclamation toArizona’s Governor Napolitano and Tucson’s Border Patro...
migrations. In order to check the flow of illegal immigration, which                      is linked with Mexican drug carte...
indigenous peoples have used and shared as trade routes for thousandsof years. Even so, Zeta rejects the border’s authorit...
a path to healing because indigenous peoples reestablish and reclaim                      the ancient roads their ancestor...
N   O   T   E   S    Harris, “Whiteness As Property,”             of 1952 also made implementa-    Harvard Law Review 106 ...
N   O   T   E   S                         20 Ibid., 115–16.                   ...
N   O    T   E   S    Review 47 (August 2000): 1689;                   to the United States after a brief    Leonard M. Ba...
Securing Our Nation’s Roads and Borders or Re-circling the Wagons? Leslie Marmon Silko’s Destabilization of “Borders”
Securing Our Nation’s Roads and Borders or Re-circling the Wagons? Leslie Marmon Silko’s Destabilization of “Borders”
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Securing Our Nation’s Roads and Borders or Re-circling the Wagons? Leslie Marmon Silko’s Destabilization of “Borders”


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How do immigration and border policies affect Indigenous peoples who can be mistaken for Hispanic or whose homes share international borders?

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Securing Our Nation’s Roads and Borders or Re-circling the Wagons? Leslie Marmon Silko’s Destabilization of “Borders”

  1. 1. Securing Our Nation’s Roads and Borders or Re-circling the Wagons?Leslie Marmon Silko’s Destabilization of “Borders”Archuleta, Elizabeth.Wicazo Sa Review, Volume 20, Number 1, Spring 2005, pp. 113-137 (Article)Published by University of Minnesota PressDOI: 10.1353/wic.2005.0001 For additional information about this article Access Provided by Arizona State University at 12/14/11 5:11PM GMT
  2. 2. Securing Our Nation’s Roads andBorders or Re- circling the Wagons?Leslie Marmon Silko’s Destabilizationof “Borders”Elizabeth ArchuletaI n the United States, roads symbolize the freedom that Americans havecome to value. Early on, American literature expressed the connectionbetween freedom and the open road, a feeling Walt Whitman conveysin the first three lines of his poem “Song of the Open Road”: “Afoot andlight-hearted, I take to the open road, / Healthy, free, the world beforeme, / The long brown path before me, leading wherever I choose.”1 Evenbefore the introduction of the automobile, Whitman understood thatroads were synonymous with freedom, and his poem still seems con-temporary, in part because it continues to convey the special meaningof roads for those who live in the United States. Significantly, laws havealso protected the freedom that roads symbolize for many Americans. R E V I E WArticle 13 of the United Nations Universal Declaration of Human Rightsstates, “Everyone has the right to freedom of movement and residence S Awithin the borders of each state.” The United States Supreme Courthas also upheld the right to travel as a basic constitutional freedom W I C A Z Oprotected by the Fifth Amendment, stating that travel is a liberty inter-est that cannot be limited without due process. Supreme Court Justice 113William Douglas has even described freedom of movement as “the very SPRING 20 0 5essence of our society, setting us apart . . . it often makes all other rightsmeaningful.”2 Since the Constitution and the Supreme Court have guar-anteed the right to travel, and since United States citizens presumablylive in a colorblind society, most Americans would deny that race helpssecure or protect these rights or that race-based laws regulate mobility.3
  3. 3. While justice is theoretically colorblind, the disproportionate number of minorities who are targeted as potential criminals is an in- dication that she does see color, especially on the road.4 In addition to contemporary laws that govern the smooth flow of traffic, there also exist unspoken legal rules that have determined the ability and choice of certain individuals to move freely across America. In this sense roads preserve an image of imperialism, because they remind indigenous peoples that roads helped facilitate colonialism’s expansion into new territories, their ancestral homelands. Furthermore, roads continue to demonstrate how colonialists exercise power over indigenous peoples through laws that attempt to disguise that power. Balanced against the presumption that laws constrain the exer- cise of power within limits or that laws serve everyone’s interest are the views of critical race theorists Robert Williams and Cheryl I. Harris, who assert that legal rules often serve the “interests of the powerful and that rather than being a constraint on power rules are a reflection of and help enable and reproduce relations of inequality.”5 By perpetuating legal rules of exclusion sometimes based on race, those in power have continued to maintain the racial and social hierarchies that colonial- ists created. They codified racial and social hierarchies through laws similar to those that once supported and maintained the institution of slavery or the Chinese Exclusion Act, which prohibited Chinese peoples from migrating to the United States. Today, United States law still maintains conventional patterns organized by colonialist regimes designed to regulate space and manage people. These include immigra- tion and drug laws that have created for policing agencies along the border a specific and homogeneous conception of the nation that es- sentially predetermines who belongs, who should be excluded, or who might be a criminal. The southwestern United States continues to feel the impact of imperialism as a result of a colonized legal system that arbitrarily, but systematically, continues to racialize and categorize nonwhite peoples R E V I E W as savage or dangerous.6 While drug and immigration laws single out for punishment “illegal” border crossers from the south, their broad accusations of race-based criminality affect “people of color” from the S A north by restricting their right to travel freely and without fear.7 The W I C A Z O United States attempts to diminish its ongoing occupation and control of the border region by delivering these limitations under the guise of114 securing the nation’s roads and borders (for “Americans”) from drug runners, illegal immigrants, and, since September 11, from terrorists. SPRING 20 0 5 When examined in this historical and political context, the writing of New Mexico, Laguna Pueblo author Leslie Marmon Silko becomes an exercise in the decolonization of America’s roads and borders as well as an “American” identity, because she makes visible the power relations embedded in roads as well as in the concept of “Americanness” and the
  4. 4. unequal relations that continue to play out in the legal treatment ofnonwhites. Silko demonstrates how the legal perception and handlingof nonwhites incorporates a notion of “foreignness” in the shaping of ra-cial identity and legal status, even for American Indians. Nevertheless,Silko decolonizes popular notions of “Americanness” by redefining theterm so that it captures and encapsulates the criminal tendencies andforeign characteristics that indigenous peoples have assigned to a non-indigenous American identity. In contrast, there remains a colonialist tendency to identify non-white citizens as perpetually foreign and to use legal means as a way toreinforce racial hierarchies. These laws have constructed certain groupsas outsiders or foreign as opposed to “real” Americans, that is, “whitewith a western European heritage.” An early example of the belief that“American” connotes whiteness is in John Jay’s 1787 contribution to theFederalist Papers entitled “Concerning Dangers from Foreign Force andInfluence.”8 Jay, the first Chief Justice of the Supreme Court, concludedthat “Providence has been pleased to give this one connected country,to one united people—a people descended from the same ancestors,speaking the same language, professing the same religion, attached tothe same principles