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

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 Press
DOI: 10.1353/wic.2005.0001
For additional information about this article
http://muse.jhu.edu/journals/wic/summary/v020/20.1archuleta.html
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2. Securing Our Nation’s Roads and
Borders or Re- circling the Wagons?
Leslie Marmon Silko’s Destabilization
of “Borders”
Elizabeth Archuleta
I n the United States, roads symbolize the freedom that Americans have
come to value. Early on, American literature expressed the connection
between freedom and the open road, a feeling Walt Whitman conveys
in the first three lines of his poem “Song of the Open Road”: “Afoot and
light-hearted, I take to the open road, / Healthy, free, the world before
me, / The long brown path before me, leading wherever I choose.”1 Even
before the introduction of the automobile, Whitman understood that
roads were synonymous with freedom, and his poem still seems con-
temporary, in part because it continues to convey the special meaning
of roads for those who live in the United States. Significantly, laws have
also protected the freedom that roads symbolize for many Americans.
R E V I E W
Article 13 of the United Nations Universal Declaration of Human Rights
states, “Everyone has the right to freedom of movement and residence
S A
within the borders of each state.” The United States Supreme Court
has also upheld the right to travel as a basic constitutional freedom
W I C A Z O
protected by the Fifth Amendment, stating that travel is a liberty inter-
est that cannot be limited without due process. Supreme Court Justice 113
William Douglas has even described freedom of movement as “the very
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essence of our society, setting us apart . . . it often makes all other rights
meaningful.”2 Since the Constitution and the Supreme Court have guar-
anteed the right to travel, and since United States citizens presumably
live in a colorblind society, most Americans would deny that race helps
secure or protect these rights or that race-based laws regulate mobility.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 of
114 securing the nation’s roads and borders (for “Americans”) from drug
runners, illegal immigrants, and, since September 11, from terrorists.
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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. unequal relations that continue to play out in the legal treatment of
nonwhites. Silko demonstrates how the legal perception and handling
of 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 the
term so that it captures and encapsulates the criminal tendencies and
foreign 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 to
reinforce racial hierarchies. These laws have constructed certain groups
as outsiders or foreign as opposed to “real” Americans, that is, “white
with a western European heritage.” An early example of the belief that
“American” connotes whiteness is in John Jay’s 1787 contribution to the
Federalist Papers entitled “Concerning Dangers from Foreign Force and
Influence.”8 Jay, the first Chief Justice of the Supreme Court, concluded
that “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 to
the same principles of government, [and] very similar in their manners
and customs.”9 Jay’s racial nationalism is reflected in legal definitions of
an “American” identity that continued to use Anglo- European heritage
as the norm. In White by Law: The Legal Construction of Race, Ian Haney
Lopez traces legislative history that outlines how judges have used cri-
teria as arbitrary as skin color and scientific or popular opinion to justify
who is white enough to become an American citizen. These court deci-
sions were instrumental in defining race at a time when naturalization
was limited to whites.10 Jay’s perspective continues to resonate with
contemporary 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 reminds
his readers about “a plain historical fact: that the American nation has
R E V I E W
always 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 ten
Americans looked like me. That is, they were of European stock. And
S A
in those days, they had another name for this thing dismissed so con-
W I C A Z O
temptuously as ‘the racial hegemony of white Americans.’ They called it
‘America.’”11 Indigenous and minority efforts at decolonization threaten
the world Brimelow describes, because new power alliances that chal- 115
lenge United States racial, social, political, and cultural hegemonies are
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being formed. White fear of an alien nation undeniably fortifies public
support 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, laws
have preserved the benefits and privileges of an “American” identity for

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 imposed
116 definitions on peoples to designate who would occupy the realm of full
citizen, who would be enslaved, and who would remain unassimilable.
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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. by mainstream Americans’ nonresponse to McVeigh’s criminal act. In the
end, attempts to physically remove identifiable “aliens” from the United
States or brand them as possible terrorists or drug runners diminishes the
status of Americans who share the same physical characteristics.