of government, [and] very similar in their mannersand customs.”9 Jay’s racial nationalism is reflected in legal definitions ofan “American” identity that continued to use Anglo- European heritageas the norm. In White by Law: The Legal Construction of Race, Ian HaneyLopez traces legislative history that outlines how judges have used cri-teria as arbitrary as skin color and scientific or popular opinion to justifywho is white enough to become an American citizen. These court deci-sions were instrumental in defining race at a time when naturalizationwas limited to whites.10 Jay’s perspective continues to resonate withcontemporary Americans such as Peter Brimelow, author of Alien Nation:Common Sense about America’s Immigration Disaster. Overlooking the histori-cally fluid borders of a heterogeneous white identity, Brimelow remindshis readers about “a plain historical fact: that the American nation has R E V I E Walways had a specific ethnic core. And that core has been white” (10).He goes on to say, “As late as 1950, somewhere up to nine out of tenAmericans looked like me. That is, they were of European stock. And S Ain those days, they had another name for this thing dismissed so con- W I C A Z Otemptuously as ‘the racial hegemony of white Americans.’ They called it‘America.’”11 Indigenous and minority efforts at decolonization threatenthe world Brimelow describes, because new power alliances that chal- 115lenge United States racial, social, political, and cultural hegemonies are SPRING 20 0 5being formed. White fear of an alien nation undeniably fortifies publicsupport for the perpetuation of race-based laws as an exercise of power. Indeed, racial laws have been an important tool for the preser-vation and legitimation of the established order. In other words, lawshave preserved the benefits and privileges of an “American” identity for
  5. 5. whites. Beginning with congressional passage of the Naturalization Act of 1790, the United States restricted citizenship to “free white persons.”12 In Scott v. Sanford (1857), the Supreme Court emphatically stated that nei- ther free nor enslaved persons of African descent could ever be citizens.13 Surprisingly, although American Indians are the only peoples native to this land, former Supreme Court Justices also denied them United States citizenship in Elk v. Wilkins (1884). The exclusive nature of American citizenship embodied in this case exemplifies the United States’ ongoing colonial and neocolonial will to power in that the justices predetermined who would be loyal and who constituted the “We” of the “We the People” in the United States Constitution. Elk v.Wilkins established that American Indians were not citizens by birth because, the justices reasoned, al- though Indians might be born within the geographical boundaries of the United States, they owed their primary allegiance to their tribes: a logic that suggests Indians’ disloyalty toward or potential criminal activity against the United States.14 Even after the United States government granted citizenship to American Indians, non-Indians still tended to per- ceive Indians as “savage,” dangerous, or unassimilable. Laws and legal decisions that transcribe whiteness as innocent, loyal, and law-abiding suggest that color is synonymous with criminali- ty, disloyalty, and “foreignness,” which leads to further disparities in the legal treatment and perception of all nonwhite peoples, even by the average citizen.15 The association of foreignness with disloyalty still exists and is reflected in the disparate responses to Timothy McVeigh’s bombing of Oklahoma City’s Murrah Federal Building and responses to the terrorist acts of September 11. While McVeigh’s terrorism did not result in random and arbitrary acts of violence committed against white men, the terrorism of September 11 gave rise to hate crimes commit- ted against Muslims, Arabs, and Sikhs.16 Currently, a Middle Eastern appearance makes one vulnerable to stops, detentions, and searches by policing agencies, because people resembling this group presumably pose more of a threat to the nation’s security than people who resemble R E V I E W McVeigh. Historically, white reactions to crisis events have been con- tingent on the “criminals’” physical appearance or race, as in the violent reaction to American Indians’ struggle to protect their homelands or S A the Japanese threat that led to Japanese Americans’ internment. W I C A Z O Race has long been a litmus test for that which is American, not American, or even un-American, which began when colonizers imposed116 definitions on peoples to designate who would occupy the realm of full citizen, who would be enslaved, and who would remain unassimilable. SPRING 20 0 5 Even today, whiteness remains the unspoken and official meaning of the term “American” and becomes a symbol that stigmatizes and marginalizes people of color by destabilizing their claims to citizenship. Moreover, if nonwhiteness signifies an outsider status, then nonwhite citizens are sub- ject to harms or burdens not experienced by whites, which is exemplified
  6. 6. by mainstream Americans’ nonresponse to McVeigh’s criminal act. In theend, attempts to physically remove identifiable “aliens” from the UnitedStates or brand them as possible terrorists or drug runners diminishes thestatus of Americans who share the same physical characteristics. To be sure, the way of life and the standards of conduct that theConstitution and American laws sanction have historically championedwhite, or Anglo- American, dominance.17 Indeed, the campaign that in-tensified during World War I to “Americanize” foreigners resembledthe campaign to “Americanize” Indians that began hundreds of yearsearlier. Both became national crusades designed to coerce confor-mity to a white worldview, which demanded, among other things, that“foreigners” speak English and suppress “anti- American” sentiments.18Thus, the dominant class and culture began using education as a toolfor assimilating foreign and potentially “dangerous” groups to UnitedStates values and beliefs. Belonging to a group targeted for assimilation by the dominantculture, Leslie Marmon Silko internalized United States beliefs andvalues that education promoted.19 Her teachers taught her to defendthe United States’ constitutional ideals and democratic form of govern-ment as opposed to autocratic regimes. She recalled that the educationshe had received as a young child emphasized the benefits of Americancitizenship, which stood in opposition to the burdens of living in acommunist or totalitarian regime: “We were taught that our right totravel from state to state without special papers or threat of detainmentwas a right that citizens under communist and totalitarian governmentsdid not possess. That wide open highway told us we were U.S. citizens;we were free.” Additionally, she declared that the Lagunas remainedpatriotic citizens despite the United States’ historical treatment ofAmerican Indians: “As proud citizens, we grew up believing the free-dom to travel was our inalienable right.” Silko’s teachers and a Westernliberal ideology taught her and her peoples to believe that they werepart of that larger “we” that makes up the United States. R E V I E W Silko’s education misdirected her nationalistic feelings andprompted her to embrace and accept the dominant culture’s values,including those connected to the open road, because the unspoken or S Aunacknowledged legal barriers to freedom of movement for people of W I C A Z Ocolor had not yet intruded in her life. She recalls that she “used to travelthe highways of New Mexico and Arizona with a wonderful sensationof absolute freedom.” 20 In spite of her early socialization into American 117values, when Silko exercised her right to travel, she began to reflect SPRING 20 0 5critically on the nature, scope, and manners of colonialism. She recog-nized how her education had affected her outlook when she fell underthe gaze of a policing agency empowered by U.S. laws to identify,detain, question, and possibly remove or prosecute individuals near theborder whom laws have characterized as potentially criminal or alien.
  7. 7. In the Southwest, the United States has assigned Mexican Ameri- cans and American Indians a perpetually foreign status, which charac- terizes their entry into the United States as subjects of conquest and victims of Manifest Destiny. The United States expanded into Mexico’s northern territories under the pretext of Manifest Destiny as a way to justify their violent takeover of already-occupied lands. This unofficial expansion policy followed on the belief that God had willed the Anglo- Saxon race to spread the fruits of democracy to the less fortunate, which typically meant into nonwhite groups with less power and desirable lands. The Mexican- American War ended in 1848 with the signing of the Treaty of Guadalupe Hidalgo, a treaty that had established a tenuous peace and arbitrary borders between the two nation-states and presumably transformed Mexican nationals and indigenous peoples into United States citizens.21 But more significant to the United States than its increase in population were Mexican and Indian lands that lay north of the newly created border, which the treaty had ceded to them. Living and traveling near the border forced Silko to re- examine the Western ideologies that she had inherited through her education, which were buttressed by the Treaty of Guadalupe Hidalgo’s added as- surances that Laguna Pueblo peoples and other newly created citizens would receive equal treatment. She recalled her childhood education after she had learned firsthand that race continued to dilute for non- whites those rights that the United States had guaranteed white citizens in the Fourth and Fifth Amendments. She included these experiences in two essays entitled, “Fences against Freedom” and “The Border Patrol State,” both part of a 1996 publication entitled Yellow Woman and a Beauty of the Spirit. Either by coincidence or by design, the publication date coincided with the one hundred fiftieth anniversary of the war between the United States and Mexico. Her essays illustrate that even now, more than a century since the Elk v. Wilkins ruling, colonialist at- titudes and American laws signal that the United States still perceives American Indians as foreign and potentially criminal with their alle- R E V I E W giances lying elsewhere.22 Therefore, drug and immigration laws that ascribe criminality to people of color reinforce colonialist attitudes about American Indians and other dark-skinned individuals crossing S A and traveling near border areas. In the Southwest, race, space, and W I C A Z O identity became intertwined, resembling the South where Jim Crow laws created a “black” identity and the “black” space of segregation.118 Likewise, in the Southwest, legal rules have created racial and spatial distinctions based on the large population of nonwhites who occupied SPRING 20 0 5 the area when imperialism brought the United States into the region. Consequently, racial dynamics along the border have continued to de- termine how policing agencies scrutinize “foreign-looking” individuals such as Silko as they drive on American highways. Laws designed to control and keep track of nonwhite peoples’
  8. 8. movements reflect the social relations of colonialism. Law enforcementpractices designed to curtail illegal immigration and prevent the move-ment of drugs into the United States from south of the border both usephysical appearance as a sign of “potential unlawful conduct or status.”23Documented cases of racial profiling in traffic stops verify the claimsof critical race theorists that racial dynamics often condition legal inter-actions on the road and near border areas.24 Beginning in the 1980s,New Mexico state troopers noticed a sharp increase in the number ofdrug seizures they made during highway traffic stops along Interstate40.25 Eager to prevent illicit drugs from flowing north through thenation’s southern border, the Drug Enforcement Administration (DEA)established Operation Pipeline. Although DEA officials’ enforcementstrategies hinged on the idea that “highway drug couriers shared manycharacteristics, tendencies, and methods,” the officials are also quick toclaim that the program they use “to determine potential drug traffick-ers . . . does not advocate such profiling by race or ethnic background.” 26While the DEA posits that its exercise of power in the war on drugs israce neutral, law professors David A. Harris and David Cole contendthat the DEA has trained local and state law enforcement personnelto use race as a basis for highway stops.27 Their allegations stem fromlegal action that citizens have taken against police officials who havetargeted African American or Latino drivers in eastern states.28 In everycase, judges found that police officials had violated one of the FourthAmendment’s core principles against unreasonable search and seizurebecause the police had based their traffic stops solely on race. Althoughstate courts ruled against traffic stops that appeared to be based on se-lective enforcement, the Supreme Court’s ruling in Whren v. U.S. (1996)expanded law enforcement’s power to conduct pretextual searches.29The justices agreed that any traffic violation became a legitimate basisfor a stop that could also include a search of the vehicle, but race was notallowed to play a factor. The creation of border patrol checkpoint stations beyond the R E V I E Wnation’s borders represents a new form of colonialism in that they areinstitutions that achieve certain goals through military and politicalmeans—retaining de facto control over a targeted nation, or, in this S Acase, over a select group of people. Now, rather than experiencing W I C A Z Othe freedom of the open road, Silko has described the fear and anxi-ety she now experiences when driving down Interstate 10 in NewMexico toward El Paso, Texas, or when she drives north from Las 119Cruces, New Mexico up Interstate 25 about ten miles north of Truth SPRING 20 0 5or Consequences, also in New Mexico. Her unease has resulted fromthe increased number of border patrol checkpoint stations situatedalong these highways. In 1991, she and a companion were travelingfrom Tucson, Arizona, to an Albuquerque, New Mexico, book-signingevent for her novel Almanac of the Dead when they were stopped at a
  9. 9. border patrol checkpoint station. Angrily, she recalled, “My compan- ion and I were detained despite the fact that we showed the Border Patrol our Arizona driver’s licenses. Two men from California, both Chicanos, were being detained at the same time, despite the fact that they too presented an ID and spoke English.” Silko could not help but notice that, while one group was being detained, “other vehicles were waved through the checkpoint. The occupants of those vehicles were white.” Based on her experience, she concluded, “It was quite clear that my appearance— my skin color—was the reason for the detention.”30 When policing agencies denied Silko the same constitutional protec- tions afforded white citizens on the road, her essays made whiteness and white privilege visible instead of unseen and unmarked. Moreover, Silko’s story demonstrates that the whiteness of some drivers attests to their innocence, while the darkness of other drivers ren- ders them suspect. Silko’s differential treatment also demonstrates the United States’ power to redraw the nation’s borders, thus contributing to the border’s fluid nature. For the white drivers whom the border patrol waved through, the line that separates “us” from “them,” or “Americans” from “foreigners,” remained invisible and distant; however, when Silko, her companion, and the men from California entered the checkpoint sta- tion, the agents redrew the border. In effect, for Silko and the others who were detained, the border is always near because their brown or ambigu- ous bodies represent a border they always carry with them.31 The disparate treatment of citizens based on race is contrary to classical legal theory, which perceives laws as establishing order in so- ciety while still allowing for individual freedom. Classical legal theory also affirms that there are accepted or agreed-upon standards of conduct, which laws are intended to uphold or maintain. In this broad interpreta- tion of law’s function, the legal system is purportedly unbiased, objective, and consistent in order to balance the needs and interests of a govern- ment and its citizens. As a young child, Silko had faith in this interpreta- tion of the law and its function. This faith grew from her recollection of R E V I E W meetings held in her family home between a lawyer hired by the Laguna Pueblos and the expert witnesses, archaeologists, and others who were preparing to testify in front of the United States Court of Indian Claims. S A She recalls that, when her father served as tribal treasurer, “the Pueblo of W I C A Z O Laguna [had] filed a big lawsuit against the state of New Mexico for six million acres of land the state wrongfully took.” The lawyer’s apparent120 dedication in preparing the lawsuit so thoroughly impressed Silko that she entered the University of New Mexico as a law major in order to help SPRING 20 0 5 others seek justice. After only three semesters, she confessed, “I realized that injustice is built into the Anglo-American legal system.”32 Silko’s classes led her to believe that laws are predisposed to pro- tect and preserve whiteness and its privileges, and thus her perception is that law’s neutrality remains a subterfuge that facilitates white main-