To be sure, the way of life and the standards of conduct that the
Constitution and American laws sanction have historically championed
white, or Anglo- American, dominance.17 Indeed, the campaign that in-
tensified during World War I to “Americanize” foreigners resembled
the campaign to “Americanize” Indians that began hundreds of years
earlier. 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.18
Thus, the dominant class and culture began using education as a tool
for assimilating foreign and potentially “dangerous” groups to United
States values and beliefs.
Belonging to a group targeted for assimilation by the dominant
culture, Leslie Marmon Silko internalized United States beliefs and
values that education promoted.19 Her teachers taught her to defend
the United States’ constitutional ideals and democratic form of govern-
ment as opposed to autocratic regimes. She recalled that the education
she had received as a young child emphasized the benefits of American
citizenship, which stood in opposition to the burdens of living in a
communist or totalitarian regime: “We were taught that our right to
travel from state to state without special papers or threat of detainment
was a right that citizens under communist and totalitarian governments
did not possess. That wide open highway told us we were U.S. citizens;
we were free.” Additionally, she declared that the Lagunas remained
patriotic citizens despite the United States’ historical treatment of
American Indians: “As proud citizens, we grew up believing the free-
dom to travel was our inalienable right.” Silko’s teachers and a Western
liberal ideology taught her and her peoples to believe that they were
part of that larger “we” that makes up the United States.
R E V I E W
Silko’s education misdirected her nationalistic feelings and
prompted her to embrace and accept the dominant culture’s values,
including those connected to the open road, because the unspoken or
S A
unacknowledged legal barriers to freedom of movement for people of
W I C A Z O
color had not yet intruded in her life. She recalls that she “used to travel
the highways of New Mexico and Arizona with a wonderful sensation
of absolute freedom.” 20 In spite of her early socialization into American 117
values, when Silko exercised her right to travel, she began to reflect
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critically on the nature, scope, and manners of colonialism. She recog-
nized how her education had affected her outlook when she fell under
the gaze of a policing agency empowered by U.S. laws to identify,
detain, question, and possibly remove or prosecute individuals near the
border whom laws have characterized as potentially criminal or alien.

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
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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. movements reflect the social relations of colonialism. Law enforcement
practices designed to curtail illegal immigration and prevent the move-
ment of drugs into the United States from south of the border both use
physical appearance as a sign of “potential unlawful conduct or status.”23
Documented cases of racial profiling in traffic stops verify the claims
of 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 of
drug seizures they made during highway traffic stops along Interstate
40.25 Eager to prevent illicit drugs from flowing north through the
nation’s southern border, the Drug Enforcement Administration (DEA)
established Operation Pipeline. Although DEA officials’ enforcement
strategies hinged on the idea that “highway drug couriers shared many
characteristics, tendencies, and methods,” the officials are also quick to
claim that the program they use “to determine potential drug traffick-
ers . . . does not advocate such profiling by race or ethnic background.” 26
While the DEA posits that its exercise of power in the war on drugs is
race neutral, law professors David A. Harris and David Cole contend
that the DEA has trained local and state law enforcement personnel
to use race as a basis for highway stops.27 Their allegations stem from
legal action that citizens have taken against police officials who have
targeted African American or Latino drivers in eastern states.28 In every
case, judges found that police officials had violated one of the Fourth
Amendment’s core principles against unreasonable search and seizure
because the police had based their traffic stops solely on race. Although
state 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.29
The justices agreed that any traffic violation became a legitimate basis
for a stop that could also include a search of the vehicle, but race was not
allowed to play a factor.