  10. 10. tenance of racial, social, and political hierarchies. She arrived at thisconclusion after reading Charles Dickens’s Bleak House, noting that thearistocracy possessed all the money and power and took it upon them-selves to dispense “justice” to the powerless. As Silko confronted mech-anisms of power similar to those that layed out in Bleak House, she feltthat the United States had modeled its system of justice after Dickens’sEngland: “The Anglo- American legal system was designed by and forthe feudal lords; to this day, money and power deliver ‘justice’ only tothe rich and powerful; it cannot do otherwise.” As they were neitherrich nor powerful, after twenty years, nearly two million dollars inlawyers’ fees, and a favorable ruling for the Pueblos, the Lagunas stilldid not get the justice they had hoped for—the return of their land.Instead, the government offered money as compensation for a loss thatwas, in essence, priceless. After realizing that laws serve those whocreate them, Silko wanted nothing to do with what she termed “a bar-baric legal system” that facilitates and reproduces inequality.33 At thispoint in her life, Silko disavowed the colonized mindset instilled by aWestern education. If significant portions of the population deny thatthe American system of justice is legitimate, then the most effectivedeterrent to crime— the legal system—fails. Silko understood this,realizing that the decolonization of indigenous peoples must involve adeconstruction and reshaping of the U.S. legal system. Constitutional scholar David Cole contends that legal double stan-dards, which preserve constitutional protections for the privileged few,compromise the legitimacy of the justice system.34 For American Indiansthere has been no justice, especially if one considers that the UnitedStates and powerful individuals used the law to increase their land basebeyond legal limitations when they excluded communal land grants pre-sumably protected and recognized by the Treaty of Guadalupe Hidalgo.The United States government acquired rights over communal lands byredefining acceptable legal definitions for land use and ownership, whichwere based on Western conceptions of land use. These changes allowed R E V I E Wwhite settlers to claim land areas within communal land grants.35 In Almanac of the Dead, Silko’s project is to represent alternativehistories, which helps to transform her own colonized view of the his- S Atory her own education provided. She reclaimed the past and chroni- W I C A Z Ocled the injustices that the Southwest’s indigenous peoples experiencedwith United States imperialism. Her character, Zeta, becomes the pan-Indian voice for indigenous peoples of the Southwest. She shares the 121knowledge of an alternative past: SPRING 20 0 5 The whites came into these territories. Arizona. New Mexico. They came in, and where the Spanish- speaking people had courts and elected officials, the americanos came in and set up their own courts—all in English. They went
  11. 11. around looking at all the best land and where the good water was. Then they filed quiet title suits. Only a few people bothered to find out what the papers in English were talking about. After all, the people had land grants and deeds from the king of Spain. The people believed the Treaty of Guadalupe Hidalgo protected their rights.36 That indigenous peoples did not understand the new legal and cul- tural terms that U.S. citizens had used to redefine land mattered little. Moreover, that most indigenous peoples did not speak English, let alone the specialized English used in courts, mattered even less to the invaders. But education changed indigenous peoples. The stories and memories they carried with them to school were not the stories they read in law reviews, history books, or in “American” literature. A signifi- cant part of indigenous peoples’ decolonization has been to challenge the accepted stories and tell the stories that reflect their reality and their experience. Following the line of interrogation she established in Yellow Woman, Silko’s Almanac questions the inequities inherent in a still- colonized legal system by remembering and returning to the historical crimes, commit- ted against American Indians, that the U.S. system of justice continues to dismiss or overlook, claiming them as a thing of the past. In her writing, Silko has rejected the government’s denial of indigenous peoples’ sov- ereign status by asserting their superior claim to land and their right to define their own identities. She has pointed to the criminal activity that created and sustained many whites’ property rights in the Southwest. Her evidence lies in a history that has verified how American laws and legal discourse assisted powerful mining interests, railroads, landowners, and merchants in gaining possession of Pueblo lands and land through- out the Southwest. After Congress established the Office of Surveyor General of New Mexico in 1854, the agency provided surveyors general the opportunity to acquire land. T. Rush Spencer (1869–1874), James K. R E V I E W Proudfit (1872–1876), and Henry M. Atkinson (1876–1884) were the only three who held this office who were able to acquire thousands of acres during their tenure.37 They, along with lawyers, judges, politicians, busi- S A nessmen, and Indian agents, became part of what was called the Santa Fe W I C A Z O Ring, a group of powerful people who worked together to validate white claims on Indian lands. Through legal machinations, ring members “law-122 fully” acquired large tracts of land. Although the Treaty of Guadalupe Hidalgo presumably validated and recognized the Spanish and Mexican SPRING 20 0 5 governments’ legal deeds and documents in order to protect the newly formed American citizens, white settlers refused to validate foreign symbols of ownership. Therefore, lands traditionally held in common became “vacant” in Western legal thought, because Americans surmised that communal lands were unoccupied, undeveloped, and thus, available
  12. 12. to claim. Even large land and cattle companies and homesteaders viewedcommunity grants as part of the public domain, which U.S. laws madeavailable.38 In effect, whites once again asserted their presumed right todefine what was legally and culturally acceptable land use and ownershipby removing communal lands from legal definitions. Nevertheless, in-digenous peoples’ refusal to always recognize the international borders,boundaries, and definitions set by the colonizing powers is indicative ofindigenous peoples’ efforts toward decolonization. Additionally, decolonization efforts include unraveling the legacyof U.S. colonialism that racialized and transformed indigenous peoplesinto “Indians,” thus, differentiating them from white U.S. citizens andMexicans who were neither white nor Indian. Again, Silko refused toaccept an outsider’s definition that attempted to define her or even envi-sion her as potentially criminal or alien. She re-positions the nature ofcriminality by indicting the dominant culture for historical crimes thathave yet to be acknowledged let alone rectified by U.S. law. ThroughZeta, Silko acknowledged a fact that historical amnesia erased from theAmerican conscience, namely, that the southwestern United States sitson stolen land: “It was white men coming to find more silver, to steal moreIndian land. It was white men coming with their pieces of paper! To maketheir big ranches.”39 The words on “their pieces of paper” supersededthe words about the land passed down in indigenous stories. The wordseven superseded international law, the Treaty of Guadalupe Hidalgo, aswell as the language included in land grants made by the King of Spain.In truth, between 1864 and 1877, in the early days of land grant adjudica-tion, self-proclaimed landowners did not even need a piece of paper toclaim land. New Mexico territorial law “protected non-Indian holdingswithin confirmed Pueblo grants on the basis of adverse possession.”40Under adverse possession, mere tenure on a parcel of land for ten yearsconfirmed one’s right to possess that land. New Mexico territory codifiedthis common-law principle in 1857. Adverse possession laid the founda-tion for the ongoing theft of indigenous lands for at least a century after. R E V I E W In response to U.S. myths about indigenous peoples’ nationalstatus, Silko has affirmed indigenous peoples’ ongoing sovereignty byrenouncing the U.S. system of justice and refusing to recognize its S Aauthority. Through Zeta, she has censured the presumed legitimacy of W I C A Z OWestern law and the recognized authority of the colonial governmentsand institutions that wrote those laws. Zeta asks, 123 How could one steal if the government itself was the worst SPRING 20 0 5 thief? There was not, and there never had been, a legal gov- ernment by Europeans anywhere in the Americas. Not by any definition, not even by the Europeans’ own definitions and laws. Because no legal government could be established on stolen land. Because stolen land never had clear title.41