The creation of border patrol checkpoint stations beyond the
R E V I E W
nation’s borders represents a new form of colonialism in that they are
institutions that achieve certain goals through military and political
means—retaining de facto control over a targeted nation, or, in this
S A
case, over a select group of people. Now, rather than experiencing
W I C A Z O
the freedom of the open road, Silko has described the fear and anxi-
ety she now experiences when driving down Interstate 10 in New
Mexico toward El Paso, Texas, or when she drives north from Las 119
Cruces, New Mexico up Interstate 25 about ten miles north of Truth
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or Consequences, also in New Mexico. Her unease has resulted from
the increased number of border patrol checkpoint stations situated
along these highways. In 1991, she and a companion were traveling
from Tucson, Arizona, to an Albuquerque, New Mexico, book-signing
event for her novel Almanac of the Dead when they were stopped at a

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 apparent
120 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
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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. tenance of racial, social, and political hierarchies. She arrived at this
conclusion after reading Charles Dickens’s Bleak House, noting that the
aristocracy 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 felt
that the United States had modeled its system of justice after Dickens’s
England: “The Anglo- American legal system was designed by and for
the feudal lords; to this day, money and power deliver ‘justice’ only to
the rich and powerful; it cannot do otherwise.” As they were neither
rich nor powerful, after twenty years, nearly two million dollars in
lawyers’ fees, and a favorable ruling for the Pueblos, the Lagunas still
did not get the justice they had hoped for—the return of their land.
Instead, the government offered money as compensation for a loss that
was, in essence, priceless. After realizing that laws serve those who
create them, Silko wanted nothing to do with what she termed “a bar-
baric legal system” that facilitates and reproduces inequality.33 At this
point in her life, Silko disavowed the colonized mindset instilled by a
Western education. If significant portions of the population deny that
the American system of justice is legitimate, then the most effective
deterrent to crime— the legal system—fails. Silko understood this,
realizing that the decolonization of indigenous peoples must involve a
deconstruction 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 Indians
there has been no justice, especially if one considers that the United
States and powerful individuals used the law to increase their land base
beyond 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 by
redefining acceptable legal definitions for land use and ownership, which
were based on Western conceptions of land use. These changes allowed
R E V I E W
white settlers to claim land areas within communal land grants.35
In Almanac of the Dead, Silko’s project is to represent alternative
histories, which helps to transform her own colonized view of the his-
S A
tory her own education provided. She reclaimed the past and chroni-
W I C A Z O
cled the injustices that the Southwest’s indigenous peoples experienced
with United States imperialism. Her character, Zeta, becomes the pan-
Indian voice for indigenous peoples of the Southwest. She shares the 121
knowledge of an alternative past:
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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. 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. to claim. Even large land and cattle companies and homesteaders viewed
community grants as part of the public domain, which U.S. laws made
available.38 In effect, whites once again asserted their presumed right to
define what was legally and culturally acceptable land use and ownership
by 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 of
indigenous peoples’ efforts toward decolonization.
Additionally, decolonization efforts include unraveling the legacy
of U.S. colonialism that racialized and transformed indigenous peoples
into “Indians,” thus, differentiating them from white U.S. citizens and
Mexicans who were neither white nor Indian. Again, Silko refused to
accept an outsider’s definition that attempted to define her or even envi-
sion her as potentially criminal or alien. She re-positions the nature of
criminality by indicting the dominant culture for historical crimes that
have yet to be acknowledged let alone rectified by U.S. law. Through
Zeta, Silko acknowledged a fact that historical amnesia erased from the
American conscience, namely, that the southwestern United States sits
on stolen land: “It was white men coming to find more silver, to steal more
Indian land. It was white men coming with their pieces of paper! To make
their big ranches.”39 The words on “their pieces of paper” superseded
the words about the land passed down in indigenous stories. The words
even superseded international law, the Treaty of Guadalupe Hidalgo, as
well 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 to
claim land. New Mexico territorial law “protected non-Indian holdings
within confirmed Pueblo grants on the basis of adverse possession.”40
Under adverse possession, mere tenure on a parcel of land for ten years
confirmed one’s right to possess that land. New Mexico territory codified
this 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’ national
status, Silko has affirmed indigenous peoples’ ongoing sovereignty by
renouncing the U.S. system of justice and refusing to recognize its
S A
authority. Through Zeta, she has censured the presumed legitimacy of
W I C A Z O
Western law and the recognized authority of the colonial governments
and 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. 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 and