  13. 13. By rejecting the authority that the rule of law presumably exerts, Zeta has rejected liberalism’s most basic ideological representation of the law’s function—the public’s consent to “the rule of law,” which, according to Cole, is necessary if the legal system is to work or to achieve justice. When an idealized view of the law’s function in society is set against American Indians’ experience with European- derived legal insti- tutions, the Janus-faced nature of American law appears. Beginning with the doctrine of discovery, colonial and federal governments positioned American Indians in a subordinate status through Western legal dis- course that devalued their way of life. Alongside their efforts to assimi- late American Indians, Anglo-Americans have also perceived indigenous peoples as foreign, and therefore, unassimilable. According to Williams, modern Indian law derives its foundations and sets its precedents from a doctrine that “refused to recognize legal status or rights for indigenous tribal peoples because ‘heathens’ and ‘infidels’ were legally presumed to lack the rational capacity necessary to assume an equal status or exercise equal rights under the European’s medievally derived legal worldview.” Thus, Williams notes, “American Indian Nations have been judged, and their legal status and rights determined by alien and alienating norms derived from the European’s experience of the world.”42 Belief in an ob- jective legal system ignores the history of the federal government and its representatives using the force of law to compel American Indians’ compliance with Western codes of conduct, a history best exemplified by American Indians’ boarding school experience.43 This history of co- ercion demonstrates that the United States’ belief in its superior status prevented it from fulfilling the ideals espoused in the Declaration of Independence and the Constitution. Silko has advanced the cause of indigenous nationalism and sover- eignty by critiquing Western education, the federal government, and the law as institutions that have interfered with its attainment, despite the liberal and democratic ideologies they espouse. Although the Constitution guarantees Silko the rights of citizenship, when the bor- R E V I E W der patrol detained her and cast her as a potential “alien,” she asserted her sovereign status as a citizen of a group indigenous to this continent. She rejected the dominant group’s presumption that they have the power S A to control, name, and define the status of indigenous identities. When W I C A Z O an Indian elder answers the rhetorical question, “What can we do to Americanize the Indian?” he confronts the problems of domination and124 subordination attached to the term “American” as it has played out in legal efforts to exclude or subordinate others: SPRING 20 0 5 You will forgive me if I tell you that my people were Ameri- cans for thousands of years before your people were. The question is not how you can Americanize us but how we can Americanize you. . . . And the first thing we want to
  14. 14. teach you is that, in the American way of life, each man has respect for his brother’s vision. Because each of us respected his brother’s dream, we enjoyed freedom here in America while you people were busy killing and enslaving each other across the water. . . . We have a hard trail ahead of us in trying to Americanize you and your white brothers. But we are not afraid of hard trails.44Like the elder, Silko claims an “American” identity that does not have thebaggage of colonialism attached to it, an “American” identity that hasits foundation in time spent on a landscape, respect, and a freedom ex-tended to everyone. Both assert a superior claim to an “American” iden-tity that is not part and parcel of a colonial and “foreign” government. Rather than focusing on the inequities of her differential treat-ment by the border patrol, however, Silko chooses to shift her read-ers’ attention from the law’s presumption that she is not- American,un- American, or a likely criminal, and instead, have them focus on thehistorical “crimes” that the border patrol and its checkpoint stationssymbolize: the continued occupation of stolen land. Equally significantis her condemnation of the border patrol for their complicity in per-petuating injustices against indigenous peoples living in the Southwest.The federal government and the border patrol have racialized the spacesurrounding the border. Although border patrol agents represent thenation’s sentinels who safeguard and secure the nation’s borders from“aliens,” Silko has refused to recognize their symbolic authority as sheangrily advises them to leave: “This is our home,” she tells them. “Takeall this back where you came from. You are not wanted here.”45 Shemakes the border patrol agents foreign by placing them in an “alien”status as she asserts her superior claim to the Southwest, her ances-tral homeland. The border and the border patrol cannot be separatedfrom the history of colonialism as it has continued to operate in theSouthwest. Nevertheless, New Mexico’s tourist propaganda celebrates R E V I E Wthis region’s tricultural history, ignoring the ongoing tensions that sig-nal indigenous peoples’ continued resistance to the status quo. Racial profiling along the southwest border has turned the region S Ainto a site of intense conflict over race, identity, citizenship, and the right W I C A Z Oto move freely. While Supreme Court justices do not condone racialprofiling in certain geographical areas, they have allowed its practicein other regions, in particular on roads within one hundred miles of the 125United States/Mexico border. In United States v. Brignoni- Ponce (1975), the SPRING 20 0 5Supreme Court ruled that “‘Mexican appearance’ constitutes a legitimateconsideration under the Fourth Amendment for making an immigrationstop.”46 Likewise, in United States v. Martinez- Fuerte (1976), the Court ruledthat fixed border patrol checkpoints were designed to stop illegal immi-gration, and therefore, were consistent with the Fourth Amendment if
  15. 15. border patrol officials believed that the vehicle they stopped contained illegal aliens.47 In United States v. Montero- Camargo (2000), however, the Ninth Circuit Court ruled that appearance is not a proper factor for jus- tifying traffic stops. The judges in this case noted, “Stops based on race or ethnic appearance send the underlying message to all . . . citizens that those who are not white are judged by the color of their skin alone. Such stops also send a clear message that those who are not white enjoy a lesser degree of constitutional protection.”48 Nevertheless, in United States v. Cruz- Hernandez (1995), border patrol officers have admitted that “Hispanic appearance” contributes to their decisions to stop and ques- tion people.49 Similarly, a court of appeals judge confessed, “of all the cases involving people who were stopped or searched because of their ‘foreign-looking’ appearance or ‘foreign-sounding’ names, we are not aware of any in which the targeted individuals were Caucasian.”50 Less than one year after Silko’s initial experience with the border patrol, she once again became the object of the border patrol’s gaze, but this time she experienced the terror that whiteness has symbolized for indigenous and other peoples of color. During this stop, Silko was traveling with a friend between Albuquerque and Tucson late at night. She felt relaxed enough to sleep, because no checkpoint stations are located on the southbound lanes of Interstate 25. Around midnight, six border patrol vehicles blocking the road forced her and her friend, Gus, to stop on what she described as “a dark lonely stretch of two- lane highway between Hatch and Deming.” Gus inquired about the roadblock’s purpose, but the agents ignored him and ordered both of them to step out of the car. Again, Gus asked the agents why he and Silko needed to get out of a vehicle that they felt offered them a safe haven against what Silko characterized as an “awful feeling of menace and violence . . . straining to break loose” that night on the highway. At this point, Silko began fearing for her life. She “thought how easy it would be for the Border Patrolmen to shoot [her and Gus] and leave [their] bodies and car beside the road.”51 Her newfound dread of the R E V I E W open road was compounded by a threatening whiteness that had forced her to recognize and fear its power. The fear Silko expressed is familiar to other minority groups. bell S A hooks recalls her journeys into white- controlled space where “associa- W I C A Z O tions of whiteness with terror and the terrorizing [have] remain[ed]” a part of her life.52 hooks shares her multiple experiences of being strip-126 searched and interrogated at airports, someone somehow believing that she might be a terrorist; yet, she knew that she was the one being ter- SPRING 20 0 5 rorized. She remembers how “that representation of whiteness, and its association with innocence, which engulfed and murdered Emmett Till, was a sign; it was meant to torture with the reminder of possible future terror.”53 Just as Till’s brutalized and mutilated body became a reminder for black people about the danger associated with being black, Silko’s