124 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. 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.44
Like the elder, Silko claims an “American” identity that does not have the
baggage of colonialism attached to it, an “American” identity that has
its 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 the
historical “crimes” that the border patrol and its checkpoint stations
symbolize: the continued occupation of stolen land. Equally significant
is 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 space
surrounding the border. Although border patrol agents represent the
nation’s sentinels who safeguard and secure the nation’s borders from
“aliens,” Silko has refused to recognize their symbolic authority as she
angrily advises them to leave: “This is our home,” she tells them. “Take
all this back where you came from. You are not wanted here.”45 She
makes 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 separated
from the history of colonialism as it has continued to operate in the
Southwest. Nevertheless, New Mexico’s tourist propaganda celebrates
R E V I E W
this 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 A
into a site of intense conflict over race, identity, citizenship, and the right
W I C A Z O
to move freely. While Supreme Court justices do not condone racial
profiling in certain geographical areas, they have allowed its practice
in other regions, in particular on roads within one hundred miles of the 125
United States/Mexico border. In United States v. Brignoni- Ponce (1975), the
SPRING 20 0 5
Supreme Court ruled that “‘Mexican appearance’ constitutes a legitimate
consideration under the Fourth Amendment for making an immigration
stop.”46 Likewise, in United States v. Martinez- Fuerte (1976), the Court ruled
that fixed border patrol checkpoints were designed to stop illegal immi-
gration, and therefore, were consistent with the Fourth Amendment if

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. multiple detentions became her reminder that she has also been marked
and targeted as dangerous by a colonialist government that fears losing
control of the various borders it has created. Silko’s fear of death at the
hands of government officials is not unjustified. A year after she was de-
tained for a second time and searched by drug-sniffing dogs, Esequiel
Hernandez Jr., a poor goat herder and an American citizen of Mexican
ancestry, was shot and killed by a United States marine who was work-
ing with the border patrol to help detain and capture drug smugglers.54
Hernandez was tending to his sheep when he was killed.
A variety of circumstances has led to numerous deaths among
border crossers, making them a familiar news item, but in 1997 the death
of eighteen-year- old Hernandez underscored for nonwhite citizens the
cost of the border patrol’s reliance on racial profiling for criminal law
enforcement, especially when coupled with the government’s increased
militarization.55 Along the border, the federal government has disguised
race-based surveillance tactics that resemble Michel Foucault’s panopti-
cism as unbiased and objective methods for maintaining civil society
and 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 amended
the Posse Comitatus Act in order to allow the military to assist in drug
surveillance along the border, they intensified the panoptic model of
security by introducing to immigration and drug enforcement practices
high-tech air support such as OH- 6A military helicopters, night-vision
and infrared scopes, and low-light television surveillance systems.56
Through this technology, the United States and the border patrol can
more effectively monitor the nation’s roads and borders, but they also
have 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 W
immigrants pose, the United States that Silko learned about as a child
no longer differs in certain respects from communist countries and mili-
tarized borders such as those in North Korea, Cuba, and the former
S A
East Berlin and Soviet Union. In effect, immigrants have replaced com-
W I C A Z O
munists as the threat that warrants the same kind of military strategies
used during wartime. Timothy J. Dunn’s The Militarization of the U.S.–
Mexico Border, 1978–1992 documents how border policies and practices 127
have replicated the Pentagon’s doctrine of “low-intensity conflict.” One
SPRING 20 0 5
element of low-intensity conflict used domestically has included the
use of police, paramilitary forces, and military forces working together
to combat the flow of illegal immigrants and drugs entering the coun-
try. These military strategies, meant to establish social control over
specific civilian populations, were originally created for use in third

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. Simcox, founder of Civil Homeland Defense, issued a proclamation to
Arizona’s Governor Napolitano and Tucson’s Border Patrol announc-
ing his intent to begin patrolling the border with armed citizens. In
this public call to arms, he declared, “we have the legal right and moral
obligation [to form a militia] as per our Arizona State Constitution
and Federal Constitution and our respect for American citizens.”60
Allegedly, his militia is meant to prevent drug dealers and criminals
from terrorizing ranchers and homeowners.61 According to Simcox,
they have already assisted ranchers near the border to secure their
property from what he refers to as “hordes of criminal trespassers” that
have damaged or destroyed property.62 With the help of the Internet,
Simcox spreads his message on “news” venues such as Glenn Spenser’s
American Patrol Report or the USA Daily, where he presents readers with
chilling headlines such as “Illegal Aliens Violently Attacking American
Citizens: Anarchy and Lawlessness Rule U.S.–Mexican Border.” In this
particular 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 of
Mexican military involvement in illegal alien and drug smuggling as
well 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 W
increase support for their organizations.
What is even more surprising is that fringe groups are not alone in
cautioning the United States about an impending takeover by Mexico.
S A
This same sentiment is expressed in a novel written by President Reagan’s
W I C A Z O
former secretary of defense, Caspar Weinberger.63 Weinberger’s 1996
futuristic novel, The Next War, coauthored with Hoover Institution
scholar Peter Schweizer, creates an exaggerated and chilling account of 129
border problems. In order to increase support for more military spend-
SPRING 20 0 5
ing, the authors build on the American population’s fear of a “Mexican
invasion” by creating a hypothetical conflict between the United States
and Mexico along with North Korea, China, Iran, Russia, and Japan. In
the setting involving Mexico, that country’s economy dissolves and the
resulting unrest spills over into the United States in the form of mass

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. indigenous peoples have used and shared as trade routes for thousands
of years. Even so, Zeta rejects the border’s authority: “We don’t believe
in boundaries. Borders. . . . We are here before maps or quit claims.
We know where we belong on this earth. . . . We pay no attention to
what isn’t real.”64 In the novel, indigenous peoples on both sides of the
border continued to trade even after the treaty divided their lands. In
response, U.S. authorities defined their commercial dealings as crimi-
nal behavior. Challenging this allegation, “Zeta wondered if the priests
who told the people smuggling was stealing [from the government] had
also told them how they were to feed themselves now that all the fertile
land along the rivers had been stolen by white men.” Silko repeatedly
forces her readers to question Western notions of criminality by juxta-
posing white theft of indigenous lands with Zeta’s history of enriching
herself by transporting drugs and guns across the border. According
to the U.S. legal system, both sides could be charged with criminal be-
havior, yet land theft from previous generations is typically dismissed
because the passage of time has been too great and because those in
power undoubtedly fear that a U.S. admission of culpability might lead
to a radical redistribution of the nation’s resources and capital.
The novel’s conclusion becomes an antidote to more than five
hundred 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’s
presumed unity, Silko finds the Americas out of balance for over five
centuries with the rich and powerful further distancing themselves
from the land by worshipping technology and seeking material rather
than spiritual gain. Silko envisions her indigenous army’s advance to-
ward Tucson, Arizona, as an effort toward decolonization. She also
portrays this new migration as a move toward healing and reconciling
lands and communities that national borders have tried to keep apart.
She announces that borders have not worked and predicts that they
will never work “as the indigenous people of the Americas reassert their
R E V I E W
kinship and solidarity with one another.” What the United States refers
to as illegal border crossing, Silko recognizes as the continuation of
mass migrations across vast expanses of land. Movements and land-
S A
scapes have informed the creation of indigenous peoples’ identities.
W I C A Z O
The significance of migration for Pueblo peoples is evident in the on-
going importance of their migration tales, which form a portion of their
sacred stories. Silko notes that migrations were equally important to 131
indigenous communities living south of the border, all the way down to
SPRING 20 0 5
Mexico 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 Maize
Mother, the Twin Brothers, and their grandmother, Spider woman, as
well as Quetzalcoatl, the benevolent snake.”65 Silko’s conclusion creates

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. 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 Court
10 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, Enhanced
13 Scott v. Sanford, 60 U.S. (19 How.) Smuggling Penalties, and Asy-
393 (1857). lum Reform.” This legislation
called for “summary exclusions of
14 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. N O T E S
home.earthlink.net/~jenniferterry/ 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. 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 not
25 “DHEA History, 1980–1985,” need one, that a driver’s license
from DHEA Web site at http:// was sufficient. He told me that
www.usdoj.gov/dea/deamuseum/ a driver’s license is not proof of
1980_1985.htm. citizenship. We were at an im-
passe. . . . [Meanwhile], the white
26 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
http://archive.aclu.org/profiling/ Identity in Taos,” in Land, Water,
report/. and Culture: New Perspectives on
Hispanic Land Grants, ed. Charles
28 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 A
30 Silko, Yellow Woman, 108. 1987), 34, 37.
W I C A Z O
31 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.