  16. 16. multiple detentions became her reminder that she has also been markedand targeted as dangerous by a colonialist government that fears losingcontrol of the various borders it has created. Silko’s fear of death at thehands of government officials is not unjustified. A year after she was de-tained for a second time and searched by drug-sniffing dogs, EsequielHernandez Jr., a poor goat herder and an American citizen of Mexicanancestry, was shot and killed by a United States marine who was work-ing with the border patrol to help detain and capture drug smugglers.54Hernandez was tending to his sheep when he was killed. A variety of circumstances has led to numerous deaths amongborder crossers, making them a familiar news item, but in 1997 the deathof eighteen-year- old Hernandez underscored for nonwhite citizens thecost of the border patrol’s reliance on racial profiling for criminal lawenforcement, especially when coupled with the government’s increasedmilitarization.55 Along the border, the federal government has disguisedrace-based surveillance tactics that resemble Michel Foucault’s panopti-cism as unbiased and objective methods for maintaining civil societyand preserving national security. A panoptic model of security, or a visi-ble display of power through surveillance that forces order and obedi-ence in society, presumably reduces crime. When Congress amendedthe Posse Comitatus Act in order to allow the military to assist in drugsurveillance along the border, they intensified the panoptic model ofsecurity by introducing to immigration and drug enforcement practiceshigh-tech air support such as OH- 6A military helicopters, night-visionand infrared scopes, and low-light television surveillance systems.56Through this technology, the United States and the border patrol canmore effectively monitor the nation’s roads and borders, but they alsohave at their disposal more sophisticated technologies of domination.Nonwhite bodies near the border are in a state of permanent visibility,with border patrol checkpoint stations and roadblocks becoming re-minders of the “possible future terror” of which hooks speaks. In its militaristic response to the perceived threat that Mexican R E V I E Wimmigrants pose, the United States that Silko learned about as a childno longer differs in certain respects from communist countries and mili-tarized borders such as those in North Korea, Cuba, and the former S AEast Berlin and Soviet Union. In effect, immigrants have replaced com- W I C A Z Omunists as the threat that warrants the same kind of military strategiesused during wartime. Timothy J. Dunn’s The Militarization of the U.S.–Mexico Border, 1978–1992 documents how border policies and practices 127have replicated the Pentagon’s doctrine of “low-intensity conflict.” One SPRING 20 0 5element of low-intensity conflict used domestically has included theuse of police, paramilitary forces, and military forces working togetherto combat the flow of illegal immigrants and drugs entering the coun-try. These military strategies, meant to establish social control overspecific civilian populations, were originally created for use in third
  17. 17. world countries that presumably threatened U.S. national security.57 Dunn notes that the Clinton administration introduced the strategies domestically under the guise of securing and regaining control of the border. Under the second Bush administration, the strategy of low- intensity conflict has only intensified. For instance, the military has aided the border patrol in constructing a seven-mile wall of corrugated steel between Tijuana and San Diego, the first of several such walls that could be said to resemble the old Soviet Union’s metaphorical Iron Curtain or East Germany’s Berlin Wall. In “The Border Patrol State,” Silko has redefined Manifest Destiny so that it reflects the notion of containment symbolized by the Iron Curtain or the Berlin Wall rather than the idea of expansion or westward movement typically associated with the phrase. According to Silko’s new definition, “Manifest Destiny may lack its old grandeur of theft and blood,” but “‘lock the door’ is what it means now, with racism a trump card to be played again and again” by both political parties.58 Thus, the walls of corrugated steel and bright lights positioned along the border become security devices designed to alleviate white fears of contami- nation by an “alien” population who might bring a “foreign” culture, language, or belief system to the United States. To be sure, many white Americans, especially those living near the border, believe that an army of Mexican “illegals” and “criminals” has already begun their “conquest” of America, and based on this threat, private citizens have responded, increasing the panopticon technique of subjection. The government’s racial profi ling of “aliens” reinforces and strengthens Nativist sentiment and encourages private citizens to per- ceive peoples south of the border as well as those who resemble them as posing a threat to the United States. Exploiting this fear are anti- immigration groups such as American Border Patrol, Ranch Rescue, Voice of Citizens Together, and Civil Homeland Defense, groups that the Anti- Defamation League and the Southern Poverty Law Center have identified as hate groups. These groups have won support by R E V I E W heightening concerns about crime, drug smuggling, violence, and a Mexican takeover of the United States. They have also exploited the intense emotions surrounding September 11 by asserting that their work S A is a response to President Bush’s call for all citizens to help fight terror- W I C A Z O ism. They have purposely confused drug and immigration enforcement policy with efforts to fight terrorism in their quest to combat the move-128 ment of people across the border. Caught up in a wave of terror in- creased by the presence of vigilante groups are indigenous groups who SPRING 20 0 5 live along the border or who regularly cross the border to participate in ceremonies or to visit family members.59 Vigilante groups have revised legalistic interpretations of drug and immigration laws, declaring that these laws sanction their efforts to protect ranchers’ and homeowners’ property. In March 2003, Chris
  18. 18. Simcox, founder of Civil Homeland Defense, issued a proclamation toArizona’s Governor Napolitano and Tucson’s Border Patrol announc-ing his intent to begin patrolling the border with armed citizens. Inthis public call to arms, he declared, “we have the legal right and moralobligation [to form a militia] as per our Arizona State Constitutionand Federal Constitution and our respect for American citizens.”60Allegedly, his militia is meant to prevent drug dealers and criminalsfrom terrorizing ranchers and homeowners.61 According to Simcox,they have already assisted ranchers near the border to secure theirproperty from what he refers to as “hordes of criminal trespassers” thathave damaged or destroyed property.62 With the help of the Internet,Simcox spreads his message on “news” venues such as Glenn Spenser’sAmerican Patrol Report or the USA Daily, where he presents readers withchilling headlines such as “Illegal Aliens Violently Attacking AmericanCitizens: Anarchy and Lawlessness Rule U.S.–Mexican Border.” In thisparticular article, he describes what he perceives as “an all out invasion”by illegals: Friday night the roads were bustling with Border Patrol vehicles driving everywhere in an attempt to keep up with the hundreds that were moving up the San Pedro river basin; the trend continued for three straight days and nights. All weekend helicopters were buzzing in the air locating group after group of illegal intruders.USA Daily’s editor appended to Simcox’s story information that ap-pears even more ominous: “There have been increasing reports ofMexican military involvement in illegal alien and drug smuggling aswell as threats and bounties placed on the life [sic] American citizens.”Racial dynamics have already conditioned relations along the border,and extremist groups such as Simcox’s only exacerbate tensions by ex-ploiting paranoia over illegal immigration in order to gain publicity and R E V I E Wincrease support for their organizations. What is even more surprising is that fringe groups are not alone incautioning the United States about an impending takeover by Mexico. S AThis same sentiment is expressed in a novel written by President Reagan’s W I C A Z Oformer secretary of defense, Caspar Weinberger.63 Weinberger’s 1996futuristic novel, The Next War, coauthored with Hoover Institutionscholar Peter Schweizer, creates an exaggerated and chilling account of 129border problems. In order to increase support for more military spend- SPRING 20 0 5ing, the authors build on the American population’s fear of a “Mexicaninvasion” by creating a hypothetical conflict between the United Statesand Mexico along with North Korea, China, Iran, Russia, and Japan. Inthe setting involving Mexico, that country’s economy dissolves and theresulting unrest spills over into the United States in the form of mass
  19. 19. migrations. In order to check the flow of illegal immigration, which is linked with Mexican drug cartels, corruption, and terrorist attacks against San Diego and Houston, the United States invades Mexico. Weinberger does not explore the outcome of his fictional invasion; his goal is to caution the government about the United States’ military readiness and the viability of its defense strategies. Like Silko’s collection of essays, the publication of Weinberger’s novel falls on the one hundred and fiftieth anniversary of the United States–Mexico war. Whether he intended for the dates to coincide is unclear, but it is apparent that his fictional invasion of Mexico expresses the reality of the border and the ongoing consequences of Manifest Destiny. In other words, the United States created the border in vio- lence and has maintained and regulated it through violence. This new face of Manifest Destiny encourages racism at the borders as media representations of a “brown invasion” convince white Americans that “conquest” must be resisted to avoid the unlawful encroachment of “aliens.” The narrative of Manifest Destiny once mandated the spread of democracy; now it appears that the United States wants to contain the material benefits of democracy for “real Americans” living within the United States geopolitical boundaries. Imagination is one of the most powerful tools in the move to decolonize, and Silko imagines the power of indigenous peoples to change the Southwest from a militarized and surveilled region to one where borders no longer exist. In Almanac of the Dead, Silko plays on the paranoia created by the border to upset the racial, cultural, and po- litical hierarchies that currently define the area. By erasing borders and expanding traditional binaries of Mexican/American or illegal alien/ citizen to include indigenous peoples of the western hemisphere, Silko creates a pan-tribal, Western-hemispheric army. Her imagined army contains exploited and subjugated individuals from both sides of the border, and they surpass anything that Simcox, Spenser, or Weinberger ever envisioned. Inspired by the uprising in Chiapas, she also imagines R E V I E W the possibilities for cultural and political alliances between peoples. Indigenous peoples on both sides of the border recognize that the United States and Mexico divided their homelands, their communities, S A and their families without their knowledge, much less their consent, W I C A Z O and Silko reframes this knowledge to resist the categories in which the border region has placed her and others like her.130 Networking becomes a form of resistance, especially when it in- volves the formation and renewal of indigenous peoples’ connections. SPRING 20 0 5 Rather than making a priority their placement within the dominant cul- ture’s institutions that have historically marginalized or excluded them, indigenous peoples are building networks that include peoples with similar experiences with colonialism. Characters in Silko’s novel recog- nize that the border, a barrier dividing nation-states, divided roads that
  20. 20. indigenous peoples have used and shared as trade routes for thousandsof years. Even so, Zeta rejects the border’s authority: “We don’t believein boundaries. Borders. . . . We are here before maps or quit claims.We know where we belong on this earth. . . . We pay no attention towhat isn’t real.”64 In the novel, indigenous peoples on both sides of theborder continued to trade even after the treaty divided their lands. Inresponse, U.S. authorities defined their commercial dealings as crimi-nal behavior. Challenging this allegation, “Zeta wondered if the priestswho told the people smuggling was stealing [from the government] hadalso told them how they were to feed themselves now that all the fertileland along the rivers had been stolen by white men.” Silko repeatedlyforces her readers to question Western notions of criminality by juxta-posing white theft of indigenous lands with Zeta’s history of enrichingherself by transporting drugs and guns across the border. Accordingto the U.S. legal system, both sides could be charged with criminal be-havior, yet land theft from previous generations is typically dismissedbecause the passage of time has been too great and because those inpower undoubtedly fear that a U.S. admission of culpability might leadto a radical redistribution of the nation’s resources and capital. The novel’s conclusion becomes an antidote to more than fivehundred years of colonialism in the indigenous Americas. Like Wein-berger, Silko has prophesied the movement of peoples northward,but where Weinberger sees a brown invasion as threatening America’spresumed unity, Silko finds the Americas out of balance for over fivecenturies with the rich and powerful further distancing themselvesfrom the land by worshipping technology and seeking material ratherthan spiritual gain. Silko envisions her indigenous army’s advance to-ward Tucson, Arizona, as an effort toward decolonization. She alsoportrays this new migration as a move toward healing and reconcilinglands and communities that national borders have tried to keep apart.She announces that borders have not worked and predicts that theywill never work “as the indigenous people of the Americas reassert their R E V I E Wkinship and solidarity with one another.” What the United States refersto as illegal border crossing, Silko recognizes as the continuation ofmass migrations across vast expanses of land. Movements and land- S Ascapes have informed the creation of indigenous peoples’ identities. W I C A Z OThe significance of migration for Pueblo peoples is evident in the on-going importance of their migration tales, which form a portion of theirsacred stories. Silko notes that migrations were equally important to 131indigenous communities living south of the border, all the way down to SPRING 20 0 5Mexico City. Before the imposition of borders, indigenous communi-ties from Taos Pueblo to Mexico City “not only conducted commerce;the people shared cosmologies, and oral narratives about the MaizeMother, the Twin Brothers, and their grandmother, Spider woman, aswell as Quetzalcoatl, the benevolent snake.”65 Silko’s conclusion creates
  21. 21. a path to healing because indigenous peoples reestablish and reclaim the ancient roads their ancestors traveled, and they are roads without borders. Furthermore, her erasure of borders and her creation of an in- digenous network affirm the significance of relationships with peoples south of the border and with the environment. N O T E S 1 Walt Whitman, “Song of the (1999): 956, 957; Samuel R. Gross Open Road,” in Leaves of Grass and Katherine Y. Barnes, “Road (Philadelphia: David McKay, Work: Racial Profiling and Drug [c1900]). For instance, Robert Interdiction on the Highway,” Frost’s poem, “The Road Not Michigan Law Review 101, no. 3 Taken” and Jack Kerouac’s On the (December 2002): 651–754. Road examine the more abstract relationship between roads, the 5 Thomas Biolsi, “Bringing the choices we make in life, and indi- Law Back in: Legal Rights and vidual freedom. the Regulation of Indian-White Relations on Rosebud Reserva- 2 Aptheker v. Secretary of State, 378 U.S. tion,” Current Anthropology 35, no. 4 500, 520 (1964); See also Regan v. (August–October 1995): 543. Wald, 468 U.S. 222 (1984); Zemel v. Rusk, 381 U.S. 1, 14 (1965); Kent 6 In “ ‘Wavering on the Horizon v. Dulles, 357 U.S. 116, 125 (1958). of Social Being’: The Treaty of Guadalupe- Hidalgo and the 3 In The Possessive Investment in White- Legacy of Its Racial Character in ness: How White People Profit from Ámerico Paredes’s George Washing- Identity Politics (Philadelphia, PA: ton Gómez” (Radical History Review Temple University Press, 1998), 89 [2004]: 135–64), María Jose- George Lipsitz also details how fina Saldana- Portillo examines whiteness operates as clout per- the racial formation of Mexican mitting a multitude of economic Americans through the exclu- benefits and opportunities based sion of Article 11 in the Treaty of solely on race. Guadalupe Hidalgo. Article 11 deals exclusively with the “savage 4 See, for example, Angela J. Davis, tribes” in the United States’ newly “Race, Cops, and Traffic Stops,” acquired territory. Also see Mar- Miami Law Review 51 (1997): 425, tha Menchaca, Recovering History, 431–32; David A. Harris, “The Constructing Race: The Indian, Black, Stories, the Statistics, and the and White Roots of Mexican Ameri- Law: Why ‘Driving While Black’ R E V I E W cans (Austin: University of Texas Matters,” Minnesota Law Review Press, 2001), 90, 108, 119. 84 (1999): 265, 275–88; David Rudovsky, “Law Enforcement 7 Carl Gutiérrez- Jones, “Desir- S A by Stereotypes and Serendipity: ing Borders,” Diacritics: A Review Racial Profiling and Stops and of Contemporary Criticism 25, no. 1 W I C A Z O Searches without Cause,” Universi- (1995): 104. ty of Pennsylvania Journal of Constitu-132 tional Law 3 (2001): 296; Katheryn 8 John Jay, Federalist No. 2, “Con- K. Russell, “‘Driving While Black’: cerning Dangers from Foreign Force and Influence,” Independent SPRING 20 0 5 Corollary Phenomena and Col- lateral Consequences,” British Journal, October 31, 1787. Columbia Law Review 40 (1999): 717, 9 See also David R. Roediger, Wages 718–19; Anthony C. Thompson, of Whiteness: Race and the Making of “Stopping the Usual Suspects: the American Working Class (New Race and the Fourth Amendment,” York: Verso, 1999) and Cheryl New York University Law Review 74