25. N O T E S
39 Silko, Almanac, 213, 116. 45 Silko, Yellow Woman, 109.
40 G. Emlen Hall, “The Pueblo Land 46 Kevin R. Johnson, “The Case
Grant Labyrinth,” in Land, Water, against Race Profiling in Immigra-
and Culture: New Perspectives on His- tion Enforcement,” Washington
panic Land Grants, ed. Charles L. University Law Quarterly 78, no. 3
Briggs and John R. Van Ness (2000): 676.
(Albuquerque: University of
New Mexico, 1987), 100. 47 United States v. Martinez- Fuerte, 428
U.S. 543 (1976).
41 Ibid., 133.
48 United States v. Montero- Camargo,
42 See Robert A. Williams Jr., “The 208 F.3d 1122 (9th Cir. 2000).
Algebra of Federal Indian Law:
The Hard Trail of Decolonizing 49 United States v. Cruz- Hernandez, 62
and Americanizing the White F.3d 1353, 1356 (11th Cir. 1995).
Man’s Jurisprudence,” Wisconsin Also see United States v. Rodriguez,
Law Review 219 (March 1986): 976 F.2d 592, 595 (9th Cir. 1992),
290–91. See also Robert A. Wil- amended, 997 F.2d 1306 (9th Cir.
liams Jr., “Columbus’s Legacy: 1993).
Law As an Instrument of Racial
50 Quote from Orhorhaghe v. INS, 38
Discrimination against Indige-
F.3d 488, 498 n.16 (9th Cir. 1994).
nous Peoples’ Rights of Self-
Determination,” Arizona Journal 51 Silko, Yellow Woman, 109–10.
of International and Comparative Law
8 (1991): 51. 52 In “Whiteness in the Black Imagi-
nation,” bell hooks expresses
43 For scholarly studies on the the fear that black people had of
boarding school experience, see whiteness, especially before the
David Wallace Adams, Education civil rights movement (in Displac-
for Extinction: American Indians ing Whiteness: Essays in Social and
and the Boarding School Experience, Cultural Criticism, ed. Ruth Franken-
1875–1928 (Lawrence: University berg [Durham, NC: Duke Uni-
Press of Kansas, 1995); Marga- versity Press, 1997], 165–79). The
ret L. Archuleta, Brenda J. Child, same fear of whiteness appears
and K. Tsianina Lomawaima, in American Indian literature,
eds., Away from Home: American especially stories of when whites
Indian Boarding School Experiences, came to take Indian children away
1879–2000 (Phoenix, AZ: Heard to attend boarding school. See for
Museum, 2000); K. Tsianina instance, “Lullaby” in Silko’s Story-
Lomawaima, They Called It Prairie teller (New York: Arcade Publish-
R E V I E W
Light: The Story of Chilocco Indian ing, 1981), 43–51.
School (Lincoln: University of
Nebraska Press, 1994); Amanda J. 53 hooks, “Whiteness,” 176.
Cobb, Listening to Our Grandmothers’
S A
Stories: The Bloomfi eld Academy for 54 For more on Esequiel Hernandez,
W I C A Z O
Chickasaw Females, 1852–1949 see the Web site at http://dpft
(Lincoln: University of Nebraska .org/hernandez/, which includes
136 Press, 2000); Devon A. Mihesuah, the U.S. Marine Corps’s report
Cultivating the Rosebuds: The Educa- on the Hernandez shooting.
tion of Women at the Cherokee Female
SPRING 20 0 5
55 “Militarization” can be defined as
Seminary, 1851–1909 (Urbana: Uni-
anything that acquires the mili-
versity of Illinois Press, 1993).
tary’s institutional attention but
44 Speech taken from Felix Cohen, does not mean that the military’s
“Americanizing the White Man,” direct participation is required. It
American Scholar 21 (1952): 177–78. can also refer to law officials’ use