  22. 22. N O T E S Harris, “Whiteness As Property,” of 1952 also made implementa- Harvard Law Review 106 (1993): tion of deportation procedures 1707. much easier. In 1978, in Foley v. Connelie, the U.S. Supreme Court10 Ian Haney Lopez, White by Law: upheld a New York statute that The Legal Construction of Race (New limited employment in the state York: New York University Press, police to U.S. citizens. In 1993, 1996). in response to the bombing of the World Trade Center in New York,11 Peter Brimelow, Alien Nation: Com- the killing of employees at the mon Sense about America’s Immigra- headquarters of the Central Intel- tion Disaster (New York: Random ligence Agency, and the landing House, 1995). of several ships of Chinese seek-12 Naturalization Act of 1790, 1 ing refuge, President Clinton Stat. 103. prepared legislation entitled “Expedited Exclusion, Enhanced13 Scott v. Sanford, 60 U.S. (19 How.) Smuggling Penalties, and Asy- 393 (1857). lum Reform.” This legislation called for “summary exclusions of14 Elk v. Wilkins, 112 U.S. 94 (1884). various asylum seekers with no ju- The United States did not rec- dicial review, no appeals, no right ognize American Indians as legal to counsel, and no possibility citizens until 1924 with the pas- of class action lawsuits to chal- sage of the Indian Citizenship lenge INS abuses of the process.” Act (43 U.S. Stats. At Large, The Antiterrorism and Effective Ch. 233, p. 253 [1924)]. In 1887, Death Penalty Act of 1996 and the General Allotment Act (sec. 6, the Illegal Immigration Reform 24 Stat. 388 [1887]) granted citi- and Immigrant Responsibility Act zenship to Indians who received of 1996 had similar provisions. allotments. None of these acts explicitly linked disloyalty to race. How-15 The Alien Enemies Act of 1798 ever, they associate foreignness and the Sedition Act of 1798 with disloyalty (Natsu Taylor were the first federal restrictions Saito, “Alien and Non- Alien on immigration that focused on Alike: Citizenship, ‘Foreignness,’ questions of loyalty. The Alien and Racial Hierarchy in American Enemies Act of 1798 allowed the Law,” Oregon Law Review [1997]: President to seize and deport an 279–81). alien; the Sedition Act of 1798 “made strong criticism of govern- 16 See “Transnational Feminist R E V I E W ment officials a crime” and was Practices against War” (October enforced chiefly against foreign- 2001), written collectively by born critics of the U.S. govern- Paola Bacchetta, Tina Campt, ment. The National Origins Act Inderpal Grewal, Caren Kaplan, S A of 1924 prohibited the immigra- Minoo Moallem, and Jennifer tion of anarchists and others with W I C A Z O Terry: “When the ‘terrorists’ are “undesirable” political views. The people of color, all other people Internal Security Act of 1950 pro- of color are vulnerable to a scape- vided for the exclusion of aliens 133 goating backlash. Yet when white “seeking to engage in activities supremacist Timothy McVeigh SPRING 20 0 5 prejudicial to the public inter- bombed the Murrah Federal Build- est” and aliens that officials had ing in Oklahoma City, killing “reason to believe” were “likely to 168 men, women, and children, engage in subversive activities.” no one declared open season to The Internal Security Act of 1950 hunt down white men, or even and the McCarran-Walter Act white militia members” (http://
  23. 23. N O T E S 20 Ibid., 115–16. transnationalstatement.html). 21 The treaty called for Mexico to 17 An example of laws sanctioning give up almost half of its terri- white dominance can best be seen tory, which included modern- day in the Chinese Exclusion laws that California, Arizona, New Mexico, Congress passed in 1882, 1884, Texas, and parts of Colorado, 1888, and 1892, which were the Nevada, Utah, and Wyoming: first set of federal immigration approximately 525,000 square laws challenged in the judicial miles. system. In Chae Chan Ping v. United States, 130 U.S. 581 (1889), the 22 Mary Romero traces the roots of Court worried about Chinese Latino/a criminalization from this immigrants’ unassimilability and time period and claims, “Ameri- feared that Chinese immigrants can culture has reduced the presented a “great danger” be- Mexican American War and the cause “at no distant day that history of resistance and struggle portion of our country would be against dispossession and oppres- overrun by them [Chinese], un- sion to the image of a violent, less prompt action was taken to barbarous, and ferocious Latino restrict their immigration.” Justice bandido.” In “State Violence and Field concluded that “it seemed the Social and Legal Construc- impossible for them [Chinese] to tion of Latino Criminality: From assimilate with our people, or to El Bandido to Gang Member,” make any change in their habits Denver University Law Review 78 or modes of living.” (2001): 1091. She also points to Larry Trujillo, “La Evolucion del 18 Juan F. Perea, “Demography and ‘Bandido’ al ‘Pachuco’: A Criti- Distrust: An Essay on American cal Examination and Evaluation Languages, Cultural Pluralism, of Criminological Literature on and Official English,” Minnesota Chicanos,” Issues in Criminology 9 Law Review 77 (1992): 269, notes (1974): 43–67. I would suggest that the “dominant culture was, that American legal and popular and remains, the culture of white, culture have criminalized indige- Protestant, English- speaking, nous peoples in similar ways. Anglo- Saxon Americans.” Also, Kenneth Karst, “Paths to Be- 23 Kevin R. Johnson, “The Case for longing: The Constitution and African American and Latina/o Cultural Identity,” North Carolina Cooperation in Challenging Law Review 64, no. 375 (1986): Racial Profiling in Law Enforce- ment,” Florida Law Review 55 (Janu- R E V I E W 303, claims that “American con- stitutional law, like the rest of ary 2003): 341–42. the American civic culture, is 24 See Ruben J. Garcia, “Across predominantly an outgrowth of the Borders: Immigrant Status S A British- American traditions of and Identity in Law and Latcrit liberalism.” W I C A Z O Theory,” Florida Law Review 55 19 The two essays discussed in (January 2003): 511; Lisa J.134 this article are entitled, “Fences Laplante, “Expedited Removal at against Freedom” and “The Bor- U.S. Borders: A World without a Constitution,” New York University SPRING 20 0 5 der Patrol State,” both of which appear in her collection, Yellow School of Law Review of Law and Woman and a Beauty of the Spirit: Es- Social Change 25 (1999): 213; Neil says on Native American Life Today Gotanda, “Comparative Racial- (New York: Simon and Schuster, ization: Racial Profiling and the 1996). Case of Wen Ho Lee,” UCLA Law
  24. 24. N O T E S Review 47 (August 2000): 1689; to the United States after a brief Leonard M. Baynes, “Racial Pro- visit to Canada. My valid Ohio filing, September 11th, and the driver’s license was not good Media: A Critical Race Theory enough to let me return to my Analysis,” Virginia Sports and Enter- country. He asked me where my tainment Law Journal 2, no. 1 (Win- passport was. I told him that I ter 2002). did not have one and that it was my understanding that I did not25 “DHEA History, 1980–1985,” need one, that a driver’s license from DHEA Web site at http:// was sufficient. He told me that a driver’s license is not proof of 1980_1985.htm. citizenship. We were at an im- passe. . . . [Meanwhile], the white26 For information on the DEA and man in the car in front of me at Operation Pipeline, go to DHEA the border crossing did not have a Web site, at http://www.usdoj problem with his driver’s license. .gov/dea/programs/pipecon.htm. [No passport was asked of him.]”27 David Harris, “Driving While 32 Silko, Yellow Woman, 18–19. Black: Racial Profiling on our Nation’s Highways,” ACLU’s 33 Ibid., 20. Special Report on Racial Profiling (June 1999); Gary Cole, No Equal 34 Cole, No Equal Justice. Justice: Race and Class in the American Criminal Justice System (New York: 35 For another history of land grand The New Press, 1999), 48–49. adjudication, see Sylvia Rodri- Also see the ACLU’s Web site at guez, “Land, Water, and Ethnic Identity in Taos,” in Land, Water, report/. and Culture: New Perspectives on Hispanic Land Grants, ed. Charles28 John Lamberth, “Driving While L. Briggs and John R. Van Ness Black: A Statistician Proves That (Albuquerque: University of New Prejudice Still Rules the Road,” Mexico Press, 1987), 313–403. Washington Post, August 16, 1998, C01. 36 Silko, Almanac of the Dead (New York: Simon and Schuster, 1991),29 Whren v. U.S. [517 US 806 (1996)]. 213. Suzanne Leone, “Racial Profiling Head On: The Efficiency of 37 Malcolm Elbright, “New Mexican Chapter 228 of the Acts and Land Grants: The Legal Back- Resolves of 2000,” New England ground,” in Land, Water, and Culture: R E V I E W Journal on Criminal and Civil Confine- New Perspectives on Hispanic Land ment 28 (Summer 2002): 335–76, Grants, ed. Charles L. Briggs and 339–42. John R. Van Ness (Albuquerque: University of New Mexico Press, S A30 Silko, Yellow Woman, 108. 1987), 34, 37. W I C A Z O31 Robert S. Chang, an Asian Ameri- 38 Robert J. Larson and Robert W. can law professor, tells a similar Rosenbaum, “Mexicano Resis- story in “Toward an Asian Ameri- tance to the Expropriation of 135 can Legal Scholarship: Critical Grant Lands in New Mexico,” SPRING 20 0 5 Race Theory, Post- Structuralism, in Land, Water, and Culture: New and Narrative Space,” California Perspectives on Hispanic Land Grants, Law Review 81 (1993): 1241, 1265. ed. Charles L. Briggs and John R. He writes, “I think about the Van Ness (Albuquerque: Univer- American border guard who sity of New Mexico Press, 1987), stopped me when I tried to return 776–77.